STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF VETINARY MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 08-5457PL

)

PHILIP J. ALEONG, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH), on March 5, 2009, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Elizabeth Duffy, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Bradford J. Beilly, Esquire

1144 Southeast Third Avenue Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUE

Whether Respondent committed the violation alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against him.

PRELIMINARY STATEMENT

On or about August 26, 2008, Petitioner filed an Administrative Complaint alleging that Respondent "violated Section 474.213(1)(e), Florida Statutes, by practicing veterinary medicine with a suspended license" between April 10, 2008, and April 24, 2008.

By filing with Petitioner a completed "Election of Rights" form, Respondent requested a "hearing involving disputed issues of material fact before an Administrative Law Judge of the Division of Administrative Hearings (DOAH), pursuant to Section 120.57(1), Florida Statutes." On October 31, 2008, the matter was referred to DOAH.

On March 4, 2009, the parties filed an Amended Joint Prehearing Stipulation, which contained, among other things, the following "statement of the nature of the controversy," "brief statement of each party's positions," "statement of facts which are admitted," "issues of law on which there is agreement," "issues of fact which remain to be litigated," and "issues of law which remain for determination":

1. STATEMENT OF THE NATURE OF THE CONTROVERSY

   
   

   The issue in this case is whether disciplinary action should be taken against Respondent's license to practice as a veterinarian based on the allegation that Respondent violated the following statutory provision[] referenced in the Administrative Complaint:

   
   

   1. Section 474.213(1)(e), Florida Statutes, by using or attempting to use a veterinarian's license which has been suspended or revoked.

      
      

2. BRIEF GENERAL STATEMENT OF EACH PARTY'S' POSITIONS

   
   

   DPBR:

   
   

   It is Petitioner's position that Respondent's license to practice as a veterinarian should be subjected to disciplinary action as a result of [the] violation[] alleged in the administrative complaint.

   
   

   1. Count One - Respondent is in violation of Section 474.213(1)(e), Florida Statutes, by using his veterinarian's license in the practice of veterinary medicine while it was suspended by the Department.

ALEONG

As set forth in Respondent's Answer and Affirmative Defenses, the Amended Final Order . . . which Petitioner alleges suspended Respondent's veterinary license was ambiguous on its face. In addition, there was a prior course of performance established between the Petitioner and Respondent Aleong with respect to Final Orders that had the effect of suspending Respondent's license. Namely, Petitioner

had previously agreed to not enforce the final order in between the entry of same and the entry of a stay by the Fourth District Court of Appeal[]. With respect to the Amended Final Order at issue in this case, the Fourth District Court of Appeal[] entered a stay of same on April 24, 2008.

* * *

1. STATEMENT OF FACTS WHICH ARE ADMITTED

   
   

   1. The Department of Business and Profession[al] [Regulation, Board of Veterinary Medicine] is the state agency charged with regulating the practice of veterinary medicine, pursuant to section 20.165, Florida Statutes, and Chapters 455 and 474, Florida Statutes.

      
      

   2. At all times material to the Administrative Complaint, Respondent was a veterinarian in the State of Florida, having been issued license number VM 6466.

      
      

   3. At all times material to the count in the Administrative Complaint, Respondent practiced as a veterinarian at Calder Race Track and at other venues, April 7 through April 24, 2008.[2]

   
   

2. ISSUES OF LAW ON WHICH THERE IS AGREEMENT

   
   

   1. Petitioner is the Department of Business and Professional Regulation (DBPR) charged with regulating the practice of veterinary medicine under Florida Law.

      
      

   2. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to section 120.57, Florida Statutes.

      
      

   3. Petitioner must establish by clear and convincing evidence the violation[] alleged in the Administrative Complaint.

      
      

   4. Petitioner bears the burden of proof with respect to each and very fact necessary to establish by clear and convincing evidence the violation[] alleged in the Administrative Complaint.

      
      

   5. Any evidentiary disputes shall be resolved by applying the provisions of Chapter 90, Florida Statutes, and Chapter 120, Florida Statutes.

      
      

   6. By virtue of the facts stipulated to within this agreement, the burden of proof shall shift to the Respondent to prove his affirmative defenses.

      
      

3. ISSUES OF FACT WHICH REMAIN TO BE LITIGATED

   
   

   1. Whether the Amended Final Order was ambiguous, thus precluding its enforcement under the facts of this case.

      
      

   2. Whether the parties' prior course of performance precludes enforcement under the facts of this case.

      
      

   3. Whether the Petitioner's lack of finding of probable cause in DBPR investigation case no. 2008-028603 estops the Petitioner from proceeding on its Administrative Complaint in this action.

   
   

4. ISSUES OF LAW WHICH REMAIN FOR DETERMINATION

   
   

   DBPR

   
   

   1. All other issues of law relevant to the disposition of this matter, not set forth in paragraph "F" above, remain for determination.

      ALEONG

      
      

      1. Whether the Amended Final Order was ambiguous, thus precluding its enforcement under the facts of this case.

         
         

      2. Whether the parties' prior course of performance precludes enforcement under the facts of this case.

         
         

      3. Whether the Petitioner's lack of finding of probable cause in DBPR investigation case no. 2008-028603 estops the Petitioner from proceeding on its Administrative Complaint in this action.

         
         

         As noted above, the hearing that Respondent had requested was held on March 5, 2009.3 Three witnesses testified at the hearing: Respondent; Bradford Beilly, Esquire; and Drew Winters, Esquire. In addition, 11 exhibits (Joint Exhibits 1 and 2, and Respondent's Exhibits A through I) were offered and received into evidence.

         At the close of the taking of evidence, the undersigned established a deadline (30 days from the date of the filing with DOAH of the hearing transcript) for the filing of proposed recommended orders.

         The Transcript of the hearing (consisting of one volume) was filed with DOAH on March 26, 2009.

         Petitioner timely filed its Proposed Recommended Order on Monday, April 27, 2009.

         On April 29, 2009, Respondent filed a motion requesting an extension of time to file his proposed recommended order. On

         that same day, Petitioner filed a response in opposition to the motion. A hearing on the motion was held by telephone conference call on April 30, 2009. Following the telephone conference call on April 30, 2009, the undersigned issued an Order Granting Extension of Time, which provided, in pertinent part, as follows:

         1. Respondent is hereby granted an extension of time to file his proposed recommended order. Petitioner shall file his proposed recommended order no later than

            40 days from the date of this order.

            
            

         2. Petitioner shall have the opportunity to file a supplemental proposed recommended order. Any such supplemental proposed recommended order shall be filed no later than 15 days from the filing date of Respondent's proposed recommended order.

            
            

         3. The undersigned will issue his recommended order within 30 days of either the filing date Petitioner's supplemental proposed recommended order or, if no supplemental proposed recommended order is filed, the expiration of the supplemental proposed recommended order [filing] deadline.

Respondent filed his Proposed Recommended Order on Monday, June 15, 2009.4

On June 30, 2009, Petitioner filed an Amended Proposed Recommended Order.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. Respondent is now, and has been since June 6, 1994, licensed to practice veterinary medicine in the State of Florida.

2. Respondent holds license number VM 6466 issued by the Board of Veterinary Medicine (Board).

3. Respondent supports his family by practicing veterinary medicine. He is the family's sole wage earner.

4. At its March 14, 2006, meeting, the Board took action, in Case No. 2003-93234, to suspend Respondent's license for 30

   days.

   
   

5. Following the meeting, but before the issuance of the

   
   

   Board's final order, Respondent's attorney, Bradford Beilly, Esquire, telephoned the Department of Business and Professional Regulation (Department) attorney who prosecuted the case before the Board, Drew Winters, Esquire. Mr. Beilly informed

   Mr. Winters that he would be filing, on behalf of Respondent, an appeal of the Board's final order, as well as a motion for stay, with the Fourth District Court of Appeal. Mr. Beilly then asked Mr. Winters if the Department would be opposing the motion for stay. Mr. Winters responded that he would "talk to others at the Department and get back to [Mr. Beilly]."

6. When Mr. Winters "did get back" to Mr. Beilly, he told him that "the Department was not going to object to a stay."

   Mr. Winters and Mr. Beilly then had a discussion regarding what would happen if Respondent practiced veterinary medicine between the time the Board's final order took effect and the stay was obtained.

7. Mr. Beilly misunderstood Mr. Winters to have said during their discussion that the Department would not "treat [Respondent's] practicing veterinary medicine from the [time] that the order was rendered and filed in Tallahassee to the time the appellate court issued . . . the [s]tay as practicing veterinary medicine under a suspended license."

8. At no time did Mr. Winters ever make such a representation to Mr. Beilly.5

9. Mr. Beilly subsequently "advised [Respondent] of [his] discussion with Mr. Winters and told [Respondent] that there [would] not [be] a problem with him practicing between the entry of the final [order] and entry of the [s]tay."6

10. The Board entered its original Final Order in Case No.

    
    

    2003-93234 (Original Final Order) on March 28, 2006.

    
    

11. Mr. Beilly received a faxed copy of the Original Final Order the following day.

12. On March 30, 2006, Mr. Beilly, on behalf of Respondent, filed a notice of appeal and motion for stay with the Fourth District Court of Appeal.

13. The Fourth District Court of Appeal granted the motion for stay on April 4, 2006.

14. Between March 28, 2006, and April 4, 2006, Respondent openly engaged in the practice of veterinary medicine.

15. No charges were brought against Respondent for having practiced veterinary medicine with a suspended license during this seven-day period, inasmuch as the Department did not "catch [him] practicing."

16. On July 25, 2007, the Fourth District Court of Appeal affirmed in part and reversed in part the Original Final Order, holding as follows:

    Based upon the above, the order of the Board is affirmed to the extent that it determined that Dr. Aleong's failure to timely file his request for an administrative hearing operated as a waiver of his right to such a hearing, and to the extent that it rejected Dr. Aleong's claim that the doctrines of equitable tolling and excusable neglect relieved him of the consequences of his untimely request for a hearing. The Board's order is reversed to the extent that it imposed a penalty greater than that provided for in the disciplinary guidelines, and the matter is remanded for the Board to either impose a penalty within the guidelines or to make written findings which support the imposition of a harsher penalty.

    Aleong v. Department of Business and Professional Regulation, 963 So. 2d 799, 802 (Fla. 4th DCA 2007).

17. On remand, the Board chose not to impose a lesser penalty. Its Amended Final Order in Case No. 2003-093234, which was filed with the Clerk of the Department on April 7, 2008, read as follows:

    THIS CAUSE came before the Board of Veterinary Medicine (Board) on March 18, 2008, in Ft. Lauderdale, Florida, for consideration upon a remand from the District Court of Appeal of the State of Florida, Fourth District.

    
    

    In its written opinion the Court affirmed this Board's Final Order filed on March 28, 2006, in all regards except with respect to the penalty imposed. With respect to the penalty, the Court reversed the penalty and remanded the case to the Board with directions that the Board either impose a penalty within its disciplinary guidelines or make written findings which support the imposition of a harsher penalty. The Board chooses the latter.

    
    

    Section 455.2273, Florida Statutes, requires the Board to make written findings as to the aggravating circumstances which were the basis for its deviation from the recommended guidelines penalty. The Board finds that the aggravating circumstances which justify imposing a harsher penalty are as follows:

    
    

    1. Respondent has had two prior actions taken against his license by this Board. Those cases are DBPR Case Number 2001-04949 and DBPR Case Number 2003-057847. [See Rule 61G18-18.001(4)(c), Florida Administrative Code.]

    2. One of the violations in the previous case[s] was the same violation as the violation is this case: failing to keep accurate medical records as required by Section 474.214(1)(ee), Florida Statutes, and Rule 61G18-18.002, Florida Administrative Code. (Case Number 2[0]0[1]- 04949)(T26)[See Rule 61G18-18.001(4)(i) and (j), Florida Administrative Code.]

       
       

    3. Respondent admitted on the record at the hearing that he had not timely complied with the Final Order in a case which had come before the Board just six months prior to the meeting at which the penalty in this case was imposed. (T26, 28)[See Rule 61G18- 18.001(4)(c), (h), (i), and (j), Florida Administrative Code.]

       
       

    4. Furthermore, Respondent was on probation at the time the instant case came before the Board for action. (T28)(See Rule 61G18- 18.001(4)(h) and (j), Florida Administrative Code.]

       
       

    5. The discussion by the Board members clearly indicated that the Board believed Respondent was not "getting the message" that he had to comply with the regulations. As expressed during the discussions, "So I think that we have to send a message, a strong message that he has to do that from now on." (T27)(See also T 28). And later in the discussion, another Board member asked:

       
       

       How can we leave a message that he has to have complete [sic] the complete record so another veterinarian can go behind you and know exactly what was done to that horse day by day, document whether the horse - or not document what he saw, how he came to that conclusion.

       
       

       If a dog comes in I can't say he is sick and this is what I did. I have

       to say, well, he was limping on his right front limb. I have to explain it, or whatever, you have to document how you came to those conclusions.

       
       

       (T31)[See Rule 61G18-18.001(4)(f)(j)(a),

       Florida Administrative Code.]

       
       

       WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED THAT:

       
       

       1. Respondent shall pay COSTS of $542.42, FINES of $3,000.00, and take and pass the applicable laws and rules examination at Respondent's own expense no later than thirty (30) days after the filing of this Order with the Department's Clerk. Payment of said costs and fines shall be mailed to the Board of Veterinary Medicine, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, FL 32399-0792.

          
          

       2. Respondent shall be required to take an additional five (5) hours of continuing education related to the area of medical records within six (6) months after the filing of this Order.

          
          

       3. Respondent's license is suspended for a period of thirty (30) days.

       
       

       This Final Order shall take effect upon being filed with the Clerk of the Department of Business and Professional Regulation.

       
       

18. At the end of the Amended Final Order was the following "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 Health [sic] 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.

    
    

19. Respondent and Mr. Beilly attended the March 18, 2008, meeting at which the Board decided to take the action it subsequently memorialized in the Amended Final Order. After the meeting, Respondent authorized Mr. Beilly to seek appellate review and a stay of the Board's action.

20. Mr. Beilly received a copy of the Board's Amended Final Order on April 9 or 10, 2008, and he faxed a copy to Respondent, who read it.

21. After receiving the Board's Amended Final Order, Mr. Beilly spoke with Jennifer Tschetter, Esquire, the Department attorney who "would be handling the appeal of the [A]mended [F]inal [O]rder." Ms. Tschetter advised Mr. Beilly that the Department "would have no objection to a stay of the

    [A]mended [F]inal [O]rder being entered" by the appellate court. During their conversation, Mr. Beilly and Ms. Tschetter did not discuss whether Respondent would be able to lawfully practice prior to the entry of the appellate court's stay.

22. It is undisputed that "Respondent practiced as a veterinarian at Calder Race Track and at other venues, [from]

    April 10 [three days after the Amended Final Order took effect] through April 2[3], 2008."7

23. There is no evidence that Respondent's practicing veterinary medicine during this period of time resulted in damage to any person, animal, or thing.

24. At the time Respondent engaged in this activity, he believed, based upon the advice that he had previously been given by Mr. Beilly, that he was not doing anything wrong. It was his understanding that he "had 30 days to file an appeal [of the Amended Final Order] before [his] license was suspended" and that he "was allowed to practice while he applied for an appeal [and a] [s]tay."

25. On April 23, 2008, upon being informed by a Department investigator that his license was "under suspension" and that he therefore was "not allowed" to practice, Respondent "stopped working."

26. Respondent immediately telephoned Mr. Beilly, who filed, on behalf of Respondent, a Notice of Administrative Appeal of Amended Final Order and a Motion to Stay with the Fourth District Court of Appeal that same day, April 23, 2008. The appeal was docketed as Case No. 4D-08-1624.

27. On April 24, 2008, the Fourth District Court of Appeal issued the following order in Case No. 4D-08-1624:

    BY ORDER OF THE COURT:

    
    

    ORDERED that appellant's motion filed April 23, 2008, for stay pending appeal on

    expedited basis is granted. The enforcement of the Amended Final Order rendered on

    April 7, 2008, by the State of Florida Board of Veterinary Medicine is stayed pending the disposition of the above-styled appeal.

    
    

28. Respondent's appeal of the Amended Final Order is still pending.

29. On May 15, 2008, Department Investigator Russell Lambert sent Respondent a letter advising him that the Department was investigating the following complaint that had been assigned DBPR Case No. 2008-028603:

    Alleged violation of FSS 474.213(1)(e) use [of] a license that has been suspended.

    
    

    On 4/22/08 and 4/23/08 a sweep was conducted at the Ocala Breeders Sale. On 4/23/08, the Gainesville investigative office was notified that the Resp[ondent] was possibly working there and that his license had recently been suspended. On 4/23/08 at approximately 7:00 AM, investigators observed Dr. Aleong enter stall number 60, Building 17 and scope a horse with HIP Number 1025 owned by a person known as Hal Hatch. After Dr. Aleong completed the process and exited the stall, investigators approached him and referenced the status of his license, at which time Dr. Aleong stated that he was not aware that his license had been suspended. Dr. Aleong's wife, Pamela,

    was also present and advised that the horse was being scoped for her sister Christine Wasilewski.

    
    

30. On May 20, 2008, Department Investigator Beatriz Caldera sent Respondent a letter advising him that the Department was investigating the following complaint that had been assigned DBPR Case No. 2008-029108:

    Alleged Violation of F.S. 474.213(1)(e) practicing on a suspended license.

    
    

    On 4/24/08 Investigator Caldera visited Calder Race Track and found evidence which revealed that Dr. Aleong treated and prescribed medicine for horses at the track between 4/10/08-4/24/08. Dr. Aleong's license was suspended at the time.

    
    

31. The Administrative Complaint that is the subject of the instant proceeding was filed in DBPR Case No. 2008-029108 on or about August 26, 2008.

32. On November 13, 2008, Department Assistant General Counsel Elizabeth Duffy, Esquire, sent a letter to Respondent's attorney, Mr. Beilly, advising him of the following concerning DBPR Case No. 2008-028603:

    Please be advised the above-referenced case [DBPR Case No. 2008-028603] has been reviewed by the Department and closed without a finding of probable cause to believe your client violated the provisions of chapter 474, Florida Statutes, and/or the rules promulgated pursuant thereto. The case has been closed without prejudice[;] if the Department receives additional evidence or determines, upon further review, that the determination to close was in error, the

    Department reserves the right to reopen the case. If the case is reopened, you will be promptly notified.

    
    

    As this case has been dismissed without a finding of probable cause, the materials included within the file are confidential and may not be disclosed to the public without your written permission.

    
    

    Please contact me if you have any questions.

    
    

    CONCLUSIONS OF LAW

    
    

33. DOAH has jurisdiction over the subject matter of the instant proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.

34. The Board is statutorily empowered to take disciplinary action against Florida-licensed veterinarians based upon any of the grounds enumerated in Section 474.214(1), Florida Statutes, including "violating any provision of this chapter [Chapter 474, Florida Statutes]."

35. Such disciplinary action may include one or more of the following penalties: license revocation; license suspension (for a period not exceeding ten years); imposition of an administrative fine not to exceed $5,000.00 for each count or separate offense; issuance of a reprimand; placement of the licensee on probation; restricting the authorized scope of practice of the licensee; imposition of costs of the investigation and prosecution; and requiring the licensee to undergo remedial education. "In determining appropriate action,

    the [B]oard must first consider those sanctions necessary to protect the public. Only after those sanctions have been imposed may [it] consider and include in its order requirements designed to rehabilitate the veterinarian." § 474.214(2), Fla.

    Stat.

    
    

36. The Board may take disciplinary action only after the

    
    

    licensee has been given reasonable written notice of the charges and an adequate opportunity to request a proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes. See § 120.60(5), Fla. Stat.

37. An evidentiary hearing must be held if requested by the licensee when there are disputed issues of material fact. See §§ 120.569(1) and 120.57(1), Fla. Stat.

38. At the hearing, the Department bears the burden of proving that the licensee engaged in the conduct, and thereby committed the violations, alleged in the charging instrument. Clear and convincing evidence of the licensee's guilt must be presented for the Department to meet its burden of proof. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998); and § 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based upon a preponderance of the evidence, except in penal

    or licensure disciplinary proceedings or except as otherwise provided by statute ").

39. Clear and convincing evidence is an "intermediate standard," "requir[ing] more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). For proof to be considered "'clear and convincing' . . .

    the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. 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." In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(citing with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Adoption of Baby E. A. W., 658 So. 2d 961, 967 (Fla. 1995)("The evidence [in order to be clear and convincing] must be sufficient to convince the trier of fact without hesitancy."). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

40. In determining whether the Department has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific allegations of wrongdoing made in the charging instrument. Due process prohibits the Board from taking disciplinary action against a licensee based on conduct not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Aldrete v. Department of Health, Board of Medicine, 879 So. 2d 1244, 1246 (Fla. 1st DCA 2004); Shore Village Property Owners' Association, Inc. v. Department of Environmental Protection, 824 So. 2d 208,

    210 (Fla. 4th DCA 2002); and Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

41. Furthermore, "the conduct proved must legally fall within the statute or rule claimed [in the charging instrument] to have been violated." Delk, 595 So. 2d at 967. In deciding whether "the statute or rule claimed [in the charging instrument] to have been violated" was in fact violated, as alleged, if there is any reasonable doubt, that doubt must be resolved in favor of the licensee. See Djokic v. Department of Business and Professional Regulation, Division of Real Estate, 875 So. 2d 693, 695 (Fla. 4th DCA 2004); and Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

42. In those cases where the proof is sufficient to establish that the licensee committed the violation(s) alleged in the charging instrument and that therefore disciplinary action is warranted, it is necessary, in determining what disciplinary action should be taken against the licensee, to consult the Board's "disciplinary guidelines," as they existed at the time of the violation(s). See Aleong v. Department of Business and Professional Regulation, 963 So. 2d 799, 801 (Fla. 4th DCA 2007)("Pursuant to Florida Statutes section 455.2273, the Board was required to include in its order imposing sanctions written findings as to the aggravating circumstances which were the basis for its deviation from the recommended guidelines penalty."); Parrot Heads, Inc. v. Department of Business and Professional Regulation, 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An administrative agency is bound by its own rules . . . creat[ing] guidelines for disciplinary penalties."); and Orasan v. Agency for Health Care Administration, Board of Medicine, 668 So. 2d 1062, 1063 (Fla. 1st DCA 1996)("[T]he case was properly decided under the disciplinary guidelines in effect at the time of the alleged violations."); see also State v. Jenkins, 469 So. 2d 733, 734 (Fla. 1985)("[A]gency rules and regulations, duly promulgated under the authority of law, have the effect of law."); Buffa v. Singletary, 652 So. 2d 885, 886 (Fla. 1st DCA 1995)("An agency

    must comply with its own rules."); and 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).

43. At all times material to the instant case, the Board's "disciplinary guidelines" have been set forth in Florida Administrative Code Rule 61G18-30.001, and have provided, in pertinent part, as follows:

    (1) When the Board finds an applicant or licensee whom it regulates under Chapter 474, F.S., has committed any of the acts set forth in Section 474.213(1), F.S., which are felonies of the third degree as well as violations of the Practice act, it shall issue a final order imposing appropriate penalties, using the following disciplinary guidelines.

    
    

    * * *

    
    

    (e) Using or attempting to use a veterinarian's license which has been suspended or revoked.

    
    

    . . . . The usual action of the Board in the case of a licensee shall be to impose revocation if the subject's license has been suspended and an administrative fine of five thousand dollars ($5,000.00).

    
    

    * * *

    
    

    1. Based upon consideration of aggravating or mitigating factors present in an individual case, the Board may deviate from the penalties recommended in subsections (1), (2) and (3) above. The Board shall consider as aggravating or mitigating factors the following:

       
       

       1. The danger to the public;

          
          

       2. The length of time since the violation;

          
          

       3. The number of times the licensee has been previously disciplined by the Board;

          
          

       4. The length of time [the] licensee has practiced;

          
          

       5. The actual damage, physical or otherwise, caused by the violation;

          
          

       6. The deterrent [e]ffect of the penalty imposed;

          
          

       7. The [e]ffect of the penalty upon the licensee's livelihood;

          
          

       8. Any effort of rehabilitation by the licensee;

          
          

       9. The actual knowledge of the licensee pertaining to the violation;

          
          

       10. Attempts by [the] licensee to correct or stop [the] violation or refusal by [the] licensee to correct or stop [the] violation;

           
           

       11. Related violations against [the] licensee in another state including findings of guilt or innocence, penalties imposed and penalties served;

           
           

       12. Actual negligence of the licensee pertaining to any violation;

           
           

       13. Penalties imposed for related offenses under subsections (1), (2) and (3) above;

           
           

       14. Pecuniary benefit or self-gain enuring to [the] licensee;

           
           

       15. Any other relevant mitigating or aggravating factors under the circumstances.

    2. Penalties imposed by the Board pursuant to subsections (1), (2) and (3) above may be imposed in combination or individually, and are as follows:

    
    

    1. Issuance of a reprimand;

       
       

    2. Imposition of an administrative fine not to exceed five thousand dollars ($5,000.00) for each count or separate offense;

       
       

    3. Restriction of the authorized scope of practice;

       
       

    4. Placement of the licensee on probation for a period of time and subject to such conditions as the Board may specify, including requiring the licensee to attend continuing education courses or to work under the supervision of another licensee;

       
       

    5. Suspension of a license;

       
       

    6. Revocation of a license;

       
       

    7. Denial of an application for licensure or a permit to own and operate a veterinary establishment; and

       
       

    8. The taking and passing of a clinical competency specialty examination.

    
    

    * * *

    
    

44. The Administrative Complaint issued in the instant case alleges that Respondent practiced veterinary medicine with a suspended license between April 10, 2008, and April 24, 2008, in violation of Section 474.213(1)(e), Florida Statutes.

45. At all times material to the instant case, Section 474.213(1)(e), Florida Statutes, has provided that "[n]o person

    shall: [u]se or attempt to use a veterinarian's license which has been suspended or revoked."

46. The Department need prove neither intent nor knowledge to establish that a person has "[u]se[d] . . . a veterinarian's license which has been suspended or revoked" in violation of Section 474.213(1)(e), Florida Statutes.8 A person who

    "use[s] . . . a veterinarian's license which has been suspended or revoked" is strictly liable under the plain meaning of the statute, regardless of any advice he or she may have received from his or her attorney. See Huff v. State, 646 So. 2d 742, 744 (Fla. 2d DCA 1994)("In a pretrial proceeding, the state moved in limine to preclude Huff from presenting any evidence that he had relied on advice of counsel with regard to the sale of the mortgage interests. The judge granted the motion as to the offenses relating to the unauthorized sale of securities, which are strict liability crimes, and denied the motion as to the balance of the charges. This ruling was correct because scienter is not an element of security law violations. It was irrelevant whether Huff's violation of the securities laws was the result of erroneous legal advice. At a subsequent hearing before a successor judge, the state renewed its motion in limine and the successor judge, without explanation, granted the motion as to all the charges. This was error. Advice of counsel can

    be a valid defense to specific intent crimes.")(citation omitted).

47. At all times material to the instant case, Section 474.214(1)(f), Florida Statutes, has authorized the Board to take disciplinary action against a Florida-licensed veterinarian who has violated any provision of Chapter 474, Florida Statutes, including Section 474.213(1)(e), Florida Statutes.

48. The proof presented at the final hearing in this case clearly and convincingly establishes that, as alleged in the Administrative Complaint, Respondent practiced veterinary medicine with a suspended license9 from April 10, 2008, through April 23, 2008,10 in violation of Section 474.213(1)(e), Florida Statutes, and therefore also Section 474.214(1)(f), Florida Statutes.

49. Neither the "parties' prior course of performance"11 nor the "lack of finding of probable cause in DBPR investigation case no. 2008-028603"12 prevents the Board from finding Respondent guilty of these violations and disciplining him therefor.

50. That Respondent believed that he was not prohibited from practicing during this period (based upon what his attorney had told him) does not insulate him from liability, but it is a significant "mitigating factor" under Florida Administrative Code Rule 61G18-30.001(4) weighing against the Board's

    imposition in the instant case of the "usual" penalty for a violation of Section 474.213(1)(e), Florida Statutes, by a licensee (which is "revocation if the subject's license has been suspended and an administrative fine of five thousand dollars").13 Cf. In Re: Mitchell Kinzer, No. 93-0313EC, 1994 Fla. Div. Adm. Hear. LEXIS 5188 *40 (Fla. DOAH January 25, 1994)(Recommended Order)("Where, as here, there is no requirement of wrongful intent, Respondent's reliance on the incorrect advice of counsel is not a defense. Respondent's reliance on the prior advice of counsel mitigates, but does not obviate the violation.").

51. Having considered the facts of the instant case (including, most significantly, but not exclusively, Respondent's aforementioned belief that he was not violating the law) in light of the pertinent and applicable provisions of Florida Administrative Code 61G18-30.001, it is the view of the undersigned that, as punishment for Respondent's violation of Section 474.213(1)(e), Florida Statutes, and Section 474.214(1)(f), Florida Statutes, the Board should suspend his license for 17 days (the number of days that he practiced veterinary medicine with a suspended license); fine him

$1,000.00; place him on probation for a year; and require him to pay the Department's investigative and prosecutorial costs.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Board issue a Final Order:

(1) finding Respondent guilty of violating Section 474.213(1)(e), Florida Statutes, and Section 474.214(1)(f), Florida Statutes; (2) suspending his license for a period of 17 days; (3) fining him $1,000.00; (4) placing him on probation for a year; and (5) ordering him to reimburse the Department's investigative and prosecutorial costs.

DONE AND ENTERED this 1st day of July, 2009, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 1st day of July, 2009.

ENDNOTES

1 Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to Florida Statutes (2008).

2 At the final hearing, the parties modified this stipulation of fact to read as follows:

At all times material to the count in the Administrative Complaint, Respondent practiced as a veterinarian at Calder Race Track and at other venues, April 7 through April 23, 2008.

3 The hearing was originally scheduled for December 22, 2008, but was continued twice at the request of Petitioner.

4 The Proposed Recommended Order's Certificate of Service reflects that a copy was "sent by email and U.S. Mail to counsel for the Department on June 9, 2009."

5 It was Mr. Winters' standard practice, from which he did not deviate in his dealings with Mr. Beilly, to tell those who inquired "regarding an order [of suspension]" something to the following effect:

[T]hat the order is effective and enforceable upon rendering by the agency clerk's office and that you have a right to an appeal and can request a [s]tay but if the order is effective and we do catch you practicing, it will be considered a violation and it will be investigated and prosecuted according[ly] . . . .

6 While there is a conflict in the evidence regarding what Mr. Winters told Mr. Beilly, no evidentiary conflict exists regarding what Mr. Beilly told Respondent.

7 In his Proposed Recommended Order, Respondent admits that he "practiced veterinary medicine between April 7, 2008 [the day the Amended Final Order took effect] and April 23, 2008, the day before the stay was entered."

8 Compare the language of Section 474.213(1)(e) with that of Subsections (1)(f)("[n]o person shall: [k]nowingly employ unlicensed persons in the practice of veterinary medicine"), (1)(g)("[n]o person shall: [k]nowingly conceal information relative to violations of this chapter"), and (1)(k)("[n]o person shall: [k]nowingly operate a veterinary establishment or

premises without having a premise permit issued under s. 474.215") of the same statute. See Beshore v. Department of Financial Services, 928 So. 2d 411, 413 (Fla. 1st DCA 2006)("One of the first rules of statutory construction is that the plain meaning of the statute is controlling. If the language is clear and unambiguous, there is no need to engage in statutory construction. The language of the statute [Section 626.901(1), Florida Statutes] clearly imposes an absolute bar against representing an unauthorized insurer. Moreover, the supreme court has held that where the legislature has used a term in one section of a statute but omitted the term in another section, the court will not read the term into the sections where it was omitted. The legislature's use of different terms in different sections of the same statute is strong evidence that different meanings were intended. . . . The fact that the very next section of the statute [Section 626.901(2), Florida Statutes] contains a knowledge element indicates that the legislature intended to impose different knowledge requirements in each section.")(citations omitted).

9 The Amended Final Order unambiguously provided that Respondent's 30-day suspension would "take effect" upon the Amended Final Order's "being filed with the Clerk of the Department of Business and Professional Regulation." The Amended Final Order was filed with the Department's Clerk On April 7, 2008. Accordingly, Respondent's license was "under suspension" from April 7, 2008, until the Fourth District Court of Appeal entered a stay of the Amended Final Order on April 24, 2008.

10 The Department failed to prove by clear and convincing evidence that Respondent practiced veterinary medicine with a suspended license on April 24, 2008, as further alleged in the Administrative Complaint.

11 At the heart of Respondent's argument that the "parties' prior course of performance precludes enforcement under the facts of this case" is his claim that "the DBPR, acting in March 2006 through Drew Winters, Esq., represented to Aleong's counsel that the DBPR would not take action against Respondent Aleong for practicing veterinary medicine prior to entry of an order of a stay with respect to [the] March 28, 2006 Vet Board order." Crediting the testimony of Mr. Winters' on the matter, the undersigned has found that Mr. Winters made no such representation.

12 In his Proposed Recommended Order, Respondent argues:

In the instant case, the DBPR issued a letter to Respondent Aleong which stated that in connection with investigation 2008- 028603 as to whether he violated Fla. Stat. 474.213(1)(e), no probable cause was found that Respondent Aleong violated said statute. The Administrative Complaint filed in the above styled proceeding was filed pursuant to a subsequent investigation and, apparently, a second probabl[e] cause panel. As the law above states, the Vet Board . . . is not authorized to have more than one probable cause panel. Accordingly, the finding of no probable cause by the probable cause panel, which considered the investigation in case number 08-[028603], precludes the filing of an administrative complaint arising out of the same subject matter as investigation number 08-028603 concerned.

The argument is unpersuasive. Firstly, the complaint investigated in DBPR Case No. 2008-028603 was not based upon the same alleged facts as the complaint investigated in the instant case (DBPR Case No. 2008-029108). The former made allegations concerning events that had occurred in Ocala, whereas the latter made allegations concerning events that had occurred at Calder Race Track in Miami Gardens. See Department of Health, Board of Medicine v. Boczar, No. 01-1486PL, 2002 Fla. Div. Adm. Hear.

LEXIS 148 *18-19 (Fla. DOAH February 6, 2002)(Recommended Order)("Dr. Boczar argues that she cannot be found guilty of a violation of Rule 64B8-10.002(4), Florida Administrative Code, because she received a Letter of Guidance concerning a charge of relocating her office without complying with the notice requirements of Rule 64B8-10.002(4), Florida Administrative Code. The Letter of Guidance advised that the Probable Cause Panel had dismissed Case No. 2000-08415 against her at its meeting on May 11, 2001. There is no evidence to show that the facts upon which the complaint in Case No. 2000-08415 was based are the same facts on which the administrative complaint in the instant case is based. . . . Without establishing that the complaints are based on the same facts, Dr. Boczar cannot rely on a defense of res judicata . . . ."). Secondly, the record evidence fails to establish that the probable cause panel found

no probable cause in DBPR Case No. 2008-028603. Rather, it appears that the Department merely closed the case "without a finding of probable cause" having been made by the probable cause panel. Moreover, it did so "without prejudice" to subsequently reopening the case. "A voluntary dismissal without prejudice will not support a claim of res judicata." Froman v. Kirland, 753 So. 2d 114, 116 (Fla. 4th DCA 1999).

13 In its Amended Proposed Recommended Order, the Department proposes that the undersigned recommend that the Board impose this "usual" penalty of revocation and a $5,000.00 fine.

COPIES FURNISHED:

Elizabeth Duffy, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Bradford J. Beilly, Esquire 1144 Southeast Third Avenue Fort Lauderdale, Florida 33316

Juanita Chastain, Executive Director Board of Veterinary Medicine Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 08-005457PL

Orders for Case No: 08-005457PL