STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )
VETERINARY MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 90-4549
)
BARRY GOLDBERG, )
)
Respondent. )
)
) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )
VETERINARY MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 90-8113
)
BARRY GOLDBERG, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on March 28, 1991, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Charles F. Tunnicliff, Esquire
Department of Professional Regulation 1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
For Respondent: Neil F. Garfield, Esquire
World Executive Building 3500 N. State Road 7
Suite 333
Fort Lauderdale, Florida 33319 STATEMENT OF THE ISSUES
Whether Respondent committed the offenses described in the Administrative Complaints?
If so, what disciplinary action should be taken against him?
PRELIMINARY STATEMENT
On July 5, 1990, the Department of Professional Regulation (Department) filed an Administrative Complaint alleging that Respondent, a licensed veterinarian, violated Section 474.214(1)(o), Florida Statutes, by acting negligently or incompetently in his handling of an English Bulldog under his care, and Section 474.214(1)(f), Florida Statutes, by failing to keep adequate medical records on this patient. Respondent thereafter denied the allegations of fact contained in the Administrative Complaint and requested a formal hearing on these allegations. On July 24, 1990, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer. It was docketed as Case No. 90-4549. The final hearing in Case No. 90-4549 was originally scheduled to commence on December 6, 1990. At the request of Respondent, it was continued until January 11, 1991.
On November 19, 1990, the Department issued a second Administrative Complaint against Respondent. In this second Administrative Complaint, the Department alleged that Respondent violated Sections 474.214(1)(o) and (x), Florida Statutes, by agreeing to sell Winstrol-V anabolic steroids to an undercover police officer after having been told that the steroids would be used for human consumption and accepting $1,000 in payment for the steroids. It further alleged that Respondent violated Section 474.214(1)(o), Florida Statutes, by having in his veterinary facility prescription medications that "were beyond the expiration date, had the labels obliterated, or had insufficient labeling as required by 21 U.S.C.A 3825 [sic]." On December 11, 1990, Respondent executed an Election of Rights form. He indicated on the form that he disputed the allegations of fact contained in the Administrative Complaint and that he desired to have a formal hearing on these allegations. On December 27, 1990, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer. It was docketed as Case No.
90-8113.
On January 9, 1991, Petitioner, on behalf of both parties, filed a motion requesting that the final hearing in Case No. 90-4549 be continued and that Case No. 90-4549 and Case No. 90-8113 be consolidated. By order issued that same date, the motion was granted. Thereafter, the final hearing in these consolidated cases was scheduled for March 28, 1991.
On March 21, 1991, Respondent, relying on Section 943.058, Florida Statutes, filed a motion in limine requesting that the Hearing Officer issue an order "excluding any evidence in th[ese] case[s] [which is part of the] criminal history records relating to Respondent's prior arrest and plea of nolo contendere," inasmuch as those records had been sealed by court order. On March 22, 1991, the Hearing Officer issued an order notifying the parties that they would be given an opportunity to present oral argument on the motion at the outset of the final hearing, before the taking of any evidence.
Following the parties' presentation of oral argument, the Hearing Officer announced that, on the authority of Walton v. Turlington, 444 So.2d 1082 (Fla. 1st DCA 1984), he was denying Respondent's motion in limine, to the extent that it sought an order barring police testimony regarding the alleged criminal conduct that formed the factual foundation for Respondent's arrest, and that he would rule on the admissibility of any other evidence that Respondent claimed was subject to exclusion pursuant to Section 943.058, Florida Statutes, if and when Petitioner offered such evidence.
Respondent thereupon sought to have the Hearing Officer exclude the testimony of the undercover police officer referenced in the Administrative Complaint issued in Case No. 90-8113 because of the officer's failure to appear for a deposition. Respondent's request was denied.
Respondent then moved to have the Hearing Officer prohibit the undercover police officer from giving testimony regarding "what [his] confidential informant told him about any of the background of the case, and specifically what the informant told him that [Respondent] told him." Petitioner agreed not to elicit such testimony and therefore the matter was resolved without the necessity of a ruling by the Hearing Officer.
The next preliminary matter addressed at the final hearing was Petitioner's motion to amend paragraph 9 of the Administrative Complaint issued in Case No.
90-8113. Through its motion, Petitioner sought permission to amend this paragraph of the Administrative Complaint to reflect that the federal labelling requirements referred to therein are found in 21 U.S.C.A. 352, not 21 U.S.C.A. 3825. 1/ Over Respondent's objection, the motion was granted. See Farzad v. Department of Professional Regulation, 443 So.2d 373, 377 (Fla. 1st DCA 1983).
Thereafter, the parties entered into various stipulations and Petitioner requested, and was granted without objection, leave to amend its Administrative Complaints against Respondent to conform with these stipulations.
Before the taking of evidence, the parties were given the opportunity to make opening statements. In his opening statement, Respondent raised for the first time 2/ the defense of entrapment with respect to the allegation that his dealings with the undercover police officer constituted a violation of Sections 474.214(1)(o) and (x), Florida Statutes.
During the evidentiary portion of the final hearing, the Department presented the testimony of three witnesses: Dr. Gary Ellison, an assistant professor of veterinary medicine at the University of Florida and a Florida- licensed veterinarian; Eugene Odim, a licensed pharmacist employed by the Florida Department of Health and Rehabilitative Services; and J.C., the owner of the English Bulldog referenced in the Administrative Complaint issued in Case No. 90-4549. In addition to the testimony of these three witnesses, the Department offered, and the Hearing Officer received, six exhibits into evidence.
Respondent testified on his own behalf. He presented no other live testimony, however, he did offer four exhibits into evidence. Among these exhibits was the deposition of William Sampson, a Florida-licensed veterinarian, which was offered in lieu of his live testimony pursuant to Fla. R. Civ. P.
1.330. All four of Respondent's exhibits were admitted into evidence.
At the conclusion of the evidentiary portion of the final hearing, the Hearing Officer advised the parties on the record that their post-hearing submittals had to be filed no later than 30 days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received the hearing transcript on April 18, 1991. At the request of Respondent, the deadline for the submission of post-hearing submittals was extended to May 28, 1991. Respondent and the Department filed their post-hearing submittals on May 24, 1991, and May 28, 1991, respectively. The proposed findings of fact set forth in the parties' post-hearing submittals have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the record evidence and the factual stipulations entered into by the parties, the following Findings of Fact are made:
Respondent's Licensure and Practice
Respondent is now, and was at all times material hereto, a veterinarian authorized to practice veterinary medicine in the State of Florida under license number VM 1797.
Respondent is a sole practitioner. He owns and operates the Kendall Lakes Pet Health Care Center in Dade County, Florida.
Case No. 90-4549
On or about October 6, 1988, J.C. took his eight year old English Bulldog, 3/ R.C., to Respondent's office. The purpose of the visit was to have Respondent examine a lump that J.C. had discovered under R.C.'s chin while playing with the dog.
Respondent had last seen R.C. a few years back when he treated him for an ear infection. Since that time R.C. had not been examined by any veterinarian.
Upon approaching the dog in the examining room, Respondent noted a foul odor emanating from the dog's ears indicative of an ear infection. Furthermore, he could see that the dog's teeth had an extraordinary amount of tartar buildup and, more importantly, that the dog's lymph nodes were swollen. After palpating the dog's lymph nodes, Respondent told J.C., who was present during the examination, that it was likely that the dog had cancer 4/ and that he needed to take a blood sample from the dog.
An attempt was then made to draw blood from the dog. R.C., however, in obvious discomfort, became unruly. He snarled, showed his teeth and shook his head. J.C. tried to restrain the dog by holding him down, but was unable to do so. As a result, no blood sample could be obtained.
Conventional wire muzzles do not fit English Bulldogs because they are a brachycephalic or "smashed face" breed. Accordingly, in an effort to restrain R.C., Respondent tied R.C.'s mouth closed with a hospital lead.
English Bulldogs tend to have congenitally small tracheas and anatomical deficiencies in the areas of their nose and throat which lead to difficulty in breathing. Consequently, caution must be exercised when muzzling this breed of dog. The practitioner should make sure that the dog is able to breath satisfactorily through its nose or that the muzzle is loose enough so that the dog can still breathe through its mouth. Unlike some English Bulldogs,
R.C. was able to breath through his nose for an extended period of time, as evidenced by the fact that he slept with his mouth closed.
As a general rule, tranquilizing is an attractive alternative to muzzling as a means of restraining an English Bulldog because respiratory compromise is less of a risk. The use of this method of restraint, particularly where the dog is in the advanced stages of cancer, is not free of problems,
however. Whether tranquilizing or muzzling should be employed in a particular instance is a decision to be made by the practitioner based upon his assessment of the physical characteristics and condition of the dog under his care.
It has not been shown that, in exercising his professional judgment to muzzle rather than to tranquilize R.C., Respondent acted in a manner inconsistent with what a reasonably prudent veterinarian would have done under like circumstances or that he engaged in conduct that fell below any minimum standard of acceptable care for veterinarians in the community.
After he was muzzled, R.C. continued to struggle. J.C. was holding the dog around the head and shoulders, but was unable to control him. Respondent therefore placed a towel over R.C. to try to subdue the dog. J.C. meanwhile maintained his grip on the dog. Shortly thereafter, R.C. went limp and collapsed.
Respondent picked up R.C. and carried him to a treatment table. He took a stethoscope to the dog's chest to listen for a heartbeat. Hearing none, he performed an external cardiac massage, but with no success.
Respondent looked down R.C.'s throat and determined that, because R.C.'s lymph nodes were so swollen, it would not be possible to quickly pass an endotracheal tube through the dog's trachea. Respondent therefore had a member of his staff attempt to administer oxygen to R.C. by using a "face mask" device. While this technique, as a general rule, is relatively ineffective with this breed of dog, it was the best means available under the circumstances.
Respondent instructed his staff to fill a syringe with epinephrine. They did so and he administered the drug to R.C. Under ideal conditions, epinephrine should not be administered before an ECG is performed to determine if epinephrine is indicated. In the instant case, however, while he had the equipment, Respondent did not have the time to perform an ECG on R.C.
Throughout the time that these efforts were being made to revive R.C., an emotionally distraught J.C. was yelling and shouting at Respondent.
While Respondent was unsuccessful in his efforts to resuscitate R.C., it has not been shown that these efforts were inconsistent with what a reasonably prudent veterinarian would have done under like circumstances or constituted conduct that fell below any minimum standard of acceptable care for veterinarians in the community.
After R.C. was pronounced dead, J.C. did not request that an autopsy be done and therefore none was performed. Accordingly, it is impossible to determine with a high degree of medical certainty the cause of R.C.'s death.
A member of Respondent's staff recorded information concerning R.C.'s visit on the dog's chart. The entries made, however, provided very little detail regarding what happened during the visit. There was no indication that a physical examination had been conducted. Furthermore, while there were notes that oxygen and "2 1/2 cc epinephrine" 5/ had been administered, the entries made did not reflect how they had been administered, nor did they indicate what other resuscitation efforts had been made. Also missing was an entry reflecting that an autopsy had neither been requested nor performed.
Case No. 90-8113
On or about June 18, 1990, Detective Jerry Rodriguez of the Metro-Dade Police Department, who was working undercover at the time, met with Respondent at the Kendall Lakes Pet Health Care Center. The meeting was arranged by a confidential informant.
After he was introduced to Respondent by the confidential informant, Detective Rodriguez entered into negotiations with Respondent to purchase Winstrol-V anabolic steroids. The negotiations culminated in Detective Rodriguez agreeing to buy a bottle of Winstrol-V from Respondent for $1,000. Respondent was led to believe by Detective Rodriguez that these steroids would be used for human consumption.
Respondent accepted a $1,000 advance payment from Detective Rodriguez and issued him a receipt.
Respondent did not fulfill his end of the bargain, nor did he ever have any intention to do so. He never made any steroids available to Detective Rodriguez, nor did he take any action, including ordering or prescribing the steroids, toward that end. 6/
A subsequent inspection of Respondent's veterinary facility conducted on or about June 18, 1990, revealed the presence of certain prescription medications that were beyond the expiration date or had obliterated labels which were missing lot numbers, manufacturers' names and addresses and expiration dates.
CONCLUSIONS OF LAW
General Principles
The Board of Veterinary Medicine (Board) is statutorily empowered to take disciplinary action against a veterinarian licensed to practice veterinary medicine in the State of Florida based upon any of the grounds enumerated in Section 474.214(1), Florida Statutes. Such disciplinary action may include one or more of the following penalties: license revocation; license suspension; imposition of an administrative fine not to exceed $1,000 for each count or separate offense; issuance of a reprimand; and placement of the veterinarian on probation for a period of time and subject to such conditions as the Board may specify. Section 474.214(2), Fla. Stat.
In those cases where license revocation or suspension is sought, the licensee's guilt must be established by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983). Furthermore, the disciplinary action taken may be based only upon the offenses specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).
In determining whether the licensee has violated Section 474.214, Florida Statutes, as charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute . . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).
Case No. 90-4549
The Administrative Complaint issued against Respondent in Case No. 90- 4549 alleges that his actions during R.C.'s visit to his office on or about October 6, 1988, constituted negligence and incompetency and, resultingly, a violation Section 474.214(1)(o), Florida Statutes.
Section 474.214(1)(o), Florida Statutes, authorizes the Board to discipline a Florida-licensed veterinarian for "fraud, deceit, negligence, incompetency, or misconduct, in the practice of veterinary medicine."
"Negligence" and "incompetency," as those terms are used in Section 474.214(1)(o), Florida Statutes, connote a "failure to comply with the minimum standard of care or treatment required of a veterinarian under the circumstances." Purvis v. Department of Professional Regulation, 461 So.2d 134,
136 (Fla. 1st DCA 1984). Accordingly, to support a charge of "negligence" or "incompetency," in violation of Section 474.214(1)(o), Florida Statutes, the Department must present "evidentiary proof of some standard of professional conduct as well as deviation therefrom." Id.
The Department charges that Respondent's decision to restrain R.C. by tying his mouth closed, as well as Respondent's efforts to resuscitate R.C. after he collapsed, fell below minimum standards of acceptable professional conduct. Its proof, however, was insufficient to sustain these allegations. While the evidence establishes that it may be inappropriate to muzzle an English Bulldog under certain circumstances, such as where the dog is unable to breath through its nose, such circumstances were not shown to exist in the instant case. With respect to the resuscitation efforts made by Respondent, it must be remembered that he was faced with an emergency situation and therefore needed to act quickly. Furthermore, he had to contend with J.C., who was yelling and shouting at him. Evaluating Respondent's actions in light of these trying circumstances with which he was confronted, it cannot be said that, in the efforts he made to revive R.C., Respondent departed from any minimum standards of acceptable professional conduct.
Accordingly, to the extent that the Administrative Complaint issued in Case No. 90-4549 alleges that Respondent violated Section 474.214(1)(o), Florida Statutes, by acting negligently and incompetently during R.C.'s visit to his office on or about October 6, 1988, it should be dismissed.
The Administrative Complaint issued in Case No. 90-4549 also alleges that Respondent violated Section 474.214(1)(f), Florida Statutes, by failing to record on R.C.'s chart information sufficient to meet the requirements of Florida Administrative Code Rule 21X-18.002.
Section 474.214(1)(f), Florida Statutes, authorizes the Board to discipline a Florida-licensed veterinarian for "[v]iolating a statute or administrative rule regulating practice under this chapter or a lawful disciplinary order of the [B]oard or the [D]epartment."
Florida Administrative Code 21X-18.002 is among the "administrative rule[s] regulating practice under . . . [C]hapter" 474, Florida Statutes. It requires licensees to maintain medical records on their patients and it prescribes the contents of those records.
As Respondent candidly admits in his proposed recommended order, the Department "has satisfied its burden [of establishing] that [he] did not keep any reasonable amount of medical records on the subject animal, and that accordingly, [he] was in violation of his duty [under Florida Administrative Code Rule 21X-18.002] to keep proper medical records." Consequently, Respondent should be found guilty of, and disciplined for, engaging in conduct contrary to Section 474.214(1)(f), Florida Statutes, as alleged in the Administrative Complaint issued in Case No. 90-4549.
Case No. 90-8113
The Administrative Complaint issued in Case No. 90-8113 alleges that Respondent violated Sections 474.214(1)(o) and (x), Florida Statutes, by agreeing to sell Winstrol-V anabolic steroids to an undercover police officer after having been told that the steroids would be used for human consumption and thereafter accepting $1,000 in payment for the steroids.
Section 474.214(1)(x), Florida Statutes, authorizes the Board to discipline a Florida-licensed veterinarian for "[u]sing the privilege of ordering, prescribing, or making available medicinal drugs or drugs as defined in chapter 465, or controlled substances as defined in chapter 893, for use other than for the specific treatment of animal patients."
Winstrol-V anabolic steroids are controlled substances as defined in Chapter 893, Florida Statutes.
It is undisputed that, as alleged by the Department, Respondent agreed to sell Winstrol-V anabolic steroids to Detective Rodriguez after having been told that the steroids would be used for human consumption and that Respondent thereafter accepted $1,000 in payment for the promised steroids. The evidence establishes, however, that Respondent never ordered or prescribed these steroids for Detective Rodriguez, nor did he otherwise make these steroids available to the detective. Moreover, there is no indication in the record that Respondent ever represented to either Detective Rodriguez or his confidential informant that he would be able to supply the promised steroids by exercising his privilege as a licensed veterinarian to prescribe, order or make available controlled substances. Indeed, the record is silent as to what, if anything, Respondent told Detective Rodriguez and the confidential informant, and what the detective and the informant understood, regarding how Respondent would obtain the steroids he agreed to deliver to the detective. Because no showing has been made that Respondent used any privilege he had as a licensed veterinarian in connection with his illicit dealings with Detective Rodriguez and the informant, the Administrative Complaint issued in Case No. 90-8113, to the extent that it alleges that, by engaging in such dealings, Respondent violated Section 474.214(1)(x), Florida Statutes, should be dismissed.
Although what Respondent did was certainly wrong, the record does not reflect that it constituted "[f]raud, deceit, . . . or misconduct, in the practice of veterinary medicine." The "practice of veterinary medicine," as used in Chapter 474, Florida Statutes, is defined as follows in Section 474.202(4), Florida Statutes:
[D]iagnosing, prescribing, or administering drugs, medicine, appliances, applications, or treatment of whatever nature, including surgery or acupuncture, for the prevention, cure, or relief of a wound, fracture, bodily injury, or disease of animals; performing any manual procedure for the diagnosis or treatment for fertility or infertility of animals; or representing oneself by the use of titles or words, or undertaking, offering, or holding oneself out as performing any of these functions.
It has not been demonstrated that Respondent's dealings with Detective Rodriguez and his confidential informant concerning the sale of Winstrol-V anabolic steroids involved any of these activities described in Section 474.202(4), Florida Statutes. Accordingly, the Administrative Complaint issued in Case No. 90-8113, to the extent that it alleges that, by engaging in such dealings, Respondent violated Section 474.214(1)(o), Florida Statutes, should be dismissed. 7/ Cf. Elmariah v. Department of Professional Regulation, 574 So.
2d 64 (Fla. 1st DCA 1990)(final order of the Board of Medicine finding a physician guilty of the statutory prohibition against "[m]aking deceptive, untrue, or fraudulent representations in the practice of medicine" reversed; although it was shown that the physician made a number of false or deceptive responses in the course of applying for staff privileges, these responses were held not to have been made "in the practice of medicine").
The Administrative Complaint issued in Case No. 90-8113, as amended, further alleges that Respondent violated Section 474.214(1)(o), Florida Statutes, by having in his veterinary facility prescription medications that "were beyond the expiration date, had the labels obliterated, or had insufficient labeling as required by 21 U.S.C.A 352." That Respondent had these prescription medications in his veterinary facility is uncontroverted. Support is not found in the record, however, for the proposition that merely keeping these prescription medications in his place of business was contrary to any minimum standard of acceptable professional conduct or any requirement imposed upon licensed veterinarians in this state. While the Department may have proven that a licensed veterinarian who uses or distributes such prescription medications in his practice is guilty of professional misconduct, Respondent was not charged with such improper use or distribution of prescription medications. In view of the foregoing, the Administrative Complaint issued in Case No. 90- 8113, to the extent that it alleges that Respondent violated Section 474.214(1)(o), Florida Statutes, by having these prescription medications in his veterinary facility, should be dismissed.
Penalty
In determining what disciplinary action should be taken against Respondent for his failure to maintain adequate medical records, in violation of Section 474.214(1)(f), Florida Statutes, as alleged in the Administrative Complaint issued in Case No. 90-4549, it is necessary to consult Chapter 21X-30, Florida Administrative Code, which contains the Board's disciplinary guidelines. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).
Florida Administrative Code Rule 21X-30.001 provides in pertinent part as follows:
* * *
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:
* * *
(f) Violating . . . the provisions of Chapters 474 or 455, Florida Statutes, or any rules promulgated thereto. 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 up to revocation.
* * *
Based upon consideration of aggravating or mitigating factors present in an individual case, the Board may deviate from the penalties recommended in paragraphs (1) and (2) above. The Board shall consider as aggravating or mitigating factors the following:
The severity of the offense;
The danger to the public;
The number of repetitions of offenses;
The length of time since the violation;
The number of times the licensee has been previously disciplined by the Board;
The length of time licensee has practiced;
The actual damage, physical or otherwise, caused by the violation;
The deterrent [e]ffect of the penalty imposed;
The [e]ffect of the penalty upon the licensee[']s livelihood;
Any effort of rehabilitation by the licensee;
The actual knowledge of the licensee pertaining to the violation;
Attempts by licensee to correct or stop violation or refusal by licensee to correct or stop violation;
Related violations against licensee in another state including findings of guilt or innocence, penalties imposed and penalties served;
Actual negligence of the licensee pertaining to any violation;
Penalties imposed for related offenses under subsections (1) and (2) above;
Pecuniary benefit or self-gain enuring to licensee;
Any other relevant mitigating or aggravating circumstances under the circumstances.
Having considered the facts of the instant case in light of the foregoing provisions of Florida Administrative Code Rule 21X-30.001, it is the view of the Hearing Officer that the appropriate penalty in the instant case is the imposition of a $1,000.00 administrative fine and the placement of Respondent on probation for a period of one year
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Board of Veterinary Medicine enter a final order (1) finding Respondent guilty of maintaining inadequate medical records, in violation of Section 474.214(1)(f), as charged in the Administrative Complaint issued in Case No. 90-4549; (2) imposing a $1,000.00 administrative fine and placing Respondent on probation for a period of one year for this violation; and (3) dismissing the remaining charges against Respondent set forth in the Administrative Complaints issued in Case Nos. 90-4549 and 90-8113.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of June, 1991.
STUART M. LERNER
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 13th day of June, 1991.
ENDNOTES
1/ In fact, there is no 21 U.S.C.A. 3825.
2/ Respondent did not file an answer to either of the Administrative Complaints issued in these consolidated cases.
3/ The average life span of an English Bulldog is eight to twelve years. 4/ This preliminary assessment of R.C.'s condition was a reasonable one. 5/ This amount of epinephrine is two to four times the normal dosage.
6/ Respondent had previously ordered steroids from a veterinarian supply company that were shipped to his place of business between July 7, 1989, and July 20, 1989, but the placement of this order was in no way connected with the deal he had negotiated with Detective Rodriguez.
7/ In defense of the charge that he should be disciplined for having engaged in such dealings, Respondent argues, among other things, that he was entrapped by the authorities. An individual may raise the defense of entrapment in an administrative proceeding at which his right to practice his profession is at stake. See Peters v. Brown, 55 So.2d 334 (Fla. 1951); Patty v. Board of Medical Examiners, 508 P.2d 1121 (Cal. 1973); Schaffer v. State Board of Veterinary Medicine, 237 S.E.2d 510 (Ga. App. 1977). Respondent, however, did not adduce sufficiently persuasive evidence to establish that an entrapment occurred in the instant case. See Section 777.201, Fla. Stat. ("A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it;" defendant has the burden of proving entrapment by a preponderance of the evidence). Respondent's assertion that, as a result to the authorities' use of coercive tactics, he was induced to engage in conduct he otherwise would not have is simply unconvincing.
APPENDIX TO RECOMMENDED ORDER
The following are the Hearing Officer's specific rulings on the findings of fact proposed by the Department and Respondent:
The Department's Proposed Findings of Fact (Case No. 90-4549)
1-3. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
4. Rejected because it is more in the nature of a statement of the case than a finding of fact.
5-16. Rejected because they are summaries of testimony rather than findings of fact based upon such testimony.
The Department's Proposed Findings of Fact (Case No 90-8113)
Accepted and incorporated in substance.
Rejected because it is more in the nature of a statement of the case than a finding of fact.
3-7. Rejected because they are summaries of testimony rather than findings of fact based upon such testimony.
8. Rejected because it is more in the nature of a statement of the case than a finding of fact.
9-13. Rejected because they are summaries of testimony rather than findings of fact based upon such testimony.
Respondent's Proposed Findings of Fact (Case No. 90-4549) 11.1-11.9. Accepted and incorporated in substance.
11.10-11.13. Accepted and incorporated in substance, except to the extent that they purport to summarize the expert testimony given in this cause.
11.14. Accepted and incorporated in substance.
11.15 Rejected because it would only unnecessary detail to the factual findings made by the Hearing Officer.
Respondent's Proposed Findings of Fact (Case No. 90-8113)
3.1. Rejected because it is more in the nature of a statement of the law, albeit an accurate one, than a finding of fact.
3.2-3.7. Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent substantial evidence.
First sentence: Rejected because it is more in the nature of a statement of the case than a finding of fact; Second sentence: Accepted and incorporated in substance.
Accepted and incorporated in substance.
First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected because it is not supported by persuasive competent substantial evidence.
3.12-3.13. Accepted and incorporated in substance.
COPIES FURNISHED:
Charles F. Tunnicliff, Esquire Tobi C. Pam, Esquire
Department of Professional Regulation 1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
Neil F. Garfield, Esquire World Executive Building
3500 N. State Road 7, Suite 333 Fort Lauderdale, Florida 33319
Henry Dover, Executive Director Board of Veterinary Medicine
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD OF TIME WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.
| Issue Date | Proceedings |
|---|---|
| Jun. 13, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 17, 1992 | Agency Final Order | |
| Jun. 13, 1991 | Recommended Order | Vet not guilty of neglect in treating dog, nor misconduct in practice for drug dealing & having certain drugs in office; guilty of bad recordkeeping. |
