STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF VETERINARY ) MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 88-2859
)
SAMUEL R. MONROE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for hearing before P. Michael Ruff, the duly-designated Hearing Officer, in Pensacola, Florida, on May 4, 1989. The appearances were as follows:
APPEARANCES
For Petitioner: Laura P. Gaffney, Esquire
Senior Attorney
Department of Professional Regulation Northwood Centre
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
For Respondent: John Lewis Allbritton, Esquire
322 West Cervantes Street Post Office Box 12322 Pensacola, Florida 32581
STATEMENT OF THE ISSUES
The issues requiring adjudication in this cause concern whether the Respondent's license as a veterinarian in the State of Florida should be revoked, suspended or other discipline imposed for alleged violations of Chapter 474, Florida Statutes. Those violations involve alleged cruelty to animals treated by the Respondent and whether his treatment and behavior toward those animals amounted to fraud, deceit, negligence, incompetence or misconduct in the practice of veterinary medicine. Also at issue are charges in the Complaint concerning whether the Respondent violated the enumerated sections of Chapter 474, Florida Statutes, involving being convicted or found guilty, regardless of adjudication, of a crime which directly relates to the practice of veterinary medicine. It must also be determined whether the Respondent, with regard to some of the animals treated and named in the Complaint, failed to maintain his veterinary medical records in accordance with the related and enumerated subsections of Chapter 474, Florida Statutes, and the related rule. Finally, if the charges, or any of them, are substantiated, the question of a recommended penalty must be addressed.
PRELIMINARY STATEMENT
This cause came on for hearing, as noticed, on the charges referenced above. In essence, the Respondent is charged with treating a number of animals named in the Administrative Complaint and intentionally, and cruelly striking those animals or otherwise, mistreating or injuring them. The Respondent is charged, as well, with failing to keep and maintain appropriate records in accordance with the statutes and rules cited in the Administrative Complaint concerning some of the animals. The charge concerning record keeping regarding an unnamed collie dog and an animal named "Max" have been voluntarily abandoned by the Petitioner. Thus, the treatment record violations charged and remaining to be adjudicated only concern a cat named "Leo" and a dog named "Beau". It is alleged with regard to these two animals that the Respondent failed to maintain records which contain all of the information required by Rule 21X-18.02, Florida Administrative Code. The Respondent is also charged, at paragraphs 41 through
43 of the Administrative Complaint, with failing to provide requested records to the Petitioner, after being presented with an appropriate authorization concerning the animals named "Peaches", "Chipper", "Babe" and "Geoff", all of whom were dogs treated on various occasions by the Respondent.
Finally, paragraph 48 is a "general complaint" alleging that at various and diverse times, including the incidents specifically plead in the Administrative Complaint, the Respondent practiced veterinary medicine in such a way as to inflict unnecessary pain and suffering on animals entrusted to his care and treatment, which conduct is misconduct in the practice of veterinary medicine and beneath the minimal standard of care required of veterinarians in Florida.
Counts Ten and Eleven, the last two counts in the Administrative Complaint, merely adopt and reallege paragraphs 1 through 48 of the Administrative Complaint, that is, the entire Administrative Complaint before Count Ten, and then assert that the Respondent has, thus, violated Section 474.214(1)(p), Florida Statutes, by committing fraud, deceit, negligence, incompetency or misconduct in the practice of veterinary medicine and, as to Count Eleven, by derivatively violating Section 474.214(1)(f), Florida Statutes, by alleged repetitive violation of Chapter 474, Florida Statutes, and/or the rules promulgated thereunder.
During the course of the hearing, the Petitioner called witnesses, Wanda Bruner, Lorraine Purcell, Judith Gahimer, Cynthia Barrera, Henry Saville, Jeannie Taylor West, Edward Truman Suggs, and Annette Clare Ferguson, all owners of animals brought to the Respondent for care and treatment. Additionally, witnesses, Tina Lyttle, Pat Guinn, Carla Fowler, and Peggy Maggard, employees or former employees of the Respondent, Michael Fowler, the husband of Carla Fowler, Francisco DeLeon, a law enforcement officer for Escambia County, Betty Simms, an animal control officer for Santa Rosa County, Alford Dwayne Clum, a DPR investigator, and Drs. Clinton Chew and Joe Cordell, Jr., veterinarians, (Photos), testified. The Petitioner's Exhibits 1 through 21 and 24 through 82, were excluded by ruling of the Hearing Officer on grounds of irrelevancy and immateriality, the basis for which is set forth with particularity in the transcribed record. The Petitioner's Exhibits 22 and 23 were voluntarily withdrawn by the Petitioner. The Petitioner's Exhibits 83, 84 and 85 were admitted. They consist of a certified copy of a circuit court order and copies of the Respondent's veterinary medical records concerning the cat named "Leo" and the dog named "Beau".
The Respondent called witness, Billie Vetitoe, and the Respondent testified on his own behalf. Additionally, the Respondent offered and had admitted three
exhibits. Exhibit R-A is the deposition of Lt. Christopher Loria, United States Marine Corps. Exhibit R-B is a photograph taken by the Respondent at his animal hospital. Exhibit R-C is a photograph taken of the Respondent at his animal hospital.
The parties obtained a transcript of the proceedings subsequent to the hearing and requested an extended briefing schedule, which was granted. Thus, the proposed findings of fact and conclusions of law submitted by the parties in the form of Proposed Recommended Orders were submitted on or before August 9, 1989. The requirements of Rule 28-5.02, Florida Administrative Code, have been waived. Those proposed findings of fact have been addressed in this Recommended Order. They are treated once again in the Appendix attached hereto and incorporated by reference herein.
FINDINGS OF FACT
The Petitioner, DEPARTMENT OF PROFESSIONAL REGULATION ("Department"), is an agency of the State of Florida charged with regulating the practice of veterinary medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 474, Florida Statutes.
The Respondent, is a licensed veterinarian in the State of Florida, holding license number VM0000710. The Respondent maintains his practice at 820 Creighton Road, Pensacola, Florida 32504. The Respondent is the owner and managing veterinarian of Creighton-Davis Animal Hospital located at that address.
Counts One through Three of the Administrative Complaint relate to the allegations that the Respondent intentionally, cruelly and repeatedly struck a dog named "Peaches" belonging to Cynthia Barrera, which had been brought to him for veterinary care. It is alleged that on or about October 9, 1986, after the alleged cruel treatment, the dog was found dead in the Respondent's clinic by a staff member. It is alleged that he told the owner of the dog that the dog had "escaped", knowing that story to be untrue.
A former staff member employed by the Respondent, Tina Lyttle, submitted an affidavit to the Santa Rosa County Animal Protection Officer, Ms. Betty Simms, from which sprang the charges concerning the dog named "Peaches". She and the Respondent were the only ones present in the examining room on the date in question.
"Peaches" had been brought in by its owner to be shaved; and, because the dog had a propensity to bite, he was required to be sedated for the procedure. Tina Lyttle maintained that the Respondent dragged the dog into the room by its leash, slung it up on the examining table, and ran the leash down through the drain hole at one end of the table to hold the dog's head down close to the surface of the table, to restrain the dog. She contends that the Respondent told her to hold the dog's hindquarters and hold a vein so that he could inject the anesthesia. He kept missing the vein and tried in both back and front legs to locate a vein into which he could inject the anesthesia. Tina Lyttle contends that the dog began growling, and the Respondent became enraged and began striking the dog on the back-legs, hips and rib cage and snatched the dog by the hair and slung him off the table which resulted in the dog being hung by the neck with his head and muzzle on the table and his body suspended in the air. She maintains that the Respondent then struck the dog on the muzzle with his fist and that the dog became unconscious due to choking as a result of this alleged handling. She also states that the Respondent was silent during this
alleged episode. She then contended that the Respondent and she had an argument about his treatment of the dog and that she "stormed" out of the clinic to the kennel area. The Respondent, a short while later, went out and discussed the matter with her and attempted to placate her and get her to come back and assist him further. She came back inside, saw that the dog was already anesthetized and unconscious and, ultimately, shaved the dog at the Respondent's instruction. She left work that day and missed work the next day. She came back two days later and inquired of the Respondent and staff members about the dog. She alleges that some days later, staff member, Pat Guinn informed her that the dog had died at the Respondent's facility.
Pat Guinn claimed in her testimony, that she found the dog dead in his pen and that the Respondent instructed her to put him in a bag and that she delivered the body of the dog to the Respondent and Ms. Vetitoe, another client of the Respondent. She testified that the Respondent directed her to put the body of the dog in Ms. Vetitoe's truck, or else the Respondent put the dog in Ms. Vetitoe's truck, (her testimony is inconsistent here) for the purpose of Ms. Vetitoe removing the dog from the premises and burying it.
The Respondent describes the incident involving "Peaches" in quite a different light. The Respondent acknowledges that the dog was there to be shaved and otherwise cared for at the request of its owner, Ms. Berrera. He and Tina Lyttle were holding the dog on the table, as described. That is, the dog's head was cinched down close to the table by placing the leash through the drain hole in the table. This is accepted, proper veterinary practice in order to help restrain the dog and prevent the dog from injuring the veterinarian or his staff. As the Respondent was attempting to locate a vein whereby he could inject the anesthesia, during which time Tina Lyttle was holding the dog's hindquarters, the dog became belligerent, growling and suddenly bit the Respondent on his left forearm. The bite was a severe one going all the way through the upper part of the Respondent's forearm. The Respondent was in extreme pain and bleeding and struck at the dog, attempting to get him to release his hold. The dog's jaws were locked on the Respondent's forearm and ultimately, the Respondent acknowledges that he had to pry the dog's jaws open with a screwdriver to get him to release, all of which caused the Respondent extreme pain and blood loss. During this episode, Tina Lyttle became angry at the Respondent, shouted at him and remonstrated with him for hitting the dog and stormed out of the clinic. Another staff member assisted the Respondent in sedating the dog and preparing him to be shaved. The Respondent proceeded even though he had to stop and render first aid for his wounded forearm. Later he went outside and attempted to calm Ms. Lyttle down and finally got her to go back to work, although during their discussion she assaulted him by throwing him against the kennel building in a rage.
Although the Respondent testified unequivocally that the episode occurred in this manner and that, indeed, the dog had bitten all the way through his forearm, both witnesses for the Petitioner, Tina Lyttle and Pat Guinn, denied that the biting incident occurred. The Respondent's version of events is corroborated, however, by Lt. Loria of the U.S. Marine Corps., who was a client of the Respondent and had just brought his dog in for care. The Respondent had noticed Lt. Loria on the premises and asked him to come to the examining room so that he could show him what had occurred. Lt. Loria observed, immediately after the injury to the Respondent's forearm, the wound caused by the dog, who was still in the room. This observation was made with the Respondent spontaneously telling Lt. Loria in no uncertain terms about the manner in which the dog had bitten him. Lt. Loria observed the wound in the Respondent's forearm and indicated that a pencil or fountain pen could have been stuck through the fang
wounds. Lt. Loria testified by deposition in this proceeding and corroborated the Respondent's version. The Respondent had a noticeable scar from the wound on his arm and demonstrated it at hearing. It was observable during the investigatory process as well.
The circumstances surrounding the death of the dog, described by Tina Lyttle and Pat Guinn, are also disputed by the Respondent and Ms. Vetitoe. Tina Lyttle maintained that she was informed by staff member, Pat Guinn, several days after the incident, that the dog had died on the premises; and then Pat Guinn testified concerning the manner in which she alleged that the Respondent, herself and Ms. Vetitoe arranged for the burial of the dog.
The Respondent describes this incident differently. The Respondent stated that on the day after the biting altercation with the dog, he went to the dog's cage and observed that he needed exercise and needed to get out to relieve himself. Consequently, he snapped a leash on the dog and lead him through the clinic to exercise him outdoors. As he neared the patient waiting room, the dog got the leash in his mouth and bit through it, thus, getting loose. As luck would have it, a patient came in the front door of the clinic just at that moment and the dog rushed outside before the Respondent could stop him and escaped off the premises. The Respondent rushed outside, went into the field adjacent to the clinic looking for the dog and called him, to no avail. He then returned to the clinic in order to get into his truck and ride around in the neighborhood in an attempt to apprehend the dog. He maintains that he then met Carla Fowler, another staff member, who was returning from lunch nearby, told her of the dog's escape and enlisted her help in looking for the dog, instructing her to get into her car and also ride around the area in an attempt to locate the dog.
The Respondent was never successful in finding the dog and ultimately bought the owner another dog of the same type, color and description and replaced the animal at his own expense. The owner and her children were satisfied with this arrangement and made no complaint concerning the Respondent's treatment of the dog or the unfortunate loss of "Peaches" and his replacement with another dog.
The testimony of Ms. Vetitoe corroborates this version of events related by the Respondent. Ms. Vetitoe, by Pat Guinn's own admission, was present when the alleged disposal arrangement, related by Pat Guinn, was made. Ms. Vetitoe owns some thirty-four (34) dogs herself. She has been a client of the Respondent for many years. She testified that on no occasion has she ever buried a dog. She is an ardent animal lover and when her dogs expire, she has them cremated and their remains placed in urns. She testified that it was absolutely untrue that the Respondent or Pat Guinn had requested her help or assisted her in disposing of the dog. Her testimony is unequivocal that that episode never occurred and that she had never seen the dog "Peaches" which Pat Guinn and Tina Lyttle alleged to have died on the premises.
Finally, in this regard, the testimony of Carla Fowler also corroborates the Respondent's and Ms. Vetitoe's testimony regarding the events surrounding the dog's demise. Carla Fowler acknowledged that when she was returning from lunch nearby, she saw the Respondent running through the field adjacent to the clinic looking for the dog. When he came back to the vicinity of the clinic, he told her that he was looking for "Peaches" and that the dog had escaped. She stated that he enlisted her help in finding the dog.
The Respondent's, Ms. Vetitoe's and Lt. Loria's versions of the events surrounding the care, treatment and death of the dog "Peaches" are accepted.
The testimony of Tina Lyttle and Pat Guinn concerning this incident is rejected in its entirety as incredible for the reasons related above and which will be treated more definitively, infra.
Paragraphs 15 through 24 of the Administrative Complaint, including, from paragraphs 19 through 24, Counts Four, Five and Six, relate to an alleged incident involving a dog named "Star", belonging to Wanda Bruner. The dog was brought to the Respondent's clinic for veterinary care apparently consisting of a general examination, a flea dip and bath. It is alleged in paragraphs 15 and
16 of the Complaint that on or about September 5, 1986, the Respondent intentionally, cruelly and repeatedly struck the dog "Star" with his hands and bit the dog and that he intentionally and cruelly struck the dog on the head with a hose nozzle.
Carla Fowler was the employee who assisted the Respondent in examining and caring for "Star" on the dates in question. The Respondent had placed the dog on the examining table at the outset of the episode of September 5, 1986, apparently for purposes of examination. Carla Fowler relates that the dog was "real nervous" and "I don't know if it was jerking or something, and Dr. Monroe hit it on the head and then on the rib cage and the dog got even more nervous. And then Dr. Monroe stooped down and bit the dog on the nose. And then the dog urinated all over the table". Ms. Fowler then testified that the Respondent told her to remove the dog from the room or words to that effect and then told her the next day to bring the dog in so they could give it a bath. He asked her to assist him in giving the dog a bath because he was afraid the dog would put up fight, in her words. She testified that the dog was trying to squirm along the side of the tub and the Respondent, who had a water hose in his hand, hit the dog on top of the head with the water hose nozzle, broke the head open, causing bleeding. She became upset with the Respondent's action, according to her testimony, and also testified that her husband walked in the door when the incident happened.
Although her husband testified that he observed the incident where the Respondent is alleged to have struck the dog on the head with the hose nozzle, it is found that that incident did not occur and that he was not in a position to have observed it. Photographs and the evidence, consisting of the Respondent's Exhibits 1 and 2, coupled with the Respondent's testimony, are accepted as more credible and establish that the Respondent and Ms. Fowler were standing between the door and the bathtub bathing the dog in such a position that anyone coming in the back door, such as Ms. Fowler's husband, would have been unable to observe the alleged incident. The testimony of Ms. Fowler and her husband, as well as that of Pat Guinn, (itself, internally inconsistent in that, in her deposition, she stated that she observed the "hose striking incident" and in her testimony at hearing, admitted that she had not observed it), is rejected as incredible and unworthy of belief. The testimony of the Respondent is accepted. In this regard, the Hearing Officer is mindful of the testimony of Wanda Bruner, "Star"'s owner, who established that, indeed, stitches were observed by her in the head of the dog and that the Respondent told her that he had removed a cyst and stitched up the small incision involved. The testimony of the Respondent concerning this incident, as corroborated or explained by the testimony of Wanda Bruner, is accepted; and it is found that no acts of cruelty were perpetrated by the Respondent against the dog named "Star".
Paragraphs 25 through 28 of the Administrative Complaint concern the dog named "Chipper" owned by Lorraine Purcell. Ms. Purcell brought the dog to
the Respondent on approximately April 18, 1986 for a checkup and general examination. The Respondent determined that the dog's anal glands were infected, and he recommended to Ms. Purcell that surgery be performed to remove the anal glands. Ms. Purcell agreed to this procedure, and the Respondent performed the surgery removing the anal glands and stitching up the incisions.
Some two or three days later, Ms. Purcell telephoned the Respondent's office concerning the release of her dog and was informed that the dog had suffered complications attendant to his "bothering" or chewing the stitches and that the dog needed to remain a few more days. She agreed to this and contacted the Respondent's office at least once more concerning when she should retrieve her dog. The Respondent conversed with her directly on April 23, 1986 and told her that he had had to re-operate on the dog because the dog had chewed or bothered his stitches such that surgical repair of the resulting wound was necessary on the dog's left side, that is, the left side of the anal opening. Upon learning that the dog had a large open hole or wound on the left side of his anus, Ms. Purcell became upset with the Respondent, came to the office and removed the dog from his care against his recommendation and sometime shortly thereafter, took the dog to another veterinarian, Dr. Clinton Chew.
Dr. Chew described the large, open wound on the left side of the dog's anus as involving damage to the sphincter muscle with the effect that the dog was unable to control its bowel movements, and therefore, was dripping feces uncontrollably. Dr. Chew was unable to determine if the wound was caused by the dog's self-mutilation of the earlier incision but stated that it could have been the result of self-mutilation. He did not know how long the dog was in its owner's care after it had been removed from the care of the Respondent before being brought to him, but felt that it was approximately a day. He ventured no opinion about whether any self-mutilation could have occurred after the dog was removed from the Respondent's care and before being brought to him.
Dr. Chew advised Ms. Purcell that two courses of treatment were available; healing by granulation, that is, the natural healing process for closing up the hole as small as possible before surgery; or immediate surgical intervention to try to close the open wound. Upon his advice, Ms. Purcell elected to allow some time for the natural healing process to close up the hole as small as possible with a view toward trying surgery at a later time if that was still necessary. After leaving the dog in Dr. Chew's care for some days, with the healing process started, Ms. Purcell or her husband retrieved the dog from his care and brought the dog home. The dog suffered at home because he was incontinent and dripping fecal material, such that he became very bothered by flies and could not come into the house as he formerly had. Because the dog was miserable and Ms. Purcell and her husband felt that his quality of life had severely deteriorated and because they were constantly having to clean up after the dog, she and her husband decided to have the dog put to sleep. Mr. Purcell, therefore, brought the dog back to Dr. Chew and upon their own initiative, instructed Dr. Chew to have the dog put to sleep.
Dr. Chew testified that that was not his recommendation and that the Purcells had not instructed him to try to effect further repair of the wound surgically. In fact, by June 26, 1986, when the dog was brought in to be put to sleep, the natural healing process had substantially closed the hole although the dog was still incontinent because of the destruction to the sphincter muscle. In any event, without attempting further repair surgically, the dog was put to sleep on or about that date.
Neither Dr. Chew nor any other witness established what the appropriate, professional veterinary standard of care in this situation might be. In any event, Dr. Chew testified that the portion of the incision which was not damaged, that is, on the dog's right side, was properly done. He was thus unable to say that the surgery was improperly or incompetently done or that it was unnecessary, nor did any other witness.
Paragraphs 29 through 34 of the Administrative Complaint concern an incident allegedly occurring on October 30, 1986 when the Respondent attempted emergency veterinary care for a dog named "Dusty" belonging to Mr. Gary Ethridge. Dusty was brought in earlier on the morning in question very ill, dehydrated and cold. Pat Guinn or others on the Respondent's staff called him at home and told him that the dog had been brought in, and he told them that he would come into the office "in a little while" to see about him. They did not tell him that the dog was an emergency case. When he finally arrived at his office around 9:45 a.m. or 10:00 a.m., he realized that it was an emergency case and that the dog was in serious condition. He then attempted to perform a transfusion and used his German short-haired pointer, "Shadow", as the donor dog. As he had both dogs lying on the table, attempting to use his transfusion equipment, he had his face close to Shadow's head. He told his own dog, Shadow, to be still or be quiet in a loud voice which startled the dog and the dog whirled around and bit the Respondent on the nose, severely lacerating his nose, causing it to bleed copiously.
Pat Guinn was the attending staff member at this procedure. The Respondent had Pat Guinn hold something to his nose to staunch the blood flow while he continued to attempt to render care to the severely-ill Dusty. Ultimately, because he was in extreme pain and losing blood from the wound in his nose, he was unable to complete the procedure and instructed Pat Guinn to take Dusty to Dr. Andress, a nearby veterinarian, to secure his care while the Respondent went to the emergency room to have his wound treated. This procedure was followed, but unfortunately the dog expired shortly after arriving at Dr. Andress' office.
Pat Guinn testified that the dog "Dusty" came into the office early on that morning very ill and very cold. At about 8:15 a.m. to 8:30 a.m., she called the Respondent and told him of the dog's arrival. She maintains that she told him that morning over the telephone that it was a grave emergency. In any event, she testified that she and Carla Fowler put the dog on the table and placed warm water bottles around him and covered him up, awaiting the Respondent's arrival. She testified that the Respondent did not get to the clinic until 10:30 a.m. and got mad at her when he saw the condition of the dog, saying that it was an emergency and that they should have called him. She claims to have reminded the Respondent that she had told him that it was an emergency when she called him early that morning, shortly after 8:00 a.m. In any event, she testified that the Respondent, in attempting to establish the transfusion, became agitated and bit his dog, "Shadow", on the ear, whereupon Shadow bit him on the nose.
Pat Guinn is not worthy of belief. Ms. Vetitoe, a confirmed animal lover, observed the procedure being performed on "Dusty", with the dog "Shadow" as the donor dog, and observed what transpired when the Respondent was bitten on the nose by Shadow. She corroborated the Respondent's own testimony upon which the above Findings of Fact are based to the effect that Shadow bit him on the nose, but he never bit any dog.
Pat Guinn was a disgruntled employee. She was fired in February of 1987 by the Respondent and shortly thereafter, executed the affidavit upon which this prosecution was, in part, based. She testified that the Respondent had held a gun on her and threatened her on three different occasions and threatened to kill her and her children. She maintains that she told the Deputy Sheriff, Officer DeLeon, of this when she called him to report these incidents, as he put it, "Just for the record". In fact, Officer DeLeon testified that she had never reported the Respondent threatening her with a gun, holding a gun on her or pointing a gun at her. She also acknowledged in her testimony and in a deposition that she had been treated for stress and for a "nervous breakdown". Even Carla Fowler, another witness for the Petitioner, acknowledged that Pat Guinn had been known to exaggerate the truth. I find Pat Guinn's testimony too inconsistent, false and influenced by her hostility toward the Respondent, due to her discharge and, doubtless, to other altercations with him, to justify accepting it as probative of any facts in dispute.
Paragraphs 35 through 37 of the Administrative Complaint charge that the Respondent inflicted cruelty intentionally and repeatedly on a cat named "Leo," belonging to Judith Gahimer, which had been brought to the Respondent for veterinary care.
The cat "Leo" suffered from a hematoma in one ear caused by an injury (blood blister). The Respondent performed a "zepp" procedure which involves slitting the hematoma area and inserting a stainless steel ring so that the ring can move and prevent the wound from closing up, thus, enabling it to drain properly while it is healing. This is an accepted procedure for this type of injury, as acknowledged by Dr. Cordell, the Petitioner's expert witness. In this particular animal, however, for some reason, the incision did not heal properly. This was possibly because the cat kept irritating the incision. In any event, the cat had to be brought back to the Respondent on a number of occasions for cleansing of the wound and otherwise caring for it.
On one of these occasions, Tina Lyttle assisted the Respondent in caring for the cat. The cat was on the examining table, and Tina Lyttle was assisting in restraining the cat while the Respondent treated it. Tina Lyttle stated that the cat became irritated and growled and hissed at the Respondent. She testified that she then observed the Respondent hit the cat approximately three times on the head with his hemostats and no- where else on the cat's body. Judith Gahimer, the cat's owner, believed that the cat's hips had been injured because the cat walked with a limp at some point after the Respondent was through treating him and was unable to jump anymore. She believed the cat's hip to be fractured. It was not demonstrated, however, even by the testimony of Tina Lyttle; that any permanent injury to the cat occurred during the Respondent's care. In fact, in her own testimony, Tina Lyttle, herself, was holding the cat with her hands in the area of his hips and shoulders to restrain him on the examining table. Any permanent injury to the cat was not caused by the Respondent. The cat's owner was unable to offer any definitive explanation for how the cat may have been injured or when.
The Respondent vehemently denies striking the cat, as described by Tina Lyttle. I accept the testimony of the Respondent over that of Tina Lyttle concerning the "Leo" complaint. Shortly after the "Peaches" incident, Tina Lyttle was discharged by the Respondent as a result of a verbal and physical altercation he had with her. The Respondent offered to rehire her if she apologized for her behavior. The totality of the evidence of record reveals, however, that she harbors a great deal of resentment against the Respondent. Her bias against him is definitely demonstrated by the fact, as established by
other prosecution witnesses, that she was the person who orchestrated the gathering of complaint affidavits against the Respondent, contacting Betty Simms of the Santa Rosa County Humane Society (after the Escambia County Humane Society refused to pursue the matters involved in this Administrative Complaint) and was the prime movant in getting Ms. Simms and the Santa Rosa County Humane Society to institute both the criminal and administrative proceedings against the Respondent. Her testimony is not credible nor worthy of belief.
Paragraphs 38, 39 and 40 of the Administrative Complaint concern a spaniel by the name of "Beau". These paragraphs, which include Count Eight of the Administrative Complaint, allege that the Respondent, on a date unknown, was observed striking and biting "Beau".
The incident involving "Beau" purportedly involved the Respondent treating the dog by cleaning his ears. The Respondent's assistant at the time, Peggy Maggard, helped with this procedure. Ms. Maggard testified that she was holding the dog on the examining table while the Respondent was cleaning his ears, which were apparently rather sensitive. She testified that the dog tried to pull away when his ears were being examined and that the Respondent hit the dog on top of the head and then struck him on top of the head again with his fist. He became angry, according to Ms. Maggard, and jerked the dog away from her and bit the dog on the nose, severely enough to leave a gash, causing the gash to bleed. Ms. Maggard testified that at this point she grabbed the Respondent by the throat and admonished him not to treat the dog so.
She claims that the bite by the Respondent to the dog's nose caused a gash in approximately the pattern of the Respondent's teeth, or approximately one and a quarter inches wide, causing the wound to bleed and that the blows to the top of the head left a noticeable lump on top of the head which a person examining the dog would be able to feel. She testified that the dog's owner would be able to readily notice both injuries.
The dog's owner, Henry Savelle, had used the Respondent for "Beau"'s care and treatment for a number of years, always finding the care and treatment rendered to his dog to be appropriate. Mr. Savelle retrieved his dog from the Respondent's care approximately the next day following the purported incident. He noticed no injuries whatever to the dog. He would have been able to notice such injuries inasmuch as he is frequently in close contact with his dog.
The alleged incident concerning the dog "Beau" is supposed to have occurred, according to Peggy Maggard, in 1983, approximately six years before this proceeding. Ms. Maggard did not report this incident until May 14, 1987, some four and one- half years after it occurred. She did not report it until she conferred with Betty Simms, the Santa Rosa County Humane Society member and Animal Control Officer and only did this after learning that others who had worked for the Respondent had made complaints to Ms. Simms.
The witness testified that she could not recall how she learned that others had made complaints and purported not to recall whether she had talked to other complainants about the Respondent and the care and treatment he had rendered to the various animals involved in those complaints.
It is singular to observe, however, that she was purportedly able to recall clearly all of the events surrounding the incident allegedly occurring with the dog "Beau," even though it allegedly occurred some four and one-half years earlier than the events she purportedly cannot recall concerning how she came to learn of the complaints against the Respondent, the investigation by
Animal Control Officer Simms, why she came to make her report in May of 1987, nor whether she conferred with the other complainants before or after making her report concerning "Beau". She did state, however, that upon reporting the "Beau" incident to Betty Simms, the Animal Control Officer, she already knew that others had made complaints, meaning the other former employees of the Respondent.
Peggy Maggard, like the other former employees of who made complaints which engendered this prosecution, had had disagreements and altercations with the Respondent which resulted in her being discharged twice from his employ. The Respondent, for unexplained reasons, as in the case of some of the other employees, rehired her after discharging her for the first time. In any event, it is apparent, from the totality of the circumstances concerning the manner in which Ms. Maggard described this alleged incident and the manner in which it came to the attention of the Petitioner through the reporting of it, much belatedly, by Ms. Maggard, after she learned of the efforts by former employees to report incidents concerning the Respondent, that Ms. Maggard harbors a significant amount of resentment against the Respondent. She is a disgruntled former employee. This leads the Hearing Officer to the conclusion, considering circumstances of her employment, history, the purported nature of the "Beau" incident, and the apparent contact that the various former employees, including Ms. Maggard, had with each other concerning the reporting of these incidents, and the manner of reporting them, that Ms. Maggard fabricated this incident
It is simply incredible that the Respondent would have bitten the dog on the nose, and Ms. Maggard was certainly not a convincing witness capable of establishing that fact. Perhaps the Respondent said it best when he testified, without contradiction that, at the behest of the Department, he had taken a battery of psychiatric tests and had "passed with flying colors". It is singular to note in reviewing the totality of testimony and evidence in this proceeding that the Respondent is the only witness who was subjected to and passed such psychiatric examinations. The Respondent vehemently denied that this incident occurred. His testimony is credible and accepted. The incident did not occur.
The "medical records complaint" concerns paragraphs 41 through 47 of the Administrative Complaint. In this regard, it is alleged that on or about July 23, 1987, the Respondent was contacted by the Petitioner, through its investigator, Mr. Clum, and requested to provide treatment records for the animals, "Peaches, "Chipper", "Babe" and "Geoff", pets he had allegedly treated. The Respondent was presented with a "authorization" to release the records of each of the above- named animals, and is charged with failing or refusing to release those records to the Department's investigator, Mr. Clum, in alleged violation of Rule 21X-18.02, Florida Administrative Code.
Indeed, the Respondent did fail to give the investigator those records. In this connection, the record evidence reveals that Tina Lyttle, in approximately February of 1987, was working at the clinic on a Sunday when the Respondent was not present. This was after the point in time when Tina Lyttle had assembled the various affidavits from employees or former employees and reported the alleged incidents to Ms. Simms. On this Sunday occasion, Ms. Lyttle called Ms. Simms; and at her behest, Ms. Simms went to the Respondent's office to make observations, take photographs and to examine the Respondent's records, which Tina Lytt1e allowed her to do. The two examined the Respondent's medical records without the Respondent's or the pet owners' authorizations. They also photographed certain records.
Thereafter, on July 23, 1987, when the Respondent was asked by investigator Clum to provide the records of the four above-named animals, the Respondent attempted to do so. He went to his file cabinet where such records are kept and could not find the records. In fact, the record jackets concerning each of these animals were still in his file drawer; but the record materials contained therein were missing. The failure to supply these records to the Department's investigator was not shown to be the fault of the Respondent. He did not fail or refuse to provide the requested records. He tried to provide them. It was simply impossible because they had been removed from his files.
Paragraphs 44 through 47 of the Administrative Complaint concern treatment records which the Respondent did provide at the Petitioner's request for the animals named "Leo", "Max", "Beau", and an unnamed mixed collie owned by Kimberly Rowe. It is charged in essence that the records furnished by the Respondent as to these animals failed to contain all of the information required by Rule 21X-18.02, Florida Administrative Code. During the course of the hearing, the Petitioner voluntarily dismissed the complaint as to the dog named "Max" and the unnamed mixed collie, leaving at issue the question of the adequacy of the records concerning the cat named "Leo" and the dog named "Beau".
The Petitioner presented, as its expert witness in the field of veterinary medicine and practice, Dr. Joe Wilson Cordell, Jr. of Tallahassee, Florida. Dr. Cordell has been a veterinarian for some 17 years and was accepted as an expert in the practice of veterinary medicine. Dr. Cordell reviewed the medical records on the two named animals consisting of the Petitioner's Exhibits
84 and 85. With regard to the records concerning these two animals, Dr. Cordell did not opine that the treatment or care furnished was inadequate or did not accord with appropriate, professional veterinary medicine standards. He did observe that to some extent the records were incomplete in showing exactly what surgical procedure or other procedure might have been done, whether or not physical examinations were performed, prior to administering anesthetic, what type of anesthetic was used and the route of administration. Certain items, such as body temperature, physical examination findings, medications used, route of administration of the medications, and adequate descriptions of procedures involved were lacking from the records or, to some extent, were illegible. The ear procedure record concerning the dog "Beau," for June 23, 1983, does not contain a diagnosis. Dr. Cordell established that a diagnosis is required for such a medical record. In summary, Dr. Cordell could not tell from examining the records exactly what procedure was done regarding the ear treatment involved as to one of the animals nor were adequate record entries made regarding the results of physical examinations. He acknowledged, however, that the records probably meant a great deal more to the Respondent than they did to him inasmuch as he was unaware of the Respondent's manner of making notes. He observed that the Respondent's notes probably meant more to him than they would to anyone who examined them. Such medical records and notes are for the purpose of assuring continuity of treatment and to refresh the doctor's recollection of the status and condition of an animal which he may been treating and keeping records on for a number of years.
The Respondent testified that he felt that he was making records in the manner taught at the veterinary school at Auburn where he was trained and at which his brother, who advised him concerning record-keeping, is a professor. Further, the Respondent, in an effort to improve his record keeping, prior to this prosecution, installed a $23,000.00 computer hardware and software system to help him to assure better and more adequate record-keeping. The observations of Dr. Cordell concerning the record-keeping as to the animals named "Leo" and "Beau" are accepted to the extent that they demonstrate the inadequacies in
recording the observations, results of examinations, treatment details and diagnoses related to those two animals. Neither Dr. Cordell nor any other witness established, however, what the professional veterinary medicine practice standards are as to any illnesses or conditions presented and resulting treatment performed as to any of the animals referenced in the Administrative Complaint. There has been no demonstration that any care and treatment performed by the Respondent has failed to accord with any professional veterinary medicine practice standards. Thus, as to any of the animals referenced in the Administrative Complaint, there has been no showing of incompetency or misconduct in the practice of veterinary medicine nor has there been any demonstration of fraud, deceit or negligence in the practice of veterinary medicine.
Concerning the so-called "General Complaint" appearing at paragraph 48 of the Administrative Complaint, the Respondent is charged with practicing veterinary medicine in a way that inflicted unnecessary pain and suffering on animals entrusted to his care and treatment which, in turn, is alleged to be misconduct in the practice of veterinary medicine, as well as being beneath the minimal standard of care required of veterinarians in the State of Florida.
Once again, it is found that no minimal standard of care required of veterinarians in Florida has been established of record in this proceeding. In accordance with the above Findings of Fact, it has not been established that any unnecessary pain and suffering was inflicted on any of the animals entrusted to the Respondent's care and treatment.
Finally, it is true that the Respondent entered a plea of nolo contendere to two counts of the offense of cruelty to animals, as shown by the Petitioner's Exhibit 83, the order of the circuit judge entered on July 6, 1987. The Respondent established, however, that after paying a $15,000.00 fee to his attorney, Leo Thomas, in that criminal proceeding, and vehemently insisting on a jury trial because he felt that he had not committed any misconduct, he bowed to the advice of Attorney Thomas to the effect that if he proceeded with litigating the criminal matter, it would ruin his veterinary practice due to adverse publicity. Consequently, the Respondent established that that plea was merely "a plea of convenience" and was not made because the Respondent felt or tacitly admitted any guilt of the charges involved. In fact, the circuit judge did not adjudicate him guilty and stated affirmatively in his order that he did not feel that the alleged course of conduct involved required that he should be adjudged guilty. That order does not establish any conviction or adjudication of guilt but rather, was a result of a "plea of convenience".
In summary, none of the violations alleged in the Administrative Complaint, other than the minor record keeping violations established by Dr. Cordell, have been proven in this proceeding. In reading the conflicting testimony, the Respondent's testimony and that of Ms. Vetitoe and Lt. Loria is accepted over that of the Petitioner's complaining witnesses because they are more credible and worthy of belief.
The testimony of most of the Petitioner's witnesses, consisting of the former employees of the Respondent, is tainted and colored by bias and resentment against the Respondent, caused by past disagreements between him and those witnesses which, in the instance of each of them, culminated in their discharge from his employ, in some cases, multiple times. Tina Lyttle, for instance, had a number of verbal and physical altercations with the Respondent, at one point, in connection with the "Peaches incident", slamming the Respondent against the wall of the kennel or outdoor building when he went outside to attempt to calm her down from her misplaced anger resulting from the "Peaches
incident". It was Tina Lyttle who conferred with the other complaining witnesses, orchestrated the complaints and secured the affidavits as to the alleged instances of animal cruelty and the infliction of unnecessary pain and suffering which, were given over to Ms. Simms, the Animal Control Officer, who then proceeded to instigate both the criminal prosecution and this administrative prosecution. There is sufficient evidence of record to infer that these witnesses, who had worked for the Respondent, conferred with each other at various times in orchestrating their complaints against the Respondent, and that each of them had sufficient grounds for bias and resentment against the Respondent as disgruntled employees so as to support a finding and conclusion that these former employees fabricated the essential specifics of the story of the Respondent's alleged cruelty and improper treatment of the animals in question.
This finding is supported in this record by the inconsistencies in the testimony, at various times, of some of these witnesses. Pat Guinn, for instance, in her deposition, taken prior to this proceeding, indicated that she observed the Respondent strike the dog "Star" on the head with the hose nozzle. In her testimony at hearing, she recanted and stated that she had not seen that incident. Her testimony is also inconsistent about the manner in which "Peaches" death was reported and the manner in which the dog's body was allegedly disposed of. Her testimony is simply incredible in the face of the testimony of Ms. Vetitoe, an avowed animal lover, who testified that she never buries a dog but rather, cremates all of the dogs she has ever had to die in her custody, placing the remains in urns. Her testimony concerning the Respondent threatening her with a gun on three different occasions was belied by that of Officer DeLeon, who certainly had no motive for fabrication of his testimony when he indicated that no report of her being threatened with a gun was ever made to him. He testified that she reported an alleged threat against her by the Respondent, "Just for the record". In his experience as a law enforcement officer, he testified that it is highly unusual for an employee to report such an altercation with her employer, "Just for the record".
The testimony of Carla Fowler is inconsistent with that of Guinn and Lyttle concerning the question of Peaches death or disappearance. Like the other witnesses, it is found to have been guided by her resentment against the Respondent more than any righteous indignation and genuine concern for the animals in question, as evidenced by the fact, established by Ms. Vetitoe's testimony that she, herself, had had a verbal altercation with Carla Fowler. When Ms. Vetitoe brought her own dog to be cared for by Carla Fowler, she warned Ms. Fowler that the dog had a propensity bite. Ms. Fowler, supposedly an animal lover herself, responded to Ms. Vetitoe by saying that if the dog bit her, she would "knock the m f hell out of the dog", a remark and attitude which upset Ms. Vetitoe, a dog fancier and client of long standing. In summary, the testimony of these former employee witnesses is fraught with internal inconsistencies and inconsistencies with the testimony of each other. Their testimony is simply not credible and worthy of belief and is found to have been fabricated with regard to the essential details concerning alleged cruelty to the animals in question.
The testimony of witness Gahimer, the owner of the cat "Leo" is rejected. She did not establish that the alleged hip injury to the cat, if it occurred, was caused by the Respondent. The testimony of Tina Lyttle herself shows that no injury to the cat's hip area could have occurred during that treatment episode. The Respondent established that the Gahimer complaint was motivated by a billing dispute with the Respondent. No other pet owner had any complaints.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Subsection 120.57(1), Florida Statutes (1987).
The Respondent has been charged, in Counts Four through Twenty-Four, with conviction on a charge of cruelty to animals, an alleged violation of subsection 474.214(1)(p), Florida Statutes (mis-cited in the Administrative Complaint as (q)), and with violation of subsection 474.214(1)(c), Florida Statutes, which makes a ground for revocation or suspension or other sanction against licensure, as enumerated in subsection 474.214, Florida Statutes, the circumstance of being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of veterinary medicine or the ability to practice veterinary medicine.
These charges, up through and including paragraph 24 of the Administrative Complaint, relate to the alleged incidents concerning the dog named "Peaches" and the dog named "Star", described in detail in the above Findings of Fact. As demonstrated in the above Findings of Fact, the judge's order, in evidence as the Petitioner's Exhibit 83, constitutes neither a conviction nor a finding of guilt for purposes of these two subsections of the disciplinary section cited above. The pertinent language of the Judge's order provides as follows: "...that the ends of justice and the welfare of society do not require that you should presently be adjudged guilty and suffer the penalty authorized by law...". In fact, the judge's order withheld any adjudication of guilt and imposition of sentence and placed the Respondent on probationary status for two years under certain conditions enumerated in that order. The salient point here is that for purposes of the above-cited statutory subsections, no conviction or finding of guilt was made, thus, the Respondent is not in violation of these provisions.
It is noteworthy that the above-cited and quoted statutory provisions do not provide, as was the case in Section 458.331(1)(c), Florida Statutes (1983), construed in the case of Ayala v. Department of Professional Regulation,
478 So.2d 1116 (Fla. Appeals 1st District 1985), that any plea of nolo contendere shall be considered a conviction. Because of the absence of that provision in the Veterinary Practice Act, the nolo contendere plea in the instant situation, which was not followed by any adjudication of guilt, cannot be considered as such, nor as a conviction for purposes of the two statutory subsections related to the charges in Paragraphs One through Twenty-Four of the Administrative Complaint. Thus, the Respondent is simply not guilty of those charges. Moreover, in the Ayala case, the court made mention of the fact that, similar to the Respondent's situation in this case, that the appellant had always maintained his innocence of the criminal charges and that he considered his nolo contendere plea to be a "plea of convenience" in order to avoid the "hassle and risks involved in a criminal trial". The opinion in the Ayala decision indicates that the plea of nolo contendere, even if it could be considered tantamount to an adjudication of guilt, only allows the agency to presumptively consider the nolo contendere plea as evidence of a conviction. The Respondent, in such a situation, must be allowed the opportunity to rebut this presumption and assert his innocence of the underlying criminal charges by explaining the reasons and circumstances surrounding his plea and thereby
attempt to convince the agency that he is actually not guilty of the crime. The court in Ayala held that the agency must consider this evidence in deciding the question of such a person's guilt or innocence for purposes of the disciplinary
charges and proceeding and not merely consider such evidence as simply mitigation on the question of punishment alone. Here, the Respondent has clearly established by his testimony that the plea in the instant situation was truly a "plea of convenience" entered at the urging of his attorney for purposes of avoiding the adverse publicity and severe damage to his veterinary practice which could result, in the mind of his attorney at least, by his prosecution of his professed innocence by jury trial. The Respondent has consistently throughout this proceeding, and the criminal proceeding, maintained his innocence and, as found above, has established his innocence in this administrative prosecution, as to any of the alleged animal cruelty episodes.
Thus, in this event, even if the above-cited statutory scheme allowed for a plea of nolo contendere to be considered an adjudication of guilt, which it does not, the Respondent has established, as a matter of fact, that he did not commit the acts involved in the criminal charges and the plea of nolo contendere was entered as a "plea of convenience" for the purposes, and in the manner, envisioned in the Ayala decision.
Concerning the remaining paragraphs of the Administrative Complaint and the animals involved in those charges, which are the subject of the above Findings of Fact, the Respondent is charged with committing fraud, deceit, negligence, incompetency or misconduct in the practice of veterinary medicine in alleged violation of subsection 474.214(1)(o), Florida Statutes (mis-cited in the Administrative Complaint as subsection 474.214(1)(p)). The clear and convincing evidence of record does not establish that the Respondent is guilty of those charges.
The Hearing Officer has accepted the version of the events surrounding the care and treatment of these animals related in the testimony of the Respondent, Ms. Vetitoe and Lt. Loria. The Hearing Officer has specifically rejected the testimony of the Petitioner's witnesses in these particulars, having resolved the conflicts in the testimony in the manner delineated in the above Findings of Fact. In view of the above Findings of Fact concerning the lack of credibility and bias demonstrated by the Petitioner's witnesses concerning the charges through and including paragraph forty of the Administrative Complaint, their testimony is rejected as not credible and worthy of belief; and, hence, it has not been demonstrated by clear and convincing evidence that the Respondent engaged in any fraud, deceit, negligence, incompetency or misconduct in the practice of veterinary medicine. As stated in the above Findings of Fact, it is particularly noteworthy that no witness even established what the standard of professional conduct in the practice of veterinary medicine should appropriately be in these circumstances and situations. See Purvis v. Department of Professional Regulation, Board of Veterinary Medicine, 461 So.2d 134 (Fla. App. 1 Dist. 1984).
Concerning the "medical records complaint" appearing at paragraphs 41 through 43, the above Findings of Fact demonstrate that although the records of the animals "Peaches", "Chipper", "Babe", and "Geoff" were not provided to the Petitioner, it was not through a failure or refusal on the part of the Respondent. The records had simply been purloined or misplaced from his files in his office, quite likely on the Sunday when Ms. Simms and Tina Lyttle gained access to the Respondent's records, perused them and photographed some of them. Thus, the Respondent, as to paragraphs 41 through 43 of the Administrative Complaint, related to the alleged failure or refusal to produce requested records in violation of Rule 21X-18.02, Florida Administrative Code, has not been shown to be guilty.
The Respondent is also charged, at paragraphs 44 through 47 of the Administrative Complaint, with violation of Section 474.214(1)(f), Florida Statutes, a derivative charge concerning violation of a statute or administrative rule regulating practice under Chapter 474, on account of his alleged violation of Rule 21X-18.02, Florida Administrative Code, by his failure to maintain adequate treatment records concerning the cat "Leo" and the dog "Beau". This charge, as it relates to the dog "Max" and the "unnamed mixed collie", has been voluntarily dismissed by the Petitioner.
The testimony of Dr. Cordell, the Petitioner's expert witness, does establish that the Respondent has violated the provision cited last above concerning the records of these two animals. Indeed, the Respondent's records did not adequately document the results of the examination, course of treatment, diagnosis, route of administration of medications and the like enumerated in Dr. Cordell's testimony, which is accepted. In the Respondent's behalf, it must be said that the primary purpose of the keeping of such medical records is for the use of the practitioner, himself, so that he can intelligently insure continuity of appropriate treatment and refresh his recollection concerning the condition and circumstances attendant to a patient, sometimes over a period of years. The Respondent established that the notes and entries in these records are readily understood by him; and, in fact, it has not been shown that any care or treatment rendered to these animals was deficient in any way. Moreover, it is considered and concluded by the Hearing Officer that little blame-worthiness should attach to this violation by the Respondent because of the fact that he, on his own volition, spent a substantial amount of money in enhancing his
record-keeping ability by the addition of a modern, computerized record system for his office and clinic. These considerations must be taken into account in assessing any penalty for this violation.
The charges appearing at paragraphs 48 through 52 of the Administrative Complaint, consisting of the "general complaint" and Counts Ten and Eleven, relate to alleged misconduct in the practice of veterinary medicine beneath the minimal standard of care required of veterinarians in Florida and, once again, violation of Section 474.214(1)(o), Florida Statutes (again, mis- cited as (p)), by engaging in alleged fraud, deceit, negligence, incompetency or misconduct in the practice of veterinary medicine, and, derivatively, violation of Section 474.214(1)(f), Florida Statutes, by violating Chapter 474, Florida Statutes, and/or the rules promulgated thereunder.
In this "general complaint", it is alleged that, as to the incidents set forth in the Administrative Complaint (but apparently not limited to those) the Respondent practiced veterinary medicine in a manner so as to inflict unnecessary pain and suffering on animals entrusted to his care and treatment. The above Findings of Fact clearly establish that the Respondent has not practiced veterinary medicine in this manner and, therefore, is not guilty of these charges. Once again, it should be pointed out that no minimal standard of care required of veterinarians has been established in the testimony and evidence adduced in this proceeding. See, Purvis, supra.
In order for the Petitioner to prevail in a penal proceeding such as this, it must establish the facts plead in the Administrative Complaint supportive of the charges of the various alleged statutory and regulatory violations by clear and convincing evidence. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The Petitioner herein has failed to sustain that burden as to any of the charges, with the exception of the minor violation of the above-cited rule concerning the adequacy of the Respondent's medical records.
It is curious that the prosecution proceeded as far as it did with regard to those animals that these complaining witnesses maintained were bitten by the Respondent. Such facially implausible, farfetched accounts of the Respondent's care and treatment of these animals certainly warranted an in- depth investigation before prosecution to the extent of the filing of an Administrative Complaint and proceeding to hearing with regard to such matters. 1/ While probable cause panels often make their findings on the basis of scant "evidentiary" items such as affidavits, they should be well-served by an in- depth professional investigation of the circumstances underlying and supporting those matters or items upon which they rely. Here they were not well-served.
In fact, the investigation, according to Mr. Clum's testimony, consisted of his reviewing the affidavits executed and collected by these disgruntled employees, contacting some of those affiants, obtaining and reviewing the depositions in the criminal matter, and "obtaining items from the courthouse", presumably the court records regarding the criminal prosecution. The investigator conferred with the Respondent, but apparently from his testimony, only conferred about the issue of the medical records. The investigator did not confer with Lt. Loria, Ms. Vetitoe, nor does the record reflect that he conferred with the dog and cat owners involved to ascertain if, indeed, any injuries had occurred to their animals or if they were dissatisfied with the care and treatment rendered. Certainly, for instance, if the Respondent had been questioned in depth, if Lt. Loria had been questioned, and the observable scar on the Respondent's arm had been considered, it would have become known that the Respondent had been severely bitten by the dog "Peaches" and that something had occurred, therefore, with regard to that incident which Tina Lyttle had left untold. Further, if Ms. Vetitoe had been interviewed, it would have become known that there was a substantial question as to the veracity of the story of Pat Guinn concerning the alleged death and disposal of the body of the dog "Peaches" and Dr. Monroe's purported biting of "Shadow."
The record-keeping violation established by the Petitioner was not of a serious nature, and resulted in no failure to provide adequate care or treatment to the animals involved. Since the records kept as to those animals do not reflect on their face any deficient care and treatment and in view of the Respondent's own voluntary action to obtain a computerized record-keeping system to improve his own ability to keep and maintain adequate medical records, the Hearing Officer concludes that a private reprimand is warranted for this violation.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the pleadings and arguments of the parties, and the candor and demeanor of the witnesses, it is, therefore,
RECOMMENDED that a Final Order be entered by the Board of Veterinary Medicine dismissing the entire Administrative Complaint, with the exception of the charges in paragraphs 44 and 45 concerning the records of the cat "Leo" and the dog "Beau", and that it find that the Respondent has violated Section 474.214(1)(f), Florida Statutes, derivatively, by violating Rule 21X-18.02, Florida Administrative Code, concerning those two animals. Because of the circumstances surrounding this violation, as delineated above, it is recommended that a private reprimand be accorded the Respondent for this violation.
DONE and ENTERED this 1st day of December, 1989, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1989.
ENDNOTE
1/ See Cosyns, Maxwell, etal. v. Department of Professional Regulation, Division Real Estate, D.O.A.H. Case numbers 88-0241F and 88-0521F (Final Order July 3, 1989).
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2859
Petitioner's Proposed Findings of Fact
Accepted.
Rejected, as contrary to the greater weight of the evidence of record and is subordinate to the Hearing Officer's Findings of Fact on the subject matter.
Accepted, as to some of the evidential facts enumerated in this multi- page proposed finding of fact, but not as to the overall gravamen of the proposed finding of fact involved. It was not demonstrated with regard to the dog named "Chipper" that any failure to practice veterinary medicine in accordance with statutory standards occurred nor that any unnecessary pain and suffering was inflicted or cruelty was inflicted on the dog by the Respondent. It was not demonstrated that the Respondent's version of events to the effect that the dog mutilated his stitches and the incision was not true. It was not established that the surgery and related care was not properly performed
Rejected, as contrary to the greater weight of the evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter.
Rejected, as contrary to the greater weight of the evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter.
Rejected, as contrary to the greater weight of the evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter.
Rejected, as contrary to the greater weight of the evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter.
The first two sentences of this proposed finding of fact are accepted. The remainder is rejected, as contrary to the greater weight of the evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter.
Rejected, to the extent that this proposed finding of fact asserts a motivation for Ms. Betty Simms to investigate this case and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.
Accepted, but not as to its material import in resolving the disputed issues presented in this administrative prosecution.
Rejected, as immaterial to resolution of the material issues presented, standing alone, and in any event, as subordinate to the Hearing Officer's Findings of Fact on this subject matter.
This purported proposed finding of fact, consisting of a multi- sentence paragraph, is really merely a recitation of the Respondent's testimony. In fact, the essential points of paragraph 12 of the Petitioner's Proposed Findings of Fact have been found to be true by the Hearing Officer in the Hearing Officer's Findings of Fact.
Respondent's Proposed Findings of Fact
Paragraphs 1 through 7 are accepted. In addition to paragraphs 1 through 7, so-called "general findings" submitted by the Respondent, the Respondent submitted certain "specific findings of fact" numbered 1 through 8. The specific rulings on these paragraphs are as follows:
Accepted.
Accepted, except that the animal was a dog and not a cat.
Accepted.
Accepted.
Accepted.
Accepted
Rejected as subordinate to the Hearing Officer's findings of fact on the subject matter.
Rejected as subordinate to the Hearing Officer's findings of fact on the subject matter.
COPIES FURNISHED:
Kenneth E. Easley, Esquire General Counsel
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Ms. Linda Biedermann Executive Director
Board of Veterinary Medicine Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Laura P. Gaffney, Esquire Senior Attorney
Department of Professional Regulation 1940 North Monroe Street
Suite 60
Tallahassee, Florida 32399-0792
John Lewis Allbritton, Esquire ALLBRITTON & GANT
322 West Cervantes Street Pensacola, Florida 32501
| Issue Date | Proceedings |
|---|---|
| Dec. 01, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 01, 1989 | Recommended Order | No witness expert or other, establish what appropriate veterinary care standard should be under circumstances. No clear and convincing evidence to show violations except minor record. |
