The Issue The issue in this case is whether Florida Administrative Code Rule 64B-3.004(2) constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact In 1971, Personal Injury Protection (PIP) coverage was required to be included in automobile insurance policies and was required to be obtained by anyone operating a motor vehicle in Florida. In general, PIP coverage provides payment for medically necessary treatment, lost wages and funeral expenses incurred by persons involved in motor vehicle accidents. The reasons PIP insurance coverage was made mandatory were to provide for the speedy payment of medical expenses, lost wages and burial expenses that an individual might incur as a result of being injured in a motor vehicle accident and to reduce the amount of litigation involved in recovering such expenses. Responsibility for such speedy payment rested with the various insurance companies involved in writing motor vehicle insurance. Until 1980, the PIP system operated in a reasonably cost-efficient manner. However, fraud and paying for medically unnecessary medical tests or treatment were problems under the PIP system. In the past, at the option of a given insurance company, such unnecessary testing or treatment resulted in payment, denial of the claim, and perhaps litigation for the denied claim. By the mid-1980s, for a variety of reasons, the PIP system became less cost efficient. The average Florida PIP claim rose by 33 percent and the amount of premium per insured vehicle needed to cover PIP claims rose by 35 percent. Such increases led to higher premiums for the driving public, as well as larger numbers of motorists not carrying PIP coverage, estimated to be around 22 percent of Florida drivers. Indeed since 1999, State Farm Insurance Company, one of the largest insurers of motor vehicles, has experienced an average $100,000,000.00 loss per year. In 2001, the Legislature enacted a fee schedule for certain medical services and tests, including a fee for SEMG. The legislature did not limit the number of times a particular service or test could be used. The 2001 legislation did not solve the problems of continued claims and payment for tests or services that were not medically necessary or overutilized. The 2001 legislation also did not solve the problem of the cost ineffectiveness of companies litigating the issue of whether a particular test was medically necessary or overused. Consequently, during the 2003 legislative session, the Florida Legislature enacted Section 627.736(5)(b)6., Florida Statutes, which provides: The Department of Health, in consultation with the appropriate professional licensing boards, shall adopt, by rule, a list of diagnostic tests deemed not to be medically necessary for use in the treatment of persons sustaining bodily injury covered by personal injury protection benefits under this section. The initial list shall be adopted by January 1, 2004, and shall be revised from time to time as determined by the Department of Health, in consultation with the respective professional licensing boards. Inclusion of a test on the list of invalid diagnostic tests shall be based on lack of demonstrated medical value and a level of general acceptance by the relevant provider community and shall not be dependent for results entirely upon subjective patient response. Notwithstanding its inclusion on a fee schedule in this subsection, an insurer or insured is not required to pay any charges or reimburse claims for any invalid diagnostic test as determined by the Department of Health. The statute was intended to relieve an insurance company of the burden of paying for or litigating the medical necessity of diagnostic tests that the Department listed in a to-be- developed rule. There was no evidence suggesting that the Legislature intended the words used in the statute to have any meaning other than their ordinary meanings. In order to implement the statute, the Department commenced rulemaking pursuant to the legislative directive in Section 727.736(5)(b)6. Florida Statutes. As a starting point, the Department asked the insurance industry to provide a list of diagnostic tests that the insurance industry believed should be in the rule. The list contained four tests--Spinal Ultrasound, Nerve Conduction Velocity (NCV) Studies, Somatosensory Evoked Potential, and Dermatomal Evoked Potential. SEMG was not included on the insurance industry’s list. SEMG is a method of measuring the electrical output of muscles through the placement of electrical sensors on the skin. In general, a muscle at rest has a lower amount of electrical activity than a muscle that is being worked or contracted. Similarly, muscle spasms have more electrical activity associated with them than a muscle at rest. On the other hand, muscle contracture, which is the condition of a muscle at rest that has been permanently shortened and generally hardened through some process, has a different level of electrical activity associated with it than with muscle spasms. There are two types of SEMG, used for different purposes. Neither type of SEMG relies on subjective patient input. Static EMG uses a hand-held device with probes as an assessment (or muscle scanning) procedure to take a quick measure of muscle tension. Although in most cases hand palpation of a muscle gives a practitioner all the necessary information needed to diagnose a patient, SEMG can augment hand palpation when palpation is not determinative and help differentiate contraction from contracture. SEMG, also can assist in determining the need for the more comprehensive application of dynamic SEMG and generates a graphic, recorded reading of muscle tension. Dynamic SEMG is used to document and verify injury, to determine if the patient is injured, and, in concert with other diagnostic procedures, establish the level or the extent of injury. Once a treatment plan is developed and implemented, SEMG testing is used to monitor a patient's response to treatment. Dynamic SEMG provides an objective tool to evaluate the function of paraspinal muscles of injured persons, including those involved in motor vehicle accidents. On July 25, 2003, the Department published a notice for a workshop for proposed Rule 64B-3.004 in volume 29, no. 30 of the Florida Administrative Weekly. On August 29, 2003, the Department re-noticed the workshop in Volume 9, no. 35 of the Florida Administrative Weekly. The workshop was held on September 9, 2003. The draft rule presented at the workshop listed the four tests submitted by the insurance industry. The draft rule did not include SEMG. However, based on comments made during the workshop, some of which came from a chiropractic representative of the Florida Chiropractic Association, SEMG was included in the next iteration of the draft Rule. The next public iteration of the rule appeared in a Notice of Proposed Rule published on Friday, November 14, 2003, in Volume 29, No. 46 of the Florida Administrative Weekly. SEMG appeared for the first time in the November 14, 2003 notice. The proposed rule was, according to the Notice, based “[u]pon review of the testimony provided at the workshop, input received from the Boards, written opinions by members of the health care and insurance communities, and literature in support thereof.” The Notice also announced a public hearing for 9:00 a.m. on Tuesday, November 18, 2003. Additionally, the record for submitting information regarding the proposed rule was held open for 21 days after the November 14, 2003, publication date to give interested persons an opportunity to submit information. During the time the record was held open, the Department received some evidence and studies indicating that SEMG was not useful, or at a minimum, unnecessarily redundant in the diagnosis of the type of injuries often incurred in an automobile accident. However, the Department also received some evidence and studies that SEMG was useful in the treatment of such injuries, particularly when bio- feedback is being employed in treatment. Oddly, on December 2, 2003, prior to the official closure of the record, the final rule was transmitted to the Secretary of the Department for signature and approval for filing with the Secretary of State. In due course, the rule was filed with the Secretary of State and became effective on January 7, 2004. Rule 64B-3.004, as adopted by the Department states, in relevant part, as follows: 64B-3.004 Diagnostic Testing. For the purposes of Section 627.736(5)(b)6., F.S. (2003), the Department of Health, in consultation with the appropriate licensing boards, hereby adopts the following list of diagnostic tests based on their demonstrated medical value and level of general acceptance by the provider community: * * * (2) Surface EMG is deemed not to be medically necessary for use in the diagnosis of persons sustaining bodily injury covered by personal injury protection benefits. * * * Specific Authority 627.736(5) FS. Law Implemented 627.736(5) FS. History - New 1-7- 04. The rule only applies to SEMG when used for diagnostic purposes. The rule does not apply to SEMG when used in the treatment of PIP-covered automobile accident victims. Petitioner, Richard Merritt, is a Doctor of Chiropractic, licensed in Florida, Texas, and Alabama. Prior to the adoption of Rule 64B-3.004, Dr. Merritt billed $130,000 to $160,000 per year for SEMG tests. Dr. Merritt has used SEMG in his practice since the 1980s. Thirty-five percent of Dr. Merritt’s patients have been involved in motor-vehicle accidents. Curiously, Dr. Merritt performs SEMG on all of those patients for which PIP insurance generally pays. Again, curiously, only ten percent of his remaining patients have SEMG that may or may not be covered by other insurance. However, the evidence was not clear as to the differences between patients sustaining injuries in motor-vehicle accidents and other non-accident patients. Dr. Merritt suggested that motor-vehicle accident patients generally have more complicated or layered medical histories than patients who have not been involved in motor-vehicle accidents. No evidence was presented on this alleged difference which seems to be a very dubious distinction between patients. The Florida Insurance Council, Inc.; the Property Casualty Insurers Association of America; The American Insurance Association; The National Association of Mutual Insurance Companies; The Florida Automobile Joint Underwriting Association; State Farm Mutual Automobile Insurance Company; Allstate Insurance Company; Government Employees Insurance Company; The Florida Farm Bureau Insurance Companies; Liberty Mutual Insurance Group; First Floridian Auto and Home Insurance Company; and United Service Automobile Association have standing to intervene in this proceeding. Florida Insurance Council, Property and Casualty Insurance Association of America, and the American Insurance Association, all have a substantial number of members affected by the rule. These associations exist, in part, to protect their member's interests in legislative and regulatory matters involving insurance. The subject matter of this rule is within the associations' scope of interest and activity and they are often involved in these types of rule challenges. Intervenor, Florida Automobile Joint Underwriters Association (JUA), is the automobile residual market in Florida. The JUA makes PIP available to high-risk customers and operates as a standard insurance company under its governing statutes and rules. All the individual companies that sought to intervene in this proceeding pay claims under PIP provisions. Both the JUA and the individual companies are directly affected by the rule. The rule affects rates and premiums which are calculated based in part on loss experience. Loss costs are affected by the rule because the rule regulates what must be paid under PIP coverage. Additionally, the rule affects the profits and losses of individual companies. The issue in this case is limited to a consideration of whether the inclusion of SEMG on the “list of diagnostic tests deemed not to be medically necessary for use in the treatment of persons sustaining bodily injury covered by personal injury protection benefits” is an invalid exercise of delegated legislative authority. Accordingly, the place to start is with the language of the statute being implemented. § 627.736(5)(b)6., Fla. Stat. As indicated earlier, there was no evidence that the Legislature intended the words used in the statute to have any meanings other than their ordinary meanings. Thus, by reading the statute, it is clear that the tests to be included in any proposed rule must be “diagnostic tests.” It is undisputed that “diagnosis” and “treatment” in the medical area are different procedures and refer to different aspects of providing medical care to a patient. When used in a medical context, the term “diagnosis” means the art of distinguishing one disease from another or the determination of the nature of or cause of disease or injury, whereas the term “treatment” means the management and care of a patient for the purpose of combating disease or disorder. See Dortland’s Illustrated Medical Dictionary, 27th Ed. (1988) and Stedman’s Medical Dictionary, 26th Ed. (1995). In short, there is a diagnosis phase of medical care wherein a practitioner uses various tests, procedures and historical information to determine the nature, i.e. what the patient’s condition is and/or how severe the condition is, and the cause, i.e. automobile accident or fall, of a given disease or condition. Distinct from the diagnostic phase there is a treatment phase of medical care wherein a practitioner, through tests, therapies, procedures and medicines manages or cares for a patient’s condition. However, in their ordinary usage, the terms “diagnosis” and “treatment” can overlap. In ordinary usage, the term “diagnosis” does not differ significantly from the medical term and means the art or act of identifying a disease from its signs and symptoms. Webster’s New Collegiate Dictionary (1984). The term “treatment” means “the act or manner or an instance of treating someone or something: HANDLING, USAGE.” Id. The term “treat” means to “deal with.” Id. In its ordinary sense, “treatment” has a broader meaning than it does in its medical sense and can include diagnosis. Thus, in this case, the tests referred to in the statute are diagnostic tests used in handling or dealing with a person who has been physically hurt in a motor vehicle accident. Also, by giving the term “treatment” its ordinary meaning the Department has the authority to differentiate between the appropriateness of a diagnostic test used in the medical diagnostic phase and the same test used in the medical treatment phase. In this case, SEMG, especially static SEMG, is used as a test in both the medical diagnosis and treatment phases in dealing with persons injured in a motor vehicle accident. Therefore, it is a diagnostic test that may be considered under the other criteria of the statute. For a test to be included in the rule it must be medically unnecessary, based on a lack of demonstrated medical value and a lack of general acceptance by the relevant provider community and not be dependant for results entirely from subjective patient response. As can be seen, the statute does not deal with the overuse of a given test, but only defines medical necessity by the three criteria listed above. In reality, some types of test overuse may only be determined on a case-by-case basis, since whether a generally or occasionally, medically beneficial test is useful or redundant at a particular time in treatment or diagnosis depends greatly on the reasons the test is being employed. Thus, if a test has a degree of medical value, it cannot be on the list; if a test has a level of general acceptance by the relevant provider community which includes the Doctors of Chiropractic, it cannot be on the list; and if a test is not dependent for results entirely on subjective patient response, it cannot be on the list. The medical value of any test is not related in any way to the manner in which payment for that procedure is made. In that regard, the medical validity of a procedure does not vary as to whether the patient is covered by Workers' Compensation, Medicare, private insurance, or PIP. PIP patients typically have injuries to the connecting soft tissues of their spine as well as injuries to organs and broken bones. Muscles, ligaments, and tendons can be stretched or injured, which can lead to a breakdown in spinal-joint motion or a spinal-joint misalignment. Spinal-joint misalignment may cause interference in the patient's nervous system. Soft tissue and misalignment injuries are routinely the subject of chiropractic care. SEMG is effective in recording changes in the electrical activity of muscles associated with spinal injuries known as vertebral subluxations. Vertebral subluxations are commonly associated with automobile accidents, and are diagnosed and treated by chiropractic physicians. In spinal injuries, there is a depolarization that occurs at the cellular level. Electrical activity is generated at the cellular level and runs down the muscle fiber. SEMG measures the surface manifestation of the amount of electrical activity generated and the depolarizations in the area. The purpose is to measure muscle tension. SEMG is objective and quantitative. It eliminates subjective impressions or input and provides an objective and unbiased assessment of the electrical activity of the patient's paraspinal muscles. It allows a medical professional to distinguish objectively between observed muscle tension that is electrically active, which is associated with spasm, from observed muscle tension that is not electrically active, which is associated with contracture. It is debatable whether SEMG provides no more useful information to a practitioner than information gleaned by hand palpation of the injured area. The problem is that hand palpation can sometimes be inconclusive, especially in regard to determining if a muscle is hard from spasm or contracture. The question is one of over or redundant use of a test. Again that question is not part of the criteria for inclusion of a test in the rule. The criteria only include whether a test can be used by the practitioner to make a valid diagnosis or conclusion. In regard to SEMG, published documentary evidence demonstrates that spasm and contracture share a similar physical manifestation, i.e. the muscle is hard to the touch, and may not be distinguished through palpation and that, in the occasional instances where had palpation is inconclusive, SEMG can differentiate the conditions, and “provide[] an important element of diagnostic information.” Specific to automobile-related injuries, when hand palpation is inconclusive, SEMG has medical value to chiropractic physicians in that it allows the treating chiropractic physician to determine if a patient has an injury or does not have an injury, to quantify the extent of the injury, to monitor the patient's response to treatment, and to assess the point of maximum clinical improvement or maximum therapeutic benefit. While its diagnostic usefulness may be limited to certain situations when hand palpation is inconclusive, the evidence demonstrated that SEMG had some utility in the diagnostic phase of medical care. Therefore, SEMG should not be included in the proposed rule. Dynamic SEMG is also utilized on motor vehicle accident victims. Its primary use is to provide the level of documentation for services rendered a person involved in a motor- vehicle accident required to demonstrate injury, permanency of injury, the need for treatment, and the response to treatment before payment will be made under a PIP plan. Overall, SEMG has advanced as a clinical tool from its earliest, more experimental uses in which no computer support was available, through the time in which the best technology available was the Commodore 64 (or earlier) computer, to today, when advances in technology and understanding have resulted in the elimination of problems of electrical interference, bandwidth filtering and electrode placement, and have resulted in a higher threshold of sensitivity. The evidence in this case demonstrates that SEMG has medical value for use in the treatment of persons sustaining bodily injury covered by personal injury protection benefits. The Department admitted and the evidence showed that some surface EMG techniques may be useful in the treatment of persons sustaining bodily injury in motor vehicle accidents in appropriate circumstances. Based on the admissions of the Department, it is clear that SEMG has a degree of demonstrated medical value. Therefore, its inclusion on the list of medically unnecessary tests is arbitrary and capricious; has exceeded the Department’s grant of rulemaking authority; and has enlarged, modified, or contravened the specific provisions of law implemented. The Department also admitted and the evidence showed that SEMG is not dependent for results entirely upon subjective patient response. Therefore, under the terms of the statute, the inclusion of SEMG on the list of medically unnecessary tests has exceeded the Department’s grant of rulemaking authority and has enlarged, modified, or contravened the specific provisions of law implemented. The evidence also demonstrated that SEMG is generally accepted in the relevant provider community. In 1996, the two primary organizations that represent chiropractic physicians in Florida, the Florida Chiropractic Association and the Florida Chiropractic Society, were asked to develop a set of guidelines to apply to the chiropractic profession. Their work resulted in a report and the publication of the Chiropractic Practice Guidelines and Parameters for the State of Florida (CPG). The CPG was unanimously accepted and endorsed by the Florida Board of Chiropractic on August 22, 1996. The CPG was copyrighted and published by the Florida Chiropractic Association, Inc. and the Florida Chiropractic Society, Inc. in 1997. The CPG is a set of rules or guidelines that a practicing chiropractic physician can follow regarding the treatment of chiropractic problems. The CPG constitutes the consensus agreement of the chiropractic profession on many of the procedures that a chiropractor might provide. The CPG references SEMG both in comparison with needle EMG and as to its own merits. As a comparative matter, the CPG provides that “needle techniques are appropriate for the evaluation of specific muscles, while surface electrodes are appropriate for kinesiological studies of the “global” function of groups of muscles.” In terms of test-retest reliability and longitudinal muscle studies, SEMG was found to be superior to needle EMG. The CPG also states that SEMG provides an objective and quantifiable measure of muscular activity in areas of vertebral subluxation. Although the section discussing SEMG concludes with language indicating a degree of qualification, the CMG rates SEMG as “established.” An “established” rating means that SEMG is accepted as appropriate by the practicing chiropractic community for the given indication in the specified patient population. The rating of “established” was made with a Consensus Level of 1, which is the highest level of consensus available. In addition, the rating was supported by various categories of evidence used to analyze a given test, including expert opinion, clinical experience or effectiveness studies (Evidence E), refereed literature or published monographs, legal decisions and/or authority (Evidence L) and available controlled studies (Evidence C). The rating of “established” also requires one or more controlled trials. Therefore, read as a whole, the CMG demonstrates the medical value of SEMG as a clinical and diagnostic tool for evaluating paraspinal muscle activity, quantifying palpation findings, performing longitudinal studies, and detecting muscle spasm. Dr. Jenkins’ testimony regarding the lack of reliability of the CPG and attempt to disown the CPG as an authoritative statement by the Board of Chiropractors cannot be given weight since he was on neither the Florida Committee for Adoption of Guidelines nor the Board of Chiropractic when the CPG was accepted and endorsed. Additionally, during his tenure on the Board stretching back to 1997, the Board has not rescinded or amended the CPG. Finally, the evidence did not demonstrate that the CPG was superceded by the 1999 Universe of Florida Patients with Neck Pain or Injury Medical Practice Guidelines. These Universe Guidelines appear to relate only to medial doctors and not to Chiropractic Physicians. The Guidelines state they are not applicable to Chiropractic Physicians licensed under Chapter 460, Florida Statutes. The fact that the CPG describes SEMG as “[a]ccepted as appropriate by the practicing chiropractic community” provides a strong demonstration of the medical value of the test, and strong evidence of the high level of general acceptance of the test by the relevant provider community. Additionally, the American Medical Association Current Procedural Terminology (CPT) 2004 Manual is a proprietary system of the AMA for reporting medical services and procedures. CPT Codes are the uniform, established system for reporting medical services for reimbursement under government and private insurance programs. CPT coding is mandatory to describe the services a physician renders when submitting that service for payment to an automobile insurance carrier. In order to be assigned a five-digit CPT Code, the procedure must be “consistent with contemporary medical practice and be . . . performed by many practitioners in clinical practice in multiple locations. Code assignment is performed by a CPT Editorial Panel, consisting of 17 physician members, and a larger CPT Advisory Committee of medical and allied health professionals. Among the objectives of the CPT Advisory Committee is to “provide documentation to staff and the CPT Editorial Board regarding the medical appropriateness of various medical and surgical procedures. . . .” (emphasis supplied) Among the considerations for Code assignment are the requirements “that the service/procedure is a distinct service performed by many physicians/practitioners across the United States,” and “that the clinical efficacy of the service/procedure is well established and documented in peer review literature.” Dynamic SEMG has been assigned a five-digit CPT Code 96002. Similarly, The review and interpretation of dynamic SEMG has been assigned a five-digit CPT Code 96004. The fact that SEMG has been found to meet the requirements of the AMA for assignment of five-digit CPT Codes provides evidence of the medical value of the test, and strong evidence of the high level of general acceptance of the test by the relevant provider community. Finally, the rulemaking record for Rule 64B-3.004 contains information regarding SEMG. The literature submitted as part of the rulemaking record reveals, by a preponderance of competent, substantial evidence, that SEMG does not lack demonstrated medical value, and that it has a level of general acceptance by the relevant provider community. The primary documents submitted in the course of rulemaking included the 1993 Guidelines for Chiropractic Quality Assurance and Practice Parameters (Mercy Conference), the National Guideline Clearinghouse summary of the 1998 Council on Chiropractic Practice Guideline entitled Vertebral subluxation in chiropractic practice, a pair of AAEM Literature Reviews, entitled The Use of Surface EMG in the Diagnosis and Treatment of Nerve and Muscle Disorders and Dynamic Electromyography in Gait and Motion Analysis; the American Academy of Neurology study on Clinical utility of surface EMG; a report from Connie Coleman; two submissions from Dr. Jerome True, and a 2003 literature review, Surface EMG in Chronic Paraspinal Pain. Neither the Mercy Conference Guidelines nor the AAEM Surface EMG Literature Reviews contained any information or analysis more recent than 1993. Those documents did not reflect the current state of technology or understanding of SEMG, and could not form the sole bases for a rule based on SEMG’s demonstrated medical value and level of general acceptance in 2003. The National Guideline Clearinghouse summary of the 1998 Council on Chiropractic Practice Guidelines, and the American Academy of Neurology study on Clinical Utility of Surface EMG both provide support of the medical value for SEMG. As indicated, the 1998 Council on Chiropractic Practice Guidelines, which was subject to external peer review, and which even critics of SEMG recognize as being authoritative, determined that SEMG earned a rating of “established” “for recording changes in the electrical activity of muscles associated with vertebral subluxations” based on expert opinion, literature support, and controlled studies. The American Academy of Neurology study drew three conclusions, one of which was that Surface EMG “is an acceptable tool for kinesiologic (movement) analysis of movement disorders because it is a method for recording and quantifying clinically important muscle-related activity with the least interference on the clinical picture,” and confirmed its usefulness for several maladies, some of which result from automobile accidents. A report from Connie Coleman concluded that SEMG should not be in the rule, based on the American Academy of Neurology study, the AAEM Surface EMG Technology Literature Review, and a position paper authored by Aetna Insurance. Ms. Coleman’s report cannot be given any weight since she cited only the negative recommendations of the American Academy of Neurology study regarding SEMG, but omitted the third, positive recommendation from the study referenced above. Furthermore, as support for her recommendation to include spinal ultrasound in the rule, Ms. Coleman relied on the National Guidelines Clearinghouse document referenced above, which she stated was: a comprehensive database of evidence-based clinical practice guidelines and related documents produced by the Agency for Healthcare Research and Quality (AHRQ), U.S. Department of Health and Human Services, in partnership with the American Medical Association (AMA) and the American Association of Health Plans (AAHP). However, Ms. Coleman failed to note that the same National Guidelines Clearinghouse document gave SEMG a rating of established “for recording changes in the electrical activity of muscles associated with vertebral subluxations.” Of the two reports submitted by Dr. True, only one recommended that SEMG should have been on the list, with that recommendation based on a single journal article. Dr. True’s other submission mentioned SEMG, but made no specific recommendation regarding the test. However, Dr. True’s second submission did note that allegations of over utilization and abuse have “nothing to do with determining whether a test is medically valid.” Dr. True also relied on the Chiropractic Practice Guidelines and Parameters for the State of Florida, which recognize the medical validity of SEMG. Finally, David Marcarian, the developer and manufacturer of SEMG equipment, submitted several documents, including a literature review of journal articles ranging in dates from 1982 to 2002. The review discussed each of the journal articles, and concluded that “SEMG is a useful diagnostic tool in the evaluation of spine pain patients, and suggests that it be done routinely in cases where there is a need for disability and impairment determination.” The evidence did not demonstrate that Mr. Marcarian’s materials should be given less weight than older material containing dated information. The evidence submitted in this proceeding demonstrates a definite trend in both the understanding of the medical validity of SEMG and its acceptance by the chiropractic and medical community. Each of the 21 journal articles comprising Petitioner’s Exhibit 8, ranging in dates from 1988 to 2004, used SEMG as a tool to provide an objective measurement of muscle activity. Although many of the articles were focused on the muscular conditions leading to such conditions as low back pain, fibromyalgia, and whiplash disorders, rather than the clinical efficacy of SEMG itself, the fact that SEMG was so widely used as a measure of muscle activity is evidence of its medical value. Additionally, several of the articles focused on SEMG as a diagnostic tool in and of itself. Going back as far as 1988, researchers reported that “clear and consistent surface paraspinal EMG patterns can be discerned between differing groups of lower back pain patients and non-pain controls if the methodological limitations inherent in previous studies are corrected,” and concluded that “[t]he findings of the present study clearly point to the utility of differential diagnosis in lower back pain surface EMG studies,” and that “[r]esults strongly indicate that when careful attention is given to both diagnosis and position, surface EMG recordings can differentiate among the various types of lower back pain, as well as between those with and without lower back pain.” Electromyographic recordings of 5 types of low back pain subjects and non-pain controls in different positions, Arena, et al., "Pain", 37 (1989) pp. 63, 64. Through the early 1990s, researchers began noting the effect that technological advances were having on the medical efficacy of Surface EMG. Researchers during that period were recognizing that advances in surface electromyography (EMG) have prompted a renewed interest in examining the fatigue properties of back muscles. See Fatigue, recovery and low back pain in varsity rowers, Roy, et al., Medicine and Science in Sports and Exercise, vol. 22, no. 4, p. 463. As a result of those advances, those researchers concluded that “the EMG technique is able to correctly identify persons with LBP from two very different populations” [Id. at p. 467] and that “the results of this study have verified the usefulness of a surface EMG measurement technique to identify changes in back muscles that are characteristic of LBP in rowers . . . The technique may be useful to athletic trainers and other health professionals for evaluating the muscular component of LBP in their patients.” (Id. at 468). During that same period, researchers were beginning to conclude that, though not without limitations, "[e]lectromyo- graphic spectral analysis was shown again to be a highly sensitive and highly specific diagnostic test.” Comparison of Spinal Mobility and Isometric Trunk Extensor Forces with Electromyographic Spectral Analysis in Identifying Low Back Pain, Klein, et al., Physical Therapy, vol. 71, no. 6, p. 41 (1991). Other groups noted that contemporaneous research studies “have also shown the reliability of dynamic EMG measurements of paraspinal low back muscles,” and concluded that “[w]e believe that [EMG] is an invaluable aid in detecting and objectifying disturbed function in paraspinal muscles in back pain patients and in general disability. This agrees with recent research which indicates that kinetic EMG patterns (in contrast to static levels) may best show the complex biomechanical events in the lumbar region.” Electric Behavior of Low Back Muscles During Lumbar Pelvic Rhythm in Low Back Pain Patients and Healthy Controls, Sihvonen, et al., Arch. Phys. Med. Rehabil., vol. 72, pp. 1080, 1086 (1991). By the mid to late 1990s, the continuing research, though still recognizing that there were things left to learn, was becoming more conclusive as to the value of SEMG. In 1997, researchers funded by the Department of Veterans’ Affairs stated that “[w]e predict that in the future the concept of surface EMG- based imbalance or load sharing parameters may provide the clinician with important person-specific information already in the acute stage of the injury, to help prevent the development of a chronic disability. Surface EMG provides us with a powerful, noninvasive tool to investigate the status and function of muscles.” Development of new protocols and analysis procedures for the assessment of LBP by surface EMG techniques, Oddsson, et al., Journal of Rehabilitation Research and Development, vol. 34, no. 4, p. 425 (1997). During that same year, researchers in California studying muscular electrical signals, noted the technological advances that were serving to make SEMG more effective. In their study, they found that “[s]uccessful myoelectric recording with surface electrodes during dynamic exercise of the low back is relatively recent. This is largely due to the recent development of small high-competence preamplifiers located close to the muscle which reduces the electronic artifact during dynamic activity to allow analysis of the myoelectric signal.” Relationships Between Myoelectric Activity, Strength, and MRI of Lumbar Extensor Muscles in Back Pain Patients and Normal Subjects, Mooney, et al., Journal of Spinal Disorders, vol. 10, no. 4, p. 354 (1997). By the early 2000s, SEMG was becoming established as a reliable and valuable tool in the assessment and diagnosis of automobile related injury. In a peer-reviewed study regarding whiplash-associated disorders (WAD), the authors concluded that: Patients with whiplash associated disorder Grade II can be distinguished from healthy control subjects according to the presence of cervical muscle dysfunction, as assessed by surface electromyography of the upper trapezius muscles. Particulary the decreased ability to relax the trapezius muscles seems to be a promising feature to identify patients with whiplash associated disorder Grade II. Assessment of the muscle (dys)function by surface electromyography offers a refinement of the whiplash associated disorder classification and provides an indication to a suitable therapeutic approach. Cervical Muscle Dysfunction in the chronic Whiplash Associated Disorder Grade II (WAD II), Nederhand, et al., Spine, vol. 25 (15), p. 8 of 10 (2000). The authors noted that “the use of palpation to assess either muscle point tenderness or muscle spasm is questionable because manually tested musculoskeletal signs have shown poor interexaminer reliability, and very little is known about its diagnostic validity.” Id. The authors found that “SEMG as a measure of the inability to relax the upper trapezius muscles may be useful in diagnostic testing. In the literature this feature was shown to be related to cervical pain and muscle fatigue and therefore supports the clinical importance of this study’s findings.” Id. at p. 8 of 10. Also in 2000, researchers, while still recognizing the lack of absolute precision with all manner of electro-diagnostic testing (including X-rays, MRIs, CT scans, myelograms), stated that “surface electromyography (SEMG) is a non-invasive method of analysis of the degree of muscular activity and function.” Chronic Low Back Pain Assessment Using Surface Electromyography, Ambroz et al., JOEM, vol. 42, no. 6, p. 661 (2000). In recognition of the advances in technology, the authors noted that “[r]ecent technological advancement has overcome the previous limitations of data acquisition and processing.” Id. at 661. That study, while noting the need for accounting for physical conditions including body fat, and recognizing the advantages of further testing and study, made the following findings: More recent investigations have found a significant relationship between pain and SEMG-measured muscle activity in the upper and lower back and have suggested that SEMG can be a valid tool for objectively assessing LBP. Also, although Biederman questioned the reliability of SEMG reading in biofeedback research, two subsequent studies addressing the validity of this technique reported good reliability for the static and dynamic SEMG activities in the assessment of CLBP. By using a rigorous matching protocol that included BMI [body mass index], our study demonstrated a statistically significant difference between CLBP patients and pain free controls. Thus, the results of this study support the previous investigations suggesting that SEMG is a useful diagnostic tool in the assessment of CLBP. Furthermore, in this study the use of one of the latest and more technologically advanced semi devices available has contributed to a more reliable collection and processing of this data, giving more strength to this analysis. Finally, in 2004, the evidence regarding the medical value of SEMG demonstrates that it has achieved a full level of general acceptance. In a study released in June 2004, the authors concluded that “[s]urface electromyography has been shown to be useful in the evaluation of spine pain in much the same way that EKGs have become indispensable for chest pain evaluation. SEMG testing is easy to do, inexpensive, has no morbidity, and provides important information for the pain practitioner.” Objective Documentation of Spine Pain, Ambroz, et al., Practical Pain Management, May/June 2004, p. 36 Thus, it is clear that the evidence in this case demonstrates that there was no “lack” of demonstrated medical value to SEMG, but, that SEMG has a level of general acceptance for use in the treatment of patients by the relevant provider community. The real dispute in this case is how often SEMG is used in the relevant provider community. Therefore, the inclusion of SEMG in Florida Administrative Code Rule 64B-3.004 exceeds the Department’s grant of rulemaking authority, enlarges, modifies, or contravenes the specific provisions of Section 627.736(5)(b)6., Florida Statutes, and is arbitrary and capricious.
Findings Of Fact The Petitioner, Paul R. Layton, is an inmate presently confined at the Tomoka Correctional Institution, Daytona Beach, Florida. Given a choice the Petitioner would not wear his hair any longer than his collar. His personal feeling, however, is that the rule is used as a harassment technique and is used to dehumanize and institutionalize the prisoners. The Respondent's rationale for the rule is that requiring prisoners to keep their hair short aids in identification of the individual prisoners within the institution and in the event of an escape. Prisoners have attempted escapes by altering their appearance. The Department of Corrections, pursuant to the challenged rule, has required prisoners to cut their hair such that it is above their collar and off of their ears. The Department houses approximately 27,000 inmates, all of whom are required to wear similar uniforms. When a prisoner escapes, the Department of Corrections must provide a current photograph of the escaped prisoner to law enforcement agencies. Requiring short standardized haircuts substantially reduces the cost and difficulty such current photographs. Petitioner contended that the rule is discriminatory in that female inmates are not subjected to the same haircut standards. The majority of female inmates wear their hair long and when they change the length of their hairs they are rephotographed. Shorter hair is more sanitary for those prisoners who are involved in food preparation. Long hair can also constitute a safety hazard for those inmates who operate machinery.
The Issue The issue in this case is whether Respondent, Zion's Hope, Inc., d/b/a Holy Land Experience (hereinafter "HLE"), discriminated against Petitioners, James Gantz and Bette Gantz, by refusing Petitioners entry into HLE due to the Gantzes's disability, i.e., being hard of hearing and requiring the service of hearing ear dogs.
Findings Of Fact Zion's Hope, Inc., is a Florida not-for-profit corporation formed in 1989. It is a religious entity with a Section 501(c)3 designation under the U.S. Tax Code as a bona fide charitable organization. HLE is a privately-owned religious theme park operated by Zion's Hope. Religious services are conducted at HLE seven days a week. HLE is located at 4655 Vineland Road, Orlando, Florida. The public, upon payment of an admission fee, is invited into HLE on a daily basis. James and Bette Gantz are an elderly married couple who reside for part of each year in North Port, Florida. Both James and Bette are hard of hearing and have suffered from this affliction for many years. James and Bette each have a certified hearing ear dog which accompanies them almost everywhere they go. The dogs were present at the final hearing. On March 19, 2010, James and Bette accompanied by their service dogs and Bette's sister, Lois Wilcox, decided to visit HLE. Upon arrival, they were told that the HLE parking lot was full, but that additional parking was available across the street. James dropped off Bette, the dogs, and Lois in front of the HLE entrance, then went to park the car across the street. When Bette, Lois, and the dogs approached the ticket window to purchase admission into HLE, they talked to one of the employees about the service dogs to make sure the dogs could accompany them inside. The employee opted to call her superior, Jane Wilcox (no relation to Lois), to make a determination about the dogs. Jane Wilcox testified that she approached Bette and Lois in the lobby area, i.e., an enclosed area akin to a hotel lobby, which housed the ticket windows. Bette and Lois said they were never inside a building at HLE; rather, the discussions that occurred happened outside on the sidewalk area. It seems most likely from the evidence that the conversation commenced inside the lobby and then continued outside. Jane Wilcox did a cursory examination of the dogs and decided they did not appear to be service dogs. She also determined that the dogs appeared to be "frisky" in nature and were not like other service dogs she had seen. It was her practice to make a determination as to whether an animal was a service animal or not by asking reasonable questions. This is the way she handles each of the 100 or so cases a year in which guests show up with animals. Jane Wilcox has not had any formal training from the Commission or other regulatory entity regarding service dogs. She was given on-the-job training by her predecessor and has studied written materials on the subject. Her experience in this area is somewhat extensive during her three and a-half year tenure at HLE. After Jane Wilcox made an initial visual determination that the dogs appeared to be pets, Bette attempted to advise her that the dogs were certified and had certification documents on the capes they were wearing. Bette and James had taken the dogs into numerous other businesses and had been asked many times for proof of the dogs' certification. Thus, they kept the certification documents on the dogs at all times. Jane Wilcox refused to look at the certification documents because she has been provided bogus certification documents on occasion. That being the case, she did not put any stock in documents that were presented to her by guests. Rather, it was her normal practice to ask questions of the owners and to visually examine the animals. Based on the answers and her observation, Jane Wilcox would come to a conclusion about the animal in question. The discussion between Jane Wilcox and Bette became somewhat heated once Jane Wilcox made her initial determination about the dogs. Bette was talking loudly, but she is prone to do that because of her hearing impairment. Jane Wilcox viewed Bette as being very excited and possibly offended by the refusal to admit the dogs into HLE. After a few moments, Jane Wilcox determined that communication with Bette had broken down to the point that further conversation was useless. At that point, she called for security assistance.1/ It appears that the matter could have been resolved to everyone's satisfaction had the conversation not degenerated into a contentious debate between the parties. However, it is impossible to ascertain from the facts submitted whether one party or the other was more responsible for the verbal melee. Therefore, no finding can be made as to that point. The security officer who arrived took Bette and Lois to his small security building, where they were joined by James. The security officer said that Jane Wilcox was within her rights to refuse their admission into HLE with the service dogs. He advised them that there was a facility nearby that would care for the dogs while the guests were at HLE. The security officer allegedly told the Gantzes that HLE was a private facility and not subject to federal or state law regarding disabled persons. He also supposedly said that HLE considers dogs like those belonging to the Gantzes as pets, rather than service animals. According to Bette, this "colored" security officer would not listen to her or allow her to talk. A Caucasian guard, however, allegedly told Bette that maybe the dogs should be allowed into HLE, but he was overruled by the first guard. The Gantzes then asked the security officer to call the local (Orlando) police, which he did. When the police officer arrived, he advised the Gantzes that he could not force HLE to admit the dogs, but that he would write up a report. The report written by the police officer indicates that "security officer Santis" called in the request for assistance. It is not clear from the evidence at final hearing which of the two aforementioned security officers was Santis. The incident narrative in the police report simply states: Contact was made with all parties. 'Gantz' were acc[ompanied] by certified service dogs for hearing along with proper documentation. Upon Mngt request to leave, did so without incident. The Gantzes and Lois Wilcox opted not to board the dogs at the nearby facility. Rather, they left HLE and, ultimately, filed a complaint against Zion's Hope with the Commission. HLE does have a policy of admitting service animals inside the attraction. However, as a private religious facility, it does not believe that it has to do so, i.e., it does not believe it is governed by the Americans with Disabilities Act. Of the 100 or so service animals appearing for admission each year, about 70 percent of them are admitted. The others are boarded or the owners opt not to enter HLE. HLE does have a strict policy disallowing pets from admission to the park. Inasmuch as Jane Wilcox found the animals with the Gantzes to be pets, they were denied admission on that basis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petitions for Relief filed by James Gantz and Bette Gantz in their entirety. DONE AND ENTERED this 31st day of March, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 31st day of March, 2011.
The Issue Whether the Department of Juvenile Justice (DJJ or Department) acted illegally, arbitrarily, dishonestly or fraudulently in the rejection of all proposals for the Better Outlook Center request for proposals.
Findings Of Fact The Department has responsibility for the custody and treatment of delinquent youth in the State of Florida. As part of that responsibility, the Department sought proposals for a halfway house program to be located in Dade County, Florida (District 11). This program, also known as the Better Outlook Center (BOC), will provide residential beds for twenty-eight male juveniles who are considered a moderate risk to public safety and require a structured residential community. The Department advertised a request for proposal (RFP) for the BOC project, RFP #K6P07, on January 24, 1997. Subsequent to the general mailing of the RFP packet, the Department received twelve proposals for the BOC project. Among those proposals, the Petitioner, Haynes Services Corporation, was awarded the highest score. In a telephone conference call conducted in February, 1997, the Petitioner’s CEO was advised of his apparent highest ranking but was asked to lower the per diem rate. Petitioner agreed to the amendment. Subsequently, upon further review of the matter, the Department determined it had not included criteria which would consider quality assurance performance on similar programs, third party reviews, or past performance. The Department determined that these criteria should be included in all RFP evaluations and set about to draft language incorporating these provisions into new RFP instructions. These new criteria would be applicable throughout the state and would be applied to review all applicants for programs awarded through the DJJ. Concern over the new criteria arose because the Department was advised that Petitioner had failed quality assurance requirements at another project. Thus, while the Department had considered Petitioner’s proposal for the subject project well articulated, it became concerned regarding Petitioner’s ability to perform as represented. In order to place all applicants on an even playing field for consideration of this project as well as others where this issue might arise, the Department determined that all applicants should submit records of past performance. The results of past performance and quality assurance ratings would then be a factor to consider before awarding future projects. Accordingly, all proposals which had been submitted for the BOC RFP at issue were rejected. On or about March 7, 1997, all applicants who had submitted proposals for the BOC project were notified that the Department intended to re-advertise the RFP with new criteria. The Petitioner was not awarded a contract for the subject RFP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order dismissing the challenge to the rejection of all bids for RFP #K6P07. DONE AND ENTERED this 8th day of May, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1997. COPIES FURNISHED: Calvin Ross Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Kaydell Wright-Douglas, Esquire The Wright Building 110 North Armenia Avenue, Suite A Tampa, Florida 33609 Scott C. Wright, Esquire Assistant General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact At all times relevant hereto, Respondent was licensed by Petitioner as an Adult Congregate Living Facility (ACLF) and operated a home with thirteen residents. At a survey conducted April 25, 1985 some seventeen (17) class III deficiencies were noted by the survey team and these discrepancies were brought to the attention of the ACLF administrator at the exit interview held. Respondent was given thirty (30) days to correct these discrepancies. A follow-up inspection on Respondent's ACLF was conducted July 9, 1985. At this inspection the following discrepancies remained uncorrected: there was no assurance that staff providing assistance with personal hygiene have inservice or other training in personal hygiene care from a qualified instructor; four residents' files did not contain a completed Health Assurance form; physical examinations of three (3) of thirteen (13) residents did not include a statement that on the day of the examination the individual was free of communicable disease; and there was no three-compartment sink or other approved system available to sanitize kitchen utensils. Respondent acknowledged the deficiencies above-noted had not been corrected at the time of the reinspection. In mitigation, Respondent presented evidence that requests had been made of the doctors for the missing evidence in the residents' files and the doctors were inordinately slow in forwarding such information. With respect to staff training in personal hygiene, Respondent attempted to enroll its staff in the required training but ran into delays of a month or so in getting its personnel in these classes. With respect to the three-compartment sink, Respondent ordered the first replacement sink from a plumber who went out of business before installing the sink; a second sink was ordered but the sink was too small; and finally, Respondent replaced the deficient sink with the proper type.
Recommendation It is recommended that a final order be entered assessing an administrative fine of $550 against Trevor Jones, d/b/a Brer Fox Retirement Home, Inc., with interest as provided by Section 687.01, Florida Statutes. DONE AND ORDERED this 10th day of April 1986 in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1986. COPIES FURNISHED: Mr. William Page, Jr. Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Steve Huss, Esquire General Counsel Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Carol M. Wind, Esquire 2255 East Bay Drive Clearwater, Florida 33518 Mr. Trevor Jones 9675 94th Avenue North Sarasota, Florida 33546
The Issue The issue posed for decision herein is whether or not disciplinary action should be taken against Respondent, or his license to practice contracting based on the Complaint allegations filed herein which allege that he has diverted funds from a construction project in violation of Chapter 489.129(1)(h), and has violated Chapter 489.129(1)(i), Florida Statutes (1979), based on a suspension of his Certificate of Competency by the Collier County (Florida) Contractors' Licensing Board.
Findings Of Fact Based upon my observations of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint filed herein on or about April, 1981, the Petitioner, Department of Professional Regulation, herein sometimes referred to as the Department or Petitioner, seeks to take disciplinary action against the Respondent as licensee and against his license as a registered General Contractor based on conduct which will be set forth hereinafter in detail. Respondent is a Registered General Contractor who has been issued License No. RG0014840. According to Petitioner's records, Respondent's last known address is Route 2, Box 1017, Bonita Springs, Florida. However, evidence in the pleadings file revealed that the Respondent's present mailing address is Route 2, Box 231, Hannibal, New York. Respondent was first licensed as a Registered General Contractor in November of 1973 as an individual. His license is now delinquent as he did not renew it on the date of its expiration, June 30, 1979. 2/ During March of 1980, Respondent requested Claudia Blanche Klug of Dolphin Air Conditioning and Supplies (Dolphin) to rough-in air conditioning duct work in a home which Respondent had contracted to construct for Mr. Ray J. Hill or Naples, Florida. The rough-in services were provided by Dolphin which services were paid for by a check dated May 1, 1980, in the amount of $901.20. The check was returned for insufficient funds. (Petitioner's Exhibit No. 4.) Ray J. Hill, as stated, is a resident of Naples who entered a contract with Respondent for the construction of a residential home. To pay for the construction of the residence, Mr. Hill established a draw schedule to pay Respondent as construction progressed from proceeds from a construction loan obtained from Naples Federal Savings and Loan Association. According to Hill, Dolphin was to be paid by Respondent from monies obtained (by Respondent) from the construction loan. Respondent made the last construction draw from Naples Federal on or about April 15, 1980, whereas Dolphin completed its rough-in- work during March of 1980. Mr. Hill filed a complaint with the Collier County Contractors' Licensing Board which resulted in a suspension of Respondent's Collier County Certificate of Competency based on a violation (by Respondent) of five (5) local ordinances. (See Petitioner's Exhibit No. 2.) Petitioner has reviewed the action taken by Collier County respecting its suspension of Respondent's Certificate of Competency. Respondent did not appear nor was a representative on his behalf present at the hearing herein to either offer evidence or rebut the allegations contained in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner suspend Respondent's license to practice as a Registered General Contractor (License No. RG0014840) for a period of two (2) years. RECOMMENDED this 5th day of March, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1982.
The Issue Whether Respondent violated Section 550.2415(6)(a), Florida Statutes, and Rule 61D-6.002(1), Florida Administrative Code.
Findings Of Fact Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering. That Agency is charged with regulating the pari-mutuel wagering industry in Florida and those individuals licensed under Chapter 550, Florida Statutes. During the period of July 1 through September 10, 1997, Respondent held unrestricted "U1" Professional Pari-Mutuel Wagering Occupational License number 1538139-1081. During the period of July 27, 1997, through September 3, 1997, Respondent was the trainer for Lobo Sable, a greyhound which Respondent entered in races at the Jefferson County Kennel Club in Jefferson County, Florida. Pari-mutuel wagering was conducted on those races. Respondent had leased Lobo Sable from Bill Elliott, the owner of the dog. On or about August 26, 1997, Respondent turned over approximately seven dogs to the Humane Society shelter in Tallahassee, Florida. On or about September 2, 1997, Respondent turned over approximately 17 more dogs to the Humane Society in Thomasville, Georgia. Respondent then returned to Iowa. Lobo Sable was one of the dogs turned over by Respondent to the Humane Society shelter in Thomasville, Georgia. On or about September 9, 1997, Lobo Sable was brought to Dr. Lillian Plank, D.V.M. at the Tallahassee Humane Society, a/k/a the Animal Aide Society, by Ms. Linthacum. Where and when Lobo Sable came into Ms. Linthacum's care, custody, and control, was never fully explained on the record, but it is inferred that she was somehow connected with the Thomasville, Georgia Humane Society. On September 9, 1997, another veterinarian, and Lillian Plank examined Lobo Sable. This examination showed deep ulcerous sores on each front leg, exposing the bone of each leg. Each ulcer was approximately 1-½ centimeters by 2 centimeters, to 2 centimeters by 2-½ centimeters in diameter. Lobo Sable also had additional skin ulcers and lesions similar to bedsores, consistent with pressure/trauma due to prolonged confinement in an area with hard surfaces and no bedding. As testified by Dr. Plank, the ulcerous sores observed on Lobo Sable were a form of decubitus ulcer. Decubitus ulcers develop through stages, beginning with a reddening of the affected skin area, progressing through thickening of the skin and a reduction in blood circulation to the affected area, and finally result in an open ulcer. Racing greyhounds are vulnerable to decubitus ulcers because of their low body fat and lack of natural cushioning. On September 9, 1997, Lobo Sable's decubitus ulcers with exposed bones were more severe than any that Dr. Plank had seen during her 12 years of practice. During her September 9, 1997, examination of Lobo Sable, Dr. Plank also observed the animal to be flea-invested. Dr. Plank estimated that the conditions of confinement for Lobo Sable would have existed from seven to fourteen days in order to produce the types of decubitus which she saw on September 9, 1997. On direct examination, Dr. Plank conceded that the decubitus ulcers could have developed in as little as seven to ten days, and she would not clearly state that the sores she examined would have to have predated September 2, 1997. On cross-examination, Dr. Plank also conceded the scientific possibility that Lobo Sable's condition could have arisen in seven days. Dr. Plank opined that Lobo Sable was probably naturally thinner than the average greyhound. Lobo Sable weighed in at 64 pounds at Dr. Plank's office on September 9, 1997. In order to appropriately treat the existing decubitii and prevent further decubitii, Dr. Plank felt that it was necessary to have a nutritional focus (high protein diet), utilize all antibiotics, and provide daily cleansing of the wounds with topical treatment thereafter. She opined that the dog minimally should have received this type of treatment when the first signs of decubitus appeared and ideally should have been placed on a cushioned bed. She did not believe the dog had received any type of treatment at all. Respondent testified that when he delivered Lobo Sable to the Humane Society in Thomasville, Georgia, on September 2, 1997, the dog was immediately washed and dipped for fleas. This testimony was not refuted, and according to Dr. Plank, the flea dip solution by itself would not have enlarged existing decubitus ulcers. No evidence one way or the other was introduced either orally or by documentation to explain why Lobo Sable should have been flea infested on September 9, 1997, if he had been flea dipped on September 2, 1997. There is no evidence to show what care or lack of care Lobo Sable received between September 2, 1997 and September 9, 1997. Respondent testified that Lobo Sable had raced on August 30, 1997, weighing 69 pounds. This testimony is supported by Exhibit 4. The same exhibit indicates that Lobo Sable officially weighed-in for races over the five to six week period prior to August 30, 1997, at between 69 and 69 ½ pounds. Respondent testified without refutation that Lobo Sable was examined by the track veterinarian immediately prior to his race on August 30, 1997. No evidence of that veterinarian's findings was admitted in evidence.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business Professional Regulation, Division of Pari-Mutuel Wagering enter a Final Order dismissing the administrative complaint against Respondent. DONE AND ENTERED this 16th day of November, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. 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 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1998. COPIES FURNISHED: Eric Miller, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-1007 Salvatore Lembo c/o Flying Lightning Kennel Apartment 5 1900 Washington Street Dubuque, Iowa 52001 Deborah R. Miller, Director Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
