STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 10-2388PL

)

PHILLIP J. ALEONG, D.V.M. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case before Edward T. Bauer, an Administrative Law Judge of the Division of Administrative Hearings, on October 20, 2010, by video teleconference at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Elizabeth F. Henderson, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: Bradford J. Beilly, Esquire

Bradford J. Beilly, P.A. 1144 Southeast Third Avenue

Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent committed the violation alleged in the Administrative Complaint, and if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On January 4, 2008, Petitioner, the Department of Business and Professional Regulation filed an Administrative Complaint alleging that Respondent violated section 474.214(1)(ee), Florida Statutes, by failing to keep contemporaneously written medical records in the manner required by Florida Administrative Code Rules 61G18-18.002(1) and (3).

On February 4, 2008, Respondent filed an Election of Rights form requesting a formal hearing to contest the allegations of fact contained in the Administrative Complaint. Respondent's request for hearing and the Administrative Complaint were forwarded to the Division of Administrative Hearings on

April 30, 2010, with a request that the matter be assigned to an administrative law judge. The request was designated DOAH Case Number 10-2388PL and was assigned to Administrative Law Judge John G. Van Laningham.

The final hearing in this matter was initially scheduled for August 24 through 26. At the parties' request, the final hearing was rescheduled for October 19 and 20, 2010.

In pleadings filed on September 29 and October 14, 2010, Respondent raised three affirmative defenses, the first of which alleged that "the Board of Veterinary Medicine is arbitrarily applying its rules against him for ulterior purposes. On October 14, 2010, Petitioner filed a "Motion in Limine / Motion for Protective Order" after it learned that Respondent intended to introduce evidence, in support of his first affirmative defense, that the Board of Veterinary Medicine had found no probable cause to initiate disciplinary proceedings against a different veterinarian. This cause was transferred to the undersigned the following day, and a hearing on Petitioner's motion was scheduled for October 18, 2010.

During the October 18, 2010, motion hearing,1 Respondent advised that in support of his first affirmative defense, he wished to introduce evidence relating to a complaint that was filed with the Board of Veterinary Medicine within the previous twelve months. The complaint, which was submitted by the Florida Horseman's Benevolent and Protective Association, alleged that a veterinarian had committed misconduct by permitting a horse afflicted with a communicable illness to comingle with other horses. According to Respondent, the complaint also alleged that due to the particular illness with which the horse was afflicted, the veterinarian in question should have notified the appropriate state agency. Respondent

further contended that the Board of Veterinary Medicine subsequently made a finding of no probable cause with respect to the complaint.

After considering the arguments raised during the hearing on Petitioner's Motion in Limine / Motion for Protective Order, the undersigned determined that the evidence concerning the Florida Horseman's complaint and the finding of no probable cause were irrelevant2 and therefore would not be admitted during the final hearing.

Prior to the final hearing, the parties filed a joint Prehearing Stipulation that contained certain admitted facts. To the extent relevant, those facts have been included in this Recommended Order.

During the final hearing, Petitioner presented the testimony of Faith Hughes,3 D.V.M., and introduced eight exhibits, labeled A through I. Respondent testified on his own behalf and presented the testimony of Joseph Zerilli, D.V.M, Kent Sterling, and Charles Dunn. Respondent introduced three exhibits, labeled A through C. Respondent also proffered a fourth exhibit, which the undersigned ruled was inadmissible.

A two-volume Transcript of the final hearing was filed with the Division of Administrative Hearings on November 10, 2010.

On November 19, 2010, Respondent filed an unopposed motion requesting an extension of time to file a proposed recommended

order. The undersigned granted the motion, and ordered the parties to submit proposed recommended orders by December 13, 2010. Both parties filed proposed recommended orders, which the undersigned has considered.4

Unless otherwise indicated, all rule and statutory references are to the versions in effect at the time of the

alleged violation.

1. The Parties

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner, the Department of Business and Professional Regulation, is the state agency charged with the duty to regulate the practice of veterinary medicine in Florida pursuant to chapters 455 and 474, Florida Statutes.

   2. At all times material to this proceeding, Respondent Philip J. Aleong has been licensed as a veterinarian in the State of Florida, having been issued license number VM 6466.

   3. Respondent obtained his veterinary degree from Tuskegee University in 1994, and began to practice veterinary medicine in Florida the same year. In 1996, Respondent moved to Maryland, where he was employed at a race course for approximately two years. Respondent returned to Florida in 1997 or 1998, where he has continued to practice veterinary medicine. From the evidence adduced during the final hearing, it appears that much

      
      

      of Respondent's practice involves the provision of prophylactic, pre-race medical services to thoroughbred racehorses.

2. Prior Misconduct Relevant to Respondent's Second Affirmative Defense

   
   

   1. On September 14, 2006, Petitioner filed an administrative complaint that alleged, in part, that Respondent failed to maintain radiographs and other records related to a pre-purchase examination of racehorse "C. Brooke Run," which was conducted in April of 2003 at the Ocala Breeders' Sale.

   2. Pursuant to Respondent's request for a formal hearing to contest the allegation, the matter was referred to DOAH in May 2007 and assigned Case No. 07-2415. On April 2, 2008, following the conclusion of the proceedings at DOAH, Petitioner entered a Final Order reprimanding Respondent, placing his license on probation for six months, and imposing a $1,000 fine.5

3. The Instant Complaint

   
   

   1. On or about March 14, 2006, Petitioner6 served Respondent with six subpoenas duces tecum, which directed him to produce all documents or other veterinary records concerning the following racehorses: "Musical Beat," "Orlik," "Suave Prince," "Fast Tracker," "Dondoca," and "Bolido." Subsequently, on

      May 30, 2006, Respondent provided the requested documents, which related to veterinary services provided to the horses on various dates during 2004 and 2005.

      
      

   2. Three months later, on August 25, 2006, an investigative report was completed and forwarded at some point thereafter to Petitioner's legal department. Subsequently, on January 4, 2008, Petitioner filed an Administrative Complaint against Respondent that is the subject of this proceeding. Although Respondent filed an Election of Rights form on February 4, 2008, which requested a formal administrative hearing, the matter was not referred to DOAH until April 30, 2010.

   3. Petitioner's sole witness at the final hearing in this cause was Dr. Faith Hughes, who was accepted by the undersigned as an expert in the field of veterinary medicine.

   4. Dr. Hughes testified that at the request of the Department, she had examined the medical records provided by Dr. Aleong to determine if they complied with the requirements of section 474.214(1)(ee) and Florida Administrative Code Rule 61G18-18.002.

   5. Dr. Hughes opined, and the undersigned agrees, that the records of six horses suffered from various deficiencies, which included:

      "Musical Beat": Medications were administered, but the frequency was not specified for any of the drugs. In addition, while blood work was done, the records fail

      
      

      to indicate why blood was drawn or what the result was.

      "Orlick": Medications were administered, such as Bactrim, but no amount or frequency was indicated. "Suave Prince": Penicillin and other medications were

      administered, but no amount or frequency was recorded.

      
      

      "Fast Tracker": Although the records indicate that blood work and radiographs were taken, no results were documented. Further, it could not be determined from the November 15, 2004, record if Depo Provera or Depo Medrol was administered, as the record merely indicates the abbreviation "DEPO." In addition, the records failed to demonstrate the frequency the various drugs were administered. Finally, while blood work was done, the records contain no results.

      "Dondoca": With respect to each medication administered, which included Bactrim and Cortisone, there was no indication as to the dosage or frequency.

      "Bolido": Medications were administered, but the amount and frequency were not documented with respect to each. Further, the records indicate that radiographs were taken, but no findings were documented.

      
      

   6. In his defense, Respondent presented the testimony of Dr. Joseph Zerilli, who was accepted by the undersigned as an expert in veterinary medicine. Dr. Zarelli opined that the records concerning each of the horses contained sufficient information to comply with the applicable statute and rules. Similarly, Respondent testified on his own behalf that the records relating to each of the horses were adequate. The undersigned is not persuaded by the testimony of Respondent or Dr. Zarelli on this point.

   7. However, Respondent testified, credibly, that no animal was harmed, nor was the public endangered, as a result of the alleged recordkeeping violations in this matter. Respondent further testified, and the undersigned accepts as true, that negative action against his license (i.e., suspension or revocation) would detrimentally affect his livelihood.

4. Ultimate Findings

1. The undersigned accepts Dr. Hughes' testimony as detailed in paragraph ten of this Recommended Order and finds, as a matter of ultimate fact, that Respondent violated section 474.214(1)(ee).7

2. Respondent has failed to prove his first affirmative defense, wherein he alleges that Petitioner is arbitrarily and selectively applying its rules against him based in part on his race. No evidence was adduced by Respondent to demonstrate that

   
   

   Petitioner has declined to prosecute similarly situated persons (i.e., veterinarians accused of inadequate recordkeeping).

3. Respondent also failed to demonstrate that the instant charge should have been brought in an earlier administrative proceeding, and as such, there is no showing that Petitioner impermissibly engaged in a "splitting of the action." Accordingly, Respondent's second affirmative defense is rejected.

4. With respect to his third affirmative defense, Respondent demonstrated a substantial delay in the prosecution of this matter that violated the requirements of section 455.25(4), Florida Statutes. However, this affirmative defense is also rejected, as Respondent was unable to demonstrate that the delay resulted in prejudice.

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction

      
      

5. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to section 120.57(1), Florida Statutes.

   1. The Burden and Standard of Proof

      
      

6. This is a disciplinary proceeding against Respondent's license. Accordingly, Petitioner must prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v.

   
   

   Osborne Sterne, Inc., 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

   
   

   Turlington, 510 So. 2d 292, 294 (Fla. 1987).

   
   

7. Clear and convincing evidence:

   
   

   requires that 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 lacking in confusion as to the facts in issue. The evidence must be of such a 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)(quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

   1. The Charge Against Dr. Aleong

      
      

8. Petitioner alleges in the Administrative Complaint that Dr. Aleong violated section 474.214(1)(ee) by failing to keep contemporaneously written medical records as required by the Board of Veterinary Medicine.

9. The Board of Veterinary Medicine has established requirements for the maintenance of veterinary medical records in Florida Administrative Code Rule 61G18-18.002, which provides, in relevant part:

   1. There must be an individual medical record maintained on every patient examined or administered to by the veterinarian, except as provided in (2) below, for a period of not less than three years after date of last entry. The medical records shall contain all clinical information pertaining to the patient with sufficient

      
      

      information to justify the diagnosis or determination of health status and warrant any treatment recommended or administered.

      * * *

      1. Medical records shall be contemporaneously written and include the date of each service performed. They shall contain the following information:

         Name of owner or agent Patient identification

         Record of any vaccinations administered Complaint or reason for provision of services

         History

         Physical examination

         Any present illnesses or injury noted Provisional diagnosis or health status determination

         
         

      2. In addition, medical records shall contain the following information if these services are provided or occur during the examination or treatment of an animal or animals:

      Clinical laboratory reports Radiographs and their interpretation Consultation

      Treatment - - medical, surgical Hospitalization

      Drugs prescribed, administered, or dispensed Tissue examination report

      Necropsy findings (Emphasis added).

10. As referenced above, Florida Administrative Code Rule 61G18-18.002(4) requires that medical records include information concerning "[d]rugs prescribed, administered, and dispensed." The foregoing language has been sensibly interpreted to require a veterinarian to not only record the name of a medication prescribed, but also indicate the amount of

    
    

    medication. Dep't of Bus. & Prof'l Reg., Bd. of Veterinary Med. v. Mysore, Case No. 08-1606 (Fla. DOAH January 12, 2009)

    (finding violation of section 474.214(1)(ee) where veterinarian failed record the amounts of Atropine and Acepromazine that were administered; "While identifying the type of drugs administered to an animal is clearly crucial in ensuring the proper care of the animal, being aware of the amount of drug administered is just as crucial"); Dep't of Bus. & Prof'l Reg., Bd. of Veterinary Med. v. McGee, Case No. 94-3567 (Fla. DOAH September 1, 1995) (finding violation of section 474.214(1)(ee) where records did "not contain sufficient information as to the doses of antibiotics administered.").

11. As in Mysore and McGee, Respondent failed to record the amounts of numerous medications administered to at least five of the horses. Accordingly, based on the findings of fact herein, Petitioner has proven by clear and convincing evidence that Respondent violated section 474.214(1)(ee).

12. In the alternative, a violation of section 474.214(1)(ee) was established, by clear and convincing evidence, based upon Respondent's failure to the maintain the radiographs (and the interpretations of such radiographs) of "Fast Tracker" and "Bolido," as required by Florida Administrative Code Rule 61G18-18.002(4).

    
    

    1. Affirmative Defenses - Burden

       
       

13. Respondent has asserted three affirmative defenses, and bears the burden of proving the facts that support each defense. Ellingham v. Fla. Dep't of Children & Family Servs., 896 So. 2d 926, 927 (Fla. 1st DCA 2005); Pub. Health Trust of Dade Cnty. v. Holmes, 646 So. 2d 266, 267 (Fla. 3d DCA 1994). Respondent's three affirmative defenses are discussed separately below.

    1. First Affirmative Defense

       
       

14. As his first affirmative defense, Respondent argues that the Petitioner is "arbitrarily applying its rules against [him] for ulterior purposes based in part on his race in violation of both the Florida and United States Constitutions and, in particular, the Equal Protection Clause."

15. An allegation that a governmental agency is acting selectively or arbitrarily in taking enforcement action states a valid affirmative defense in the administrative context. See Divosta & Co., Inc., v. Dep't of Transp., Case No. 98-5401 (Fla. DOAH May 12, 1999) (addressing selective enforcement defense on the merits; concluding that elements of defense were not satisfied where respondent failed to prove unequal treatment that was the product of vindictiveness or some other

    impermissible motive on the part of the agency); Dep't of Bus. & Prof'l Reg. v. Aleong, Case No. 06-2717 (Fla. DOAH January 5,

    
    

    2007) (addressing selective enforcement defense on the merits; finding that respondent failed to prove that "there were similarly situated veterinarians and that he [was] being treated differently").

16. Respondent has failed to meet his burden of proof, as no evidence was adduced that he is being arbitrarily treated differently than other similarly situated veterinarians. Thus, Respondent's first affirmative defense is rejected.8

    1. Second Affirmative Defense

       
       

17. Respondent contends, as his second affirmative defense, that "Petitioner is barred from proceeding forward on its Administrative Complaint by the legal doctrine prohibiting the 'splitting of an action,' which is a form of res judicata."

18. In particular, Respondent asserts that the instant recordkeeping violation should have been included in an earlier administrative complaint filed on September 14, 2006, which was referred to DOAH in May 2007 and assigned Case No. 07-2415. That case, which was heard by Administrative Law Judge Linda M. Rigot, involved an alleged recordkeeping violation relating to an April 2003 pre-purchase examination of a thoroughbred racehorse, "C. Brooke Run," at the Ocala Breeders' Sale.

19. The undersigned concludes that the "splitting of the action" doctrine is not applicable, as the recordkeeping deficiencies giving rise to the instant case, which occurred in

    
    

    Dade County during 2004 and 2005, are entirely unrelated to the April 2003 pre-purchase examination in Alachua County that was litigated in DOAH Case No. 07-2415. See Dep't of Agric. & Consumer Servs. v. Mid-Florida Growers, 570 So. 2d 892, 901 (Fla. 1990) ("The rule against splitting causes of action is predicated on the following basic policy considerations . . . multiple lawsuits arising out of a single incident are costly to litigants and an inefficient use of judicial resources") (emphasis added); McKibben v. Zamora, 358 So. 2d 866, 868 (Fla. 3d DCA 1978) (observing that the rule against splitting causes of action "avoids vexatious and multiple lawsuits arising out of a single . . . incident") (emphasis added). As the instant matter and DOAH Case No. 07-2415 arose out of separate incidents, Respondent's second affirmative defense fails.

    1. Third Affirmative Defense

       
       

20. As his final affirmative defense, Respondent alleges that Petitioner failed to comply with section 455.225(4), Florida Statutes, which provides that the "department shall also refer to the board any investigation or disciplinary proceeding not before the Division of Administrative Hearings pursuant to chapter 120 or otherwise completed by the department within 1 year of the filing of a complaint," and therefore the Administrative Complaint should be dismissed.

    
    

21. As detailed in the findings of fact herein, the medical records of the six horses related to this action were provided to Petitioner in March 2006, and an investigative report was completed on August 25, 2006. Inexplicably, however, the Administrative Complaint was not filed until

    January 4, 2008. Even stranger, on February 4, 2008, Respondent filed a request for formal hearing, yet the matter was not referred to DOAH until April 30, 2010, nearly twenty-seven months later. These delays unquestionably violate the dictates of section 455.225(4).

22. That does not end the inquiry, however. In Carter v.

    
    

    Dep't of Professional Regulation, Board of Optometry, 633 So. 2d 3, 7 n.4 (Fla. 1994), the court acknowledged that "the Department and the Board clearly violated the section 455.225 time limits and that no adequate justification for the violations was provided." Nevertheless, the court held that to obtain a dismissal, the burden was on the licensee to demonstrate that the delay "may have impacted the fairness of the proceedings or the correctness of the action." Id. at 5.

    As the licensee in Carter "had not proven that the delay prejudiced him in any way," the court held that he was not entitled to dismissal of the administrative complaint. Id.

23. In the instant case, Respondent made no showing of resulting prejudice from the unreasonable delay, such as fading

    
    

    memories or the unavailability of a witness. As such, the undersigned is compelled to find that Respondent is not entitled to dismissal. Compare Carter, 633 So. 2d 3, with Dep't of Health v. Thomas, Case No. 01-4406 (Fla. DOAH August 8, 2002) (finding licensee was entitled to dismissal based upon violation of time limits contained in section 455.225; substantial delay resulted in prejudice, as neither licensee nor his principal witness had independent recollections of the medical procedure giving rise to the complaint).

    1. The Appropriate Penalty

    
    

24. In determining the appropriate recommended penalty in this case, it is necessary to consult the relevant disciplinary guidelines in effect at the time of Respondent's misconduct. See Orasan v. Agency for Health Care Admin., Bd. of Med., 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."). At the time Respondent committed the violation alleged in the Administrative Complaint, Florida Administrative Code Rule 61G18-30.001(2)(ee) provided that for a failure to keep contemporaneously written medical records, the "usual action of the Board shall be issuance of a reprimand plus six months probation, a fine of one thousand five hundred dollars ($1,500.00) and investigative costs." Significantly, while Respondent has been previously disciplined for medical

    
    

    record violations, the guidelines in effect at the time of the instant offense did not specify a usual penalty for a second or subsequent violation.9

25. In its Proposed Recommended Order, Petitioner argues that the sole aggravating factor of Respondent's previous disciplinary history justifies the "elevated" penalty of revocation of his license to practice veterinary medicine, as well as the imposition of a $5,000 fine.

26. Although Respondent's disciplinary history constitutes an aggravator, it is substantially outweighed by the following mitigating factors: (a) Respondent has been practicing veterinary medicine for sixteen years; (b) the public was not endangered by the instant recordkeeping violation; (c) the Respondent presented credible, unrebutted testimony that the violation caused no actual damage to an animal; (d) the conduct giving rise to the Administrative Complaint occurred approximately five years ago; (e) Respondent testified that he has modified his recordkeeping procedures to avoid future violations; and (f) a revocation of Respondent's license to practice veterinary medicine would destroy his livelihood. See

    Fla. Admin. Code R. 61G18-3.001(4) (listing aggravating and mitigating factors). It is also worth noting that the most serious penalty previously imposed against Respondent was by a final order issued in March 2006 (subsequent to the conduct

    
    

    giving rise to the instant case) in Board of Veterinary Medicine Case No. 2003-093234, in which Respondent was suspended for 30

    days and fined $3000.

    
    

27. In the undersigned's view, a revocation of Respondent's license based upon the relatively benign misconduct presented herein, some five years after the fact, is entirely unwarranted. Instead, the undersigned concludes, after considering all the relevant circumstances, that the guideline penalty of a letter of reprimand, a six-month term of probation, and a fine of $1,500 is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding that Dr. Phillip J. Aleong violated section 474.214(1)(ee), Florida Statutes. It is further recommended that the Board issue a letter of reprimand, place Dr. Aleong's license to practice veterinary medicine on probation for a period of six months, and require that he pay a fine of

$1,500.00, as well as $203.74 for the costs of investigation,10 within 90 days of the entry of the final order.

DONE AND ENTERED this 29th day of December, 2010, in Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

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 29th day of December, 2010.

ENDNOTES

1 The transcript of the motion hearing erroneously indicates that Administrative Law Judge John G. Van Laningham presided.

2 The evidence excluded by the undersigned could not have logically supported an arbitrary or selective enforcement defense, as the conduct in the instant case (inadequate recordkeeping) is dissimilar to the allegations reported to the Board of Veterinary Medicine by the Florida Horseman's Association. See St. Lucie Cnty. Sch. Bd. v. Baker, Case No. 02-973 (Fla. DOAH December 31, 2002) (noting that for a selective enforcement defense to prevail, a licensee must demonstrate that "while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled

out for prosecution") (emphasis added) (quoting State v. A.R.S., 684 So. 2d 1383, 1384 (Fla. 1st DCA 1996)).

3 During the final hearing, Dr. Hughes testified by telephone and was administered an oath by a notary public at the witness' location. On December 14, 2010, the undersigned issued an Order to Show Cause that directed Petitioner to file a written certification from the notary public "confirming the identity of the witness, and confirming the affirmation or oath by the

witness," as required by Florida Administrative Code Rule 28- 106.213(5)(b). Petitioner properly complied with the Order to Show Cause, and the undersigned has fully considered Dr. Hughes' testimony.

4 Due to a clerical error, Petitioner's Proposed Recommended Order was filed one day late. The undersigned has considered Respondent's Motion to Strike Petitioner's Proposed Recommended Order, as well as Petitioner's Response to Motion to Strike, and concludes that Respondent was not prejudiced by the tardy filing. Accordingly, Respondent's Motion to Strike Petitioner's Proposed Recommended Order is denied.

5 The final order was affirmed on appeal. See Aleong v. Dep't of Bus. & Prof'l Reg., 10 So. 3d 1210 (Fla. 4th DCA 2009).

6 The subpoena was issued by the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering.

7 As the Administrative Complaint only alleges a single violation of section 474.214(1)(ee), it is not necessary for the undersigned to address the other purported deficiencies outlined by Dr. Hughes.

8 The undersigned is disturbed by the credible, unrebutted evidence that a member of the Board of Veterinary Medicine has referred to Respondent as a "fucking chink" on multiple occasions. This evidence was admissible notwithstanding Petitioner's hearsay objection, as the statements were admitted not to prove the truth of the matter asserted (i.e., that Respondent is in fact a "fucking chink"), but rather to demonstrate that the comments were made. See Charles W. Ehrhardt, Ehrhardt's Florida Evidence § 801.6, p. 792 (2010 ed.) ("The statement 'Mr. Jones is a crook' is admissible when a witness testifies that he or she heard the defendant make the statement out-of-court because the statement is not being offered to prove that Mr. Jones was a crook, it is being offered to prove that the statement was made"). Respondent also presented evidence that this particular member of the Board of Veterinary Medicine has expressed his desire to revoke Respondent's license and "put it on the wall." Had Respondent presented evidence that he is being singled out for recordkeeping prosecutions, and that the board member in question had some involvement in initiating the instant prosecution, the undersigned may have reached a different conclusion as to this affirmative defense.

9 On August 20, 2009, Florida Administrative Code Rule 61G18- 30.001(2)(ee) was amended to increase the usual penalty for a first offense to "the issuance of a reprimand and up to one (1) year probation, and an administrative fine of up to two thousand dollars." In addition, language was added to specify that the customary penalty for second or subsequent offenses "shall be .

. . two (2) years probation and an administrative fine of five thousand dollars." This version of the rule is inapplicable to the instant case, however, as it was not in effect at the time Respondent committed the charged offense.

10 In its Proposed Recommended Order, Petitioner asserts that the costs of investigation total $2346.78. However, that amount is contrary to Petitioner's Exhibit J, which demonstrates that the investigative costs equal $203.74.

COPIES FURNISHED:

Elizabeth F. Henderson, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Bradford J. Beilly, Esquire Bradford J. Beilly, P.A.

1144 Southeast Third Avenue Fort Lauderdale, Florida 33316

Juanita Chastain, Director Division of Professions Board of Veterinary Medicine Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Reginald Dixon, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 10-002388PL

Orders for Case No: 10-002388PL