STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD J. BECK, D.V.M., )

)

Petitioner, )

)

vs. ) Case No. 99-5035F

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

)

Respondent. )

)

FINAL ORDER

On October 26, 2000, a formal administrative hearing was held by videoconference in Tallahassee and Tampa, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles E. Lykes, Jr., Esquire

501 South Ft. Harrison Avenue Suite 101

Clearwater, Florida 33756-5317

For Respondent: John J. Matthews, Esquire

Robert A. Crabill, Esquire Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-3060

STATEMENT OF THE ISSUE

Whether the Petitioner is entitled to an award of Attorney Fees and Costs under the provisions of Section 57.111, Florida Statutes.

PRELIMINARY STATEMENT

By Petition for Attorney Fees, the Petitioner seeks an award of fees incurred in a disciplinary case prosecuted against the Petitioner by the Department of Business and Professional Regulation (Department).

At the hearing on the Petition for Attorney Fees, the Petitioner presented the testimony of two witnesses. The Department presented the testimony of one witness and had Exhibits numbered 1-3 admitted into evidence.

A Transcript of the hearing was filed on November 9, 2000.

Both parties filed Proposed Final Orders.

FINDINGS OF FACT

1. By Administrative Complaint dated September 3, 1997, the Department alleged that Donald J. Beck (Beck) was incompetent or negligent in his practice of veterinary medicine under Section

   474.214 (1)(r), Florida Statutes. The Administrative Complaint further alleged that the Respondent violated Sections 474.214(1)(f) and 455.241(1), Florida Statutes, by failing to furnish medical and examination records in a timely manner.

2. A formal hearing was conducted on January 20, 1999.

   
   

3. At the close of the Department's case presentation during the hearing on the Administrative Complaint, Beck moved to have the case dismissed. The motion to dismiss was granted as to the alleged violations related to medical and examination

   records, and was denied as to the alleged incompetent or negligent practice of veterinary medicine.

4. The factual allegations in the Administrative Complaint involved two dogs boarded at a combination animal clinic and boarding facility identified as "Animal Hospital Hyde Park" in Tampa, Florida.

5. The Animal Hospital Hyde Park facility was owned and operated by another veterinarian not a party to this proceeding.

6. The two dogs were boarded at the facility for a period of months. The owners of the dogs had minimal contact with the animals during the boarding period.

7. During the boarding period, the owners had informed the facility staff that the dogs were overweight and that the animals should be placed on restricted diets.

8. After being notified by the facility owner that the facility was being closed, the owners retrieved the dogs and were apparently unhappy with the condition of the animals.

9. The dog owners took the animals to another veterinarian, Dr. Jerry Alan Greene, who examined the dogs on August 13, 1996.

10. The dog owners subsequently filed a complaint with the Department, which investigated the case.

11. As part of the investigation, the Department interviewed witnesses including Dr. Greene and a second treating veterinarian. The Department reviewed medical records and photographs related to the animals.

12. The Department also obtained an opinion from Dr. Sheldon Pinkerton, a third veterinarian, who opined that based on his review of the investigative information, Dr. Beck was in violation of Section 474.214(r), Florida Statutes, as well as other statutes and administrative rules.

13. The investigative information and Dr. Pinkerton's opinion were submitted to the Board of Veterinary Medicine's Probable Cause Panel.

14. Based on their review of the information, the Panel determined on August 28, 1997, that there was probable cause to charge Beck with violation of Section 474.214(r) and (f), Florida Statutes.

15. Based on the Probable Cause Panel determination, the Department filed the Administrative Complaint dated September 3, 1997.

16. During the formal hearing on the disciplinary case, the Department presented the testimony of Dr. Jerry Alan Greene, the veterinarian who tested and examined the relevant animals on August 13, 1996.

17. According to Dr. Greene's testimony there was evidence, based on test results, that the animals had hookworms. Based on his examination, Dr. Greene further diagnosed one animal with an ear infection and opined that the animal was "grossly underweight." The other animal was still overweight and had some type of "foot problem."

18. Beck presented the testimony of Dr. Richard Goldston at the formal disciplinary hearing. Dr. Goldston based his testimony on a review of photographs taken of the animals.

    Dr. Goldston opined that the "underweight" dog, although thin, was healthy. Dr. Goldston also opined that the other animal's "foot problem" was an "acral lick granuloma," which resulted from excessive licking of the area.

19. Based on review of the testimony of the two expert witnesses presented at the formal hearing, the opinion of Dr. Goldston was credited.

20. At the hearing, the Department offered testimony to suggest that Beck had a duty to provide medical care to all of the animals boarded at the facility. The testimony was not persuasive. The evidence presented at the hearing failed to establish that Beck was responsible for the medical needs of all the animals boarded at the Animal Hospital Hyde Park.

21. By a Recommended Order dated March 29, 1999, the Administrative Law Judge recommended that the complaint against Beck be dismissed.

22. By Final Order filed September 16, 1999, the Department of Business and Professional Regulation, Board of Veterinary Medicine adopted the Recommended Order and dismissed the Administrative Complaint.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Sections 57.111 and 120.57, Florida Statutes.

24. Section 57.111(4)(a), Florida Statutes, provides in part that “an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to Chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.”

25. Section 57.111(3)(e), Florida Statutes, provides that a proceeding is "substantially justified" if it "had a reasonable basis in law and fact at the time it was initiated" by the Department.

26. In this case, the evidence establishes that the Department had "a reasonable basis in law and fact" at the time the Probable Cause Panel determined that an Administrative Complaint should be filed. The evidence establishes that the panel reviewed investigative materials and considered the opinion of the veterinary expert who also reviewed the investigative materials.

27. The fact that the evidence and testimony presented by Beck at the formal hearing eventually prevailed does not establish that the Department's case had no reasonable basis in

    law and fact at the time it was initiated. It indicates only that, based upon the Administrative Law Judge's consideration of the evidence and testimony presented by both parties at the hearing, the Department failed to meet the required burden of establishing the allegations set forth in the complaint.

28. The Department asserts that Beck has failed to establish that he meets the definition of "small business party" and therefore is not entitled to an award of fees. Based upon the foregoing, it is unnecessary to address this issue; however, it is noted that the only evidence related to Beck's status as a "small business party" was a previously-filed affidavit never introduced into evidence as part of Beck's case presentation during the hearing on fees.

29. At the fee hearing, the Department moved to dismiss the request based on Beck's failure to establish that he met the definition of a "small business party" during presentation of his case-in-chief, at which point Beck moved to reopen his case presentation to cure the defect. Both the Department's motion and Beck's request were denied, and the Department was required to present evidence related to the "substantial justification" issue upon which this order is based.

FINAL ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, Donald J. Beck's Petition for Attorney Fees and Costs is DENIED.

DONE AND ORDERED this 26th day of December, 2000, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 2000.

COPIES FURNISHED:

Charles E. Lykes, Jr., Esquire

501 South Ft. Harrison Avenue Suite 101

Clearwater, Florida 33756-5317

John J. Matthews, Esquire Robert A. Crabill, Esquire Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-3060

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Sherry Landrum, Director Board of Veterinary Medicine Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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 Clerk of the Division of Administrative Hearings 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 30 days of rendition of the order to be reviewed.

Docket for Case No: 99-005035F

Orders for Case No: 99-005035F