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 Whether Respondent failed to keep proof of vaccination on file for racing greyhounds in his kennel, had a hypodermic needle on premises where racing greyhounds were lodged or kept, or stored cleaning supplies in the same area as bedding intended for racing greyhounds, as alleged in the Administrative Complaint, and if so, what is the appropriate sanction.
Findings Of Fact The Department is the state agency charged with regulating pari-mutuel wagering in the state of Florida, pursuant to chapter 550, Florida Statutes. Mr. O'Donnell owns racing greyhounds. He keeps his dogs, along with some leased dogs of other owners, in kennels that he leases for that purpose. At all times material to this case, Mr. O'Donnell held a pari-mutuel wagering business occupational license, number 441699, issued by the Department. At all times material to this case, Mr. O'Donnell held a pari-mutuel wagering professional individual license, number 330177, issued by the Department. A "permitholder" is a person or entity which holds an annual license to conduct pari-mutuel operations at the location specified in the permit. The licenses held by Mr. O'Donnell do not allow him to operate a pari-mutuel track or to conduct pari- mutuel operations at specified locations. Mr. O'Donnell is not a permitholder. Mr. O'Donnell employed a licensed trainer, Mr. Dennis Smith, who was responsible for day-to-day activities involving the dogs. Mr. O'Donnell personally kept responsibility for setting up vaccinations for the dogs. Mr. O'Donnell was not always physically present when vaccinations were given. Dr. Emilio L. Vega was a licensed veterinarian that Mr. O'Donnell employed to vaccinate his racing dogs. Dr. Vega came to Mr. O'Donnell's kennels for many years to vaccinate the dogs. Dr. Vega died on September 4, 2010, at the age of 80 years. On September 14, 2011, Investigator Tyrell Smith of the Department was reviewing operations of licensees who own or train greyhounds at the Florida Kennels Compound in Hialeah, Florida. At kennel number 45, leased by Mr. O'Donnell, he asked a kennel helper to let him inspect the vaccination records for the dogs.3/ Fifty-two vaccination records that had been signed in 2011 were produced for dogs in that kennel, and the helper indicated that Mr. O'Donnell was keeping vaccination records for other dogs. Investigator Smith noted that the name in the veterinarian's signature block on the forms was Dr. Vega. He was not aware at that time that Dr. Vega was deceased and could not have signed the forms in 2011. On September 23, 2011, Investigator Smith asked a kennel helper at Steubenville Kennel, numbers 36 and 37, which are also leased by Mr. O'Donnell, for vaccination records for the dogs. The kennel helper provided four records that contained the name of Dr. Vega in the veterinarian's signature block, dated in 2011. After talking with other trainers at the track, Investigator Smith learned that Dr. Vega had died in 2010. On September 30, 2011, Investigator Smith and other employees of the Department visited two animal clinics where Dr. Vega had formerly worked. The clinics did not have vaccination records for dogs in any of Mr. O'Donnell's kennels. Investigator Smith was able to view copies of some other vaccination records, and the signature appeared to Investigator Smith to be the same signature that appeared on the forms that had been given to him for the dogs in Mr. O'Donnell's kennels. On October 4, 2011, Investigator Smith visited kennel number 39 in Hialeah and asked Mr. O'Donnell for the vaccination records for those dogs. Mr. O'Donnell told him that the records had been stolen. Investigator Smith asked Mr. O'Donnell if he had filed a police report. Mr. O'Donnell said he had not. He indicated that he would just re-do the vaccinations. Investigator Smith returned to kennel number 39 on October 14, 2011. The vaccination records were not available. Mr. O'Donnell gave Investigator Smith the telephone number of Dr. Ann Romano, a veterinarian, and was told that she would be able to give him the vaccination information. Investigator Smith called Dr. Romano, but had only a very brief conversation with her, because communication was poor and because she was leaving on vacation. On October 25, 2011, Investigator Smith returned to kennel number 39 and again requested to see vaccination records for the dogs. He was provided records signed on October 24, 2011, by Dr. Romano. He later talked to Dr. Romano, who confirmed that she had vaccinated the dogs on October 24, 2011, but had not ever vaccinated any of Mr. O'Donnell's dogs before that date. The rule provides no "grace period" for enforcement of the requirement to keep proof of vaccination on file. Mr. Charles Taylor is an investigation specialist for the Department. Investigator Taylor was asked by his supervisor to go to the Orange Park Kennel Club ("Orange Park") and examine dog vaccination records for dogs in Mr. O'Donnell's kennels to see if any had been signed by Dr. Vega. Investigator Taylor visited the Orange Park facility on December 21, 2011. In the racing secretary's office, he found 56 National Greyhound Association papers, with vaccination records attached, for dogs in Mr. O'Donnell's kennels. The National Greyhound Association is an association that registers racing greyhounds. Examining these 56 vaccination records, he found that 21 of them contained the name of Dr. Vega in the veterinarian's signature block, with dates ranging from January 15, 2011, to September 16, 2011. He also found one undated, blank record with Dr. Vega's name in the veterinarian's signature block. Investigator Taylor made copies of these vaccination records. He did not contact either Mr. O'Donnell or the trainer of record about these vaccination records. Dr. Vega was deceased and did not sign any vaccination forms in 2011. Any forms purporting to contain his signature with a 2011 date were invalid and did not constitute proof of vaccination. The Department had visited the workplaces of Dr. Vega, and no other proof of vaccination could be obtained through the treating veterinarian. On August 27, 2013, Mr. O'Donnell occupied or had the right to occupy kennel number 45, at the Florida Kennels Compound, 7218 West Fourth Avenue, Hialeah, Florida, 33014. Mr. Luis Miranda is the facility manager of the Florida Kennel Compound. He conducts regular walk-through inspections of the kennels. Mr. Miranda points out any violations he observes to Investigator Smith when he comes to inspect the kennels. On August 27, 2013, Mr. Miranda told Investigator Smith that Mr. Miranda had found that kennel 45 was dirty during his walk-through inspection.4/ Investigator Smith went to kennel 45. There was no one there. A kennel is never locked, because it must remain open for safety of the dogs; however, there is a security gate and guard on duty at the entrance to the facility, and only licensees can gain entrance. Inspector Smith testified that kennel 45 did not appear dirty. He looked in the medicine cabinet in the kitchen area of the kennel, which is only about five feet from the dogs. He saw a syringe with a hypodermic needle attached. He confiscated it, took a picture, and placed it in a storage container. He never asked Mr. O'Donnell about the needle. On October 10, 2013, Mr. O'Donnell occupied or had the right to occupy kennel numbers 36 and 37, at the Florida Kennels Compound. On October 10, 2013, Inspector Smith conducted an inspection of kennel numbers 36 and 37, the Steubenville Kennel. He found the vaccination records all in order. He found a bottle of Clorox bleach and spray bottles containing unknown substances sitting on top of a crate that had a dog sleeping inside. He asked kennel workers about the chemicals. They told him they had just put them up there for cleaning and would move them in a few minutes. He found a hypodermic needle with syringe in kennel 36. He photographed these items. Kennel helpers removed the bleach and spray chemicals. Mr. O'Donnell was not there when Investigator Smith arrived, but came later while Investigator Smith was still there. While the Department showed that a bottle of Clorox cleaning solution was on top of a crate that had a dog sleeping inside, it did not clearly show that the Clorox cleaning solution was being "stored" there. The word "store" is defined as "to take in or hold supplies, goods, or articles, as for future use" or "to deposit or receive in a storehouse or warehouse for safekeeping" or "to put something that is not being used in a place where it is available, where it can be kept safely, etc." See Random House Dictionary, Random House, Inc. (2014), online at http://dictionary.reference.com/browse/store; American Heritage Dictionary of the English Language, 5th ed. (2014), by Houghton Mifflin Harcourt, at www.ahdictionary.com/word/search.html?q=store; and Merriam-Webster Online Dictionary, http://www.merriam- webster.com/dictionary/store. If the helpers only placed the Clorox on the crate while they were using it, as claimed, the Clorox and other cleaning materials were not "stored" there. There was no clear evidence to refute the helpers' admissions. The Department showed by clear and convincing evidence that Mr. O'Donnell failed to keep proof of vaccination for 52 of his racing greyhounds on September 14, 2011. The Department showed by clear and convincing evidence that Mr. O'Donnell failed to keep proof of vaccination for his racing greyhounds on October 4, 2011. The Department showed by clear and convincing evidence that Mr. O'Donnell failed to keep proof of vaccination for 21 of his racing greyhounds on December 21, 2011. The Department showed by clear and convincing evidence that on August 27, 2013, and October 10, 2013, Mr. O'Donnell had hypodermic needles with syringes on premises which he had a right to occupy on the grounds of a racing permitholder where racing greyhounds were kept. Mr. O'Donnell has been involved with racing greyhounds for over 60 years. Prior to the incidents involved in this case, Mr. O'Donnell had never received a notice of violation from the Department.
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: (1) finding Mr. James E. O'Donnell guilty of 74 counts of violating Florida Administrative Code Rule 61D-6.009(9) and two counts of violating Florida Administrative Code Rule 61D- 6.004(2)(a); and (2) imposing an administrative fine of $76,000. DONE AND ENTERED this 24th day of December, 2014, 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 24th day of December, 2014.
The Issue Whether disciplinary action should be taken against Respondent's license to practice veterinary medicine, license number VM-2404, based on the violations of Section 474.214(1), Florida Statutes, as charged in three separate Administrative Complaints filed against Respondent.
Findings Of Fact At all times pertinent to the allegations in these cases, Respondent was a licensed veterinarian, having been issued license number VM-2404, by the Florida Board of Veterinary Medicine. On March 18, 2000, Respondent performed a spay on Rudy, a six-year-old cat owned by Sharon and James Leonard. Respondent discharged Rudy to Sharon and James Leonard on March 18, 2000. On the following day, when Rudy was not feeling well, the family took Rudy to the emergency clinic where she was seen and treated by Dr. Mark Erik Perreault. When seen by Dr. Perreault, Rudy was wobbly and disoriented, and had pale mucous membranes. In addition, Dr. Perreault observed hair sewn into Rudy's incision site. Because the cat was very tender, it was anesthetized, and a careful examination of the incision was made. That examination revealed the incision had been closed with very large suture material. Because of the cat's condition and his observations, Dr. Perreault recommended and received approval to re-open the incision, and conduct an exploratory operation. This surgery revealed Respondent sutured Rudy’s uterine stump leaving approximately one and a half inches of tissue below the suture. This amount of "stump" is excessive and leaves too much material to become necrotic. Respondent had closed the skin and body wall incisions with excessively large suture material. Respondent secured the body wall and skin incisions with only two throws (knots) in each closing suture. Both Dr. Perreault and Dr. Jerry Alan Greene testified regarding standard of care. It is below the standard of care to sew hair into an incision site or allow hair to become sewn into the incision site because it contaminates the surgical site. It is below the standard of care for veterinarians to use oversized suture material to close the incision site because an excessively large suture leads to excessive inflammation as the body absorbs the excessively large suture material. It is below the standard of care for veterinarians to secure the skin and body wall incisions with less than 5 to 6 throws on their sutures to ensure that the sutures do not loosen or become untied. The potential problems of not using enough throws are exacerbated by using larger suture material which is more likely to loosen. It is below the standard of care to leave an excessive amount of "stump" in the body cavity. An excess of necrotic tissue causes excessive inflammation. Pertaining to Rudy, Respondent’s records contain the notation, "0.6 Ket." Respondent testified that this indicated that he administered Ketaset. Respondent’s records do not indicate whether the administration was intravenously, intramuscularly, or subcutaneously. Respondent testified that he administered the Ketaset intramuscularly. It was below the standard of care for Respondent to fail to indicate the amount of medication administered, i.e., milligrams, cubic-centimeters, etc.; and to fail to indicate the method of administration. Respondent is the owner of V.I.P. Baseline clinic, a veterinary establishment located at 505 Northeast Baseline Road, Ocala, Florida 34470. On August 31, 2002, Teresa McCartney presented her male, white Maltese dog, Puffy, to Respondent at V.I.P. Baseline Pet Clinic for neutering. Teresa McCartney owned no other male, white Maltese dogs. Respondent performed a neuter on Puffy at V.I.P. Baseline Pet Clinic on August 31, 2002. On August 31, 2002, V.I.P. Baseline Pet Clinic was not licensed to operate as a veterinary establishment by the State of Florida Board of Veterinary Medicine. Teresa McCartney picked up Puffy from V.I.P. Baseline Pet Clinic on August 31, 2002. Puffy bled for approximately four days after the neuter was performed. On September 4, 2003, Teresa McCartney presented Puffy to Dr. Mark Hendon for treatment. Upon examination, Puffy was bleeding from the prepuce and from the site of the surgical incision. In addition, there was swelling subcutaneously and intra-dermal hemorrhage and discoloration from the prepuce to the scrotum. The animal indicated pain upon palpation of the prepuce, the incision site, and the abdomen. Dr. Hendon presented the owner with two options: to do nothing or to perform exploratory surgery to determine the cause of the hemorrhage and bleeding. The owner opted for exploratory surgery on Puffy, and Dr. Hendon anesthetized and prepared the animal for surgery. The sutures having been previously removed, upon gentle lateral pressure, the incision opened without further cutting. A blood clot was readily visible on the ventral surface of the penis, running longitudinally the length of the penis and incision area. Dr. Hendon immediately went to the lateral margins of the surgical field, where the spermatic vessels and cord were ligated, and found devitalized and necrotic tissue on both sides of the surgical field which appeared to be abnormal. He explored those areas and debrided the ligated tissues, exposing the vessels and the spermatic cord which he ligated individually. He then proceeded to examine the penis. Dr. Hendon found upon examination of the penis a deep incision into the penis which had cut the urethra, permitting urine to leak into the incision site, causing the tissue damage which he had debrided. Dr. Hendon had not used a scalpel in the area of the penis prior to discovering the incised urethra in the area of the penis, and he could not have been the cause of the injury. Dr. Hendon catheterized Puffy, and closed the incisions into the urethra and penis. Puffy recovered and was sent home the following day. Drs. Hendon and Greene testified about the standard of care in this case. It is below the standard of care to incise the penis or urethra of a male dog during a neuter because neither the penis nor the urethra should be exposed to incision during a properly performed surgery. Respondent’s medical record for Puffy did not indicate the type of gas which was administered to Puffy or that Ace Promazine was administered to Puffy. Respondent's anesthesia logs reflect the animal was administered Halothane and administered Ace Promazine, a tranquilizer. Rule 61G18-18.002(4), Florida Administrative Code, requires that a patient’s medical record contain an indication of the drugs administered to a patient. On September 13, 2002, Department Inspector Richard Ward conducted an inspection of V.I.P. Baseline Pet Clinic. The inspection revealed that Respondent failed to provide disposable towels. It was further revealed that Respondent provided insufficient lights in the surgical area of the premises. Finally it was revealed that Respondent did not have an operational sink in the examination area of the premises. Rule 61G18-15.002(2)(a)4.c., Florida Administrative Code, requires that all veterinary establishments have sinks and disposable towels in the examination area. Rule 61G18-15.002(2)(b)2.d., Florida Administrative Code, requires veterinary establishments that provide surgical services to provide surgical areas that are well lighted. On September 4, 2002, Elaine Dispoto presented her male cat Cinnamon to Respondent at V.I.P. Baseline Pet Clinic, located at 505 Northeast Baseline Road, Ocala, Florida 34470. On September 4, 2003, Respondent practiced veterinary medicine at V.I.P. Baseline Pet Clinic by providing veterinary medical services to Cinnamon. On September 4, 2003, V.I.P. Baseline Clinic was not licensed by the State of Florida to operate as a veterinary establishment. Cinnamon was presented to Respondent with complaints of vomiting and dilated eyes. The owner expressed concern that the animal had been poisoned. Respondent apparently accepted that the animal had been poisoned, and formulated a plan of treatment, because he gave the animal an IV and administered one cubic centimeter of atropine to the animal, a common antidote for organophosphate poisoning. Respondent administered subcutaneously the IV's of Ringer's lactate to the cat. The owners picked up Cinnamon from Respondent, having heard a television news report which was unfavorable about Respondent. Respondent gave the cat to Mr. James Dispoto, who observed that the cat was not doing well, although Respondent indicated that the cat was doing better. Mr. Dispoto was sufficiently concerned about the status of the cat that he took the animal immediately to Ocala Veterinarian Hospital. There the cat was examined by Dr. Fleck. Dr. Fleck found that Cinnamon was in extreme distress; lying on his side and non-responsive to stimuli. A cursory examination indicated that the animal was very dehydrated, approximately 10 percent, and passing yellow, mucousy diarrhea, uncontrollably. His pupils were pinpoint and non-responsive. Upon calling Respondent, Respondent told Dr. Fleck that on the first day he had treated Cinnamon, he had given the cat atropine, dexamethasone, and lactated Ringer's subcutaneously. On the second day, he had given the cat another injection of dexamethasone, penicillin, and lactated Ringer's subcutaneously. Based upon her assessment of the animal, Dr. Fleck wanted to get some blood work to establish what kind of state the rest of the body was in and to start an IV. The owner's consented, and blood was drawn and an IV drip started of normal saline at 25 mils per hour. While the blood work was being started, the cat had a short seizure, and within five minutes, had another bad seizure, going into cardiac arrest and died. A necropsy was performed which was unremarkable. The only significant findings were that the cat was dehydrated. There were indications the cat had received fluids along the ventral midline. The bowels were totally empty and there were no substances within the stomach, intestines, or colon. There was slight inflammation of the pancreas. Samples were taken of the pancreas, liver, kidney, and lung. Analysis of these samples was inconclusive. A cause of death could not be determined. The clinical presentation was very indicative of organic phosphate poisoning. Organophosphates are the active ingredient in certain common insect and garden poisons. However, there were no findings that pin-pointed poisoning as a cause of death. Dr. Greene testified concerning his examination of the files maintained on Cinnamon by Respondent. They reflected Respondent administered one cubic centimeter of atropine on the first day and another cubic centimeter on the second day. Dr. Greene's testimony about the administration of atropine is contradictory. He testified at one point that, based on the cat's weight, a proper dose would be about 2.5 cubic centimeters and Respondent did not give enough; however, his answer to a question on cross-examination later indicated that the amount of atropine given was more in line with what was administered. Respondent faced a bad set of alternatives in treating Cinnamon. The cat presented with poisoning symptoms and suggestions of poisoning by the owners. He could run tests and try and determine exactly what was ailing the cat. However, if he did this without treating the possible poisoning, the cat might have died from the poison before he determined what was wrong with the cat. He could begin to treat the cat for poisoning based upon the owner's representations, and perhaps miss what the cat's problem was. He cannot be faulted for treating the most potentially deadly possibility first. It is noted that a full necropsy could not pinpoint the cause of the animal's problem(s). While Respondent may have run additional tests, they would not have been any more revealing. Atropine is the antidote for organophosphate poisoning and is helpful in controlling vomiting. It is clear from the file that Respondent's working diagnosis was poisoning. He treated the cat with the appropriate drug in approximately the correct dosage. Dr. Greene testified that it was a deviation from the standard of care not to administer fluids intravenously to Cinnamon because an ill patient may not absorb fluids through subcutaneous injection. Based upon Dr. Fleck's discussion of the issues involved in administering fluids intravenously, it does not appear nearly so clear cut as Dr. Greene suggests, but is a matter of professional judgment. Dr. Greene testified it was a deviation from the standard of care to administer lactated Ringer's solution to Cinnamon instead of sodium chloride or normal saline. Again, the choice of normal saline versus lactated Ringer's is one of professional judgment and not standard of care. Dr. Greene opined that it was a deviation from the standard of care to administer only 300ml of fluids to Cinnamon because 300ml is an insufficient amount of fluids to treat for dehydration or to even sustain Cinnamon under the circumstances. Dr. Greene assumed that the all of the hydration was via "IV." The testimony was that the cat did take some water orally; therefore, Dr. Green's predicate was flawed. Respondent administered dexamethsone to Cinnamon. Respondent failed to indicate that he administered dexamethasone in Cinnamon’s record. It is a deviation from the standard of care to fail to indicate the administration of dexamethasone in a patient’s record. Respondent administered penicillin to Cinnamon. Respondent’s records for Cinnamon indicate that he administered penicillin-streptomycin to Cinnamon. Respondent's records for Cinnamon indicate that Respondent did not check on the animal frequently, which, given his condition and the multiple problems which the cat was suffering, was a failure to render the standard of care necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That the Board enter its final order: Finding that Respondent violated the standard of care in treating Rudy, Puffy, and Cinnamon, contrary to Section 474.214(1)(r), and imposing an administrative fine upon Respondent of $2,000 for each violation; Finding that Respondent violated the requirement to keep adequate records with regard to Rudy, Puffy, and Cinnamon, contrary to Section 474.214(1)(ee), and imposing an administrative fine upon Respondent of $1,000 for each violation; Finding that Respondent violated the requirement to obtain a license for a premises, contrary to Rule 61G18- 15.002(2), Florida Administrative Code, which is a violation of Section 474.214(1)(f), and imposing an administrative fine upon Respondent of $2,000; Finding that the record of Respondent's previous violations and the violations found above reflect that he is unqualified and unfit to practice veterinary medicine in the State of Florida, and revoking immediately his license, without leave to reapply; Requiring Respondent to pay costs incurred in the investigation and prosecution of these cases in the amount $5,697.96, plus the costs incurred at the final hearing; and Opposing any effort by Respondent to practice veterinary medicine while an appeal in this case is taken. 28 DONE AND ENTERED this 14th day of October, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ STEPHEN F. DEAN 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 14th day of October, 2003. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Tiffany A. Short, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Thomas V. Infantino, Esquire 180 South Knowles Avenue, Suite 7 Winter Park, Florida 32789 Sherry Landrum, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 29 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 2399-2202
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.
