STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, on January 6, 2010, by video teleconference between sites in West Palm Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Elizabeth F. Duffy

Assistant General Counsel Jason Maine

Qualified Representative Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Douglas Lyday, D.V.M., pro se

964 Southwest 12th Street Boca Raton, Florida 33486

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, Douglas Lyday, D.V.M., committed the violation alleged in an Administrative Complaint, DPBR Case Number 2008-055022, issued by Petitioner Department of Business and Professional Regulation, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On February 3, 2009, an Administrative Complaint was filed with the Department of Business and Professional Regulation in DPBR Case No. 2008-055022, alleging that Respondent was in violation of Section 474.214(1)(h), Florida Statutes. On or about March 13, 2008, having been provided a copy of the Administrative Complaint, Respondent filed an Election of Rights Form requesting a formal hearing to contest the allegations of fact contained in the Administrative Complaint.

The Administrative Complaint and Respondent's request for hearing were filed with the Division of Administrative Hearings on October 13, 2009, with a request that the matter be assigned to an administrative law judge. The request was designated DOAH Case No. 09-5613PL and was assigned to the undersigned.

The final hearing of this matter was initially scheduled for December 16, 2009. The final hearing was subsequently continued, at the request of Petitioner, until January 6, 2010.

During the final hearing, Petitioner presented the testimony of John Chris Lee and Debra Troupe. Petitioner's Exhibits numbered 1 through 5 were admitted. Petitioner’s Exhibit 6, which was rejected, was proferred. Respondent testified in his own behalf and had one exhibit admitted.

A one-volume Transcript of the final hearing was filed with the Division of Administrative Hearings on January 11, 2010. By agreement of the parties, proposed recommended orders were therefore to be filed on or before January 21, 2010. A Notice of Filing Transcript was entered on January 12, 2010, informing the parties of the filing of the Transcript and due date for proposed recommended orders.

Petitioner filed Petitioner’s Proposed Recommended Order on January 21, 2010. No post-hearing pleading has been filed by Respondent. Petitioner’s Proposed Recommended Order has been fully considered in entering this Recommended Order.

All references to Florida Statutes and the Florida Administrative Code in this Recommended Order are to the 2009 version unless otherwise indicated.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the state agency charged with the duty to regulate the practice of

      veterinary medicine in Florida pursuant to Chapters 455 and 474, Florida Statutes.

   2. At the times material to this proceeding, Douglas S. Lyday, is and was a licensed Florida veterinarian, having been issued license number VM 6396.

   3. At the times material to this proceeding, Dr. Lyday’s address of record has been 964 Southwest 12th Street, Boca Raton, Florida 33486.

2. Dr. Lyday’s Treatment Through the Professionals Resource Network.

   1. In July of 2006, a Dual Diagnosis Advocacy Contract (hereinafter referred to as the “July 2006 PRN Contract”), was entered into between Dr. Lyday and the Professionals Resource Network (hereinafter referred to as the “PRN”), whereby

      Dr. Lyday agreed to, among other things, undergo treatment for alcohol dependency and psychiatric issues.

   2. Consistent with the July 2006 PRN Contract, Dr. Lyday received in-patient treatment until July 26, 2006, when he was scheduled to begin out-patient treatment.

   3. On October 30, 2006, due to a failed urinalysis test, rather than entering out-patient treatment, the July 2006 PRN Contract was voided.

   4. On March 15, 2007, a second contract, titled a Dual Diagnosis Monitoring Contract, was entered into between

      Dr. Lyday and the PRN (hereinafter referred to as the “March 2007 PRN Contract”).

   5. Inconsistent with the terms of the March 2007 PRN Contract, Dr. Lyday failed a second urinalysis test on or about June 10, 2008. He failed additional tests in June and July 2008, and failed to report to PRN by telephone on a number of occasions.

   6. In August 2008 Dr. Lyday again entered inpatient treatment and, as a consequence, the March 2007 PRN Contract was voided.

   7. Subsequently, the PRN was informed that Dr. Lyday was no longer in in-patient treatment. The PRN therefore sent a letter by certified mail to Dr. Lyday’s address of record in August 2008. That letter requested that Dr. Lyday contact PRN in order to undergo an evaluation, followed by a third PRN contract. The letter also indicated that, if Dr. Lyday failed to comply, the matter would be referred to the Department.

      Dr. Lyday never received the August 2008 letter, despite the fact that it had been sent to his address of record.

   8. Having failed to contact the PRN as directed, the matter was referred to the Department. On February 3, 2009, the instant action was instituted.

3. Ultimate Findings.

1. The PRN and the Department have concluded that Dr. Lyday is “unable to practice veterinary medicine with reasonable skill or safety to patients by reasons of” “his alcohol dependency issues and his failure to comply with the terms of the treatment program offered by the Professionals Resource Network.”

2. In support of the Department’s position, the following testimony, which is the only non-hearsay evidence in support of the Department’s position, was offered by Debra Troupe,

   Dr. Lyday’s PRN case manager:

   
   

   Q. Do you believe the respondent is fit to practice veterinary medicine with reasonable skill and safety at this point in time?

   
   

   A. The last contact PRN had with him, we did not believe he was able to practice [with] reasonable skill and safety. Now, we have had no contact with Dr. Lyday since

   mid-September 2008. In September, we asked the Department to do an emergency suspension.

   
   

   Lines 18-25, page 29, Transcript.

   
   

3. Based upon Ms. Troupe’s credible testimony, the Department has proved that Dr. Lyday, as of September 2008, was unable to practice veterinary medicine with reasonable skill or safety to patients by reason of his alcohol dependency issues. The Department did not prove, however, whether Dr. Lyday

   continues as of the date of this de novo proceeding to be unable to practice veterinary medicine due to alcohol dependency.

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

4. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

   1. The Burden and Standard of Proof.

      
      

5. In the Administrative Complaint, the Department seeks to impose penalties against Dr. Lyday, including suspension or revocation of his license and/or the imposition of an administrative fine. The Department, therefore, has the burden of proving the allegations of the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and Nair v. Department of Business & Professional Regulation, 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

6. In Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), the court defined "clear and convincing evidence" as follows:

   [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 evidence 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 the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.

   2d 797, 800 (Fla. 4th DCA 1983).

   
   

   1. The Charges Against Dr. Lyday.

   
   

7. Section 474.214(2), Florida Statutes, authorizes the Board of Veterinary Medicine (hereinafter referred to as the “Board”), to impose penalties ranging from the issuance of a letter of concern to revocation of a veterinarian’s license to practice veterinary medicine in Florida if a licensee commits any of the acts specified in Section 474.214(1), Florida Statutes.

8. In the Administrative Complaint issued in this case, the Department has alleged that Dr. Lyday committed the offense specified in Subsection 474.214(1)(h), Florida Statutes, which provides, in pertinent part:

   Being unable to practice veterinary medicine with reasonable skill or safety to patients by reason of illness, drunkenness, use of drugs, narcotics, chemicals, or any other material or substance or as a result of any mental or physical condition. . . .

   Subsection 474.214(1)(h), Florida Statutes, goes on to authorize the Department to compel a veterinarian to submit to a mental or physical examination if probable cause exists to believe the veterinarian is impaired. The Department did not exercise this right with Dr. Lyday.

9. In order to be found in violation of Subsection 474.214(1)(h), Florida Statutes, the Department must prove that a veterinarian is currently unable to safely practice veterinary medicine, in this case, due to “drunkenness.” Proving that a veterinarian was unable to safely practice at some point in the past, without more, is not sufficient to find a veterinarian to currently be unable to safely practice.

10. What the Department proved in this case is: (1) as of September 2008 Dr. Lyday was not able to safely practice veterinary medicine due to alcohol dependency; and (2) the PRN has had no contact with Dr. Lyday since September 2008. Consequently, the Department did not offer evidence to clearly and convincingly prove Dr. Lyday’s ability to practice veterinary medicine between September 2008 and the date of the final hearing or, more importantly, as of January 6, 2010, the date the final hearing was held, is impaired.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Veterinary Medicine

enter a final order dismissing the Administrative Complaint issued against Douglas Lyday, D.V.M.

DONE AND ENTERED this 11th day of February, 2010, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2010.

COPIES FURNISHED:

Elizabeth F. Duffy, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Douglas S. Lyday, D.V.M. 964 Southwest 12th Street Boca Raton, Florida 33486

Juanita Chastain, Executive Director Board of Veterinary Medicine Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Reginald Dixon, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 09-005613PL

Orders for Case No: 09-005613PL