STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 88-0728

)

T. E. WATSON, D.V.M., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Bradenton, Florida on December 20, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether Respondent's license as a veterinarian in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.

APPEARANCES

Petitioner: Laura Gaffney, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Respondent: T. E. Watson, D.V.M., pro se

5804 7th Street East Bradenton, Florida 34203

BACKGROUND INFORMATION

On January 28, 1988, Tom Gallagher, then Secretary of the Department of Professional Regulation, executed an Administrative Complaint in this case seeking to discipline the Respondent's license as a Doctor of Veterinary Medicine in Florida because he had been convicted in Federal District Court in Arkansas of four counts of mail fraud, a felony. On February 5, 1988, Respondent, then in the Federal Penal Camp at Eglin A.F.B. disputed the allegations and requested a formal hearing. Thereafter, the file was forwarded to the Division of Administrative Hearings and on February 22, 1988, the undersigned set the hearing for April 12, 1988. However, on March 10, 1988, pursuant to Respondent's request for a continuance, the hearing was rescheduled for October 25, 1988. On October 15, 1988, the undersigned granted a continuance requested by the Petitioner and reset the hearing for December 20, 1988. In that same Order, the undersigned granted Petitioner leave to amend the Administrative Complaint.

At the hearing held on December 20, 1988, Petitioner again moved for leave to amend the complaint and without objection by Respondent, that request was granted.

At the hearing, Petitioner presented no witnesses but introduced Petitioner's Exhibits 1 through 5. Respondent testified in his own behalf, presented the testimony of his wife, Othelia Watson, and introduced Respondent's Composite Exhibit A.

A transcript of the hearing was provided and Petitioner submitted Proposed Findings of Fact which, as appropriate, have been accepted and are incorporated herein.

FINDINGS OF FACT

1. At all times pertinent hereto, Respondent, T. E. Watson, was licensed as a veterinarian in Florida under license number VM 0000957, and the Petitioner, Board of Veterinary Medicine, (Board), was the state agency charged with regulating the practice of veterinary medicine in this state.

   
   

2. On February 20, 1986, the Grand Jury in the United States District Court for the Eastern District of Arkansas entered an Indictment charging Respondent with six counts of mail fraud. The counts relating to Respondent were part of a thirty- three count Indictment of eight defendants. Only six of the counts pertained to Respondent.

   
   

3. After trial by jury, on June 19, 1986, Respondent was found not guilty of two counts of mail fraud but guilty of four. In each of these four counts, Numbers 7, 8, 20, & 21, Respondent was found guilty of mail fraud involving a horse. He was sentenced to serve a period of imprisonment in the Federal Prison Camp at Eglin A.F.B., Florida.

   
   

4. The mail fraud engaged in by Respondent involved a scheme by him and others to artificially inflate the book value of certain horses, then have the horses destroyed, and collect insurance in an amount in excess of the actual value of the horse. This activity constitutes misconduct which relates to the practice of veterinary medicine and reflects adversely on the Respondent's ability to practice veterinary medicine.

   
   

5. On October 25, 1988, the Arkansas Veterinary Medical Examining Board entered Findings of Fact, Conclusions of Law, and an Order finding that Respondent had been found guilty of mail fraud as alleged, supra, and revoked his Doctor of Veterinary Medicine license.

   
   

6. While incarcerated, on September 26, 1988, Respondent submitted a letter to the Board in which he outlined the facts and circumstances leading up to his involvement in the misconduct alleged. He contends in this letter, as he did at the hearing, that he was merely an honest horse farmer who purchased several animals from the individuals who thereafter killed them in the furtherance of their fraudulent scheme to defraud the insurance company. Respondent further claims that when he confronted these individuals, they threatened him and his family with bodily harm and even acted out a portion of that threat. Respondent claims he had no one to turn to as the insurance company representatives were involved in the scheme and the local law enforcement officials were inadequate. As a result, he went along with the scheme but did not actively participate. In support of his position, he refers to the account statements he attached to the letter he sent to the Board which purport to show that he made no profit on any of the animals involved in the counts of which he was convicted. Since he made no profit, he claims, he can be

   found guilty of no crime. This documentation is of little probative value, however, since there is no source material to support its accuracy or authenticity.

   
   

7. Respondent claimed at hearing that his conviction was based on "perjured, prejudicial, and impeached testimony" and that the newly discovered evidence he has gathered and submitted to Federal officials will prove his innocence. This evidence was not presented at the hearing, however, and in his letter to the Department of Professional Regulation, he admits to knowingly being a party to the fraud. However, he claims, his participation was neither intentional or willing. The jury which heard his evidence was satisfied he was guilty, however, and nothing has been submitted here which would cause that judgement to be questioned. His request for a new trial on the basis of newly discovered evidence was denied, and the Parole Commission has declined to modify his conviction or sentence.

   
   

8. Respondent moved his wife and four sons from Florida to Arkansas in 1974 to follow a lifelong dream to be a farmer. It was only after several years that he got into the horse breeding business which resulted in his difficulties. He has been engaged in the practice of veterinary medicine for 30 years. Numerous individuals including clients, civic officials, colleagues, neighbors, and business people who uniformly describe him as an honest, trustworthy and dedicated veterinarian and individual were surprised and dismayed by his involvement in this matter. Respondent undoubtedly has an excellent reputation in both the geographic and professional communities in which he operates.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Under the provisions of Section 455.227(1)(c), Florida Statutes, the board is empowered to discipline the license of a licensee if it finds that he:

    
    

    ...has been convicted of a felony which relates to the practice of his profession.

    
    

11. In addition, under various provisions of Section 474.214(1), Florida Statutes, disciplinary action against a license holder may be taken by the board if the license holder has been:

    
    

    (c) ... convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of veterinary medicine or the ability to practice veterinary medicine.

    and

    (b) ... [had] a license to practice veterinary medicine revoked, suspended, or otherwise acted against, ... by the licensing authority of another state, territory, or country.

12. When an agency seeks to discipline a professional license, the evidence of Respondent's guilt of the offense alleged upon which it relies to take that action must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla 1987).

    
    

13. Here the evidence of record is clear and convincing that Respondent was convicted of mail fraud on four counts in the United States District Court in Arkansas and that, thereafter, the Arkansas Board of Veterinary Medicine revoked his license.

    
    

14. The evidence of record is also clear and convincing that the offenses of which Respondent was found guilty directly relate to the practice of veterinary medicine and adversely reflect on his ability to practice veterinary medicine in this jurisdiction.

    
    

15. Respondent claims that he should not have been found guilty of any offenses because he did not profit from his misconduct. He also claims that he participated in the scheme only because he felt he had no choice. These contentions are without merit and irrelevant. The Hearing Officer will not look behind the evidence of conviction if properly established.

    
    

16. Taken together, the evidence presented by the Board demonstrates a clear and convincing picture of improper conduct in the practice of veterinary medicine which mandates disciplinary action be taken here. The degree and severity of such action is, within statutory limits, the prerogative of the Board but may, according to Section 474.214(2), extend from merely restricting the scope of Respondent's practice to revocation or suspension of his license. Though counsel for the Board recommends the Respondent's license be revoked, the rules of the Board are silent on recommended action.

    
    

17. Respondent has introduced substantial evidence from his friends, neighbors, clients, colleagues, and business associates attesting to his normal honesty and integrity. Further, there is no evidence that at any time during his many years of licensed practice as a veterinarian has he been otherwise engaged in misconduct of any sort. Instead, it appears that the incidents of which Respondent has been found guilty are an aberration for which he has already paid a substantial penalty and action less than the maximum, is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Respondent, T. E. Watson's license to practice veterinary medicine in Florida be suspended for a period of three years under such terms and conditions as are specified by the Board of Veterinary Medicine.

RECOMMENDED this 8th day of February, 1989 at Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 8th day of February, 1989.

COPIES FURNISHED:

Laura F. Gaffney, Esquire Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

T. E. Watson, D.V.M. 5004 7th Street East Bradenton, Florida 34203

Linda Biedermann Executive Director

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Bruce D. Lamb General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-000728

Orders for Case No: 88-000728