The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as amended, by committing unlawful employment practices against Petitioner.
Findings Of Fact Petitioner is an African-American male who was born on April 25, 1943. He received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a Doctorate in wildlife and fisheries science in 1991 from Texas A&M University. According to his job applications, Petitioner worked for the U.S. Department of Commerce, National Marine Fisheries Service, from June 1965 until April 1994. He worked in various positions, including "survey statistician," "operations research analyst," "fishery research biologist as chief of turtle headstart," "fishery technician/biologist," and "Equal Employment Opportunity Counselor." From July 28, 1995, until July 6, 1998, Petitioner was employed as a child support enforcement case analyst with the Florida Department of Revenue. Petitioner is currently employed at Daytona Beach Community College in an unknown position. Petitioner filed his Charge of Discrimination with FCHR on September 2, 1997, indicating that the most recent or continuing act of alleged race, age, or sex discrimination occurred on August 11, 1997. Alleged acts of discrimination that occurred more than 365 days prior to the filing of the Charge of Discrimination cannot be considered here. See Section 760.11(1), Florida Statutes. Petitioner received letters from Respondent prior to September 2, 1996, informing him that he would not be hired for the following positions: (a) position No. 543 (Job Opportunity Announcement (JOA) #005-6) position filled by Laura Richards with hire date effective March 1, 1996, Petitioner's rejection letter dated April 5, 1996; (b) position Nos. 213 and 956, positions filled by Robert Guerra and Jacklyn Gilmore, respectively, both with effective hire dates of March 29, 1996, Petitioner's rejection letter dated April 3, 1996; and (c) position No. 1099, position filled by Lorraine Heisler with hire date effective May 10, 1996, Petitioner's rejection letter dated April 8, 1996. Therefore, employment decisions regarding these positions are not at issue here. Petitioner applied for and was rejected for the following position numbers after he filed his Charge of Discrimination with FCHR: (a) position Nos. 1161 and 1162, positions filled, Petitioner's rejection letter dated February 16, 1999; (b) position No. 1160, position filled, Petitioner's rejection letter dated March 15, 1999; (c) position No. 918, position filled, Petitioner's rejection letter dated June 4, 1998; (d) position No. 966, position filled, Petitioner's rejection letter dated August 27, 1998; and (e) position No. 859, Petitioner's application faxed to Respondent on June 29, 1998, Petitioner's rejection letter not in record. There is no evidence that FCHR's investigation of Petitioner's Charge of Discrimination and the resulting Determination of No Cause included the employment decisions associated with these positions. Therefore, they are not at issue here. There is no evidence that Petitioner ever applied for position No. 671. Accordingly, that position number is not at issue here. The employment positions at issue here are as follows: (a) position No. 543 (JOA #047-7, Issue Date July 16, 1997), no evidence regarding employment decision, no rejection letter in record; (b) position No. 1071, position filled by Dwight Myers with effective hire date of July 11, 1997, Petitioner's rejection letter dated June 30, 1997; (c) position No. 869, position filled by Forrest Marchinton with effective hire date of March 3, 1997, Petitioner's rejection letter dated February 13, 1997; (d) position No. 2503, position filled by Gil McRae with hire date of March 24, 1997, Petitioner's rejection letter not dated; and (e) position No. 878, Petitioner submitted a resume but no application for this position; Petitioner's alleged rejection letter dated August 11, 1997, is not in record. When Respondent desires to fill a vacant position, it requests the Department of Management Services (DMS) to publish a Vacancy Announcement, which provides a short summary of information regarding that position. The Vacancy Announcement contains the "bare essentials" about a job and includes a brief description of the job duties, the minimum qualifications necessary for the position, and Respondent's contact person. When Respondent desires to fill a vacant position, it publishes a JOA, listing, among other things, the minimum qualifications and a description of job duties for the position. The JOA instructs applicants to submit a separate application for each position sought and to include the appropriate class title and position number. The JOA directs applicants to submit a completed State of Florida Application form to a named contact person. The State of Florida Employment Application directs applicants to "[l]ist the knowledge, skills, and abilities that [the applicant] will bring to the job." The application advises applicants to refer to the JOA or listed contact person to determine those specific requirements. For each established career service position, DMS and the applicable state agency create a Career Service Position Description (CSPD), which lists in great detail the job's duties and responsibilities. DMS and the agency maintain copies of the CSPD. When Respondent intends to fill a vacant position, it develops a Selection Criteria Form. This form sets forth the essential and preferred selection criteria based on the required knowledge, abilities, and skills for the position. Respondent uses the Selection Criteria Form to screen job applications, rank the applicants, and determine which applicants Respondent will interview. At hearing, Respondent's staff testified that it is required to interview the selected applicant. This testimony does not mean that Respondent may select an applicant before interviewing him or her. Likewise, this testimony does not mean that Respondent must select an interviewed applicant. Respondent may interview one or more applicants. After Respondent completes the interview process, it may select one of the interviewed applicants to fill the vacant position. Pursuant to DMS rules, Respondent cannot select an applicant that has not been interviewed. After Respondent selects the applicant most qualified for the vacant position, it prepares a Recruitment Report. This report identifies demographic information regarding all persons who filed an application, the name of the successful candidate, and the Respondent's reasons for determining that non-selected candidates are less qualified in comparison to the selection criteria. Position No. 543 Respondent initially advertised position No. 543, Biological Administrator I, in JOA #005-6. Petitioner applied for the position, but Laura Richards, a former FMRI employee, was better qualified for the job. Ms. Richards' effective hire date was March 1, 1996. Petitioner subsequently received Respondent's April 5, 1996, letter advising him that he was not selected for the position. All of this occurred more than 365 days prior to the date that Petitioner filed his Charge of Discrimination and is not at issue here. Ms. Richards vacated position No. 543 sometime after Respondent offered her the position. In the meantime, Petitioner had a conversation with Toby Harris, Respondent's Chief of Personnel in 1997. The conversation focused on the selection process for Respondent's established positions. In the conversation, Petitioner expressed his concern regarding his failure to be interviewed for positions when he had a Doctorate in a biological science area and selected candidates only had a Master of Science (M.S.) degree. Mr. Harris did not tell Petitioner that Respondent was targeting candidates with M.S. degrees. Instead, Mr. Harris indicated that he would ask Respondent's Division of Wildlife to interview Petitioner to determine whether he had relevant background qualifications not reflected on an application. Mr. Harris also agreed to add Petitioner's name to the mailing list for JOAs. In a letter dated August 8, 1997, James R. Schuette, one of Respondent's regional wildlife biologists, sent Petitioner two JOAs. One of the JOAs was for position No. 671, for which Petitioner never applied. The other JOA (#047-7, issued July 16, 1997) was for position No. 543. Petitioner applied for position No. 543 (JOA #047-7). Respondent offered to interview Petitioner and set up a date and time for the interview. However, Petitioner was unable to attend the interview because of transportation problems. Petitioner eventually advised Respondent that he was withdrawing his application for position No. 543. Consequently, there is no letter advising Petitioner that he was not selected for position No. 543. Moreover, the record contains no evidence as to whether Respondent ever filled position No. 543 or continued to seek applicants for that position. There is insufficient evidence on which to base a finding that Respondent discriminated against Petitioner in making an employment decision relative to position No. 543. Position No. 1071 Petitioner applied for position No. 1071, Biological Scientist III. The JOA for this position states that the minimum qualifications include the following: A bachelor's degree with a major in one of the biological sciences and two years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and one year of professional biological experience as described above; or a doctorate in one of the biological sciences. Degree(s) in wildlife management or ecology are preferred. The duties for position No. 1071 are set forth as follows in the JOA: Develops and implements management plans for Lake Placid Wildlife Environmental Area. Prepares annual work plans, budget proposals and performance reports. Monitors and documents population levels (trend) of various wildlife species. Coordinates hunting and other recreational activities. Applies various wildlife habitat practices. Petitioner possessed the minimum qualifications for position No. 1071. However, he did not possess the preferred degrees in wildlife management or ecology. He did not possess experience in wildlife management that was required for this position. Wildlife is defined as land-based mammals and birds. Petitioner's education and experience is almost entirely with marine species such as marine turtles, shrimp, or fishes. When hiring for the position of Biological Scientist III, Respondent focuses on an applicant's knowledge, skills, and abilities in performing wildlife population surveys and inventories, working hunter check stations, collecting biological samples from wildlife and upland mammals and game birds, and interacting with the public in exchanging information pertinent to wildlife. Respondent looks for an applicant with wildlife management experience and at least a bachelor's degree or higher in wildlife management and science. The CSPD for position No. 1071, states as follows in relevant part: Area Responsibilities: Duties and responsibilities include the direct involvement in the development and implementation of management programs for the KICCO Wildlife Management Area. . . . Management Planning: Duties and responsibilities include coordination of the development and periodic revision of long-range, comprehensive management plans for the KICCO Wildlife Management Area. . . . Program Development: Duties include supervision, coordination and direct involvement in projects to accomplish management of wildlife, timber, range and water resources. The job includes the following responsibilities: Collection of biological data to evaluate wildlife population numbers and fluctuation and land responses to habitat management. Accomplishment of work in Commission-planned activities such as controlled burning, roller chopping, wildlife food-plot planting, public hunt management, etc. . . . Providing wildlife related recreational opportunities including consumptive and nonconsumptive [sic] uses where appropriate. . . . Supervision of one Biological Scientist II and occasional assistance with program development on the Arbuckle and IMC Wildlife Management Areas. * * * Technical Assistance: Duties and responsibilities include providing technical guidance to private citizens or other governmental agencies in wildlife or associated land management programs. Information - Education: Duties and responsibilities include developing programs to disseminate information on wildlife management, environmental awareness, and related subjects. . . . Endanger [sic] and Exotic Species: Duties and responsibilities include identification and protection of endangered species and habitats. Documents and recommends eradication programs for exotic plant species that endanger native habitat. Petitioner was not interviewed for position No. 1071. His application did not indicate that he had the required training and experience in wildlife management. There were 41 applicants for position No. 1071, including 26 males and 15 females. Seven of the applicants were known to be minorities, including two black males. Respondent interviewed four males and one female. One of the interviewed males was known to be of Asian or Pacific Island descent. The individual that Respondent selected for position No. 1071 was Dwight Myers, a white male, age unknown. Mr. Myers' effective hire date was July 11, 1997. Mr. Myers' education and experience exceeded the minimum qualifications for the job. Mr. Myers was more qualified for the position than Petitioner because of his training and experience in wildlife management. Petitioner received a non-selection letter dated June 30, 1997, for position No. 1071. Petitioner was not hired because he lacked the preferred experience and education in wildlife management. Respondent did not discriminate against Petitioner based on his race, sex, or age in making an employment decision relative to position No. 1071. Position No. 869 Petitioner applied for position No. 869, Biological Scientist III. The JOA for this position states that the minimum qualifications include the following: A bachelor's degree with a major in one of the biological sciences and two years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and one year of professional biological experience as described above; or a doctorate in one of the biological sciences. Degree(s) in wildlife management or ecology are preferred. The duties for position No. 869 are set forth as follows in the JOA: Develops and implements management plans for the Osceola Wildlife Environmental Area. Prepares annual work plans, budget proposals and performance reports. Monitors and documents population levels (trend) of various wildlife species. Coordinates hunting and other recreational activities. Applies various wildlife habitat practices. Petitioner possessed the minimum qualifications for position No. 869. However, he did not possess the preferred degrees in wildlife management or ecology. He did not possess experience in wildlife management that was required for this position. As stated above, Petitioner's education and experience is almost entirely with marine species such as marine turtles, shrimp, or fishes, and not with land-based mammals and birds. When hiring for position No. 869, Petitioner focused on the same knowledge, skills, and abilities as when hiring for position No. 1071. Respondent was looking for an applicant with wildlife management experience and at least a bachelor's degree or higher in wildlife management and science. The CSPD for position No. 869 states as follows in relevant part: WILDLIFE MANAGEMENT AREA RESPONSIBILITIES PUBLIC HUNTING AND RECREATION Plan, implements and directs activities required for managing all public hunts on the Osceola, Bienville-PC Phosphate, Lake Butler an Cypress Creek WMAs. Hires, trains and supervises eight to ten seasonal employees; moves check stations to operational locations; collects biological data at check stations; disseminates information about wildlife to the public . . POPULATION MONITORING, MANAGEMENT AND BIOLOGICAL SAMPLING Database Management - Maintains detailed databases and up-to-date summary tables of all species monitored and all wildlife management activities on areas. Conducts sophisticated data analyses and develops Annual Management Reports. Wildlife Population Monitoring - Develops, administers and conducts surveys for monitoring and documenting population levels and status of selected game, migratory, threatened and endangered, and selected nongame [sic] species. Conducts annual population surveys for white-tailed deer, bobwhite quail and bobcats. Wildlife Population Management - Uses results of the population monitoring and analyses to develop options and recommendations to manage the population of species monitored. Actions could take the form of either regulatory or habitat management. Biological Sampling - Plans, directs and participates in the collection of biological samples for both live and hunter-harvested animals. Analyses those samples and provides reports summarizing the findings and conclusions. Specialized knowledge of collection procedures is required. Research - Coordinates wildlife research projects that may be conducted on the areas. This includes the live capture of wild animals and collection and maintenance of accurate records. . . . Analyzes large data bases to determine correlations and relationships with environmental factors and management actions. FACILITIES Maintenance and Habitat Management * * * Technical Assistance - Provides technical assistance to the US Forest Service regarding wildlife management including written comments on actions that will affect the quality of the habitat. Habitat Manipulation and Enhancement - Assists the US Forest Service with their habitat manipulation projects on Osceola WMA when time permits. Petitioner was not interviewed for position No. 869. His application did not indicate that he had any wildlife training or experience. There were 99 applicants for position No. 869, including 77 males and 22 females. Fourteen of the applicants were known to be minorities, including three black males and one black female. Respondent interviewed one white male and one male of Indian descent. The individual that Respondent selected for position No. 869 was Forrest Marchinton, a white male, age unknown. Mr. Marchinton's effective hire date was March 3, 1997. There is no specific evidence regarding Mr. Marchinton's education and experience for the job. However, there is evidence that all persons selected for wildlife biologist positions had education and experience in wildlife/environmental science. Petitioner received a non-selection letter dated February 13, 1997, for position No. 869. Petitioner lacked the preferred experience and education in wildlife management or ecology for the job. Respondent did not discriminate against Petitioner based on his race, sex, or age in making an employment decision relative to position No. 869. Position No. 878 Petitioner did not file a completed application for position No. 878, Biological Scientist IV. He only filed a resume. The application deadline for JOA #029-7 was July 7, 1997. Petitioner testified that he received a non-selection letter from Respondent on August 11, 1997. That letter is not in evidence. The JOA for position No. 878 states that the minimum qualifications include the following: A bachelor's degree with a major in one of the biological sciences and three years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and two year's of professional biological experience as described above; or a doctorate in one of the biological sciences. Prefer: Experience in geographic information systems, especially ARC/INFO, ARC VIEW, ERDAS IMAGE, and UNIX. The duties for position No. 878 are set forth as follows in the JOA: Obtains information, such as known occurrences of rare species of fish and wildlife, and ancillary data such as political boundaries, public land boundaries, soils, land cover, roads, hydrology, land use, etc., from outside sources and import/convert the data for use in the GFC geographic information system (GIS). Reviews scientific literature to obtain information on species requirements. Serves as the systems administrator for the GIS networked computer system. Provides technical assistance to Commission biologists, other agencies, and the public in the form of digital data and/or hard copy maps of GIS data layers. The CSPD for position No. 878 states as follows: This is a professional position responsible for investigating and analyzing fish and wildlife population dynamics and ecology as they relate to existing and proposed restoration and management activities in the Lake Okeechobee-Everglades-Florida Bay system. Serves on interagency committees, as assigned, to ensure that fish and wildlife issues are adequately addressed during restoration and management efforts. Independently seeks out background information and makes contacts with experts in various related fields in order to address these issues competently. Conducts field inspections, as necessary, to document habitat condition and existing fish and wildlife resources. Drafts agency comments and policy for supervisory review. Keeps supervisor up to date on progress of projects and committees. Analyzes effects of past, current, and proposed restoration and management programs on the population dynamics and ecology of freshwater fish and wildlife species. Conducts field inspections to document habitat conditions and existing fish and wildlife resources of affected communities. Designs and conducts limited scientific monitoring and research projects on aspects of Everglades habitat restoration and management alternatives, and the response of fish and wildlife communities to habitat management actions. Prepares project reports and manuscripts for scientific publication and public presentation. Reviews development proposals that would affect the restoration of the Everglades system. This includes conducting field inspections to document habitat conditions and existing fish and wildlife resources of affected communities, and drafting agency comments and policy for supervisory review. Petitioner possessed the minimum qualifications for position No. 878, as set forth in the JOA. However, there is no persuasive evidence that Petitioner had the required experience in geographic information systems to perform the job. Likewise, Petitioner clearly did not have the training and experience to fulfill the specific responsibilities and duties of the job as set forth in the CSPD as they relate to freshwater fish and wildlife. Petitioner presented no evidence as whether Respondent ever filled position No. 878 or continued to seek applications for the job after sending Petitioner a rejection letter. Even if Respondent made such a selection, Petitioner presented no evidence as the race, age, or gender of the selected individual. There is no evidence that Respondent discriminated against Petitioner in making an employment decision in regards to position No. 878. Position No. 2503 Position No. 2503, Research Scientist, was advertised by DEP for FMRI in JOA #97-102 on January 6, 1997 with an application deadline of January 30, 1997. The JOA states as follows in relevant part: MINIMUM QUALIFICATIONS: A bachelor's degree from an accredited college or university with major course of study in one of the physical or natural sciences or mathematics and five years of professional experience in one of the physical or natural sciences or mathematics; or a master's degree from an accredited college or university with major course of study in one of the physical or natural sciences or mathematics and four years of professional experience as described above; or a doctorate from an accredited college or university with a major course of study in one of the physical or natural sciences or natural sciences or mathematics and two years of professional experience as described above. SPECIAL REQUIREMENTS: Prefer working knowledge of age-structured fisheries models, familiarity with SAS, dexterity with PCs, and knowledge of life history and ecology of marine fish species. * * * BRIEF DESCRIPTION OF JOB DUTIES: Develop single and multi-species assessments of Florida's East Coast fisheries integrating research on life history, fishery monitoring, ecological and habit surveys and human behavior. Develop mathematical techniques to accomplish the above duties. Prepares reports and manuscripts for resource managers. Participates in preparation of management plans. REQUIRED ENTRY-LEVEL KNOWLEDGE, SKILL(S), & ABILITIES: Knowledge of: population assessment techniques; simulation modeling; and statistics. Ability to: process and analyze data; produce technical reports and manuscripts; develop presentations from scientific data; plan and coordinate research; design and test sampling methods; and to communicate effectively verbally and in writing. Skill in the use of a programming language, modeling software, word processing and spreadsheet software. The CSPD for position No. 2503 states as follows: Independently integrate data from directed research studies on the life history or population dynamics of marine fishes, fishery monitoring programs, ecological and habitat surveys and human behavior into single and multi-species assessments of Florida's East Coast fisheries issues. Monitor the status of selected marine fisheries and analyze how well Florida's management goals are being met. Independently design and test new mathematical techniques to accomplish the above duties. Keep current on relevant literature. Attend courses and workshops pertaining to mathematical analyses of fisheries data. Assist with the coordination and implementation of all fisheries research and monitoring programs. Assist with the design and testing of sampling techniques for fisheries programs. Prepare reports and peer-reviewed manuscripts on findings from the above analyses. Prepare stock assessments and special reports for Florida's marine resource managers. Review and evaluate reports, in the preparation of management plans for federal fisheries contiguous to Florida. Advise and assist other departmental, governmental, institutional, or private agencies in matters related to the above research. Participate in the public outreach efforts as appropriate. Assist in other Institute activities as requested. Knowledge, Skill(s), and Ability(ies): List any entry level knowledge, skill(s) or ability(ies) relating to this position including utilization of equipment. KSAs identified in this section are considered essential function(s). Knowledge of: population assessment techniques; simulation modeling; and statistics. Ability to process and analyze data; produce technical reports and manuscripts; and develop presentations from scientific data; plan and coordinate research; design and test sampling methods; and to communicate effectively verbally and in writing. Skill in the use of a programming language, modeling software, word processing and spreadsheet software. DEP's Selection Criteria Form for position No. 2503 lists the following as essential knowledge, abilities, and skills: Knowledge of: population assessment techniques; simulation modeling; and statistics: Ability to: communicate effectively in writing and verbally; process, analyze, produce technical reports and manuscripts; develop presentation from scientific data; plan and coordinate research; and design and test sampling methods. Skill in the use of: a programming language; modeling software; and word processing and spreadsheet software. DEP's Selection Criteria Form for position No. 2503 lists the following as preferred essential knowledge and skills: Knowledge of: age-structured fisheries models Skill in the use of: personal computers DEP had 51 applicants for this position. The agency interviewed six of the applicants. Five of the interviewed candidates were white. One candidate was of Asian descent. Five of the interviewed candidates were male. One was female. Two of the interviewed candidates were over the age of 40. Four of the candidates were DEP employees. Petitioner applied for this position but did not receive an invitation for an interview. DEP sent him an undated non-selection letter, which states that the position had been offered to an applicant whose overall background most closely fit the knowledge, skills, and abilities required for the position. Petitioner met the minimum qualifications set forth in the JOA for position No. 2503. Persuasive evidence indicates that he did not have the necessary training and experience to perform the specific assessment modeling techniques in order to perform the job. A white male and a white female, who were already employed by FMRI, were not interviewed for the same reason. DEP selected Gil McRae, an FMRI employee, for position No. 2503 with an effective hire date of March 24, 1997. Mr. McRae was a white male under the age of 40. He had a M.S. in Fisheries Statistics and more than enough professional experience to meet the minimum qualifications for the job. He had been an Associate Research Scientist with DEP for fifteen months. Of all the applicants, Mr. McRae had the most knowledge and the best skills and abilities to perform the duties and responsibilities of the position. There is no persuasive evidence that DEP discriminated against Petitioner in making an employment decision relative to position No. 2503. Finally, there is no persuasive evidence that Respondent's staff ever told Petitioner that he would not be considered for a job because he had a doctorate. He was never advised that an interview with Respondent equated to a job offer. Moreover, there is no persuasive evidence that Respondent or DEP changed job classifications or varied conditions of employment to discriminate against Petitioner based on his race, gender, or age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing the Petition for Relief, with prejudice. DONE AND ENTERED this 15th day of September, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 10946 Daytona Beach, Florida 32120-0946 Preston T. Robertson, Esquire Sharman H. Green, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether statements issued by the Respondent's employees constitute unpromulgated rules in violation of Section 120.54(1)(a), Florida Statutes (2007). Whether Florida Administrative Code Proposed Rule 5C- 27.001, incorporating a form is an invalid exercise of delegated legislative authority.
Findings Of Fact The following are the stipulated facts (verbatim) as agreed by the parties: In November and December 2005, Division of Animal Industry inspectors conducted inspections of various pet facilities located throughout Florida and found 11 violations regarding OCVIs. Dr. Thomas J. Holt, D.V.M., State Veterinarian and Director of Animal Industry, is signatory on a July 2006 Memorandum directed to "All Florida Veterinarians," which purports to provide "guidelines and reminders" to veterinarians regarding the issuance of OCVIs pursuant to Section 828.29, Florida Statutes. The memorandum is attached as Exhibit A. Respondent does not license or regulate veterinarians in Florida. Respondent does not maintain a database of veterinarians licensed or located in Florida. The United States Department of Agriculture (USDA) maintains a database of USDA-accredited veterinarians. The July 6, 2006, memorandum was provided by Respondent to the United States Department of Agriculture. Respondent asked for the assistance of the United States Department of Agriculture to distribute the July 6, 2006, memorandum to all USDA-accredited veterinarians located in Florida. The July 6, 2006 memorandum was challenged by Petitioners as an unpromulgated rule on April 2, 2007. The Respondent agency published a Notice of Proposed Rule in the Florida Administrative Weekly on July 6, 2007, to adopt the Official Certificate of Veterinary Inspection for Intrastate Sale of Dog or Cat (OCVI form) as a rule. On May 15, 2007, the Department conducted a "Pet Certification Rules Workshop" regarding proposed changes to the OCVI. Current form DACS-09085, Official Certificate of Veterinary Inspections for Sale of Dog or Cat, was adopted by Florida Administrative Code Rule 5C-24.003, in 1999. This rule is currently in effect. A statement of Department Employee Diane Fuchs was recorded, and such statement is attached hereto as Exhibit B. None of the Petitioners have filed complaints with Respondent concerning any of the allegations contained in Petitioners' Request for Administrative Hearing or Amended Request for Administrative Hearing. The following facts are from the materials noted above: The "Exhibit A" memorandum referenced above that was signed by the Department's State Veterinarian/Director of the Division of Animal Industry stated on its face, "This fax is being sent by the Florida Veterinary Medical Association at the request of the State Veterinarians Office." The memorandum provided, in pertinent part: TO: All Florida Veterinarians SUBJECT: OCVI for Sale of a Dog or Cat Dear Florida Veterinarian: Recent audits of Official Certificate of Veterinary Inspection's (OCVI) for Sale of a Dog or Cat by the Division of Animal Industry (DAI), Florida Department of Agriculture and Consumer Service (FDACS) shows an increasing number of violations related to the use and issuance of such certificates by veterinarians. Each violation compromises the integrity of the certificate. Previously violations were handled via personal communication and/or written correspondence with the veterinarian outlining the violation and recommended actions on how to correct them. Beginning July 1, 2006, the DAI will implement enforcement of such violations via Administrative Fine Procedure. For this reason, we are reminding veterinarians of the seriousness of this issue and are providing the following guidelines and reminders: Veterinarians are responsible for the security and proposed use of all OCVI's and must take reasonable care to prevent misuse of them. Reasonable care means that the veterinarian must retain all copies of the OCVI until he or she has inspected the animal and fully completed and signed the document(s). Incomplete, blank, or unsigned OCVI books or certificates cannot be sold to, or be in the possession of, a pet seller whether they are a breeder, broker, or retail pet store. Possession by a seller of incomplete or unsigned OCVI or of OCVI books compromises the integrity and security of the documents for which the veterinarian is responsible. The issuing veterinarian's statement certifies that the vaccines, anthelmintics, and diagnostic tests were administered by or under the direction of the issuing veterinarian. The manufacturer, type, lot #, expiration date, and date of administration must be detailed in the appropriate blocks of all OCVI. Vaccinations and/or anthelmintics administered by anyone other than the issuing veterinarian must be confirmed and documented before listing them on the OCVI. "Vaccines given by breeder" is not an acceptable entry unless the vaccinations were administered by or under the direction of the issuing veterinarian who has personal knowledge that such vaccines were actually administered to the animal identified on the OCVI. OCVI should not be issued for a dog or cat that has been found to have internal or external parasites, excluding fleas and ticks. This includes, but is not limited to, coccidian and/or ear mites. The dispensing of medicine to be administered by the owner for treatment is not sufficient for the veterinarian to issue the OCVI. Such animals must be treated and be negative before the sale can occur. The statement attributed to Diana Fuchs (noted as Exhibit B above) was: You're correct because the Veterinary Practice Act seeks supervision and it clearly defines supervision. The pet law does not state "supervision," it says "direction." It doesn't say whether it's direct supervision, it says "direction." As an employer, you can direct an employee to do something. By and through the rule making process previously described the Respondent sought to promulgate a rule (5C-27.001) that by reference adopts and incorporates form DACS-09085, the OCVI for Intrastate Sale of Dog or Cat Revised in July 2007. The OCVI form provides, in part: ISSUING VETERINARIAN'S CERTIFICATION: I hereby certify that the described animal was examined by me on the date shown; that the vaccines, anthelmintics, and diagnostic tests indicated herein, were administered by me, or under my direction; said animal is found to be healthy in that to the best of my knowledge it exhibits no sign of contagious or infectious diseases and has no evidence of internal or external parasites, including coccidiosis and ear mites, but excluding fleas and ticks; and to the best of my knowledge the animal has not been exposed to rabies, nor did the animal originate from an area under a quarantine for rabies. The Petitioner's First Amended Request for Administrative Hearing provided: This petition is filed on behalf of The Humane Society of the United States ("The HSUS"). The HSUS is a nonprofit animal protection organization headquartered in Washington, (sic)DC. The HSUS Southeastern Regional Office is at 1624 Metropolitan Circle, Suite B Tallahassee, FL 32308. The HSUS is the largest animal protection organization in the United States, representing over 9.5 million members and constituents, including more than 500,000 members and constituents residing in Florida. For decades the HSUS has been actively involved in educating the general public regarding the persistent health and behavioral problems that are common among puppies marketed by retail pet stores. This suit is bought [sic] on behalf of the HSUS and its Florida members. The HSUS investigates puppy mill and pet store cruelty complaints and offers its members, constituents and the general public guidance and advice as to how to select healthy, well bred puppies. By ensuring that puppies sold in retail pet stores actually receive the statutorily mandated vaccines and antelmintics, the health and welfare of puppies will be improved. Further, by eliminating from sale puppies that harbor potentially dangerous zoonotic diseases, not only is the public health protected but breeding facilities where the puppies originate and the pet stores that market the puppies have incentive to improve the often overcrowded and unsanitary conditions to which causes the puppies to be infested with internal parasites. A recent email survey revealed that more than 70 HSUS constituents have purchased puppies from Florida pet stores. This petition is also filed on behalf of Richard and Sharon Chambers, 5920 Our Robbies Rd., Jupiter, FL 33458. The Chambers purchased two puppies from Precious Puppy in Jupiter, Florida, and were provided OCVI's, signed by Dr. Dale Mitchell, DVM, but stamped with the statement "Original Vaccines Done by Breeder or Breeder's Veterinarian." Accordingly, the Chambers cannot verify if the vaccines indicated on the health certificate, and "certified" by Dr. Mitchell, were actually administered to their puppies. One of the puppies developed kennel cough, in spite of supposedly having been vaccinated against it. The kennel cough progressed to pneumonia and required emergency veterinary care. This petition is also filed on behalf of Miriam Barkley, who lives at 600 SW 13th Avenue #7, Ft. Lauderdale, FL 33312. Ms. Barkley purchased a Yellow Labrador Retriever puppy from Puppy Palace in Hollywood, Florida and was provided an OCVI. At 13 weeks of age the puppy has bilateral hip dysplasia with severe right sided coxal subluxation and will require thousands of dollars worth of surgery, if she is even a candidate for the surgery. Otherwise she must be euthanized. In spite of the requirement that each pet dealer provide consumers with a certificate of veterinary inspection signed by a veterinarian that certifies that "the animal was found to have been healthy at the time of the veterinary examination" the OCVI she was provided contains no such certification. This petition is also filed on behalf of Sheree Thomas, 874 Hibiscus Street, Boca Raton, FL 33486. Ms. Thomas was sold a puppy by Puppy Palace of Boynton Beach, and was given an OCVI upon which the attesting veterinarian's signature had been forged. Her puppy contracted distemper, a contagious disease for which the puppy had supposedly been vaccinated. Petitioner Connie Crews purchased two puppies from Puppy Palace in Hollywood, FL. One puppy, Trinity, suffered kennel cough that developed into severe bronchial pneumonia for which she was hospitalized. Petitioner Connie Crews incurred more than $4,000 in veterinary expenses saving Trinity's life. The other puppy, Neo, also had kennel cough, and suffers a bone defect in both shoulders. Petitioner Crews was provided an OCVI with each puppy, indicating that the puppies had been vaccinated for kennel cough. However, the OCVIs were not signed by the attesting veterinarian, Dr. William Rasberry, DVM, but rather had been stamped with a signature stamp which had been provided to the pet store. For purposes of this order the foregoing allegations have been deemed true or accurate. No evidence or stipulations of fact regarding the Petitioners was presented.
The Issue Did Respondent, Florida Fish and Wildlife Conservation Commission (Commission) correctly deny the application of Petitioner, James Hammonds, to renew his Game Farm License (Case No. 19-6307)? Did the Commission correctly deny Mr. Hammonds' application to renew his License to Possess Class III Wildlife for Exhibition or Public Sale (Case No. 19-6326)?
Findings Of Fact The Parties Article IV, Section 9 of the Florida Constitution creates the Commission. It charges the Commission to "exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, and … exercise regulatory and executive powers of the state with respect to marine life, … ." Chapter 379, Florida Statutes (2019), implements the constitutional provision and did so in 2017. Mr. Hammonds owns and operates The Monkey Whisperer in Parrish, Florida. He breeds and sells exotic animals. Mr. Hammonds holds five separate licenses authorizing him to own, breed, sell, and transport wild life. They are a Class III license5 (with a Capuchin Monkey and Spider Monkey endorsement) that authorizes him to exhibit and sell wildlife, a game farm license, a deer herd management license, a United States Department of Agriculture (USDA) transport license, and a USDA license to trade in wildlife animals. The renewal of his Game Farm License and License for Exhibition and Public Sale of Wildlife are the subject of this matter. The Commission refused to renew both. Mr. Hammonds has held these two licenses since 2012. Since obtaining his licenses, Mr. Hammonds has passed all Commission inspections. In addition, the Commission has issued him a game farm license. The 2012 Conviction In 2012 Mr. Hammonds pleaded no contest to a charge of unlawfully selling wildlife to an unpermitted entity. The offense was sale of a marmoset at a flea market to an unlicensed purchaser. The record does not provide a citation to the statute violated. Mr. Hammonds was new to the exotic animal trade. He relied upon statements by the purchaser and a Commission representative that the Commission had issued the purchaser a license and that it was en route. The court adjudicated Mr. Hammonds guilty and ordered him to pay a fine and costs totaling $450.00. It also required Mr. Hammonds to pay an additional $50.00 for costs of prosecution. Mr. Hammonds paid the fine and 5 Section 379.3762(2), Florida Statutes (2019), creates three classifications of wildlife types. Class I is wildlife that because of its nature, habit, or status may not be possessed as a pet. Class II is wildlife presenting a real or potential threat to human safety. Class III is all wildlife not included in Classes I and II. costs. Aware of this conviction, the Commission nonetheless routinely approved Mr. Hammonds' license renewal applications and approved his application for a game farm license over the next six years. There is no evidence of or charge of any other violations by Mr. Hammonds until the charges involved in these cases. The Capuchin Monkey In October 2017, Mr. Hammonds sold a Capuchin monkey to Christina Brown. He verified her identity and Nevada residency by looking at her Nevada driver's license. Nevada does not require a license to own exotic animals, including Capuchin monkeys. The Commission did not prove that Ms. Brown did not hold a Florida permit to own wildlife.6 Mr. Hammonds had a few conversations with Ms. Brown and her assistant Manny Ortiz about the sale. On October 12, 2017, Mr. Hammonds completed the required USDA form, "Record of Acquisition, Disposition or Transport of Animals," for the Capuchin sale.7 Mr. Hammonds was advised that Jennifer and Michael Brister would pick up the monkey to transport it to Nevada. The Bristers are located in 6 Lack of proof is the hallmark of this case. The Commission relied solely upon the testimony of one witness. The testimony was almost entirely hearsay or descriptions of document contents. This is despite the Commission, according to its witness, having recordings, sworn statements, telephone records, and financial records to support its allegations. The Commission did not offer these into evidence. Hearsay alone cannot be the basis for a finding of fact unless it would be admissible over objection in a circuit court trial. § 120.57(1)(c), Fla. Stat. (2019). Document descriptions are subject to memory failings, incompleteness, inaccuracies, and other factors that make them less than persuasive. See § 90.952, Fla. Stat.; See Williams v. State, 386 So. 2d 538, 540 (Fla. 1980). 7 The form does not have a field calling for the buyer's telephone number, or any telephone number for that matter. This is noted because the Commission's witness and Notices emphasize, as proof of guilt, an unsupported claim that Mr. Hammonds put his telephone number on the form where the buyer's telephone number went. The unsupported testimony and insistence on its significance is one of the reasons that the witness' testimony is given little credence or weight. Also Mr. O'Horo testified that the form showed a Virginia address for Ms. Brown. It shows a Nevada address. Tennessee. The Bristers held a USDA Class T Carrier permit issued under the federal Animal Welfare Act. Mr. Hammonds obtained proof that the Bristers held this federal permit required for interstate transport of the monkey. He went so far as to obtain a copy of their USDA certification to provide this service. Mr. Hammonds was also aware that the Bristers frequently did business in Florida. Other breeders recommended them highly. The Commission did not prove that the Bristers did not hold a Florida permit to own wildlife. The Bristers picked up the monkey, on behalf of Ms. Brown, from Mr. Hammonds in Florida. Other than to receive a telephone call reporting that the monkey had been delivered, Mr. Hammonds had no further contact with or communications about the monkey or Ms. Brown until the Commission's investigator contacted him. There is no admissible, credible, persuasive evidence about what happened to the monkey from this point forward. The Commission offered only uncorroborated hearsay testimony from Mr. O'Horo on this subject. The Rhesus Macaque Monkey Mr. Hammonds also assists people in rescues of exotic animals whose owners have realized they cannot care for them. In 2017, Mr. Hammonds facilitated the transfer of a Rhesus Macaque monkey from one individual to another. A Macaque monkey is a Class II animal. The monkey owner came to Mr. Hammonds' business seeking assistance because he could not handle the monkey. The monkey was in a pet carrier. Mr. Hammonds recalled a woman in Orlando who had contacted him in the past seeking a Macaque. He put the two individuals in touch with each other. The two individuals agreed to the exchange of the monkey. The woman came the same day, met the Macaque owner, and accepted the monkey from him. The owner kept the monkey with him in the carrier until he gave it to the woman. Mr. Hammonds was paid for his services in facilitating the exchange. There is no competent, persuasive evidence that Mr. Hammonds ever had ownership, physical possession, control, or custody of the Macaque monkey in any form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Fish and Wildlife Conservation Commission, issue a final order renewing the Game Farm License and the License to Possess Class III Wildlife for Exhibition or Public Sale of Petitioner, James Hammonds. DONE AND ENTERED this 23rd day of June, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 23rd day of June, 2020. COPIES FURNISHED: Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) David A. Fernandez, Esquire Florida Trial Counsel 4705 26th Street West, Suite A Bradenton, Florida 34207 (eServed) Sean P. Flynn, Esquire Flynn Law, P.A. 2200 Manatee Avenue West Bradenton, Florida 34025 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue The issues in this case are whether Respondent committed the violation alleged in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, is the state agency charged with the duty to regulate the practice of veterinary medicine in Florida pursuant to chapters 455 and 474, Florida Statutes. At all times material to this proceeding, Respondent Philip J. Aleong has been licensed as a veterinarian in the State of Florida, having been issued license number VM 6466. Respondent obtained his veterinary degree from Tuskegee University in 1994, and began to practice veterinary medicine in Florida the same year. In 1996, Respondent moved to Maryland, where he was employed at a race course for approximately two years. Respondent returned to Florida in 1997 or 1998, where he has continued to practice veterinary medicine. From the evidence adduced during the final hearing, it appears that much of Respondent's practice involves the provision of prophylactic, pre-race medical services to thoroughbred racehorses. Prior Misconduct Relevant to Respondent's Second Affirmative Defense On September 14, 2006, Petitioner filed an administrative complaint that alleged, in part, that Respondent failed to maintain radiographs and other records related to a pre-purchase examination of racehorse "C. Brooke Run," which was conducted in April of 2003 at the Ocala Breeders' Sale. Pursuant to Respondent's request for a formal hearing to contest the allegation, the matter was referred to DOAH in May 2007 and assigned Case No. 07-2415. On April 2, 2008, following the conclusion of the proceedings at DOAH, Petitioner entered a Final Order reprimanding Respondent, placing his license on probation for six months, and imposing a $1,000 fine.5 The Instant Complaint On or about March 14, 2006, Petitioner6 served Respondent with six subpoenas duces tecum, which directed him to produce all documents or other veterinary records concerning the following racehorses: "Musical Beat," "Orlik," "Suave Prince," "Fast Tracker," "Dondoca," and "Bolido." Subsequently, on May 30, 2006, Respondent provided the requested documents, which related to veterinary services provided to the horses on various dates during 2004 and 2005. Three months later, on August 25, 2006, an investigative report was completed and forwarded at some point thereafter to Petitioner's legal department. Subsequently, on January 4, 2008, Petitioner filed an Administrative Complaint against Respondent that is the subject of this proceeding. Although Respondent filed an Election of Rights form on February 4, 2008, which requested a formal administrative hearing, the matter was not referred to DOAH until April 30, 2010. Petitioner's sole witness at the final hearing in this cause was Dr. Faith Hughes, who was accepted by the undersigned as an expert in the field of veterinary medicine. Dr. Hughes testified that at the request of the Department, she had examined the medical records provided by Dr. Aleong to determine if they complied with the requirements of section 474.214(1)(ee) and Florida Administrative Code Rule 61G18-18.002. Dr. Hughes opined, and the undersigned agrees, that the records of six horses suffered from various deficiencies, which included: "Musical Beat": Medications were administered, but the frequency was not specified for any of the drugs. In addition, while blood work was done, the records fail to indicate why blood was drawn or what the result was. "Orlick": Medications were administered, such as Bactrim, but no amount or frequency was indicated. "Suave Prince": Penicillin and other medications were administered, but no amount or frequency was recorded. "Fast Tracker": Although the records indicate that blood work and radiographs were taken, no results were documented. Further, it could not be determined from the November 15, 2004, record if Depo Provera or Depo Medrol was administered, as the record merely indicates the abbreviation "DEPO." In addition, the records failed to demonstrate the frequency the various drugs were administered. Finally, while blood work was done, the records contain no results. "Dondoca": With respect to each medication administered, which included Bactrim and Cortisone, there was no indication as to the dosage or frequency. "Bolido": Medications were administered, but the amount and frequency were not documented with respect to each. Further, the records indicate that radiographs were taken, but no findings were documented. In his defense, Respondent presented the testimony of Dr. Joseph Zerilli, who was accepted by the undersigned as an expert in veterinary medicine. Dr. Zarelli opined that the records concerning each of the horses contained sufficient information to comply with the applicable statute and rules. Similarly, Respondent testified on his own behalf that the records relating to each of the horses were adequate. The undersigned is not persuaded by the testimony of Respondent or Dr. Zarelli on this point. However, Respondent testified, credibly, that no animal was harmed, nor was the public endangered, as a result of the alleged recordkeeping violations in this matter. Respondent further testified, and the undersigned accepts as true, that negative action against his license (i.e., suspension or revocation) would detrimentally affect his livelihood. Ultimate Findings The undersigned accepts Dr. Hughes' testimony as detailed in paragraph ten of this Recommended Order and finds, as a matter of ultimate fact, that Respondent violated section 474.214(1)(ee).7 Respondent has failed to prove his first affirmative defense, wherein he alleges that Petitioner is arbitrarily and selectively applying its rules against him based in part on his race. No evidence was adduced by Respondent to demonstrate that Petitioner has declined to prosecute similarly situated persons (i.e., veterinarians accused of inadequate recordkeeping). Respondent also failed to demonstrate that the instant charge should have been brought in an earlier administrative proceeding, and as such, there is no showing that Petitioner impermissibly engaged in a "splitting of the action." Accordingly, Respondent's second affirmative defense is rejected. With respect to his third affirmative defense, Respondent demonstrated a substantial delay in the prosecution of this matter that violated the requirements of section 455.25(4), Florida Statutes. However, this affirmative defense is also rejected, as Respondent was unable to demonstrate that the delay resulted in prejudice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding that Dr. Phillip J. Aleong violated section 474.214(1)(ee), Florida Statutes. It is further recommended that the Board issue a letter of reprimand, place Dr. Aleong's license to practice veterinary medicine on probation for a period of six months, and require that he pay a fine of $1,500.00, as well as $203.74 for the costs of investigation,10 within 90 days of the entry of the final order. DONE AND ENTERED this 29th day of December, 2010, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 December, 2010.
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 Whether Respondent committed the violations alleged in the Administrative Complaint dated September 26, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for inspecting and regulating public food service establishments in Florida. Respondent is a food service establishment licensed and regulated by the Department holding License No. 5811184. On September 21, 2006, Alex Chu inspected the premises of Respondent. Mr. Chu prepared a Food Service Inspection Report which noted, 35A-04-01-1; Observed rodent activity as evidenced by rodent droppings found. OBSERVED HUNDREDS OF FRESH AND OLD RODENT DROPPINGS ON 3 DIFFERENT SHELVES WITH FOOD ITEMS AND SINGLE-USE ITEMS IN DRY STORAGE AREA. THE DRY STORAGE AREA IS OPEN AND PART OF THE KITCHEN. ESTABLISHMENT IS OPEN/OPERATING AND SERVING FOOD TO THE PUBLIC DURING INSPECTION. Mr. Chu determined that the presence of rodent droppings constituted a "critical violation" that warranted immediate closure of the restaurant. A critical violation is one that if not corrected, is more likely than other violations to cause an imminent food-borne illness, contamination, or environmental hazard. Respondent, through its co-owner, was immediately made aware of the presence of rodent droppings and the "critical" nature of this violation. On September 19, 2006, Massey Services had performed pest control services on the restaurant premises at the owner's request due to the presence of rodent droppings. There is an established protocol regarding critical violations and immediate closure of the restaurant establishment. This process involves an expedited decision made in Tallahassee based on the local report of a critical violation. Typically, it takes about two hours, as it did in this case. The inspector then returns to the violating licensee, posts a "closed" sign on the premises, and explains the licensee's opportunity for remediation. A "call-back" inspection is conducted within 24 hours after closure. On September 22, 2006, Mr. Chu re-inspected Respondent's premises. It was determined that the premises had been extensively cleaned during the previous night, that rodent droppings were found during the cleaning (although not "hundreds of rodent droppings"), and the restaurant was re-opened.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, enter a final order finding that Respondent, Brothers and Sisters Barbeque, Inc., violated Rule 6-501.111, Food Code; that a fine in the total amount of $250.00 be imposed for this violation; and that the owner(s) of Respondent be required to attend, at personal expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 22nd day of June, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 22nd day of June, 2007.
The Issue The issues in this cause are fashioned by an amended administrative complaint brought by the Petitioner against the Respondent. By the first count to this complaint, Respondent is charged with knowingly employing and otherwise encouraging his wife, Nadia Said Helmy, to practice veterinary medicine in Florida without the benefit of a license. The second count to the amended administrative complaint was dismissed at the commencement of the hearing. By count three, the Respondent is charged with inappropriate advertising in association with his veterinary practice.
Findings Of Fact The State of Florida, Department of Professional Regulation, Board of Veterinary Medicine (Petitioner) is empowered by Chapters 455 and 474, Florida Statutes, to regulate the practice of veterinary medicine in Florida. Samy H. Helmy, D.V.M (Respondent), is and has been a licensed veterinarian in Florida during the pendency of the allegations set forth in the amended administrative complaint. Respondent's wife, Nadia Said Helmy, is not now licensed to practice veterinary medicine in Florida, nor has she been during the time sequence contemplated by the amended administrative complaint. Respondent and his wife owned and operated Wildwood Animal Clinic in Wildwood, Florida, from a period before January 1985 until June 1985. Respondent and his wife were also the owners and operators of Citrus Fair Animal Hospital in Inverness, Florida, from January 1985 through September 19, 1986, the date upon which Respondent gave a deposition in this cause. During the time frame in which both animal clinics were open, Respondent was principally located at the Inverness facility, while his wife was working in the Wildwood facility. Nadia Helmy was working under the supervision of the Respondent in her activities at Wildwood. Sometime in May 1985, a Ms. Goheen took her cat to Dr. Leigh McBride, another veterinarian licensed to practice in Florida. Ms. Goheen claimed that her cat had been treated by a veterinarian at the Wildwood Animal Clinic. She described that veterinarian as being a female. Dr. McBride was unfamiliar with a female veterinarian at the Wildwood Animal Clinic, being of the understanding that Respondent, a man, was the practicing veterinarian in that facility. This circumstance in which it was possible that someone was practicing veterinary medicine without the benefit of a license led to an investigation of that possibility on the part of Petitioner. Eventually, A. L. Smith, an investigator for Petitioner, was assigned to undertake the investigation. Smith borrowed a cat from Dr. McBride. Stogie, the cat, had come into Dr. McBride's veterinary clinic with a broken shoulder which Dr. McBride had repaired. Following this episode, the cat walked with a slight limp. Around May 22 or 23, 1985, in furtherance of his investigation, Mr. Smith took Stogie to the Wildwood Animal Clinic. He had in mind ascertaining whether Nadia Helmy was practicing veterinary medicine without a license by seeing if she would practice on the cat. He deliberately picked an occasion in which Ms. Helmy was alone in the Wildwood Animal Clinic in his effort to determine her willingness to practice veterinary medicine. Once inside the Wildwood Animal Clinic, Mr. Smith confirmed that Nadia Helmy was the only person in attendance. Smith asked to see a veterinarian, remarking to Ms. Helmy that his cat was suffering lethargy and was limping more than usual and that he needed the cat to be examined by a veterinarian. Ms. Helmy directed Smith to take the cat to an examination room and showed him the location of that examination room. At that point, Smith said that Nadia Helmy commenced "the examination." He further described that while the cat was on the examining table ". . . she [Nadia Helmy] was looking at it and looking into its eyes." He indicated that the examination he was observing was what he would expect a veterinarian to give an animal. On the other hand, this is the first instance in which Mr. Smith had ever done undercover investigation of alleged unauthorized practice of veterinary medicine and there is no other information that has been presented which would lead to the conclusion that Mr. Smith knew what techniques would be employed in an examination conducted by a veterinarian. Under the circumstances, there being no further indication of the factual details of the examination, absent the remark concerning Nadia Helmy's looking into the eyes of the cat, it cannot be concluded what details were involved in the alleged examination process and whether in fact the kind of examination conducted by veterinarians was occurring. The telephone rang, and Nadia Helmy left the examination room and answered the phone. She was gone for. three or four minutes. Mr. Smith could hear Nadia Helmy's end of the conversation, in which she spoke in some foreign language. Nadia Helmy testified in the course of the hearing that she spoke with her husband on the telephone regarding the symptoms of Stogie, among other matters. Having examined her demeanor in the course of the hearing and all her answers provided under interrogation, no credence is afforded her version of the telephone conversation. Consequently, no facts are found as to the nature of that conversation. Nonetheless, it is concluded that a conversation was held between Nadia Helmy and Respondent. Following the telephone conversation, Nadia Helmy returned to the examination room and looked at the cat again. Mr. Smith admitted that the cat seemed to be better and Ms. Helmy agreed with him and stated that the cat was just suffering from extended travel. Nadia Helmy said that the cat would be better after returning home. This was in response to Mr. Smith's representation that he was travelling between Tallahassee and Naples, Florida. Mr. Smith described the remarks by Nadia Helmy, concerning the fact that the cat was suffering from extended travel to be some form of diagnosis. Again, it not being identified that the investigator could speak to matters of what constitutes a diagnosis and the nature of those remarks by Nadia Helmy not being clearly a form of diagnosis which might be recognized by a lay person, the remarks are not received as stating a diagnosis. Throughout the exchange between Mr. Smith and Nadia Helmy on the date that the cat was brought to the Wildwood Animal Clinic, Mr. Smith referred to Nadia Helmy as "doctor." Although Ms. Helmy did not correct Mr. Smith in his reference, she did not affirmatively state that she was in fact a veterinarian licensed by Florida to practice veterinary medicine. In the course of the events in the examination room, Nadia Helmy did not take the temperature of the cat, did not take a case history on the cat or provide any form of treatment. Following the conversation in the examination room, Investigator Smith asked Nadia Helmy "how much" for her service. She replied five dollars. Nadia Helmy gave Investigator Smith a receipt for the payment of the five dollars. A copy of the receipt may be found as Petitioner's Exhibit 1 admitted into evidence. It is on a form of the Wildwood Animal Clinic, which has a portion related to the character of service. This portion of the receipt is not filled out. The only thing that is reflected is the amount of charges and Mr. Smith's name and a date, May 22, 1985. Under these circumstances, it cannot be concluded that the five dollar charge was for provision of veterinary services. After leaving Wildwood Animal Clinic, Investigator Smith went to Citrus Fair Animal Hospital at Inverness. While there, he discussed with Respondent the facts of his visit to the Wildwood Animal Clinic and the nature of events related to Respondent's wife and the fact that the investigation was in answer to allegations made about the wife's practice of veterinary medicine. In the course of this conversation, Respondent stated that his wife was a graduate of veterinary medicine and was qualified to examine animals and run the clinic but that he did all of the surgery. He stated that his wife was qualified to give shots and to determine what was wrong with animals. Concerning the wife's actions, Respondent stated that his wife was too busy raising three children to get all the classes and under this circumstance hadn't passed an examination. Nonetheless, according to Respondent, the wife was completely qualified in that she was a graduate of veterinary medicine school. This acknowledgment by Respondent as to the general arrangement between the Respondent and his wife concerning the operation of the Wildwood Animal Clinic does not revitalize the Petitioner's claim that the wife was practicing veterinary medicine on the specific day in question. Evidence was presented in the course of the hearing concerning the fact that Nadia Helmy would not treat an animal of one Ralph Benfield when the animal had been offered for treatment at the Wildwood Animal Clinic. However, this situation occurred at a time when the Wildwood Animal Clinic was being phased out and it is not clear what significance that fact had in the decision by Nadia Helmy not to offer assistance to the animal. In January 1985, Respondent entered into a one-year advertising contract with the Citrus County Chronicle, a local newspaper. This was for the placement of advertisements pertaining to his Citrus Fair Animal Hospital. One of the ads placed in the paper, at the instigation of the Respondent, can be found as Petitioner's Exhibit 4 admitted into evidence. The date of the advertisement is March 31, 1985. It advertised free fecal check and a free office visit, but did not contain the 72-hour disclaimer language contemplated by Section 455.24, Florida Statutes. Having been advised of this problem related to the lack of disclaimer, Respondent, by correspondence of August 26, 1985, acknowledged his violation and modified the format of his advertising. The letter of August 26, 1985, and the new format of advertising may be found as Petitioner's second exhibit admitted into evidence. This letter had been dispatched based upon a complaint which was filed on August 9, 1985, by a Dr. Asaad. This led to action by the Petitioner attempting to have Respondent rectify the problems with his advertising. Following the circumstance in which Respondent had been made aware of the problem with his advertising, he took steps to ensure that the advertising was in compliance with law by contacting the Citrus County Chronicle. Although the employee of the Citrus County Chronicle who testified in the course of the final hearing was uncertain about whether the March 31, 1985, advertising copy was specifically approved by the Respondent, it was the practice of the newspaper to provide Respondent with a proof prior to publication. Circumstantially, it is concluded that Respondent did not oppose or question the acceptability of the March 31, 1985, advertising. Support for this position is found in the fact that Respondent conceded his violation by his August 25, 1985, correspondence.
