Judges: CLAUDE B. ARRINGTON
Agency: Department of Business and Professional Regulation
Latest Update: Aug. 31, 1989
Summary: Whether Respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be taken.Veterinarian disciplined for operating from an unlicensed office and for negligent practice in performing a spay procedure.
89-0642STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF VETERINARY ) MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 89-0642
) SALVADOR ALDEREGUIA, D.V.M., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on June 21, 1989, in Miami, Florida.
APPEARANCES
For Petitioner: Laura P. Gaffney, Esquire
Department of Professional Regulation 1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
For Respondent: Juan C. Elso, Esquire
1331 Southwest 85th Court Miami, Florida 33144
STATEMENT OF THE ISSUES
Whether Respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be taken.
PRELIMINARY STATEMENT
On November 27, 1988, Petitioner filed a four count administrative complaint against Respondent, a doctor of veterinary medicine, contending that he violated certain named provisions of the regulatory laws.
Count I of the Administrative Complaint alleges that Respondent practiced veterinary medicine from an unlicensed premises in violation of Section 474.215, Florida Statutes.
Count II of the Administrative Complaint alleges that Respondent engaged in fraud, deceit, negligence, incompetency, or misconduct in the practice of veterinary medicine in violation of Section 474.214(1)(o), Florida Statutes.
Count III of the Administrative Complaint alleges that Respondent filed a false record or report or that he failed to file a report or record required by federal or state law in violation of Section 474.214(1)(d), Florida Statutes.
Count IV of the Administrative Complaint alleges that Respondent failed to maintain clean premises in violation of Section 474.215, Florida Statutes.
Respondent timely answered the allegations of the Administrative Complaint and requested a formal administrative hearing of all disputed issues of fact.
The formal hearing was held on June 21, 1989, in Miami, Florida.
At the formal hearing, Respondent, through his attorney, admitted the allegations of Count I of the Administrative Complaint, to-wit, that he practiced veterinary medicine out of an establishment that had not been licensed by Petitioner.
At the formal hearing, Petitioner called as witnesses, Thomas F. Daniels, an investigator employed by Petitioner, Dr. David T. Wise, Jr., D.V.M., Dr.
Jerry Greene, D.V.M., and Dr. Phyllis Douglass, D.V.M. Dr. Wise, Dr. Greene, and Dr. Douglass were accepted as expert witnesses. Petitioner introduced three documentary exhibits, which were accepted into evidence. Respondent called as witnesses Eddy Riobe, Dr. Miguel Rodriguez, D.V.M., and Dr. Nestor Sanchez,
D.V.M. Respondent introduced one documentary exhibit which was accepted into evidence.
A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. The parties' proposed findings have been addressed in the appendix to this recommended order.
FINDINGS OF FACT
Respondent is, and has been at all times material hereto, a licensed veterinarian in the State of Florida, having been duly issued license number VM 0002694.
In April of 1988 Respondent practiced veterinary medicine from an establishment located in Dade County, Florida, that had not been licensed by Petitioner. Upon receiving a notice of violation, Respondent executed a cease and desist agreement, which he did not violate. Within thirty days of the notice of violation an application for licensure of the establishment was filed with Petitioner. Accompanying the application was a check which included the amount of the application fee and the amount of the late payment.
On or about April 22, 1988, Respondent performed surgery on Yahara, a female dog owned by Arcadio Rolon. The purpose of the surgery was to spay Yahara.
On or about April 25, 1988, Respondent informed Arcadio Rolon that Yahara had died on April 22, 1988.
On April 27, 1988, Arcadio Rolon took the carcass of Yahara to Dr. David T. Wise, Jr., D.V.M., to have an autopsy performed.
The autopsy revealed that the dog had recently been spayed. One ligature adjacent to the right ovarian string and artery had been partially attached to fat and was partially free floating. Another ligature was attached to fat mesentery in the caudal abdomen adjacent to the uterine strings and artery. Several sutures had been attached primarily to fat. There was a great deal of clotted blood in the abdominal cavity.
The cause of Yahara's death was internal hemorrhaging, followed by shock and eventual death. The internal hemorrhaging was caused by Respondent's failure to properly tie off the severed ovarian and uterine arteries during the spay procedure.
Yahara was a healthy dog before the spay procedure.
The spay procedure on Yahara was not performed properly by Respondent in view of the standard of care exercised in the practice of veterinary medicine in the State of Florida
There was no direct evidence that the premises utilized by Respondent in the practice of veterinary medicine were maintained in an unsanitary condition. The inspection reports were the only evidence that the premises had been kept in an unsanitary condition. These inspection reports were compiled by persons who were not witnesses at the hearing. None of Petitioner's witnesses had observed the premises before the Administrative Complaint was filed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
Section 474.215, Florida Statutes, provides, in part pertinent to the allegations of Count I of the Administrative Complaint, as follows:
Any establishment, permanent or mobile, where a licensed veterinarian practices must have a premises permit or mobile clinic permit issued by the department. Upon application and payment of a $25 fee, the department shall cause such establishment to be inspected. A premises permit or mobile clinic permit shall be issued if the establishment meets minimum standards, to be adopted by rule of the board, as to sanitary conditions and physical plant. ...
Each application for a premises permit or mobile clinic permit shall set forth the name of the licensed veterinarian who will be responsible for the management of the establishment.
* * *
(4) Any owner, operator, or responsible veterinarian of any establishment operating without a premises permit or mobile clinic permit in violation of this section or any rule adopted by the board shall have 30 days after notification of violation by the
department within which to apply for the appropriate permit and pay a late fee established by the board. The board may, after notice and hearing, impose a penalty against such owner, operator, or responsible veterinarian who fails to apply for the necessary permit and pay the late fee within the prescribed 30-day period. No penalty so imposed shall exceed $1,000 for each count or separate offense.
Section 474.214(1), Florida Statutes, provides, in pertinent part, as follows:
The following acts shall constitute grounds for which the disciplinary actions in subsection (2) may be taken:
* * *
(d) Making or filing a report or record which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstruction such filing, or inducing another person to impede or obstruct such filing. Such reports or records shall include only those which are signed in the capacity of a licensed veterinarian.
* * *
(o) Fraud, deceit, negligence, incompetency, or misconduct, in the practice of veterinary medicine.
* * *
(v) Failing to keep the equipment and premises of the business establishment in a clean and sanitary condition or having a premises permit suspended or revoked pursuant to s. 474.215.
Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Petitioner established by clear and convincing evidence that Respondent operated out of an unlicensed establishment in violation of Section 474.215(1), Florida Statutes. The evidence also established that Respondent signed a cease and desist agreement, which he did not violate, and that the establishment made application for licensure and paid the application fee together with a late fee within the time permitted by statute.
Petitioner established by clear and convincing evidence that Respondent violated the provisions of Section 474.214(1)(o), Florida Statutes as alleged in Count II, by negligently performing the spay surgery on Yahara. This surgery failed to meet the standard of care exercised in the practice of veterinary medicine in the State of Florida.
Petitioner failed to establish that Respondent violated the provisions of Section 474.214(1)(d), Florida Statutes, as alleged in Count III. There was no evidence that Respondent made or filed a report or record that he knew to be false. Likewise, there was no evidence that Respondent failed to submit reports required by state or federal laws or that he impeded the filing of such reports within the meaning of the statute.
Petitioner failed to establish that Respondent violated the provisions of Section 474.214(1)(v), Florida Statutes, by failing to maintain the premises in a sanitary condition. The only evidence relating to the condition of the premises were the inspection reports compiled by persons who were not called to testify. These inspection reports are hearsay and cannot alone sustain a finding of fact. See Section 120.58, Florida Statutes.
Section 474.214(2), Florida Statutes, provides as follows:
(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:
Denial of an application for licensure.
Revocation or suspension of a license.
Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the veterinarian on probation for a period of time and subject to such conditions as the board may specify, including requiring the veterinarian to attend continuing education courses or to work under the supervision of another veterinarian.
Restricting the authorized scope of practice.
Rule 21X-30.001, Florida Administrative Code, provides, in pertinent part, as follows:
(2) When the Board finds an applicant or licensee whom it regulates under Chapter 474, Florida Statutes, has committed any of the acts set forth in Section 474,214(1),
Florida Statutes, it shall issue a Final Order imposing appropriate penalties within the ranges recommended in the following disciplinary guidelines:
* * *
(p) Fraud or deceit, or negligence, incompetency, or misconduct in the practice of veterinary medicine. The usual action of the Board shall be to impose a penalty ranging from suspension followed by one (1) year probation and a one thousand dollar ($1,000.00) administrative fine to revocation.
Under Rule 21X-3.001(3), Florida Administrative Code, the Board may deviate from the foregoing guidelines in light of mitigating or aggravating factors. Although there was no evidence that Respondent had been previously disciplined by Petitioner, the severity of the offense leads to the recommendation that the foregoing guidelines be applied without deviation.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Professional Regulation, Board of Veterinary Medicine, enter a final order which finds Respondent guilty of violating the provisions of Section 474.215, Florida Statutes, as alleged in Count I of the Administrative Complaint, which finds Respondent guilty of violating the provisions of Section 474.214(1)(o), Florida Statutes, as alleged in Count II of the Administrative Complaint, which finds Respondent not guilty of having violated the provisions of Section 474.214(1)(d), Florida Statutes, as alleged in Count III of the Administrative Complaint, and which further finds Respondent not guilty of having violated the provisions of Section 474.214(1)(v), Florida Statutes, as alleged-in Count IV of the Administrative Complaint.
For his violation of Section 474.214(1)(o), Florida Statutes, it is recommended that Respondent's license to practice veterinary medicine in the State of Florida be suspended for a period of ten days, that Respondent's license be thereafter placed on probation for one year, and that an administrative fine in the sum of $1,000.00 be imposed against Respondent. It is further recommended that there be no additional penalty imposed for Respondent's violation of Section 474.215, Florida Statutes, because of the action taken by Respondent following the notice of violation.
DONE AND ENTERED this 31st day of August, 1989, in Tallahassee, Leon County, Florida.
CLAUDE B. ARRINGTON
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 31st day of August, 1989.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-642
The proposed findings of fact submitted on behalf of Petitioner are addressed as follows:
Addressed in paragraph 1.
Addressed in paragraph 2. The proposed findings relating to the inspection reports are rejected because the contents of the inspection reports are hearsay.
Addressed in paragraph 3.
Addressed in paragraph 4.
Rejected as being unnecessary to the results reached.
Addressed in paragraph 9. The proposed findings of subparagraphs A., B., C., and E. are rejected as being speculative and as being unsupported by competent, substantial evidence. The proposed findings of subparagraph D. are addressed in paragraph 7 and are subordinate to the findings reached in paragraph 9. The proposed findings of subparagraph F. are rejected because Petitioner failed to establish that the medical record introduced as Petitioner's exhibit 1 constituted all the records kept by Respondent on this matter.
Addressed in paragraphs 5 and 6.
Addressed in paragraphs 7 and 8.
Rejected as being based only on hearsay evidence.
Rejected as not being a finding of fact.
The proposed findings of fact submitted on behalf of Respondent are addressed as follows:
1. Addressed in paragraph 1. 2-4. Addressed in paragraph 2.
Rejected as being irrelevant and unnecessary to the conclusions reached.
Rejected as being recitation of testimony.
7-9. Rejected as being conclusions of law and as being unnecessary to the results reached.
10. Rejected as being unnecessary to the results reached.
11-14. Rejected. Dr. Wise's report identified the dog upon which Dr. Wise performed the autopsy as being the dog Mr. Rolon brought to him.
15-16. Rejected as being unnecessary to the results reached. 17-20. Rejected as being unnecessary to the results reached. 21-22. Rejected as being contrary to the evidence.
Rejected as being unnecessary to the results reached.
Addressed in paragraph 2.
Addressed in paragraph 10.
COPIES FURNISHED:
Laura P. Gaffney, Esquire
Department of Professional Regulation 1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
Juan C. Elso, Esquire 1331 Southwest 85th Court Miami, Florida 33144
Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
Linda Biedermann, Executive Director Department of Professional Regulation Board of Veterinary Medicine
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
================================================================= AGENCY AMENDED FINAL ORDER
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF VETERINARY MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs DPR CASE NUMBER: VM 0098214
DOAH CASE NUMBER: 89-0642 SALVADOR ALDEREGUIA, D.V.M., LICENSE NUMBER: VM 0002694
Respondent.
/
AMENDED FINAL ORDER
This cause came before the Board of Veterinary Medicine (Board) pursuant to Section 120.57(1)(b)9., Florida Statutes, on October 10, 1989, in Miami, Florida, for the purpose of considering the Hearing Officer's Recommended Order (a copy of which is attached and incorporated herein.) Petitioner, Department of Professional Regulation, was represented by Laura P. Gaffney, Attorney at Law. Respondent was not present. Counsel for Respondent, Juan C. Elso, Esquire, was present during the meeting but after orally moving for a continuance departed Mr. Elso was not present when the Board considered this case.
Upon review of the Recommended Order, the Petitioner's Exceptions to the Recommended Order, the Respondent's Exceptions to the Recommended Order, the argument of counsel for Petitioner, and after a review of the complete record in this case, the Board makes the following findings and conclusions.
EXCEPTIONS TO THE RECOMMENDED ORDER
Petitioner's Exceptions are to penalty only. They are addressed in the Penalty Section of this Order.
Respondent's five exceptions are DENIED. All five exceptions are based on the premise that there is no clear and convincing evidence that Yahara was the dog upon whom David T. Wise, D.V.M., performed the autopsy. To the contrary, the evidence admitted by the hearing officer clearly and convincingly proves that the dog autopsied by Dr. Wise was Yahara, a dog belonging to Arcadio Rolon.
FINDINGS OF FACT
The Findings of Fact set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the Findings of Fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 474, Florida Statutes.
The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the Conclusions of
Law.
PENALTY
Upon a complete review of the record in this case, the Board determines
that the penalty recommended by the Hearing Officer for Respondent's violation of Section 474.214(1)(o), Florida Statutes, should be increased to revocation. The reasons the penalty is increased to revocation are:
Yahara was a healthy dog before the spay procedure performed by Respondent. Findings of Facts, paragraph 8, Recommended Order.
The cause of Yahara's death was internal hemorrhaging, followed by shock. The internal hemorrhaging was caused by Respondent's failure to properly tie off the severed ovarian and uterine arteries during the spay procedure. Findings of Fact, paragraph 7, Recommended Order. WHEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED that
Respondent's license to practice veterinary medicine in the State of Florida is REVOKED.
This Order takes effect upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 22nd day November, 1989.
BOARD OF VETERINARY MEDICINE
MELANIE DONOFRO, D.V.M. CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Juan C. Elso, Esquire, 1331 Southwest 85th Court, Miami, Florida 33144 and by U.S. Mail to Claude B. Arrington, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Laura P. Gaffney, Attorney at Law, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0787 at or before 5:00 P.M., this 22nd day of November, 1989.
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER 15 ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
=================================================================
AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF VETERINARY MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs DPR CASE NUMBER: VM 0098214
DOAH CASE NUMBER: 89-0642 SALVADOR ALDEREGUIA, D.V.M., LICENSE NUMBER: VM 0002694
Respondent.
/
FINAL ORDER
This cause came before the Board of Veterinary Medicine (Board) pursuant to Section 120.57(1)(b)9., Florida Statutes, on October 10, 1989, in Miami, Florida, for the purpose of considering the Hearing Officer's Recommended Order (a copy of which is attached and incorporated herein.) Petitioner, Department of Professional Regulation, was represented by Laura P. Gaffney, Attorney at Law. Respondent was not present nor was counsel for Respondent present.
Upon review of the Recommended Order, the argument of counsel, and after a review of the complete record in this case, the Board makes the following findings and conclusions.
FINDINGS OF FACT
The Findings of Fact set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the Findings of Fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 474, Florida Statutes.
The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the Conclusions of
Law.
PENALTY
Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer for Respondent's violation of Section 474.214(1)(o), Florida Statutes, be increased to revocation. The reasons the penalty is increased to revocation are:
Yahara was a healthy dog before the spay procedure performed by Respondent. Findings of Facts, paragraph 8, Recommended Order.
The cause of Yahara's death was internal hemorrhaging, followed by shock. The internal hemorrhaging was caused by Respondent's failure to properly tie off the severed ovarian and uterine arteries during the spay procedure. Findings of Fact, paragraph 7, Recommended Order. WHEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED that
Respondent's license to practice veterinary medicine in the State of Florida is REVOKED.
This Order takes effect upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 17 day of November, 1989.
BOARD OF VETERINARY MEDICINE
MELANIE DONOFRO, D.V.M. CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Juan C. Elso, Esquire, 1331 Southwest 85th Court, Miami, Florida 33144 and by U.S. Mail to Claude B. Arrington, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Laura P. Gaffney, Attorney at Law, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0787 at or before 5:00 P.M., this 17th day of November, 1989.
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER-IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
Docket for Case No: 89-000642
Orders for Case No: 89-000642
| Issue Date |
Document |
Summary |
|
Nov. 17, 1989 |
Agency Final Order
|
|
|
Aug. 31, 1989 |
Recommended Order
|
Veterinarian disciplined for operating from an unlicensed office and for negligent practice in performing a spay procedure.
|
