The Issue The issues requiring adjudication in this cause concern whether the Respondent's license as a veterinarian in the State of Florida should be revoked, suspended or other discipline imposed for alleged violations of Chapter 474, Florida Statutes. Those violations involve alleged cruelty to animals treated by the Respondent and whether his treatment and behavior toward those animals amounted to fraud, deceit, negligence, incompetence or misconduct in the practice of veterinary medicine. Also at issue are charges in the Complaint concerning whether the Respondent violated the enumerated sections of Chapter 474, Florida Statutes, involving being convicted or found guilty, regardless of adjudication, of a crime which directly relates to the practice of veterinary medicine. It must also be determined whether the Respondent, with regard to some of the animals treated and named in the Complaint, failed to maintain his veterinary medical records in accordance with the related and enumerated subsections of Chapter 474, Florida Statutes, and the related rule. Finally, if the charges, or any of them, are substantiated, the question of a recommended penalty must be addressed.
Findings Of Fact The Petitioner, DEPARTMENT OF PROFESSIONAL REGULATION ("Department"), is an agency of the State of Florida charged with regulating the practice of veterinary medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 474, Florida Statutes. The Respondent, is a licensed veterinarian in the State of Florida, holding license number VM0000710. The Respondent maintains his practice at 820 Creighton Road, Pensacola, Florida 32504. The Respondent is the owner and managing veterinarian of Creighton-Davis Animal Hospital located at that address. Counts One through Three of the Administrative Complaint relate to the allegations that the Respondent intentionally, cruelly and repeatedly struck a dog named "Peaches" belonging to Cynthia Barrera, which had been brought to him for veterinary care. It is alleged that on or about October 9, 1986, after the alleged cruel treatment, the dog was found dead in the Respondent's clinic by a staff member. It is alleged that he told the owner of the dog that the dog had "escaped", knowing that story to be untrue. A former staff member employed by the Respondent, Tina Lyttle, submitted an affidavit to the Santa Rosa County Animal Protection Officer, Ms. Betty Simms, from which sprang the charges concerning the dog named "Peaches". She and the Respondent were the only ones present in the examining room on the date in question. "Peaches" had been brought in by its owner to be shaved; and, because the dog had a propensity to bite, he was required to be sedated for the procedure. Tina Lyttle maintained that the Respondent dragged the dog into the room by its leash, slung it up on the examining table, and ran the leash down through the drain hole at one end of the table to hold the dog's head down close to the surface of the table, to restrain the dog. She contends that the Respondent told her to hold the dog's hindquarters and hold a vein so that he could inject the anesthesia. He kept missing the vein and tried in both back and front legs to locate a vein into which he could inject the anesthesia. Tina Lyttle contends that the dog began growling, and the Respondent became enraged and began striking the dog on the back-legs, hips and rib cage and snatched the dog by the hair and slung him off the table which resulted in the dog being hung by the neck with his head and muzzle on the table and his body suspended in the air. She maintains that the Respondent then struck the dog on the muzzle with his fist and that the dog became unconscious due to choking as a result of this alleged handling. She also states that the Respondent was silent during this alleged episode. She then contended that the Respondent and she had an argument about his treatment of the dog and that she "stormed" out of the clinic to the kennel area. The Respondent, a short while later, went out and discussed the matter with her and attempted to placate her and get her to come back and assist him further. She came back inside, saw that the dog was already anesthetized and unconscious and, ultimately, shaved the dog at the Respondent's instruction. She left work that day and missed work the next day. She came back two days later and inquired of the Respondent and staff members about the dog. She alleges that some days later, staff member, Pat Guinn informed her that the dog had died at the Respondent's facility. Pat Guinn claimed in her testimony, that she found the dog dead in his pen and that the Respondent instructed her to put him in a bag and that she delivered the body of the dog to the Respondent and Ms. Vetitoe, another client of the Respondent. She testified that the Respondent directed her to put the body of the dog in Ms. Vetitoe's truck, or else the Respondent put the dog in Ms. Vetitoe's truck, (her testimony is inconsistent here) for the purpose of Ms. Vetitoe removing the dog from the premises and burying it. The Respondent describes the incident involving "Peaches" in quite a different light. The Respondent acknowledges that the dog was there to be shaved and otherwise cared for at the request of its owner, Ms. Berrera. He and Tina Lyttle were holding the dog on the table, as described. That is, the dog's head was cinched down close to the table by placing the leash through the drain hole in the table. This is accepted, proper veterinary practice in order to help restrain the dog and prevent the dog from injuring the veterinarian or his staff. As the Respondent was attempting to locate a vein whereby he could inject the anesthesia, during which time Tina Lyttle was holding the dog's hindquarters, the dog became belligerent, growling and suddenly bit the Respondent on his left forearm. The bite was a severe one going all the way through the upper part of the Respondent's forearm. The Respondent was in extreme pain and bleeding and struck at the dog, attempting to get him to release his hold. The dog's jaws were locked on the Respondent's forearm and ultimately, the Respondent acknowledges that he had to pry the dog's jaws open with a screwdriver to get him to release, all of which caused the Respondent extreme pain and blood loss. During this episode, Tina Lyttle became angry at the Respondent, shouted at him and remonstrated with him for hitting the dog and stormed out of the clinic. Another staff member assisted the Respondent in sedating the dog and preparing him to be shaved. The Respondent proceeded even though he had to stop and render first aid for his wounded forearm. Later he went outside and attempted to calm Ms. Lyttle down and finally got her to go back to work, although during their discussion she assaulted him by throwing him against the kennel building in a rage. Although the Respondent testified unequivocally that the episode occurred in this manner and that, indeed, the dog had bitten all the way through his forearm, both witnesses for the Petitioner, Tina Lyttle and Pat Guinn, denied that the biting incident occurred. The Respondent's version of events is corroborated, however, by Lt. Loria of the U.S. Marine Corps., who was a client of the Respondent and had just brought his dog in for care. The Respondent had noticed Lt. Loria on the premises and asked him to come to the examining room so that he could show him what had occurred. Lt. Loria observed, immediately after the injury to the Respondent's forearm, the wound caused by the dog, who was still in the room. This observation was made with the Respondent spontaneously telling Lt. Loria in no uncertain terms about the manner in which the dog had bitten him. Lt. Loria observed the wound in the Respondent's forearm and indicated that a pencil or fountain pen could have been stuck through the fang wounds. Lt. Loria testified by deposition in this proceeding and corroborated the Respondent's version. The Respondent had a noticeable scar from the wound on his arm and demonstrated it at hearing. It was observable during the investigatory process as well. The circumstances surrounding the death of the dog, described by Tina Lyttle and Pat Guinn, are also disputed by the Respondent and Ms. Vetitoe. Tina Lyttle maintained that she was informed by staff member, Pat Guinn, several days after the incident, that the dog had died on the premises; and then Pat Guinn testified concerning the manner in which she alleged that the Respondent, herself and Ms. Vetitoe arranged for the burial of the dog. The Respondent describes this incident differently. The Respondent stated that on the day after the biting altercation with the dog, he went to the dog's cage and observed that he needed exercise and needed to get out to relieve himself. Consequently, he snapped a leash on the dog and lead him through the clinic to exercise him outdoors. As he neared the patient waiting room, the dog got the leash in his mouth and bit through it, thus, getting loose. As luck would have it, a patient came in the front door of the clinic just at that moment and the dog rushed outside before the Respondent could stop him and escaped off the premises. The Respondent rushed outside, went into the field adjacent to the clinic looking for the dog and called him, to no avail. He then returned to the clinic in order to get into his truck and ride around in the neighborhood in an attempt to apprehend the dog. He maintains that he then met Carla Fowler, another staff member, who was returning from lunch nearby, told her of the dog's escape and enlisted her help in looking for the dog, instructing her to get into her car and also ride around the area in an attempt to locate the dog. The Respondent was never successful in finding the dog and ultimately bought the owner another dog of the same type, color and description and replaced the animal at his own expense. The owner and her children were satisfied with this arrangement and made no complaint concerning the Respondent's treatment of the dog or the unfortunate loss of "Peaches" and his replacement with another dog. The testimony of Ms. Vetitoe corroborates this version of events related by the Respondent. Ms. Vetitoe, by Pat Guinn's own admission, was present when the alleged disposal arrangement, related by Pat Guinn, was made. Ms. Vetitoe owns some thirty-four (34) dogs herself. She has been a client of the Respondent for many years. She testified that on no occasion has she ever buried a dog. She is an ardent animal lover and when her dogs expire, she has them cremated and their remains placed in urns. She testified that it was absolutely untrue that the Respondent or Pat Guinn had requested her help or assisted her in disposing of the dog. Her testimony is unequivocal that that episode never occurred and that she had never seen the dog "Peaches" which Pat Guinn and Tina Lyttle alleged to have died on the premises. Finally, in this regard, the testimony of Carla Fowler also corroborates the Respondent's and Ms. Vetitoe's testimony regarding the events surrounding the dog's demise. Carla Fowler acknowledged that when she was returning from lunch nearby, she saw the Respondent running through the field adjacent to the clinic looking for the dog. When he came back to the vicinity of the clinic, he told her that he was looking for "Peaches" and that the dog had escaped. She stated that he enlisted her help in finding the dog. The Respondent's, Ms. Vetitoe's and Lt. Loria's versions of the events surrounding the care, treatment and death of the dog "Peaches" are accepted. The testimony of Tina Lyttle and Pat Guinn concerning this incident is rejected in its entirety as incredible for the reasons related above and which will be treated more definitively, infra. Paragraphs 15 through 24 of the Administrative Complaint, including, from paragraphs 19 through 24, Counts Four, Five and Six, relate to an alleged incident involving a dog named "Star", belonging to Wanda Bruner. The dog was brought to the Respondent's clinic for veterinary care apparently consisting of a general examination, a flea dip and bath. It is alleged in paragraphs 15 and 16 of the Complaint that on or about September 5, 1986, the Respondent intentionally, cruelly and repeatedly struck the dog "Star" with his hands and bit the dog and that he intentionally and cruelly struck the dog on the head with a hose nozzle. Carla Fowler was the employee who assisted the Respondent in examining and caring for "Star" on the dates in question. The Respondent had placed the dog on the examining table at the outset of the episode of September 5, 1986, apparently for purposes of examination. Carla Fowler relates that the dog was "real nervous" and "I don't know if it was jerking or something, and Dr. Monroe hit it on the head and then on the rib cage and the dog got even more nervous. And then Dr. Monroe stooped down and bit the dog on the nose. And then the dog urinated all over the table". Ms. Fowler then testified that the Respondent told her to remove the dog from the room or words to that effect and then told her the next day to bring the dog in so they could give it a bath. He asked her to assist him in giving the dog a bath because he was afraid the dog would put up fight, in her words. She testified that the dog was trying to squirm along the side of the tub and the Respondent, who had a water hose in his hand, hit the dog on top of the head with the water hose nozzle, broke the head open, causing bleeding. She became upset with the Respondent's action, according to her testimony, and also testified that her husband walked in the door when the incident happened. Although her husband testified that he observed the incident where the Respondent is alleged to have struck the dog on the head with the hose nozzle, it is found that that incident did not occur and that he was not in a position to have observed it. Photographs and the evidence, consisting of the Respondent's Exhibits 1 and 2, coupled with the Respondent's testimony, are accepted as more credible and establish that the Respondent and Ms. Fowler were standing between the door and the bathtub bathing the dog in such a position that anyone coming in the back door, such as Ms. Fowler's husband, would have been unable to observe the alleged incident. The testimony of Ms. Fowler and her husband, as well as that of Pat Guinn, (itself, internally inconsistent in that, in her deposition, she stated that she observed the "hose striking incident" and in her testimony at hearing, admitted that she had not observed it), is rejected as incredible and unworthy of belief. The testimony of the Respondent is accepted. In this regard, the Hearing Officer is mindful of the testimony of Wanda Bruner, "Star"'s owner, who established that, indeed, stitches were observed by her in the head of the dog and that the Respondent told her that he had removed a cyst and stitched up the small incision involved. The testimony of the Respondent concerning this incident, as corroborated or explained by the testimony of Wanda Bruner, is accepted; and it is found that no acts of cruelty were perpetrated by the Respondent against the dog named "Star". Paragraphs 25 through 28 of the Administrative Complaint concern the dog named "Chipper" owned by Lorraine Purcell. Ms. Purcell brought the dog to the Respondent on approximately April 18, 1986 for a checkup and general examination. The Respondent determined that the dog's anal glands were infected, and he recommended to Ms. Purcell that surgery be performed to remove the anal glands. Ms. Purcell agreed to this procedure, and the Respondent performed the surgery removing the anal glands and stitching up the incisions. Some two or three days later, Ms. Purcell telephoned the Respondent's office concerning the release of her dog and was informed that the dog had suffered complications attendant to his "bothering" or chewing the stitches and that the dog needed to remain a few more days. She agreed to this and contacted the Respondent's office at least once more concerning when she should retrieve her dog. The Respondent conversed with her directly on April 23, 1986 and told her that he had had to re-operate on the dog because the dog had chewed or bothered his stitches such that surgical repair of the resulting wound was necessary on the dog's left side, that is, the left side of the anal opening. Upon learning that the dog had a large open hole or wound on the left side of his anus, Ms. Purcell became upset with the Respondent, came to the office and removed the dog from his care against his recommendation and sometime shortly thereafter, took the dog to another veterinarian, Dr. Clinton Chew. Dr. Chew described the large, open wound on the left side of the dog's anus as involving damage to the sphincter muscle with the effect that the dog was unable to control its bowel movements, and therefore, was dripping feces uncontrollably. Dr. Chew was unable to determine if the wound was caused by the dog's self-mutilation of the earlier incision but stated that it could have been the result of self-mutilation. He did not know how long the dog was in its owner's care after it had been removed from the care of the Respondent before being brought to him, but felt that it was approximately a day. He ventured no opinion about whether any self-mutilation could have occurred after the dog was removed from the Respondent's care and before being brought to him. Dr. Chew advised Ms. Purcell that two courses of treatment were available; healing by granulation, that is, the natural healing process for closing up the hole as small as possible before surgery; or immediate surgical intervention to try to close the open wound. Upon his advice, Ms. Purcell elected to allow some time for the natural healing process to close up the hole as small as possible with a view toward trying surgery at a later time if that was still necessary. After leaving the dog in Dr. Chew's care for some days, with the healing process started, Ms. Purcell or her husband retrieved the dog from his care and brought the dog home. The dog suffered at home because he was incontinent and dripping fecal material, such that he became very bothered by flies and could not come into the house as he formerly had. Because the dog was miserable and Ms. Purcell and her husband felt that his quality of life had severely deteriorated and because they were constantly having to clean up after the dog, she and her husband decided to have the dog put to sleep. Mr. Purcell, therefore, brought the dog back to Dr. Chew and upon their own initiative, instructed Dr. Chew to have the dog put to sleep. Dr. Chew testified that that was not his recommendation and that the Purcells had not instructed him to try to effect further repair of the wound surgically. In fact, by June 26, 1986, when the dog was brought in to be put to sleep, the natural healing process had substantially closed the hole although the dog was still incontinent because of the destruction to the sphincter muscle. In any event, without attempting further repair surgically, the dog was put to sleep on or about that date. Neither Dr. Chew nor any other witness established what the appropriate, professional veterinary standard of care in this situation might be. In any event, Dr. Chew testified that the portion of the incision which was not damaged, that is, on the dog's right side, was properly done. He was thus unable to say that the surgery was improperly or incompetently done or that it was unnecessary, nor did any other witness. Paragraphs 29 through 34 of the Administrative Complaint concern an incident allegedly occurring on October 30, 1986 when the Respondent attempted emergency veterinary care for a dog named "Dusty" belonging to Mr. Gary Ethridge. Dusty was brought in earlier on the morning in question very ill, dehydrated and cold. Pat Guinn or others on the Respondent's staff called him at home and told him that the dog had been brought in, and he told them that he would come into the office "in a little while" to see about him. They did not tell him that the dog was an emergency case. When he finally arrived at his office around 9:45 a.m. or 10:00 a.m., he realized that it was an emergency case and that the dog was in serious condition. He then attempted to perform a transfusion and used his German short-haired pointer, "Shadow", as the donor dog. As he had both dogs lying on the table, attempting to use his transfusion equipment, he had his face close to Shadow's head. He told his own dog, Shadow, to be still or be quiet in a loud voice which startled the dog and the dog whirled around and bit the Respondent on the nose, severely lacerating his nose, causing it to bleed copiously. Pat Guinn was the attending staff member at this procedure. The Respondent had Pat Guinn hold something to his nose to staunch the blood flow while he continued to attempt to render care to the severely-ill Dusty. Ultimately, because he was in extreme pain and losing blood from the wound in his nose, he was unable to complete the procedure and instructed Pat Guinn to take Dusty to Dr. Andress, a nearby veterinarian, to secure his care while the Respondent went to the emergency room to have his wound treated. This procedure was followed, but unfortunately the dog expired shortly after arriving at Dr. Andress' office. Pat Guinn testified that the dog "Dusty" came into the office early on that morning very ill and very cold. At about 8:15 a.m. to 8:30 a.m., she called the Respondent and told him of the dog's arrival. She maintains that she told him that morning over the telephone that it was a grave emergency. In any event, she testified that she and Carla Fowler put the dog on the table and placed warm water bottles around him and covered him up, awaiting the Respondent's arrival. She testified that the Respondent did not get to the clinic until 10:30 a.m. and got mad at her when he saw the condition of the dog, saying that it was an emergency and that they should have called him. She claims to have reminded the Respondent that she had told him that it was an emergency when she called him early that morning, shortly after 8:00 a.m. In any event, she testified that the Respondent, in attempting to establish the transfusion, became agitated and bit his dog, "Shadow", on the ear, whereupon Shadow bit him on the nose. Pat Guinn is not worthy of belief. Ms. Vetitoe, a confirmed animal lover, observed the procedure being performed on "Dusty", with the dog "Shadow" as the donor dog, and observed what transpired when the Respondent was bitten on the nose by Shadow. She corroborated the Respondent's own testimony upon which the above Findings of Fact are based to the effect that Shadow bit him on the nose, but he never bit any dog. Pat Guinn was a disgruntled employee. She was fired in February of 1987 by the Respondent and shortly thereafter, executed the affidavit upon which this prosecution was, in part, based. She testified that the Respondent had held a gun on her and threatened her on three different occasions and threatened to kill her and her children. She maintains that she told the Deputy Sheriff, Officer DeLeon, of this when she called him to report these incidents, as he put it, "Just for the record". In fact, Officer DeLeon testified that she had never reported the Respondent threatening her with a gun, holding a gun on her or pointing a gun at her. She also acknowledged in her testimony and in a deposition that she had been treated for stress and for a "nervous breakdown". Even Carla Fowler, another witness for the Petitioner, acknowledged that Pat Guinn had been known to exaggerate the truth. I find Pat Guinn's testimony too inconsistent, false and influenced by her hostility toward the Respondent, due to her discharge and, doubtless, to other altercations with him, to justify accepting it as probative of any facts in dispute. Paragraphs 35 through 37 of the Administrative Complaint charge that the Respondent inflicted cruelty intentionally and repeatedly on a cat named "Leo," belonging to Judith Gahimer, which had been brought to the Respondent for veterinary care. The cat "Leo" suffered from a hematoma in one ear caused by an injury (blood blister). The Respondent performed a "zepp" procedure which involves slitting the hematoma area and inserting a stainless steel ring so that the ring can move and prevent the wound from closing up, thus, enabling it to drain properly while it is healing. This is an accepted procedure for this type of injury, as acknowledged by Dr. Cordell, the Petitioner's expert witness. In this particular animal, however, for some reason, the incision did not heal properly. This was possibly because the cat kept irritating the incision. In any event, the cat had to be brought back to the Respondent on a number of occasions for cleansing of the wound and otherwise caring for it. On one of these occasions, Tina Lyttle assisted the Respondent in caring for the cat. The cat was on the examining table, and Tina Lyttle was assisting in restraining the cat while the Respondent treated it. Tina Lyttle stated that the cat became irritated and growled and hissed at the Respondent. She testified that she then observed the Respondent hit the cat approximately three times on the head with his hemostats and no- where else on the cat's body. Judith Gahimer, the cat's owner, believed that the cat's hips had been injured because the cat walked with a limp at some point after the Respondent was through treating him and was unable to jump anymore. She believed the cat's hip to be fractured. It was not demonstrated, however, even by the testimony of Tina Lyttle; that any permanent injury to the cat occurred during the Respondent's care. In fact, in her own testimony, Tina Lyttle, herself, was holding the cat with her hands in the area of his hips and shoulders to restrain him on the examining table. Any permanent injury to the cat was not caused by the Respondent. The cat's owner was unable to offer any definitive explanation for how the cat may have been injured or when. The Respondent vehemently denies striking the cat, as described by Tina Lyttle. I accept the testimony of the Respondent over that of Tina Lyttle concerning the "Leo" complaint. Shortly after the "Peaches" incident, Tina Lyttle was discharged by the Respondent as a result of a verbal and physical altercation he had with her. The Respondent offered to rehire her if she apologized for her behavior. The totality of the evidence of record reveals, however, that she harbors a great deal of resentment against the Respondent. Her bias against him is definitely demonstrated by the fact, as established by other prosecution witnesses, that she was the person who orchestrated the gathering of complaint affidavits against the Respondent, contacting Betty Simms of the Santa Rosa County Humane Society (after the Escambia County Humane Society refused to pursue the matters involved in this Administrative Complaint) and was the prime movant in getting Ms. Simms and the Santa Rosa County Humane Society to institute both the criminal and administrative proceedings against the Respondent. Her testimony is not credible nor worthy of belief. Paragraphs 38, 39 and 40 of the Administrative Complaint concern a spaniel by the name of "Beau". These paragraphs, which include Count Eight of the Administrative Complaint, allege that the Respondent, on a date unknown, was observed striking and biting "Beau". The incident involving "Beau" purportedly involved the Respondent treating the dog by cleaning his ears. The Respondent's assistant at the time, Peggy Maggard, helped with this procedure. Ms. Maggard testified that she was holding the dog on the examining table while the Respondent was cleaning his ears, which were apparently rather sensitive. She testified that the dog tried to pull away when his ears were being examined and that the Respondent hit the dog on top of the head and then struck him on top of the head again with his fist. He became angry, according to Ms. Maggard, and jerked the dog away from her and bit the dog on the nose, severely enough to leave a gash, causing the gash to bleed. Ms. Maggard testified that at this point she grabbed the Respondent by the throat and admonished him not to treat the dog so. She claims that the bite by the Respondent to the dog's nose caused a gash in approximately the pattern of the Respondent's teeth, or approximately one and a quarter inches wide, causing the wound to bleed and that the blows to the top of the head left a noticeable lump on top of the head which a person examining the dog would be able to feel. She testified that the dog's owner would be able to readily notice both injuries. The dog's owner, Henry Savelle, had used the Respondent for "Beau"'s care and treatment for a number of years, always finding the care and treatment rendered to his dog to be appropriate. Mr. Savelle retrieved his dog from the Respondent's care approximately the next day following the purported incident. He noticed no injuries whatever to the dog. He would have been able to notice such injuries inasmuch as he is frequently in close contact with his dog. The alleged incident concerning the dog "Beau" is supposed to have occurred, according to Peggy Maggard, in 1983, approximately six years before this proceeding. Ms. Maggard did not report this incident until May 14, 1987, some four and one- half years after it occurred. She did not report it until she conferred with Betty Simms, the Santa Rosa County Humane Society member and Animal Control Officer and only did this after learning that others who had worked for the Respondent had made complaints to Ms. Simms. The witness testified that she could not recall how she learned that others had made complaints and purported not to recall whether she had talked to other complainants about the Respondent and the care and treatment he had rendered to the various animals involved in those complaints. It is singular to observe, however, that she was purportedly able to recall clearly all of the events surrounding the incident allegedly occurring with the dog "Beau," even though it allegedly occurred some four and one-half years earlier than the events she purportedly cannot recall concerning how she came to learn of the complaints against the Respondent, the investigation by Animal Control Officer Simms, why she came to make her report in May of 1987, nor whether she conferred with the other complainants before or after making her report concerning "Beau". She did state, however, that upon reporting the "Beau" incident to Betty Simms, the Animal Control Officer, she already knew that others had made complaints, meaning the other former employees of the Respondent. Peggy Maggard, like the other former employees of who made complaints which engendered this prosecution, had had disagreements and altercations with the Respondent which resulted in her being discharged twice from his employ. The Respondent, for unexplained reasons, as in the case of some of the other employees, rehired her after discharging her for the first time. In any event, it is apparent, from the totality of the circumstances concerning the manner in which Ms. Maggard described this alleged incident and the manner in which it came to the attention of the Petitioner through the reporting of it, much belatedly, by Ms. Maggard, after she learned of the efforts by former employees to report incidents concerning the Respondent, that Ms. Maggard harbors a significant amount of resentment against the Respondent. She is a disgruntled former employee. This leads the Hearing Officer to the conclusion, considering circumstances of her employment, history, the purported nature of the "Beau" incident, and the apparent contact that the various former employees, including Ms. Maggard, had with each other concerning the reporting of these incidents, and the manner of reporting them, that Ms. Maggard fabricated this incident It is simply incredible that the Respondent would have bitten the dog on the nose, and Ms. Maggard was certainly not a convincing witness capable of establishing that fact. Perhaps the Respondent said it best when he testified, without contradiction that, at the behest of the Department, he had taken a battery of psychiatric tests and had "passed with flying colors". It is singular to note in reviewing the totality of testimony and evidence in this proceeding that the Respondent is the only witness who was subjected to and passed such psychiatric examinations. The Respondent vehemently denied that this incident occurred. His testimony is credible and accepted. The incident did not occur. The "medical records complaint" concerns paragraphs 41 through 47 of the Administrative Complaint. In this regard, it is alleged that on or about July 23, 1987, the Respondent was contacted by the Petitioner, through its investigator, Mr. Clum, and requested to provide treatment records for the animals, "Peaches, "Chipper", "Babe" and "Geoff", pets he had allegedly treated. The Respondent was presented with a "authorization" to release the records of each of the above- named animals, and is charged with failing or refusing to release those records to the Department's investigator, Mr. Clum, in alleged violation of Rule 21X-18.02, Florida Administrative Code. Indeed, the Respondent did fail to give the investigator those records. In this connection, the record evidence reveals that Tina Lyttle, in approximately February of 1987, was working at the clinic on a Sunday when the Respondent was not present. This was after the point in time when Tina Lyttle had assembled the various affidavits from employees or former employees and reported the alleged incidents to Ms. Simms. On this Sunday occasion, Ms. Lyttle called Ms. Simms; and at her behest, Ms. Simms went to the Respondent's office to make observations, take photographs and to examine the Respondent's records, which Tina Lytt1e allowed her to do. The two examined the Respondent's medical records without the Respondent's or the pet owners' authorizations. They also photographed certain records. Thereafter, on July 23, 1987, when the Respondent was asked by investigator Clum to provide the records of the four above-named animals, the Respondent attempted to do so. He went to his file cabinet where such records are kept and could not find the records. In fact, the record jackets concerning each of these animals were still in his file drawer; but the record materials contained therein were missing. The failure to supply these records to the Department's investigator was not shown to be the fault of the Respondent. He did not fail or refuse to provide the requested records. He tried to provide them. It was simply impossible because they had been removed from his files. Paragraphs 44 through 47 of the Administrative Complaint concern treatment records which the Respondent did provide at the Petitioner's request for the animals named "Leo", "Max", "Beau", and an unnamed mixed collie owned by Kimberly Rowe. It is charged in essence that the records furnished by the Respondent as to these animals failed to contain all of the information required by Rule 21X-18.02, Florida Administrative Code. During the course of the hearing, the Petitioner voluntarily dismissed the complaint as to the dog named "Max" and the unnamed mixed collie, leaving at issue the question of the adequacy of the records concerning the cat named "Leo" and the dog named "Beau". The Petitioner presented, as its expert witness in the field of veterinary medicine and practice, Dr. Joe Wilson Cordell, Jr. of Tallahassee, Florida. Dr. Cordell has been a veterinarian for some 17 years and was accepted as an expert in the practice of veterinary medicine. Dr. Cordell reviewed the medical records on the two named animals consisting of the Petitioner's Exhibits 84 and 85. With regard to the records concerning these two animals, Dr. Cordell did not opine that the treatment or care furnished was inadequate or did not accord with appropriate, professional veterinary medicine standards. He did observe that to some extent the records were incomplete in showing exactly what surgical procedure or other procedure might have been done, whether or not physical examinations were performed, prior to administering anesthetic, what type of anesthetic was used and the route of administration. Certain items, such as body temperature, physical examination findings, medications used, route of administration of the medications, and adequate descriptions of procedures involved were lacking from the records or, to some extent, were illegible. The ear procedure record concerning the dog "Beau," for June 23, 1983, does not contain a diagnosis. Dr. Cordell established that a diagnosis is required for such a medical record. In summary, Dr. Cordell could not tell from examining the records exactly what procedure was done regarding the ear treatment involved as to one of the animals nor were adequate record entries made regarding the results of physical examinations. He acknowledged, however, that the records probably meant a great deal more to the Respondent than they did to him inasmuch as he was unaware of the Respondent's manner of making notes. He observed that the Respondent's notes probably meant more to him than they would to anyone who examined them. Such medical records and notes are for the purpose of assuring continuity of treatment and to refresh the doctor's recollection of the status and condition of an animal which he may been treating and keeping records on for a number of years. The Respondent testified that he felt that he was making records in the manner taught at the veterinary school at Auburn where he was trained and at which his brother, who advised him concerning record-keeping, is a professor. Further, the Respondent, in an effort to improve his record keeping, prior to this prosecution, installed a $23,000.00 computer hardware and software system to help him to assure better and more adequate record-keeping. The observations of Dr. Cordell concerning the record-keeping as to the animals named "Leo" and "Beau" are accepted to the extent that they demonstrate the inadequacies in recording the observations, results of examinations, treatment details and diagnoses related to those two animals. Neither Dr. Cordell nor any other witness established, however, what the professional veterinary medicine practice standards are as to any illnesses or conditions presented and resulting treatment performed as to any of the animals referenced in the Administrative Complaint. There has been no demonstration that any care and treatment performed by the Respondent has failed to accord with any professional veterinary medicine practice standards. Thus, as to any of the animals referenced in the Administrative Complaint, there has been no showing of incompetency or misconduct in the practice of veterinary medicine nor has there been any demonstration of fraud, deceit or negligence in the practice of veterinary medicine. Concerning the so-called "General Complaint" appearing at paragraph 48 of the Administrative Complaint, the Respondent is charged with practicing veterinary medicine in a way that inflicted unnecessary pain and suffering on animals entrusted to his care and treatment which, in turn, is alleged to be misconduct in the practice of veterinary medicine, as well as being beneath the minimal standard of care required of veterinarians in the State of Florida. Once again, it is found that no minimal standard of care required of veterinarians in Florida has been established of record in this proceeding. In accordance with the above Findings of Fact, it has not been established that any unnecessary pain and suffering was inflicted on any of the animals entrusted to the Respondent's care and treatment. Finally, it is true that the Respondent entered a plea of nolo contendere to two counts of the offense of cruelty to animals, as shown by the Petitioner's Exhibit 83, the order of the circuit judge entered on July 6, 1987. The Respondent established, however, that after paying a $15,000.00 fee to his attorney, Leo Thomas, in that criminal proceeding, and vehemently insisting on a jury trial because he felt that he had not committed any misconduct, he bowed to the advice of Attorney Thomas to the effect that if he proceeded with litigating the criminal matter, it would ruin his veterinary practice due to adverse publicity. Consequently, the Respondent established that that plea was merely "a plea of convenience" and was not made because the Respondent felt or tacitly admitted any guilt of the charges involved. In fact, the circuit judge did not adjudicate him guilty and stated affirmatively in his order that he did not feel that the alleged course of conduct involved required that he should be adjudged guilty. That order does not establish any conviction or adjudication of guilt but rather, was a result of a "plea of convenience". In summary, none of the violations alleged in the Administrative Complaint, other than the minor record keeping violations established by Dr. Cordell, have been proven in this proceeding. In reading the conflicting testimony, the Respondent's testimony and that of Ms. Vetitoe and Lt. Loria is accepted over that of the Petitioner's complaining witnesses because they are more credible and worthy of belief. The testimony of most of the Petitioner's witnesses, consisting of the former employees of the Respondent, is tainted and colored by bias and resentment against the Respondent, caused by past disagreements between him and those witnesses which, in the instance of each of them, culminated in their discharge from his employ, in some cases, multiple times. Tina Lyttle, for instance, had a number of verbal and physical altercations with the Respondent, at one point, in connection with the "Peaches incident", slamming the Respondent against the wall of the kennel or outdoor building when he went outside to attempt to calm her down from her misplaced anger resulting from the "Peaches incident". It was Tina Lyttle who conferred with the other complaining witnesses, orchestrated the complaints and secured the affidavits as to the alleged instances of animal cruelty and the infliction of unnecessary pain and suffering which, were given over to Ms. Simms, the Animal Control Officer, who then proceeded to instigate both the criminal prosecution and this administrative prosecution. There is sufficient evidence of record to infer that these witnesses, who had worked for the Respondent, conferred with each other at various times in orchestrating their complaints against the Respondent, and that each of them had sufficient grounds for bias and resentment against the Respondent as disgruntled employees so as to support a finding and conclusion that these former employees fabricated the essential specifics of the story of the Respondent's alleged cruelty and improper treatment of the animals in question. This finding is supported in this record by the inconsistencies in the testimony, at various times, of some of these witnesses. Pat Guinn, for instance, in her deposition, taken prior to this proceeding, indicated that she observed the Respondent strike the dog "Star" on the head with the hose nozzle. In her testimony at hearing, she recanted and stated that she had not seen that incident. Her testimony is also inconsistent about the manner in which "Peaches" death was reported and the manner in which the dog's body was allegedly disposed of. Her testimony is simply incredible in the face of the testimony of Ms. Vetitoe, an avowed animal lover, who testified that she never buries a dog but rather, cremates all of the dogs she has ever had to die in her custody, placing the remains in urns. Her testimony concerning the Respondent threatening her with a gun on three different occasions was belied by that of Officer DeLeon, who certainly had no motive for fabrication of his testimony when he indicated that no report of her being threatened with a gun was ever made to him. He testified that she reported an alleged threat against her by the Respondent, "Just for the record". In his experience as a law enforcement officer, he testified that it is highly unusual for an employee to report such an altercation with her employer, "Just for the record". The testimony of Carla Fowler is inconsistent with that of Guinn and Lyttle concerning the question of Peaches death or disappearance. Like the other witnesses, it is found to have been guided by her resentment against the Respondent more than any righteous indignation and genuine concern for the animals in question, as evidenced by the fact, established by Ms. Vetitoe's testimony that she, herself, had had a verbal altercation with Carla Fowler. When Ms. Vetitoe brought her own dog to be cared for by Carla Fowler, she warned Ms. Fowler that the dog had a propensity bite. Ms. Fowler, supposedly an animal lover herself, responded to Ms. Vetitoe by saying that if the dog bit her, she would "knock the m f hell out of the dog", a remark and attitude which upset Ms. Vetitoe, a dog fancier and client of long standing. In summary, the testimony of these former employee witnesses is fraught with internal inconsistencies and inconsistencies with the testimony of each other. Their testimony is simply not credible and worthy of belief and is found to have been fabricated with regard to the essential details concerning alleged cruelty to the animals in question. The testimony of witness Gahimer, the owner of the cat "Leo" is rejected. She did not establish that the alleged hip injury to the cat, if it occurred, was caused by the Respondent. The testimony of Tina Lyttle herself shows that no injury to the cat's hip area could have occurred during that treatment episode. The Respondent established that the Gahimer complaint was motivated by a billing dispute with the Respondent. No other pet owner had any complaints.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the pleadings and arguments of the parties, and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that a Final Order be entered by the Board of Veterinary Medicine dismissing the entire Administrative Complaint, with the exception of the charges in paragraphs 44 and 45 concerning the records of the cat "Leo" and the dog "Beau", and that it find that the Respondent has violated Section 474.214(1)(f), Florida Statutes, derivatively, by violating Rule 21X-18.02, Florida Administrative Code, concerning those two animals. Because of the circumstances surrounding this violation, as delineated above, it is recommended that a private reprimand be accorded the Respondent for this violation. DONE and ENTERED this 1st day of December, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 1st day of December, 1989.
The Issue Whether Respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed veterinarian in the State of Florida, having been duly issued license number VM 0002694. In April of 1988 Respondent practiced veterinary medicine from an establishment located in Dade County, Florida, that had not been licensed by Petitioner. Upon receiving a notice of violation, Respondent executed a cease and desist agreement, which he did not violate. Within thirty days of the notice of violation an application for licensure of the establishment was filed with Petitioner. Accompanying the application was a check which included the amount of the application fee and the amount of the late payment. On or about April 22, 1988, Respondent performed surgery on Yahara, a female dog owned by Arcadio Rolon. The purpose of the surgery was to spay Yahara. On or about April 25, 1988, Respondent informed Arcadio Rolon that Yahara had died on April 22, 1988. On April 27, 1988, Arcadio Rolon took the carcass of Yahara to Dr. David T. Wise, Jr., D.V.M., to have an autopsy performed. The autopsy revealed that the dog had recently been spayed. One ligature adjacent to the right ovarian string and artery had been partially attached to fat and was partially free floating. Another ligature was attached to fat mesentery in the caudal abdomen adjacent to the uterine strings and artery. Several sutures had been attached primarily to fat. There was a great deal of clotted blood in the abdominal cavity. The cause of Yahara's death was internal hemorrhaging, followed by shock and eventual death. The internal hemorrhaging was caused by Respondent's failure to properly tie off the severed ovarian and uterine arteries during the spay procedure. Yahara was a healthy dog before the spay procedure. The spay procedure on Yahara was not performed properly by Respondent in view of the standard of care exercised in the practice of veterinary medicine in the State of Florida There was no direct evidence that the premises utilized by Respondent in the practice of veterinary medicine were maintained in an unsanitary condition. The inspection reports were the only evidence that the premises had been kept in an unsanitary condition. These inspection reports were compiled by persons who were not witnesses at the hearing. None of Petitioner's witnesses had observed the premises before the Administrative Complaint was filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Professional Regulation, Board of Veterinary Medicine, enter a final order which finds Respondent guilty of violating the provisions of Section 474.215, Florida Statutes, as alleged in Count I of the Administrative Complaint, which finds Respondent guilty of violating the provisions of Section 474.214(1)(o), Florida Statutes, as alleged in Count II of the Administrative Complaint, which finds Respondent not guilty of having violated the provisions of Section 474.214(1)(d), Florida Statutes, as alleged in Count III of the Administrative Complaint, and which further finds Respondent not guilty of having violated the provisions of Section 474.214(1)(v), Florida Statutes, as alleged-in Count IV of the Administrative Complaint. For his violation of Section 474.214(1)(o), Florida Statutes, it is recommended that Respondent's license to practice veterinary medicine in the State of Florida be suspended for a period of ten days, that Respondent's license be thereafter placed on probation for one year, and that an administrative fine in the sum of $1,000.00 be imposed against Respondent. It is further recommended that there be no additional penalty imposed for Respondent's violation of Section 474.215, Florida Statutes, because of the action taken by Respondent following the notice of violation. DONE AND ENTERED this 31st day of August, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 31st day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-642 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. The proposed findings relating to the inspection reports are rejected because the contents of the inspection reports are hearsay. Addressed in paragraph 3. Addressed in paragraph 4. Rejected as being unnecessary to the results reached. Addressed in paragraph 9. The proposed findings of subparagraphs A., B., C., and E. are rejected as being speculative and as being unsupported by competent, substantial evidence. The proposed findings of subparagraph D. are addressed in paragraph 7 and are subordinate to the findings reached in paragraph 9. The proposed findings of subparagraph F. are rejected because Petitioner failed to establish that the medical record introduced as Petitioner's exhibit 1 constituted all the records kept by Respondent on this matter. Addressed in paragraphs 5 and 6. Addressed in paragraphs 7 and 8. Rejected as being based only on hearsay evidence. Rejected as not being a finding of fact. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: 1. Addressed in paragraph 1. 2-4. Addressed in paragraph 2. Rejected as being irrelevant and unnecessary to the conclusions reached. Rejected as being recitation of testimony. 7-9. Rejected as being conclusions of law and as being unnecessary to the results reached. 10. Rejected as being unnecessary to the results reached. 11-14. Rejected. Dr. Wise's report identified the dog upon which Dr. Wise performed the autopsy as being the dog Mr. Rolon brought to him. 15-16. Rejected as being unnecessary to the results reached. 17-20. Rejected as being unnecessary to the results reached. 21-22. Rejected as being contrary to the evidence. Rejected as being unnecessary to the results reached. Addressed in paragraph 2. Addressed in paragraph 10. COPIES FURNISHED: Laura P. Gaffney, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Juan C. Elso, Esquire 1331 Southwest 85th Court Miami, Florida 33144 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Linda Biedermann, Executive Director Department of Professional Regulation Board of Veterinary Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 ================================================================= AGENCY AMENDED FINAL ORDER ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF VETERINARY MEDICINE DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs DPR CASE NUMBER: VM 0098214 DOAH CASE NUMBER: 89-0642 SALVADOR ALDEREGUIA, D.V.M., LICENSE NUMBER: VM 0002694 Respondent. /
The Issue The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint, and if so, what action should be taken.
Findings Of Fact The Department of Business and Professional Regulation, Board of Veterinary Medicine (Petitioner) is the state agency charged with regulating the practice of veterinary medicine in the State of Florida, pursuant to Chapter 474, Florida Statutes. Oliver R. Jones (Respondent) is, and has been at all times material hereto, a licensed doctor of veterinary medicine in and by the State of Florida, having been issued license number VM 0001439. On or about December 29, 1993, Cleo, a female cat, was presented to Respondent by the cat owner's mother for spaying. The owner's mother signed the surgical authorization form, and the surgery was scheduled for later that morning. At that time no history was taken on Cleo because the owner's mother had no knowledge of Cleo's history. Respondent provided the owner's mother with forms which requested information regarding Cleo's history and which were to be given to Cleo's owner. Not receiving any communication from the owner, Respondent telephoned the owner. He discussed additional procedures which were recommended for Cleo and inquired about Cleo's history. The owner refused any additional procedures and provided Respondent with no history on Cleo. Cleo was a referral through the Pet Aid League (PAL). PAL is an organization which offers spaying and neutering of animals at a reduced cost. Respondent was one of many veterinarians agreeing to accept referrals from PAL at PAL's reduced cost. Even though Respondent had no history on Cleo, based upon his examination of Cleo and his years of experience and training, Respondent determined that Cleo's health was appropriate for surgery. Respondent performed the spaying with no noted complications. Respondent used the same spaying procedure that he had used on all of his other patients without incident. At or around 5:30 p.m. or 6:00 p.m. on the same day as surgery, Cleo's owner picked her up. Respondent provided Cleo's owner with a postsurgical information sheet and advised the owner to keep Cleo confined to the carrying cage in which Cleo was located and not allow Cleo to roam about. The cost of the surgical procedure under PAL's guidelines was $32 which the owner paid. After surgery and up to and upon discharge, no bleeding was noted by Respondent from the surgical area. Cleo's owner lived approximately five minutes from Respondent's office. Upon arriving home, the owner laid a towel in front of Cleo's cage and allowed Cleo to leave the cage and lay on a towel. Cleo acted weak and lethargic. After approximately 15 minutes, Cleo continued to act weak and lethargic. The owner observed blood on the towel and on and around the area of the sutures where the surgical incision was made. The owner attempted to contact Respondent by telephone but received no answer. The owner assumed Respondent's office was closed. 1/ At or around 7:00 p.m. on the same day of surgery, the owner took Cleo to Pet Emergency Center (Pet Emergency) on North University Drive in Tamarac, Florida. Cleo was treated by Dr. Anwar Basta. Pet Emergency contacted Respondent after obtaining information from the owner that Respondent had spayed Cleo. Respondent requested that the emergency doctor do whatever was needed to save Cleo's life. Expressing concern regarding the cost of the emergency medical services, Cleo's owner was informed by Pet Emergency that Respondent was a shareholder in Pet Emergency and, therefore, she would be charged only one- half the cost for the medical services rendered, with no emergency fee. Dr. Basta observed that Cleo's mucous membranes were pale and depressed, and that she was bleeding from the suture area and internally. Cleo's packed cell volume (PCV) was 9. He administered an intravenous (IV) catheter, lactated ringers with 3cc dexamethasone and anesthetized Cleo. Dr. Basta reopened the surgical area and observed that Cleo was bleeding from the body of the uterus or "uterine stump." There was an indication of ligation but the ligature was not present. The absence of a ligature is not unusual since it is absorbable. Dr. Basta stopped the bleeding and re-sutured the incision. Cleo was given 60cc of blood by transfusion. After the treatment by Dr. Basta, Cleo was doing better and remained at Pet Emergency Center overnight. Respondent contacted Pet Emergency twice, checking on Cleo's condition. At discharge, on December 30, 1993, Dr. Basta prescribed antibiotics and advised Cleo's owner to visit the family veterinarian for further care. Cleo's owner paid $180.00 for the medical services rendered by Pet Emergency Center and Dr. Basta. After discharge, on December 30, 1993, instead of taking Cleo to Respondent, the owner took Cleo to Pine Island Animal Hospital (Pine Island). Cleo was treated by Dr. David Smith. At admission, Pine Island requested previous history of Cleo on a form. The history section was left blank by Cleo's owner. Cleo had previously received medical services at Pine Island. In October 1993, when the owner first acquired Cleo, Pine Island treated Cleo twice for hook and tape worms. Dr. Smith's role in treating Cleo after the emergency treatment by Pet Emergency Center was one of providing supportive care, such as IV, fluids, food, antibiotics, and close observation. Cleo remained at Pine Island for two days (December 30 - 31, 1993). Cleo was doing fine. Cleo's owner paid $214.18 for the medical services rendered by Pine Island and Dr. Smith. Respondent was not aware that Cleo had been taken to Pine Island after discharge from Pet Emergency Center. Respondent attempted to reimburse Cleo's owner $100.00 of the monies expended by Cleo's owner on the medical services provided due to the complications from the spaying. Cleo's owner returned Respondent's check, refusing to accept any money unless it was the entire sum expended. On May 10, 1994, Respondent provided Petitioner's investigator with his complete medical records on Cleo. Also, Respondent executed a verification of completeness form, which was notarized on May 10, 1994. Respondent kept his PAL patients' medical records 2/ separate from and on different forms than his regular patient records. Respondent's medical records on Cleo were generated at the time of surgery and completed during the day as each service was being completed for Cleo. Respondent's medical records failed to provide the results of Cleo's physical examination, Cleo's health, and what occurred during surgery. Respondent's medical records on Cleo are inadequate. Further, Respondent's medical records did not contain a history on Cleo. However, it is not unusual for veterinarians not to have the history of a patient. Performing a postoperative examination is essential. Respondent failed to examine Cleo at time of discharge. If Respondent had examined Cleo at the time of discharge from his care, he should have observed the symptoms of blood loss by Cleo and not have discharged Cleo. A normal PCV for a cat is 38 - A PCV below 12 is an indication that the patient is in distress, that the patient has been bleeding internally for some time, that the blood has had a chance to dilute and that an emergency transfusion is needed. A PVC of 9 is a critical point and indicates a significant blood loss which has occurred over a period of hours. Symptoms of blood loss include paleness of the mucous membranes, the gums or the eyeballs, and weakness. Even though Respondent claims to have performed such an examination, the medical records provided to Petitioner's investigator failed to show a postoperative examination at discharge or the results thereof. 3/ Spaying is the common term for ovariohysterectomy which is the surgical removal of the ovaries and body of the uterus. The procedure prevents an animal from going into heat and reproducing. Variations exist in the procedure of spaying. However, the commonality in all variations is removing the ovaries and the uterus and ensuring that the stumps are securely ligated to prevent bleeding. Ligation is the process of tying the stump using an absorbable suture (the ligature). The suture is tightly tied in a knot so that vessels are constricted to prevent bleeding; usually two knots are used. Respondent uses the same procedure for ligation in all of his spaying, which was no different when he spayed Cleo. In his procedure for spaying, Respondent uses a triple clamp technique. For the ovary and uterine horn, he places two clamps below the ovary and one above the ovary at the proper ligament. The lower clamp crushes the tissue and leaves an indention in the tissue when it (the lower clamp) is removed. In ligation, the suture is placed around the tissue in the indention left by the lower clamp and the suture is tied using a surgeon knot, i.e., a triple tied simple knot, and then a square knot over the surgeon knot. The broad ligament which has the vessels in it is cutoff. The ovarian stump is checked for bleeding. This same procedure is used for the other ovary and uterine horn. For the cervix, one clamp is placed anterior to the cervix, a second clamp is placed above that clamp, and another clamp is placed above the previous clamp. The bottom clamp crushes the tissue and leaves an indentation in the tissue when it (the bottom clamp) is removed. The same tie procedure (ligation) previously described for the ovarian stump is used for the uterine stump. A check for bleeding at the uterine stump is also made. The standard and accepted procedure in veterinary medicine under similar conditions and circumstances for ligation is different from that used by Respondent. Instead of looping or placing the suture around the tissue in the indention left by the clamp and then tying the suture, the standard and accepted procedure is to loop or place the suture around the tissue in the indention left by the clamp and then use a stick tie, or transfixation suture which is passing the suture through the tissue and then tying the suture. The standard and accepted procedure would prevent the suture from slipping off the ovarian stump or the uterine stump. Slippage would cause the ovarian stump or uterine stump to bleed. Respondent has been licensed in the State of Florida since December 31, 1973. He has performed over 3,000 spayings. This is the first time that a complaint has been filed against Respondent during his over twenty years of practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Veterinary Medicine enter a final order: Placing Oliver R. Jones on probation for a period of one (1) year under such terms and conditions as deemed appropriate by the Board; and Imposing an administrative fine of $3,000. DONE AND ENTERED this 1st day of November, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 1st day of November, 1995.
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 issue for determination is whether Respondent, a licensed veterinarian, committed a violation of Section 474.214(1), Florida Statutes, as alleged in the Administrative Complaint, and, if so, what disciplinary sanctions should be imposed against his license.
Findings Of Fact Respondent is William R. Dudley, a licensed veterinarian at all times pertinent to these proceedings, holding license number VM 0000626. Respondent's last known address is 613 Westwood Drive, Milton, Florida 32570. Petitioner is the state agency charged with regulating the practice of veterinary medicine pursuant to Section 20.165, Florida Statutes; Section 455, Florida Statutes; and Section 474, Florida Statutes. On or about January 5, 1998, Respondent performed declaw surgery on Aladdin, a Chocolate Point Siamese cat owned by Kim Hawkins. The surgery was performed on a fold-down table attached to the back of Respondent’s pickup truck. The truck was outfitted as an agricultural veterinary vehicle. Respondent administered a mixture of Ketaset and Acepromazine to the cat prior to surgery. No other medication was administered to the animal for purpose of either analgesia or anesthesia. The Ketaset and Acepromazine administered to the cat are both controlled substances. These drugs are not anesthetics and served only to immobilize the cat during the operation. After the surgery, Kim Hawkins took the cat home. The animal’s paws continued to bleed. On January 7, 1998, the cat was examined by another veterinarian, Dr. Yehia Ibrahim, who wanted to know “who had butchered the cat.” In a declaw procedure, the animal is first anesthetized and the cat’s claw and the third phalanx of each toe are removed. Each toe has three phalanxes and a claw. While the procedure performed by Respondent involved only the animal’s front paws, Respondent did not remove all of the third phalanx on several of the animal’s toes, and removed the third and part or all of the second phalanx on the animal’s other toes. Respondent removed part of the digital pad on most, if not all, of the toes on both of the cat’s front claws. As established by the evidence at final hearing, Respondent performed the declaw surgery in a negligent manner. Respondent did not make or retain any medical record of the declaw procedure performed on the Hawkins’ cat. Respondent did not have a premise permit for his house or a mobile clinic. Respondent also did not have a record which related to the storing, labeling, or administering of the controlled substances that he utilized during the declaw procedure on the Hawkins’ cat.
Recommendation Based on the foregoing and in accordance with Petitioner's penalty guidelines, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the violations alleged in Counts II, III, IV, and V of the Administrative Complaint; imposing an administrative fine of $1000; and placing Respondent on probation for one year upon reasonable terms and conditions to be established by the Board of Veterinary Medicine. DONE AND ENTERED this 24th day of March, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 24th day of March, 1999. COPIES FURNISHED: Paul F. Kirsch, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William R. Dudley, Jr., D.V.M. 613 Westwood Drive Milton, Florida 32570 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Currie, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
