STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF VETERINARY ) MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1925

) CRISTOBAL M. GONAZALEZ MAYO, ) D.V.M., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in the above-captioned case, after due notice to the parties, at Miami, Florida, on January 14, 1976, before the undersigned hearing officer.

APPEARANCES

For Petitioner: Ronald C. LaFace, Esquire

101 East College Avenue Post Office Box 1752 Tallahassee, Florida

For Respondent: Respondent appeared in his own behalf.

ISSUE

Whether Respondent's license to practice veterinary medicine should be revoked or suspended for alleged violation 474.14(1), 474.15, and 474.31 (1),

1. and (6), Florida Statutes.

   
   

   This case was consolidated by order of the Hearing Officer issued December 5, 1975, with Florida Board of Veterinary Medicine vs. Harold M. McGee, D.V.M., Docket No. 751926 because the cases involve similar issues of law and fact.

   
   

   At the hearing, Respondent was advised of his right to employ legal counsel at his own expense to represent him. He elected to appear in his own behalf.

   He was then advised of his rights under the Administrative Procedure Act, including the right to testify in his own behalf, if he so desired. He indicated that he understood these rights.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent was licensed by the Board of Veterinary Medicine on July 27, 1975 and was not licensed on March 4, 1975.

      
      

   2. On March 4, 1975 Respondent was employed by Dr. Harold M. McGee, D.V.M., at his place of business located at 3520 Northwest 36th Street, Miami, Florida.

   3. On March 4, 1975, Chery Lynn Correa, along with Dr. Calvin Dugas, D.V.M., both employees of the Knowles Animal Hospital in Miami took a Doberman Pinscher to Dr. McGee's clinic. Their visit was prompted by a request of their employer, Dr. Knowles, who had asked them to check a complaint that there were unlicensed veterinarians working for Dr. McGee. Without disclosing their purpose, Correa informed the receptionist that she had brought the dog to get rabies and distemper shots and to have some bumps on its neck checked. She and Dr. Dugas were referred to Respondent in the treatment room. He checked the dog and told them that the bumps were due to an improper diet. He then administered inoculations for rabies and distemper and checked the animal for worms. He also looked at the dog's throat and diagnosed tonsilitis for which he prescribed tetracycline pills. He also procured liquid shampoo called Tergex for a skin problem and gave instructions to bathe the dog once a week. He gave two more injections of antibiotics and cortisone. The receptionist signed Dr. McGee's name to the certificate of rabies vaccination and to a form for issuance of a Dade County dog tag. Respondent signed Dr. McGee's name to a Canine Interstate Health Certificate reflecting the administration of the inoculations. Correa paid the bill of $43.00 and then she and Dr. Dugas departed. During the time they were at the clinic, they did not see Dr. McGee on the premises (Testimony of Correa, Dugas, Petitioner's Exhibit 3).

      
      

   4. However, Dr. McGee was in the back office at the time in question suffering from a headache and had asked his receptionist to have Respondent give routine shots to animals during the day and only call him if a diagnosis was necessary. In view of Respondent's lack of a Florida license, Dr. McGee did not permit him to diagnose, treat, or incise skin of an animal without supervision. In accordance with these directions, Respondent always checked with Dr. McGee on a diagnosis and the latter would then prescribe the proper treatment.

      Respondent followed this procedure with respect to the dog brought to the clinic by Correa and received instructions from Dr. McGee as to the treatment that was thereafter performed. Respondent was not licensed by the Florida Board of Veterinary Medicine until July 27, 1975. Dr. McGee professed the belief at the hearing that since secretaries could sign distemper and rabies certificates, he felt Dr. Mayo could sign an interstate health certificate although he normally signed such documents himself. Respondent testified that he had worked for the local humane society for over nine years and, during that period, had signed his own name to interstate health certificates by authorization of the board of directors of the society. The receptionist took the interstate health certificate in question to Respondent to sign because he had administered the shots to the animal. She was unaware of the fact that he was unlicensed (Testimony of McGee, Mayo, Uriquize, Petitioner's Exhibit 2).

      
      

   5. Respondent was head of the Veterinary Services of the Cuban rebel army at the time he came to the United States. He has been a veterinarian since 1948. He is active in the Cuban community of Miami and enjoys a good reputation for truth and veracity in the community (Testimony of Mayo, Reboso).

      
      

      CONCLUSIONS OF LAW

      
      

   6. In its complaint, Petitioner seeks to revoke, annul, withdraw, or suspend Respondent's license to practice veterinary medicine for five alleged violations of Chapter 474, Florida Statutes, as follow:

      
      

      COUNT I. Violation of Section 474.14(1), F.S., in that the licensee prior to his being licensed by the Board, practiced veterinary medicine in this State, as defined in Chapter 474, Florida Statutes.

      COUNT II. Violation of Section 474.15, F.S. in that the licensee, prior to his being licensed by the Board, practiced veterinary medicine without first obtaining a temporary permit to practice from the Board as prescribed in Section 474.15, F.S.

      
      

      COUNT III. Violation of Section 474.31(1), F.S., in that the licensee, prior to his being licensed by the Board, violated the provisions of Chapter 474, F.S. and the rules of the Board relating to the practice of veterinary medicine by unlicensed veterinarians.

      
      

      COUNT IV. Violation of Section 474.31(4), F.S. in that the licensee, prior to being licensed by the Board, was guilty of fraud, deception, misrepresentation, dishonest or illegal practices in or connected with the practice of veterinary medicine by failing to disclose his unlicensed status to clients of the Miami Veterinary Hospital.

      
      

      COUNT V. Violation of Section 474.31(6), F.S. in that the licensee, prior to his being licensed by the Board, fraudulently issued a Canine Interstate Health Certificate and affixed or caused to be affixed thereto the signature of a licensed veterinarian.

      
      

   7. At the hearing, Petitioner withdrew Count II.

      
      

   8. As to Count I, 474.14(1) provides that it shall be unlawful for a person to practice veterinary medicine in Florida unless he has obtained a license from the Florida Board of Veterinary Medicine. The evidence shows that Respondent took certain actions with respect to the dog owned by Chery Lynn Correa on March 4, 1975, but that he did so under the "responsible supervision" of his employer, Dr. McGee, as that term is defined in 474.031(12) and which is therefore exempted under 474.44(6) which permits an employee of a licensed veterinarian to administer medication and render auxiliary or supporting assistance under the responsible supervision of such licensed practitioner. Since the evidence establishes that, in this instance, Respondent sought and obtained the diagnosis and treatment plan from Dr. McGee, he did not practice veterinary medicine as contemplated under the statute. Further, even if there had been a violation of 474.14(1), the only possible ground for disciplinary action would lie under 474.31(1) for "Willful or repeated violation of any provisions of this chapter, or any of the rules of the board;" however, this ground was not alleged in Petitioner's complaint. Assuming there had been such a violation and a ground for disciplinary proceedings had been alleged, this count would still fail because Petitioner has no jurisdiction to impose disciplinary action upon a licensee for acts that were committed prior to the issuance of his license. Petitioner's only recourse in such a situation would have been to initiate any judicial proceedings deemed appropriate, of a criminal or civil nature, as authorized by Chapter 474.

      
      

   9. As to Count III. This Count which alleges a violation of 474.31(1) is vague and indefinite in that it does not state the particular provisions of Chapter 474 or the rules of the Board relating to the practice of Veterinary Medicine that Respondent is alleged to have violated. In any event, its disposition comes under the same reasoning as that recited above as to the Board's jurisdiction to take disciplinary action against a licensee for actions committed while he was in an unlicensed status.

      
      

   10. As to Count IV. This Count alleges a violation of 475.34(4) in that Respondent was guilty of fraud, deception, misrepresentation, dishonest or

       illegal practices by failing to disclose his unlicensed status to clients of the Miami Veterinary Hospital. In view of the fact that the proof establishes there was no need for him to disclose his unlicensed status in view of the supervision exercised over him by Dr. McGee in the one instance alleged, this Count is without merit. Additionally, it falls for the same jurisdictional reason as heretofore stated as to Counts I and III.

       
       

   11. As to Count V. It is alleged that Respondent violated 474.31(6) by fraudulently issuing a canine interstate health certificate and affixing or causing to be affixed thereto the signature of a licensed veterinarian. Respondent admitted at the hearing that he signed Dr. McGee's name to the interstate health certificate in question under the erroneous assumption that he could do so because he had been authorized to sign such certificates at the Dade County Humane Society where he had been employed for a number of years.

Although no proof was adduced that a licensed veterinarian is required to personally sign such documents, even assuming arguendo that Respondent could be held to have fraudulently is sued such a certificate by falsely signing the name of a licensed veterinarian thereto, and without reference to the fact that the certificate otherwise was proper in that the matter certified had been accomplished, this count also must fall under the same reasoning concerning the actions of licensee which took place prior to his being issued a license.

RECOMMENDATION

That the charges against Cristobal M. Gonzalez Mayo, D.V.M., be dismissed. DONE and ENTERED day of February, 1976 in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings The Carlton Building

Room 530

Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Ronald C. LaFace, Esquire

101 East College Avenue

P.O. Box 1752 Tallahassee, Florida

Dr. Cristobal M. Gonzalez Mayo 971-A Southwest 8th Street Miami, Florida 33130

Docket for Case No: 75-001925

Orders for Case No: 75-001925