Marco realtor accused of putting mothballs into owl burrow agrees to 6 months’ probation

A Marco Island realtor accused of putting mothballs into an owl burrow last year pleaded 'no contest' as part of an agreement with the State Attorney's Office (SAO), court documents show.

As part of the agreement, Roger M. Fleming was sentenced to six months probation, 75 hours of community service and a $200 fine, according to Samantha Syoen, SAO's communications director.

"The defendant pled no contest and that plea was accepted by the court," Syoen wrote in an email to the Eagle. "'No contest' by definition is when a defendant accepts conviction but does not plead guilty."

Fleming must also pay $270 for court costs and the cost of prosecution.

"The defense asked for a withhold of adjudication but the prosecutor argued for an adjudication of guilt," Syoen wrote.

The judge adjudicated Fleming guilty.

Shannon H. McFee, Fleming's attorney, spoke to the Eagle via phone call.

"Mr. Fleming resolved his case by taking responsibility for a bad decision," McFee said. "He is extremely remorseful for doing so and he looks forward to moving on with his life. "

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On Oct. 3, Robbie Taylor observed that  the wooden perch was missing from an owl burrow in an empty lot next to his Marco Island home,  the Eagle reported.

Taking a closer look, Taylor observed small white objects by the burrow which turned out to be mothballs, a pesticide that can be poisonous if the fumes are inhaled in large quantities.

Taylor and his wife, Tracey, took pictures of the burrow, removed the mothballs, put the perch back and called Florida Fish and Wildlife Conservation Commission (FWC).

"They are not harming us," Mrs. Taylor said about the owls. "They are not doing anything."

"This is their home too."

FWC officers arrived at the scene and took statements from Mrs. Taylor and Megan Groves, a neighbor that lives on the other side of the empty lot. 

"The nest was located near a for sale sign, with the listing realtor agent’s name, Roger Fleming," according to an FWC report.

Roger M. Fleming and Jacquelyn Fleming are the owners of the empty lot on 1430 Wayne Ave., according to the Collier County Property Appraiser's website.

The officers also observed a security camera from Grove's house that was pointing toward the burrow but were told that it was moved after the incident in case whoever did it came back.

The next day, Groves and Mrs. Taylor reported to FWC that somebody put additional mothballs into the burrow but this time it was caught on camera.

"In the footage, you see an individual quickly walk up to the nest and throw something into the nest," according to the report. "It was later discovered that the objects in question were again mothballs."

Mrs. Taylor, who works for a real estate company, said this time the mothballs were deeper into the burrow, making them harder to remove. 

"Mrs. Taylor stated that her husband had to reach his entire arm inside the nest to retrieve all of the mothballs," according to the report. 

Soon after, the officers drove to Fleming’s house on Marco Island for questioning.

“The only thing I can say clearly is that it was never my intent to harm anything," Fleming said, according to the report. "My intent was to dissuade, I guess."

"I didn’t think I did anything harmful, nor was my intent to do anything harmful.”

On Oct. 8, an FWC biologist used a snake camera or scope to penetrate the nest and see if there were any more mothballs or dead owls inside but nothing of concern was observed, according to the report.

The Eagle visited Fleming at his home on Nov. 19, finding him outside his property, where he declined to comment.

"I think I'm OK saying nothing," Fleming said. "My attorney won't let me."

During a hearing in front of the Marco Island code enforcement magistrate on Oct. 28, a continuance of Fleming's case was granted.

The city did not have a code enforcement hearing in November or December, leaving this case pending, the Eagle reported.

Brad Cornell, policy director of Audubon of the Western Everglades (AWE), said in October it would have been much easier for Fleming to get a permit from FWC to remove the burrow.

In response to this and other recent incidents where burrowing owls were potentially harmed, Allison Smith, manager of AWE's Owl Watch program, said in November volunteers will start monitoring burrows all year round and not just during season. 

"We are planning on keeping a closer look on them," Smith said.

Smith said most people care about burrowing owls.

"It's just a handful of bad guys that don't," Smith said.