The Issue The issues in this case are whether Respondent engaged in sexual misconduct in the practice of medicine, in violation of section 458.331(1)(j), Florida Statutes; and, if so, what is the appropriate sanction.
Findings Of Fact The Department and Board of Medicine are charged with regulating the practice of medicine in the State of Florida, pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Dr. Pena-Sanchez is licensed to practice medicine in areas of critical need within the State of Florida, having been issued license number ACN 232. Dr. Pena-Sanchez went to medical school in Colombia, was first licensed in Puerto Rico, and has been licensed to practice medicine in Florida in areas of critical need since 2006. Dr. Pena-Sanchez is subject to the jurisdiction of the Board of Medicine. He worked for the Florida Department of Corrections in a St. Lucie Health Clinic from 2008 to 2010, and in a clinic in Okeechobee until June of 2012, when he joined FoundCare, a federally qualified health center, in West Palm Beach. In August of 2013, FoundCare instituted a Medical Provider Chaperone Policy. The policy provided, among other things, that any clinical provider conducting a physical examination of a patient of the opposite sex had to have a chaperone present during the exam and that the medical assistant had to be present until the physical examination was complete. Dr. Bonaparte, Dr. Pena-Sanchez's supervising physician, counseled him on the policy. Over a period of approximately five years, Patient H.P.-B., a 47-year-old female, saw Dr. Pena-Sanchez for treatment at FoundCare. In early 2017, FoundCare issued a standing order to staff requiring routine testing for HIV and hepatitis C under Center for Disease Control guidelines in order to comply with the terms of a focus grant FoundCare had received through the Gilead Foundation. On April 24, 2017, Patient H.P.-B. presented at FoundCare for a well-woman examination, including a PAP smear and other routine testing for laboratory analysis. Patient H.P.-B. had specifically requested that Dr. Pena-Sanchez conduct these tests, even though usual FoundCare practice was to have a female doctor conduct them. She testified that she requested him because he had been her doctor for several years, she believed he was a good doctor, and she trusted him. Dr. Pena-Sanchez conducted the tests in the presence of Ms. Yvette Ortiz, his medical assistant. Patient H.P.-B. was scheduled for a follow-up appointment a few weeks later. On or about May 15, 2017, Patient H.P.-B. presented to Dr. Pena-Sanchez at a scheduled appointment to discuss the blood work and procedure results. Ms. Ortiz checked H.P.-B.'s vital signs and then left the room. Then Dr. Pena-Sanchez came in and informed Patient H.P.-B. of the test results, telling her first that she was not HIV positive. This upset her, because she had not specifically authorized that test and believed Dr. Pena- Sanchez had no authority to conduct it. No one had informed Patient H.P.-B. that FoundCare had implemented the new policy requiring AIDS/HIV testing as part of a well-woman examination. During the appointment, Patient H.P.-B. informed Dr. Pena-Sanchez that she had pain in her side and requested that he examine the area. Patient H.P.-B. testified that at first, Dr. Pena-Sanchez did not respond and she had to ask him several times what he was going to do about her pain. Dr. Pena-Sanchez, sitting on a stool, then asked Patient H.P.-B. to stand in front of him and indicate the location of the pain. Patient H.P.-B. stood in front of Dr. Pena-Sanchez and indicated her side. Patient H.P.-B. testified that she was facing away from Dr. Pena-Sanchez, as he had directed, when he reached up and grabbed her above the hips on each side and pulled her down to sit on his lap. She testified that he began rubbing her back and that she tried to get up, but he pulled her back down. She said he then moved his hands around and started to rub her breasts, so she spanked his hands, jumped up, and asked him where the nurse was. She said that she then went back to sit in her chair. She testified that he came over to her, unzipped his pants, pulled out his penis, and told her that she was going to have sex with him or give him oral sex. She said that she told him no, but that Dr. Pena-Sanchez took her hand, made her touch his penis, and asked her if his penis was big enough, or something similar. She said she clearly saw the color of his boxers, which were navy blue with white, black, and red or maroon colored designs. She testified that she asked for his phone number twice, wanting to later call his wife, but he would not give it to her. She testified he then suddenly stopped his behavior, went back to his chair, and acted as if nothing had happened, saying he was going to order refills on her prescriptions. Patient H.P.-B. testified that she left without reporting the incident to anyone at FoundCare, but called her sister and told her what had happened as soon as she got to her car. She said she went to her job as a home health care aide, where the wife of her patient told her she needed to report the incident to the Palm Beach County Division of Victim Services hotline, which she did the next morning. She reported the incident to Detective Carpentier at the Palm Springs Police Department that same day, but did not write a statement, preferring to be recorded. About a week later, she returned to the police station to provide a sworn taped statement to Detectives Milow and Hudson. She was referred by the police for counseling and began talking with Ms. Gonzalez, a therapist at the Palm Beach County Division of Victim Services, on June 15, 2017. After the Palm Springs Police Department found no probable cause for criminal charges, Patient H.P.-B. contacted a civil attorney, who later sent a letter to FoundCare asking them to preserve evidence. She filed a written statement with the Department on September 1, 2017, and was interviewed later that month by Investigator Cox. When Patient H.P.-B. told her story to these various people, she was not always consistent.1/ It is not easy to communicate with Patient H.P.-B. Even during the final hearing, questions addressed to her needed to be repeated and answers she gave were sometimes unclear. Some inconsistencies involved minor details, others more substantial points. Patient H.P.-B. was clearly confused as to some of the details about which she was absolutely adamant at hearing, including the date of her examination prior to the lab tests. Detective Milow recorded that she told him that the appointment was the week of May 8. She repeatedly insisted at hearing that the date was May 2. FoundCare records indicate that it was in fact on April 24. While a mistake as to the date something occurred is not in itself either unusual or significant, her unshakeable conviction on the point detracts from the weight that her own confidence might otherwise have given to other portions of her testimony about which she was equally certain. After Patient H.P.-B.'s initial telephone call to the hotline and counseling service a day after the examination, Ms. Earlene Boone wrote that Patient H.P.-B. reported that she had asked Dr. Pena-Sanchez to examine her left side. Detective Milow's report also said she had experienced pain on her left side. Investigator Cox wrote in his report that she told Dr. Pena-Sanchez that the pain was on her right side. In her testimony at hearing, she was absolutely sure that the pain was on her right side and that she never told Ms. Boone or anyone else otherwise. In her initial intake assessment for counseling, Patient H.P.-B. told Ms. Gonzalez that Dr. Pena-Sanchez "pulled down his pants" and then pulled out his penis. At hearing, she testified that he unzipped his pants to pull out his penis. Patient H.P.-B. told Detective Milow that she could not get the incident out of her mind and kept seeing his boxers and his penis, and told Ms. Gonzalez that she kept having "visions" of his penis and boxers. Later, however, she could not tell Investigator Cox if Dr. Pena-Sanchez was circumcised or not, saying, "I didn't see it [his penis] that good." Patient H.P.-B. told Ms. Gonzalez that when the incident was over, Dr. Pena-Sanchez said, "I'm done with you," and that a nurse walked in and that is when Dr. Pena-Sanchez suddenly acted like nothing had happened. But Patient H.P.-B. never again said that anyone came into the room in her report to Detective Milow or at hearing. Ms. Ortiz testified that she did not go back into the room. Patient H.P.-B. told Investigator Cox that after the assault, "I ran out of the room." However, she testified at hearing that she stayed in the room after the assault because she wanted to make sure Dr. Pena-Sanchez was going to send her prescriptions. Patient H.P.-B. testified that she did not see anyone when she left the room and that she was crying. She reiterated later in her testimony that "tears was rolling." Ms. Ortiz testified that when Patient H.P.-B. left, she saw her in the hallway, that they made eye contact, and that Patient H.P.-B. was not crying and did not seem upset. Patient H.P.-B. told Detective Milow on May 25, 2017, ten days after the appointment, "When I left there I went to the pharmacy" to pick up her medications, including the pain pills, but the pharmacy informed her that no pain pills had been prescribed. Later, at hearing, Patient H.P.-B. testified that when she left FoundCare, she immediately called her sister. She testified that after that, she went to work and picked up the prescriptions the following day or the day after. Although Patient H.P.-B. was consistent in her allegations that Dr. Pena-Sanchez groped her, exposed himself, and demanded sex from her, these many discrepancies in Patient H.P.-B.'s testimony as to the details and timing of the surrounding events raise troublesome questions as to her testimony. While it may be only that Patient H.P.-B. was confused or no longer remembered the exact course of events, the lack of precision in her accounts significantly detracts from the weight of the evidence. Dr. Pena-Sanchez testified that before the date of the incident, Patient H.P.-B. had flirted with him and made him uncomfortable. He said that he told his assistant, Ms. Ortiz, about this and asked her to always be present when he was seeing Patient H.P.-B. He stated that Patient H.P.-B. had specifically requested he perform the PAP smear. He testified that on May 15, 2017, he gave Patient H.P.-B. the test results and that she complained of pain. He testified he did rub her back through her clothing for diagnostic purposes, but never touched her breasts. He said that she was standing the entire time and he never pulled her onto his lap. He said she asked for his cell phone number, but he would not give it to her. He denied ever exposing himself, asking her for sex, or making her touch his penis. He testified that he did not own any boxer shorts that were navy blue with black and white and red or maroon colored designs. He completely denied that he ever acted unprofessionally. The testimony of Dr. Pena-Sanchez was difficult to understand at times because he is not fluent in English. His testimony did not hold together well, and he was not completely credible. There were inconsistencies between the records of his interview by Detective Milow, his deposition testimony, and his testimony at hearing. One thread in the testimony of Dr. Pena-Sanchez involved flirtatious behavior on the part of Patient H.P.-B. In his interview with Detective Milow, and at hearing, Dr. Pena- Sanchez said that Patient H.P.-B. had been acting "in a sexual attitude" towards him prior to the laboratory tests appointment and that this made him uncomfortable. He testified that he told Ms. Ortiz about this and directed her always to be present whenever he was with Patient H.P.-B. Yet Ms. Ortiz had only the vaguest recollection of anything like this, and it is undisputed that Ms. Ortiz was not in the room during the results appointment. It seems curious, if Dr. Pena-Sanchez was concerned enough about this flirtation to identify Patient H.P.-B. to Ms. Ortiz and direct that she not leave them alone together, that when later asked by Detective Hudson, he initially claimed he did not even recognize Patient H.P.-B.'s name. After seeing Patient H.P.-B.'s picture, he described the results appointment in detail. He told Detective Milow that she was laughing and flirting with him when she asked for his phone number at the results appointment. Yet at hearing, he testified that she was not flirting with him at that time. While Dr. Pena-Sanchez maintained that he was completely professional throughout the results appointment, his testimony as to certain details varied. He indicated at one point that he was sitting on the stool during the examination, and, at another point, that he was standing when he examined Patient H.P.-B. At hearing (perhaps, as Petitioner suggests, aware of his prior statements), he testified he was both sitting and standing during the examination. At one point during the hearing, he testified that Patient H.P.-B. never lifted her shirt during the appointment, and said that if she had done so, he would have had to bring in a medical assistant, while later he indicated she did lift up her shirt, but that he palpated the area only through her clothing: "She lift, but I didn't – when – look -- and then go down and I touch over her -– the clothes." He testified consistently that he owned no paisley underwear, but indicated at one point that he had only gray and black, while at another point that he owned only gray and blue. Ms. Vasquez also testified that her husband owned only black and gray boxers. However, she fails to provide the impartial, independent perspective that sometimes serves to corroborate one side or the other between two completely irreconcilable versions of events. In the end, the color of the underwear simply becomes another parallel, but peripheral, dispute of fact between the parties, and provides no basis for resolution. There is no evidence that Dr. Pena-Sanchez has ever had discipline imposed on him in connection with his professional license in Florida or any other state. Revocation or suspension of Dr. Pena-Sanchez's professional license would have a great effect upon his livelihood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health, Board of Medicine, enter a final order dismissing the Administrative Complaint against Dr. Orly Pena-Sanchez. DONE AND ENTERED this 19th day of April, 2019, 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 19th day of April, 2018.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. At all times material to the instant case, Petitioner was the holder of a Class "D" security officer license (Number D93-12573) issued by the Department. Weiser Security is an agency that offers security services. In December of 1993, Petitioner was employed as a security officer by Weiser Security. He was assigned to service the Shoppes of Oakland Forest (hereinafter referred to as the "Shoppes") account. His supervisor was Leonard Franklin. On December 9, 1993, at approximately 1:00 a.m. or 2:00 a.m., Franklin visited the Shoppes. He wanted to speak with Petitioner. Petitioner was supposed to be on duty at the Shoppes, but he was not at his post and Franklin was unable to find him. Franklin noted on a field supervisor's inspection report Petitioner's unauthorized absence from his post. On December 11, 1993, during another visit to the Shoppes, Franklin discovered Petitioner asleep in his car while on duty. Franklin shined his flashlight in Petitioner's eyes for approximately 15 minutes, but Petitioner did not awaken. Franklin finally roused Petitioner by tapping on Petitioner's car. Franklin made note of the incident in a field supervisor's inspection report. Petitioner was scheduled to work the 11:00 p.m. to 7:00 a.m. shift at the Shoppes on December 24-25, 1993. Audrey Hawkins, another Weiser Security security officer, 2/ was originally scheduled not to work that shift at the Shoppes. She was called by a supervisor, however, some time after the beginning of the shift and requested to complete the shift because Petitioner had not reported for duty. Hawkins arrived at the Shoppes at around midnight. When she arrived, she noticed a security report that Petitioner had already filled out for the entire shift (11:00 p.m. through 7:00 a.m.). 3/ The report was on a desk where Weiser Security security officers routinely left their completed security reports for the client to pick up. Petitioner did not report for duty at any time during the 11:00 p.m. to 7:00 a.m. shift and therefore Hawkins remained at the Shoppes for the remainder of the shift. Weiser Security security officers assigned to the Shoppes account in December of 1993 were required to make "key rounds" (which involved "punching" special "security keys" at four different locations on the property) a minimum of once an hour. Petitioner failed to make any such rounds during his shift on December 26, 1993 (from 3:00 p.m. to 11:00 p.m.). On July 13, 1995, Petitioner filed with the Department an application to renew his Class "D" security officer license. By letter dated August 16, 1995, the Department notified Petitioner of its intention to deny his application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Petitioner's application to renew his Class "D" security officer license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of February, 1996. STUART M. LERNER 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 February, 1996.
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 The issue in this case is whether Respondent's designation as a Gold Seal Quality Care Program provider should be revoked pursuant to section 402.281, Florida Statutes (2010).1/
Findings Of Fact Gold Star is a child care facility which is licensed by the Brevard County Health Department, Brevard County, Florida (Brevard County), pursuant to section 402.308(4). The Department designated Gold Star as a Gold Seal Quality Care Program provider. As a Gold Seal Quality Care Program provider, Gold Star receives certain benefits which include sales tax exemptions, increased reimbursement rates for children participating in school readiness, and participation in the Voluntary Prekindergarten. Additionally, the designation is a positive marketing tool. In 2009, the Department sent a notice to providers who were designated as Gold Seal Quality Care Program providers, advising them that the Department would revoke designations of providers who had a Class I violation within a two-year period. The Department received an acknowledgement dated June 20, 2009, and signed by Donna Krinop, who was the director of Gold Star, acknowledging that Gold Star had received notice that the Department would revoke the designation of a provider who had a Class I violation within a two-year period. Class I violations are the most serious in nature and pose an imminent threat to a child, which has resulted, or may have resulted, in death or serious harm to the health, safety, or well-being of a child. Fla. Admin. Code R. 65C-20.012(1)(d). By letter dated September 15, 2010, Brevard County notified Gold Star that Gold Star was in violation of rule 65C-22.001(5), by failing to adequately supervise children which resulted in a child obtaining and throwing scalding water on another child. The violation is a Class I violation. In addition to the incident with the scalding water, Brevard County noted that on an inspection conducted on June 30, 2010, the inspector noted that a maintenance worker was teaching four-year-old children and that after-school children were given a battery-operated leaf blower to blow off the sidewalk as a form of punishment. The letter also provided the following instructions for requesting an administrative hearing to contest the disciplinary action: WHEREFORE, pursuant to Section 402.310, Florida Statutes and Section Ordinance 26-70 thru 77 Brevard County Code, the Brevard County Health Department, Environmental Public Health Services is fining childcare license 07B881 $500.00. You are hereby notified that pursuant to Section 120.57, Florida Statutes, you are entitled to an administrative hearing. Please be advised that a hearing will not be automatically scheduled. In the event that you wish to contest the fine, you must submit a written request for an administrative hearing pursuant to Section 402.310(2), Florida Statutes. Environmental Public Health Services must receive your request for an administrative hearing within 15 days for [sic] receipt of the formal administrative complaint at the following address: Melissa L. Brock, R.E.H.P., Environmental Manager Environmental Public Health Services Brevard County Health Department Brevard County Government Center 2725 Judge Fran Jamieson Way, Building A116 Viera, Florida 32940-6682 Upon timely receipt of your written request, an administrative hearing to determine whether your license will be fined will be expeditiously scheduled. Failure to request a hearing in writing within 15 days of receipt of the administrative complaint shall be deemed a waiver of any right to a hearing under Section 120.57 Florida Statutes, and the administrative fine of your license will be final. Section 402.310(2), Florida Statutes. Payment is due at the time the fine becomes final. In the event you request an administrative hearing, you have the right to be represented by counsel, to take testimony, to call and cross-examine witnesses and to have a [sic] subpoenas or subpoenas duces tecum issued on your behalf, Rule 28-106.212, Florida Administrative Code. Donna Krinop wrote Ms. Brock on September 17, 2010, stating: "Nothing in this letter was true and we would like to meet with you to discuss this situation." Nothing in the letter indicated that Gold Star was seeking an administrative hearing. A meeting was scheduled for September 28, 2010, for Gold Star to discuss the administrative action with Brevard County staff. By letter dated September 27, 2010, Gold Star advised Brevard County that Gold Star did not think that the findings in the administrative action letter were true, but that Gold Star was complying with corrective actions. Enclosed with the letter was a check for $500.00 and a list of Gold Star staff who had received refresher training on supervision. On September 28, 2010, a meeting was held with Mr. Buchanan, who was an environmental supervisor for Brevard County, and Gold Star staff, including Ms. Krinop. Mr. Buchanan did not tell any Gold Star staff that if the fine was not paid that Gold Star would lose its license. The meeting consisted generally of Gold Star staff stating why they felt that the punishment was too harsh. Ms. Krinop and Ms. Khemwatti Kalikapersaud contend that the letter that was sent by Gold Star on September 17, 2010, was meant as a request for an administrative hearing and that they thought that the meeting on September 28, 2010, was the due process hearing. Their testimony is not credited. On October 21, 2010, the Department sent an Administrative Complaint to Gold Star stating that the Department intended to revoke Gold Star's designation as a Gold Seal Quality Care Program provider based on the Class I violation issued by Brevard County. The Administrative Complaint stated the following: IF YOU BELIEVE THE DEPARTMENT'S DECISION IS IN ERROR, YOU MAY REQUEST AN ADMINISTRATIVE HEARING TO CONTEST THE DECISION. YOUR REQUEST FOR AN ADMINISTRATIVE HEARING MUST BE RECEIVED BY THE DEPARTMENT WITHIN 21 DAYS OF YOUR RECEIPT OF THIS NOTICE. FAILURE TO REQUEST AN ADMINISTRATIVE HEARING WITHIN THE 21 DAYS PROVIDED SHALL CONSTITUTE A WAIVER OF THE RIGHT TO A HEARING. By letter dated November 17, 2010, Ms. Krinop wrote to the Department to "request an administrative hearing to review the decision of the Health Department [Brevard County]." Gold Star admitted that the incident with the scalding water had occurred and stated: We are dismayed by this unfortunate incident and view it with the utmost seriousness. Further, we do not contest that it resulted in the minor injury of one child, having been unintentionally inflicted by another child. However, we believe that the Health Department may inadvertently be in possession of erroneous information concerning the matter and this has resulted in disproportionate punitive action against GSA [Gold Star]. Specifically, we wish to contest: The extent of the injury as reported in the notification, which is cited as greater than that observed by the responding officer. The qualifications of the supervising staff, who is reported in the notification to be solely a maintenance man and unapproved to supervise, which is incorrect. A child was operating battery powered leaf blower as punishment, which is incorrect. Due to the fact that the incident did occur, GSA understands that the fine imposed by the Health Department is right and fair. However, due to the misunderstanding of facts as outlined above, we do not believe that the revocation of GSA's Gold Seal Quality Care Program Provider Designation is appropriate. Gold Star did not state in its November 17, 2010, letter to the Department that Gold Star had requested an administrative hearing and that Brevard County had failed to give it an administrative hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Gold Star committed a Class I violation and revoking its designation as a Gold Seal Quality Care Program provider. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 11th day of May, 2011.
The Issue Whether Respondent violated Sections 326.006(2)(e)1, 3, and 6 and 326.005, Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this action, Respondent, Richard Spooner (Spooner), was licensed by the Petitioner, Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Department), as a yacht salesperson. In June 1998, Spooner worked for C & S Marine, Inc., (C & S), located in Fort Lauderdale, Florida. Chris Saumsiegle, the owner of C & S, was Spooner's employing broker. In June 1998, Chris Saumsiegle was working with Angelo Dieguez, a client from South Carolina, to locate a yacht for Mr. Dieguez to purchase. Mr. Saumsiegle negotiated the purchase of a yacht for Mr. Dieguez; however, the deal was not consummated. After Mr. Saumsiegle's attempt to negotiate the purchase of the yacht for Mr. Dieguez failed, Mr. Saumsiegle put Spooner, as a salesperson for C & S, in touch with Mr. Dieguez to find him a yacht to purchase. Spooner and Mr. Dieguez discussed the purchase of a 1995, 33-foot Sea Ray yacht, and Mr. Dieguez became interested in buying the vessel. Mr. Dieguez was advised by Spooner that he was working at home while his wife recovered from surgery. Spooner drafted a Purchase Agreement, which was a C & S form agreement containing the title "C & S Marine Brokerage Purchase Agreement." Spooner crossed out the telephone and fax numbers for C & S on the form, wrote in his home fax number, and faxed the document to Mr. Dieguez for execution. The purchaser agreement contained the following paragraph: The purchase price of the Vessel is Eighty- Seven Thousand Dollars ($87,000.--) Upon signing this agreement by the PURCHASER, a deposit of Eight Thousand Seven Hundred Dollars ($8,700.--) shall be paid by the PURCHASER to (hereinafter called the BROKER) and shall be held in Escrow by the BROKER. This offer is withdrawn if not accepted by June 12, 1998. Mr. Dieguez executed the purchase agreement and returned it to Spooner by fax for Spooner to make an $87,000 offer on the yacht. The terms of the purchase agreement required Mr. Dieguez to send ten percent of the purchase price as earnest money. Pursuant to the purchase agreement, the seller had only one day to respond to the offer after Mr. Dieguez faxed the purchase agreement to Spooner. Thus, Mr. Dieguez asked Spooner where to electronic funds transfer (EFT) his earnest money. Spooner faxed Mr. Dieguez instructions to make his check out to the Boating Center of Fort Lauderdale (Boating Center), the seller's agent or the seller, and to send the funds to Boating Center. In Mr. Dieguez' previous attempt to purchase a yacht through C & S, he had been given instructions to send his deposit by EFT to C & S's escrow account. Mr. Dieguez contacted Mr. Saumsiegle and asked why he was supposed to send a check to Boating Center. Mr. Saumsiegle was unaware that Spooner was trying to sell Mr. Dieguez a boat through Boating Center and that he had directed Mr. Diequez to send a check to Boating Center. Ultimately, Mr. Dieguez did not send a deposit and did not purchase the yacht. Mr. Saumsiegle terminated Spooner's relationship with C & S Marine in July 1998. Boating Center is not a licensed yacht brokerage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Richard Spooner violated Subsections 326.006(2)(e)1, 3, and 6, Florida Statutes; suspending his salesperson's license for two years; and imposing an administrative fine of $5,000. DONE AND ENTERED this 15th day of December, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 15th day of December, 1999. COPIES FURNISHED: Philip Nowick, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 William Oglo, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Richard J. Zaden, Esquire Zaden & Wardell, P.A. 1749 Northeast 26th Street, Suite 200 Fort Lauderdale, Florida 33305
The Issue The issue is whether Petitioner may revoke Respondent's designation as a Gold Seal Quality Care (Gold Seal) provider of child care services, pursuant to section 402.281(4)(a) and (5), Florida Statutes (2017).
Findings Of Fact For over 20 years, Respondent has operated a licensed child care facility in Pompano Beach. For several years, Respondent has held a Gold Seal designation for this facility. On October 10, 2017, a County Office inspector observed 16 children exiting a "12-passenger" van owned and operated by Respondent for the transport of children enrolled in its day care facility. At the facility, the inspector prepared the NOV, which, citing rule 65C-22.001(6)(d), characterizes the offense as a Class I violation and, citing Ordinance section 7-11.11(g), gives Respondent 15 days within which to request a hearing on the alleged violation. The inspector served the NOV on Respondent on October 10, 2017. Respondent did not timely request a hearing on the violation alleged in the NOV. On May 20, 2018, the County Office issued the Administrative Complaint, which proposes an administrative fine of $100. The Administrative Complaint largely tracks the NOV, except that it contends in the alternative that rule 65C-22.001(6)(d) limits the maximum number of children who may be transported in the van to the manufacturer's designated seating capacity or the number of factory-installed seat belts.1/ The Administrative Complaint gives Respondent 15 days within which to request a hearing on the administrative fine. Again, Respondent took no action other than, at some point, to pay the fine. The present dispute arose when Petitioner issued the LOI to terminate Respondent's Gold Seal designation, which is unmentioned in the NOV and Administrative Complaint. Although the number of children on the van appears not to be in dispute, there are substantial disputed questions of fact concerning the passenger capacity of the van and the number of seat belts-- factory-installed and otherwise--present in the van on the date of the inspection. However, these issues could only have been addressed in a hearing on the NOV. Broward County is one of four counties in Florida to have entered into a contract with Petitioner to administer and discipline the licenses of child care providers. The record fails to reveal why Petitioner did not issue the LOI for more than one year after the deemed termination of Respondent's Gold Seal designation2/ or why Petitioner did not transmit the file to DOAH for nearly five months after the receipt of Respondent's request for hearing in response to the LOI. It is clear, however, that the responsibility for these delays does not rest with Respondent.3/
Recommendation It is RECOMMENDED THAT the Department of Children and Families enter a final order determining that Respondent's Gold Seal designation was terminated, and it was ineligible to apply for a new Gold Seal designation, from October 10, 2017, through October 10, 2019. DONE AND ENTERED this 4th day of October, 2019, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 4th day of October, 2019.
The Issue Should Petitioner impose an administrative fine against Respondent, based upon the allegation that a person associated with Respondent, knowingly operated a veterinary establishment or premises without a premise permit issued to Respondent? Sections 455.226(1)(q) and (2) and 474.213(1)(k), Florida Statutes.
Findings Of Fact Acme Grooming Company conducts business at US Highway 27 and State Road 27, Fort White, Florida 32038. That business is conducted without the benefit of a license/premises permit issued by the Department of Business and Professional Regulation under Section 474.215, Florida Statutes. At a time relevant to the inquiry, Acme Grooming Company through a sign in the front of the business premises at the location described advertised the services of the business as the sale of pets and pet foods, as well as grooming. Acme Grooming Company is the business of Joan Poole. Sometime around June 14, 2000, Michael David Burch took a kitten, approximately two months old, to the Acme Grooming Company to have the kitten de-clawed. The kitten was attended by Ms. Joan Poole at the business premises for Acme Grooming Company in Fort White, Florida. Mr. Burch observed Ms. Poole hold the kitten under her right arm with her hand pressing out the claws of the kitten and once exposed the claws were cut off "at the stub," as opposed to trimming the claws with the clipping device used. A knife was sitting on a gas burner being heated. Ms. Poole took the knife and pressed it against the open wounds where the claws had been removed for purposes of cauterizing the claws. These activities met with Mr. Burch's opposition. Ms. Poole responded that this was the more humane way "to do it." This is taken to mean the way which Ms. Poole had in mind to de- claw the kitten. The de-clawing was allowed to proceed during which no medication was offered for pain or antibiotics provided for the use of the kitten, notwithstanding Mr. Burch's request that these items be provided. Ms. Poole responded that the cat would lick itself clean and would protect itself from any infection. Mr. Burch paid Ms. Poole $35.00 for her efforts in dealing with the kitten. A short time later the kitten was taken to be seen by Douglas Hagler, D.V.M., licensed to practice veterinary medicine in Florida. Dr. Hagler saw the kitten on June 14, 2000. In his testimony Dr. Hagler established that the cutting of the digits (de-clawing) in the manner perceived by Ms. Poole constituted the practice of veterinary medicine, in that it was the amputation of a body part, a procedure involving an incision and removal of a body part. Dr. Hagler was persuasive in his testimony that it was inappropriate to hold the kitten manually while Ms. Poole performed her acts in de-clawing. As Dr. Hagler described, the appropriate way to de-claw the kitten would have been to place the kitten under general anesthesia so that the kitten was not aware of the act of de-clawing. At the time Dr. Hagler saw the kitten on June 14, 2001, the cat was trembling, appeared in distress and traumatized, and did not seem willing to walk or stand on its front feet. Exposed bone was observed in each digit and the hair around the wounds on the feet gave the appearance that the wounds had been cauterized with a hot instrument. The most appropriate method for closing the wounds would have been to use a dissolvable stitch. In some instances veterinarians would use a medical grade tissue adhesive-type glue to seal the wound. Two days after seeing the kitten, Dr. Hagler drove to Fort White where the Acme Grooming Company has its premises. While in the vicinity Dr. Hagler used his cell phone and called the Acme Grooming Company and identified himself as a person who had a kitten. He explained that he understood that the kitten could be de-clawed at the company. The person he spoke to had a voice so distinctive as to be attributable to Ms. Poole, based upon a subsequent opportunity afforded Dr. Hagler to verify who Ms. Poole was through comparing her voice on that latter occasion to the voice while making the telephone call that has been described and being made aware of who she was on the latter date. Ms. Poole when describing the process for de-clawing the fictional kitten that Dr. Hagler referred to in the telephone call he made, said that the kitten would be restrained manually without the use of anesthesia, that the claws would be cut off and that a hot knife blade would be applied to the wounds for cauterization. Ms. Poole referred to the fact that the cat would not voluntarily allow the de-clawing and that was the reason that the cat had to be held down. Ms. Poole volunteered in her remarks that the method for de-clawing that would be done at the Acme Grooming Company was "more humane than a veterinarian doing it under anesthesia." According to Ms. Poole, the reasoning behind that statement was that when cats wake up from anesthesia "that they just bang their head around and sometimes knock themselves out or knock their brains out." The fee Ms. Poole quoted to Dr. Hagler for removing the claws of the imaginary kitten was $35.00, the same fee amount as was charged to Mr. Burch.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That Petitioner enter a final order imposing a $1,000.00 administrative fine upon Respondent. DONE AND ENTERED this 27th day of September, 2001, in Tallahassee, Leon County, Florida. Hearings CHARLES C. ADAMS Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Hearings 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 this 27th day of September, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Tiffany Short, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Acme Grooming Company c/o Joan Poole Post Office Box 133 Fort White, Florida 32303 Sherry Landrum, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
