STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0565

)

MICHAEL BERNSTEIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was conducted in this case on November 7, 1996, (in Fort Lauderdale, Florida) and on November 14, 1996, (by telephone conference call) before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Floyd A. Hennen, Senior Attorney

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

For Respondent: Michael Bernstein, pro se

13607 Stirling Road

Fort Lauderdale, Florida 33330 STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in the Notice of Intent to Impose Administrative Fines?

   
   

2. If so, what is the total amount of the fines that should be imposed against him?

PRELIMINARY STATEMENT

On December 27, 1995, the Department of Agriculture and Consumer Services (Department) issued a Notice of Intent to Impose Administrative Fines against Respondent pursuant to Section 585.007(1), Florida Statutes (Notice). In the Notice, the Department alleged the following:

An investigation was conducted by the Department into your business activities. As a result of its investigation, the Department has determined that you have

violated Section 585.145(2), Florida Statutes,

and Rule 5C-18.010(3)(b), Florida Administrative Code, by failing to provide reports of a negative EIA test (VS Form 10-

11) for a horse named "Chance" sold to Mr. Pete Trilla on December 31, 1994, and for another horse, a Tennessee Walker, sold to Mr. Trilla on or about October 30, 1995. Each offense subjects you to the imposition of an administrative fine of up to $10,000.

Respondent denied the allegations of wrongdoing made in the Notice and requested a formal administrative hearing on the matter. On January 30, 1996, the case was referred to the Division of Administrative Hearings (Division) for the assignment of a Hearing Officer 1/ to conduct the hearing Respondent had requested. 2/

As noted above, the hearing was held on November 5 and 14, 1996. At the hearing, the Department presented the testimony of two witnesses, William Jeter, DVM, an Assistant Bureau Chief in the Department's Division of Animal Industry, and Orlando "Pete" Trilla, the individual who, according to the Notice, was not provided negative EIA tests for the two horses he purchased from Respondent.

The Department also offered four exhibits (Petitioner's Exhibits 1 through 4) into evidence. All four of the Department's exhibits were admitted by the undersigned.

Respondent testified on his own behalf. The only other evidence that he presented was the testimony of Daryl Woods.

At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, announced that proposed recommended orders had to be filed no later than 20 days after the undersigned's receipt of the complete transcript of the hearing. The undersigned received the complete transcript of the hearing on December 4, 1996.

On December 20, 1996, the Department filed a proposed recommended order, which the undersigned has carefully considered. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. Since 1990, Respondent has operated a recreational club in Broward County, Florida.

   
   

2. Horse riding is among the activities offered at the club.

   
   

3. Horses owned by Respondent and stabled on the club's premises are used by club members.

   
   

4. Respondent has sold approximately six horses during the time he has operated the club.

   
   

5. Two of these sales were made to Orlando "Pete" Trilla and his wife.

6. The first of these two sales to the Trillas was made on or about December 31, 1994, when Respondent sold a quarter horse named Chance to the Trillas for $1,800.00.

   
   

7. Pursuant to the Trillas' instructions, Respondent delivered Chance to Troy Doniny's stables.

   
   

8. Respondent provided the Trillas with all of the paperwork that he (Respondent) had regarding Chance, including a report of a negative Equine Infectious Anemia (EIA) Laboratory Test administered August 20, 1993, and a report of a subsequent negative EIA Laboratory Test administered within 12 months of the date Respondent relinquished possession of Chance to the Trillas. (Respondent, who does not sell horses on a regular basis, did not retain copies of the paperwork he provided the Trillas.)

   
   

9. The Trillas had difficulty handling Chance.

   
   

10. In or about October of 1995, they asked Respondent if they could exchange Chance for another horse.

    
    

11. The Trillas subsequently entered into an agreement with Respondent, which provided that the Trillas were to receive a Tennessee Walker named Walker from Respondent in return for Chance plus $1,000.00.

    
    

12. On or about October 30, 1995, Respondent, through his agent, Daryl Woods, delivered Walker to the Trillas at the Trillas' residence in Palm Beach County, Florida. 3/

    
    

13. At the time of delivery, the Trillas were provided with all of the paperwork that Respondent had regarding Walker, including a report of a negative EIA Laboratory Test administered within the previous 12 months. 4/ (Respondent did not retain copies of the paperwork he provided the Trillas.)

    
    

14. After receiving Walker, the Trillas relinquished possession of Chance to Woods. Chance returned to Respondent's club on Wood's trailer.

    
    

15. The Trillas were dissatisfied with Walker.

    
    

16. They complained to Respondent that Walker had "bad feet" and asked that Respondent return Chance, as well as the money that they had paid to obtain Walker.

    
    

17. Respondent refused.

    
    

18. The Trillas subsequently filed a civil action against Respondent.

    
    

19. A trial was scheduled.

    
    

20. The Trillas' lawsuit was dismissed when they failed to appear at trial.

    
    

    CONCLUSIONS OF LAW

    
    

21. Chapter 585, Florida Statutes, contains laws relating to "animal industry."

22. The Department is statutorily responsible for the enforcement of the provisions of Chapter 585, Florida Statutes. Sections 585.002 and 585.004, Fla. Stat.

    
    

23. Its responsibility includes "promulgat[ing] rules to carry out the provisions of this chapter." Section 585.002(4), Fla. Stat.

    
    

24. Among the rules promulgated by the Department "to carry out the provisions of this chapter" is Rule 5C-18.010, Florida Administrative Code, which at all times material to the instant case has provided, in pertinent part, as follows:

    
    

    (3) Negative EIA Test for Change of Ownership. All horses, other than those sold for slaughter, must have a report of a negative EIA test conducted within the previous 12 months for change of ownership.

    This includes both public and private sales, trial usage, gifts, and rentals or leases.

    The test must be reported on VS Form 10-11 (Apr 90). . .

    (b) For private sale or other transfer of ownership, the VS Form 10-11 (Apr 90) must be provided to the new owner or custodian at the time of change of location or ownership.

    
    

25. At all times material to the instant case, Section 585.007, Florida Statutes, has authorized the Department to impose "an administrative fine of up to $10,000.00 for each offense" upon "[a]ny person who violates . . . any rule of the [D]epartment."

    
    

26. Before taking such punitive action, however, the Department must provide the alleged violator with written notice of its proposed action and a reasonable opportunity to contest such action. See Florida League of Cities, Inc. v. Administration Commission, 586 So.2d 397, 413-15 (Fla. 1st DCA 1991); Section 120.569(1), Fla. Stat. (Supp. 1996); Rule 28-5.111, Fla. Admin. Code. If the alleged violator challenges the proposed punitive action and there are disputed issues of material fact, an evidentiary hearing must be conducted to resolve the dispute. Section 120.569(1), Fla. Stat. (Supp. 1996); Section 120.57(1), Fla. Stat. (Supp. 1996).

    
    

27. At the hearing, the Department has the burden to establish the alleged violator's guilt by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So.2d 932, 935 (Fla. 1996); Section 120.57(1)(h), Fla. Stat. (Supp. 1996)("[f]indings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute"). "'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.'" In re Davey 645 So.2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983). Furthermore, the punitive action taken by the

    Department may be based only upon those violations specifically alleged in the written notice furnished the alleged violator. See Cottrill v. Department of Insurance, 21 Fla. L. Weekly D2630 (Fla. 1st DCA December 12, 1996); Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v.

    Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

    
    

28. In the instant case, the Department furnished Respondent with a Notice of Intent to Impose Administrative Fines which alleged the following:

    
    

    An investigation was conducted by the Department into your business activities. As a result of its investigation, the Department has determined that you have

    violated Section 585.145(2), Florida Statutes, and Rule 5C-18.010(3)(b), Florida Administrative Code, by failing to provide reports of a negative EIA test (VS Form

    10-11) for a horse named "Chance" sold to Mr. Pete Trilla on December 31, 1994, and for another horse, a Tennessee Walker, sold to Mr. Trilla on or about October 30, 1995. Each offense subjects you to the imposition of an administrative fine of up to $10,000.

    
    

    Respondent denied the allegations of wrongdoing made in the Notice and requested a Section 120.57(1) evidentiary hearing on the matter.

    
    

29. At the hearing, the Department failed to establish, by even a preponderance of the evidence, that Respondent committed the violations alleged in the Notice. Although the Department elicited testimony (from Orlando "Pete" Trilla), which, if believed, would be sufficient to prove that, in connection with the sales of Chance and Walker to the Trillas, Respondent failed to provide the Trillas with the reports required by Rule 5C-18.010(3)(b), Florida Administrative Code, as alleged in the Notice, the undersigned has rejected this testimony because, in his opinion, it is less credible than Respondent's testimony to the contrary 5/ and the testimony of Daryl Woods, who testified concerning the transaction involving Walker and corroborated Respondent's exculpatory testimony regarding that transaction. 6/

    
    

30. Accordingly, the charges against Respondent should be dismissed and no administrative fines should be imposed against him.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order dismissing all charges against Respondent.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1996.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1996.

ENDNOTES

1/ Pursuant to Chapter 96-159, Laws of Florida, the Division's "Hearing Officers" became "Administrative Law Judges" effective October 1, 1996.

2/ The hearing was originally scheduled to commence on June 21, 1996, but it had "to be rescheduled to accommodate the [previously assigned] Hearing Officer's schedule."

3/ Woods, whose girlfriend is employed by Respondent, is a farrier by trade and Respondent is one of his customers.

4/ This was a report that Respondent had been provided by the person from whom he (Respondent) had purchased the horse.

5/ In evaluating Respondent's testimony, the undersigned has considered, but rejected as unconvincing, the argument advanced by the Department in footnote 1 of its proposed recommended order.

6/ Woods testified with apparent candor and sincerity. In the opinion of the undersigned, neither his business relationship with Respondent, nor the fact that his girlfriend is employed by Respondent, played any role in his giving testimony favorable to Respondent.

COPIES FURNISHED:

Floyd A. Hennen, Senior Attorney

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Michael Bernstein 13607 Stirling Road

Fort Lauderdale, Florida 33330

Honorable Bob Crawford, Commissioner Department of Agriculture

and Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel Department of Agriculture

and Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-000565

Orders for Case No: 96-000565