STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) BOARD OF VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NOS. 95-5057

) 96-2657

OLFAT AZOUZ MANSOUR, D. V. M., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 13, 1996, in Orlando, Florida. The parties, witnesses, and court reporter attended the formal hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Miriam S. Wilkinson, Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Charles L. Curtis, Esquire

Doumar, Curtis, Cross, Laystrom, P.A. 1177 Southeast 3rd Avenue

Fort Lauderdale, Florida 33316 STATEMENT OF THE ISSUES

The issues for determination are whether Respondent violated Section 474.214(1)(r) Florida Statutes (1995), 1/ by committing the acts alleged in two administrative complaints and, if so, what, if any, penalty should be imposed.

PRELIMINARY STATEMENT

On January 30, 1995, Petitioner filed an Administrative Complaint against Respondent in Case Number 95-5057. The complaint alleges that Respondent violated Section 474.214(1)(r) in his treatment of two cats, "Kari" and "Elvira."

On November 8, 1995, Petitioner filed an Administrative Complaint against Respondent in Case Number 96-2657. The complaint alleges that Respondent violated Sections 474.214(1)(o) and (r) in his treatment of a dog, "Dudley."

The two cases were consolidated pursuant to the agreement of the parties.

Respondent timely requested a formal hearing.

At the formal hearing, Petitioner dismissed all allegations and counts against Respondent pertaining to "Elvira." 2/ Petitioner also dismissed the factual allegations and legal counts pertaining to violations of Section 474.214(1)(o) by Respondent's treatment of "Kari" and "Dudley."

Respondent admitted the allegations pertaining to "Dudley." The formal hearing proceeded on the issues of: what penalty should be imposed for Respondent's treatment of "Dudley;" and whether Respondent's treatment of "Kari" was incompetent and negligent and, if so, what penalty, if any, should be imposed.

At the formal hearing, Petitioner presented the testimony of two witnesses and submitted four exhibits for admission in evidence. Respondent testified in his own behalf, presented the testimony of two witnesses, and submitted four exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the formal hearing filed on June 24, 1996.

Petitioner timely filed its proposed recommended order ("PRO") on July 3, 1996. Respondent timely filed his PRO on July 5, 1996. Proposed findings of fact in the parties' PROs are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for issuing licenses to practice veterinary medicine. Petitioner is also responsible for regulating the practice of veterinary medicine.

   
   

2. Respondent is licensed as a veterinarian pursuant to license number VM 0002578. Respondent practices veterinarian medicine in Orlando, Florida.

1. Kari

   
   

   1. On May 5, 1993, Respondent performed an ovariohysterectomy on a feline ("Kari"). An ovariohysterectomy is the surgical removal of the uterus and both ovaries, i.e., a "spay."

      
      

   2. Respondent failed to remove the left ovary from "Kari." During the surgery, Respondent noted that the ovary was not on the gauze where Respondent had placed the right ovary and other incidental material that Respondent removed surgically. 3/

      
      

   3. Respondent searched inside and outside the surgical area for about an hour but could not locate the ovary. Respondent noted in the medical record that an ovarian remnant may have been left in the cat. Respondent advised the owner that if the cat went into heat she should bring the cat back for exploratory surgery to attempt to find and remove the remnant.

   4. On July 12, 1993, 4/ the owner observed "Kari" in heat and returned the cat to Respondent. Respondent performed exploratory surgery in an attempt to find an ovarian remnant.

      
      

   5. Respondent spent approximately one hour searching for microscopic tissue that could be the ovarian remnant. He cleaned the ovarian ligaments in the area of the left and right ovaries, searched the peritoneal area, and searched the adjacent organs. Respondent removed some material but did not locate and remove an ovarian remnant.

      
      

   6. Respondent advised the owner that he did not find a remnant but that he thought he had removed all of the ovary. Respondent instructed the owner to advise him if the cat came back into heat. Respondent did not charge the owner for the second surgery.

      
      

   7. In August, 1993, the owner advised Respondent that the cat was in heat. The owner was unwilling to have Respondent perform surgery again. Respondent advised the owner to see a surgical specialist at Respondent's expense.

      
      

   8. On November 18, 1993, the owner took "Kari" to the Kissimmee Animal Hospital. Medical tests established the cat's estrogen level to be 43.4 pg/ml. The normal estrogen level for a spayed cat is below 25 pg/ml.

      
      

   9. The treating physician at Kissimmee Animal Hospital referred the owner to a specialist for a third surgery. The owner did not want to subject the cat to a third surgery or incur additional veterinary expenses.

      
      

   10. On February 16, 1994, "Kari" died. The owner had a necropsy performed.

       
       

   11. The left ovary was still present in the cat. The pathologist who performed the necropsy retrieved the left ovary from the cat. He initially identified the ovary by visual examination and subsequently confirmed his initial identification on histopathology.

       
       

   12. The histopathology examination revealed that the ovary and oviduct fimbria were normal. The ovary was the original ovary in its original anatomic position.

       
       

   13. The ovary was attached to the ligaments that attach the ovary to the dorsal abdominal wall and posterior part. The pathologist found no suture on the ligament that attaches the left ovary to the posterior wall of the abdomen.

       
       

   14. Respondent's treatment of "Kari," including Respondent's failure to remove the left ovary, did not cause the cat to die. The cat died from a massive infection in the abdominal cavity.

       
       

   15. The cause of infection could not be determined. Based upon the type and severity of the infection, it could not have begun more than two weeks before the cat's death on February 16, 1994.

       
       

   16. Respondent last treated "Kari" on July 12, 1993. Neither Respondent nor the treating physicians at Kissimmee Animal Hospital detected any infection in the cat.

2. Dudley

   
   

   1. On September 7, 1994, Robert and Susan Micalizio took their dog ("Dudley") to a veterinarian who diagnosed the dog as having kidney stones. On September 8, 1994, the owners brought Dudley to Respondent for a separate opinion. Respondent confirmed the original diagnosis.

      
      

   2. Respondent performed a urinary catheterization. The catheterization failed to unblock the dog's urinary tract.

      
      

   3. On September 9, 1994, Respondent performed a cystotomy and urethrostomy on "Dudley." Respondent made three separate incisions in the dog's bladder to determine if kidney stones were present.

      
      

   4. Respondent did not take x-rays before performing surgery on the dog. Respondent's failure to take radiographs prior to surgery in order to properly diagnose the problem departed from the standard of care in the community.

      
      

   5. Respondent found no kidney stones in the dog's bladder or urethra. Respondent discharged the dog.

      
      

   6. The dog's urinary symptoms persisted after Respondent released the dog on September 9, 1994. The dog's condition worsened.

      
      

   7. On September 13, 1994, the owners took "Dudley" to an emergency clinic. X-rays disclosed the presence of kidney stones in the dog's urethra and bladder. The emergency clinic diagnosed the dog with kidney failure.

      
      

   8. On September 16, 1994, "Dudley" underwent a successful cystotomy and urethrostomy at another animal clinic. It was necessary to perform a cystotomy and urethrostomy to remove the kidney stones and successfully treat the dog. Respondent performed the appropriate procedures but failed to locate the kidney stones, extract them, and otherwise treat the dog appropriately.

      
      

   9. Respondent reimbursed the owners for the costs of his procedures. Respondent paid for the cost of the subsequent surgical procedures required to treat "Dudley."

   
   

3. Penalty

1. Respondent was incompetent and negligent in his care of "Kari." Respondent failed to remove all of the left ovary from "Kari" after two surgical attempts to do so. "Kari" went into heat several more times and endured a second surgery as a result of Respondent's incompetence and negligence.

   
   

2. Respondent was incompetent and negligent in his care of "Dudley." Respondent failed to take x-rays prior to performing surgery. Although the surgery Respondent performed ultimately proved to be necessary to treat "Dudley," Respondent failed to detect kidney stones at the time Respondent performed surgery and failed to correct the condition causing "Dudley's" problems. As a result, the dog suffered longer and endured additional surgery.

   
   

3. The incompetence and negligence committed by Respondent did not involve deceit, fraud, or misconduct. Respondent did not mislead the owners of either animal.

4. Respondent's incompetence and negligence did not result in the death or serious injury of either animal. Respondent made a reasonable effort to locate the ovary he left in "Kari." Respondent either reimbursed or offered to reimburse the owners of each animal for expenses incurred by them as a result of Respondent's incompetence and negligence.

   
   

5. Respondent has no history of prior disciplinary action against him. Respondent has performed over 20,000 spay procedures without incident. Veterinarians leave ovaries, or ovarian remnants, in approximately three percent of spayed animals. Respondent readily admits his lack of care in the treatment of "Dudley."

   
   

   4 Subject Matter Index

   
   

6. Petitioner maintains an index of its agency orders. Petitioner's index is not alphabetical, hierarchical, or numbered sequentially. Petitioner's index does not contain indentations below the subject headings or titles which are more specific than the subject heading or title. The index does not contain cross- referenced common and colloquial words as required by Florida Administrative Code Rule 1S-6.008. 5/

   
   

7. Petitioner's index complies with the requirements of Section 120.53(2)(a)3. In lieu of a hierarchical subject matter index, Petitioner maintains an electronic database that allows users, including Respondent, to research and retrieve the full text of agency orders through an ad hoc indexing system prescribed by statute.

   
   

8. Petitioner's electronic database contains complete case files related to any final order issued by Petitioner from July 1, 1992, to the present. The files include administrative complaints, settlement agreements, and orders.

   
   

9. Any person may access this information between 8:00 a.m. and 5:00 p.m. Monday through Friday, either in person, by mail, or by telephone. Respondent is able to determine those final orders that involve the statutory or rule violations for which Respondent is charged.

   
   

10. Respondent's search of Petitioner's index revealed that Petitioner has never suspended or revoked a license for the same or similar charges as those against Respondent. Petitioner has not revoked the licenses of veterinarians for more serious offenses.

    
    

11. Petitioner has imposed a reprimand, required direct supervised probation, or mandatory appearances before Petitioner in only two cases in which the veterinarian's treatment of the animal did not result in the death of the animal treated. Both of those cases involved charges more serious than those against Respondent.

    
    

12. Petitioner has imposed the sanctions of suspension, direct supervision, and fines in excess of $500 only where a violation of the law has occurred and the veterinarian's treatment resulted in the death of the animal treated. Respondent's treatment did not result in the death of either animal treated by Respondent.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. The parties were duly noticed for the formal hearing.

    
    

14. Petitioner has the burden of proof in this case. Petitioner must show by clear and convincing evidence that Respondent is guilty of negligence or incompetence, within the meaning of Section 474.214(1)(r), and that the penalties proposed by Petitioner are reasonable. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

15. Section 474.214(1)(r) defines incompetence and negligence as the failure to practice veterinary medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent veterinarian as being acceptable under similar conditions and circumstances. Incompetency is judicially defined to include a lack of ability or fitness to discharge a required duty. County Board of Education of Clarke County v. Oliver, 116 So.2d

    566 (Ala. 1959). Negligence is judicially defined to include the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances, or doing what a reasonable and prudent person would not have done under the circumstances. DeWald v. Quarnstrom, 60 So.2d 919 (Fla. 1952).

    
    

16. Respondent is guilty of incompetence and negligence within the meaning of Section 474.214(1)(r) and applicable case law. Respondent was unable to remove the left ovary from "Kari," neglected to take x-rays prior to performing surgery on "Dudley," and was unable to locate and remove kidney stones from "Dudley."

    
    

17. Section 474.214(2) authorizes Petitioner to revoke or suspend a veterinarian's license, impose a fine up to $1,000 for each count or separate offense, issue a reprimand, place the veterinarian on probation that may include continuing education courses, restrict the veterinarian's practice, impose investigative and prosecution costs, and require the veterinarian to undergo remedial education. Rule 61G18-30.001(2)(o) provides that when a licensee commits negligence or incompetence in the practice of veterinary medicine the "usual" penalty ranges from probation for one year and a $1,000 fine to revocation. 6/

    
    

18. Petitioner proposes that Respondent be: placed on probation for three years; reprimanded; assessed a fine of $2,000; and required to complete 30 hours of continuing education. Respondent proposes that he pay a $250 fine and take three hours of continuing education courses.

1. Stare Decisis

   
   

   1. The legal question involved in deciding which of the penalties authorized in Section 474.214(2) to apply in a particular case may be controlled by the judicial doctrine of stare decisis. 7/ The doctrine of stare decisis controls subsequent determinations of the same question of law between parties who were not parties in the earlier case in which the decision was made. McGregor v. Provident Trust Co., 162 So 323 (Fla. 1935); Della-Donna v. Nova University, Inc., 512 So.2d 1051, 1054 (Fla. 4th DCA 1987).

      
      

   2. The object of stare decisis is uniformity, certainty, and stability in the law. The objective is accomplished by:

      . . . treating like cases alike and following decisions rendered previously involving similar circumstances. . . .

      
      

      Gessler v. Department Business and Professional Regulation, 627 So.2d 501, 504 (Fla. 4th DCA 1993)

      
      

   3. The doctrine of stare decisis:

      
      

      . . . ensures that similarly situated individuals are treated alike rather than in accordance with the personal view of any particular judge. . . .

      
      

      Perez v. State, 620 So.2d 1256, 1259 (Fla. 1993) (Overton, J., concurring). Although application of the doctrine may not be obligatory in a particular case, the doctrine is generally applied unless there is a compelling reason for departing from existing precedent. Forman v. Florida Land Holding Corporation, 102 So.2d 596, 598 (Fla. 1958)

      
      

   4. Stare decisis applies to administrative proceedings, including the imposition of penalties. Gessler, 627 So.2d at 503. Stare decisis protects individuals against arbitrariness in administrative proceedings, including arbitrary penalties. Stare decisis is intended:

      
      

      . . . to protect citizens against arbitrari- ness, to give citizens the means of finding out whether they are receiving treatment equal to similarly situated persons, and to give the courts the opportunity to determine whether the agency is acting [arbitrarily or evenhandedly]. [emphasis supplied]

      
      

      Gessler, 627 So.2d at 503 (discussing the statutory requirement for an indexing system).

      
      

      1. Burden Of Proof

         
         

   5. Penalties that depart from existing precedent without a compelling reason for doing so may be arbitrary. Gessler, 627 So.2d at 503. Arbitrary penalties are not reasonable penalties. Petitioner has the burden of showing that the penalties it proposes are reasonable. Ferris, 510 So.2d at 295.

      
      

   6. Showing that a penalty is authorized by applicable statutes and rules is only one of the factors to be considered in determining whether a penalty is reasonable. Other factors include consistency with existing precedent.

      
      

   7. Petitioner must adhere to its existing precedent or explain the deviation. McDonald v. Department of Banking and Finance, 346 So.2d 569, 582 (Fla. 1st DCA 1977). Inconsistent orders based on similar facts, without a reasonable explanation, may violate Section 120.68(12)(c) as well as the equal protection guarantees of the federal and state constitutions. North Miami General Hospital v. Department of Health and Rehabilitative Services, 355 So.2d 1272, 1278 (Fla. 1st DCA 1978). 8/

      
      

   8. Petitioner has the burden of showing that its proposed penalties adhere to existing precedent or, alternatively, that there are compelling

      reasons for any departure. Petitioner must provide a reasonable explanation for inconsistent orders based on similar facts. Petitioner did not satisfy its burden of proof.

      
      

      1. Existing Precedent

      
      

   9. Petitioner failed to show that its proposed penalties adhere to existing precedent. Petitioner failed to show that its proposed penalties treat like cases alike, follow decisions rendered previously involving similar circumstances, and ensure that similarly situated individuals are treated alike rather than in accordance with the personal view of the agency head in whose place a hearing officer sits when issuing recommended orders. 9/

      
      

   10. Respondent submitted the only evidence of existing precedent from Petitioner's index of final orders. Petitioner failed to provide any contrary evidence and failed to show any compelling reason for departing from the existing precedent evidenced by Respondent. 10/ Petitioner failed to provide any reasonable explanation for the entry of inconsistent orders based upon similar facts. 11/

       
       

       6. Section 120.68(12)(c)

       
       

   11. Even if stare decisis does not control the legal question of deciding which penalties authorized in Section 474.214(2) to apply in a particular case, Petitioner must explicate any inconsistent imposition of penalties. Failure of an agency to explicate inconsistent results violates Section 120.68(12)(c) and the equal protection guarantees of the state and federal constitutions. St. Johns North Utility Corp. v. Florida Public Service Commission, 549 So.2d 1066, 1069 (Fla. 1st DCA 1989); Amos v. Department of Health and Rehabilitative Services, 444 So.2d 43, 47 (Fla. 1st DCA 1983). 12/ Persons substantially affected by proposed agency action must be able to rely on precedents born of consistent application of policy to facts. University Community Hospital v. Department of Health and Rehabilitative Services, 472 So.2d 756, 758 (Fla. 2d DCA 1985).

       
       

   12. Petitioner failed to show that the penalties it proposes are consistent with the policy or practice evidenced in Petitioner's index of final orders. Petitioner failed to explicate any reason for imposing penalties in a way that is inconsistent with its policy or practice.

1. Protect The Public

   
   

   1. In deciding which penalties to apply in a particular case, Section 474.214(2) requires Petitioner to:

      
      

      . . . first consider those sanctions necessary to protect the public. Only after those sanctions have been imposed may the disciplining authority consider and include in its order requirements designed to rehabilitate the veterinarian. All costs associated with compliance with any order issued under this subsection are the obligation of the veterinarian

   2. Petitioner failed to show why its proposed penalties are reasonably necessary to "protect the public" within the meaning of Section 474.214(2). Petitioner failed to show that it considered sanctions necessary to protect the public before proposing penalties designed to rehabilitate Respondent, if any.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty

of violating Section 474.214(1)(r), imposing a fine of $499, requiring Respondent to attend 4.9 hours of continuing education courses, and placing Respondent on probation for one year without requiring mandatory appearances in front of Petitioner. The costs of compliance with the final order are the obligation of Respondent.

RECOMMENDED this 6th day of August, 1996, in Tallahassee, Florida.

DANIEL S. MANRY, 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 6th day of August, 1996.

ENDNOTES

1/ All section and chapter references are to Florida Statutes (1995) unless otherwise stated.

2/ Petitioner dismissed charges against Respondent pertaining to an animal referred to by Petitioner as "Jasmyn." However, the two administrative complaints filed with the undersigned refer only to the two cats, "Kari" and "Elvira," and the dog, "Dudley."

3/ Respondent mistakenly believed that he had removed most of the ovary and had left only an ovarian remnant in the cat. A necropsy performed several months later showed the left ovary was still in the cat. See, paras. 12-15, infra.

4/ Respondent admitted the paragraph in the Administrative Complaint alleging that the owner of "Kari" returned the cat to Respondent on July 29, 1993.

Respondent's records, however, indicate the owner returned the cat on July 12, 1993. The discrepancy in the two dates is immaterial and not outcome determinative.

5/ All references to rules are to rules promulgated in the Florida Administrative Code published as of the date of this Recommended Order unless otherwise stated.

6/ Petitioner's rule states that the "usual" minimum fine is $1,000. Use of the term "usual" implies that the agency may depart from the minimum fine prescribed in the rule. Existing precedent evidenced by Petitioner's index of final orders shows that the "usual" minimum fine does not exceed $500 when the animal treated does not die as a result of the treatment.

7/ One court is uncertain of the extent to which administrative agencies are bound by the doctrine of stare decisis. In Gessler v. Department of Business and Professional Regulation, 627 So.2d 501 (Fla. 4th DCA 1993), the court stated:

While it is apparent that agencies, with their significant policy-making roles, may not be bound to follow prior decisions to the extent that the courts are bound by precedent, it is nevertheless apparent the legislature intends there be a principle of administrative stare decisis in Florida.

Gessler, 627 So.2d at 504.

Compare McDonald v. Department of Banking and Finance, 346 So.2d 569, 582 (Fla. 1st DCA 1977) and North Miami General Hospital v. Department of Health and Rehabilitative Services, 355 So.2d 1272, 1278 (Fla. 1st DCA 1978) (holding that an agency must adhere to its existing precedent or explain the deviation).

8/ Apart from stare decisis, other legal considerations may also require Petitioner to adhere to its existing precedent. Existing precedent shows that Petitioner interprets Sec. 474.214(2) and Rule 61G18-30.001(2)(o) as meaning that the minimum fine should not exceed $500 when the animal treated does not die as a result of the treatment. If Petitioner now interprets Sec. 474.214(2) and Rule 61G18-30.001(2) as generally requiring a minimum fine of $1,000 for each offense, Petitioner is rescinding its prior interpretation of the law and setting forth a new interpretation of the same law. Agency policy that rescinds the agency's prior interpretation of a law and sets forth a new interpretation is itself a rule. Florida Optometric Association v. Department of Professional Regulation, Board of Opticianry, 567 So.2d 928, 936 (Fla. 1st DCA 1990); Price Wise Buying Group v. Nuzum, 343 So.2d 115, 116 (Fla. 1st DCA 1977). Petitioner has not promulgated such a rule in accordance with the rulemaking requirements of Sec. 120.54. An agency generally is prohibited from imposing rules that are not promulgated in accordance with Sec. 120.54. Sec. 120.535(1); McDonald, 346 So.2d at 580-582 (holding that policy statements of general applicability must be promulgated in accordance with the rulemaking requirements prescribed in Sec. 120.54). Petitioner can not rely on such an unpromulgated rule to determine the substantial interests of Respondent because Petitioner did not satisfy the evidentiary requirements prescribed in Sec. 120.57(1)(b)15. Even if Petitioner's interpretation of Sec. 474.214(2) and Rule 61G18-30.001(2)(o) in this case is incipient agency policy that does not satisfy the test of general applicability and therefore is not an unpromulgated rule, Petitioner can not modify its interpretation of Rule 61G18-30.001(2)(o) from the meaning of the rule evidenced in Petitioner's index of final orders. An agency's modification of a promulgated rule using unpromulgated policy that departs from the meaning of the promulgated rule is "forbidden" by Sec. 120.68(12)(b). University Community Hospital v. Department of Health and Rehabilitative Services, 610 So.2d 1342, 1345 (Fla. 1st DCA 1992)

9/ McDonald, 346 So.2d at 582.

10/ Petitioner did not evidence any legislative or other changes that would distinguish the law applied in the cases researched by Respondent from the law applicable to this proceeding.

11/ Although Petitioner utilized its right under Section 120.53 to maintain an electronic data base in lieu of a subject matter index, the option selected by Petitioner may not enable Petitioner to satisfy its burden of proof in every administrative proceeding

12/ The statute addressed in St. Johns and Amos was Sec. 120.68(12)(b). Prior to 1984, Sec. 120.68(12)(b) prohibited agency action inconsistent with a rule, policy, or practice unless the inconsistency was explained. In 1984, Sec.

120.68(12)(b) was amended to prohibit agency action that was inconsistent with a rule whether or not such action was explained. Beginning in 1984, Sec.

120.68(12)(c) prohibited agency action that was inconsistent with agency policy or practice if the inconsistency was not explained. Even though the decision in St. Johns was rendered in 1989, after the amendment in 1984, the decision stated that Sec. 120.68(12)(b) prohibited agency action inconsistent with a rule if such action was not explained.

APPENDIX

Petitioner's Proposed Findings of Fact 1.-3. Accepted in substance

4. Rejected as recited testimony 5.-8. Accepted in substance

9. Rejected as not supported by credible and persuasive evidence

10.-21. Accepted in substance 22.-27. Rejected as immaterial

28. Rejected as recited testimony Respondents' Proposed Findings of Fact

Paragraphs 1-13 are not proposed findings of fact but are statements of the issue and preliminary matters.

14.-18. Accepted as substance

1. Rejected as not supported by the evidence

2. Accepted in substance 21.-23. Accepted in substance

1. Rejected as recited testimony

2. Rejected as irrelevant and immaterial 26.-78. Accepted in substance

COPIES FURNISHED:

Susan Foster, Executive Director Board of Veterinary Medicine Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Miriam S. Wilkinson, Esquire Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Charles L. Curtis, Esquire

Doumar, Curtis, Cross, Laystrom, P.A. 1177 Southeast 3rd Avenue

Fort Lauderdale, Florida 33316

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-005057

Orders for Case No: 95-005057