The Issue Whether Respondent properly denied the applications of Petitioner for Class I wildlife; and whether Respondent's previous granting of Class I licensure to Petitioner estops Respondent from denying the instant applications.
Findings Of Fact On July 15, 1998, Petitioner applied to the Commission for licenses, via three separate applications, to possess wildlife, particularly bears, leopards, and baboons at three separate locations. The applications cited the addresses of 127 West Hiawatha Street, 116 West Elm Street, and 6802 North Highland Avenue, all in Tampa, Florida, as the locations where Petitioner planned to possess the animals. Petitioner applied to possess bears (family ursidae), leopards (family felidae) and baboons (family cercopithecidae) at each location. All these animals are Class I wildlife. Respondent issued Notices of Denial of the three applications to Petitioner on September 22, 1998. Class I animals are dangerous animals that cannot be possessed for personal use, and are typically found in zoos. They are dangerous because of their ferocity and size. These animals may be aggressive towards anyone, including their keeper. Class II wildlife are potentially dangerous animals which should only be possessed by experienced individuals. Class III animals are of smaller size and are less aggressive. The goal of the Commission's classification system is to promote the safehousing of wildlife, and to protect the general public and the individual keeping the animals. In the application for 116 West Elm Street, Petitioner noted that he presently possessed five white-tailed deer, one muntjac, and one emu, all Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 116 West Elms Street, the year previous to the instant application. In the application for 127 West Hiawatha Street, Petitioner noted that he presently possessed two panthers and one bobcat, both Class II wildlife, and two alligators, which are Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 127 West Hiawatha Street the year previous to the instant application. In the application for 6802 North Highland Avenue, Petitioner noted that he presently possessed no wildlife at this location. Petitioner did not possess authorization to house Class I wildlife at 6802 North Highland Avenue the year previous to the instant application. Two of Petitioner's locations are contiguous: 127 West Hiawatha Street, and 166 West Elm Street. Petitioner's location at 6802 North Highland Avenue is approximately one block from the other two sites, and on the other side of the street. Elm and Hiawatha are not one property, but two separate residences and addresses. The Hiawatha and Elm Street addresses were treated as two separate locations by the Commission as they are separate addresses with separate applications. The Elm Street and Hiawatha locations are separated by a fence at the back of each property. Petitioner uses a ladder to traverse over the fence between the Elm Street and Hiawatha locations. The area where Petitioner wishes to house Class I wildlife is a residential area with small single-family houses located close together, with small yards, and near a major road. There are residential properties to the east of both the Hiawatha and Elm Street locations. Petitioner's neighborhood is densely populated, with single-family residential dwellings and small lots. Petitioner's locations are within approximately 100 yards from large intersections at Sligh Avenue and Florida Avenue. The three properties where Petitioner sought to keep Class I wildlife are zoned single-family residential. Approximately six people per week visit through Petitioner's facilities. Petitioner has received various permits, including Class I, from the Commission for over the past 15 years. It is possible to obtain a Class I license and not be qualified to possess animals at the address on the license. Pursuant to law, a permittee for Class I wildlife has to meet specific requirements including standard caging requirements and land area. The land area required to house Class I wildlife is 1/4 acre minimum. An acre of land is 43,560 square feet. One-quarter of an acre is 10,890 square feet. The 1/4 acre minimum area for Class I wildlife is critical because it allows for a larger buffer for dangerous animals. Respondent wildlife inspectors visit applied-for sites to determine whether the facility meets the caging requirements, whether wildlife are housed safely and ensure the public is not at risk. Respondent inspections are made to determine whether caging is strong enough to contain animals safely and to verify the owner or possessor does not exceed the number of permitted animals. Wildlife officers regulate and enforce the caging of captive wildlife, both exotic and native. It is necessary to have cages meet the rules to protect the safety of the animal, the neighbors, and the keeper. Respondent's Lieutenant Stephen Delacure, who has been a Commission Wildlife Officer or Inspector for approximately ten years, has been to Petitioner's three locations in Tampa at least 15 times over the past four years. Delacure has never seen any Class I animals at any of Petitioner's three locations. On November 12, 1998, Delacure and Lieutenant Krause inspected all three of Petitioner's locations pursuant to his application. Delacure inspected the three locations for appropriate caging and land area for bears, leopards, and baboons. Delacure measured all locations with Petitioner present and indicated that he gave Petitioner "the benefit of the doubt" as to the measurements. Delacure measured the total area for 127 West Hiawatha Street to be 103 feet by 39 feet (front and depth) (4,017 square feet). Delacure measured the total area of 116 West Elm Street to be 87 feet by 69 feet (6,003 square feet). Therefore, Delacure found the combined area for 127 West Hiawatha Street and 116 West Elm to be 10,020 square feet. Delacure measured the total area of 6802 North Highland Avenue to be 102 feet by 42 feet (4,284 square feet). Delacure found no adequate caging for Class I bears, baboons, or cats at 127 West Hiawatha Street. In addition, Delacure found no caging for Class I wildlife at 116 West Elm Street nor 6802 North Highland Avenue. The November 1998 inspection was the basis for the issuance of the amended notice of denial for failure to meet land area requirements and to meet caging requirements. Respondent denied Class I licenses to Petitioner because of inadequate land area and caging. Class II licenses do not say "all" for possession purposes, as these licenses are defined by specific animal families. However, Class III licenses may say "all" for possession purposes. The Respondent changed Class I licenses to animal specific from the "all" designation to ensure that the animal possessor is familiar with the handling of that family or species of animal as nutritional, health, and handling requirements are different for each animal family. Linda Coomey is a building inspector for the City of Tampa, having done this job for 15 years. Coomey inspects zoning and code enforcement. Coomey has been to Petitioner's locations 12-13 times over the last eight years. Coomey calculated the area of 127 West Hiawatha Street as 38 feet by 103 feet (3,914 square feet). Coomey calculated the area of 116 West Elm Street as 65 feet by 80 feet (5,200 square feet). Therefore, Coomey found the combined area of 127 West Hiawatha Street and 116 West Elm Street is 9,114 square feet. The area of 6802 North Highland Avenue was calculated by Coomey as 50 feet by 104 feet (5,200 square feet). These measurements were taken from the Hillsborough County plat maps and Coomey does not consider any error in measuring the square footage as acceptable. The Hillsborough County Property Appraiser's Office found the area of the three properties to be as follows: 127 West Hiawatha Street, 38 feet by 103 feet (3,914 square feet); 116 West Elm Street, 65 feet by 80 feet (5,200 square feet); and 6802 North Highland Avenue, 50 feet by 104 feet (5,200 square feet). None of these individual areas is equal to or greater than 1/4 acre, nor does the combining of the areas of 127 West Hiawatha Street and 116 West Elm Street (3,914 square feet and 5,200 square feet, for a total of 9,114 square feet) meet or exceed 1/4 acre. The Hillsborough County Tax Collector's Office reports 127 West Hiawatha Street as being .09 acres; 116 West Elm Street as being .12 acres; and 6802 North Highland Avenue as being .12 acres. Therefore, the Hillsborough County Tax Collector's Office found the combined area of 127 West Hiawatha Street and 116 West Elm Street is .21 acres. Per Petitioner, 127 West Hiawatha Avenue is 39 feet by 103 feet (4,017 square feet) in total area, and Respondent's officers informed Petitioner he did not have the required acreage. Respondent informed Petitioner on more than one occasion that Petitioner could have a Class I license that allows a person to borrow an animal and not be allowed to posseses Class I animals on the license holder's property. On September 6, 1991, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On July 23, 1993, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding felidae. On June 29, 1993, Petitioner was issued a license for 116 West Elm Street, which cited that Petitioner could possess the following: Class I, ursidae, cercopithecidae, and felidae. On June 29, 1993, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, ursidae, felidae, and cercopithecidae; Class II, all excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was a issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On July 4, 1994, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding venomous reptiles. On June 27, 1996, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all, excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. This was the last instance where Petitioner was licensed to possess Class I wildlife. On September 16, 1997, Petitioner was issued a license for 127 Hiawatha Street, which cited Petitioner could possess: Class I, none; Class II, felidae; Class III, all. On September 16, 1997, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess: Class I, none; Class II, none; Class III, all, excluding venomous reptiles. On September 16, 1997, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess: Class I, none; Class II, none. Lieutenant Dennis Parker is an inspector for Respondent, having worked for Respondent 26 years. Parker has consistently inspected Petitioner's facilities for more than 15 years. Parker measured 127 West Hiawatha Street "from curb to curb" in 1992 pursuant to Petitioner having a bear on the premises. Petitioner immediately received notice from Respondent that his acreage was inadequate via a "field revocation." Petitioner was ordered to remove the Class I animals. Petitioner was mistakenly provided a Class I license for ursidae before the Commission measured 127 West Hiawatha Street, under Parker's assumption that Petitioner had adequate acreage. A Class I license requires 1/4 acre or more to possess a Class I animal on that property. Petitioner's license for Class I ursidae was based on Petitioner's borrowing a bear for exhibition, with the bear being kept at a licensed facility not owned by Petitioner. Petitioner used 127 West Hiawatha Street as the mailing address for the license. Respondent had never inspected or authorized caging for bears at 127 West Hiawatha Street. Petitioner originally obtained bears without the knowledge and/or consent of Respondent, then a complaint was filed with Respondent. Petitioner recently had an animal escape from the 116 Elm Street location. Petitioner presently possesses Class I animals. Petitioner's properties do not meet the regulatory requirement for acreage size to house Class I wildlife pursuant to Rule 68A- 6.022 (formerly 39-6.022), Florida Administrative Code. Petitioner is one of thousands of persons who has authority to possess animals, but does not have an approved facility address to house the animals. Moreover, assuming arguendo that the properties are combined, Petitioner's properties at 127 West Hiawatha and 116 West Elm fail to meet the mandatory requirements for acreage to house Class I wildlife, pursuant to Rule 68A-6.022, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order upholding the Commission's Amended Notice of Denial. DONE AND ENTERED this 18th day of February, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 18th day of February, 2000. COPIES FURNISHED: Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Preston T. Robertson, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Allan L. Egbert, Ph.D., Interim Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 James Antista, Acting General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on October 29, 2002.
Findings Of Fact Petitioner is an Hispanic woman who was employed by Respondent from December 1997 until her termination on October 2, 2002. She worked in Alachua County Animal Services (Animal Services) as an animal control officer. Animal Services control officers are supervised by the Animal Services field supervisor who reports to the director of Animal Services. Petitioner received a bachelor's degree in 1983 in agriculture with a concentration in animal production and agricultural management courses, has experience in animal nutritional research, and has one published paper in that field.2/ Prior to working for the Alachua County, Petitioner managed a small pest control business. By the time she applied for the supervisory position, she had obtained Florida Animal Control Association (FACA) Level I, euthanasia, and chemical immobilization certifications. An animal control officer is responsible for enforcing state laws and county ordinances regarding small animals. Animal control officers impound animals at-large, issue warnings and citations, handle citizen complaints, and investigate animal bites and cruelty to animals. Petitioner served as interim Animal Services supervisor for a little over one month in June 2000. When the position of Animal Services field supervisor became vacant in December 2001, Petitioner applied for the job. Penny Lefkowitz, a newly hired Animal Services officer, also applied for the job. At that time, Ms. Lefkowitz had seven years of animal control experience in Arizona as lead officer. In that capacity, she was a sworn officer with firearm authority, a field training officer, and handled over 1,000 calls per year in that position. She held National Animal Control Association (NACA) Level I and II certifications. She was euthanasia- certified and had 25 years' experience breeding dogs and horses. Ms. Lefkowitz has a high school diploma. Ms. Lefkowitz was placed in the interim field supervisor position for a period of approximately three months, during which time she received supervisory pay. The record is not clear whether there was a separate application process for the permanent position following the appointment of the interim supervisor position. In any event, Respondent hired Bill Burris as Animal Services supervisor in March 2002. At the time he applied, Mr. Burris had nine years of animal control experience in Arkansas, where he was the animal control officer and shelter assistant. He held a high school G.E.D. Additionally, he held NACA Level I, II, and III certifications. Petitioner's Charge of Discrimination regarding failure to promote only references Ms. Lefkowitz's appointment to the interim director position, "[i]n December 2001, a newly hired officer, white female with less experience was hired as interim supervisor." It does not reference Mr. Burris as being hired in the director position. Her Petition for Relief alleges, "[t]hose less qualified individuals were hired and promoted in violation of county/company policy." Thus, it is not clear that Respondent hiring Mr. Burris for the permanent position is properly within the scope of this case. Nonetheless, the evidence presented at the hearing regarding Mr. Burris' qualifications is addressed herein. Mr. Burris held the position of field operation supervisor from March 2002 until his resignation in September 2003. Based upon the evidence in the record, at the time the decision was made to place Ms. Lefkowitz in the temporary supervisory position, she and Petitioner met the qualifications for the job. Ms. Lefkowitz had significantly more supervisory and field experience than Petitioner. At the time he was placed in the job, Mr. Burris met the qualifications for the job and had significantly more supervisory experience than Petitioner. Petitioner held a college degree, which neither Ms. Lefkowitz or Mr. Burris had. However, according to Mr. Burris, a college degree was not a minimum requirement of the job, but two years' animal control or animal shelter experience were required. There is nothing in the record to contradict his testimony in this regard. When Mr. Burris became field supervisor, he held a staff meeting and told the animal control officers he supervised that he would start fresh as far as performance and discipline issues. He handed them an empty folder and informed them that he would only consider their past performance if he saw a pattern that caused him to look at past personnel records. Mr. Burris called staff meetings to discuss policies that were not up-to-date or in need of updating. Prior to the staff meeting, Mr. Burris sent a memorandum to the animal control officers informing them that there would be a staff meeting. Officers were expected to attend and were excused only if they were on an emergency call. If an officer was absent from a meeting, Mr. Burris would promptly notify them in memorandum format as to what happened at the meeting. When changes were made in policies or procedures, Mr. Burris would put a copy of the policy changes in every officer's box. Each officer had his or her box where they would receive their mail. Each officer was expected to check that box daily. The boxes were accessible to everyone so that when there was a confidential document, such as payroll information, that document was placed in an envelope and then put in the officer's box. Petitioner's mid-year performance review was due in April 2002, approximately six weeks after Mr. Burris became the supervisor. Petitioner received an overall rating of "exceeded expectation." There are five categories of performance ratings, and "exceeded expectation" is the second highest category. That rating was consistent with ratings Petitioner received from previous supervisors. On April 24, 2002, Mr. Burris held a staff meeting to discuss a new policy regarding issuance of warnings and citations. The new policy required officers to give animal owners in violation of vaccination or licensing requirements 15 days to come into compliance. Previous to this, some officers had given animal owners 30 days to come into compliance. Under extenuating circumstances and upon seeing reasonable attempts to achieve compliance, the officer could extend an owner's deadline by 15 more days. Testimony is conflicting as to whether Petitioner attended this meeting. Petitioner insists she was not at this meeting. Mr. Burris insists that she was and that this issue was discussed in great detail. In any event, Mr. Burris put the new policy in writing a few days after the April 24, 2002, meeting, and the new written policy was given to all the officers. The weight of the evidence establishes that even if Petitioner did not attend the April 24, 2002, meeting, she would have been notified of the policy change shortly thereafter. On April 29, 2002, Petitioner issued a warning to a dog owner, which allowed the dog owner 30 days to achieve compliance with licensing and vaccinations for 24 dogs. According to Petitioner, she considered 30 days to be ample time for the owner to come into compliance. Petitioner maintains that at the time she issued this warning, she was not aware of the change in policy from 30 to 15 days. She acknowledges that Mr. Burris later explained the change in policy to her. It is clear that Mr. Burris informed Petitioner of this policy change and directed her to follow these procedures. In June or July 2002, Mr. Burris designed a policy and procedure manual incorporating all policies and procedures. A manual was issued for each truck used by the animal control officers. On July 31, 2002, Mr. Burris issued a memorandum entitled, "Bite Priority," to the animal control officers. Following a staff meeting where this memorandum was given to the officers, an informal discussion took place around the dispatch area. During this informal discussion, Petitioner questioned Mr. Burris as to whether he had ever read a document called the rabies compendium. Mr. Burris described Petitioner as speaking in a disrespectful, challenging tone. Ms. Lefkowitz witnessed the exchange and described it as disrespectful and condescending.3/ This statement made in front of other officers was inappropriate. The "Bite Priority" memorandum reads, in pertinent part, as follows: All Bites will be priority. Stand-by officers will be required to respond if the bite is after hours during their on-call shift. Bites will not be passed on to the next day. Shifts are 10 hour shifts, not 9 1/2 hours, if you end up working over you are compensated. Officers will not pass calls off to the stand-by person. Priority calls will be taken by Officers during their regular shift. The remainder of the memorandum dealt with off-premise bites. In early August 2002, Mr. Burris decided to "work the roads on a Saturday to take up some of the slack" because the animal control officers were overworked. Late one afternoon, Mr. Burris attempted to reach Petitioner on the radio, but was unable to do so. He asked the dispatcher to contact Petitioner. Petitioner acknowledges that she was contacted by the dispatcher and received Mr. Burris' request to fill up the truck she was driving and to leave the keys and the fuel card on Mr. Burris' desk. Petitioner had already filled up the truck that day in the late morning. She did not fill up the truck again at the end of the day, but described the truck as being seven-eighths full at the end of her shift, after making ten to 12 calls after stopping for fuel. Petitioner believed her actions complied with Mr. Burris' instructions. Mr. Burris described finding the truck the next morning as half-full of gas. Mr. Burris concluded that Petitioner did not follow his instructions. Mr. Burris' conclusion in this regard was not unreasonable. The truck incident gave rise to Mr. Burris' first written warning about her conduct. On August 5, 2002, Mr. Burris issued a memorandum to Petitioner for "failure to follow verbal instruction." The memorandum noted a safety concern in that he was not able to reach Petitioner by radio and his concern that she did not follow his directive. On August 6, 2002, Mr. Burris called Petitioner into his office to discuss the written memorandum. Mr. Burris described Petitioner's behavior when he handed her the memorandum to be disrespectful. As a result, Mr. Burris went to the director's office to explain the circumstances surrounding this incident. This resulted in a meeting in the director's office at which the director, Mr. Burris, and Petitioner were present. Petitioner acknowledges that she made the statement, "I guess one out of a hundred is unacceptable" during this meeting, and that she said it using a sarcastic tone. Later on August 6, 2002, Mr. Burris issued Petitioner another in-house written warning, the subject of which was "improper conduct" about her conduct in the director's office, which read in part: I informed Dr. Caligiuri of Blanca's discourtesy and or improper conduct. I had Blanca meet with me in Dr. Caligiuri's office to discuss her comment and the way in which it was stated. During our conversation in Dr. Caligiuri's office Blanca used mild sarcasm, expressing, "I guess one time out of a hundred is unacceptable" as we discussed the importance of responding to her radio. At this time, I do not want to write this up as a group I #19 Discourtesy to another employee or a Group II #7 Improper conduct which would effect the employees relationship with co-workers. However, if this behavior continues I will be left with no alternative. I know Blanca is capable of doing her job in a professional manner. I only want this as a written documentation of what occurred on this day, to prevent future occurrences of this same behavior. Petitioner refused to sign the August 6, 2002, memorandum. On August 13, 2002, Animal Services received a call about a dog bite at a residence. Animal control officer Jay Butts was dispatched on the call. When he arrived, he saw two or three dogs inside the home, and he could not determine which dog was involved in the reported bite. The owner of the dog was not at home. He left without leaving a written warning because, "I did not have the correct owner or dog, so I didn't know which dog or which owner to leave a written warning to. . . So I wanted to come back and find out which dog actually was involved in the bite." The following morning, Mr. Butts received information from the Health Department regarding the dog's owner and learned that the dog was not currently vaccinated or licensed. Mr. Butts returned to the residence where the bite occurred. He posted a notice to the dog's owner. Apparently the owner was still not home because he posted a warning which included the following necessary corrective action: "Your dog must be placed into quarantine by 5:00 pm on 8-14-02 at our shelter or a licensed vet. If you do not have this done today your animal will be impounded and you will receive a citation of $200.00 per day." The warning required the owner to correct the violation by 5:00 p.m. that day. Officer Butts proceeded to handle other calls until his shift was over. He did not make contact with the dog's owner before his shift ended. His shift ended before 5:00 p.m. The dog's owner called Animal Services after 5:00 p.m. on August 14, 2002. Petitioner took the call. After speaking to the dog's owner, she called a veterinarian and learned that the dog's vaccination had expired by a few months. She did not pick up the dog. She gave the following reason: Yeah, it happened on property. The dog was confined to his property. We had contacted the owner. And basically even though the vaccination had expired, even a one-year vaccination is good for three years. This is a known fact of any vaccine, any rabies vaccine manufactured in the United States, a one-year vaccine has an efficacy of three years. So I take all that matter into consideration when I have to make a decision as to what to do with a bite dog. Petitioner told the dog's owner that he had to comply with the written warning given by Mr. Butts. According to Petitioner, she told the dog's owner that he had to quarantine the dog off the property either at the shelter or at a veterinarian clinic. She also informed him that the only person who could reverse that decision was her supervisor. The next morning, August 15, 2002, the dog's owner called Mr. Burris. Mr. Burris spoke to the dog's owner and then questioned Petitioner to get her side of the story. He then instructed Petitioner to pick up the dog. She did not pick up the dog as instructed; another officer picked up the dog later that day. Mr. Burris gave a verbal warning to Officer Butts regarding his handling of the dog-bite incident. Mr. Butts had received previous disciplinary actions, including suspensions, prior to Mr. Burris becoming the field supervisor. However, on August 20, 2002, Mr. Burris initiated a Notice of Proposed Disciplinary Action (Notice) to Petitioner in which he recommended a three-day suspension without pay. The reasons referenced in the Notice were willful negligence in the performance of assigned duties or negligence which would endanger the employee, other employees, or the public; and refusal to perform assigned duties or to comply with written or verbal instructions of a higher level supervisor. The narrative of the Notice referenced the dog-bite incident and the August 6, 2002, improper conduct memorandum. Mr. Burris explained his decision to give different disciplinary actions to Officer Butts and Petitioner: Q What should she have done with the dog? A She should have impounded it immediately. If the owner refused her, she should have issued him a citation for failure to comply. Q Jay Butts participated in this. We had some testimony about that. Jay Butts participated in this event two days prior and one day prior to Ms. Carbia getting involved. Why wasn't Butts given any suspension on the same matter? A Jay Butts was given the same verbal consultation that Officer Carbia had received. The only thing Jay Butts could have done differently would have perhaps left a posted notice the day of or given a notice to the roommate with generic information. Jay Butts received consultation pertaining to that. He did not receive disciplinary action because he never made any contact with the owner. The officer that made contact with the owner and had the first opportunity to take the dog was Officer Carbia. Q So there is a difference in the seriousness of her offense and Jay Butts' offense? A Absolutely. Q Hers was more serious? A Yes. As a result of the Notice, a grievance hearing took place on August 26, 2002, in the director's office. Wayne Mangum, who at that time was the union steward, Mr. Burris, and Petitioner were there, as well as the director, Dr. Caligiuri. During the meeting, Petitioner explained her position. At some point in the meeting, Dr. Caligiuri made a comment to the effect that 80 years ago women could not vote.4/ Petitioner found that comment to be discriminatory toward women. When asked whether Dr. Caligiuri's demeanor in that meeting was aggressive or not cordial, Mr. Mangum replied that his demeanor was "uncordial." In any event, Dr. Caligiuri's comment was offensive and inappropriate. During the August 26, 2002, meeting, Mr. Burris instructed Petitioner to discontinue striking the word "within" from the form used when giving an animal owner a time frame within which to bring in an animal to be impounded. She had not been instructed regarding that previously. Mr. Burris received a copy of a warning form dated August 28, 2002, on which Petitioner had crossed out the word "within" contrary to his instructions. He took no action at the time since he thought it might have been a "slip of the pen." He then received another warning form dated September 9, 2002, regarding a dog bite which Petitioner had again altered by crossing out the word "within." Petitioner had written on the form that the warning had been posted. Posting is a procedure officers follow when the animal owner cannot be found. The notice is posted on the door of the residence for the owner to find upon returning home. Based upon his telephone call to the dog's owner and the information on the form, Mr. Burris was of the belief that the form had not been posted, and that Petitioner's indication on the form that it had been posted was inaccurate. Mr. Burris met with Petitioner regarding this incident. Petitioner acknowledged at hearing that she spoke to the dog's owner, but was intimidated and confused when questioned by Mr. Burris about whether or not she had spoken to the owner. Petitioner contends that she did not lie to Mr. Burris, that initially the owner did not come to the door but later did come to the door. According to Petitioner, she simply neglected to cross out the word "posted" or ask the owner to sign the form. On September 18, 2002, Mr. Burris signed and provided a Notice of Proposed Disciplinary Action to Petitioner which proposed her termination from employment. The stated reasons for the proposed action were willful negligence in the performance of assigned duties or negligence which would endanger the employee, other employee, or the public; deliberate falsification and or destruction of county records; and refusal to perform assigned duties or to comply with written or verbal instruction of a higher level supervisor. The Notice referenced the August 28, 2002, warning notice with the word "within" crossed out; the September 10, 2002, warning notice with the word "within" crossed out; the written word "posted" on a warning when she had personally spoken to the dog's owner; and the meeting on August 26, 2002, which resulted in her three-day suspension. The Notice concluded: This is the same type of circumstance concerning the same written instruction after meeting with Blanca and her union rep. This time Blanca was untruthful in her statements, even after I gave her three opportunities to tell me that she had personally spoken to the dog owner. By writing "posted" on the notice which indicates the owner was not home, she falsified a county document. Blanca hand delivered the notice to the dog owner and did not impound the dog when she had the opportunity. Petitioner was terminated from her employment with Respondent effective October 2, 2002. There is no evidence in the record that Petitioner complained to anyone that she felt she was discriminated against on the basis of her gender or national origin. The only evidence presented regarding her national origin was Petitioner's brief testimony: Q Were there any other Hispanics employed at animal services during the time frame that Mr. Burris was there? A No. Do you feel that your national origin had something to do with the way Mr. Burris treated you? A Certainly just—basically I felt that I was treated differently, yeah.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 27th day of July, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 27th day of July, 2004.
The Issue The issue is whether Petitioner's applications to renew her Licenses to Possess Class II and III Wildlife for Exhibition or Public Sale should be approved.
Findings Of Fact The Commission is the state agency that has exclusive jurisdiction to regulate the possession, sale, and display of captive wildlife in Florida. Before moving to her current residence in Kissimmee, Petitioner resided in Tampa, where she possessed a bobcat kitten and a kinkajou, a small rain forest creature. In May 2012, she advised the Commission by email that she intended to move to Central Florida. She requested that the Commission provide her with copies of rules that would apply if she kept a bobcat inside her new residence. In response to that request, the Commission provided her with copies of all applicable rules. She was also told that, in order to secure the bobcat, she would have to install chain link on her windows and a secondary safety entrance to the home. These features are necessary in order to ensure public safety. On an undisclosed date, Petitioner moved to a 2,000 square-foot home located at 8520 Sioux Trail, Kissimmee, where she established a captive wildlife facility. Later, she acquired two more bobcats, which she intended to use for presentations and educational shows in the Central Florida area. For that purpose, she formed Florida's C.L.A.W.S., an unincorporated organization that exhibits and sells wildlife at local events in Central Florida to educate the public about, and raise money for, the care of her animals. Her full-time vocation, however, is a tattoo artist, which requires that she work around 60 hours per week, often late into the night and during the early morning hours. "Captive wildlife" species are listed in Florida Administrative Code Rule 68A-6.002. The rule establishes three classes of captive wildlife: I, II, and III. Each requires a license issued by the Commission. Until it expired on March 5, 2015, Petitioner possessed a Class II license, issued on March 14, 2014, which allowed the exhibition and sale of Felidae (the family of cats). Until it expired on June 10, 2015, she also possessed a Class III license, first issued on June 3, 2011, which allowed the exhibition and sale of mammals, birds, reptiles, amphibians, and conditional species. By holding these licenses, she was responsible for the care of the captive wildlife at her facility. The instant case involves her applications to renew the two licenses. After her licenses expired and the two applications for renewal denied, on July 1, 2015, a Notice to Relinquish Wildlife was issued by the Commission. In response to that order, Petitioner moved her Class II and III captive wildlife to a friend's facility, where they remain pending the outcome of this proceeding. Currently, she keeps only dogs and cats at her home. When the Kissimmee facility was fully operational, Petitioner had more than 30 animals/reptiles, including foxes, bobcats, skunks, snakes (non-venomous), tegu lizards, and a kinkajou. All of these species are listed as captive wildlife in rule 68A-6.002. On February 25, 2014, an announced, routine inspection of Petitioner's facility was conducted by Captive Wildlife Investigator Damon Saunders. This type of inspection is required when a new facility is established. During the inspection, Investigator Saunders observed seven rule infractions, which are noted in his report and depicted in photographs taken that day. See Resp. Ex. C and D. Overall, he found the condition of the facility to be "substandard." The documented violations on February 25, 2014, are as follows: There was no safety entrance for the bobcat enclosure, as required by rule 68A- 6.003(1)(a); There was rusting that affected the structural integrity of the bobcat enclosure, in violation of rule 68A-6.0023(5)(e); Weld spots on the east side of the bobcat enclosure were coming undone due to corrosion in violation of rule 68A-6.0023(2)(b), which requires caging or enclosures to be sufficiently strong to prevent escape and to protect the caged animal from injury; The kinkajou was housed in a bird cage, in violation of rule 68A-6.004, which requires a cage size of six feet by eight feet, and six feet high; There was no record for the source of acquisition for her reticulated python, which is required by rule 68A-6.0023(6); A microchip passive integrated transponder (PIT) tag was not detected for the reticulated python; a PIT tag is required by rule 68-5.001(3)(e)2.; and The fox and various reptile enclosures had dirty water bowls, in violation of rule 68A-6.0023(5)(b), which requires water containers being used to be clean. At the end of the inspection, Investigator Saunders met with Petitioner and identified each infraction he observed; he explained how each should be corrected; and he told her that she had 30 days, or until March 27, 2014, to correct the violations. She was also given a copy of the Commission's captive wildlife rules, with the violated rules highlighted. Although Investigator Saunders observed several other violations that day, they were not noted on his inspection report because he knew the facility had just been established, and he wished to give Petitioner additional time in which to get her facility operating in accordance with all rules. On July 28, 2014, or approximately five months later, an unannounced, follow-up inspection was conducted by Captive Wildlife Investigators Steven McDaniel and Rick Brown. The purpose of the inspection was to determine if the violations observed on February 25, 2014, had been corrected. The inspection was purposely delayed until July, rather than 30 days after the first inspection, so that Petitioner would have adequate time to take corrective action. Petitioner complained that the inspection occurred when she just awoke around 10:20 a.m., after a long night at work and before she had time to clean the facility. For obvious reasons, however, the Commission does not give licensees advance warning of follow-up inspections. During the inspection, the investigators noted that Petitioner had six foxes, three bobcats, two skunks, a kinkajou, a reticulated python, and several nonvenomous snakes. With the exception of the safety entrance for the exterior bobcat cage, Petitioner acknowledged that none of the violations observed during the first inspection had been corrected. The investigators found some wildlife living in outdoor cages or other enclosures, while others, including two skunks, a bobcat, a kinkajou, a reticulated python, and several reptiles, were living in her home. Investigator McDaniel testified that "it looked as if very little had been done" and characterized the condition of the wildlife as "mediocre to poor." Investigator Brown noted that there was an "extreme" lack of care of the wildlife, the violations were "serious," and they were having an adverse impact on the health and well-being of the wildlife. The investigators observed a number of rule violations, which are listed in their Inspection Report and depicted in photographs taken that day. See Resp. Ex. E and F. The rule violations are summarized below: The outer safety door for the cage containing two bobcats was unsecured, in violation of rule 68A-6.0023(2)(b), which requires the cage to be sufficiently strong to prevent escape; There was standing, stagnant water in the bobcat shelter, in violation of rule 68A-6.0023(1), which requires wildlife to be maintained in sanitary conditions; Both the bobcats' water container and water in the container were dirty, in violation of rule 68A-6.0023(5)(b), which requires water containers being used to be clean and requires clean drinking water to be provided daily; There were large amounts of old and fresh fecal matter throughout the bobcat cage, in violation of rule 68A-6.0023(5)(d), which requires fecal waste to be removed daily from inside, under, and around cages and stored or disposed of in a manner which prevents noxious odors or pests; and carrion flies were evident on the fecal matter; The bobcat cage floor had not been raked every three days, as required by rule 68A- 6.0023(5)(e); The rust in the bobcat cage that was observed during the February 25 inspection was still evident and excessive, in violation of rule 68A-6.0023(5)(e), which requires any surface of a cage or enclosure that may come into contact with animals to be free of excessive rust that prevents the required cleaning or that affects the structural strength; The broken welds on parts of the cage panel walls on the bobcat cage observed during the February 25 inspection had not been repaired, in violation of rule 68A-6.0023(2)(b), which requires caging or enclosures to be sufficiently strong to prevent escape and to protect the caged animal from injury; The cage for the two foxes measured ten feet by five feet, two inches by six feet, and did not meet the caging requirements of eight feet by six feet by six feet specified in rule 68A-6.004(4)(h)2.a.; A fox was found in a small kennel cage inside Petitioner's home under veterinary care for an injured foot in violation of rule 68A-6.0041(2), which requires animals being temporarily housed in smaller cages for veterinary care to be in cages no smaller than that required for the caged animal to stand up, lie down, and turn around without touching the sides of the enclosure or another animal; Digging was observed between outdoor fox cages exposing the bottom apron in violation of rule 68A-6.003(1)(b)1., which requires the bottom apron to be buried to prevent injury to the captive wildlife in the enclosure; Two snakes in the bull/gopher snake family were observed in their own cages without water and a ball python was observed in a glass cage without water in violation of rule 68A-6.0023(5)(b), which requires that clean drinking water be provided daily; The ball python was in a glass cage with shed skin and old fecal matter; there were two Machlot's pythons in a large cage that was littered with excessive old fecal matter and old shed skins; a boa constrictor cage had old fecal matter in it; the reticulated python cage had old fecal matter and shed skins throughout the cage; the tegu lizard cage had old feces; all in violation of rule 68A-6.0023(5)(d), which requires fecal material to be removed daily, and rule 68A-6.0023(5)(e), which requires hard floors within cages or enclosures to be cleaned a minimum of once weekly; The kinkajou was still housed in the bird cage, which was too small; there was no water or food present; the floor of the cage was covered in old fecal matter; and Petitioner admitted that the cage had not been cleaned in four days. These conditions violated rule 68A-6.0023(5)(b) and (c), which requires the animals to be provided clean drinking water and food; The third bobcat was being housed inside Petitioner's house in a spare bedroom lacking a safety entrance as required by rule 68A-6.003(1)(a); the two doors leading into the room were hollow-core doors and not of sufficient strength, and there was no required wire or grating covering the windows, in violation of rule 68A- 6.003(3)(e), which requires potential escape routes to be equipped with wire or grating of not less than 11.5-gauge chain link or equivalent; Two skunks were housed in a spare bedroom that adjoined the bobcat cage room; the floor was covered in mainly old, but some new, smeared fecal matter; there were no water bowls; the bathroom window was open and only covered by the typical bug screen associated with household windows; all in violation of rule 68A-6.0023(5)(d), which requires cages and enclosures to be ventilated to prevent noxious odors, and rule 68A-6.003(3)(h), which requires the room to be constructed of materials of not less than 14-gauge wire or strength equivalent and the escape routes to be secured; Petitioner was unable to provide records of acquisition of any animals in her possession, as required by rules 68A-6.0023(6) and 68-5.001(3)(e).6.; and Petitioner's Critical Incident Disaster Plan was only partially completed, in violation of rules 68A-6.0022(7) and 68-5.001(3)(e)5. Each of these violations is substantiated by clear and convincing evidence. At the conclusion of the inspection, Petitioner was given another copy of the Commission's rules, with the violated rules highlighted; she was told how each infraction should be corrected; she was asked if she had any questions regarding the violations; and she was given another copy of the first inspection report. A new 30-day deadline was established for correcting all violations except the source of acquisition and critical incident plan, for which she was given 60 days to take corrective action. However, no follow-up inspections were made. Petitioner contends that if the follow-up inspection on July 28, 2014, was made later than 10:30 a.m., she would have had time to feed and water the wildlife and clean their cages. However, the amount and appearance of the feces, the presence of snake skins, and the appearance of dirty water bowls in the enclosures indicates that the enclosures had not been cleaned for an extended period of time. During the first inspection, Petitioner identified the source of acquisition of all wildlife, except the reticulated python. After the first inspection, Petitioner acquired a boa constrictor, two Macklot's pythons, four tegus, two carpet pythons, one gopher snake, one bull snake, four sulcatta tortoises, one blue tongue skink (lizard), and one Central American wood turtle. However, she was unable to produce acquisition paperwork for any captive wildlife. She blamed this on the fact that many of her wildlife were donated to her or purchased at exhibitions, apparently meaning that the names of the donors or sellers were unknown. Acquisition information is essential, as the Commission uses these records to combat the illegal trafficking of wildlife. Petitioner blamed many of the facility violations on a lack of financial resources and personal issues in her life that arose in 2014, leaving her with little time or resources to comply with Commission rules. She pointed out that an injury to one of the foxes required an expenditure of almost $2,000.00 in one month alone, which drained her resources; her father was diagnosed with a terminal illness and passed away a short time later; and her fiancée required two surgeries, which prevented him from assisting her in caring for the wildlife. She also testified that she was working 60-hour weeks as a tattoo artist to support herself, which left very little time to care for the wildlife. Given these time constraints, it is surprising that she continued to acquire even more wildlife after the first inspection was made. While Petitioner maintains that the exhibition and sale of animals is intended to support her facility, it is apparent that whatever money was generated by that activity is insufficient to adequately care for the wildlife. In sum, Petitioner contends that many of the violations are unwarranted or simply technical violations of the rules, or other circumstances prevented her from taking corrective action and maintaining the facility in accordance with Commission rules. The evidence belies this contention. Although the Commission presented evidence of alleged violations of United States Department of Agriculture rules observed during an inspection by that agency on June 30, 2015, for which warnings were issued, these violations were not cited in the Notice of Denial as a basis for denying the applications and have been disregarded by the undersigned. See, e.g., Chrysler v. Dep't of Prof'l Reg., 627 So. 2d 31, 34 (Fla. DCA 1993)(matters not charged in an administrative action cannot be considered as violations). Likewise, Petitioner's contention that the Commission failed to act on her applications within 90 days, raised for the first time during her testimony, has been disregarded as being untimely. See also § 120.60(1), Fla. Stat. Although each infraction noted during the second inspection constituted a violation of state law, a criminal citation for only three violations was issued and reported to the local State Attorney's Office. These included a failure to correct the violations noted during the February inspection; maintaining captive wildlife in unsanitary conditions; and improper caging for Class II wildlife. However, the State Attorney decided to prosecute Petitioner for all violations. On July 28, 2014, criminal charges were filed in County Court. On advice of her counsel, on April 24, 2015, Petitioner pled guilty to all charges and was adjudicated guilty of maintaining captive wildlife in unsanitary conditions in violation of section 379.401(7). Besides having a fine imposed, Petitioner was placed on probation for six months and required to perform community service. Under the terms of her probation, she was ineligible to possess Class I or II wildlife for the duration of her six-month probation period. Just before her criminal case was concluded, Petitioner filed applications to renew her licenses. A major impediment to approving them is a Commission rule that requires denial of an application if the applicant has been adjudicated guilty of a violation of any provision of chapter 379. See Fla. Admin. Code R. 68-1.010(2). The same rule provides, however, that denial is not automatic, as the Commission is required to consider nine factors when determining whether to approve or deny an application. See Fla. Admin. Code R. 68-1.010(5)(a)- (i). After considering each relevant factor, the Commission issued its Notice of Denial on June 11, 2015. Petitioner then requested a hearing. Petitioner unquestionably cares for wildlife and would never intentionally harm them through inattention or lack of care. However, due to personal and financial issues, and full- time employment outside her home that consumes much of her time, she is unable to comply with Commission rules for operating a captive wildlife facility. There is clear and convincing evidence to support the Commission's denial of the applications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife and Conservation Commission enter a final order denying Petitioner's applications for Class II and III Wildlife licenses. DONE AND ENTERED this 26th day of February, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 26th day of February, 2016. COPIES FURNISHED: Eugene Nichols "Nick" Wiley, II, Executive Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Rachel Arnott 8520 Sioux Trail Kissimmee, Florida 34747-1531 (eServed) Ryan Smith Osborne, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. "Bud" Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue The issue for determination is whether Respondent, a licensed veterinarian, committed a violation of Section 474.214(1), Florida Statutes, as alleged in the Administrative Complaint, and, if so, what disciplinary sanctions should be imposed against his license.
Findings Of Fact Respondent is William R. Dudley, a licensed veterinarian at all times pertinent to these proceedings, holding license number VM 0000626. Respondent's last known address is 613 Westwood Drive, Milton, Florida 32570. Petitioner is the state agency charged with regulating the practice of veterinary medicine pursuant to Section 20.165, Florida Statutes; Section 455, Florida Statutes; and Section 474, Florida Statutes. On or about January 5, 1998, Respondent performed declaw surgery on Aladdin, a Chocolate Point Siamese cat owned by Kim Hawkins. The surgery was performed on a fold-down table attached to the back of Respondent’s pickup truck. The truck was outfitted as an agricultural veterinary vehicle. Respondent administered a mixture of Ketaset and Acepromazine to the cat prior to surgery. No other medication was administered to the animal for purpose of either analgesia or anesthesia. The Ketaset and Acepromazine administered to the cat are both controlled substances. These drugs are not anesthetics and served only to immobilize the cat during the operation. After the surgery, Kim Hawkins took the cat home. The animal’s paws continued to bleed. On January 7, 1998, the cat was examined by another veterinarian, Dr. Yehia Ibrahim, who wanted to know “who had butchered the cat.” In a declaw procedure, the animal is first anesthetized and the cat’s claw and the third phalanx of each toe are removed. Each toe has three phalanxes and a claw. While the procedure performed by Respondent involved only the animal’s front paws, Respondent did not remove all of the third phalanx on several of the animal’s toes, and removed the third and part or all of the second phalanx on the animal’s other toes. Respondent removed part of the digital pad on most, if not all, of the toes on both of the cat’s front claws. As established by the evidence at final hearing, Respondent performed the declaw surgery in a negligent manner. Respondent did not make or retain any medical record of the declaw procedure performed on the Hawkins’ cat. Respondent did not have a premise permit for his house or a mobile clinic. Respondent also did not have a record which related to the storing, labeling, or administering of the controlled substances that he utilized during the declaw procedure on the Hawkins’ cat.
Recommendation Based on the foregoing and in accordance with Petitioner's penalty guidelines, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the violations alleged in Counts II, III, IV, and V of the Administrative Complaint; imposing an administrative fine of $1000; and placing Respondent on probation for one year upon reasonable terms and conditions to be established by the Board of Veterinary Medicine. DONE AND ENTERED this 24th day of March, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 24th day of March, 1999. COPIES FURNISHED: Paul F. Kirsch, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William R. Dudley, Jr., D.V.M. 613 Westwood Drive Milton, Florida 32570 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Currie, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in the case is whether the allegations of the Administrative Complaint are true, and if so, what penalty should be imposed.
Findings Of Fact At all time material to this case, the Respondent was licensed as a veterinarian in the State of Florida, license no. VM0004187. The Respondent worked as a veterinarian at Animal Hospital Hyde Park, a combination animal hospital and kennel facility. The facility encompassed approximately 5,000 square feet, and was located at 800 West Kennedy Street, Tampa, Florida. During the Respondent's tenure at Animal Hospital Hyde Park, another veterinarian, Marianne Keim, owned the facility. Ms. Keim operated a boarding business, a grooming center, and a veterinary clinic, all located within Animal Hospital Hyde Park. There is no evidence that the Respondent had an ownership interest in Animal Hospital Hyde Park. The Petitioner presented testimony suggesting that the Respondent was the "responsible veterinarian" for Animal Hospital Hyde Park, and as such was responsible for the actions of all facility employees. The testimony is not supported by the greater weight of the evidence and is rejected. There is no evidence that the Respondent was responsible for the operation of the facility. There is no evidence that the Respondent presented himself to the public or to facility staff as a veterinarian generally responsible for boarded animals. The evidence establishes that the Respondent provided veterinary services by appointment only for animals brought to the facility. The Respondent also provided veterinary services by appointment on a "house call" basis. There is no evidence that the Respondent generally provided routine medical services to animals being boarded. Boarded animals received medical treatment from the Respondent only when an animal owner, after being advised by kennel staff of a medical problem, gave approval for the Respondent to treat the identified problem. After receipt of the authorization, kennel staff would take the ill animal to the Respondent's examination room. After receiving the medical attention, the animal would be returned by kennel staff to the boarding area. On February 9, 1996, the Respondent examined two dogs, Casey and Chloe, owned by Mr. and Mrs. Robert Yuill. The Yuills had moved to the Tampa area in January of 1996. The apartment facility where the Yuills lived did not permit large animals inside the housing units. At the time the Respondent met Mr. Yuill, the dogs had been living in the back of Mr. Yuill's Ford truck for three to four weeks. The Respondent examined the animals on February 9, 1996. Both dogs were overweight. At the February 9 examination, Chloe had an ear infection. The Respondent offered to medically treat the infection. Mr. Yuill declined, noting that he had appropriate medication remaining from the animal's former veterinarian. At the February 9 examination, Casey had a foot problem. The Respondent suggested Epsom salt soaks, and subsequently treated the foot with an antibiotic. There is no evidence that the February 9 examination and medical treatment provided at that time, or as follow-up care for problems identified during that examination, was inappropriate or failed to meet acceptable standards of care. From March 23, 1996, to August 12, 1996, the Yuill dogs were boarded at Hyde Park Animal Hospital. Upon admission to the kennel, the dogs remained overweight. The Yuills advised the kennel staff that the dogs were to receive food specifically designed to promote weight loss. The Yuills provided the food to the kennel. In April of 1996, the Respondent performed a successful spay surgery on Chloe, complicated only by the dog's obesity. There is no evidence that the spay surgery or any related follow- up was inappropriate or failed to meet acceptable standards of care. The Yuills took the dogs from the kennel for the Memorial Day weekend. The Yuills testified that the animals were dirty, ungroomed, appeared lethargic, and were infested with fleas. Nonetheless, they returned the animals to the facility at the close of the weekend. The Yuills testified that they advised Ms. Keim of the situation when the animals were returned to the kennel at the end of the Memorial Day weekend. Ms. Keim denies that the dogs were not in acceptable condition upon their release for the weekend, and denies being advised of any problem. From Memorial Day weekend until August 10, 1996, the Yuill dogs remained in the kennel facility, unvisited by the Yuills. The Yuills testified that they refrained from visiting the animals after Ms. Keim advised them that family visits were resulting in psychological and behavioral problems for the animals. Ms. Keim denies that she ever advised the Yuills to refrain from visiting the animals. On August 10, 1996, the Yuills came to remove the dogs after being advised that Ms. Keim was closing the facility. Prior to releasing the animals, Marianne Keim weighed Chloe at 54.5 pounds. Casey was too heavy for Ms. Keim to lift and was not weighed. According to Ms. Keim's testimony, the Yuills owed a balance of approximately $1,300 at the time the dogs were removed from the facility. Ms. Keim asserted at the hearing that the bill remains unpaid. The Yuills dispute her recollection. Shortly after retrieving the dogs from the Animal Hospital Hyde Park, the Yuills contacted the Board of Veterinary Medicine and was advised to take the animals for examination by Dr. Jerry Alan Greene at the Academy Animal Hospital. Dr. Greene examined the animals on August 13, 1996. Dr. Greene photographed the dogs and performed a number of tests at the expense of the Petitioner. According to the tests, there was an indication that the dogs had hookworms, but there was no other indication of disease or other illness. Blood test results provided no indication of illness. Hookworms can occur when an animal comes into contact with fecal material from another animal. There is no evidence that hookworms resulted from any negligence or poor medical practice by the Respondent. Dr. Greene stated that Ms. Yuill had remarked on Chloe's thirst and possible dehydration. There is no evidence that the dog was dehydrated. Dr. Greene testified that Chloe had otitis externa, an ear infection. According to Dr. Greene's testimony, Chloe's weight upon examination was 46 pounds. Dr. Greene opined that the dog was grossly underweight. The Respondent presented the testimony of Dr. Richard Goldston. The testimony of Dr. Goldston is credited. Based on his review of the photographs, including bone structure and coat of the animal, Dr. Goldston opined that the dog, though perhaps thin, was of a healthy weight. The dog's coat appeared to be healthy. No bones were observed to protrude from the dog's frame. Chloe also had an ailment identified as an "acral lick granuloma," on her lower leg. The condition, a swollen reddish lump generally surrounded by saliva-stained skin, results from excessive licking of an area. There was credible testimony that the licking behavior can initially result from boredom. Although an acral lick granuloma can be visually identified upon examination, there is no debilitation such as limping that would draw attention to the animal. The condition does not result in pain or discomfort to the animal, other than itching. The itching results in further licking, which aggravates the condition. There is no evidence that the Respondent was aware of the granuloma. There is no evidence that boarding staff advised him or sought approval from the Yuills to have the condition treated. According to Dr. Greene's testimony, Casey remained overweight and had a slight foot problem. He advised the Yuills to treat the problem area with Epsom salt soaks. Several boarding kennel employees testified at the hearing. All were very familiar with Casey and Chloe, noting that their familiarity was related to the dogs long-term boarding status. According to the boarding employees, the dogs were healthy and energetic while at the kennel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final Order DISMISSING the Administrative Complaint filed in this case. DONE AND ENTERED this 29th day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 29th day of March, 1999. COPIES FURNISHED: Paul F. Kirsch, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles E. Lykes, Jr., Esquire 501 South Fort Harrison Avenue, Suite 101 Clearwater, Florida 33756 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Currie, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue In treating Ms. Cottrell's English bulldog on May 15, 1987: Whether Respondent knowingly concealed information relevant to violations of Chapter 474, Florida Statutes; Whether Respondent knowingly prepared a false report or record; Whether Respondent performed or prescribed unnecessary treatment; Whether Respondent was negligent or guilty of misconduct in this treatment; Whether Respondent falsified records pertaining to this treatment; and Whether Respondent was incompetent or unprofessional in his dealings with Ms. Cottrell.
Findings Of Fact At all times relevant hereto Phillip F. Habib, Respondent, was licensed as a doctor of veterinary medicine as alleged. On May 15, 1987, Ms. Sandra Cottrell came home from work at approximately 5:00 p.m. and observed her three-year-old English bulldog "Jake" to be lethargic, which was unusual. Being familiar with English bulldogs and aware that their state of health can change rapidly, Ms. Cottrell called her veterinarian, Dr. LaDue, who advised her to take the dog's temperature, keep a close watch on the dog and call back with temperature results and any changes in the dog. At this time Ms. Cottrell was living at her mother's home and did not have a thermometer with which to take Jake's temperature. She called Dr. LaDue back to report she was unable to take Jake's temperature but he seemed to be in no present distress. Shortly thereafter Ms. Cottrell decided to take Jake for a walk. By the time they reached the end of the driveway she realized that Jake was acting abnormally and she became concerned. She aborted the walk and decided to take Jake to her veterinarian. By this time Jake had begun to have difficulty breathing. Ms. Cottrell then decided that Jake's condition required emergency intervention and had her sister-in-law look in the telephone book for the nearest animal clinic. That clinic was Hope 'n Happiness Animal Clinic in Clearwater, Respondent's place of business. Ms. Cottrell, accompanied by her sister-in- law, drove Jake to this clinic. Both Hope Habib, wife of Respondent, and Respondent testified that Ms. Cottrell told them upon her arrival that she had been playing frisbee with Jake when he became ill. The only activity of Jake that Ms. Cottrell testified to was attempting to take Jake for a walk. Ms. Cottrell was not called as a rebuttal witness (although she was still present) to confirm or deny the frisbee testimony. Although Respondent testified he didn't know what a frisbee was until he later asked his six-year-old child, the Habibs' testimony is not deemed credible. If, in fact, Respondent was told that Jake had been chasing a frisbee when he became ill this presented a conclusive reason for suspecting Jake was suffering from hyperthermia. Upon arrival at the clinic Jake was carried into the reception area and Hope Habib showed them into an examination room. During this time Jake was wheezing and having difficulty breathing. Respondent promptly started examining Jake with Ms. Cottrell present. English bulldogs are very susceptible to heat prostration or hyperthermia. Up to 50 percent of English bulldogs who get hyperthermia die. This phenomenon is widely known among English bulldog owners and veterinarians. Temperatures above 103 degree F. for English bulldogs need to be reduced quickly. At no time while Jake was being examined and treated by Respondent did Ms. Cottrell see the Respondent take Jake's temperature. Nevertheless, Respondent entered temperature of 103.0 degrees on the medical record (Exhibit 5). He also recorded Jake's weight at 80.0 pounds. Jake's normal weight is 67- 68 pounds. At no time did Ms. Cottrell observe Respondent weigh Jake. When first interviewed by Petitioner's investigator Respondent admitted that he had estimated the dog's weight. Shortly after commencing his examination of Jake, Respondent advised Ms. Cottrell that Jake was having a heart attack and that she had killed her dog by letting him get too fat. Subsequently he diagnosed Jake as having a diaphragmatic hernia which required immediate surgery. X-ray equipment needed to diagnose such a hernia was not available at Hope 'n Happiness Clinic on May 15, 1987. Respondent referred Ms. Cottrell to an emergency animal clinic in Clearwater several blocks distant for surgery. Respondent also called this clinic to alert them of the referral. While treating Jake, Respondent administered some 750 mg soludeltacortef, which is a recommended treatment for animals suffering heat prostration (Exhibit 6). This drug serves to reduce the effects of shock to the animal and it is recommended to be given IV (Exhibit 6). Respondent testified, and his medical record indicate, that soludeltacortef was administered intravenously. Ms. Cottrell testified that Respondent was unable to locate a vein for an IV injection and that several "shots" were given Jake in the hip muscle. In his notes, apparently written later that evening (Exhibit 5), Respondent lists possible diagnoses of: shock, "lung damage or diaphragmatic hernia, heart problem and maybe other diagnosis." He does not include heat prostration as a possible diagnosis. To demonstrate the diaphragmatic hernia Respondent pressed on Jake's abdomen which caused the animal to regurgitate. X-rays subsequently taken in Tampa did not confirm a diaphragmatic hernia. The existence of a diaphragmatic hernia cannot be determined by palpitating the abdomen. During the treatment of Jake by Respondent attempts to administer oxygen were made by placing a face mask over Jake's nose. This was unsuccessful and further agitated the animal. This effort was discarded and Ms. Cottrell was referred to the emergency clinic. Respondent and his wife's testimony that the oxygen given Jake revived him to the extent that he could stand on the floor without assistance and could have walked out of the Respondent's clinic is not credible under the circumstances. During the 30-45 minutes Jake that was being treated by Respondent, Ms. Cottrell was very upset and crying due to her concern for her dog's health. However, she remained in the examining room the entire period but for a few seconds when she went to the lobby to get her sister-in-law to come to the examining room. Hope Habib testified that Ms. Cottrell was in and out of the examining room frequently to make telephone calls while Jake was being treated. Considering the circumstances and the potential bias of the witness the testimony of Ms. Cottrell is deemed more credible. When Ms. Cottrell asked Respondent how long Jake would live she was told anywhere from 30 minutes to 5 hours or more. Upon leaving Respondent's clinic Ms. Cottrell decided to take Jake to Tampa to the clinic of her regular veterinarian. This was a trip of 30-35 minutes as compared to the 5-10 minute ride to the emergency clinic to which she had been referred by Respondent. The weather on May 15, 1987 was normal for that time of year with a high of 83 degrees F. and a low of 71 degrees F. The temperature recorded by the Department of Commerce at the St. Petersburg-Clearwater airport at 5:50 p.m. and 6:51 p.m. was 74 degrees F. (Exhibit 10). Although Ms. Cottrell's car was not air-conditioned, she had the windows down during the drive from Clearwater to Tampa and Jake was in the front seat on the passenger's side during this trip. At the time Jake departed Respondent's clinic, Respondent believed that Jake was being taken to the emergency animal clinic in Clearwater. When he called this clinic to see if Jake had arrived and learned he had not, he then called Ms. Cottrell's home phone where he learned that Jake had been taken to the Tampa clinic. Respondent then called the Tampa clinic and advised the doctor there treating Jake that Respondent had given Jake soludeltacortef and to inquire about the dog. The medical records pertaining to the treatment given Jake by Respondent (Exhibit 5) were prepared after Jake arrived at the Tampa clinic. Respondent's testimony that these notes were prepared that evening is otherwise unrebutted. Upon arrival at the Tampa clinic Jake's temperature was 107 degrees F. and emergency treatment for hyperthermia was begun. The animal was immediately hosed down in an attempt to reduce his temperature. Temperature readings were taken frequently during this period until Jake's temperature was reduced to 103 degrees F. and at a wider spaced interval after that temperature was reached. No evidence was presented regarding the possibility or likelihood of Jake's temperature rising from 103 degrees F. while at Respondent's clinic to 107 degrees F. some 30-45 minutes later when he arrived at the Tampa clinic. The conditions under which this 35-40 minute ride was made was in a non air conditioned but open car with the outside temperature of 74 degrees F. The dog was closely monitored at the Tampa Bay Animal Center after being taken there Friday evening, May 15, 1987. Ms. Cottrell visited the center to see Jake on Saturday, May 16, 1987 when the dog appeared to be semicomatose; and Jake died Saturday evening. Respondent's method of writing medical records in the third person led some witnesses to conclude that these records had been prepared after charges of malpractice were made. Respondent's testimony that he always prepared medical records after the close of the clinic was unrebutted as was the testimony of other witnesses who had reviewed many of Respondent's records that Respondent writes all of his medical records in the third person. After learning of the complaint filed in this case, Respondent telephoned Ellen Trapp, D.V.M., the veterinarian who treated Jake at Dr. LeDue's Tampa clinic, and Dr. LeDue; and indicated that they, as veterinarians needed to stick together. When Dr. LeDue responded that Respondent had failed to properly diagnose Jake's condition by failing to take his temperature, Respondent hung up on him. Respondent also stated to Dr. Trapp that he would not be held responsible for his actions if something happened at the end of this court hearing. To Petitioner's investigator Respondent subsequently denied ever contacting any veterinarian regarding this case.
Recommendation It is recommended that the license of Phillip F. Habib as a doctor of veterinary medicine be revoked. It is further recommended, that the revocation be stayed for a period of 3 years probation under such terms and conditions as the Board of Veterinary Medicine deems appropriate, and that, at the expiration of the three years probationary period, unless sooner vacated, the revocation be set aside and Respondent restored to good standing. ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida. K. N. AYERS 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 7th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4691 Treatment accorded Petitioner's proposed findings: Included in H.O. #1. Included in H.O. #2, 3, 4. Included in H.O. #4, 5. Included in H.O. #7. Included in H.O. #10. Included in H.O. #9. Included in H.O. #9. Included in H.O. #13. Included in H.O. #11, 12. Included in H.O. #9, 14. Accepted. Accepted in H.O. #10, 15. Accepted. Accepted in H.O. #17. Included in H.O. #15, 16, 18. Included in H.O. #9. Accepted. However, this statement was made long after Jake's death was determined to have resulted from hyperthermia. 18-19. Included in H.O. #11. Accepted. Included in H.O. #22. 22-23. Accepted as conclusions of law. Included in H.O. #8. Accepted Accepted insofar as included in H.O. #12. Accepted only insofar as included in H.O. #13. Included in H.O. #13. Rejected as irrelevant. 30-32. Rejected as irrelevant. Accepted. However, Respondent testified that only a date was added to the record. Rejected as unsupported by credible evidence. Accepted. Treatment accorded Respondent's proposed findings. Included in H.O. #2, 3, 4. Included in H.O. #5. Included in H.O. #8, 14. Accepted as testimony of witness. Accepted insofar as included in H.O. #5, 15. Included in H.O. #14. Included in H.O. #3, 9. 8-9. Rejected as irrelevant. Included in H.O. #16. Accepted. Included in H.O. #3, 9. Irrelevant. Irrelevant. Dr. LaDue was not involved in treatment of Jake. Accepted Included in H.O. #15. Accepted. Rejected as irrelevant when decision made. Included in H.O. #3 and 6. Included in H.O. #10. Accepted insofar as no one could explain the missing X-ray. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Accepted. Rejected as unsupported by Douglas' testimony. First sentence accepted. Last sentence rejected. Rejected as irrelevant. Rejected as irrelevant. Rejected as repetitious (see 12). Accepted but irrelevant. Accepted but irrelevant. Rejected. Record shows dog's weight as 80.0 pounds. Irrelevant. Irrelevant. Irrelevant. Dr. Douglas never saw the dog. Irrelevant because of duplicity. Accepted. Accepted but irrelevant. Accepted but irrelevant. Rejected except to the extent that almost anything is possible. Irrelevant. Accepted. Accepted. Accepted as testimony of Mandelker. Irrelevant. Accepted in part. Manner in which Habib prepared records only part of basis for Green's opinion. Irrelevant. Rejected. Accepted but irrelevant here. Irrelevant. Irrelevant. Rejected. No evidence submitted that Jake was ever hypothermic on May 15, 1987. Term hypothermia misused or reporter error. Accepted. Irrelevant. Rejected as unsupported by Cottrell's testimony. Accepted-insofar as in H.O. #13. Rejected. Accepted insofar as included in H.O. #14. Rejected. See H.O. #13. Irrelevant. Irrelevant. Accepted. Accepted. See H.O. #21. Included in H.O. #21. Accepted. Rejected. Habib's testimony in this regard differs from that of his wife. However, the accuracy of the testimony is not material. Rejected. Rejected. Rejected. See H.O. #13. 71. See H.O. #15. Irrelevant. Included in H.O. #17. Included in H.O. #17. 75. See H.O. #21. Accepted. Accepted. Trapp didn't see the dog until he was presented that evening. Irrelevant. Accepted. Accepted. Accepted insofar as included in H.O. #12. Accepted but irrelevant. Irrelevant. Included in H.O. #17. Repetitious. Irrelevant. Irrelevant. Cottrell was not working at the LaDue clinic in May 1987 and was getting no discount at that time. Irrelevant. Accepted. Accepted as Goldston's opinion. Accepted as Goldston's opinion. Rejected. COPIES FURNISHED: Laura P. Gaffney, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Louis Kwall, Esquire 138 North Ft. Harrison Avenue Clearwater, Florida 34615 Kenneth Easley Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Linda Biedermann Executive Director Board of Veterinary Medicine Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 =================================================================
