.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF VETERINARY ) MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 82-620

)

DAVID B. WALRATH, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on July 15, 1982, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an Administrative Complaint alleging that Dr. David Walrath had violated Section 474.214 (1)(f) Florida Statutes, by placing an advertisement for DMSO in a local newspaper.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Charles A. Hayes, Esquire

922 North Krome Avenue Homestead, Florida 33030

Both parties submitted Proposed Findings of Fact and Conclusions of Law. These proposed orders were read and considered. The findings of fact herein incorporate those proposals except where additional findings were necessary or when the proposed findings were not relevant or not based upon the most creditable evidence presented.

The sole issue is whether the advertisement was deceptive or fraudulent.

FINDINGS OF FACT

1. Dr. David B. Walrath is and was at the time of the events at issue a licensed veterinarian holding license number 001374 issued by the Board.

   
   

2. DMSO is the common name for Diamethylsulfoxide.

   
   

3. Dr. David B. Walrath caused various advertisements to be placed in the South Dade News Leader, a newspaper, to include one which was the subject of the Administrative Complaint which read:

   DMSO

   16 ounce-$38.00

   248-6536

   
   

4. The telephone number listed in the advertisement was that of English Plaza Animal Hospital, the professional address of the Respondent. DMSO was available for sale at English Plaza Animal Hospital at the price advertised. The data in the advertisement was true.

   
   

5. No evidence was presented on the nature of DMSO, its uses, or whether it was approved for medical use on humans. Dr. Walrath did state the manufacturer represented DMSO to be a cure for animals but did not indicate what ailments it cured.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Board has authorization to discipline its licensees pursuant to Chapter 474, Florida Statutes. The Division of Administrative Hearings has jurisdiction over the parties and issues pursuant to Section 120.57(1), Florida Statutes.

   
   

7. The Administrative Complaint alleges that Dr, Walrath violated Section 474.214(1)(f) , Florida Statutes, by placing the advertisement quoted in the findings of fact above. Section 474.214(1)(f), Florida Statutes, provides:

   
   

   1. The following acts shall constitute grounds for which the disciplinary actions in subsection (2) may be taken:

      * * *

      (f) Advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content.

      
      

8. All evidence presented indicated that the data contained in the advertisement was true and accurate. DMSO was available at the telephone number listed for sale at the price indicated.

   
   

9. The apparent thrust of the Administrative Complaint is that the advertisement should have ,identified the Respondent or his hospital as the source of, the DMSO, or stated that the DMSO was "veterinary quality" DMSO. However, no reference is made in the Administrative Complaint or post hearing briefs to any statute or rule requiring veterinarians to identify themselves in advertisements generally or any limitations, standards of quality, or special requirements related to the advertisement or sale of DMSO.

   
   

10. While evidence was received relating to the purchase of DMSO by the Board's investigator during a period when the, Respondent and his wife were not in the country, the Administrative Complaint does not charge the Respondent with an offense related to the sale of DMSO. As stated above, no legal limitations or standard for the sale of DMSO were referenced in the Administrative Complaint or the posthearing briefs. Even if one finds the Respondent's employees sold DMSO to persons under circumstances which would indicate that the DMSO was for human and not animal use, the lack of any rules or regulations establishing grade standards for DMSO or limitations upon its sale prevents any conclusion the Respondent violated the statute as alleged.

11. In summary, the statute alleged to have been violated prohibits false or deceptive advertising. The facts contained in the advertisement are true. Therefore, the advertisement must fail to present relevant or required information in order to be false or deceptive. The burden is on the Board to prove some standard for the use of DMSO which states what relevant data must be contained in an advertisement or from which such data can be reasonably inferred. No evidence of this nature was introduced. In the absence of such a standard stated in a rule or statute, the public is not on notice of the conduct prohibited by Section 474.214(1)(f), Florida Statutes.

    
    

12. There is no proof that the Respondent violated provisions of Section 474.214(1)(f), Florida Statutes, as alleged.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED that the Administrative Complaint against Dr. David B. Walrath 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

Samuel R. Shornstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Charles A. Hayes, Esquire 922 North Krome Avenue Homestead, Florida 33030

Jane Raker, Executive Director Board of Veterinary Medicine

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000620

Orders for Case No: 82-000620