STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5811

)

ADELL N. ASSAD, D.V.M., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, a hearing was held in the above-styled cause, on July 10, 1989, before the Division of Administrative Hearings duly designated Hearing Officer, Diane Cleavinger in Tallahassee, Florida.

APPEARANCES

The parties were represented as follows:

For Petitioner: Laura P. Gaffney, Senior Attorney

Department of Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Neil F. Garfield, Esquire

Envirwood Executive Plaza, Suite 200 5950 West Oakland Park Boulevard Lauderhill, Florida 33313

STATEMENT OF THE ISSUES

Whether Respondent's license as a veterinarian in the State of Florida, should be suspended, revoked, or otherwise disciplined for alleged violation of Chapter 474, Florida Statutes, as set forth in the Administrative Complaint, to wit: Section 474.214(1)(f), Florida Statutes, by violating a lawful order of probation of the Board.

PRELIMINARY STATEMENT

On September 9, 1989 Petitioner filed an administrative complaint against Respondent for violation of Chapter 474, Florida Statutes. On November 18, 1988, Respondent requested a formal hearing on the allegations of the administrative complaint. Respondent's request was forwarded to the Division of Administrative Hearings and a formal hearing was scheduled.

At the hearing, Petitioner called one witness and introduced one exhibit into evidence. The Respondent testified in his own behalf and introduced five exhibits into evidence.

Petitioner and Respondent filed their proposed Recommended Orders on August 17, 1989, and August 29, 1989, respectively. The parties' proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on Petitioner's proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Respondent is a licensed veterinarian in the State of Florida, license number VM 2404. Respondent's license is currently under suspension.

   
   

2. On March 23, 1988, the Board of Veterinary Medicine filed a Final Order in settlement of ten (10) different cases involving the Respondent. The Final Order adopted a Stipulation of the parties. The Stipulation resulted in the suspension of Respondent's license to practice veterinary medicine and imposed an administrative fine. The stipulation also provided in pertinent part,:

   
   

   1. Prior to reinstatement of Respondent's license, he shall have the burden of demonstrating to the Board that he is able to practice veterinary medicine safely and in accordance with the laws of the State of Florida. This demonstration shall consist of the following:

      1. proof of continuing education as directed by the Board;

      2. a comprehensive psychological evaluation from a psychiatrist or psychologist, who is familiar with the charges against the Respondent, and has provided counseling to the Respondent; and

      3. a recommendation by that counselor that the Respondent is safe to practice veterinary medicine.

   2. A six thousand dollar ($6,000) fine, payable to the Executive Director of the Board, by certified funds, within sixty (60) days after the filing of a Final Order accepting this stipulation.

      
      

3. The Final Order amended the stipulation as follows:

   
   

   1. Paragraph 2(b) of the proposed disposition shall be amended to specify that the psychiatrist or psychologist referred to in that provision shall be a person approved by the Board. For purposes of carrying out this provision, the Board delegates to the

      Chairman the authority to approve the individual psychiatrist or psychologist. The Board specified that the approved psychiatrist or psychologist must submit the first evaluation within thirty (30) days of the date of this Order and submit a second evaluation toward the end of the period of suspension, but prior to reinstatement. In addition, the Board specified that the approved psychiatrist or psychologist shall make a recommendation with regard to the frequency and duration of the counseling sessions for the Respondent and Respondent shall comply with that recommendation. Finally, the Board specified that the approved psychiatrist or psychologist must submit quarterly reports to the Board with regard to Respondent's progress in

      counseling and attendance at counseling sessions.

      
      

4. It was undisputed that Respondent had not paid the six thousand dollar ($6,000) administrative fine within the sixty (60) days following the filing of the Final Order. No part of the fine was paid by the date of the final hearing in this matter and no attempts to pay or extend the time for payment were made by Respondent. There was no credible evidence presented which indicates that the Respondent's obligation to pay the Administrative Fine was in any way excused or discharged. The fact that Respondent was discharged in bankruptcy does not relieve him of his obligation to pay the administrative fine. Such fines are not dischargeable in bankruptcy. The evidence submitted by Respondent on the above point was not credible. The evidence did show that Respondent was employed at a salary which was sufficient for him to at least make an attempt at payment of the fine, especially since his other debts were discharged in bankruptcy. The order of discharge attached to Respondent's Proposed Recommended Order is the standard form order issued by a bankruptcy court. It was impossible to determine whether the attached creditor list was part of that order. The creditor list is not incorporated or referenced in the order. The list itself appears to be a copy of the mailing list required to be filed with the bankruptcy petition.

   
   

5. There was no evidence presented that a petition or other request for reinstatement of the Respondent's license to practice veterinary medicine has been filed. Therefore, Respondent's failure to otherwise comply with the reinstatement requirements of the Final Order are not ripe for hearing before this Hearing Officer.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Department of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding Section 120.57, Florida Statutes.

   
   

7. Respondent, as a licensed veterinarian in the State of Florida is subject to Petitioner's jurisdiction pursuant to Chapter 474, Florida Statutes.

8. Section 474.214(1)(f), Florida Statutes, provides for discipline of an individual's license for that individual's failure to obey a lawful order of the Board of Veterinary Medicine. In this case Respondent failed to obey a lawful order of the Board when he failed to pay the six thousand dollar ($6,000) Administrative Fine within sixty (60) days of the filing of the Final Order. Respondent is therefore subject to discipline under Chapter 474, Florida Statutes.

   
   

9. Chapter 474 provides for a continuum of penalties for disciplinary purposes. The penalties run from reprimands and fines to license revocation. The appropriate penalty for violation of Chapter 474 depends on the severity of the violation, the number of past violations and any factors in mitigation. In this case, Respondent has made no attempts to pay the administrative fine or to obtain extensions for its payment. Respondent did not present sufficient evidence to demonstrate he did not have the ability to pay the fine or that he was excused or discharged from such payment. Since no mitigating factors were shown by the evidence, the only remaining penalty for Respondent's violation is license revocation. Such a penalty is appropriate in this case especially in light of the fact that this violation results from violation of an order of suspension of Respondent's license.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusion of law, it is: RECOMMENDED that the Florida Board of Veterinary Medicine enter a Final

Order revoking the Respondent's license to practice veterinary medicine.

DONE AND ENTERED this 9th day of October, 1989, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 9th day of October, 1989.

APPENDIX TO RECOMMENDED ORDER CASE NO. 88-5811

The facts contained in paragraphs 1, 2, 3, 4, 5 & 6 of Petitioner's Proposed Findings of Fact are adopted, in substance, in so far as material.

The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, & 13 of Respondent's Proposed Findings of Fact are adopted, in substance, in so far as material.

The facts contained in paragraphs 9, 12 & 14 of Respondent's Proposed Findings of Fact were not shown by the evidence.

The facts contained in paragraph 10 are subordinate.

The facts contained in paragraph 8 of Respondent's Proposed Findings of Fact were subordinate except those continued in the last sentence which were not shown by the evidence.

The facts continued in paragraph 11 of Respondent's Proposed Findings of Fact were not shown by the evidence except those continued in the last sentence which are subordinate.

COPIES FURNISHED:

Laura P. Gaffney, Senior Attorney Department of Professional Regulation Northwood Centre

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Neil F. Garfield, Esquire Envirwood Executive Plaza Suite 200

5950 West Oakland Park Blvd. Lauderhill, Florida 33313

Lawrence A. Gonzalez Secretary

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Linda Biedermann Executive Director

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 88-005811

Orders for Case No: 88-005811