Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice veterinary medicine. Petitioner is also responsible for regulating the practice of veterinary medicine. Respondent is licensed as a veterinarian pursuant to license number VM 0002578. Respondent practices veterinarian medicine in Orlando, Florida. Kari On May 5, 1993, Respondent performed an ovariohysterectomy on a feline ("Kari"). An ovariohysterectomy is the surgical removal of the uterus and both ovaries, i.e., a "spay." Respondent failed to remove the left ovary from "Kari." During the surgery, Respondent noted that the ovary was not on the gauze where Respondent had placed the right ovary and other incidental material that Respondent removed surgically. 3/ Respondent searched inside and outside the surgical area for about an hour but could not locate the ovary. Respondent noted in the medical record that an ovarian remnant may have been left in the cat. Respondent advised the owner that if the cat went into heat she should bring the cat back for exploratory surgery to attempt to find and remove the remnant. On July 12, 1993, 4/ the owner observed "Kari" in heat and returned the cat to Respondent. Respondent performed exploratory surgery in an attempt to find an ovarian remnant. Respondent spent approximately one hour searching for microscopic tissue that could be the ovarian remnant. He cleaned the ovarian ligaments in the area of the left and right ovaries, searched the peritoneal area, and searched the adjacent organs. Respondent removed some material but did not locate and remove an ovarian remnant. Respondent advised the owner that he did not find a remnant but that he thought he had removed all of the ovary. Respondent instructed the owner to advise him if the cat came back into heat. Respondent did not charge the owner for the second surgery. In August, 1993, the owner advised Respondent that the cat was in heat. The owner was unwilling to have Respondent perform surgery again. Respondent advised the owner to see a surgical specialist at Respondent's expense. On November 18, 1993, the owner took "Kari" to the Kissimmee Animal Hospital. Medical tests established the cat's estrogen level to be 43.4 pg/ml. The normal estrogen level for a spayed cat is below 25 pg/ml. The treating physician at Kissimmee Animal Hospital referred the owner to a specialist for a third surgery. The owner did not want to subject the cat to a third surgery or incur additional veterinary expenses. On February 16, 1994, "Kari" died. The owner had a necropsy performed. The left ovary was still present in the cat. The pathologist who performed the necropsy retrieved the left ovary from the cat. He initially identified the ovary by visual examination and subsequently confirmed his initial identification on histopathology. The histopathology examination revealed that the ovary and oviduct fimbria were normal. The ovary was the original ovary in its original anatomic position. The ovary was attached to the ligaments that attach the ovary to the dorsal abdominal wall and posterior part. The pathologist found no suture on the ligament that attaches the left ovary to the posterior wall of the abdomen. Respondent's treatment of "Kari," including Respondent's failure to remove the left ovary, did not cause the cat to die. The cat died from a massive infection in the abdominal cavity. The cause of infection could not be determined. Based upon the type and severity of the infection, it could not have begun more than two weeks before the cat's death on February 16, 1994. Respondent last treated "Kari" on July 12, 1993. Neither Respondent nor the treating physicians at Kissimmee Animal Hospital detected any infection in the cat. Dudley On September 7, 1994, Robert and Susan Micalizio took their dog ("Dudley") to a veterinarian who diagnosed the dog as having kidney stones. On September 8, 1994, the owners brought Dudley to Respondent for a separate opinion. Respondent confirmed the original diagnosis. Respondent performed a urinary catheterization. The catheterization failed to unblock the dog's urinary tract. On September 9, 1994, Respondent performed a cystotomy and urethrostomy on "Dudley." Respondent made three separate incisions in the dog's bladder to determine if kidney stones were present. Respondent did not take x-rays before performing surgery on the dog. Respondent's failure to take radiographs prior to surgery in order to properly diagnose the problem departed from the standard of care in the community. Respondent found no kidney stones in the dog's bladder or urethra. Respondent discharged the dog. The dog's urinary symptoms persisted after Respondent released the dog on September 9, 1994. The dog's condition worsened. On September 13, 1994, the owners took "Dudley" to an emergency clinic. X-rays disclosed the presence of kidney stones in the dog's urethra and bladder. The emergency clinic diagnosed the dog with kidney failure. On September 16, 1994, "Dudley" underwent a successful cystotomy and urethrostomy at another animal clinic. It was necessary to perform a cystotomy and urethrostomy to remove the kidney stones and successfully treat the dog. Respondent performed the appropriate procedures but failed to locate the kidney stones, extract them, and otherwise treat the dog appropriately. Respondent reimbursed the owners for the costs of his procedures. Respondent paid for the cost of the subsequent surgical procedures required to treat "Dudley." Penalty Respondent was incompetent and negligent in his care of "Kari." Respondent failed to remove all of the left ovary from "Kari" after two surgical attempts to do so. "Kari" went into heat several more times and endured a second surgery as a result of Respondent's incompetence and negligence. Respondent was incompetent and negligent in his care of "Dudley." Respondent failed to take x-rays prior to performing surgery. Although the surgery Respondent performed ultimately proved to be necessary to treat "Dudley," Respondent failed to detect kidney stones at the time Respondent performed surgery and failed to correct the condition causing "Dudley's" problems. As a result, the dog suffered longer and endured additional surgery. The incompetence and negligence committed by Respondent did not involve deceit, fraud, or misconduct. Respondent did not mislead the owners of either animal. Respondent's incompetence and negligence did not result in the death or serious injury of either animal. Respondent made a reasonable effort to locate the ovary he left in "Kari." Respondent either reimbursed or offered to reimburse the owners of each animal for expenses incurred by them as a result of Respondent's incompetence and negligence. Respondent has no history of prior disciplinary action against him. Respondent has performed over 20,000 spay procedures without incident. Veterinarians leave ovaries, or ovarian remnants, in approximately three percent of spayed animals. Respondent readily admits his lack of care in the treatment of "Dudley." 4 Subject Matter Index Petitioner maintains an index of its agency orders. Petitioner's index is not alphabetical, hierarchical, or numbered sequentially. Petitioner's index does not contain indentations below the subject headings or titles which are more specific than the subject heading or title. The index does not contain cross- referenced common and colloquial words as required by Florida Administrative Code Rule 1S-6.008. 5/ Petitioner's index complies with the requirements of Section 120.53(2)(a)3. In lieu of a hierarchical subject matter index, Petitioner maintains an electronic database that allows users, including Respondent, to research and retrieve the full text of agency orders through an ad hoc indexing system prescribed by statute. Petitioner's electronic database contains complete case files related to any final order issued by Petitioner from July 1, 1992, to the present. The files include administrative complaints, settlement agreements, and orders. Any person may access this information between 8:00 a.m. and 5:00 p.m. Monday through Friday, either in person, by mail, or by telephone. Respondent is able to determine those final orders that involve the statutory or rule violations for which Respondent is charged. Respondent's search of Petitioner's index revealed that Petitioner has never suspended or revoked a license for the same or similar charges as those against Respondent. Petitioner has not revoked the licenses of veterinarians for more serious offenses. Petitioner has imposed a reprimand, required direct supervised probation, or mandatory appearances before Petitioner in only two cases in which the veterinarian's treatment of the animal did not result in the death of the animal treated. Both of those cases involved charges more serious than those against Respondent. Petitioner has imposed the sanctions of suspension, direct supervision, and fines in excess of $500 only where a violation of the law has occurred and the veterinarian's treatment resulted in the death of the animal treated. Respondent's treatment did not result in the death of either animal treated by Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 474.214(1)(r), imposing a fine of $499, requiring Respondent to attend 4.9 hours of continuing education courses, and placing Respondent on probation for one year without requiring mandatory appearances in front of Petitioner. The costs of compliance with the final order are the obligation of Respondent. RECOMMENDED this 6th day of August, 1996, in Tallahassee, Florida. DANIEL S. MANRY, 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 6th day of August, 1996.
The Issue The issue in this case is whether Respondent, Phillip J. Aleong, D.V.M., violated Section 474.214(1)(f), Florida Statutes (2005), by failing to pay an administrative fine and investigative costs within 30 days from the date of the filing of Final Order BPR-2005-04911 with Petitioner's Clerk as alleged in an Administrative Complaint filed by Petitioner, the Department of Business and Professional Regulation, on June 26, 2006, in BPR Case Number 2005-066424; and, if so, what disciplinary action should be taken against his license to practice veterinary medicine in the State of Florida.
Findings Of Fact The following facts were stipulated to by the parties: Respondent is licensed in the State of Florida as a veterinarian, having been issued license number VM-6466. On September 1, 2005, Respondent appeared before the Florida Board of Veterinary Medicine to approve a Settlement Stipulation as to DOAH Case No. 05-1971PL. At the hearing, the terms of the Settlement Stipulation (herein after the "Stipulation") were placed on the record and the members of the Board voted to approve the settlement. On September 9, 2005, the Florida Board of Veterinary Medicine rendered the Final order Approving Settlement Stipulation Number BPR-2005-04911 (herein after the "Final Order") against Respondent's veterinary license, by filing the original Final Order with the Department's Agency Clerk. A copy of the Final Order was mailed to Respondent's Counsel. However, a copy was not sent or mailed directly to the Respondent. The Settlement Stipulation, as adopted by the Final Order, amongst other terms, required Respondent to pay an administrative fine in the amount of $5000.00 and investigative costs in the amount of $479.76 within thirty (30) days from the date of filing the Final Order with the Department's Agency Clerk. As the Final Order was filed with the Agency Clerk on Setpember [sic] 9, 2005, Respondent's compliance with the payment terms of the Final Order was required on or before October 9, 2005. Pursuant to the Final Order and the Stipulation Agreement incorporated therein by reference, Petitioner and Respondent agreed that Respondent's veterinarian license would be suspended for 90 days in the event that Respondent failed to comply with the terms of the Settlement Stipulation or the Final Order. Respondent was aware of this penalty provision at the time of signing the agreement, was present as the time of its adoption by the Florida Board of Veterinary Medicine, and was aware that the sums would be due 30 days after the Board signed the Final Order itself which was to occur sometime after the September 1, 2005 meeting. Respondent failed to remit payment of the administrative fine and cost required under the Final Order by October 9, 2005. On December 27, 2005, the DBPR mailed Respondent an investigatory complaint placing Respondent on notice that the fine had not been paid. The computer printout attached to the investigatory complaint, as well as the handwritten complaint generated by the Petitioner, both of which were included therein allege that Respondent had not paid the fine. Neither document asserts that the Respondent failed to remit the costs, however, a copy of the Stipulation and Order were included with the investigatory complaint. On January 12, 2006, after receipt of the investigatory [sic] complaint, Respondent paid the fine. Respondent paid the costs on May 8, 2006. On June 26 2006, after both the fine and costs were paid in full, Petitioner filed this proceeding alleging that the fine and costs had not been paid. Petitioner has stated that it has not located any cases in its records where a fine was imposed, then paid late, in which an administrative complaint was not filed. However, Petitioner is unable to offer testimony, with absolute certainty, that prior to the administrative complaint filed in this matter, that all other veterinarians have paid fines assessed in a final order by their due date. Petitioner has not found any evidence indicating that it has ever filed an administrative complaint against a party for failure to timely pay an imposed fine, after said fine was paid by the party. Petitioner has found no evidence contrary to or may otherwise reasonably dispute that the administrative complaint against a party for failure to timely pay an imposed fine, after said fine was paid by the party. The facts in Final Order BPR-95-05774 (Exhibit "B") and Final Order BPR-2003-02869 (Exhibit "C") are distinguishable from the facts of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Veterinary Medicine finding that Phillip J. Aleong, D.V.M., has violated Section 474.214(1)(f), Florida Statutes, as described in this Recommended Order, and requiring that he pay an administrative fine of $2,000.00. DONE AND ENTERED this 5th day of January, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 5th day of January, 2007. COPIES FURNISHED: Drew Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Bradford J. Beilly, Esquire Law Offices of Bradford J. Beilly, P.A. 1144 Southeast Third Avenue Fort Lauderdale, Florida 33316 Juanita Chastain, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Petitioner demonstrated that she was terminated from employment by Respondent as the result of an unlawful employment practice based on her race, or as retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice.
Findings Of Fact Respondent is a provider of health-care services that receives funding from the West Volusia Hospital Authority (WVHA). Respondent operates health clinics in Pierson, DeLand, and Deltona, Florida. Petitioner was employed by Respondent as a Certified Medical Assistant on September 25, 2009. After a period of time in Respondent’s Pierson office, Petitioner was transferred to Respondent’s DeLand office. Petitioner’s duties included those as a referral clerk. In that capacity, Petitioner arranged, scheduled, and coordinated referrals from Respondent’s medical providers to outside physicians and laboratories. Petitioner also performed blood-draws, Pap smears, and related services. Petitioner was frequently behind in her referrals. Petitioner sought assistance with her referrals. Taken in the light most favorable to Petitioner, an employee of Respondent with some apparent supervisory authority denied her requests, and advised other employees that they were not to assist Petitioner in catching up. In October 2010, Petitioner was assigned to Respondent’s newly created Emergency Room Diversion (ERD) program. That assignment caused a change in Petitioner’s shift from the 9:00 a.m. to 5:00 p.m. shift, to the 12:00 p.m. to 8:30 p.m. shift. She was returned to her normal day shift in mid-November. The disruption in her standard shift caused Petitioner to fall further behind in her referrals. To minimize the problem, nurses began to make referrals for their doctors when they had the time. On November 19, 2010, Petitioner called Juanita McNeil, an elected commissioner of the WVHA, to discuss what Petitioner perceived to be sub-standard patient care that, in some cases, related to referrals that were not being timely completed, and for which Petitioner was receiving no assistance. Petitioner asked Ms. McNeil to keep their conversation confidential because she feared that she would be terminated for going outside of the chain of command. Later in the day on November 19, 2010, Petitioner was presented with a separation notice by which she was terminated from employment. The separation notice listed four reasons for her termination. The reasons were “employee not doing job in a timely manner, being rude with patients, being rude with other employees, [and] insubordination (calling the WVHA) instead of talking with appropriate supervisors.” During the hearing, Petitioner admitted that “100% of the reason that I was fired is because of me calling the WVHA.” Upon follow up inquiry, Petitioner reiterated that she was terminated for insubordination in bypassing her supervisors to contact a WVHA commissioner, and that reason formed the basis for her complaint that she had been the subject of discrimination or retaliation. Petitioner knew of no other employee that ever communicated directly with a WVHA commissioner, or that ever escaped disciplinary sanctions for having done so. Thus, there was no comparator upon which to measure whether Petitioner was treated differently under like circumstances as a result of her race. Petitioner’s admission of the basis for her termination is dispositive of this case. Being terminated for insubordination, in the absence of evidence that persons outside of her protected class were treated differently, is not related to Petitioner’s race. Petitioner’s admission demonstrates that her claim is not founded on an unlawful employment practice based on her race, or retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice. Based on Petitioner’s admission, the undersigned concluded that there was no legal basis upon which relief could be ordered under the Florida Civil Rights Act. Thus, the final hearing was adjourned.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 10th day of October, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2012.
The Issue Respondents' alleged violation of Section 477.02(6), Florida Statutes.
Findings Of Fact Respondents received a copy of the Administrative Complaint and Notice of Hearing as evidenced by receipt for certified mail. (Exhibit 1) Respondents Arvle and Malvey Sue Kiser operate Golden Touch Coiffeurs, 901 Fillmore Avenue, Lehigh Acres, Florida under Certificate of Registration to operate a cosmetology salon No. 20014 issued by Petitioner on May 27, 1974. On June 13, 1975, Petitioner's inspector visited Respondents' establishment and observed Pearl Raulerson Curry washing the hair of a patron. When asked if she had a Florida license to practice cosmetology, Curry responded that she did not have one. At that time Malvey Kiser informed the inspector that Curry was going to take the test for a license. Kiser knew that Curry didn't have one at that time. (Testimony of Rubin) Respondent Malvey Sue Kiser submitted a written statement in which she claims that the law requiring a licensed person to perform specialist duties in a beauty salon is discriminatory because the same requirement is not imposed on persons performing the same services in barber shops. In her statement she acknowledged that she was aware that the employee Curry did not possess a current license when she was permitted to work in the salon, and that she hired Curry only after having made unavailing complaints of discrimination to various state officials and an attorney. The result was that she decided to challenge the law in question. She further states that she did not receive a quick and speedy hearing which, in turn, weakened her defense inasmuch as witnesses were no longer available. She also claims that the Notice of Violation given to her on June 13th was misleading in that it stated that failure to cure the alleged violation might result in additional disciplinary proceedings or other legal penalties. She therefore believed that if she complied by insuring that the employee became licensed there would be no further proceedings. (Statement of Malvey Kiser)
Recommendation That Respondents' Arvle and Malvey Sue Kiser be issued a written reprimand for violation of Section 477.02(6), Florida Statutes. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Arvle and Malvey Sue Kiser P.O. Box 1752 c/o Golden Touch Coiffeurs Tallahassee, Florida 901 Fillmore Avenue Lehigh Acres, Florida
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent's license. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of May, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1988. COPIES FURNISHED: Bill O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Braxton, Esquire 9100 South Dadeland Boulevard #406 Miami, Florida 33156 Pat Guilford, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
