STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF VETERINARY ) MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1926

)

HAROLD M. MCGEE, D.V.M., )

)

Respondent. )

)

RECOMMENDED ORDER

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

APPEARANCES

For Petitioner: Ronald C. LaFace, Esquire

101 East College Avenue Post Office Box 1752 Tallahassee, Florida

For Respondent: Appeared in his own behalf

ISSUE

Whether Respondent's License to practice veterinary medicine should be revoked or suspended for alleged violations of Sections 474.31(6) & 474.31(12), Florida Statutes.

An Order was issued on December 5, 1975, consolidating this case for hearing with the case of Florida Board of Veterinary Medicine vs. Cristobal M. Gonzalez Mayo, D.V.M., Docket No. 751925, because the cases involve similar issues of law and fact.

At the hearing, Respondent was advised of his right to employ legal counsel to represent him at his own expense and he elected to represent himself. He also was advised of other rights under the Administrative Procedure Act, including the right to testify as a witness, if he so desired. Respondent indicated his understanding of these rights as explained to him by the Hearing Officer.

FINDINGS OF FACT

1. Respondent holds license no. 231 issued by the State of Florida, Department of Professional and Occupational Regulation, Board of Veterinary Medicine, which he received on March 30, 1944. The license is currently in effect (Petitioner's Exhibit l).

2. Respondent has been a veterinarian for some 29 years and practices his profession at 3520 N.W. 36th Street, Miami, Florida (Testimony of McGee).

   
   

3. Respondent employed Sergio Gutierrez, D.V.M., a veterinarian with approximately 25 years of experience, but who was not then licensed by the Florida Board of Veterinary Medicine, on December 6, 1974, for a period of approximately 3 months. At the time he was hired, Dr. Gutierrez exhibited various licenses from other jurisdictions to the Respondent and the latter gained the impression that Dr. Gutierrez held a temporary Florida license, even though he did not ask that it be shown to him. At that time, Dr. Gutierrez had submitted his license application to the Board of Veterinary Medicine, but it had not been acted upon by the Board (Testimony of Gutierrez, McGee).

   
   

4. On December 6, 1974, James Gillece, an investigator with the Department of Professional and Occupational Regulation, took a cat to the Respondent's place of business in order to investigate a complaint that an unlicensed veterinarian was employed there. Upon arrival, he informed the receptionist that the cat was sick and asked her assistance. He was referred to Dr. Gutierrez who gave the cat inoculations for rabies and distemper. Gillece thereupon paid $19.00 for the services and received a receipt. He returned on December 13, presented his identification to Dr. Gutierrez and asked him if he was licensed to practice veterinary medicine. Dr. Gutierrez informed him that, although he was licensed in 40 states, he was not so licensed in Florida. Although Respondent was not present when the cat was treated, Dr. Gutierrez testified that Respondent exercised general supervision over his activities during his employment (Testimony of Gillece, Gutierrez, McGee)

   
   

5. 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 Respondent'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 the Respondent. Without disclosing their purpose, Correa informed the Respondent's 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 Dr. Cristobal Gonzalez Mayo, in the treatment room. Mayo 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 Respondent's name to the certificate of rabies vaccination and to a form for issuance of a Dade County dog tag. Dr. Mayo signed Respondent'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 Respondent's clinic, they did not see the Respondent on the premises (Testimony of Correa, Dugas, Petitioner's Exhibit 3).

   
   

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

   treatment. Dr. Mayo followed this procedure with respect to the dog brought to the clinic by Correa and received instructions from Respondent as to the treatment that was thereafter performed. Dr. Mayo was not licensed by the Florida Board of Veterinary Medicine until, July 27, 1975. Respondent 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. Dr. Mayo 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 Dr. Mayo 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).

   
   

   CONCLUSIONS OF LAW

   
   

7. As to Count 1 Respondent is alleged to have violated Section 474,.31(6), Florida Statutes by permitting the fraudulent issuance of a health certificate. The cited statutory provision reads in pertinent part as follows:

   
   

   "474.31 Grounds for disciplinary proceedings The board, pursuant to the procedure prescribed herein, shall have the power to deny, suspend or revoke any license or to otherwise discipline an applicant or licensee who is found guilty by the board of one or more of the following:

   * * *

   (6) Fraudulently issuing or using any health certificate. "

   * * *

   
   

8. There is no provision in the applicable statutes for an offense of "permitting" the fraudulent issuance of a health certificate. It is concluded that the only time when a person other than the one who issues a certificate could be held to have violated Section 474.31(6) is if he had conspired with the one who issued the certificate or if it was fraudulently issued with his knowledge and consent. In the instant situation, Respondent testified that he had no knowledge. Dr. Mayo, had signed his (Respondent's) name to the interstate health certificate. However, he was under the impression that Dr. Mayo properly could sign such certificates in view of his belief that even secretaries can sign distemper and rabies certificates. Respondent may have been derelict in not ascertaining the authority of others to sign such certificates, but it cannot be said that, in respect to the certificate under consideration, his negligent omission to insure that no one else signed his name to such a document constitutes a design to perpetrate a fraud. Therefore, it is, considered that' Respondent has not violated Section 474.31(6).

   
   

9. As to Count 2 - This count alleges that Respondent, in his capacity as a veterinarian, engaged in "unprofessional or unethical conduct" as defined by Section 474.031(13), Florida Statutes, to include "...sharing office space with any person illegally practicing veterinary medicine, employing either directly or indirectly any unlicensed person to practice veterinary medicine or render any veterinary services except as herein provided . . . ." At the hearing, Petitioner amended its complaint to delete the words "sharing office space with any person illegally practicing veterinary medicine."

10. In support of the amended, allegation, the complaint alleges that Respondent employed an unlicensed veterinarian, Dr. Gutierrez, and permitted him to examine, treat, and prescribe medication for animals without being under the direct supervision of the Respondent. It also alleges that Respondent employed Dr. Mayo, an unlicensed veterinarian, and permitted him to examine and to prescribe medication to the Doberman Pinscher owned by Chery Lynn Correa without such treatment being under the Respondent's direct supervision.

    
    

11. The, evidence established that Dr. Mayo's actions with respect to the Doberman Pinscher were taken only after obtaining a diagnosis and method of treatment from Respondent. Accordingly, this aspect of the allegation is without merit.

    
    

12. As to Dr. Gutierrez's actions, the evidence shows that he administered medication to a cat brought to him by Petitioner's investigator on December 6, 1974, in the form of rabies and distemper shots. Although Dr. Gutierrez testified that Respondent exercised supervision over his activities generally, Respondent conceded at the hearing that he thought Dr. Gutierrez could practice veterinary medicine in every respect because he believed he held a temporary license to do so. He also acknowledged that he was not present when the cat was treated by Dr. Gutierrez.

    
    

13. Section 474.44(6) provides an exemption from the application of the veterinary law in stating that Chapter 474 shall not be construed as applying to prevent any veterinary aide, nurse, laboratory technician, intern, or other employee of a licensed doctor of veterinary medicine from administering medication or rendering auxiliary or supporting assistance under the responsible supervision of such licensed practitioner. This exemption does not require that every action taken by such an employee be under the immediate or direct supervision of a licensee, but it does require that such activities be under his "responsible supervision." Although Dr. Gutierrez testified that he usually acted under the general supervision of Respondent, Respondent's testimony is to the contrary. That Dr. Gutierrez was engaged in the "practice of veterinary medicine" is evidenced by the fact that he prescribed and administered medication for the prevention of disease of animals as defined in Section 474.031(11)(a). Subsection 474.031(12) defines "responsible supervision" as the "control, direction and regulation by a licensed doctor of veterinary medicine of the duties involving veterinary services which he delegates to his unlicensed personnel."

    
    

14. Although Respondent should have assured himself that Dr. Gutierrez indeed possessed authority to practice veterinary medicine prior to permitting him to do so, the fact remains that Dr. Gutierrez has been a licensed veterinarian in other jurisdictions for 25 years and was undoubtedly professionally capable of performing the procedure of administering inoculations, which is the only instance of professional practice by him specifically alleged or established by the evidence.

15 Under the totality of the circumstances, and in view of the foregoing discussion, it is concluded that Respondent's negligence in this regard did not rise to the level of "unprofessional or unethical conduct" for which his license should be placed in jeopardy' or for which he should otherwise be disciplined by the Board. It goes without saying however, that Respondent should exercise more vigilance in the future with regard to the qualifications and licenses of his employees. Further, it reasonably can be expected that his exposure to these proceedings will cause him to be acutely aware of statutory and regulatory requirements in this respect.

RECOMMENDATION

That the charges against Harold M. McGee, D.V.M., be dismissed.

DONE and ENTERED this 2nd 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

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1976.

COPIES FURNISHED:

Ronald C. LaFace, Esquire 101, E. College Avenue

P.O. Box 1752 Tallahassee, Florida

Harold M. McGee, D.V.Mp. Miami Veterinary Clinic 3520 Northwest 36th Street Miami, Florida 33142

Docket for Case No: 75-001926

Orders for Case No: 75-001926