STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 97-3802

)

ROBIN KAROLY, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on May 5, 1998, by Administrative Law Judge, Stephen F. Dean. The hearing was conducted in Tallahassee, Florida, and the Respondent, Robin Karoly, participated in the hearing via telephone from his residence in Jacksonville, Florida.

APPEARANCES

For Petitioner: William K. DeBraal, Senior Attorney

Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

For Respondent: Robin Karoly, pro se

537 Lawton Avenue Jacksonville, Florida 32208

STATEMENT OF THE ISSUE

Whether the Respondent committed the acts alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

The Department filed an administrative complaint alleging that the Respondent, Robin Karoly, violated multiple sections of Chapter 585, Florida Statutes, and Rule 5C-18, Florida Administrative Code. The Respondent requested a formal hearing to contest the allegations and the Department forwarded the matter to the Division of Administrative Hearings for formal hearing. The case was assigned to an Administrative Law Judge on August 12, 1997; however, because of a change of address of the Respondent, the matter was reassigned on November 26, 1997, by an order setting the case for hearing on December 16, 1997.

Thereafter, the Department moved to continue the case and the undersigned reset the hearing for May 5, 1998, by a Notice of Hearing that required the parties to contact the Division by telephone on April 27, 1998, to confirm their desire to proceed to hearing as scheduled. The Notice further provided that failure to do so might result in the rescheduling of the hearing in the interest of economy. Because the Respondent did not contact the Division, the site of the hearing was changed from Jacksonville, Florida to Tallahassee, Florida. On the morning of the scheduled hearing, the Respondent contacted the Division about the location of the hearing, and as a result thereof, arrangements were made for the Respondent to participate in the hearing by telephone.

The Administrative Complaint alleges that the Respondent, as the owner of two horses infected with Equine Infectious Anemia

(EIA), moved said horses without appropriately reporting and obtaining the permission of the Department for the movement of said animals, maintained the horses at an unapproved premises contrary to the rules of the Department, concealed or attempted to conceal horses affected with EIA contrary to the statutes, and forged or counterfeited documents related to the animals' health requirements contrary to the statutes.

The Petitioner presented the testimony of Dr. William C. Jeter, DVM, in person, and the telephonic testimony of Debbie Beye Barwick, Sandra Sagline, Linda Baca, Jimmy Cangemie, and Calvin L. "Buddy" Mills. The Petitioner introduced into evidence

11 documentary exhibits, and the parties stipulated to certain facts which were restated in the findings of fact below in paragraphs 2 through 5 inclusive. The Respondent testified by telephone in his own behalf.

Both parties filed proposed findings which were read and considered.

FINDINGS OF FACT

1. The Respondent in this case is Robin Karoly.

   
   

2. Two horses, Daisy and Sugar, were the subject of this proceeding.

3. Both Daisy and Sugar were infected with EIA.

   
   

4. The Respondent knew Daisy and Sugar were both infected with EIA.

5. Neither Daisy nor Sugar had received a negative Coggin's Test since being diagnosed with EIA.

6. EIA or "Swamp Fever" is an equine disease. EIA is spread by blood sucking insects biting an infected horse and thereafter biting an uninfected horse. The disease can also be spread by the use of hypodermic needles contaminated with the blood of infected horses.

7. There is no known cure for EIA. Once infected, a horse has EIA for the rest of its life.

8. Chapter 585, Florida Statutes, and Rule 5C-18, Florida Administrative Code, provide that horses infected with EIA can be dealt with in one of three ways. An infected horse can be quarantined at a Department-approved site and its movement controlled by the Department; or the horse can be euthanized or sold for slaughter. The meat of horses which are destroyed with the use of drugs cannot be sold; however, the meat from horses which are shot may be sold.

9. When a veterinarian diagnoses a horse with EIA, a report is made to the Department. The standard test for EIA is the AGIE Test, commonly known as a Coggin's Test. The results of the Coggin's Test are reported to the Department on VS Form 10-11.

10. When an infected horse is diagnosed it is given an identification number by the Department and the identification number is freeze branded or tattooed on the left side of the horses neck.

11. A Coggin's Test is considered valid for twelve months. In the state of Florida, a negative Coggin's Test must have been performed within the previous twelve months before a horse may be sold or possession transferred.

12. The EIA disease control program seeks to control EIA by quarantining infected animals or destroying the infected animals.

13. A horse infected with EIA cannot be moved from a quarantine location until a permit is issued by the Department. Infected animals can only be moved to approved quarantined sites. Quarantined sites are approved by the Department.

14. On June 24, 1994, the Respondent and Paula Elmore took possession of four horses which were infected with EIA. Two

    of the horses were named Daisy and Sugar. See Petitioner's exhibit 6.

15. At that time the Respondent and Paula Elmore were engaged in a personal relationship, and both were active in the care of horses infected with EIA.

16. The Respondent knew that Daisy, an eight-year-old gray mare, ID Number 58 1556 and Sugar, a twenty-four-year-old paint, ID Number 58A6009, were both infected with EIA. See stipulated facts.

17. On June 25, 1994, Daisy and Sugar were quarantined at the R.K. Isolation Lot, also known as the R. K. Ranch, a EIA quarantine site approved by the Department, located at 10200 NW 138th Street, Miami Lakes, Florida. See Petitioner's exhibit 7.

18. Subsequently, uninfected horses were moved into a pasture adjoining R. K. Ranch, and the Department determined that the infected horses at R. K. Ranch would have to be moved. Discussions regarding moving the infected horses were on-going between the Department and Respondent and Elmore.

19. The Respondent was officially notified by the Department on or about April 1, 1996, that the EIA-infected horses would have to be removed from the R.K. Ranch. The notice provided that the horses would have to be moved to another approved quarantined site or disposed via of euthanasia or slaughter.

20. The Respondent testified at hearing. By the end of March 1996, the Respondent and Paula Elmore had severed their personal relationship and the Respondent urged Elmore to comply with the Department's demands to move the horses by having the horses euthanized or slaughtered.

21. On or about March 30, 1996, Elmore called the Respondent and advised that she had arranged for the horses to be slaughtered. Towards that end, the Respondent met with Elmore to receive money from her prior to meeting the person responsible for slaughtering the horses and disposing of their bodies. The Respondent met with Elmore during his work day, received the money, and went to the R.K. Ranch where he met a Hispanic man to whom he delivered the money for the slaughter and disposal of the

    horses. Prior to the horses' disposal, the Respondent left and returned to his place of work.

22. The Respondent faxed to the Department to the attention of Dr. Jeter two forms showing that Sugar and Daisy had been euthanized on March 30, 1996. The Respondent had nothing further to do with the horses.

23. These certificates, which were introduced as the Department's exhibits 5 and 6, state as follows:

    This is to certify that the following EIA reactor owned by Robin Karoly 5641 SW 37 St Davie Fl 33314

    (Name and Address)

    
    

    was euthanized on 3/30/96

    
    

    (Date)

    
    

    Same as above

    
    

    (Name and Title)

    
    

    and the carcass disposed of by Hoof & Halter Foundation of Fla.

    
    

    (Means of disposal)

    
    

    Animal Identification: Sugar Paint 25 Gelding Name or Registry No. Breed Age Sex

    58A6009

    
    

    (Reactor Tattoo or Brand No.) Euthanasia of this animal was entirely voluntary on my part and I understand that I am not entitled to indemnity.

    \Robin Karoly\ (Signature)

    4/2/96 (Date)

    This is to certify that the following EIA reactor owned by Robin Karoly 5641 SW 37 St Davie Fl 33314

    (Name and Address)

    
    

    was euthanized on 3/30/96

    
    

    (Date)

    
    

    Same as above

    
    

    (Name and Title)

    
    

    and the carcass disposed of by Hoof & Halter Foundation of Fla.

    
    

    (Means of disposal)

    
    

    Animal Identification: Daisy Mixed 9 Mare Name or Registry No. Breed Age Sex

    Bay 58 1556

    
    

    (Color) (Reactor Tattoo or Brand No.) Euthanasia of this animal was entirely voluntary on my part and I understand that I am not entitled to indemnity.

    \Robin Karoly\ (Signature)

    4/2/96 (Date)

24. The business card of Halter and Hoof was included with each faxed certificate.

25. On or about June of 1997, Debbie Beye Barwick observed a horse in a pasture near I-75 and Sheridan Street in Broward County which she identified as Daisy. The basis of the

    identification was the horse's color and a distinctive injury to the horse's leg.

26. Jimmy Cangemie an inspector for the Department, inspected the horse which was suspected to be Daisy in the pasture at I-75 and Sheridan Street. Cangemie identified the horse by the unique freeze brand on the horse's neck. Cangemie, who was the Department's agent in Broward and Dade Counties, had not approved the movement of Daisy from the R.K. Ranch to the Sheridan Street and I-75 pasture, and had not approved the I-75 and Sheridan Street pasture as a quarantine site. As the Department's agent, Cangemie was charged with the duty of approving all quarantined sites in Broward and Dade Counties.

    
    

27. Linda Baca testified that she saw a horse which she identified as Sugar in the I-75 and Sheridan Street pasture; however, neither Baca nor any of the other witnesses were able to positively identify the horse with its unique freeze brand.

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.

29. Section 585.145(3), Florida Statutes provides:

    
    

    A person who forges, counterfeits, simulates or alters, or who knowingly possess, uses, presents or utters, any forged, counterfeited, altered or simulated certificate of veterinarian inspection or any other document relating to animal health or

    substitutes, represents, or tenders an official certificate of veterinarian inspection or any other document related to animal health requirements of one animal for another animal commits a felony of the third degree, punishable as provided in Section 775.082, Section 775.083, or Section 775.084.

    
    

30. The evidence shows that the Respondent faxed the certificates showing that Daisy and Sugar had been euthanized to Dr. Jeter. According to Respondent's testimony, which is credible and uncontroverted, the Respondent believed that the horses were to be shot and their bodies disposed of. There was no credible evidence introduced which showed that the Respondent had any knowledge of the horses after the date that they paid for them to be destroyed. Therefore, the Respondent has not shown to have violated those portions of the administrative complaint relating to the movement of the horses or their maintenance at an unapproved site or attempting to conceal these horses.

31. With regard to certificates of euthanasia the Respondent faxed to Dr. Jeter, the Respondent did not forge, counterfeit, simulate or alter the certificates. There is no evidence that the Respondent knew that the horses were not destroyed; and Section 585.145(3), Florida Statutes, provides that one must knowingly possess, use, present, or utter any forged counterfeit altered, or simulated certificate. Although the Respondent signed both certificates, the certificates certify not only that the animals were destroyed, but that the individual signing the certificate understands that he is not entitled to

    indemnity. It would not be appropriate for the person destroying the animals to complete the form as suggested by the Department.

32. It is noted that the business of card of Hoof and Halter were provided with both of the faxed documents. It was by the Department checking with Hoof and Halter that the Department learned Hoof and Halter had not destroyed the animals. Given the prior discourse between the Respondent and Elmore with the Department, it is unlikely that the Respondent would have faxed information to the Department which he knew to be untrue and which was so easily checked out.1

33. It is concluded that the Respondent did not knowingly misrepresent the facts regarding the horses to the Department, and therefore did not violate Section 585.145, Florida Statutes.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is,

RECOMMENDED:

That no action be taken against the Respondent.

DONE AND ENTERED this 5th day of June, 1998, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1998.

ENDNOTE

1/ It is possible the Hispanic man took the money and sold the horses; however, given the nature of the termination of the personal relationship between the Respondent and Elmore and Elmore's attachment to and involvement with the animals after they were supposedly destroyed, it is more likely that Elmore deceived the Respondent about their disposition.

COPIES FURNISHED:

William K. DeBraal, Esquire Department of Agriculture

and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Robin Karoly

537 Lawton Avenue Jacksonville, Florida 32208

Brenda Hyatt, Chief Department of Agriculture

and Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

Richard Tritschler, General Counsel Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0800

Honorable Bob Crawford, Commissioner Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 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: 97-003802

Orders for Case No: 97-003802