vs. ) CASE NO. 81-038
Respondents. )
Pursuant to notice, hearing was held in Ft. Lauderdale, Florida on April 16 and 17, 1981, before the Division of Administrative Hearings and its duly designated Hearing Officer, R. T. Carpenter. The parties were represented by:
For Petitioners: Larry V. Bishins, Esquire
Ft. Lauderdale, Florida 33308
William F. Casler, Esquire 6795 Gulf Boulevard
St. Petersburg Beach, Florida
Christopher Rolle, Esquire Assistant Attorney General Department of Legal Affairs
This matter arose on the denial of Petitioner's application for a license to practice veterinary medicine on the grounds that the Petitioner violated Sections 474.213(1)(a), 474.213(1)(b), and 474.214(1)(f), Florida Statutes (1979). These provisions generally prohibit the practice of veterinary medicine by unlicensed persons. Petitioner denies having violated these provisions and contends they are not applicable to persons seeking licensure. Petitioner further argues that she is entitled to her license by default, having completed the licensing requirements of Chapter 474, Florida Statutes, and because Respondent, Board of Veterinary Medicine (the Board), failed to act on her request for hearing within the time provided by Chapter 120, Florida Statutes.
In 1978, Wendy Weil obtained a Doctor of Veterinary Medicine degree, from the University of Bologna (Italy) , a school approved by the Board. She filed an application for licensure and paid the prescribed fee in January, 1979. She was issued a temporary license by the Board in May, 1979, pending completion of her examination which she took in August, 1979. She was advised in September, 1979, that she had failed a portion of the examination and that her temporary license had been revoked.
Petitioner retook this portion of the examination in August, 1980 and was informed that she had passed in September, 1980. At the October, 1980 meeting of the Board, a decision was reached to deny Petitioner's application for licensure, and an order to this effect was issued October 16, 1980.
The Board reconsidered its decision after discovering that the original investigative report contained forged affidavits unfavorable to Petitioner. The Board ordered a second investigation which was conducted in January, 1981. The report of the second investigation was presented to the Board which affirmed its earlier denial of Petitioner's application.
Wendy Weil requested an administrative hearing on the Board's original denial under Section 120.57(1)(b), Florida Statutes, by petition dated November 6, 1980. The request for hearing was forwarded by Respondent to the Division of Administrative Hearings by letter dated January 6, 1981.
Petitioner has been employed continuously at the Oakland Animal Hospital, Ft. Lauderdale, since January, 1979, except for a brief period around March, 1980. She initially served as a veterinary technician until receiving the temporary veterinary license in May, 1979. She thereafter performed veterinarian duties until October, 1979, when her temporary license was revoked and she reverted to veterinary technician status.
Petitioner presented the expert testimony of six licensed veterinarians, including her employer, Dr. R. A. Johnson, owner of the Oakland Animal Hospital. This evidence established that unlicensed persons, usually referred to as veterinary technicians, are permitted to conduct a variety of medical functions under the supervision of licensed veterinarians. Such supervision does not necessitate the physical presence of the licensed veterinarian during performance of these tasks, but does require that he be immediately available.
The tasks assigned veterinary technicians depend largely on individual skills. As a result of her training, Petitioner is authorized by her employer to perform any procedure which does not involve the actual practice of veterinary medicine, i.e., diagnosis, prognosis, prescribing treatment and performing surgery.
While Petitioner held her temporary license she was permitted to practice veterinary medicine with the restriction that such practice be under the responsible supervision of a licensed veterinarian. Her employer, Dr. R. A. Johnson, provided this supervision.
Petitioner sought the advice of Board members in October, 1979, regarding use of the title Doctor and limitations on her employment as a veterinary technician. As a result of her inquiry, Petitioner concluded that she could not properly use the title Doctor and thereafter discouraged such use
by hospital personnel and clients. However, the title continued to be used on occasion in paging her within the clinic and on hospital forms.
Petitioner's use of the title Doctor is associated with her degree in veterinary medicine and does not depend on grant of a license to practice. However, the use of the title Doctor in any context associated with her work at the Oakland Animal Hospital was misleading to the public and to clients of the animal hospital after her temporary license was revoked in October, 1979.
Petitioner is identified in the yellow pages of the 1980 Ft. Lauderdale telephone directory as a Doctor of Veterinary Medicine associated with the Oakland Animal Hospital. This ad was placed by Petitioner's employer without her knowledge or approval. Similarly, stationery and business cards which identified Petitioner as a Doctor of Veterinary Medicine associated with the Oakland Animal Hospital were prepared and distributed without her approval.
Some twenty coworkers and hospital clients called as witnesses by Petitioner attested to her efforts to accurately represent her status to the public. However, Respondent's witnesses Sharkey, Vilchez, Wright and Miller were clients of the hospital after October, 1979, and believed that Petitioner was a licensed veterinarian through their contacts with her.
Witnesses Sharkey and Vilchez brought their pets to the Oakland Animal Hospital in March, 1980. Petitioner told Sharkey she was an intern, which Sharkey believed meant that she was a veterinarian. She did not tell Vilchez that she was or was not a licensed veterinarian, but Vilchez reasonably assumed so because Weil examined her dog, told her it had stones and that surgery would be required. Neither client saw anyone other than Petitioner except administrative personnel and technicians. However, Dr. Johnson subsequently called Sharkey at home to discuss her pet's condition.
Witness Miller's dog was examined by Petitioner in April, 1980. Following an examination which included the taking of blood and fecal samples and the insertion of a swab in the animal's rectum, Petitioner informed Miller that the animal was hemorrhaging internally and should be left at the hospital for treatment. Miller assumed that Petitioner was a veterinarian as she heard her referred to as Dr. Weil, and saw no licensed veterinarian during her visit.
Witness Wright, who is the mother of witness Miller, took her own dog to the Oakland Animal Hospital in April, 1980, where the animal delivered nine puppies by Caesarean section, all of which subsequently died. Wright had seen only Petitioner upon taking her pet to the Oakland Animal Hospital and was later called by Weil regarding the birth and death of the puppies. Wright therefore assumed Petitioner had performed the surgery. However, the testimony of Dr. Johnson established that he, and not Weil, had performed all surgical procedures.
CONCLUSIONS OF LAW
Section 474.213, Florida Statutes (1979) provides in part:
No person shall:
Practice veterinary medicine unless the person holds an active license
to practice veterinary medicine;
Use the name or title "veterinarian" when the person has not been licensed pursuant to this chapter.
Section 474.214, Florida Statutes (1979) provides in part:
The following acts shall constitute grounds for which the disciplinary actions in subsection (2) may he
taken:
* * *
(f) Advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form
or content.
* * *
2) When the board finds any veterinarian guilty of any of the grounds set
forth in subsection (1), it may enter an order imposing one or more of the following penalties:
(a) Denial of an application for licensure.
There was no evidence that Petitioner used the title veterinarian in violation of Subsection 474.213(1)(b), quoted above, or that she held herself out as a veterinarian in violation of Subsection 474.214(1)(f), also quoted. Dr. Johnson ordered the business cards, stationery and advertisements, and was solely responsible for this misrepresentation of Petitioner's status.
Petitioner's apparent diagnosis of the Vilchez and Miller animals were the only acts which could be construed as the practice of veterinary medicine in violation of Subsection 474.213(1)(a), quoted above. These violations were primarily the responsibility of Dr. Johnson in failing to adequately supervise Petitioner, whose status was that of a veterinary technician. In any event, the violations do not warrant denial of Petitioner's application for a license to practice veterinary medicine.
Petitioner contends that none of the above provisions are applicable to her even if she had committed the acts alleged. This argument is based on Section 474.203, Florida Statutes (1979), which provides in part:
EXEMPTIONS.-This chapter shall not apply to:
* * *
(6) Any veterinary aide, nurse, laboratory technician, intern, or other employee of a licensed veterinarian who administers medication or renders auxiliary or supporting assistance under the responsible supervision of such licensed practitioner. However, the licensed veterinarian shall be responsible for all such acts performed by persons under his supervision.
Subsection 474.202(5) defines responsible supervision as follows:
"Responsible supervision" or words of similar purport mean the control, direction, and regulation by a licensed doctor of veterinary medicine of the duties involving veterinary services which he delegates to unlicensed personnel.
As an unlicensed veterinary technician, Petitioner is apparently exempt from regulation under Chapter 474, the Veterinary Medical Practice Act. However, the following provisions establish a legislative intent to regulate applicants for licenses to practice veterinary medicine as well as licensed veterinarians:
Subsection 474.207(2) - The department [Department of Professional Regulation] shall issue a license to practice veterinary medicine to any applicant who successfully completes the examination in accordance with this section.
Subsection 474.214(2) - When the board [Board of Veterinary Medicine] finds any veterinarian guilty of any of the
grounds set forth in subsection (1) it may enter an order imposing one or more of the following penalties:
(a) Denial of an application for licensure. . .
The above quoted provisions grant Respondents the jurisdiction over applicants for licensure as veterinarians notwithstanding the general exemption of unlicensed personnel discussed above. Further, Subsection 474.214(2)(a) quoted above grants the Board authority to deny an application for licensure on the grounds alleged. This constitutes a stated exception to the general provision that successful completion of the examination warrants issuance of the license under Subsection 474.207(2), also quoted.
Petitioner further argues that she is entitled to licensure by default based on procedures established in Chapter 120, Florida Statutes. Subsection 120.57(1)(b), Florida Statutes (1979), provides in part:
1. Requests for hearings shall be granted or denied within 15 days of receipt.
* * *
3. Except for proceedings conducted as prescribed in s. 120.54(4) or s. 120.56, all petitions or requests for hearings under this section shall be filed with the agency. If the agency elects to request a hearing officer from the division [Division of Administrative Hearings], it shall notify the division within
10 days of receipt of the petition or request. . .
Section 120.60(2), Florida Statutes (1979) provides in part:
Every application for license shall be approved or denied within 90 days after the receipt of the original application. . .
Petitioner's application was complete when she passed the second examination announced in September, 1980. The Board denied her application on October 16, 1980, which was within the 90 days allowed for grant or denial. Petitioner requested an administrative hearing by petition dated November 6, 1980. This petition was not forwarded to the Division of Administrative Hearings until January 6, 1981, far beyond the time provided by statute for such action.
This failure to act does not give rise to default relief. However, Petitioner has suffered an unreasonable hardship as a result of this delay and the unexplained forgeries by the Board's investigator. Respondents should thoroughly review their procedures and take such measures as are needed to preclude future mishandling of license applications.
The parties submitted proposed findings of fact. To the extent these proposed findings have not been adopted or are inconsistent with the findings herein, they have been specifically rejected as not material to the result reached or not supported by the evidence.
From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner be granted a license to practice veterinary
medicine.
DONE AND ENTERED this 3rd day of June, 1981 in Tallahassee, Leon County, Florida.
R. T. CARPENTER Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1981.
Larry V. Bishins, Esquire 4548 North Federal Highway
Ft. Lauderdale, Florida 33308
William F. Casler, Esquire 6795 Gulf Boulevard
St. Petersburg Beach, Florida
Christopher Rolle, Esquire Assistant Attorney General Department of Legal Affairs Suite 1602, The Capitol Tallahassee, Florida 32301
