STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-0142

)

MARK GERARD, D.V.M., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings on April 26, 1984, in Tallahassee, Florida. During the final hearing Respondent was granted leave to take and file a posthearing deposition. Respondent filed correspondence waiving that right on July 3, 1984, and his proposed recommended order on July 5, 1984.

Petitioner Department of Professional Regulation was represented by James Gillis, Esquire, and William Furlow, Esquire, Tallahassee, Florida; and Respondent Mark Gerard, D.V.M., was represented by Paul Lambert, Esquire, Tallahassee, Florida.

Petitioner filed an Administrative Complaint seeking to suspend, revoke, or take other disciplinary action against Respondent as licensee and against his license to practice veterinary medicine under the laws of the State of Florida, and Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination herein are whether Respondent is guilty of the charges contained in that Administrative Complaint and, if so, what disciplinary action should be taken, if any.

Although Petitioner presented no testimony, Petitioner's Composite Exhibit numbered 1 was admitted in evidence. The Respondent testified on his own behalf, and Respondent's Exhibits numbered 1-22 were admitted in evidence.

Proposed recommended orders containing findings of fact have been submitted by both parties and considered in the preparation of this Recommended Order.

When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. Respondent is and has been at all times material hereto a licensed veterinarian in the State of Florida, having been issued license number VM 0001124.

   
   

2. Respondent was a licensed veterinarian in the State of New York, having been issued license number 772918-0 or 002193.

   
   

3. On March 27, 1978, Respondent pled not guilty to an eleven-count indictment filed against him in the County Court for Nassau County, New York.

   He was found guilty and convicted after a jury trial of two counts of Fraudulent Entries and Practices in Contests of Speed involving a race horse running under an assumed name. On November 3, 1978, he was fined $1,000.00 and sentenced to one year's imprisonment at the Nassau County Correctional Center.

   
   

4. The New York State Education Department, Office of Professional Discipline, State Board for Veterinary Medicine, is the agency of that state charged with regulating the practice of veterinary medicine in the State of New York. That agency initiated disciplinary proceedings against Respondent charging him with having violated Education Law Section 6509(5)(a), which prohibits being convicted of committing an act constituting a crime under New York State law.

   
   

5. Although a hearing on that charge was available to Respondent, Respondent voluntarily chose to waive his right to a hearing and surrender his license. On May 5, 1982, Respondent signed his sworn Application to Surrender License. In that sworn application, Respondent stated that he admitted guilt to the charges against him, that he understood the Board of Regents (of the State Education Department) had discretion whether or not to accept Respondent's application to surrender his license on the terms and conditions proposed by Respondent and that such applications were not automatically granted, and that he would agree to an order accepting his application for surrender with the provision that he not apply for restoration of his license for at least one year.

   
   

6. On June 25, 1982, the Board of Regents voted to grant Respondent's application for permission to surrender his license on the terms proposed by him. Pursuant to that vote, on June 28, 1982, the Commissioner of Education of the State of New York entered an Order granting Respondent's application to surrender his license, cancelling Respondent's registration to practice, and prohibiting Respondent from applying for restoration of his license for at least one year.

   
   

7. On October 15, 1982, the Probable Cause Panel of the Florida Board of Veterinary Medicine determined probable cause, and an Administrative Complaint was filed against Respondent. On October 5, 1983, the Hearing Officer of the Division of Administrative Hearings assigned to conduct the formal proceedings against Respondent in that case dismissed the Amended Administrative Complaint in that case due to alleged defects in the probable cause determination.

   
   

8. On December 2, 1983, the Probable Cause Panel determined probable cause a second time, an Administrative Complaint was filed, and this proceeding ensued.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

10. Section 474.214(1)(c), Florida Statutes (1981), authorizes the Board of Veterinary Medicine to take disciplinary action against a licensee for

    
    

    [h]aving a license to practice veterinary medicine revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country.

    
    

    Respondent's argument that his voluntary surrender of his license in New York precludes a finding that his license was "acted against" is without merit under the facts of this case. The certified documents admitted without objection in this cause clearly show that Respondent applied for surrender of his license in lieu of the continuation of pending professional disciplinary proceedings, that he agreed to that surrender upon conditions, and that the granting of his application was not an automatic act by the regulatory authority but rather required the affirmative vote by the Board of Regents to accept his "settlement offer" in exchange for terminating the pending disciplinary proceeding. The Petitioner has clearly sustained its burden of proving that the settlement upon conditions of the disciplinary action initiated against Respondent in New York constitutes Respondent's having his license to practice veterinary medicine acted against by the licensing authority of another state.

    
    

11. Respondent introduced in evidence a newspaper clipping dated November 4, 1978, reporting the details of Respondent's criminal conviction, which article was in Petitioner's possession at that time, and substantial correspondence thereafter, both intradepartmental and with the New York criminal and regulatory authorities monitoring the status of Respondent's conviction and New York disciplinary proceeding. Respondent then makes several novel arguments based on these documents, each of which lacks logical substance.

    
    

12. Respondent first argues that he should have been charged herein with the conduct forming the basis for his 1978 conviction and, since he was not, this cause should be dismissed. However, Respondent fails to cite any authority for the proposition that a licensee has a right to choose which statutory prohibition he should be charged with violating. The decision of Petitioner to await final resolution of Respondent's appeal of his criminal conviction and to await resolution of the New York disciplinary proceeding before determining whether to initiate any disciplinary proceeding in Florida is reasonable, prudent, and not indicative of a "bad faith' prosecution, as Respondent argues.

    
    

13. Additionally, Respondent argues that his conviction occurred in 1978 and that he is now charged with a statutory violation which became law in 1979. This is simply not so. Respondent is charged herein with conduct that occurred in June, 1982, when his license `gas acted against in New York. The 1979 Florida law Respondent is charged with violating had been in effect for several years.

14. Respondent next argues an estoppel theory by alleging that Petitioner is estopped by the passage of time from complaining against him now for conduct which occurred in 1978. Again, this argument ignores the fact that the conduct forming the basis for this prosecution occurred in June, 1982, based upon Respondent's May, 1982, sworn application for surrender of license, and probable cause was determined in Florida in October, 1982. Any delays thereafter were caused by Respondent obtaining a dismissal of the first Administrative Complaint filed against him due to alleged irregularities in the probable cause proceeding. Further, no factual basis for estoppel (if estoppel were an appropriate affirmative defense in a disciplinary proceeding) has been proven.

    
    

15. Lastly, Respondent argues for dismissal based upon Petitioner's failure to follow certain of its investigatory policies. Those policies do not apply to this case where the only investigation required was the obtaining of certified copies of public records which Petitioner had been awaiting since 1978. Respondent's "improper investigation" argument includes a sub- argument that he cannot be prosecuted herein because it may have been a Board member who read and transmitted the newspaper article. This sub-argument warrants no discussion.

    
    

16. Respondent relies upon a number of cases for the proposition that he cannot be charged with committing a crime in another jurisdiction unless that conduct would also constitute a crime in Florida. His reliance on these cases is misplaced since he is not charged herein based upon any conduct alleged to be criminal. Likewise must fall Respondent's argument that this complaint should be dismissed based upon a "lapse of time" theory found within the real estate brokers and salesmen regulatory statute.

    
    

17. Respondent testified regarding his involvement in research and charitable projects involving competitive athletic horses and the prevention of horse abuse within the last few years in Florida. Based upon Respondent's involvement in such worthy causes and based upon the record indication that Respondent has served a term of incarceration for the conduct forming the basis of his 1978 conviction, this proceeding should not result in a severe penalty. Accordingly the recommendation of Petitioner in its proposed recommended order that Respondent be required to pay an administrative fine in the amount of one thousand dollars and be placed on probation for a period of two years is reasonable. However, Petitioner's recommendation that Respondent pay an additional three thousand dollars in costs is not supported by any record basis or cited legal authority and is hereby rejected.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him, imposing an administrative fine in the amount of one thousand dollars against him to be paid to the Executive Director of the Board of Veterinary Medicine within thirty days of entry of the Final Order, and placing Respondent on probation for a period of two years.

DONE and ORDERED this 4th day of January, 1985, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 4th day of January, 1985.

COPIES FURNISHED:

James Gi1lis and William Furlow, Esquires

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Fl. 32301

Paul Lambert, Esquire 1114 E. Park Avenue Tallahassee, Fl. 32301

Fred Roche Secretary

Department of Professional Regulation

130 N. Monroe St. Tallahassee, Fl. 32301

Jane Raker Executive Director

Board of Veterinary Medicine

130 N. Monroe St. Tallahassee, Fl. 32301

Docket for Case No: 84-000142

Orders for Case No: 84-000142