STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) DOAH CASE NO. 86-2253

) DPR CASE NOS. 0061146

SAMY H. HELMY, D.V.M., ) 0058154

) 0055885

Respondent. )

)

RECOMMENDED ORDER

Following the provision of notice, a formal hearing was held in this case in accordance with Section 120.57(1), Florida Statutes. The date of hearing was January 21, 1987. The location of the hearing was Inverness, Florida. Charles

1. Adams served as the hearing officer. This recommended order is being entered following receipt and review of proposed recommended orders as offered by the parties. Those proposals have been utilized to some extent. Otherwise, the proposals have been rejected for reasons as explained in the appendix to this recommended order.

   
   

   APPEARANCES

   
   

   For Petitioner: William M. Furlow, Esquire

   Senior Attorney

   Department of Professional Regulation

   130 North Monroe Street Tallahassee, Florida 32399-0750

   
   

   For Respondent: Samy H. Helmy, D.V.M, pro se

   105 North Florida Avenue Inverness, Florida 32650

   
   

   ISSUES

   
   

   The issues in this cause are fashioned by an amended administrative complaint brought by the Petitioner against the Respondent. By the first count to this complaint, Respondent is charged with knowingly employing and otherwise encouraging his wife, Nadia Said Helmy, to practice veterinary medicine in Florida without the benefit of a license. The second count to the amended administrative complaint was dismissed at the commencement of the hearing. By count three, the Respondent is charged with inappropriate advertising in association with his veterinary practice.

   FINDINGS OF FACT

   
   

   1. The State of Florida, Department of Professional Regulation, Board of Veterinary Medicine (Petitioner) is empowered by Chapters 455 and 474, Florida Statutes, to regulate the practice of veterinary medicine in Florida.

      
      

   2. Samy H. Helmy, D.V.M (Respondent), is and has been a licensed veterinarian in Florida during the pendency of the allegations set forth in the amended administrative complaint.

      
      

   3. Respondent's wife, Nadia Said Helmy, is not now licensed to practice veterinary medicine in Florida, nor has she been during the time sequence contemplated by the amended administrative complaint.

      
      

   4. Respondent and his wife owned and operated Wildwood Animal Clinic in Wildwood, Florida, from a period before January 1985 until June 1985.

      
      

   5. Respondent and his wife were also the owners and operators of Citrus Fair Animal Hospital in Inverness, Florida, from January 1985 through September 19, 1986, the date upon which Respondent gave a deposition in this cause.

      
      

   6. During the time frame in which both animal clinics were open, Respondent was principally located at the Inverness facility, while his wife was working in the Wildwood facility. Nadia Helmy was working under the supervision of the Respondent in her activities at Wildwood.

      
      

   7. Sometime in May 1985, a Ms. Goheen took her cat to Dr. Leigh McBride, another veterinarian licensed to practice in Florida. Ms. Goheen claimed that her cat had been treated by a veterinarian at the Wildwood Animal Clinic. She described that veterinarian as being a female. Dr. McBride was unfamiliar with a female veterinarian at the Wildwood Animal Clinic, being of the understanding that Respondent, a man, was the practicing veterinarian in that facility. This circumstance in which it was possible that someone was practicing veterinary medicine without the benefit of a license led to an investigation of that possibility on the part of Petitioner.

      
      

   8. Eventually, A. L. Smith, an investigator for Petitioner, was assigned to undertake the investigation. Smith borrowed a cat from Dr. McBride. Stogie, the cat, had come into Dr. McBride's veterinary clinic with a broken shoulder which Dr. McBride had repaired. Following this episode, the cat walked with a slight limp.

      
      

   9. Around May 22 or 23, 1985, in furtherance of his investigation, Mr. Smith took Stogie to the Wildwood Animal Clinic. He had in mind ascertaining whether Nadia Helmy was practicing veterinary medicine without a license by seeing if she would practice on the cat. He deliberately picked an occasion in which Ms. Helmy was alone in the Wildwood Animal Clinic in his effort to determine her willingness to practice veterinary medicine.

      
      

   10. Once inside the Wildwood Animal Clinic, Mr. Smith confirmed that Nadia Helmy was the only person in attendance. Smith asked to see a veterinarian, remarking to Ms. Helmy that his cat was suffering lethargy and was limping more than usual and that he needed the cat to be examined by a veterinarian. Ms. Helmy directed Smith to take the cat to an examination room and showed him the location of that examination room. At that point, Smith said that Nadia Helmy commenced "the examination." He further described that while the cat was on the examining table ". . . she [Nadia Helmy] was looking at it and looking into its

       eyes." He indicated that the examination he was observing was what he would expect a veterinarian to give an animal. On the other hand, this is the first instance in which Mr. Smith had ever done undercover investigation of alleged unauthorized practice of veterinary medicine and there is no other information that has been presented which would lead to the conclusion that Mr. Smith knew what techniques would be employed in an examination conducted by a veterinarian. Under the circumstances, there being no further indication of the factual details of the examination, absent the remark concerning Nadia Helmy's looking into the eyes of the cat, it cannot be concluded what details were involved in the alleged examination process and whether in fact the kind of examination conducted by veterinarians was occurring.

       
       

   11. The telephone rang, and Nadia Helmy left the examination room and answered the phone. She was gone for. three or four minutes. Mr. Smith could hear Nadia Helmy's end of the conversation, in which she spoke in some foreign language. Nadia Helmy testified in the course of the hearing that she spoke with her husband on the telephone regarding the symptoms of Stogie, among other matters. Having examined her demeanor in the course of the hearing and all her answers provided under interrogation, no credence is afforded her version of the telephone conversation. Consequently, no facts are found as to the nature of that conversation. Nonetheless, it is concluded that a conversation was held between Nadia Helmy and Respondent.

       
       

   12. Following the telephone conversation, Nadia Helmy returned to the examination room and looked at the cat again. Mr. Smith admitted that the cat seemed to be better and Ms. Helmy agreed with him and stated that the cat was just suffering from extended travel. Nadia Helmy said that the cat would be better after returning home. This was in response to Mr. Smith's representation that he was travelling between Tallahassee and Naples, Florida. Mr. Smith described the remarks by Nadia Helmy, concerning the fact that the cat was suffering from extended travel to be some form of diagnosis. Again, it not being identified that the investigator could speak to matters of what constitutes a diagnosis and the nature of those remarks by Nadia Helmy not being clearly a form of diagnosis which might be recognized by a lay person, the remarks are not received as stating a diagnosis.

       
       

   13. Throughout the exchange between Mr. Smith and Nadia Helmy on the date that the cat was brought to the Wildwood Animal Clinic, Mr. Smith referred to Nadia Helmy as "doctor." Although Ms. Helmy did not correct Mr. Smith in his reference, she did not affirmatively state that she was in fact a veterinarian licensed by Florida to practice veterinary medicine.

       
       

   14. In the course of the events in the examination room, Nadia Helmy did not take the temperature of the cat, did not take a case history on the cat or provide any form of treatment.

       
       

   15. Following the conversation in the examination room, Investigator Smith asked Nadia Helmy "how much" for her service. She replied five dollars. Nadia Helmy gave Investigator Smith a receipt for the payment of the five dollars. A copy of the receipt may be found as Petitioner's Exhibit 1 admitted into evidence. It is on a form of the Wildwood Animal Clinic, which has a portion related to the character of service. This portion of the receipt is not filled out. The only thing that is reflected is the amount of charges and Mr. Smith's name and a date, May 22, 1985. Under these circumstances, it cannot be concluded that the five dollar charge was for provision of veterinary services.

   16. After leaving Wildwood Animal Clinic, Investigator Smith went to Citrus Fair Animal Hospital at Inverness. While there, he discussed with Respondent the facts of his visit to the Wildwood Animal Clinic and the nature of events related to Respondent's wife and the fact that the investigation was in answer to allegations made about the wife's practice of veterinary medicine. In the course of this conversation, Respondent stated that his wife was a graduate of veterinary medicine and was qualified to examine animals and run the clinic but that he did all of the surgery. He stated that his wife was qualified to give shots and to determine what was wrong with animals.

       Concerning the wife's actions, Respondent stated that his wife was too busy raising three children to get all the classes and under this circumstance hadn't passed an examination. Nonetheless, according to Respondent, the wife was completely qualified in that she was a graduate of veterinary medicine school.

       
       

   17. This acknowledgment by Respondent as to the general arrangement between the Respondent and his wife concerning the operation of the Wildwood Animal Clinic does not revitalize the Petitioner's claim that the wife was practicing veterinary medicine on the specific day in question.

       
       

   18. Evidence was presented in the course of the hearing concerning the fact that Nadia Helmy would not treat an animal of one Ralph Benfield when the animal had been offered for treatment at the Wildwood Animal Clinic. However, this situation occurred at a time when the Wildwood Animal Clinic was being phased out and it is not clear what significance that fact had in the decision by Nadia Helmy not to offer assistance to the animal.

       
       

   19. In January 1985, Respondent entered into a one-year advertising contract with the Citrus County Chronicle, a local newspaper. This was for the placement of advertisements pertaining to his Citrus Fair Animal Hospital. One of the ads placed in the paper, at the instigation of the Respondent, can be found as Petitioner's Exhibit 4 admitted into evidence. The date of the advertisement is March 31, 1985. It advertised free fecal check and a free office visit, but did not contain the 72-hour disclaimer language contemplated by Section 455.24, Florida Statutes.

       
       

   20. Having been advised of this problem related to the lack of disclaimer, Respondent, by correspondence of August 26, 1985, acknowledged his violation and modified the format of his advertising. The letter of August 26, 1985, and the new format of advertising may be found as Petitioner's second exhibit admitted into evidence. This letter had been dispatched based upon a complaint which was filed on August 9, 1985, by a Dr. Asaad. This led to action by the Petitioner attempting to have Respondent rectify the problems with his advertising.

       
       

   21. Following the circumstance in which Respondent had been made aware of the problem with his advertising, he took steps to ensure that the advertising was in compliance with law by contacting the Citrus County Chronicle.

       
       

   22. Although the employee of the Citrus County Chronicle who testified in the course of the final hearing was uncertain about whether the March 31, 1985, advertising copy was specifically approved by the Respondent, it was the practice of the newspaper to provide Respondent with a proof prior to publication. Circumstantially, it is concluded that Respondent did not oppose or question the acceptability of the March 31, 1985, advertising. Support for this position is found in the fact that Respondent conceded his violation by his August 25, 1985, correspondence.

       CONCLUSIONS OF LAW

       
       

   23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

       
       

   24. Respondent moved to dismiss count one of the amended administrative complaint at the commencement of the hearing. That motion was denied for reasons as expressed in the transcript of hearing. Following consideration of the motion, Respondent requested that his counsel be relieved from representation. Daniel A. Moriatry, Esquire, was dismissed as counsel in consideration of that request. Respondent then made an oral motion to continue the final hearing which was denied for reasons as explained in the transcript of proceedings.

       
       

   25. At the commencement of the final hearing, count two to the amended administrative complaint was dismissed.

       
       

   26. By count one to the amended administrative complaint it is alleged that the Respondent at various occasions up to and including May 26, 1985, had knowingly employed or otherwise encouraged his wife, Nadia Helmy, to practice veterinary medicine in his facility. More specifically, it is stated that on May 23, 1985, the wife held herself out as an veterinarian and physically examined a Manx cat at Respondent's Wildwood Animal Clinic in Wildwood, Florida. It is alleged that the wife is not a licensed veterinarian. Based upon these allegations, Respondent is said to have to have violated Section 474.213, Florida Statutes. This refers to Section 474.213(1)(f). The language of that provision states that "no person shall: . . . knowingly employ unlicensed persons in the practice of veterinary medicine." According to Section 474.213(2), Florida Statutes, any person who violates the aforementioned provision is guilty of a misdemeanor and is subject to punishment as provided in Section 775.082, Section 775.083, or Section 775.084, Florida Statutes.

       
       

   27. Practice of veterinary medicine is defined at Section 474.202(4), Florida Statutes, to the effect:

       
       

       means diagnosing, prescribing, or administering drugs, medicine, appliances, applications, or treatment of whatever nature, including surgery or acupuncture, for the prevention, cure or relief of a wound, fracture, bodily injury, or disease of animals; performing any manual procedure for the diagnosis or treatment for fertility or infertility of animals; or representing oneself by the use of titles or words, or undertaking, offering, or holding

       oneself out, as performing any of these functions.

       
       

   28. When consideration of the definition is given, the incident forming the basis of the prosecution, that is, the visit by investigator Smith with Nadia Said Helmy at the Wildwood Animal Clinic on around May 22 or 23, 1985, does not lead to the conclusion that her activities constituted the practice of veterinary medicine. Consequently, even though Respondent had created a condition in which he would allow her to engage in the practice of veterinary

       medicine, it has not been shown that she did in fact practice veterinary medicine on this occasion. Moreover, Section 474.213, Florida Statutes, speaks in terms of a criminal law violation and is not the appropriate subject for adjudication through the administrative hearing process.

       
       

   29. Count three to the amended administrative complaint accuses the Respondent of placing an advertisement in the Citrus County Chronicle on March 31, 1985, advertising veterinarian services for free or at reduced fees without a proper disclaimer required by Section 455.24, Florida Statutes. In view of that circumstance, Respondent is alleged to have violated Section 474.214(1)(f), Florida Statutes, and becomes subject to the penalties associated with that latter section of the statutes.

       
       

   30. The ad of March 31, 1985, which was placed in the newspaper upon an arrangement by the Respondent, advertised free services. That advertisement did not contain the disclaimer set out in Section 455.24, Florida Statutes, that states:

Advertisement by health care provider of free or discounted services; required statement-- In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care provider licensed under chapter 458, chapter 459, chapter 460,

chapter 461, chapter 462, chapter 463, chapter

464, chapter 466, or chapter 474, the following statement shall appear in capital letters clearly distinguished from the rest of the text: THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT

WHICH IS PERFORMED AS A RESULT OF AND WITHIN

72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT.

As a consequence, Respondent has violated Section 474.214(1)(f), Florida Statutes, by violating the provision of Chapter 455, Florida Statutes. This allows disciplinary action to be taken against the Respondent in accordance with Section 474.214(2), Florida Statutes.

Based upon the full consideration of the facts fund and the conclusions of law reached, it is,

RECOMMENDED:

That a final order be entered which dismisses count one and finds the Respondent guilty of the violation announced in count three and imposes a fine in the amount of $250.

DONE AND ENTERED this 17th day of March, 1987, at Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 17th day of March 1987.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2253

In the instances where facts proposed by the parties have not been used, the explanation for rejection of those facts follows:

Petitioner's facts

In paragraph 4, the date September 19, 1985, is changed to September 19, 1986, to accurately reflect the evidence.

Paragraphs 5, 9, 10, 11 and 18 are found to be subordinate to the facts used in the recommended order.

Paragraph 20 is found to be subordinate to the facts found in the recommended order with the exception of the

reference to January 20, 1985, which information is found to be irrelevant.

Paragraphs 21 and 22 are found to be subordinate to the facts found in the recommended order.

Respondent's facts Count One

Paragraph A, the first sentence is rejected as being outside of the facts in the record.

Paragraph B is subordinate to the facts found in the recommended order. Paragraph E facts are not found in the record.

Paragraph F is subordinate to the facts found in the recommended order with the exception of the phrase "spoke with him about the cat," which is contrary to the facts found in the recommended order.

Paragraph G is subordinate to the facts found in the recommended order.

Paragraph H is rejected as contrary to the facts found in the recommended order, as is paragraph J.

Paragraph L is rejected as being facts not in the record.

Paragraph M is subordinate to facts found in the recommended order.

Count Three

Paragraphs 1 through 5 are subordinate to facts found in the recommended order.

Paragraph 6 is not necessary to the resolution of the fact dispute.

Paragraph 7 does not reflect evidence presented in the course of the final hearing.

Paragraphs 8 and 9 are subordinate to facts found in the recommended order.

COPIES FURNISHED:

William M. Furlow, Esquire Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Samy H. Helmy, D.V.M.

105 North Florida Avenue Inverness, Florida 32650

Douglas W. Walker, Esquire Post Office Box 24

Ocala, Florida 32678

Mildred Gardner, Executive Director Department of Professional Regulation Board of Veterinary Medicine

130 North Monroe Street Tallahassee, Florida 32399-0750

Van Poole, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-002253

Orders for Case No: 86-002253