STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF VETERINARY ) MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 79-182

)

JOSEPH R. PROFFITT )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on February 20 and 21, 1980, and continuing on April 10, 1980, in the Monroe County Health Department, Public Service Building, Key West, Florida.

APPEARANCES

For Petitioner: Bert J. Harris, III, Esquire

Boyd, Harris and Smith, P.A.

210 Barnett Bank Building Post Office Box 10369 Tallahassee, Florida 32302

For Respondent: Joseph Galletti, Esquire

415 Eaton Street

Key West, Florida 33040

and on Roger McClelland, Esquire April 10, 1980 420 Fleming Street

Key West, Florida 33040 INTRODUCTION

By an amended administrative complaint, Petitioner seeks to revoke, suspend or otherwise discipline the Respondent's license to practice veterinary medicine. The complaint, as amended, charges Respondent with six counts containing allegations of failure to keep his animal clinic premises and equipment in a clean and sanitary condition, willful and/or repeated violation of the rules of the Petitioner, professional incompetence, gross malpractice, unprofessional conduct, and operating his clinic without registration and permit, all in violation of Chapter 474, Florida Statutes.

The respondent submitted a motion to strike the testimony of John A. Miller, D.V.M., after the close of the hearing. The undersigned has considered said motion, as well as the Petitioner's response to the motion. Finding grounds for the motion to be without merit, the motion to strike is denied.

At the conclusion of the hearing, the parties submitted proposed recommended orders. To the extent that the proposed findings of fact are not incorporated in this recommended order, they are rejected as being either not supported by competent, substantial evidence adduced at the hearing, irrelevant and/or immaterial to the charges in the amended complaint or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Respondent Joseph R. Proffitt is a veterinarian licensed by the Petitioner. Except for a period of time between November of 1967 and March of 1970 when Respondent's license was revoked, suspended or on a probationary status by the Board of Veterinary Medicine, Respondent owned and operated The Key West Animal Clinic located at 509 Margaret Street in Key West, Florida between 1965 and December of 1978. Since about 1972, Respondent has also been the track veterinarian for the West Kennel Club.

   
   

2. The Respondent's Animal Clinic was located in an older residential area of Key West. Neighbors of the clinic were bothered by noises, odors, flies and other insects emanating from the clinic. During portions of 1977 and 1978, Respondent worked, slept and generally resided at the clinic at a time when it was not equipped with toilet or bathing facilities. Respondent suffers from diabetes and during the latter part of 1977 he became quite ill with diabetic gangrene in one of his legs. He was ultimately hospitalized in December of 1977 or January of 1978 for several weeks for amputation of his leg.

   
   

3. When Respondent was quite ill, Lincoln Taylor began helping him care for the animals at the clinic. He observed unclean and unkempt conditions throughout the clinic, as well as a bad odor. Often, there was not enough money available for Respondent to buy food for the animals, and food was provided by donation. Respondent was in terrible pain during this period of time, and could not properly care for the animals.

   
   

4. The Petitioner and the Respondent produced the testimony of numerous clients of Respondent who had had their animals treated by Respondent for many years. Petitioner's witnesses noted the messy, unsanitary and smelly nature of the clinic. Respondent's witnesses did not find the Respondent's premises to be any more odorous than other animal clinics and felt Respondent to be a competent and compassionate veterinarian. Respondent's witnesses would take their animals to him today if he still operated a clinic.

   
   

5. While Respondent was hospitalized during January of 1978, Arnold and Sheila Farese began working with Lincoln Taylor to clean and maintain the animal clinic. When they first entered the clinic, they observed animals running free in the waiting room, caged animals in the treatment room, flies, maggots, animals in dirty cages without food or water, animals with little hair and skin problems, filthy newspapers strewn about the floors, and a horrendous smell.

   The Fareses and Mr. Taylor worked at the clinic on a daily basis to clean it up and feed and water the animals. At that time, there were approximately fifty dogs and forty cats in the clinic and on the premises. Three five-week old puppies were found to have considerable hair loss due to sarcoptic mange.

   Sarcoptic mange is a condition which is easily diagnosed. If a veterinarian

   were aware of its presence in his clinic or kennel, he would be negligent if he failed to treat the condition.

   
   

6. Arnold Farese entered into a business arrangement with Respondent and worked at the animal clinic with him from January through June of 1978. While there, he observed that the autoclave which Respondent used to sterilize surgical equipment had a broken seal. He saw Respondent perform surgery on animals with unsterilized tools and without first washing his hands. He observed Respondent become irritable with the animals on occasion, at which times he did not treat or handle them in a gentle, professional manner.

   
   

7. In September of 1978, an investigator for the Department of Professional Regulation inspected Respondent's animal clinic. He observed newspapers and trash throughout the clinic and premises, uncontained garbage, animal waste on the floors of the clinic, a leaky roof and wet hallways and shelves, a rusty and dirty surgery table and surgical equipment, filthy cages with animals in them, dead animals which were not in containers placed in a refrigerator which also contained bread and peanut butter, and an unbearable smell.

   
   

8. In October of 1978, a sanitation inspector for the City of Key West inspected Respondent's clinic as a result of complaints from neighbors of the clinic. He found fecal matter on the floors of the clinic, a bad odor, a white enamel table with rust on it and an overgrown yard.

   
   

9. Pursuant to a search warrant issued on December 13, 1978, Lieutenant Richard Conrady with the Monroe County Sheriff's Department went to the Respondent's animal clinic for the purpose of seizing the animals therein and removing them to the Monroe County Animal Shelter. At the time Respondent appeared to be coherent and responsive to questions asked to him. Conrady smelled a strong odor of "dog droppings" on the floors and observed a filthy and unkempt office. Seventeen cats and twenty dogs were seized. The cats belonged to Respondent's sister. The animals were active and appeared to be in good health. The supervisor and the assistant supervisor of the Monroe County Animal Shelter were also present during the December 13th seizure of the animals. They did not smell an atrocious odor, and observed the animals to be active and healthy, with the exception of skin problems on some of the dogs. The animals did not appear to be hungry or thirsty, and their cages were clean. The dogs were taken to another veterinarian, Dr. William W. Deans, for examination. With the exception of one older dog, Dr. Deans found all the dogs to be in good health with no signs of mistreatment or abuse. He did find that many of the dogs had skin problems. He felt that these skin problems were a result of a flea bite allergy and could be brought on by inbreeding. Skin problems and scabies are more prevalent in Key West than in other areas of Florida, but it is below the minimum standard of care to have uncontrolled fleas or scabies within a veterinary clinic or kennel.

   
   

10. On December 22, 1978, an Order was entered by the County Court of Monroe County finding, inter alia, that Respondent was unable to provide adequately for the animals taken from him and was unfit to have custody of said animals. The cats and three of the dogs were released to Respondent's sister, Respondent was permitted to retain possession of one of his dogs and the remaining animals were released to either their owners or sold at a public auction. Respondent was enjoined from retaining or possessing at one time more than the one dog granted to him. It was further ordered that no other animals should be quartered at the Key West Animal Clinic until further order of the Court.

11. The Respondent has complied with the Court's order discussed above.

    He has continued to be the track veterinarian for the Key West Kennel Club. The general manager of the Club described Respondent as being extremely attentive to his duties at the race track, showing a great interest in his job there and exhibiting more compassion for the racing greyhound than most other veterinarians he has observed at race tracks.

    
    

12. Since the filing of the complaint in this cause, Respondent has had his other leg amputated due to diabetic gangrene. Two physicians were of the opinion that Respondent's diabetes is presently under control with daily medication and that Respondent is physically capable of performing duties as a veterinarian.

    
    

    CONCLUSIONS OF LAW

    
    

13. The amended administrative complaint charges Respondent with various violations of Section 474.31, Florida Statutes (1977)(presently codified as S474.214, Fla. Stats.). Specifically, the Respondent is charged with failure to keep equipment and premises of the business establishment in a clean and sanitary condition (S474.31(8), Florida Statutes, and Rules 21X-8.03 and 21X- 8.04, Florida Administrative Code); willful or repeated violation of the statutes and/or rules of the Petitioner (S474.31(l)); professional incompetency (S474.31(23)); gross ,malpractice (S474.31(ll)); unprofessional conduct (S474.31(12)); and operating the Key West Animal Clinic without complying with Florida Statutes (1977), 494.49 pertaining to the registration and permitting of premises wherein veterinary medicine is practiced. In support of such charges, the Respondent has set forth numerous factual allegations occurring during the years 1977 and 1978. Some of these factual allegations were supported by competent, substantial evidence, some were not so supported, and others were not the subject of oral or documentary evidence adduced at the hearing.

    
    

14. The evidence adduced at the hearing is clear and beyond doubt that during a portion of 1977 and in 1978, at a time when he was responsible for some thirty-seven to sixty dogs and cats, the Respondent failed to maintain his animal clinic and his equipment in a clean and sanitary condition. There can be no doubt that the equipment and the premises fell far below the minimum standards for an animal clinic set forth in the Board's Rule 21X-8.03, Florida Administrative Code. The maintenance and operation of the animal clinic in such deplorable conditions constitutes a violation of Section 474.31(8), Florida Statutes (1977).

    
    

15. The undersigned further concludes that the maintenance and operation of the clinic in the unsanitary and unclean conditions as described in the findings of fact, as well as Respondent's performance of surgical procedures with unsterilized surgical tools and unwashed hands, constitutes professional incompetency, unprofessional conduct and gross malpractice within the meaning and intent of Section 474.31(23), (12), and (11), Florida Statutes (1977). There was insufficient evidence adduced at the hearing to determine whether the

    Respondent's animal clinic was or was not registered or permitted as required by Section 474.49, Florida Statutes (1977).

    
    

16. For violations of Section 474.31, the petitioner is authorized to suspend, revoke or otherwise discipline a licensee. The ranges of authorized disciplinary action are set forth in Section 474.35, Florida Statutes (1977), presently S474.214(2), Florida Statutes (1979). When determining a proper form

    of discipline to be imposed, the Petitioner should consider the gravity of the acts which authorize disciplinary action, any extenuating circumstances involved, the possibilities of such conduct occurring in the future and the professional and public interest to be served in the form of discipline imposed.

    
    

17. Here, there is no doubt that Respondent's conduct in the maintenance and operation of his animal clinic during the time involved was grave indeed and warrants the most severe form of disciplinary action by the Petitioner.

However, the fact that Respondent was extremely ill during the majority of 1977 and 1978 should be taken into consideration. In the opinions of two physicians, Respondent is presently physically capable of performing the duties of a veterinarian. The fact that he has been and is presently practicing as the track veterinarian at the Key West Kennel Club to the satisfaction of its manager should also be considered by the Petitioner.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that:

1. Respondent be found guilty of violating Sections 474.31(1),(8),(11),(12) and (23), Florida Statutes (1977);

   
   

2. Respondent's, license to practice veterinary medicine be revoked; and

   
   

3. the enforcement of the revocation of Respondent's license be suspended for a period of two years, during which time Respondent is to be placed on probation with the following conditions:

   
   

   1. that the scope of Respondent's practice be limited so as to enable him to continue in his present employment capacity or a similar capacity wherein he does not have the responsibility for lodging, maintaining and caring for large numbers of animals; and (b) that quarterly reports signed by a physician be submitted by Respondent to the Petitioner attesting to the fact that Respondent's physical condition remains stable and enables him to practice veterinary medicine in a competent and professional manner.

Respectfully submitted and entered this 22nd day of July, 1980, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1980.

COPIES FURNISHED:

Bert Harris, II, Esquire Boyd, Harris and Smith, P.A.

210 Barnett Bank Building Post Office Box 10369 Tallahassee, Florida 32302

Joseph Galletti, Esquire

415 Eaton Street

Key West, Florida 33040

Roger McClelland, Esquire

420 Fleming Street

Key West, Florida 33040

Nancy K. Wittenberg, Secretary Department of Professional

Regulation

2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 79-000182

Orders for Case No: 79-000182