STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 85-2787

)

SAMY HASSAN HELMY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on January 10, 1986 in Inverness, Florida by Stephen F. Dean, assigned hearing officer with the Division of Administrative Hearings. By an administrative complaint dated August 12, 1985, the Department of Professional Regulation alleged the Respondent failed to have a premises permit at an establishment where a licensed veterinarian practiced, contrary to Sections 474.215 and 474.214(1)(g), Florida Statutes.

APPEARANCES

For Petitioner: Cecilia Bradley, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: William E. Lackay, Esquire

M. C. of Florida Building Post Office Box 279 Bushnell, Florida 33513

ISSUES

The Department of Professional Regulation charged Dr.

Samy Hassan Helmy, D.V.M., with violation of Sections

474.215 and 474.214(1)(g), Florida Statutes, for failure to

have a premises permit. The primary issue for factual determination is whether Citrus Fair Animal Hospital applied for licensure within thirty days subsequent to its opening.

Both parties have submitted post-hearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Dr. Helmy is, and has been at all times material herein, a licensed veterinarian in the State of Florida, having been issued license number 0028884 by the Florida Board of Veterinary Medicine.

   
   

2. In January of 1985 the wife of Dr. Samy Hassan Helmy purchased real property in Inverness, Florida. Between January 1985 and April 1985 said facility was extensively remodeled to make it suitable as an animal hospital. Dr. Helmy frequently worked at this facility, supervising workmen and participating in the remodeling.

   
   

3. On February 19, 1985 an investigator of the Department of Professional Regulation inspected Dr. Helmy's licensed facility in Wildwood, Florida. At that time, Dr. Helmy was not at the facility. Certain equipment required at an animal hospital was not found during this inspection. The inspector called and spoke with Dr. Helmy who was at the Inverness facility, hereinafter referred to as "Citrus Fair." Dr. Helmy advised the inspector that he had the equipment with him. Dr. Helmy told the inspector that he only treated animals at the Wildwood clinic. (See Transcript page 60, line 11-12.)

   
   

4. After notice to their customers and the public, Dr. Helmy began to receive patients regularly at the Citrus Fair facility during the first part of April 1985. Dr. Helmy admitted that he had seen animals on an emergency basis at the facility prior to that date as opposed to transporting them to Wildwood; however, the Citrus Fair facility was not open to the public until the first part of April.

   
   

5. A receipt for professional services dated April 9, 1985 was introduced into evidence as Respondent's exhibit #2. Although introduced by Respondent, this exhibit was

   part of the Petitioner's investigative file.

   
   

6. An inspection was conducted of the Citrus Fair facility on April 12, 1985 by an employee of the Department of Professional Regulation. At the time of this inspection veterinary medicine was being practiced on the premises.

   
   

7. An inspection of the Citrus Fair facility was conducted by an employee of the Department of Professional Regulation on April 19, 1985. At the time of said inspection, veterinary medicine was being practiced on the premises.

   
   

8. The Citrus Fair facility is wholly owned by the wife of Dr. Helmy. Dr. Helmy is the professional veterinarian responsible for the Citrus Fair facility.

   
   

9. On April 29, 1985, Dr. Helmy's application for licensure of the Citrus Fair facility was received by the Department of Professional Regulation. (See Petitioner's Exhibit #2)

   
   

   CONCLUSIONS OF LAW

   
   

10. The Board of Veterinary Medicine has authority to regulate and discipline doctors of veterinary medicine whom it licenses in the State of Florida. This Order is entered pursuant to the provisions of Section 120.57(1), Florida Statutes.

    
    

11. The Respondent is charged with violating Sections

    474.215 and 474.214(1)(g), Florida Statutes. Section

    474.215 requires that an establishment where a licensed veterinarian practices have a premises permit issued by the Department. Rule 21X-15.01, Florida Administrative Code, requires that the application for the premises permit be made thirty days subsequent to the opening of the premises. Section 474.214(1)(g) prohibits violations of the provisions of Chapter 474, Chapter 455 and rules promulgated pursuant to those chapters.

    
    

12. The only substantial and competent evidence produced at the hearing shows that the Citrus Fair Animal Hospital opened the first part of April 1985. The receipt for professional services reflects that it was open on April 9, 1985. The Respondent in paragraph 4 of his proposed findings admits that the facility was open as of

    that date.

    
    

13. The Petitioner's allegations are primarily based upon hearsay and conjecture arising from its inspection of the Wildwood Clinic in February 1985. If the Department was concerned about the operation of an unlicensed premises, the investigator could have reported the incident and the Department clarified this matter by conducting an investigation of the Citrus Fair facility. However, the Department has failed to produce a scintilla of admissible evidence that the Citrus Fair facility was in operation prior to the first part of April. It is not improper or illegal and it does not require a license to remodel a facility. In the absence of substantial and competent evidence that veterinary medicine was practiced at Citrus Fair prior to April, the allegations are not proven.

    
    

14. Rule 21X-15.01 specifically provides that application may be made thirty days subsequent to the opening of the premises. The facts reflect that an application for the Citrus Fair facility was received by the Department of Professional Regulation from Dr. Helmy on April 29, 1985. This application was accompanied by the required fee and was ultimately processed by the Department.

    
    

15. The facts reflect that the application for the Citrus Fair facility was applied for within thirty days subsequent to the opening of the Citrus Fair facility in compliance with the rules and statutes. There has been no violation proven in this case.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, and having determined the Respondent did not violate any of the statutes as alleged, it is recommended that the administrative complaint be dismissed.

DONE AND ORDERED this 19th day of February 1986 in Tallahassee, Leon County, Florida.

_

STEPHEN F. DEAN, Hearing Officer Division of Administrative

Hearings

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings

this 19th day of February 1986.

COPIES FURNISHED:

Mildred Gardner,Executive Director Board of Veterinary Medicine

130 North Monroe Street Tallahassee, FL 32301

Fred Roche,Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

Salvatore A. Carpino,General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

Cecilia Bradley, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

William E. Lackay, Esquire

M. C. of Florida Building

P. O. Box 279 Bushnell, FL 33513

APPENDIX

Respondent's Findings of Fact

1. Adopted.

   
   

2. Adopted.

   
   

3. Conclusion of Law.

   
   

4. Adopted.

   
   

5. Adopted.

   
   

6. Adopted.

   
   

7. Rejected as not relevant.

   
   

8. Adopted. It appears Respondent erroneously labeled Conclusions of Law as Findings of Fact.

Petitioner's Findings of Fact

1. Adopted.

   
   

2. Contrary to facts - rejected.

   
   

3. Rejected to the extent the application was dated April 23, 1985. Adopted that application was received on April 29, 1985.

   
   

4. Adopted.

   
   

5. While true, this proposed finding lacks any reference to when this occurred which is the key issue and is therefore rejected.

   
   

6. Rejected. No evidence was submitted showing that Citrus Fair was operated as a veterinary facility on February 18, 1985. Evidence to the contrary was received

   which is more credible. See TX-60, lines 11-12.

   
   

7. Rejected as contrary to evidence on TX-61. The Respondent stated he carried the kits to both clinics, not that he used them at both clinics.

8. Rejected. The proposed facts are not consistent with the testimony on TX 61 & 62 and the facts presented are not probative that veterinary medicine was practiced at the Citrus Fair facility.

   
   

9. Rejected. The witness says nothing about going to Wildwood by appointment in TX-70. The statement by Respondent that "he was working between the two offices" is not inconsistent with the Respondent's testimony that he was remodeling the Citrus Fair facility.

   
   

10. Adopted.

    
    

11. Adopted.

    
    

12. Rejected as cumulative of the fact that after April 9, 1985 veterinary medicine was practiced at Citrus Fair.

    
    

13. Same as No. 12 above.

Docket for Case No: 85-002787

Orders for Case No: 85-002787