Findings Of Fact At all times pertinent hereto, Respondent, T. E. Watson, was licensed as a veterinarian in Florida under license number VM 0000957, and the Petitioner, Board of Veterinary Medicine, (Board), was the state agency charged with regulating the practice of veterinary medicine in this state. On February 20, 1986, the Grand Jury in the United States District Court for the Eastern District of Arkansas entered an Indictment charging Respondent with six counts of mail fraud. The counts relating to Respondent were part of a thirty- three count Indictment of eight defendants. Only six of the counts pertained to Respondent. After trial by jury, on June 19, 1986, Respondent was found not guilty of two counts of mail fraud but guilty of four. In each of these four counts, Numbers 7, 8, 20, & 21, Respondent was found guilty of mail fraud involving a horse. He was sentenced to serve a period of imprisonment in the Federal Prison Camp at Eglin A.F.B., Florida. The mail fraud engaged in by Respondent involved a scheme by him and others to artificially inflate the book value of certain horses, then have the horses destroyed, and collect insurance in an amount in excess of the actual value of the horse. This activity constitutes misconduct which relates to the practice of veterinary medicine and reflects adversely on the Respondent's ability to practice veterinary medicine. On October 25, 1988, the Arkansas Veterinary Medical Examining Board entered Findings of Fact, Conclusions of Law, and an Order finding that Respondent had been found guilty of mail fraud as alleged, supra, and revoked his Doctor of Veterinary Medicine license. While incarcerated, on September 26, 1988, Respondent submitted a letter to the Board in which he outlined the facts and circumstances leading up to his involvement in the misconduct alleged. He contends in this letter, as he did at the hearing, that he was merely an honest horse farmer who purchased several animals from the individuals who thereafter killed them in the furtherance of their fraudulent scheme to defraud the insurance company. Respondent further claims that when he confronted these individuals, they threatened him and his family with bodily harm and even acted out a portion of that threat. Respondent claims he had no one to turn to as the insurance company representatives were involved in the scheme and the local law enforcement officials were inadequate. As a result, he went along with the scheme but did not actively participate. In support of his position, he refers to the account statements he attached to the letter he sent to the Board which purport to show that he made no profit on any of the animals involved in the counts of which he was convicted. Since he made no profit, he claims, he can be found guilty of no crime. This documentation is of little probative value, however, since there is no source material to support its accuracy or authenticity. Respondent claimed at hearing that his conviction was based on "perjured, prejudicial, and impeached testimony" and that the newly discovered evidence he has gathered and submitted to Federal officials will prove his innocence. This evidence was not presented at the hearing, however, and in his letter to the Department of Professional Regulation, he admits to knowingly being a party to the fraud. However, he claims, his participation was neither intentional or willing. The jury which heard his evidence was satisfied he was guilty, however, and nothing has been submitted here which would cause that judgement to be questioned. His request for a new trial on the basis of newly discovered evidence was denied, and the Parole Commission has declined to modify his conviction or sentence. Respondent moved his wife and four sons from Florida to Arkansas in 1974 to follow a lifelong dream to be a farmer. It was only after several years that he got into the horse breeding business which resulted in his difficulties. He has been engaged in the practice of veterinary medicine for 30 years. Numerous individuals including clients, civic officials, colleagues, neighbors, and business people who uniformly describe him as an honest, trustworthy and dedicated veterinarian and individual were surprised and dismayed by his involvement in this matter. Respondent undoubtedly has an excellent reputation in both the geographic and professional communities in which he operates.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, T. E. Watson's license to practice veterinary medicine in Florida be suspended for a period of three years under such terms and conditions as are specified by the Board of Veterinary Medicine. RECOMMENDED this 8th day of February, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of February, 1989. COPIES FURNISHED: Laura F. Gaffney, Esquire Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 T. E. Watson, D.V.M. 5004 7th Street East Bradenton, Florida 34203 Linda Biedermann Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent's license to practice veterinary medicine should be revoked or suspended for alleged violation 474.14(1), 474.15, and 474.31 (1), and (6), Florida Statutes. This case was consolidated by order of the Hearing Officer issued December 5, 1975, with Florida Board of Veterinary Medicine vs. Harold M. McGee, D.V.M., Docket No. 751926 because the cases involve similar issues of law and fact. At the hearing, Respondent was advised of his right to employ legal counsel at his own expense to represent him. He elected to appear in his own behalf. He was then advised of his rights under the Administrative Procedure Act, including the right to testify in his own behalf, if he so desired. He indicated that he understood these rights.
Findings Of Fact Respondent was licensed by the Board of Veterinary Medicine on July 27, 1975 and was not licensed on March 4, 1975. On March 4, 1975 Respondent was employed by Dr. Harold M. McGee, D.V.M., at his place of business located at 3520 Northwest 36th Street, Miami, Florida. On March 4, 1975, Chery Lynn Correa, along with Dr. Calvin Dugas, D.V.M., both employees of the Knowles Animal Hospital in Miami took a Doberman Pinscher to Dr. McGee's clinic. Their visit was prompted by a request of their employer, Dr. Knowles, who had asked them to check a complaint that there were unlicensed veterinarians working for Dr. McGee. Without disclosing their purpose, Correa informed the receptionist that she had brought the dog to get rabies and distemper shots and to have some bumps on its neck checked. She and Dr. Dugas were referred to Respondent in the treatment room. He checked the dog and told them that the bumps were due to an improper diet. He then administered inoculations for rabies and distemper and checked the animal for worms. He also looked at the dog's throat and diagnosed tonsilitis for which he prescribed tetracycline pills. He also procured liquid shampoo called Tergex for a skin problem and gave instructions to bathe the dog once a week. He gave two more injections of antibiotics and cortisone. The receptionist signed Dr. McGee's name to the certificate of rabies vaccination and to a form for issuance of a Dade County dog tag. Respondent signed Dr. McGee's name to a Canine Interstate Health Certificate reflecting the administration of the inoculations. Correa paid the bill of $43.00 and then she and Dr. Dugas departed. During the time they were at the clinic, they did not see Dr. McGee on the premises (Testimony of Correa, Dugas, Petitioner's Exhibit 3). However, Dr. McGee was in the back office at the time in question suffering from a headache and had asked his receptionist to have Respondent give routine shots to animals during the day and only call him if a diagnosis was necessary. In view of Respondent's lack of a Florida license, Dr. McGee did not permit him to diagnose, treat, or incise skin of an animal without supervision. In accordance with these directions, Respondent always checked with Dr. McGee on a diagnosis and the latter would then prescribe the proper treatment. Respondent followed this procedure with respect to the dog brought to the clinic by Correa and received instructions from Dr. McGee as to the treatment that was thereafter performed. Respondent was not licensed by the Florida Board of Veterinary Medicine until July 27, 1975. Dr. McGee professed the belief at the hearing that since secretaries could sign distemper and rabies certificates, he felt Dr. Mayo could sign an interstate health certificate although he normally signed such documents himself. Respondent testified that he had worked for the local humane society for over nine years and, during that period, had signed his own name to interstate health certificates by authorization of the board of directors of the society. The receptionist took the interstate health certificate in question to Respondent to sign because he had administered the shots to the animal. She was unaware of the fact that he was unlicensed (Testimony of McGee, Mayo, Uriquize, Petitioner's Exhibit 2). Respondent was head of the Veterinary Services of the Cuban rebel army at the time he came to the United States. He has been a veterinarian since 1948. He is active in the Cuban community of Miami and enjoys a good reputation for truth and veracity in the community (Testimony of Mayo, Reboso).
Recommendation That the charges against Cristobal M. Gonzalez Mayo, D.V.M., be dismissed. DONE and ENTERED day of February, 1976 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire 101 East College Avenue P.O. Box 1752 Tallahassee, Florida Dr. Cristobal M. Gonzalez Mayo 971-A Southwest 8th Street Miami, Florida 33130
The Issue The issue is whether Petitioner's application for renewal of his professional occupational license as a thoroughbred horse trainer should be granted.
Findings Of Fact The Division is the state agency charged with regulating pari-mutuel wagering in the state of Florida, pursuant to chapter 550, Florida Statutes (2015).1/ At all times material hereto, Mr. Ziadie held a pari- mutuel wagering individual occupational license, number 426775- 1021, issued by the Division. At all times material hereto, Mr. Ziadie raced horses at Gulfstream Park, a facility operated by a permitholder authorized to conduct pari-mutuel wagering. At all times material hereto, Mr. Ziadie was subject to chapter 550 and implementing rules in Florida Administrative Code Chapter 61D-6. Mr. Zaidie applied for renewal of his professional occupational license. That application was denied by the Division by letter dated August 26, 2015. The letter stated that denial was based on Mr. Ziadie's violation of section 550.2415(1)(a)(relating to the racing of animals with restricted drugs) and rule 61D-6.002(1)(holding the trainer of record as an "absolute insurer" of the condition of his horses) on February 6, 2015, April 24, 2015, and May 9, 2015. As stipulated by the parties at hearing, but for the alleged offenses, Mr. Ziadie met all requirements for renewal, and the Division would have renewed his license. Mr. Ziadie will be unable to continue as a thoroughbred horse trainer in Florida if his license is not renewed. He is substantially affected by the Division's intended action. The equine detention barn is the site at each licensed racetrack in Florida where employees of the Division obtain urine and blood samples from racehorses. At all times material hereto, the 2010 Equine Detention Barn Procedures Manual (the Manual) was in effect. The Manual prescribes detailed procedures for collecting blood samples from race horses, spinning the blood in the centrifuge to extract the serum, pouring of the serum into the evergreen tube, sealing of the evergreen tube with evidence tape, and mailing of the specimen to the laboratory for testing. The Division publishes the Manual under the direction of its deputy director and distributes it to every employee that works at a detention barn, including the state veterinarian, the chief veterinary assistant, other veterinary assistants, detention barn security guards, and detention barn supervisors. The Manual is not made available to the general public. The Manual is an official publication of the Division used at all horse racing facilities in the state of Florida and was last updated on June 25, 2010. At all times material hereto, Mr. Ziadie was the trainer of record of the thoroughbred horse "GET CREATIVE." On or about February 6, 2015, "GET CREATIVE" finished in first place in the third race at Gulfstream Park. As stipulated at hearing, a blood sample was taken from "GET CREATIVE" after the race using the procedures described in the Manual. After processing, extracted serum from the blood was numbered as sample number 798044. The lab tested serum sample number 798044 and found that it contained phenylbutazone, an anti-inflammatory and a class 4 drug under the Uniform Classification Guidelines for Foreign Substances, as promulgated by the Association of Racing Commissioners International. The concentration of phenylbutazone in sample number 798044 was 3.4 micrograms per milliliter, which is in excess of the 2 micrograms per milliliter threshold established in rule 61D-6.008.2/ The results of the lab's analysis of sample number 798044 were issued to Mr. Ziadie in a report dated February 26, 2015. At all times material hereto, Mr. Ziadie was the trainer of record of the thoroughbred horse "AT LARGE." On or about April 24, 2015, "AT LARGE" finished in first place in the first race at Gulfstream Park. As stipulated at hearing, a blood sample was taken from "AT LARGE" after the race using the procedures described in the Manual. After processing, extracted serum from the blood was numbered as sample number 028949. The lab tested serum sample number 028949 and found that it contained phenylbutazone, an anti-inflammatory and a class 4 drug under the Uniform Classification Guidelines for Foreign Substances, as promulgated by the Association of Racing Commissioners International. The concentration of phenylbutazone was 2.3 micrograms per milliliter, which is in excess of the 2 micrograms per milliliter threshold established in rule 61D-6.008. The results of the lab's analysis of sample number 028949 were issued to Mr. Ziadie in a report dated May 6, 2015. At all times material hereto, Mr. Ziadie was the trainer of record of the thoroughbred horse "CREATIVE LICENSE." On or about May 9, 2015, "CREATIVE LICENSE" finished in first place in the seventh race at Gulfstream Park. As stipulated at hearing, a blood sample was taken from "CREATIVE LICENSE" after the race using the procedures described in the Manual. After processing, extracted serum from the blood was numbered as sample number 031421. The lab tested serum sample number 031421 and found that it contained clenbuterol, a bronchodilator and a class 3 drug under the Uniform Classification Guidelines for Foreign Substances, as promulgated by the Association of Racing Commissioners International. The concentration of clenbuterol in serum sample number 031421 was 8.9 picograms per milliliter. Rule 61D-6.008 does not permit clenbuterol in the body of a racing animal on race day. The results of the lab's analysis of sample number 031421 were issued to Mr. Ziadie in a report dated May 20, 2015. At the time of these races, rule 61D-6.005, effective November 19, 2001,3/ governed the procedures for the taking of urine and blood samples from the horses. Subsection (3) provided in part: The specimen shall be sealed in its container, assigned an official sample number which is affixed to the specimen container, and the correspondingly numbered information portion of the sample tag shall be detached and signed by the owner, trainer, groom, or the authorized person as a witness to the taking and sealing of the specimen. Subsection 4.5 of the Manual describes the sample tag in greater detail: RL 172-03 is a self-adhesive sequentially numbered bar-coded, three part form (blood label, urine label and card) provided by the University of Florida Racing Laboratory that is used to catalog specimens by assigning them "Specimen Numbers." As specimens are collected, information regarding the animal from which the sample was collected is written on the bottom of this form. The top two portions of the form (Blood, Urine) are completed with the Track Number and Collection Date. The applicable top portions of the form are then separated and applied to the urine specimen cup and/or evergreen blood tube. The bottom portion, or Specimen Card is completed and appropriately signed and is sent to the Tallahassee Office of Operations to be filed. The sample tag thus consists of three portions: the numbered portion designated for the blood specimen ("blood label"), the numbered portion designated for the urine specimen ("urine label"), and the numbered portion containing information about the animal and trainer that is to be signed by the witness ("card"). In the sampling procedures followed in this case, the blood label was not affixed to the collection tube. The blood label, from which the card portion was "detached," was affixed to the evergreen blood tube. This was consistent with the governing rule as well as the Manual. The evergreen tube is the specimen container for the serum. The sampling procedures followed on February 6, 2015, April 24, 2015, and May 9, 2015, were in compliance with the procedures set forth in the Manual. As stated in subsection 4.4 of the Manual, "[s]ealing the sample ensures the specimen does not spill during shipment to the laboratory and assures all parties that the sample has not been tampered with." The same purposes are served by sealing the serum specimen. After the blood samples were taken by the veterinarian, they were not "sealed" in the collection tubes. The fact that the collection tubes are air tight prior to and after the taking of the blood and initially contain a partial vacuum to facilitate collection, does not constitute "sealing" of the specimen in its container for purposes of the rule. The three collection tubes are not the specimen container, but the last three digits of the number from the blood label affixed to the specimen container were also written on each blood collection tube with a black "Sharpie" type marking pen to ensure control of the sample. After the blood was centrifuged, and the serum was poured into the evergreen tube, the serum was sealed with evidence tape, as described in subsection 4.6 of the Manual, and the chief veterinary assistant put his initials over the seal. This constituted "sealing" of the specimen in its container. Subsection 4.6 of the Manual provides: Serum is poured into applicable (numbered) "evergreen" tubes. Each "evergreen" tube is immediately properly sealed with evidence tape. Rule 61D-6.005 does not make any reference to spinning the blood in the centrifuge to extract serum, the pouring of serum into an evergreen tube, the sealing of the evergreen tube with evidence tape, or the freezing of the specimen. Subsection 4.6 of the Manual establishes additional Division policies and procedures not contained in the rule. The serum must be separated from the blood because whole blood cannot be frozen without damage that would affect its usefulness in laboratory testing. Centrifuging facilitates the separation of the serum from the whole blood. The transfer of the serum from the glass collection tubes to the plastic evergreen tube saves shipping weight and reduces the incidence of breakage during shipping. As testified to by Mr. Urrutia, a chief veterinarian's assistant, the centrifuged collection tubes are stored in a locked refrigerator, the opening of the centrifuged collection tubes and the pouring of the serum into a correspondingly numbered evergreen specimen container is carefully performed with the intent to avoid cross-contamination, and the sealed evergreen specimen containers remain in a locked freezer until they are shipped to the laboratory. The evidence was clear and convincing that the serum specimens in the evergreen containers with the full "Specimen Number" marked on them were derived from the blood sample tubes bearing the same last three numbers. The serum specimens came from Mr. Ziadie's horses. Dr. Barker's testimony indicated that the "free pour" of the serum was the point at which the specimen was most vulnerable, and that contamination or tampering was possible. He stated he would have preferred more supervision, witnessing, and documentation as to who was doing what, at what time. Dr. Cole concurred that there is always a possibility of contamination when a sample is transferred from one container to another. However, the free-pour method used to transfer the serum from the collection tubes into the evergreen specimen container is one of the better approaches, as opposed to using a pipette or method that would put something into the sample. Contamination from the free pour of the serum is unlikely. There was no evidence introduced to suggest that any tampering with, or contamination of, the specimens was likely or probable. The state veterinarian who took the blood sample from each horse signed PMW Form 504, a Daily Record of Sample Collection, indicating that this was done. After centrifuging the whole blood in the collection tubes, at the end of the day the state veterinarian usually leaves the collection tubes with the chief veterinary assistant, who pours the separated serum from each collection tube into the correspondingly numbered evergreen container and seals it. Sometimes, the state veterinarian stays to observe the transfer of the serum to the evergreen specimen container. There is no signature indicating the time the state veterinarian leaves the samples at the detention barn or the time that the chief veterinary assistant opens the collection tubes and transfers the serum. The custody of the samples remains with Division personnel throughout this process. No transfer of custody takes place until the specimen containers are shipped to the laboratory. In each instance of sampling in this case, the owner's witness signed the card portion of the sample tag (Form RL 172- 03) after the taking of the urine and blood samples. In each instance of sampling in this case, the owner's witness signed the card portion of the sample tag (Form RL 172- 03) after the sealing of the urine specimen in its container, but before the sealing of the serum specimen in its container, the evergreen tube. In each instance of sampling in this case, the owner's witness did not observe the extraction of the serum or the sealing of the serum specimen in its container with the evidence tape. The witnesses could have remained to watch those procedures had they requested to do so. Subsection 4.6 of the Manual states, "the owner, trainer of record or designated authorized witness may leave with the released animal or may elect to witness the conclusion of the collected blood specimen processing and sealing cycle." Two signs posted in the detention barn similarly advise owner's witnesses that they may remain to witness the centrifuge process and sealing of the sample. Mr. Urrutia credibly testified that in the six years he performed the duties of the chief veterinary assistant, no one ever stayed to watch him transfer the serum or sealing of the specimen container. The pouring of the collection tubes into the specimen container takes place at the end of the racing day, after all of the horses have departed from the detention barn. It would be very inconvenient for an authorized witness to remain until the serum specimens were sealed. The procedures that were followed--set forth in the Manual--which allowed the owner's witness to sign the sample tag after witnessing the taking of the blood but before the sealing of the specimen, were not in compliance with rule 61D-6.005(3), quoted above, which required the owner's representative to sign as a witness to both the taking and sealing of the specimen. The posting of signs advising that the owner's representative was allowed to stay and witness the sealing of the specimen container did not bring the procedure being followed into compliance with rule 61D-6.005(3). The requirement that the authorized representative must witness not only the taking, but also the sealing of specimens, is a provision directly related to maintaining integrity in the sample collection process. Such deliberate disregard of the plain language of the rule directly affects the fairness of the entire sampling procedure. The Manual is applicable to every horseracing facility within the state of Florida. It has been in effect in its current form since 2010 and, by its own terms, is mandatory. It provides that veterinary assistants, chief veterinary assistants, detention barn security guards, and detention barn supervisors "study, become completely familiar with, and put into practice" the procedures outlined in the Manual. It describes seven steps in chain-of-custody procedures, three of which are "collecting the specimen, sealing the specimen, and completing the required forms," and describes detailed procedures in this "strict sequence of events that must be followed." Testimony at hearing confirmed that Division employees are required to follow the procedures it sets forth. Although some employees stated that the Manual was a "guideline," to the extent that this testimony was intended to suggest that employees need not comply with the Manual's provisions, it is rejected as not credible. As Ms. Erskine, a detention barn supervisor, testified, employees do not have discretion not to follow the procedures set forth in the Manual. She testified that if employees did not follow the procedures, they would be subject to sanctions. Ms. Blackman similarly testified that the provisions of the Manual are mandatory and that regional managers of the Division had the responsibility to visit racetracks to ensure that each track was following the Manual. This testimony of Ms. Erskine and Ms. Blackman is credited. As Ms. Blackman testified, the sampling procedures set forth in the Manual are important to the Division, to the trainers, and to the public. State Steward Scheen credibly testified that, although he has acted as a judge in hearings before the Board of Stewards in cases alleging violations of section 550.2415 for ten years, he was unaware of the process that was routinely followed to centrifuge blood and extract the serum to create a specimen for shipment to the laboratory. Mr. Stirling credibly testified that in his capacity as executive director of the Florida Horseman's Benevolent and Protective Association, a position he has held for 20 years, he was an advocate for the horsemen. He attended all of the workshops for rules relating to medication overages as one of his primary duties. The centrifuging process, extraction of the serum, and sealing of the serum specimen as described in detail in subsection 4.6 of the Manual were never discussed at a rulemaking hearing. These procedures are not a part of rule 61D-6.005, adopted in 2001. As he testified, Mr. Stirling was not even aware of these procedures until a month or two before the final hearing in this case. Subsection 4.6 of the Manual has not been adopted under the procedures of section 120.54, Florida Statutes. Subsection 4.6 of the Manual is an unadopted rule. Rule 61D-6.005(8) provided: The division may proceed when other evidence exists that an illegal or impermissible legend or proprietary drug, medication, or medicinal compound (natural or synthetic) may have been administered to a racing animal. Otherwise, no action shall be taken unless and until the laboratory under contract with the division has properly identified the legend or proprietary drug, medication, or medicinal compound (natural or synthetic) in a sample or specimen collected pursuant to this chapter. (Emphasis added). As discussed, the serum specimens were not collected pursuant to the requirements of chapter 61D-6. Other than the sample testing, no other evidence was introduced that an illegal drug or medication had been administered to the horses. In the absence of the test results, the Division failed to show even by a preponderance of the evidence that horses trained by Mr. Ziadie were raced with drugs on February 6, 2015, April 24, 2015, and May 9, 2015.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order granting Mr. Kirk Ziadie's application for renewal of his pari-mutuel professional occupational license. DONE AND ENTERED this 25th day of November, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 25th day of November, 2015.
The Issue Whether Respondent's License to practice veterinary medicine should be revoked or suspended for alleged violations of Sections 474.31(6) & 474.31(12), Florida Statutes. An Order was issued on December 5, 1975, consolidating this case for hearing with the case of Florida Board of Veterinary Medicine vs. Cristobal M. Gonzalez Mayo, D.V.M., Docket No. 751925, because the cases involve similar issues of law and fact. At the hearing, Respondent was advised of his right to employ legal counsel to represent him at his own expense and he elected to represent himself. He also was advised of other rights under the Administrative Procedure Act, including the right to testify as a witness, if he so desired. Respondent indicated his understanding of these rights as explained to him by the Hearing Officer.
Findings Of Fact Respondent holds license no. 231 issued by the State of Florida, Department of Professional and Occupational Regulation, Board of Veterinary Medicine, which he received on March 30, 1944. The license is currently in effect (Petitioner's Exhibit l). Respondent has been a veterinarian for some 29 years and practices his profession at 3520 N.W. 36th Street, Miami, Florida (Testimony of McGee). Respondent employed Sergio Gutierrez, D.V.M., a veterinarian with approximately 25 years of experience, but who was not then licensed by the Florida Board of Veterinary Medicine, on December 6, 1974, for a period of approximately 3 months. At the time he was hired, Dr. Gutierrez exhibited various licenses from other jurisdictions to the Respondent and the latter gained the impression that Dr. Gutierrez held a temporary Florida license, even though he did not ask that it be shown to him. At that time, Dr. Gutierrez had submitted his license application to the Board of Veterinary Medicine, but it had not been acted upon by the Board (Testimony of Gutierrez, McGee). On December 6, 1974, James Gillece, an investigator with the Department of Professional and Occupational Regulation, took a cat to the Respondent's place of business in order to investigate a complaint that an unlicensed veterinarian was employed there. Upon arrival, he informed the receptionist that the cat was sick and asked her assistance. He was referred to Dr. Gutierrez who gave the cat inoculations for rabies and distemper. Gillece thereupon paid $19.00 for the services and received a receipt. He returned on December 13, presented his identification to Dr. Gutierrez and asked him if he was licensed to practice veterinary medicine. Dr. Gutierrez informed him that, although he was licensed in 40 states, he was not so licensed in Florida. Although Respondent was not present when the cat was treated, Dr. Gutierrez testified that Respondent exercised general supervision over his activities during his employment (Testimony of Gillece, Gutierrez, McGee) On March,4, 1975, Chery Lynn Correa, along with Dr. Calvin Dugas, D.V.M., both employees of the Knowles Animal Hospital in Miami took a Doberman Pinscher to Respondent's Clinic. Their visit was prompted by a request of their employer, Dr. Knowles, who had asked them to check a complaint that there were unlicensed veterinarians working for the Respondent. Without disclosing their purpose, Correa informed the Respondent's receptionist that she had brought the dog to get rabies and distemper shots and to have some bumps on its neck checked. She and Dr. Dugas were referred to Dr. Cristobal Gonzalez Mayo, in the treatment room. Mayo checked the dog and told them that the bumps were due to an improper diet. He then administered inoculations for rabies and distemper and checked the animal for worms. He also looked at the dog's throat and diagnosed tonsilitis for which he prescribed tetracycline pills. He also procured liquid shampoo called Tergex for a skin problem and gave instructions to bathe the dog once a week. He gave two more injections of antibiotics and cortisone. The receptionist signed Respondent's name to the certificate of rabies vaccination and to a form for issuance of a Dade County dog tag. Dr. Mayo signed Respondent's name to a Canine Interstate Health Certificate reflecting the administration of the inoculations. Correa paid the bill of $43.00 and then she and Dr. Dugas departed. During the time they were at Respondent's clinic, they did not see the Respondent on the premises (Testimony of Correa, Dugas, Petitioner's Exhibit 3). However, Respondent was in the back office at the time in question suffering from a headache and had asked his receptionist, to have Dr. Mayo give routine shots to animals during the day and only call him if a diagnosis was necessary. In view of Dr. Mayo's lack of a Florida license, Respondent did not permit him to diagnose, treat, or incise skin of an animal without supervision. In accordance with these directions, Respondent Mayo always checked with Respondent on a diagnosis and the latter would then prescribe the proper treatment. Dr. Mayo followed this procedure with respect to the dog brought to the clinic by Correa and received instructions from Respondent as to the treatment that was thereafter performed. Dr. Mayo was not licensed by the Florida Board of Veterinary Medicine until, July 27, 1975. Respondent professed the belief at the hearing that since secretaries could sign distemper and rabies certificates, he felt Dr. Mayo could sign an interstate health certificate although he normally signed such documents himself. Dr. Mayo testified that he had worked for the local humane society for over nine years and, during that period, had signed his own name to interstate health certificates by authorization of the board of directors of the society. The receptionist took the interstate health certificate in question to Dr. Mayo to sign because he had administered the shots to the animal. She was unaware of the fact that he was unlicensed (Testimony of McGee, Mayo, Uriquize, Petitioner's Exhibit 2).
Recommendation That the charges against Harold M. McGee, D.V.M., be dismissed. DONE and ENTERED this 2nd day of February, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1976. COPIES FURNISHED: Ronald C. LaFace, Esquire 101, E. College Avenue P.O. Box 1752 Tallahassee, Florida Harold M. McGee, D.V.Mp. Miami Veterinary Clinic 3520 Northwest 36th Street Miami, Florida 33142
The Issue Whether statements issued by the Respondent's employees constitute unpromulgated rules in violation of Section 120.54(1)(a), Florida Statutes (2007). Whether Florida Administrative Code Proposed Rule 5C- 27.001, incorporating a form is an invalid exercise of delegated legislative authority.
Findings Of Fact The following are the stipulated facts (verbatim) as agreed by the parties: In November and December 2005, Division of Animal Industry inspectors conducted inspections of various pet facilities located throughout Florida and found 11 violations regarding OCVIs. Dr. Thomas J. Holt, D.V.M., State Veterinarian and Director of Animal Industry, is signatory on a July 2006 Memorandum directed to "All Florida Veterinarians," which purports to provide "guidelines and reminders" to veterinarians regarding the issuance of OCVIs pursuant to Section 828.29, Florida Statutes. The memorandum is attached as Exhibit A. Respondent does not license or regulate veterinarians in Florida. Respondent does not maintain a database of veterinarians licensed or located in Florida. The United States Department of Agriculture (USDA) maintains a database of USDA-accredited veterinarians. The July 6, 2006, memorandum was provided by Respondent to the United States Department of Agriculture. Respondent asked for the assistance of the United States Department of Agriculture to distribute the July 6, 2006, memorandum to all USDA-accredited veterinarians located in Florida. The July 6, 2006 memorandum was challenged by Petitioners as an unpromulgated rule on April 2, 2007. The Respondent agency published a Notice of Proposed Rule in the Florida Administrative Weekly on July 6, 2007, to adopt the Official Certificate of Veterinary Inspection for Intrastate Sale of Dog or Cat (OCVI form) as a rule. On May 15, 2007, the Department conducted a "Pet Certification Rules Workshop" regarding proposed changes to the OCVI. Current form DACS-09085, Official Certificate of Veterinary Inspections for Sale of Dog or Cat, was adopted by Florida Administrative Code Rule 5C-24.003, in 1999. This rule is currently in effect. A statement of Department Employee Diane Fuchs was recorded, and such statement is attached hereto as Exhibit B. None of the Petitioners have filed complaints with Respondent concerning any of the allegations contained in Petitioners' Request for Administrative Hearing or Amended Request for Administrative Hearing. The following facts are from the materials noted above: The "Exhibit A" memorandum referenced above that was signed by the Department's State Veterinarian/Director of the Division of Animal Industry stated on its face, "This fax is being sent by the Florida Veterinary Medical Association at the request of the State Veterinarians Office." The memorandum provided, in pertinent part: TO: All Florida Veterinarians SUBJECT: OCVI for Sale of a Dog or Cat Dear Florida Veterinarian: Recent audits of Official Certificate of Veterinary Inspection's (OCVI) for Sale of a Dog or Cat by the Division of Animal Industry (DAI), Florida Department of Agriculture and Consumer Service (FDACS) shows an increasing number of violations related to the use and issuance of such certificates by veterinarians. Each violation compromises the integrity of the certificate. Previously violations were handled via personal communication and/or written correspondence with the veterinarian outlining the violation and recommended actions on how to correct them. Beginning July 1, 2006, the DAI will implement enforcement of such violations via Administrative Fine Procedure. For this reason, we are reminding veterinarians of the seriousness of this issue and are providing the following guidelines and reminders: Veterinarians are responsible for the security and proposed use of all OCVI's and must take reasonable care to prevent misuse of them. Reasonable care means that the veterinarian must retain all copies of the OCVI until he or she has inspected the animal and fully completed and signed the document(s). Incomplete, blank, or unsigned OCVI books or certificates cannot be sold to, or be in the possession of, a pet seller whether they are a breeder, broker, or retail pet store. Possession by a seller of incomplete or unsigned OCVI or of OCVI books compromises the integrity and security of the documents for which the veterinarian is responsible. The issuing veterinarian's statement certifies that the vaccines, anthelmintics, and diagnostic tests were administered by or under the direction of the issuing veterinarian. The manufacturer, type, lot #, expiration date, and date of administration must be detailed in the appropriate blocks of all OCVI. Vaccinations and/or anthelmintics administered by anyone other than the issuing veterinarian must be confirmed and documented before listing them on the OCVI. "Vaccines given by breeder" is not an acceptable entry unless the vaccinations were administered by or under the direction of the issuing veterinarian who has personal knowledge that such vaccines were actually administered to the animal identified on the OCVI. OCVI should not be issued for a dog or cat that has been found to have internal or external parasites, excluding fleas and ticks. This includes, but is not limited to, coccidian and/or ear mites. The dispensing of medicine to be administered by the owner for treatment is not sufficient for the veterinarian to issue the OCVI. Such animals must be treated and be negative before the sale can occur. The statement attributed to Diana Fuchs (noted as Exhibit B above) was: You're correct because the Veterinary Practice Act seeks supervision and it clearly defines supervision. The pet law does not state "supervision," it says "direction." It doesn't say whether it's direct supervision, it says "direction." As an employer, you can direct an employee to do something. By and through the rule making process previously described the Respondent sought to promulgate a rule (5C-27.001) that by reference adopts and incorporates form DACS-09085, the OCVI for Intrastate Sale of Dog or Cat Revised in July 2007. The OCVI form provides, in part: ISSUING VETERINARIAN'S CERTIFICATION: I hereby certify that the described animal was examined by me on the date shown; that the vaccines, anthelmintics, and diagnostic tests indicated herein, were administered by me, or under my direction; said animal is found to be healthy in that to the best of my knowledge it exhibits no sign of contagious or infectious diseases and has no evidence of internal or external parasites, including coccidiosis and ear mites, but excluding fleas and ticks; and to the best of my knowledge the animal has not been exposed to rabies, nor did the animal originate from an area under a quarantine for rabies. The Petitioner's First Amended Request for Administrative Hearing provided: This petition is filed on behalf of The Humane Society of the United States ("The HSUS"). The HSUS is a nonprofit animal protection organization headquartered in Washington, (sic)DC. The HSUS Southeastern Regional Office is at 1624 Metropolitan Circle, Suite B Tallahassee, FL 32308. The HSUS is the largest animal protection organization in the United States, representing over 9.5 million members and constituents, including more than 500,000 members and constituents residing in Florida. For decades the HSUS has been actively involved in educating the general public regarding the persistent health and behavioral problems that are common among puppies marketed by retail pet stores. This suit is bought [sic] on behalf of the HSUS and its Florida members. The HSUS investigates puppy mill and pet store cruelty complaints and offers its members, constituents and the general public guidance and advice as to how to select healthy, well bred puppies. By ensuring that puppies sold in retail pet stores actually receive the statutorily mandated vaccines and antelmintics, the health and welfare of puppies will be improved. Further, by eliminating from sale puppies that harbor potentially dangerous zoonotic diseases, not only is the public health protected but breeding facilities where the puppies originate and the pet stores that market the puppies have incentive to improve the often overcrowded and unsanitary conditions to which causes the puppies to be infested with internal parasites. A recent email survey revealed that more than 70 HSUS constituents have purchased puppies from Florida pet stores. This petition is also filed on behalf of Richard and Sharon Chambers, 5920 Our Robbies Rd., Jupiter, FL 33458. The Chambers purchased two puppies from Precious Puppy in Jupiter, Florida, and were provided OCVI's, signed by Dr. Dale Mitchell, DVM, but stamped with the statement "Original Vaccines Done by Breeder or Breeder's Veterinarian." Accordingly, the Chambers cannot verify if the vaccines indicated on the health certificate, and "certified" by Dr. Mitchell, were actually administered to their puppies. One of the puppies developed kennel cough, in spite of supposedly having been vaccinated against it. The kennel cough progressed to pneumonia and required emergency veterinary care. This petition is also filed on behalf of Miriam Barkley, who lives at 600 SW 13th Avenue #7, Ft. Lauderdale, FL 33312. Ms. Barkley purchased a Yellow Labrador Retriever puppy from Puppy Palace in Hollywood, Florida and was provided an OCVI. At 13 weeks of age the puppy has bilateral hip dysplasia with severe right sided coxal subluxation and will require thousands of dollars worth of surgery, if she is even a candidate for the surgery. Otherwise she must be euthanized. In spite of the requirement that each pet dealer provide consumers with a certificate of veterinary inspection signed by a veterinarian that certifies that "the animal was found to have been healthy at the time of the veterinary examination" the OCVI she was provided contains no such certification. This petition is also filed on behalf of Sheree Thomas, 874 Hibiscus Street, Boca Raton, FL 33486. Ms. Thomas was sold a puppy by Puppy Palace of Boynton Beach, and was given an OCVI upon which the attesting veterinarian's signature had been forged. Her puppy contracted distemper, a contagious disease for which the puppy had supposedly been vaccinated. Petitioner Connie Crews purchased two puppies from Puppy Palace in Hollywood, FL. One puppy, Trinity, suffered kennel cough that developed into severe bronchial pneumonia for which she was hospitalized. Petitioner Connie Crews incurred more than $4,000 in veterinary expenses saving Trinity's life. The other puppy, Neo, also had kennel cough, and suffers a bone defect in both shoulders. Petitioner Crews was provided an OCVI with each puppy, indicating that the puppies had been vaccinated for kennel cough. However, the OCVIs were not signed by the attesting veterinarian, Dr. William Rasberry, DVM, but rather had been stamped with a signature stamp which had been provided to the pet store. For purposes of this order the foregoing allegations have been deemed true or accurate. No evidence or stipulations of fact regarding the Petitioners was presented.
The Issue The issues in this cause are fashioned by an amended administrative complaint brought by the Petitioner against the Respondent. By the first count to this complaint, Respondent is charged with knowingly employing and otherwise encouraging his wife, Nadia Said Helmy, to practice veterinary medicine in Florida without the benefit of a license. The second count to the amended administrative complaint was dismissed at the commencement of the hearing. By count three, the Respondent is charged with inappropriate advertising in association with his veterinary practice.
Findings Of Fact The State of Florida, Department of Professional Regulation, Board of Veterinary Medicine (Petitioner) is empowered by Chapters 455 and 474, Florida Statutes, to regulate the practice of veterinary medicine in Florida. Samy H. Helmy, D.V.M (Respondent), is and has been a licensed veterinarian in Florida during the pendency of the allegations set forth in the amended administrative complaint. Respondent's wife, Nadia Said Helmy, is not now licensed to practice veterinary medicine in Florida, nor has she been during the time sequence contemplated by the amended administrative complaint. Respondent and his wife owned and operated Wildwood Animal Clinic in Wildwood, Florida, from a period before January 1985 until June 1985. Respondent and his wife were also the owners and operators of Citrus Fair Animal Hospital in Inverness, Florida, from January 1985 through September 19, 1986, the date upon which Respondent gave a deposition in this cause. During the time frame in which both animal clinics were open, Respondent was principally located at the Inverness facility, while his wife was working in the Wildwood facility. Nadia Helmy was working under the supervision of the Respondent in her activities at Wildwood. Sometime in May 1985, a Ms. Goheen took her cat to Dr. Leigh McBride, another veterinarian licensed to practice in Florida. Ms. Goheen claimed that her cat had been treated by a veterinarian at the Wildwood Animal Clinic. She described that veterinarian as being a female. Dr. McBride was unfamiliar with a female veterinarian at the Wildwood Animal Clinic, being of the understanding that Respondent, a man, was the practicing veterinarian in that facility. This circumstance in which it was possible that someone was practicing veterinary medicine without the benefit of a license led to an investigation of that possibility on the part of Petitioner. Eventually, A. L. Smith, an investigator for Petitioner, was assigned to undertake the investigation. Smith borrowed a cat from Dr. McBride. Stogie, the cat, had come into Dr. McBride's veterinary clinic with a broken shoulder which Dr. McBride had repaired. Following this episode, the cat walked with a slight limp. Around May 22 or 23, 1985, in furtherance of his investigation, Mr. Smith took Stogie to the Wildwood Animal Clinic. He had in mind ascertaining whether Nadia Helmy was practicing veterinary medicine without a license by seeing if she would practice on the cat. He deliberately picked an occasion in which Ms. Helmy was alone in the Wildwood Animal Clinic in his effort to determine her willingness to practice veterinary medicine. Once inside the Wildwood Animal Clinic, Mr. Smith confirmed that Nadia Helmy was the only person in attendance. Smith asked to see a veterinarian, remarking to Ms. Helmy that his cat was suffering lethargy and was limping more than usual and that he needed the cat to be examined by a veterinarian. Ms. Helmy directed Smith to take the cat to an examination room and showed him the location of that examination room. At that point, Smith said that Nadia Helmy commenced "the examination." He further described that while the cat was on the examining table ". . . she [Nadia Helmy] was looking at it and looking into its eyes." He indicated that the examination he was observing was what he would expect a veterinarian to give an animal. On the other hand, this is the first instance in which Mr. Smith had ever done undercover investigation of alleged unauthorized practice of veterinary medicine and there is no other information that has been presented which would lead to the conclusion that Mr. Smith knew what techniques would be employed in an examination conducted by a veterinarian. Under the circumstances, there being no further indication of the factual details of the examination, absent the remark concerning Nadia Helmy's looking into the eyes of the cat, it cannot be concluded what details were involved in the alleged examination process and whether in fact the kind of examination conducted by veterinarians was occurring. The telephone rang, and Nadia Helmy left the examination room and answered the phone. She was gone for. three or four minutes. Mr. Smith could hear Nadia Helmy's end of the conversation, in which she spoke in some foreign language. Nadia Helmy testified in the course of the hearing that she spoke with her husband on the telephone regarding the symptoms of Stogie, among other matters. Having examined her demeanor in the course of the hearing and all her answers provided under interrogation, no credence is afforded her version of the telephone conversation. Consequently, no facts are found as to the nature of that conversation. Nonetheless, it is concluded that a conversation was held between Nadia Helmy and Respondent. Following the telephone conversation, Nadia Helmy returned to the examination room and looked at the cat again. Mr. Smith admitted that the cat seemed to be better and Ms. Helmy agreed with him and stated that the cat was just suffering from extended travel. Nadia Helmy said that the cat would be better after returning home. This was in response to Mr. Smith's representation that he was travelling between Tallahassee and Naples, Florida. Mr. Smith described the remarks by Nadia Helmy, concerning the fact that the cat was suffering from extended travel to be some form of diagnosis. Again, it not being identified that the investigator could speak to matters of what constitutes a diagnosis and the nature of those remarks by Nadia Helmy not being clearly a form of diagnosis which might be recognized by a lay person, the remarks are not received as stating a diagnosis. Throughout the exchange between Mr. Smith and Nadia Helmy on the date that the cat was brought to the Wildwood Animal Clinic, Mr. Smith referred to Nadia Helmy as "doctor." Although Ms. Helmy did not correct Mr. Smith in his reference, she did not affirmatively state that she was in fact a veterinarian licensed by Florida to practice veterinary medicine. In the course of the events in the examination room, Nadia Helmy did not take the temperature of the cat, did not take a case history on the cat or provide any form of treatment. Following the conversation in the examination room, Investigator Smith asked Nadia Helmy "how much" for her service. She replied five dollars. Nadia Helmy gave Investigator Smith a receipt for the payment of the five dollars. A copy of the receipt may be found as Petitioner's Exhibit 1 admitted into evidence. It is on a form of the Wildwood Animal Clinic, which has a portion related to the character of service. This portion of the receipt is not filled out. The only thing that is reflected is the amount of charges and Mr. Smith's name and a date, May 22, 1985. Under these circumstances, it cannot be concluded that the five dollar charge was for provision of veterinary services. After leaving Wildwood Animal Clinic, Investigator Smith went to Citrus Fair Animal Hospital at Inverness. While there, he discussed with Respondent the facts of his visit to the Wildwood Animal Clinic and the nature of events related to Respondent's wife and the fact that the investigation was in answer to allegations made about the wife's practice of veterinary medicine. In the course of this conversation, Respondent stated that his wife was a graduate of veterinary medicine and was qualified to examine animals and run the clinic but that he did all of the surgery. He stated that his wife was qualified to give shots and to determine what was wrong with animals. Concerning the wife's actions, Respondent stated that his wife was too busy raising three children to get all the classes and under this circumstance hadn't passed an examination. Nonetheless, according to Respondent, the wife was completely qualified in that she was a graduate of veterinary medicine school. This acknowledgment by Respondent as to the general arrangement between the Respondent and his wife concerning the operation of the Wildwood Animal Clinic does not revitalize the Petitioner's claim that the wife was practicing veterinary medicine on the specific day in question. Evidence was presented in the course of the hearing concerning the fact that Nadia Helmy would not treat an animal of one Ralph Benfield when the animal had been offered for treatment at the Wildwood Animal Clinic. However, this situation occurred at a time when the Wildwood Animal Clinic was being phased out and it is not clear what significance that fact had in the decision by Nadia Helmy not to offer assistance to the animal. In January 1985, Respondent entered into a one-year advertising contract with the Citrus County Chronicle, a local newspaper. This was for the placement of advertisements pertaining to his Citrus Fair Animal Hospital. One of the ads placed in the paper, at the instigation of the Respondent, can be found as Petitioner's Exhibit 4 admitted into evidence. The date of the advertisement is March 31, 1985. It advertised free fecal check and a free office visit, but did not contain the 72-hour disclaimer language contemplated by Section 455.24, Florida Statutes. Having been advised of this problem related to the lack of disclaimer, Respondent, by correspondence of August 26, 1985, acknowledged his violation and modified the format of his advertising. The letter of August 26, 1985, and the new format of advertising may be found as Petitioner's second exhibit admitted into evidence. This letter had been dispatched based upon a complaint which was filed on August 9, 1985, by a Dr. Asaad. This led to action by the Petitioner attempting to have Respondent rectify the problems with his advertising. Following the circumstance in which Respondent had been made aware of the problem with his advertising, he took steps to ensure that the advertising was in compliance with law by contacting the Citrus County Chronicle. Although the employee of the Citrus County Chronicle who testified in the course of the final hearing was uncertain about whether the March 31, 1985, advertising copy was specifically approved by the Respondent, it was the practice of the newspaper to provide Respondent with a proof prior to publication. Circumstantially, it is concluded that Respondent did not oppose or question the acceptability of the March 31, 1985, advertising. Support for this position is found in the fact that Respondent conceded his violation by his August 25, 1985, correspondence.
The Issue The issue to determine in this matter is whether Petitioner James Jablon’s applications for a Personal Pet No Cost Permit (PPNC) and Class III Exhibition and/or Sale License (ESC) should be denied for the reason stated in Respondent Florida Fish and Wildlife Conservation Commission’s (FWC) Notice of Denial, dated May 24, 2019.
Findings Of Fact Mr. Jablon testified that he previously owned a male lion named Ed, and possessed the appropriate Class I Wildlife License. Ed then went to live at another wildlife facility near Gainesville. Mr. Jablon testified that in July 2015, Judith Watson, who owned a wildlife sanctuary near Spring Hill, Florida, contacted him and asked him to live in a guest house at her wildlife sanctuary and inquired whether he could relocate Ed to her wildlife sanctuary. Mr. Jablon stated that Ms. Watson had a female lion named Savannah, and it was his opinion that lions should live in a “group system” and not alone. Mr. Jablon testified that he then took steps to reacquire Ed from the Gainesville facility. On October 19, 2015, Mr. Jablon applied for a Class I and/or Class II Wildlife for Exhibition or Public Sale (ESA), in the name of Wildlife Rehabilitation of Hernando, in which he sought a license to possess, inter alia, a lion. The State of Florida classifies lions (panthera leo) as Class I wildlife. See Fla. Admin. Code R. 68A-6.002(1)(a)12. Among the numerous requirements for an ESA are requirements for the facilities for the housing of Class I wildlife, “[i]n order to assure public safety.” Fla. Admin. Code 68A-6.003(2). For example, Florida Administrative Code Rule 68A-6.003(2)(c)1. requires: Property ownership/lease: The facility shall be constructed on property owned or leased by the applicant. If leased[,] the lease shall be for a term of not less than one (1) year from date of application. Such lease shall be subject to initial and annual review and approval by the commission as a condition of said lease. If the property is leased, the lessee must have exclusive rights to occupy, possess and use the property with no restrictions that could prevent the lessee from adhering to the eligibility requirements for licensure with no other in holdings or easements. The existence of any such lease restrictions or termination of the lease shall result in the denial or revocation of the license or permit. As part of his ESA application materials, Mr. Jablon provided a “Residential Lease Agreement,” dated July 31, 2015, between Ms. Watson and “James Jablon/WROH,” that generally stated that Ms. Watson agreed to rent to Mr. Jablon (and Wildlife Rehabilitation of Hernando) real property in Spring Hill, Florida, for a term of almost three months. The Residential Lease Agreement contains the signatures of Mr. Jablon, and purportedly, Ms. Watson. Thereafter, Mr. Jablon submitted to FWC a “License renewal correction update,” dated November 16, 2015, in which he provided a “correction” to the lease term to show that it was for three years, and not almost three months. This “correction” contains the initials of Mr. Jablon, and purportedly, Ms. Watson. At the final hearing, Mr. Jablon admitted that the signatures of Ms. Watson on the Residential Lease Agreement and the initials on the “License renewal correction update” were not those of Ms. Watson, but his. Mr. Jablon testified that he signed Ms. Watson’s signature and initials to these documents with Ms. Watson’s permission. Mr. Jablon further testified: We weren’t really concerned about the legality of the lease, because neither one of us had any intention of enforcing the lease. I wasn’t technically a tenant there leasing the property. I was over there to help her run that facility and work with her. So if you look at the lease, there’s really nothing—it’s basically the way it came in the package. . . . So, I mean, we didn’t—we didn’t care about the lease. Ms. Watson testified that she never asked Mr. Jablon to create a lease for the Spring Hill property, never gave him permission to sign her name on a lease, and never gave him permission to sign a “License renewal correction update.” Ms. Watson, who testified that she was familiar with the requirements for an ESA for Class I wildlife, also testified, consistently with Mr. Jablon, that the two had discussed moving Ed to her property to live with Savannah. The undersigned does not find Ms. Watson’s testimony credible concerning the creation of a lease for the Spring Hill property. As an owner of a lion, who testified that she was familiar with the requirements for an ESA for Class I wildlife, Ms. Watson knew of rule 68A-6.003(2)(c)1.’s requirement that an ESA permittee must own or lease the property upon which the wildlife would reside. By asking Mr. Jablon to move Ed to her property to live with Savannah, the undersigned finds that Ms. Watson would have known of this requirement that Mr. Jablon either own or lease the property where Ed would live. As Mr. Jablon did not own Ms. Watson’s Spring Hill property, the undersigned finds that Ms. Watson would have known that Mr. Jablon would need to lease the Spring Hill property to legally possess an ESA and locate Ed on the Spring Hill property. However, the undersigned also finds, based on his own testimony, that Mr. Jablon falsified Ms. Watson’s signature on the lease, as well as her initials on the “License renewal correction update,” which he submitted to FWC as part of his ESA application. His explanation for doing so--that neither he nor Ms. Watson intended to enforce the lease and renewal documents-- further indicates to the undersigned that Mr. Jablon intended to submit materially false documents to FWC in the ESA application process. On February 19, 2019, FWC received Mr. Jablon’s application for a PPNC and ESC. In its May 24, 2019, Notice of Denial, FWC stated: On May 12, 2016, Ms. Watson provided a sworn statement to Investigator Chad Paul stating that the lease [submitted with the October 19, 2015, application for ESA] was a falsification. In comparing signatures from Ms. Watson over the years to the lease you submitted, FWC confirmed the signature did not belong to Ms. Watson. The Notice of Denial further states, “[b]ased on your prior submission of materially false information, your applications [for a PPNC and ESC] have been denied.” The undersigned finds that competent, substantial evidence supports FWC’s determination that Mr. Jablon submitted materially false information when he applied for an ESA in 2015.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned RECOMMENDS that the Florida Fish and Wildlife Conservation Commission issue a final order denying Mr. Jablon’s PPNC and ESC applications. DONE AND ENTERED this 27th day of September, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 27th day of September, 2019. COPIES FURNISHED: James Jablon 15297 Highfield Road Brooksville, Florida 34604 Joseph Yauger Whealdon, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. “Bud” Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
