STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 82-616

)

ALEX J. PELLINI, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing in this above-styled cause was held pursuant to notice on July 15, 1982, in Miami, Florida. This case arose on a three count Administrative Complaint filed by the Board of Veterinary Medicine against Alex

1. Pellini. Prior to hearing Counts II and III were dropped by the Board. The remaining count alleges that Dr. Pellini operated a veterinary facility without the required permits.

   
   

   APPEARANCES

   
   

   For Petitioner: James H. Gillis, Esquire

   Department of Professional Regulation

   130 North Monroe Street Tallahassee, Florida 32301

   
   

   For Respondent: Lister Witherspoon, Esquire

   542 Northwest 12th Avenue Miami, Florida 33136

   
   

   ISSUES

   
   

   The parties stipulated to certain facts involving the allegations of Count I and additional testimony was received concerning the events which gave rise to the charges. The ultimate issue is whether permit as provided for in Rule 21X- 15.01, Florida Administrative Code, applies to the practice of veterinary medicine by' a veterinarian away from his licensed premises when the veterinarian practices veterinary medicine?

   
   

   The Hearing Officer has read and considered the proposed recommended orders. To the extent the proposed findings of fact have not been included in the findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

   
   

   FINDINGS OF FACT

   
   

   1. Alex J. Pellini, the Respondent, is and was at all times pertinent to these charges, a licensed veterinarian having been issued license number 0000880

      by the Board. His last known address is Second Avenue, Second street Stock Island, Key West, Florida) 33040.

      
      

   2. Dr. Pellini was asked by representatives of organizations (the local group) involved with the humane treatment of animals to assist the animal owners of Key West, Florida, by providing low-cost spay and neuter operations inn that city. The need for such services arose from lack of a spay and neuter clinic in the area.

      
      

   3. In response to this request, Dr. Pellini, who practiced in the Miami area at the time, said he would perform this service if the local group could find a suitable location.

      
      

   4. The local group obtained the free use of Joe's Grooming at 1411 First Street, Key West, during the time it was regularly closed. Dr. Pellini inspected the facility and advised the local group of the steps that would have to be taken to clean and disinfect the area to be used as an operating room.

      
      

   5. Patricia A. Marker, a member of the local group who had retired in the area after working as an operating room nurse for a veterinarian in Fort Lauderdale for many years, cleaned and disinfected with her husband's assistance the area to be used. Dr. Pellini inspected the area before a temporary operating area was established and found it sanitary.

      
      

   6. On or about October 27, 1980, Dr. Pellini brought from his regular place of business, which was duly permitted, all supplies, medicines and equipment necessary to establish a safe and adequately equipped operating facility.

      
      

   7. The local group advertised the availability on that date of the spaying and neutering services, and approximately thirty spay/neuter operations were performed by Dr. Pellini at the temporary operating facility established at Joe's Grooming on October 27, 1980.

      
      

   8. No permit was obtained for the premises. No temporary permit is provided for in the rules.

      
      

   9. Veterinarians in the practice of their profession are frequently and routinely required to practice veterinary medicine away from the regular place of business.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction to hear this cause and enter a recommended order pursuant to Section 120.57(1), Florida Statutes. The Board has authority to discipline its licensees pursuant to Chapter 474, Florida Statutes.

       
       

   11. Section 474.215(1), provides in pertinent part:

       
       

       1. Any establishment where a licensed veterinarian practices must have a premises permit issued by the department. (Emphasis Supplied)

   12. Section 474.215(4), Florida Statutes, authorizes the Board to penalize any premises operating without a permit. The Board has implemented the statute by the adoption of Rule 21X-15.01, Florida Administrative Code, which provides:

       
       

       21X-15.01 Purpose. All premises where veterinary medicine is practiced shall be required to register with the Department of Professional Regulation and comply with the minimum standards for sanitary conditions and physical plant prior to issuance of a premise permit. (Emphasis Supplied)

       
       

   13. The statute was enacted and became effective shortly before the events which gave rise to this complaint took place. The rules make no provision for temporary permits. However, Section 474.215(5), Florida Statutes, provides;

       
       

       (5) Any practitioner who provides veterinary service on a house-call basis and who does not maintain a veterinary establishment for receipt of patients shall not be required to

       obtain a premises permit, but must provide for minimum equipment and facilities as established by rule.

       (Emphasis Supplied)

       
       

   14. When the provisions of Subsection (5) are read in conjunction with the remainder of the statute, there was no legislative intent to require a premises permit for veterinary services carried on away from the veterinarian's customary and usual place of business, i.e., his establishment. Large animal veterinarians treating cows and horses in their owner's premises would not be required to obtain such a permit. Similarly, a veterinarian who undertook to provide a veterinarian service away from his regular place of business on a temporary basis would not be required to obtain a permit. Such a place is not an "establishment" within the meaning of the statute.

       
       

   15. There is no evidence that the services rendered by the Respondent were other than temporary and of limited duration. Joe's Grooming was not an animal hospital nor did the Respondent intend to establish a veterinarian practice on said premises. The actions of Respondent were intended to be excepted by Subsection (5), and no permit is statutorily required.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, the Hearing Officer recommends that the Administrative Complaint against Alex J. Pellini be DISMISSED.

DONE and ORDERED this 21st day of September, 1982, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1982.

COPIES FURNISHED:

James H. Gillis, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Lester Witherspoon, Esquire 642 Northwest 12th Avenue Miami, Florida 33136

Jane Raker, Executive Director Board of Veterinary Medicine

130 North Monroe Street Tallahassee, Florida 32301

Samuel Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000616

Orders for Case No: 82-000616