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 =================================================================
The Issue Whether Respondent, Chase Carmen Hunter, committed the violations of the Florida Insurance Code alleged in the First Amended Complaint and, if so, the sanctions to be imposed.
Findings Of Fact The Department of Financial Services (Department) is the agency of the State of Florida having authority, among its other duties and responsibilities, to enforce the provisions of the Florida Insurance Code. The Division of Insurance Agents and Agency Services is a legislatively-created division of the Department, and is vested with the authority to administer chapter 626, Florida Statutes, and to enforce the provisions thereof. Respondent holds a license issued by Petitioner, No. E062693, as a Nonresident Life, Health, and Variable Annuity agent and as a Nonresident General Lines (Property & Casualty) agent. The license was initially issued on March 20, 2003. During all times relevant to this proceeding, Respondent was appointed as an agent of RLI Insurance Company, for the sale of property and casualty insurance. She held no other active appointments for the sale of property and casualty insurance until August 4, 2010, when she was appointed as an agent of the American Alternative Insurance Corporation. The insurance being sold by Respondent that forms the basis for Counts I through III of the First Amended Administrative Complaint were not insurance products of either RLI Insurance Company or American Alternative Insurance Corporation. Animal Liability Insurance Animal liability insurance is a specialty form of property and casualty insurance generally available only in the surplus-lines market, and not typically available through admitted carriers. Animal liability insurance is available for domestic and exotic animals. The Lester Kalmanson Agency The Lester Kalmanson Agency (Kalmanson Agency) is a Florida-based and licensed insurance agency, headquartered in Maitland, Florida, that has been in operation for more than 50 years. Since its founding, it has been predominantly involved with property and casualty insurance. Starting at the time Mitchel Kalmanson joined his father?s agency approximately 25 years ago, the Kalmanson Agency began to develop a specialized niche in animal mortality and liability insurance. The Kalmanson Agency is one of, if not the only agency in the country that offers commercial or individual mono-line animal-liability policies for domestic and exotic animals. Those specialty lines currently account for approximately 80 percent of the Kalmanson Agency?s business. The Kalmanson Agency is now well known for its ability to provide animal-liability insurance. It has received manuscripting ability through Lloyds of London, has created its own hazards and descriptions for animal-liability hazards, and has, over the years, developed and improved the unique forms used for writing animal-liability insurance. In 2009, Respondent contacted the Kalmanson Agency to become a retail agent for the agency. Respondent entered into a contractual producer?s agreement that allowed her to produce with the Kalmanson Agency. At some point thereafter, Respondent engaged in a series of practices designed to infringe upon the Kalmanson name, and to fraudulently and deceptively compete with the Kalmanson Agency in providing insurance marketed by Respondent as animal-liability insurance. Those actions included, but were not limited to Respondent misusing the Kalmanson Agency name to divert Kalmanson Internet business directly to her agency, and posting false information regarding the Kalmanson Agency and its officers and employees on her website. A detailed recitation of the facts and circumstances is not necessary -- suffice to note that Respondent was temporarily, and then permanently enjoined by the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida from using the Kalmanson name in any way, and has been held by the Court to be in Civil Contempt and indirect Criminal Contempt for her failure to comply with the lawfully entered injunctions. Assurant Specialty Property/American Bankers Insurance Company of Florida Assurant Specialty Property (Assurant) is the parent company of American Bankers Insurance Company of Florida (ABIC). ABIC is a Florida-admitted underwriting company that markets and sells property and casualty insurance, including renters? insurance, in Florida. ABIC has physical offices in Miami, Florida. ABIC is a “direct sale” company, meaning that it has designed its sales process to allow customers to directly access its website, fill out an electronic application, purchase insurance, and receive policy documents without having to use an agent. As a result, ABIC has appointed no agents to solicit, negotiate, or effect insurance contracts on its behalf. The only time a regular customer might use an “agent” to purchase ABIC insurance is if the customer contacted another insurance company with which ABIC has partnered, which companies include Geico and Esurance, and that company arranged coverage through ABIC. Such arranged coverage does not require or include a fee. ABIC has not partnered with Respondent. In order to become partnered with Assurant or ABIC, a person must enter into a written contract with the company. Respondent has not entered into a written contract with Assurant or ABIC. Among the items of information requested of a customer when insurance is obtained though the ABIC direct-sale website is the customer?s e-mail address. Upon completion of the application, the customer has the option of receiving the declaration page, the policy, and other insurance documents from ABIC by U.S. mail or by e-mail. ABIC imposes no additional charge to send insurance documents to its policy holders by U.S. mail. In conjunction with the Division?s investigation that resulted in these proceedings, Assurant determined that Respondent took out approximately 50 ABIC renters? insurance policies for Florida residents using the ABIC website and Assurant forms. In each instance, Respondent provided ABIC with her own e-mail address in the insurance application, and had the policy documents sent to her rather than to the policy holder. Assurant discovered through its own investigation that Respondent had altered declaration pages describing the coverage provided under policies issued by ABIC. The declaration page forms, and the other policy documents, are approved by the state of Florida. Assurant had not authorized Respondent to alter the ABIC declaration page forms in any way. When Assurant determined that Respondent provided customers with altered declaration pages, or had not provided customers with policy documents, it would contact the customers directly, provide them with all policy documents, and give them the option of cancelling the policy and receiving a refund if the actual coverage was not what they had requested or expected. Upon discovery of Respondent?s use of the direct-to- customer website, her collection of broker fees, her alteration of declaration pages, and her identification of herself as an ABIC agent, Assurant, through counsel, advised Respondent to stop such actions. Respondent refused to comply with Assurant?s request. Through at least February 8, 2013, Respondent continued to procure policies through the ABIC direct-to-customer website. After Assurant became aware of Respondent?s “chaseagency.com” domain, she began to use other domain names when she purchased policies through the Assurant system, which allowed her to have policy documents sent to her without detection. In the absence of an undisclosed animal bite history or other history of liability resulting from animals owned by an insured, general animal liability would be covered under an ABIC renters? insurance policy having liability limits of $100,000 or less. Thus, the issues in this case do not involve denial of claims. COUNT I - Donna Nolan Donna Nolan is a Florida-licensed insurance agent. She works for the Kalmanson Agency. Ms. Nolan owns a duplex that she purchased in 1992. Ms. Nolan lives in the “front house.” The “back house” was rented to Donna Jones and her daughter, Erin Jones, who lived there along with their miniature Doberman Pinscher, known as a “Min Pin.” Donna Jones died in early 2010. Erin Jones continued to live in the duplex. Ms. Nolan understood the Min Pin to be “a nipper,” and it had a habit of escaping and “running amuck in the neighborhood.” Ms. Nolan required Ms. Jones to obtain animal liability insurance to protect her in the event the dog was to bite someone. Ms. Nolan priced animal-liability insurance through the Kalmanson Agency. The annual premium was in the range of $400.00. That amount was more than Ms. Jones could comfortably afford. Ms. Nolan suggested that Ms. Jones research alternative providers, and allowed Ms. Jones to use her computer to do so. Ms. Jones found the “Chase Agency” online, which offered “canine insurance.” Ms. Nolan assisted Ms. Jones with the online application form. After submittal of the application, a quote was received from Respondent by e-mail. Ms. Jones decided to purchase animal-liability insurance through Respondent. Since Ms. Jones had no credit card or checking account, Ms. Nolan agreed to collect the premium from Ms. Jones in cash, and pay for the policy with her credit card. Ms. Nolan was charged $130.00 for the canine insurance policy, and $50.00 for the “broker fee.” Respondent obtained the insurance for Ms. Jones from the ABIC direct-to-customer website. Rather than purchasing specialized animal liability insurance as requested by Ms. Jones, Respondent procured standard renters? insurance from ABIC. Respondent entered Ms. Jones? personal information into the application but, rather than entering Ms. Jones? e-mail address, Respondent entered her own e-mail address. Respondent then elected to have all policy documents delivered by e-mail, which resulted in them being delivered to Respondent, and not to Ms. Jones as the insured policy holder. Respondent provided Ms. Jones with an ABIC declaration page via e-mail. The declaration page included three material alterations made by Respondent. The first alteration to the declaration page consisted of the following language, neatly printed and contained within a box at the top of the form, directly under the name and address of the issuing company: PURCHASED AT WWW.CHASEAGENCY.COM:: RETAIL AGENT: CHASE CARMEN HUNTER:: 4 PEACE PIPE LANE, FREDERICKSBURG, VA 22401 The second alteration to the declaration page consisted of the insertion of an entry for “Broker Fee $50.00” after the listing of the Total Premium of $130.00. Although Ms. Nolan testified that it appeared to her to be “different typing,” the undersigned finds the type style to be sufficiently similar to the adjacent text as to appear to be a part of the declaration page as prepared and issued by ABIC. The third alteration to the declaration page consisted of the following language, neatly printed and contained within a box at the bottom of the form, which covered the insurer?s authorized countersignature: TEL: 330-333-BUY3(2893)(CALLS & TEXTS) WWW.DANGEROUSDOGINSURANCE.COM THIS POLICY WAS ISSUED WITH THE FULL KNOWLEDGE THAT THE INSURED OWNS A DOBERMAN PINSCHER THAT IS NOT EXCLUDED The alterations, by their appearance, give the impression that they were printed on the declaration page as issued by ABIC. Since Respondent did not provide Ms. Jones with the original of her declaration page, it was not apparent that the alterations were performed by applying some form of appliqué or typed addition to the declaration page issued by ABIC. Rather, Respondent created the clear impression that ABIC had authorized Respondent to act as its retail agent, had authorized the assessment of a Broker Fee, had specific knowledge of Ms. Jones? dog, and had acknowledged that the dog was not excluded from coverage. None of those impressions were true. Ms. Nolan recognized the declaration page as one for a renter?s insurance policy, and not for an animal liability insurance policy. Ms. Nolan advised Ms. Jones that she had not received “canine insurance,” but had received a renter?s insurance policy, which she had not requested. Ms. Nolan called the number provided to her by Respondent in an effort to obtain a complete copy of the policy. The person with whom she spoke, who did not provide identification, refused to send the policy to Ms. Nolan, stating that to do so would cost too much in money and time, and stating that Respondent would maintain the policy in case a claim is made. Being dissatisfied with the telephone conversation, Ms. Nolan contacted ABIC. On June 9, 2010, Ms. Nolan faxed ABIC a recitation of the facts involved with the purchase of the policy, and provided ABIC with copy of the declaration page sent to Ms. Jones by Respondent. At some point, Respondent determined that Ms. Nolan, who was not the insured, worked for the Kalmanson Agency. Since the dispute between Respondent and the Kalmanson Agency had by this time become open, and thinking Ms. Nolan to be a “Kalmanson spy,” Respondent refunded the $50.00 broker?s fee. Upon request made by Ms. Jones on June 17, 2010, ABIC cancelled the policy, effective June 25, 2010, and refunded the full premium, which was credited to Ms. Nolan?s credit card. In her dealings with Ms. Jones and Ms. Nolan, Respondent acted as, and held herself out as an insurance agent of ABIC. Given the facts and circumstances of her dealings with Ms. Jones and Ms. Nolan, including her alterations of the ABIC declaration page to identify herself as the “retail agent,” her collection of a “brokers fee,” and her insistence on keeping the policy in order to manage claims, the only reasonable conclusion that can be drawn from her conduct was that she intended to convey the impression that she was appointed by ABIC to act as its agent in the sale of insurance. Respondent was not appointed by ABIC, nor was she authorized to act as an agent on its behalf. The only plausible inference that can be drawn from Respondent?s use of the name “CHASEAGENCY” on the altered declaration page, and her identification of herself as the “Retail Agent,” is that Respondent intended to act and to be perceived as acting as an insurance agency with regard to the solicitation and sale of Florida insurance. Respondent did not hold an insurance agency license or registration. The facts of this case demonstrate that Respondent, by her statements and by her alteration of the ABIC declaration page, willfully misrepresented the conditions and terms of Ms. Jones? insurance policy with the intent to deceive her about its true nature. By so doing, Respondent engaged in fraudulent or dishonest practices in the conduct of business under her license. By consciously altering the declaration page so as to hold the “CHASEAGENCY” out as an insurance agency, and herself out as an agent of ABIC, Respondent knowingly made false material statements regarding herself and the policy. The only reasonable explanation for Respondent?s method of providing insurance is that she desired to isolate Ms. Jones, the insured policy holder, from ABIC to the maximum extent possible so as to perpetuate Respondent?s pattern of deception and manipulation in the sale of insurance under her license. As a result of the foregoing, Respondent exhibited a lack of fitness and trustworthiness to engage in the business of insurance. COUNT II - Jacqueline Colon During the period of time relevant to this proceeding, Jacqueline Colon rented a home in Leesburg, Florida, where she lived with her husband. She owned two dogs when she first rented the home, without objection by the landlord. When she subsequently added a pit bull to her menagerie, her landlord required that she obtain liability insurance for the dog. Ms. Colon contacted her automobile-insurance company, Geico Insurance (Geico). She was advised that Geico did not insure for dangerous dog breeds. She thereupon searched the Internet for a provider. Ms. Colon?s search led her to Respondent?s website. On or about March 24, 2010, Ms. Colon spoke with Respondent regarding her desire for insurance to cover her pit bull. Respondent quoted Ms. Colon a premium of $174.03 for the insurance, and $50.00 as a fee, for a total quote of $224.03. Ms. Colon provided Respondent with her checking account information for the purchase of a policy, which included $100,000 in liability coverage, and $10,000 in personal property loss coverage. The policy premium of $174.03 was paid through Ms. Colon?s checking account. Respondent did not collect the additional $50.00 fee. It was Ms. Colon?s understanding when she purchased the policy from Respondent that she was purchasing insurance that was to specifically cover liability for injury caused by her dogs, i.e., “dangerous dog insurance per se.” Respondent obtained the insurance for Ms. Colon from the ABIC direct-to-customer website. Rather than purchasing specialized dangerous dog liability insurance as requested by Ms. Colon, Respondent procured standard renters? insurance from ABIC. Respondent entered Ms. Colon?s personal information into the application but, rather than entering Ms. Colon?s e- mail address, Respondent entered her own e-mail address. Respondent then elected to have all policy documents delivered by e-mail, which resulted in them being delivered to Respondent, and not to Ms. Colon as the insured policy holder. Respondent subsequently provided Ms. Colon with an ABIC policy declaration page via e-mail. The declaration page included material alterations made by Respondent. The alterations consisted of the following language, printed, and inserted into the declaration page: PURCHASED AT WWW.CHASEAGENCY.COM RETAIL AGENT: CHASE CARMEN HUNTER, 4PEACE PIPE LANE, FREDERICKSBURG, VA 22401 TEL: 330-333-BUY3(2893)(CALLS & TEXTS) 24-HOUR HOTLINE: 707-706-DOGS (3647)(CALLS & TEXTS) WWW.DANGEROUSDOGINSURANCE.COM THIS POLICY WAS ISSUED WITH THE FULL KNOWLEDGE THAT THE INSURED OWNS PIT BULL CANINE The alterations, though not as neatly inserted as the alterations to the declaration pages provided to Ms. Jones and Mr. Pierce, nonetheless give the impression that they were printed on the declaration page as issued by ABIC. By her alterations, Respondent created the clear impression that ABIC had authorized Respondent to act as its retail agent, and had specific knowledge of Ms. Colon?s pit bull. Those impressions were not true. The altered declaration page was accepted by Ms. Colon?s landlord as satisfactory to meet her requirement. Respondent did not provide Ms. Colon with a copy of her policy. After having received the altered declaration page, Ms. Colon and her husband determined that they should have more coverage for their personal property. Ms. Colon contacted Geico to obtain renters? insurance. She purchased the additional insurance and paid the first premium installment to Geico. In August of 2010, Ms. Colon was contacted by the Division?s investigator regarding the issues that are the subject of the Administrative Complaint. During the meeting, Ms. Colon realized that the renters? policy obtained through Geico was written by ABIC, as was the purported animal liability policy provided by Respondent. Ms. Colon called Assurant to inquire as to the coverage provided by the two policies. When it was determined that both policies covered the same risk, and that the policies would not each pay for any losses, ABIC refunded Ms. Colon?s paid premium for the policy that was obtained through Geico. Given the facts and circumstances of Respondent?s dealings with Ms. Colon, including her alterations of the ABIC declaration page to identify herself as the “retail agent,” and her discussion regarding the assessment of a fee, even though it was not collected, the only reasonable conclusion that can be drawn from her conduct was that she intended to convey the impression that she was appointed by ABIC to act as its agent in the sale of insurance. Respondent was not appointed by ABIC, nor was she authorized to act as an agent on its behalf. The only plausible inference that can be drawn from Respondent?s use of the name “CHASEAGENCY” on the altered declaration page, and her identification of herself as the “Retail Agent,” is that Respondent intended to act and to be perceived as acting as an insurance agency. Respondent did not hold an insurance agency license or registration. The facts of this case demonstrate that Respondent, by her statements and by her alteration of the declaration page, willfully misrepresented the conditions and terms of Ms. Colon?s insurance policy with the intent to deceive her about its true nature. By so doing, Respondent engaged in fraudulent or dishonest practices in the conduct of business under her license. By consciously altering the declaration page so as to hold the “CHASEAGENCY” out as an insurance agency, and herself out as an agent of ABIC, Respondent knowingly made false material statements regarding herself and the policy. The only reasonable explanation for Respondent?s method of providing insurance is that she desired to isolate Ms. Colon, the insured policy holder, from ABIC to the maximum extent possible so as to perpetuate Respondent?s pattern of deception and manipulation in the sale of insurance under her license. As a result of the foregoing, Respondent exhibited a lack of fitness and trustworthiness to engage in the business of insurance. COUNT III - Dirk Pierce At some time prior to June 2010, Dirk Pierce rented a home situated on five acres in Panama City, Florida. The property was zoned so as to allow him to keep his horses, along with a mule that he was boarding for a friend. As a condition of keeping his horses, Mr. Pierce?s landlord required that he obtain animal-liability insurance. Mr. Pierce consulted with his local insurance agent, but that agent did not offer a liability policy for animals. She suggested that Mr. Pierce search the Internet for a provider. Mr. Pierce?s search led him to the Chase Carmen Hunter Insurance Agency. While on-line, he filled out and submitted a short questionnaire. The next day, Respondent called Mr. Pierce. She quoted Mr. Pierce an annual premium of $463.28, plus a $50.00 “administration charge.” Mr. Pierce asked Respondent if he would be able to transfer the policy to another property. Respondent advised Mr. Pierce that the policy was transferable, and that he “just needed to call in.” Respondent also advised Mr. Pierce that, along with his yearly animal coverage, he would receive a “bonus” of $50,000 in renter?s furniture content coverage at no additional cost. Respondent further advised Mr. Pierce that if he ever had a claim on his purported animal-liability policy, he was to “go directly to her and contact her and her only, that she would handle it.” The only inference that can be drawn from Respondent?s insistence that she be solely responsible for handling any claims is that she wanted to isolate Mr. Pierce from contact with the insurer, and minimize the possibility that her deceptive conduct, described herein, would be discovered. Mr. Pierce completed the transaction by providing Respondent with his wife?s credit card number to pay for the policy. Respondent obtained the insurance for Mr. Pierce from the ABIC direct-to-customer website. Rather than purchasing specialized animal-liability insurance as requested by Mr. Pierce, Respondent procured standard renters? insurance from ABIC. Respondent entered Mr. Pierce?s personal information into the application but, rather than entering Mr. Pierce?s e- mail address, Respondent entered her own e-mail address. Respondent then elected to have all policy documents delivered by e-mail, which resulted in them being delivered to Respondent, and not to Mr. Pierce as the insured policyholder. On June 10, 2010, Mrs. Pierce?s credit card was charged $463.82 for the policy premium, along with a $50.00 “broker fee.” After the completion of the transaction, Mr. Pierce contacted Respondent to request a declaration page for the policy that he purchased. He advised Respondent that it was necessary that he provide his landlord with evidence of the animal-liability insurance policy. Respondent advised Mr. Pierce that she would provide him with the declaration page by e-mail or fax. On June 17, 2010, Mr. Pierce made inquiry by e-mail to Respondent as to why he had not received his policy. Mr. Pierce?s landlord was demanding proof of animal liability insurance by June 18, 2010, the failure of which was to be grounds for his having to move the horses. On the early afternoon of June 18, 2010, Respondent e-mailed the policy to Mr. Pierce with the message “I am attaching your policy. The original will not be mailed. If you give me your landlord name and address, I will mail the information to him/her as well.” The policy provided to Mr. Pierce was a renters? insurance policy issued by ABIC. Mr. Pierce testified that he received a small, four-page policy for his rental contents, but it said nothing about liability coverage for his horses. The declaration page included with the policy included two material alterations made by Respondent prior to her providing it electronically to Mr. Pierce. The first alteration to the declaration page consisted of the following language, neatly printed and contained within a box at the top of the form, directly under the name and address of the issuing company: PURCHASED AT WWW.CHASEAGENCY.COM:: RETAIL AGENT: CHASE CARMEN HUNTER:: 4PEACE PIPE LANE, FREDERICKSBURG, VA 22401 The second alteration to the declaration page consisted of the following language, neatly printed and contained within a box at the bottom of the form, which covered the insurer?s authorized countersignature: TEL: 330-333-BUY3(2893)(CALLS & TEXTS) WWW.CHASEAGENCY.COM THIS POLICY WAS ISSUED WITH THE FULL KNOWLEDGE THAT THE INSURED OWNS FOUR EQUINE THAT ARE NOT EXCLUDED The alterations, by their appearance, give the impression that they were printed on the declaration page as issued by ABIC. By not providing Mr. Pierce with the original of his policy, it was not apparent that the alterations were performed by applying some form of appliqué to the declaration page issued by ABIC. Rather, Respondent created the clear impression that ABIC had authorized Respondent to act as its retail agent, had specific knowledge of Mr. Pierce?s horses, and had acknowledged that the horses were not excluded from coverage. None of those impressions was true. Mr. Pierce recognized that the declaration page provided to him was not for the requested animal liability policy, but assumed it was for the “complementary policy which [he] didn?t even ask for that she threw in on the deal.” He continued to ask for a declaration page for the animal liability policy he was told he had purchased, to no avail. The renters? policy provided to Mr. Pierce contained little in the way of specific coverages for liability associated with Mr. Pierce?s horses. The ABIC renters? insurance policy is not an animal-liability policy, and was not the insurance requested by Mr. Pierce. Approximately 30 days after having purchased what he believed to be transferrable animal liability insurance, Mr. Pierce purchased a home with acreage for his horses. Mr. Pierce contacted Respondent to have the policy transferred to his new home, consistent with Respondent?s earlier representations. Respondent then advised Mr. Pierce that the policy could not be transferred so as to apply to his newly- acquired residence. Since the policy could not be transferred, Mr. Pierce asked that it be cancelled and his premium refunded. Respondent advised Mr. Pierce that the request to cancel the policy would have to be handled by her, and that it would take 60 to 90 days before he would receive a refund. Mr. Pierce never received a refund, and never received the animal-liability insurance he was promised. In her dealings with Mr. Pierce, Respondent acted as, and held herself out as an insurance agent of ABIC. Given the facts and circumstances of her dealings with Mr. Pierce, including her alterations of the ABIC declaration page to identify herself as the “retail agent,” her collection of a “brokers fee,” her insistence that all claims go through “her and her only,” and that she be solely responsible for payment and cancellation of the policy, the only reasonable conclusion that can be drawn from her conduct was that she intended to convey the impression that she was appointed by ABIC to act as its agent in the sale of insurance. Respondent was not appointed by ABIC, nor was she authorized to act as an agent on its behalf. The only plausible inference that can be drawn from Respondent?s use of the name “CHASEAGENCY” on the altered declaration page, and her identification of herself as the “Retail Agent,” is that Respondent intended to act and to be perceived as acting as an insurance agency. Respondent did not hold an insurance agency license or registration. The facts of this case demonstrate that Respondent, by her statements and by her alteration of the declaration page, willfully misrepresented the conditions and terms of Mr. Pierce?s insurance policy with the intent to deceive him about its true nature. By so doing, Respondent engaged in fraudulent or dishonest practices in the conduct of business under her license. By consciously altering the declaration page so as to hold the “CHASEAGENCY” out as an insurance agency, and herself out as an agent of ABIC, Respondent knowingly made false material statements regarding herself and the policy. The only reasonable explanation for Respondent?s method of providing insurance is that she desired to isolate Mr. Pierce, the insured policyholder, from ABIC to the maximum extent possible so as to perpetuate Respondent?s pattern of deception and manipulation in the sale of insurance under her license. As a result of the foregoing, Respondent exhibited a lack of fitness and trustworthiness to engage in the business of insurance. COUNT IV and COUNT V - Unfair Competition or Deceptive Trade Practices Count IV and Count V are based on the same conduct, described below, and seek relief under the same statutory provision, section 626.611(7).1/ Thus, for purposes of this Recommended Order, Count IV and Count V are considered as a single count for purposes of applying the penalty guidelines set forth in the conclusions of law. As a result of Respondent?s actions with regard to the Kalmanson Agency as described herein, the Kalmanson Agency filed suit against Respondent in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida seeking injunctive relief. The Court entered a Temporary Injunction without Notice on February 3, 2009, and a Final Judgment for Permanent Injunctive Relief against Respondent on March 14, 2011. Those orders enjoined Respondent from, among other things, using the Kalmanson name in any way on any of her websites, from diverting customers and business by using the Kalmanson name, and from otherwise engaging in unfair competition or deceptive trade practices by using the Kalmanson name. On August 29, 2012, the Court entered an Order of Civil Contempt against Respondent for her continued violations of the Court?s Final Judgment for Permanent Injunctive Relief. On October 31, 2012, the Court entered an Amended Criminal Contempt Order against Respondent for her willful and contemptuous violation of the Court?s injunction, and her direct and intentional disobedience of the Court?s orders. As a result of Respondent?s willful and contemptuous disregard for the authority of the Florida courts regarding a matter arising from her marketing and sale of insurance in Florida, Respondent exhibited fraudulent and dishonest practices related to her Florida non-resident license, and exhibited a lack of fitness and trustworthiness to engage in the business of insurance.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department of Financial Services, Division of Insurance Agents and Agency Services, enter a Final Order revoking the license of Respondent, Chase Carmen Hunter, No. E062693, as a Nonresident Life, Health, and Variable Annuity agent and as a Nonresident General Lines (Property & Casualty) agent. DONE AND ENTERED this 26th day of June, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 June, 2013.
The Issue The issue is whether Respondent, Walt Disney Parks and Resorts US, Inc. (Disney), a place of public accommodation, violated section 760.08, Florida Statutes, by denying Petitioner, a handicapped individual, access to its property because his service animal was unleashed.
Findings Of Fact Background Disney is a public accommodation whose principal business activity consists of the ownership, operation, and management of theme entertainment parks, resorts, and related facilities located in the Orlando area. The theme parks include Magic Kingdom Park, Epcot, Animal Kingdom Park, and Hollywood Studios. Petitioner is a 50-year-old male who resides in Winter Garden. In 2004, while living in Illinois, Petitioner was severely injured when a large truck rear-ended his motor vehicle. In 2007, he was declared permanently disabled due to leg and spinal injuries suffered in the accident. As a result of these injuries, he walks only short distances with the aid of a walking device or cane. For longer distances, he normally uses a motorized scooter. Petitioner moved to Florida around 2012 to escape the cold weather in Illinois. He testified that he and his family have always enjoyed visiting Disney theme parks and other non- Disney tourist attractions in the area, and this was one of the primary reasons he moved to the Orlando area. Until this dispute arose, he was a Disney Annual Passholder, which allowed him multiple admissions to the theme parks at a discounted rate. Although Petitioner says he used the pass to access the theme parks on numerous occasions, other than those at issue in this case, there is no credible evidence that he was allowed to enter the parks with an unleashed service animal on any occasion. The Service Animal In early 2013, Petitioner decided to acquire a service animal to assist him while ambulating inside and outside his home. He purchased Lily, an eight-week-old, female Dogo Argentino, which is a large, white muscular dog developed in Argentina primarily for the purpose of big-game hunting. A strong, powerful dog with a large bite, it is one of the deadliest breeds in the world and is banned in some European countries. Lily resembles a pit bull in appearance and weighs almost 100 pounds. In contrast, a mature male Dogo Argentino weighs around 150 pounds, but does not look like a pit bull. Petitioner testified that he wanted his service animal to look like a pit bull, so he chose a female even though a male is easier to train. Although purchased in early 2013, Lily did not begin service training until April 2014, or one month before Petitioner's first claim of discrimination at the Epcot theme park. Petitioner selected Southland Dog Training (Southland) as Lily's trainer. Lily was the first Dogo Argentino Southland had trained to be a service animal. Not surprisingly, Southland has an indemnity provision in its training agreements to protect itself from liability in the event a dog that has gone through the training program ends up harming someone. And even though Lily was given training on interacting safely with children in a crowded setting, and never exhibited aggression during its training sessions, Southland does not guarantee the dog will not harm someone. In fact, Southland's owner admitted that "[a]ny and every dog has the propensity to be aggressive, it's in their genes[,]" and "[a]ny breed of dog can be aggressive." A dog's propensity to be aggressive was also confirmed by Disney's canine expert, Bob Gailey, a professional police dog and civilian dog trainer who has trained between 20,000 and 30,000 dogs over a 65-year career, including Dogo Argentinos, and conducts seminars on dog training and safety issues. He explained that no amount of training can guarantee that a dog will not bite someone with or without provocation. For obvious safety reasons, he emphasized that service animals must be kept on a leash while in crowded public areas, such as a Disney theme park. Mr. Gailey noted that "freakish incidents" can and do occur, and that even trained dogs, such as Lily, need to be on a leash to protect the safety of others. In fact, Mr. Gailey pointed out that he has been bitten around 100 times by trained dogs, without any provocation, including some whose owners say they have never bitten anyone. He added that due to a Dogo's large bite, it could "definitely" kill a child. Thus, Disney has a real and legitimate safety concern, and not one based on mere speculation, that allowing unleashed service animals on its property poses a potential safety threat to other guests, especially children. To address this concern, Disney has adopted a policy for service animals, described below. Lily has been trained to perform the following tasks: open doors; push handicap buttons; retrieve items; and pull Petitioner out of a body of water. However, Petitioner can perform some of these tasks on his own, such as pushing handicap buttons and picking up items. Petitioner contends that forcing him to keep Lily on a leash or harness at all times could result in the leash becoming tangled in the scooter's wheels. However, Mr. Gailey established that besides being trained to perform all functions on a leash, service animals can be taught how to avoid getting their leashes tangled up with the wheels. Being leashed or tethered will not interfere with Lily performing her assigned tasks. Petitioner's Limitations Petitioner has had multiple surgeries related to his accident, the last one on his left shoulder on February 2, 2010. At a follow-up appointment, Petitioner's surgeon noted that he "has full range of motion, minimal pain at the end ranges of forward flexion [and] 4+/5 strength in all planes " Pet'r Ex. 21, at 00484. In plainer terms, this means that he has nearly normal strength and full range of motion in his left shoulder, with minimal pain. Petitioner does not dispute the doctor's findings. Although his right shoulder and arm are not at normal strength for an adult male, there are no serious medical issues with either, and Petitioner acknowledged that there are no physical limitations in using them. In fact, Petitioner uses his right arm to drive and steer his motorized scooter. When walking short distances, Petitioner uses a cane with his right arm, sometimes with Lily, other times without her. When Lily accompanies him, she provides balance and stability on his left side. When riding in his motorized scooter accompanied by Lily, Petitioner normally steers with one hand and grips a leash or harness attached to Lily with his other hand. The dog usually walks in front, or to the side, of the scooter. However, when the dog is in the follow position off-leash, Petitioner cannot see Lily and thus is unable to control her, even if she is wearing an electronic collar. As the Southland trainer explained, if the owner cannot see the dog, then they do not know what the dog is doing. Petitioner admits that he cannot maintain control of his service animal at all times without holding a leash or harness. In both his Petition for Relief and testimony at hearing, Petitioner acknowledged that except for "an extended period of time," his disability does not prevent him from being able to hold and use a leash or harness on Lily. This was confirmed by his wife. Despite the injury to his left shoulder, he has held and used a leash or harness with that arm. The greater weight of evidence supports a finding that Petitioner is able to hold a leash with his hand, at least for short or moderate periods of time, or that a leash can be easily tethered to his wrist or a mobility device on the scooter. A contention that the leash may become entangled in the scooter's wheels has been rejected for the reasons stated in Finding of Fact 8. Disney's Policy on Service Animals Disney theme parks are typically crowded and noisy. On any given day, tens of thousands of guests, including large numbers of young children, frequent the parks. Service animals are routinely granted access to the theme parks. However, Disney park rules provide that "[s]ervice animals must be under the control of the owner at all times and should remain on a leash or in a harness." Resp. Ex. 1, p. 2. The requirement is not just that the dog wear a harness, but rather that the harness is being used. For the reasons expressed above, there are legitimate safety concerns that underpin this rule. State and federal law require that a visitor seeking entrance to a public accommodation with a service animal must have the animal on a leash, harness, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of one of those restraints would interfere with the animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control, such as voice control, signals, or other effective means. See § 413.08(3)(a), Fla. Stat.; 28 C.F.R. § 36.302(c)(4). Disney contends that its policy conforms to both state and federal law. The Charges The Complaint, filed on February 3, 2015, alleges that on May 4, 2014, Petitioner was denied admission to Epcot because his dog was unleashed; on August 27, 2014, he was asked to leave Downtown Disney because Lily was unleashed; on October 9, 2014, he was denied admission to Magic Kingdom because Lily was unleashed; and on December 5, 2014, he was denied admission to Animal Kingdom due to Lily being unleashed. However, no evidence was presented concerning the visit to Magic Kingdom in October 2014, and that charge has been disregarded. The testimony concerning Petitioner's other three visits to the theme parks is sharply in dispute. The undersigned has accepted as being the most credible the following version of events. Epcot Visit in May 2014 On May 4, 2014, Petitioner visited Epcot with his wife, daughter, and service animal. As Petitioner entered the International Gateway in his motorized scooter, Lily was unleashed and sitting near the bag check area in front of the park, which was around ten or 15 feet from Petitioner. A main entrance cast member is a Disney employee trained on park rules who observes guests entering the park. A cast member noticed that Lily was off-leash, which was against park rules, and stopped Petitioner, informing him that he must have the dog on a leash before entering the park. Petitioner refused to do so. Petitioner's contention that the cast member had a belligerent and hostile attitude during the encounter is not credited. Even assuming arguendo this is true, treating a guest in a rude and hostile manner does not equate to discrimination by the public accommodation. See, e.g., Lizardo v. Denny's, Inc., 270 F. 3d 94, 102 (2d Cir. 2001). While Petitioner spoke with a second cast member, Lily was unleashed and untethered, approximately ten to 15 feet away from him near a half-wall by the entrance to the park. During the 30-minute encounter, there was little, if any, attention being paid to Lily, who had no physical tether to prevent her from wandering off. A cast member then contacted Jim Beeson, Epcot's Operations Manager, who arrived to speak with Petitioner and apologized for the delay in having to walk from another area of the park. Petitioner informed Mr. Beeson that he was unable to hold a leash and needed to have his service dog untethered. During his conversation with Petitioner, Mr. Beeson observed Petitioner talking with his hands and did not see any indication that Petitioner was unable to hold a leash. He also observed that there was no leash on Lily, unlike any service dog he had encountered while working at Disney. Mr. Beeson further observed that Lily was not always by Petitioner's side, she tried to get up and wander off several times during the conversation, and she did not respond to voice commands. In fact, Mr. Beeson noticed that Petitioner's wife continually had to push the dog back so that it would not leave. Based on his 33 years of experience at Disney, which includes observing numerous guests with service animals, Mr. Beeson concluded that Petitioner could not maintain control over his dog with voice and hand signals. At no time during the interaction did Lily perform any tasks for Petitioner. In Mr. Beeson's opinion, he questioned whether Lily was even qualified as a service animal. After speaking with Mr. Beeson for approximately 30 minutes, Petitioner decided to leave the park. Disney did not deny Petitioner access to the park on account of his disability, or simply because of Lily's breed. Nor was he treated differently than any other guest with a service animal. Rather, Disney's action was motivated solely by concerns for the safety of the other guests. Had he agreed to place a leash on Lily, Petitioner would have been admitted to the park. Downtown Disney Visit in August 2014 On August 27, 2014, a guest notified a Downtown Disney security cast member of concerns about a large, unleashed dog on the property, which turned out to be Lily. Security control radioed the duty manager, Dan McManus, who arrived on the scene less than ten minutes later. When he arrived, Mr. McManus saw Petitioner, accompanied by his wife, speaking with the security cast member. Petitioner told Mr. McManus that he was unable to hold a leash due to his disability. According to Mr. McManus, he did not see any indication that Petitioner was unable to hold a leash, as he observed Petitioner waving a large binder and flipping through pages of what he claimed were American with Disabilities Act (ADA) guidelines. Mr. McManus is familiar with ADA guidelines as he frequently encounters guests with service animals on the property. He noted that during his seven years at Downtown Disney, he has observed service animals of all different shapes and sizes on the property. However, Mr. McManus explained that these service animals are always on a leash or tether, and that if a guest is in a wheelchair or electric scooter, the guest may hold a leash, the leash may be tethered or attached to the scooter or wheelchair, or another member of the party may hold the leash for the guest. Petitioner refused to comply with any of those options. Mr. McManus again informed Petitioner that Disney's policy required that service animals be on a leash. He noticed that Lily was wearing some sort of a shock collar, but did not recall the dog wearing a harness. At no time during the interaction did Lily perform any tasks for Petitioner, who had informed Mr. McManus that Lily helps open doors for him. Before Mr. McManus arrived, Petitioner telephoned the Orange County Sheriff's Office and requested that a deputy sheriff be sent to the theme park, presumably to observe the encounter. Petitioner's conversation with Mr. McManus ended when two deputy sheriffs arrived on the property. At that point, Mr. McManus went back to his office to check with the Services for Guests with Disabilities Department to inquire whether an electronic collar would satisfy the leash requirement for service dogs. He was told to adhere to the Disney policy and require that the dog be on a leash. Before Mr. McManus returned, Petitioner departed the premises. Disney did not deny Petitioner access to the park on account of his disability or because of Lily's breed, and he was not treated differently than any other guest with a service animal. Had Petitioner used a leash or harness for Lily, he would not have been approached or stopped during his visit to Downtown Disney. Animal Kingdom Visit in December 2014 On December 5, 2014, Petitioner visited Animal Kingdom with his wife and mother. He was stopped at the front entrance because Lily was not leashed or tethered. Larry Hetrick, a guest service manager at the park, was called over to speak to Petitioner. When Mr. Hetrick arrived, Petitioner was speaking with two security employees. No other Disney personnel were present. Petitioner's perceived fear that Disney personnel were "waiting" for him when he approached the park is unfounded. Petitioner explained his interpretation of federal laws and civil cases to Mr. Hetrick but never said why Lily could not be on a leash. Contrary to Petitioner's testimony, Mr. Hetrick did not tell him that Disney's policies superseded federal law, and he patiently listened to Petitioner's summary of the law while examining his paperwork. At no time during the encounter did Lily perform any service animal tasks. Ten minutes later, the duty manager for Animal Kingdom arrived and the three spoke for another ten minutes or so. When Petitioner told them that he intended to file a legal action against Disney, the conversation ended. He was not told that he "had to leave the premises." Disney did not deny Petitioner access to the park on account of his disability or because of Lily's breed. Moreover, he was not treated differently than any other guest with a service animal. Had Petitioner complied with Disney's policy, he would have been able to access the park.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 26th day of April, 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 April, 2016. COPIES FURNISHED: Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed) Geoffrey E. Parmer, Esquire Dogali Law Group, P.A. Suite 1100 101 East Kennedy Boulevard Tampa, Florida 33602-5146 (eServed) Jeremy M. White, Esquire Kaye Scholer, LLP The McPherson Building 901 15th Street, Northwest Washington, D.C. 20005-2300 (eServed)
The Issue The parties stipulated to certain facts involving the allegations of Count I and additional testimony was received concerning the events which gave rise to the charges. The ultimate issue is whether permit as provided for in Rule 21X- 15.01, Florida Administrative Code, applies to the practice of veterinary medicine by' a veterinarian away from his licensed premises when the veterinarian practices veterinary medicine? The Hearing Officer has read and considered the proposed recommended orders. To the extent the proposed findings of fact have not been included in the findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact Alex J. Pellini, the Respondent, is and was at all times pertinent to these charges, a licensed veterinarian having been issued license number 0000880 by the Board. His last known address is Second Avenue, Second street Stock Island, Key West, Florida) 33040. Dr. Pellini was asked by representatives of organizations (the local group) involved with the humane treatment of animals to assist the animal owners of Key West, Florida, by providing low-cost spay and neuter operations inn that city. The need for such services arose from lack of a spay and neuter clinic in the area. In response to this request, Dr. Pellini, who practiced in the Miami area at the time, said he would perform this service if the local group could find a suitable location. The local group obtained the free use of Joe's Grooming at 1411 First Street, Key West, during the time it was regularly closed. Dr. Pellini inspected the facility and advised the local group of the steps that would have to be taken to clean and disinfect the area to be used as an operating room. Patricia A. Marker, a member of the local group who had retired in the area after working as an operating room nurse for a veterinarian in Fort Lauderdale for many years, cleaned and disinfected with her husband's assistance the area to be used. Dr. Pellini inspected the area before a temporary operating area was established and found it sanitary. On or about October 27, 1980, Dr. Pellini brought from his regular place of business, which was duly permitted, all supplies, medicines and equipment necessary to establish a safe and adequately equipped operating facility. The local group advertised the availability on that date of the spaying and neutering services, and approximately thirty spay/neuter operations were performed by Dr. Pellini at the temporary operating facility established at Joe's Grooming on October 27, 1980. No permit was obtained for the premises. No temporary permit is provided for in the rules. Veterinarians in the practice of their profession are frequently and routinely required to practice veterinary medicine away from the regular place of business.
Recommendation Based upon the findings of fact and conclusions of law, the Hearing Officer recommends that the Administrative Complaint against Alex J. Pellini be DISMISSED. DONE and ORDERED this 21st day of September, 1982, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1982. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lester Witherspoon, Esquire 642 Northwest 12th Avenue Miami, Florida 33136 Jane Raker, Executive Director Board of Veterinary Medicine 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Patrick J. Wright, Respondent, as at all times here relevant, licensed as a doctor of veterinary medicine by the Florida Board of Veterinary Medicine, Petitioner. In April, 1978 Mrs. Gertrude Cole took her cat to Respondent's animal hospital because the cat appeared listless and was not eating. Prior to presenting the cat, Mrs. Cole called the clinic to inquire about the price of an examination and was advised it was $7. Upon Mrs. Cole's arrival at the clinic with the cat, she described the cat's symptoms to the receptionist, who inquired if the cat's shots were up- to-date. When the cat was taken into the operatory Respondent came in with several needles and proceeded to give the cat four injections in the neck. He then inquired about the cat, took the cat's temperature, took a blood sample, announced the cat was anemic, and gave the cat another shot. This latter shot was an antibiotic. Mrs. Cole did not request the cat be given the annual shots for rabies, distemper, etc. Respondent's version of Mrs. Cole's visit is that Mrs. Cole only wanted her cat vaccinated and after he gave the four vaccinations he inquired about the condition of the animal and was told the cat was listless and not eating. He then examined the animal, saw it had fleas, gave it an antibiotic, and took a blood sample, which test revealed the cat had hemobartonella. When Mrs. Cole said she had other cats at home, Respondent told her she should bring them in for vaccinations because of the hemobartonella of the cat he had just examined. Respondent also told Mrs. Cole that the cat needed intravenous feeding, that the cat's chance for survival was 50-50 and that the cat should be left at the animal hospital for treatment. When Mrs. Cole returned home she called to inquire how the cat was doing and was told the cat was on intravenous feeding and that she should bring her other pets in for shots. Mrs. Cole returned to the clinic, inquired about the cost of the treatment that was being given her cat, but was unable to get a satisfactory answer. The same afternoon Mrs. Cole had the cat put to sleep. She was presented with a bill for $97.00, which included examination fee, $7; intravenous fluids, $15; injections, $7; blood test, $12; immunization (rabies, pneumonitis, rhinotracheitis arid distemper), $32; medicated bath and dip, $8, and euthanasia, $16. Mrs. Jacueline Pate testified she was in the waiting room when Mrs. Cole came in and that she heard Mrs. Cole say that she only wanted the cat vaccinated and didn't want anything else done. Not only is this testimony in conflict with Mrs. Cole's testimony, but also it is at variance with the bill submitted to Mrs. Cole by Respondent, which included $7 for an examination. On 6 June 1978, Stanley Locke took his dog, a cock-a-poo, to Respondent for a rabies shot, dipping and a health certificate. When he left the dog at the animal hospital for this treatment, the dog appeared all right and Locke was advised the cost for rabies shot and dip would be $16. When Locke returned several hours later to pick up the dog, he received a bill of $66, which he paid. This bill included health certificate, $10; injections, $7; blood test, $12; immunizations (rabies, booster DLH, and parainfluenza) $22; bath and dip, $8; antibiotic capsules, $4, and tablets, $3. At this time the dog appeared well but Respondent, or his receptionist, told Locke the dog had thrown up and had received treatment. A few days later, the dog showed signs of illness, and on 12 June 1978, Locke took the dog to Dr. Widdeowson. He did not go back to Respondent because the bill from Respondent had been much higher than he had been led to expect. Locke testified the dog became lame the following morning. However, Dr. Widdeoson's records show that he saw Locke's dog June 12 and 13, six days after Respondent treated the cock-a-poo. Respondent recalled treating Locke's dog, which he described as a nervous, excitable pet who vomited a little grass when he came in the hospital. He administered antibiotics to the dog because it had a temperature of 102 degrees F. but looked fine. The blood sample was taken to issue the certificate of health. Following the bath and dip, the dog had a loose bowel movement so Respondent treated the dog for diarrhea after his receptionist was unable to contact Locke. Respondent and Respondent's expert witness both testified that the normal temperature of a dog is 100.5 degrees F. to 102.5 degrees F., and the same is true of cats. This testimony was not disputed. Similarly, Respondent's expert witness's testimony that diarrhea or vomiting could be caused by diet or excitement was not contradicted. On July 7, 1978, Gail Echols took her cat to Dr. Wright for emergency treatment around 10:00 p.m. Mrs. Echols's cat was obviously ill and she thought her cat had a recurring kidney malfunction. Wright's examination revealed the cat had low body temperature (hyperthermia) and was comatose. Wright's policy is to vaccinate all animals which remain in his hospital unless very ill. On the evening of 7 July, Mrs. Echols's cat was too sick to be vaccinated and Mrs. Echols requested the cat not be vaccinatsed. Mrs. Echols was told State law required vaccination of animals left overnight in a hospital. When she questioned this, she was told it was the hospital policy to vaccinate animals left overnight in the hospital. When Wright returned to the hospital the morning of 8 July, Mrs. Echols's cat was walking around and Respondent vaccinated the cat. Approximately one hour later the cat died. The bill presented to Mrs. Echols, which she paid, was $88. Thirty- two dollars of this total was for vaccinations. After Mrs. Echols complained about the bill, $32 was refunded to her. The disparity between Mrs. Echols's testimony and Dr. Wright's testimony regarding the time the vaccinations were given to the cat is not material. Mrs. Echols testified the shots were given over her protest the night the cat was taken to Wright and that when she called the following morning to inquire about the cat's condition she was told Wright had not yet come in and the cat was dead. Respondent's testimony was that he remained at the hospital until 2:00 a.m. and vaccinated the cat when he returned the following morning. On August 17, 1978, Susan Likens took her cat, "Misty", to Respondent to determine why the cat was scratching its ears. Upon examination, Wright told Mrs. Likens her cat had ear mites and an infection. The cat's temperature was normal. Respondent also told her the cat needed its shots. Mrs. Likens first said she would get the vaccinations when the cat was well. However, she reluctantly gave Wright permission to vaccinate the cat. Upon leaving the hospital, Mrs. Likens was given some medication in a bag. When she got home she found the bag also contained shampoo and flea dip for her dog. The medication given for Misty caused the cat's ears to crack and bleed. A few days later, Mrs. Likens called Respondent's office to advise about the cat's ears. She was told by the receptionist she could come in and get antibiotics to put in the cat's ears. She stopped by and was given medication without further examination of the cat. Some two weeks later the cat died due to distemper. Respondent's version of the incident involving the Likens cat was not materially different from Mrs. Likens's version. His version of prescribing medication without an additional examination was that his receptionist told him Mrs. Likens called to say her dog had destroyed the medication given for the cat and he only refilled the prescription. No evidence was presented that the second medication prescribed was the same as or different from the ear antibiotics billed to Mrs. Likens on Exhibit 4. The bill presented to Mrs. Likens for $61.50 included $32 for vaccinations (rabies, distemper, pneumonitis, and rhinotracheitis) and $9 for dog shampoo and dip. Neither of the latter two items had been requested by Mrs. Likens. Hemobartonella is transmitted by sucking insects such as fleas and ticks. There is no vaccination for hemobartonella and it usually manifests itself in an animal when the animal has been weakened by another primary illness. Hemobartonella can be treated with antibiotics, steroids and vitamins. The manufacturers of vaccines used for animal innoculation specify the vaccines be given to well animals. There are two reasons for this instruction. Primarily, the vaccine is likely to be ineffective if administered to an unhealthy animal. Secondarily, vaccinations, and particularly those manufactured from live viruses, place stress on the animal. If the animal is already weakened by illness, the additional stress caused by vaccination usually outweighs the potential benefit of the vaccination. Pneumonitis is an infection animals get which was described as similar in severity to the common cold in humans. Vaccination for pneumonitis was not favored by the majority of veterinarians in 1978 and is unlikely to be effective on ill animals. When questioned by a member of the Ethics Committee of the local veterinary association regarding complaints received about charges rendered for his services, Respondent replied that he expected such complaints to continue and as long as he had their money in his pocket he didn't care. Respondent has a reputation among his peers of overtreating animals, thereby increasing the cost to the client. One witness described this as performing unnecessary work to the point of being detrimental to the animal such as vaccinating an animal which is about to die from some other illness. Although one expert witness called by Respondent testified that vaccinations administered to ill animals won't hurt the animal, even he admitted such shots were unlikely to produce the immunization intended. The credible evidence in this regard is that immunizations should not be administered to unhealthy animals, that elective vaccinations should be administered only after the animal has been examined, and no vaccination should be administered without the owner's consent and concurrence. When issuing a health certificate, the veterinarian certifies the animal to be free from infection or communicable diseases and free from rabies. The number and quality of witnesses compels a finding that Respondent was sufficiently interested in vaccinating animals that his receptionist actively solicited such vaccinations; and Respondent was aware, or should have been, that inaccurate and incorrect information regarding vaccinations and the law was given out by has receptionist.
The Issue The issues requiring adjudication in this cause concern whether the Respondent's license as a veterinarian in the State of Florida should be revoked, suspended or other discipline imposed for alleged violations of Chapter 474, Florida Statutes. Those violations involve alleged cruelty to animals treated by the Respondent and whether his treatment and behavior toward those animals amounted to fraud, deceit, negligence, incompetence or misconduct in the practice of veterinary medicine. Also at issue are charges in the Complaint concerning whether the Respondent violated the enumerated sections of Chapter 474, Florida Statutes, involving being convicted or found guilty, regardless of adjudication, of a crime which directly relates to the practice of veterinary medicine. It must also be determined whether the Respondent, with regard to some of the animals treated and named in the Complaint, failed to maintain his veterinary medical records in accordance with the related and enumerated subsections of Chapter 474, Florida Statutes, and the related rule. Finally, if the charges, or any of them, are substantiated, the question of a recommended penalty must be addressed.
Findings Of Fact The Petitioner, DEPARTMENT OF PROFESSIONAL REGULATION ("Department"), is an agency of the State of Florida charged with regulating the practice of veterinary medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 474, Florida Statutes. The Respondent, is a licensed veterinarian in the State of Florida, holding license number VM0000710. The Respondent maintains his practice at 820 Creighton Road, Pensacola, Florida 32504. The Respondent is the owner and managing veterinarian of Creighton-Davis Animal Hospital located at that address. Counts One through Three of the Administrative Complaint relate to the allegations that the Respondent intentionally, cruelly and repeatedly struck a dog named "Peaches" belonging to Cynthia Barrera, which had been brought to him for veterinary care. It is alleged that on or about October 9, 1986, after the alleged cruel treatment, the dog was found dead in the Respondent's clinic by a staff member. It is alleged that he told the owner of the dog that the dog had "escaped", knowing that story to be untrue. A former staff member employed by the Respondent, Tina Lyttle, submitted an affidavit to the Santa Rosa County Animal Protection Officer, Ms. Betty Simms, from which sprang the charges concerning the dog named "Peaches". She and the Respondent were the only ones present in the examining room on the date in question. "Peaches" had been brought in by its owner to be shaved; and, because the dog had a propensity to bite, he was required to be sedated for the procedure. Tina Lyttle maintained that the Respondent dragged the dog into the room by its leash, slung it up on the examining table, and ran the leash down through the drain hole at one end of the table to hold the dog's head down close to the surface of the table, to restrain the dog. She contends that the Respondent told her to hold the dog's hindquarters and hold a vein so that he could inject the anesthesia. He kept missing the vein and tried in both back and front legs to locate a vein into which he could inject the anesthesia. Tina Lyttle contends that the dog began growling, and the Respondent became enraged and began striking the dog on the back-legs, hips and rib cage and snatched the dog by the hair and slung him off the table which resulted in the dog being hung by the neck with his head and muzzle on the table and his body suspended in the air. She maintains that the Respondent then struck the dog on the muzzle with his fist and that the dog became unconscious due to choking as a result of this alleged handling. She also states that the Respondent was silent during this alleged episode. She then contended that the Respondent and she had an argument about his treatment of the dog and that she "stormed" out of the clinic to the kennel area. The Respondent, a short while later, went out and discussed the matter with her and attempted to placate her and get her to come back and assist him further. She came back inside, saw that the dog was already anesthetized and unconscious and, ultimately, shaved the dog at the Respondent's instruction. She left work that day and missed work the next day. She came back two days later and inquired of the Respondent and staff members about the dog. She alleges that some days later, staff member, Pat Guinn informed her that the dog had died at the Respondent's facility. Pat Guinn claimed in her testimony, that she found the dog dead in his pen and that the Respondent instructed her to put him in a bag and that she delivered the body of the dog to the Respondent and Ms. Vetitoe, another client of the Respondent. She testified that the Respondent directed her to put the body of the dog in Ms. Vetitoe's truck, or else the Respondent put the dog in Ms. Vetitoe's truck, (her testimony is inconsistent here) for the purpose of Ms. Vetitoe removing the dog from the premises and burying it. The Respondent describes the incident involving "Peaches" in quite a different light. The Respondent acknowledges that the dog was there to be shaved and otherwise cared for at the request of its owner, Ms. Berrera. He and Tina Lyttle were holding the dog on the table, as described. That is, the dog's head was cinched down close to the table by placing the leash through the drain hole in the table. This is accepted, proper veterinary practice in order to help restrain the dog and prevent the dog from injuring the veterinarian or his staff. As the Respondent was attempting to locate a vein whereby he could inject the anesthesia, during which time Tina Lyttle was holding the dog's hindquarters, the dog became belligerent, growling and suddenly bit the Respondent on his left forearm. The bite was a severe one going all the way through the upper part of the Respondent's forearm. The Respondent was in extreme pain and bleeding and struck at the dog, attempting to get him to release his hold. The dog's jaws were locked on the Respondent's forearm and ultimately, the Respondent acknowledges that he had to pry the dog's jaws open with a screwdriver to get him to release, all of which caused the Respondent extreme pain and blood loss. During this episode, Tina Lyttle became angry at the Respondent, shouted at him and remonstrated with him for hitting the dog and stormed out of the clinic. Another staff member assisted the Respondent in sedating the dog and preparing him to be shaved. The Respondent proceeded even though he had to stop and render first aid for his wounded forearm. Later he went outside and attempted to calm Ms. Lyttle down and finally got her to go back to work, although during their discussion she assaulted him by throwing him against the kennel building in a rage. Although the Respondent testified unequivocally that the episode occurred in this manner and that, indeed, the dog had bitten all the way through his forearm, both witnesses for the Petitioner, Tina Lyttle and Pat Guinn, denied that the biting incident occurred. The Respondent's version of events is corroborated, however, by Lt. Loria of the U.S. Marine Corps., who was a client of the Respondent and had just brought his dog in for care. The Respondent had noticed Lt. Loria on the premises and asked him to come to the examining room so that he could show him what had occurred. Lt. Loria observed, immediately after the injury to the Respondent's forearm, the wound caused by the dog, who was still in the room. This observation was made with the Respondent spontaneously telling Lt. Loria in no uncertain terms about the manner in which the dog had bitten him. Lt. Loria observed the wound in the Respondent's forearm and indicated that a pencil or fountain pen could have been stuck through the fang wounds. Lt. Loria testified by deposition in this proceeding and corroborated the Respondent's version. The Respondent had a noticeable scar from the wound on his arm and demonstrated it at hearing. It was observable during the investigatory process as well. The circumstances surrounding the death of the dog, described by Tina Lyttle and Pat Guinn, are also disputed by the Respondent and Ms. Vetitoe. Tina Lyttle maintained that she was informed by staff member, Pat Guinn, several days after the incident, that the dog had died on the premises; and then Pat Guinn testified concerning the manner in which she alleged that the Respondent, herself and Ms. Vetitoe arranged for the burial of the dog. The Respondent describes this incident differently. The Respondent stated that on the day after the biting altercation with the dog, he went to the dog's cage and observed that he needed exercise and needed to get out to relieve himself. Consequently, he snapped a leash on the dog and lead him through the clinic to exercise him outdoors. As he neared the patient waiting room, the dog got the leash in his mouth and bit through it, thus, getting loose. As luck would have it, a patient came in the front door of the clinic just at that moment and the dog rushed outside before the Respondent could stop him and escaped off the premises. The Respondent rushed outside, went into the field adjacent to the clinic looking for the dog and called him, to no avail. He then returned to the clinic in order to get into his truck and ride around in the neighborhood in an attempt to apprehend the dog. He maintains that he then met Carla Fowler, another staff member, who was returning from lunch nearby, told her of the dog's escape and enlisted her help in looking for the dog, instructing her to get into her car and also ride around the area in an attempt to locate the dog. The Respondent was never successful in finding the dog and ultimately bought the owner another dog of the same type, color and description and replaced the animal at his own expense. The owner and her children were satisfied with this arrangement and made no complaint concerning the Respondent's treatment of the dog or the unfortunate loss of "Peaches" and his replacement with another dog. The testimony of Ms. Vetitoe corroborates this version of events related by the Respondent. Ms. Vetitoe, by Pat Guinn's own admission, was present when the alleged disposal arrangement, related by Pat Guinn, was made. Ms. Vetitoe owns some thirty-four (34) dogs herself. She has been a client of the Respondent for many years. She testified that on no occasion has she ever buried a dog. She is an ardent animal lover and when her dogs expire, she has them cremated and their remains placed in urns. She testified that it was absolutely untrue that the Respondent or Pat Guinn had requested her help or assisted her in disposing of the dog. Her testimony is unequivocal that that episode never occurred and that she had never seen the dog "Peaches" which Pat Guinn and Tina Lyttle alleged to have died on the premises. Finally, in this regard, the testimony of Carla Fowler also corroborates the Respondent's and Ms. Vetitoe's testimony regarding the events surrounding the dog's demise. Carla Fowler acknowledged that when she was returning from lunch nearby, she saw the Respondent running through the field adjacent to the clinic looking for the dog. When he came back to the vicinity of the clinic, he told her that he was looking for "Peaches" and that the dog had escaped. She stated that he enlisted her help in finding the dog. The Respondent's, Ms. Vetitoe's and Lt. Loria's versions of the events surrounding the care, treatment and death of the dog "Peaches" are accepted. The testimony of Tina Lyttle and Pat Guinn concerning this incident is rejected in its entirety as incredible for the reasons related above and which will be treated more definitively, infra. Paragraphs 15 through 24 of the Administrative Complaint, including, from paragraphs 19 through 24, Counts Four, Five and Six, relate to an alleged incident involving a dog named "Star", belonging to Wanda Bruner. The dog was brought to the Respondent's clinic for veterinary care apparently consisting of a general examination, a flea dip and bath. It is alleged in paragraphs 15 and 16 of the Complaint that on or about September 5, 1986, the Respondent intentionally, cruelly and repeatedly struck the dog "Star" with his hands and bit the dog and that he intentionally and cruelly struck the dog on the head with a hose nozzle. Carla Fowler was the employee who assisted the Respondent in examining and caring for "Star" on the dates in question. The Respondent had placed the dog on the examining table at the outset of the episode of September 5, 1986, apparently for purposes of examination. Carla Fowler relates that the dog was "real nervous" and "I don't know if it was jerking or something, and Dr. Monroe hit it on the head and then on the rib cage and the dog got even more nervous. And then Dr. Monroe stooped down and bit the dog on the nose. And then the dog urinated all over the table". Ms. Fowler then testified that the Respondent told her to remove the dog from the room or words to that effect and then told her the next day to bring the dog in so they could give it a bath. He asked her to assist him in giving the dog a bath because he was afraid the dog would put up fight, in her words. She testified that the dog was trying to squirm along the side of the tub and the Respondent, who had a water hose in his hand, hit the dog on top of the head with the water hose nozzle, broke the head open, causing bleeding. She became upset with the Respondent's action, according to her testimony, and also testified that her husband walked in the door when the incident happened. Although her husband testified that he observed the incident where the Respondent is alleged to have struck the dog on the head with the hose nozzle, it is found that that incident did not occur and that he was not in a position to have observed it. Photographs and the evidence, consisting of the Respondent's Exhibits 1 and 2, coupled with the Respondent's testimony, are accepted as more credible and establish that the Respondent and Ms. Fowler were standing between the door and the bathtub bathing the dog in such a position that anyone coming in the back door, such as Ms. Fowler's husband, would have been unable to observe the alleged incident. The testimony of Ms. Fowler and her husband, as well as that of Pat Guinn, (itself, internally inconsistent in that, in her deposition, she stated that she observed the "hose striking incident" and in her testimony at hearing, admitted that she had not observed it), is rejected as incredible and unworthy of belief. The testimony of the Respondent is accepted. In this regard, the Hearing Officer is mindful of the testimony of Wanda Bruner, "Star"'s owner, who established that, indeed, stitches were observed by her in the head of the dog and that the Respondent told her that he had removed a cyst and stitched up the small incision involved. The testimony of the Respondent concerning this incident, as corroborated or explained by the testimony of Wanda Bruner, is accepted; and it is found that no acts of cruelty were perpetrated by the Respondent against the dog named "Star". Paragraphs 25 through 28 of the Administrative Complaint concern the dog named "Chipper" owned by Lorraine Purcell. Ms. Purcell brought the dog to the Respondent on approximately April 18, 1986 for a checkup and general examination. The Respondent determined that the dog's anal glands were infected, and he recommended to Ms. Purcell that surgery be performed to remove the anal glands. Ms. Purcell agreed to this procedure, and the Respondent performed the surgery removing the anal glands and stitching up the incisions. Some two or three days later, Ms. Purcell telephoned the Respondent's office concerning the release of her dog and was informed that the dog had suffered complications attendant to his "bothering" or chewing the stitches and that the dog needed to remain a few more days. She agreed to this and contacted the Respondent's office at least once more concerning when she should retrieve her dog. The Respondent conversed with her directly on April 23, 1986 and told her that he had had to re-operate on the dog because the dog had chewed or bothered his stitches such that surgical repair of the resulting wound was necessary on the dog's left side, that is, the left side of the anal opening. Upon learning that the dog had a large open hole or wound on the left side of his anus, Ms. Purcell became upset with the Respondent, came to the office and removed the dog from his care against his recommendation and sometime shortly thereafter, took the dog to another veterinarian, Dr. Clinton Chew. Dr. Chew described the large, open wound on the left side of the dog's anus as involving damage to the sphincter muscle with the effect that the dog was unable to control its bowel movements, and therefore, was dripping feces uncontrollably. Dr. Chew was unable to determine if the wound was caused by the dog's self-mutilation of the earlier incision but stated that it could have been the result of self-mutilation. He did not know how long the dog was in its owner's care after it had been removed from the care of the Respondent before being brought to him, but felt that it was approximately a day. He ventured no opinion about whether any self-mutilation could have occurred after the dog was removed from the Respondent's care and before being brought to him. Dr. Chew advised Ms. Purcell that two courses of treatment were available; healing by granulation, that is, the natural healing process for closing up the hole as small as possible before surgery; or immediate surgical intervention to try to close the open wound. Upon his advice, Ms. Purcell elected to allow some time for the natural healing process to close up the hole as small as possible with a view toward trying surgery at a later time if that was still necessary. After leaving the dog in Dr. Chew's care for some days, with the healing process started, Ms. Purcell or her husband retrieved the dog from his care and brought the dog home. The dog suffered at home because he was incontinent and dripping fecal material, such that he became very bothered by flies and could not come into the house as he formerly had. Because the dog was miserable and Ms. Purcell and her husband felt that his quality of life had severely deteriorated and because they were constantly having to clean up after the dog, she and her husband decided to have the dog put to sleep. Mr. Purcell, therefore, brought the dog back to Dr. Chew and upon their own initiative, instructed Dr. Chew to have the dog put to sleep. Dr. Chew testified that that was not his recommendation and that the Purcells had not instructed him to try to effect further repair of the wound surgically. In fact, by June 26, 1986, when the dog was brought in to be put to sleep, the natural healing process had substantially closed the hole although the dog was still incontinent because of the destruction to the sphincter muscle. In any event, without attempting further repair surgically, the dog was put to sleep on or about that date. Neither Dr. Chew nor any other witness established what the appropriate, professional veterinary standard of care in this situation might be. In any event, Dr. Chew testified that the portion of the incision which was not damaged, that is, on the dog's right side, was properly done. He was thus unable to say that the surgery was improperly or incompetently done or that it was unnecessary, nor did any other witness. Paragraphs 29 through 34 of the Administrative Complaint concern an incident allegedly occurring on October 30, 1986 when the Respondent attempted emergency veterinary care for a dog named "Dusty" belonging to Mr. Gary Ethridge. Dusty was brought in earlier on the morning in question very ill, dehydrated and cold. Pat Guinn or others on the Respondent's staff called him at home and told him that the dog had been brought in, and he told them that he would come into the office "in a little while" to see about him. They did not tell him that the dog was an emergency case. When he finally arrived at his office around 9:45 a.m. or 10:00 a.m., he realized that it was an emergency case and that the dog was in serious condition. He then attempted to perform a transfusion and used his German short-haired pointer, "Shadow", as the donor dog. As he had both dogs lying on the table, attempting to use his transfusion equipment, he had his face close to Shadow's head. He told his own dog, Shadow, to be still or be quiet in a loud voice which startled the dog and the dog whirled around and bit the Respondent on the nose, severely lacerating his nose, causing it to bleed copiously. Pat Guinn was the attending staff member at this procedure. The Respondent had Pat Guinn hold something to his nose to staunch the blood flow while he continued to attempt to render care to the severely-ill Dusty. Ultimately, because he was in extreme pain and losing blood from the wound in his nose, he was unable to complete the procedure and instructed Pat Guinn to take Dusty to Dr. Andress, a nearby veterinarian, to secure his care while the Respondent went to the emergency room to have his wound treated. This procedure was followed, but unfortunately the dog expired shortly after arriving at Dr. Andress' office. Pat Guinn testified that the dog "Dusty" came into the office early on that morning very ill and very cold. At about 8:15 a.m. to 8:30 a.m., she called the Respondent and told him of the dog's arrival. She maintains that she told him that morning over the telephone that it was a grave emergency. In any event, she testified that she and Carla Fowler put the dog on the table and placed warm water bottles around him and covered him up, awaiting the Respondent's arrival. She testified that the Respondent did not get to the clinic until 10:30 a.m. and got mad at her when he saw the condition of the dog, saying that it was an emergency and that they should have called him. She claims to have reminded the Respondent that she had told him that it was an emergency when she called him early that morning, shortly after 8:00 a.m. In any event, she testified that the Respondent, in attempting to establish the transfusion, became agitated and bit his dog, "Shadow", on the ear, whereupon Shadow bit him on the nose. Pat Guinn is not worthy of belief. Ms. Vetitoe, a confirmed animal lover, observed the procedure being performed on "Dusty", with the dog "Shadow" as the donor dog, and observed what transpired when the Respondent was bitten on the nose by Shadow. She corroborated the Respondent's own testimony upon which the above Findings of Fact are based to the effect that Shadow bit him on the nose, but he never bit any dog. Pat Guinn was a disgruntled employee. She was fired in February of 1987 by the Respondent and shortly thereafter, executed the affidavit upon which this prosecution was, in part, based. She testified that the Respondent had held a gun on her and threatened her on three different occasions and threatened to kill her and her children. She maintains that she told the Deputy Sheriff, Officer DeLeon, of this when she called him to report these incidents, as he put it, "Just for the record". In fact, Officer DeLeon testified that she had never reported the Respondent threatening her with a gun, holding a gun on her or pointing a gun at her. She also acknowledged in her testimony and in a deposition that she had been treated for stress and for a "nervous breakdown". Even Carla Fowler, another witness for the Petitioner, acknowledged that Pat Guinn had been known to exaggerate the truth. I find Pat Guinn's testimony too inconsistent, false and influenced by her hostility toward the Respondent, due to her discharge and, doubtless, to other altercations with him, to justify accepting it as probative of any facts in dispute. Paragraphs 35 through 37 of the Administrative Complaint charge that the Respondent inflicted cruelty intentionally and repeatedly on a cat named "Leo," belonging to Judith Gahimer, which had been brought to the Respondent for veterinary care. The cat "Leo" suffered from a hematoma in one ear caused by an injury (blood blister). The Respondent performed a "zepp" procedure which involves slitting the hematoma area and inserting a stainless steel ring so that the ring can move and prevent the wound from closing up, thus, enabling it to drain properly while it is healing. This is an accepted procedure for this type of injury, as acknowledged by Dr. Cordell, the Petitioner's expert witness. In this particular animal, however, for some reason, the incision did not heal properly. This was possibly because the cat kept irritating the incision. In any event, the cat had to be brought back to the Respondent on a number of occasions for cleansing of the wound and otherwise caring for it. On one of these occasions, Tina Lyttle assisted the Respondent in caring for the cat. The cat was on the examining table, and Tina Lyttle was assisting in restraining the cat while the Respondent treated it. Tina Lyttle stated that the cat became irritated and growled and hissed at the Respondent. She testified that she then observed the Respondent hit the cat approximately three times on the head with his hemostats and no- where else on the cat's body. Judith Gahimer, the cat's owner, believed that the cat's hips had been injured because the cat walked with a limp at some point after the Respondent was through treating him and was unable to jump anymore. She believed the cat's hip to be fractured. It was not demonstrated, however, even by the testimony of Tina Lyttle; that any permanent injury to the cat occurred during the Respondent's care. In fact, in her own testimony, Tina Lyttle, herself, was holding the cat with her hands in the area of his hips and shoulders to restrain him on the examining table. Any permanent injury to the cat was not caused by the Respondent. The cat's owner was unable to offer any definitive explanation for how the cat may have been injured or when. The Respondent vehemently denies striking the cat, as described by Tina Lyttle. I accept the testimony of the Respondent over that of Tina Lyttle concerning the "Leo" complaint. Shortly after the "Peaches" incident, Tina Lyttle was discharged by the Respondent as a result of a verbal and physical altercation he had with her. The Respondent offered to rehire her if she apologized for her behavior. The totality of the evidence of record reveals, however, that she harbors a great deal of resentment against the Respondent. Her bias against him is definitely demonstrated by the fact, as established by other prosecution witnesses, that she was the person who orchestrated the gathering of complaint affidavits against the Respondent, contacting Betty Simms of the Santa Rosa County Humane Society (after the Escambia County Humane Society refused to pursue the matters involved in this Administrative Complaint) and was the prime movant in getting Ms. Simms and the Santa Rosa County Humane Society to institute both the criminal and administrative proceedings against the Respondent. Her testimony is not credible nor worthy of belief. Paragraphs 38, 39 and 40 of the Administrative Complaint concern a spaniel by the name of "Beau". These paragraphs, which include Count Eight of the Administrative Complaint, allege that the Respondent, on a date unknown, was observed striking and biting "Beau". The incident involving "Beau" purportedly involved the Respondent treating the dog by cleaning his ears. The Respondent's assistant at the time, Peggy Maggard, helped with this procedure. Ms. Maggard testified that she was holding the dog on the examining table while the Respondent was cleaning his ears, which were apparently rather sensitive. She testified that the dog tried to pull away when his ears were being examined and that the Respondent hit the dog on top of the head and then struck him on top of the head again with his fist. He became angry, according to Ms. Maggard, and jerked the dog away from her and bit the dog on the nose, severely enough to leave a gash, causing the gash to bleed. Ms. Maggard testified that at this point she grabbed the Respondent by the throat and admonished him not to treat the dog so. She claims that the bite by the Respondent to the dog's nose caused a gash in approximately the pattern of the Respondent's teeth, or approximately one and a quarter inches wide, causing the wound to bleed and that the blows to the top of the head left a noticeable lump on top of the head which a person examining the dog would be able to feel. She testified that the dog's owner would be able to readily notice both injuries. The dog's owner, Henry Savelle, had used the Respondent for "Beau"'s care and treatment for a number of years, always finding the care and treatment rendered to his dog to be appropriate. Mr. Savelle retrieved his dog from the Respondent's care approximately the next day following the purported incident. He noticed no injuries whatever to the dog. He would have been able to notice such injuries inasmuch as he is frequently in close contact with his dog. The alleged incident concerning the dog "Beau" is supposed to have occurred, according to Peggy Maggard, in 1983, approximately six years before this proceeding. Ms. Maggard did not report this incident until May 14, 1987, some four and one- half years after it occurred. She did not report it until she conferred with Betty Simms, the Santa Rosa County Humane Society member and Animal Control Officer and only did this after learning that others who had worked for the Respondent had made complaints to Ms. Simms. The witness testified that she could not recall how she learned that others had made complaints and purported not to recall whether she had talked to other complainants about the Respondent and the care and treatment he had rendered to the various animals involved in those complaints. It is singular to observe, however, that she was purportedly able to recall clearly all of the events surrounding the incident allegedly occurring with the dog "Beau," even though it allegedly occurred some four and one-half years earlier than the events she purportedly cannot recall concerning how she came to learn of the complaints against the Respondent, the investigation by Animal Control Officer Simms, why she came to make her report in May of 1987, nor whether she conferred with the other complainants before or after making her report concerning "Beau". She did state, however, that upon reporting the "Beau" incident to Betty Simms, the Animal Control Officer, she already knew that others had made complaints, meaning the other former employees of the Respondent. Peggy Maggard, like the other former employees of who made complaints which engendered this prosecution, had had disagreements and altercations with the Respondent which resulted in her being discharged twice from his employ. The Respondent, for unexplained reasons, as in the case of some of the other employees, rehired her after discharging her for the first time. In any event, it is apparent, from the totality of the circumstances concerning the manner in which Ms. Maggard described this alleged incident and the manner in which it came to the attention of the Petitioner through the reporting of it, much belatedly, by Ms. Maggard, after she learned of the efforts by former employees to report incidents concerning the Respondent, that Ms. Maggard harbors a significant amount of resentment against the Respondent. She is a disgruntled former employee. This leads the Hearing Officer to the conclusion, considering circumstances of her employment, history, the purported nature of the "Beau" incident, and the apparent contact that the various former employees, including Ms. Maggard, had with each other concerning the reporting of these incidents, and the manner of reporting them, that Ms. Maggard fabricated this incident It is simply incredible that the Respondent would have bitten the dog on the nose, and Ms. Maggard was certainly not a convincing witness capable of establishing that fact. Perhaps the Respondent said it best when he testified, without contradiction that, at the behest of the Department, he had taken a battery of psychiatric tests and had "passed with flying colors". It is singular to note in reviewing the totality of testimony and evidence in this proceeding that the Respondent is the only witness who was subjected to and passed such psychiatric examinations. The Respondent vehemently denied that this incident occurred. His testimony is credible and accepted. The incident did not occur. The "medical records complaint" concerns paragraphs 41 through 47 of the Administrative Complaint. In this regard, it is alleged that on or about July 23, 1987, the Respondent was contacted by the Petitioner, through its investigator, Mr. Clum, and requested to provide treatment records for the animals, "Peaches, "Chipper", "Babe" and "Geoff", pets he had allegedly treated. The Respondent was presented with a "authorization" to release the records of each of the above- named animals, and is charged with failing or refusing to release those records to the Department's investigator, Mr. Clum, in alleged violation of Rule 21X-18.02, Florida Administrative Code. Indeed, the Respondent did fail to give the investigator those records. In this connection, the record evidence reveals that Tina Lyttle, in approximately February of 1987, was working at the clinic on a Sunday when the Respondent was not present. This was after the point in time when Tina Lyttle had assembled the various affidavits from employees or former employees and reported the alleged incidents to Ms. Simms. On this Sunday occasion, Ms. Lyttle called Ms. Simms; and at her behest, Ms. Simms went to the Respondent's office to make observations, take photographs and to examine the Respondent's records, which Tina Lytt1e allowed her to do. The two examined the Respondent's medical records without the Respondent's or the pet owners' authorizations. They also photographed certain records. Thereafter, on July 23, 1987, when the Respondent was asked by investigator Clum to provide the records of the four above-named animals, the Respondent attempted to do so. He went to his file cabinet where such records are kept and could not find the records. In fact, the record jackets concerning each of these animals were still in his file drawer; but the record materials contained therein were missing. The failure to supply these records to the Department's investigator was not shown to be the fault of the Respondent. He did not fail or refuse to provide the requested records. He tried to provide them. It was simply impossible because they had been removed from his files. Paragraphs 44 through 47 of the Administrative Complaint concern treatment records which the Respondent did provide at the Petitioner's request for the animals named "Leo", "Max", "Beau", and an unnamed mixed collie owned by Kimberly Rowe. It is charged in essence that the records furnished by the Respondent as to these animals failed to contain all of the information required by Rule 21X-18.02, Florida Administrative Code. During the course of the hearing, the Petitioner voluntarily dismissed the complaint as to the dog named "Max" and the unnamed mixed collie, leaving at issue the question of the adequacy of the records concerning the cat named "Leo" and the dog named "Beau". The Petitioner presented, as its expert witness in the field of veterinary medicine and practice, Dr. Joe Wilson Cordell, Jr. of Tallahassee, Florida. Dr. Cordell has been a veterinarian for some 17 years and was accepted as an expert in the practice of veterinary medicine. Dr. Cordell reviewed the medical records on the two named animals consisting of the Petitioner's Exhibits 84 and 85. With regard to the records concerning these two animals, Dr. Cordell did not opine that the treatment or care furnished was inadequate or did not accord with appropriate, professional veterinary medicine standards. He did observe that to some extent the records were incomplete in showing exactly what surgical procedure or other procedure might have been done, whether or not physical examinations were performed, prior to administering anesthetic, what type of anesthetic was used and the route of administration. Certain items, such as body temperature, physical examination findings, medications used, route of administration of the medications, and adequate descriptions of procedures involved were lacking from the records or, to some extent, were illegible. The ear procedure record concerning the dog "Beau," for June 23, 1983, does not contain a diagnosis. Dr. Cordell established that a diagnosis is required for such a medical record. In summary, Dr. Cordell could not tell from examining the records exactly what procedure was done regarding the ear treatment involved as to one of the animals nor were adequate record entries made regarding the results of physical examinations. He acknowledged, however, that the records probably meant a great deal more to the Respondent than they did to him inasmuch as he was unaware of the Respondent's manner of making notes. He observed that the Respondent's notes probably meant more to him than they would to anyone who examined them. Such medical records and notes are for the purpose of assuring continuity of treatment and to refresh the doctor's recollection of the status and condition of an animal which he may been treating and keeping records on for a number of years. The Respondent testified that he felt that he was making records in the manner taught at the veterinary school at Auburn where he was trained and at which his brother, who advised him concerning record-keeping, is a professor. Further, the Respondent, in an effort to improve his record keeping, prior to this prosecution, installed a $23,000.00 computer hardware and software system to help him to assure better and more adequate record-keeping. The observations of Dr. Cordell concerning the record-keeping as to the animals named "Leo" and "Beau" are accepted to the extent that they demonstrate the inadequacies in recording the observations, results of examinations, treatment details and diagnoses related to those two animals. Neither Dr. Cordell nor any other witness established, however, what the professional veterinary medicine practice standards are as to any illnesses or conditions presented and resulting treatment performed as to any of the animals referenced in the Administrative Complaint. There has been no demonstration that any care and treatment performed by the Respondent has failed to accord with any professional veterinary medicine practice standards. Thus, as to any of the animals referenced in the Administrative Complaint, there has been no showing of incompetency or misconduct in the practice of veterinary medicine nor has there been any demonstration of fraud, deceit or negligence in the practice of veterinary medicine. Concerning the so-called "General Complaint" appearing at paragraph 48 of the Administrative Complaint, the Respondent is charged with practicing veterinary medicine in a way that inflicted unnecessary pain and suffering on animals entrusted to his care and treatment which, in turn, is alleged to be misconduct in the practice of veterinary medicine, as well as being beneath the minimal standard of care required of veterinarians in the State of Florida. Once again, it is found that no minimal standard of care required of veterinarians in Florida has been established of record in this proceeding. In accordance with the above Findings of Fact, it has not been established that any unnecessary pain and suffering was inflicted on any of the animals entrusted to the Respondent's care and treatment. Finally, it is true that the Respondent entered a plea of nolo contendere to two counts of the offense of cruelty to animals, as shown by the Petitioner's Exhibit 83, the order of the circuit judge entered on July 6, 1987. The Respondent established, however, that after paying a $15,000.00 fee to his attorney, Leo Thomas, in that criminal proceeding, and vehemently insisting on a jury trial because he felt that he had not committed any misconduct, he bowed to the advice of Attorney Thomas to the effect that if he proceeded with litigating the criminal matter, it would ruin his veterinary practice due to adverse publicity. Consequently, the Respondent established that that plea was merely "a plea of convenience" and was not made because the Respondent felt or tacitly admitted any guilt of the charges involved. In fact, the circuit judge did not adjudicate him guilty and stated affirmatively in his order that he did not feel that the alleged course of conduct involved required that he should be adjudged guilty. That order does not establish any conviction or adjudication of guilt but rather, was a result of a "plea of convenience". In summary, none of the violations alleged in the Administrative Complaint, other than the minor record keeping violations established by Dr. Cordell, have been proven in this proceeding. In reading the conflicting testimony, the Respondent's testimony and that of Ms. Vetitoe and Lt. Loria is accepted over that of the Petitioner's complaining witnesses because they are more credible and worthy of belief. The testimony of most of the Petitioner's witnesses, consisting of the former employees of the Respondent, is tainted and colored by bias and resentment against the Respondent, caused by past disagreements between him and those witnesses which, in the instance of each of them, culminated in their discharge from his employ, in some cases, multiple times. Tina Lyttle, for instance, had a number of verbal and physical altercations with the Respondent, at one point, in connection with the "Peaches incident", slamming the Respondent against the wall of the kennel or outdoor building when he went outside to attempt to calm her down from her misplaced anger resulting from the "Peaches incident". It was Tina Lyttle who conferred with the other complaining witnesses, orchestrated the complaints and secured the affidavits as to the alleged instances of animal cruelty and the infliction of unnecessary pain and suffering which, were given over to Ms. Simms, the Animal Control Officer, who then proceeded to instigate both the criminal prosecution and this administrative prosecution. There is sufficient evidence of record to infer that these witnesses, who had worked for the Respondent, conferred with each other at various times in orchestrating their complaints against the Respondent, and that each of them had sufficient grounds for bias and resentment against the Respondent as disgruntled employees so as to support a finding and conclusion that these former employees fabricated the essential specifics of the story of the Respondent's alleged cruelty and improper treatment of the animals in question. This finding is supported in this record by the inconsistencies in the testimony, at various times, of some of these witnesses. Pat Guinn, for instance, in her deposition, taken prior to this proceeding, indicated that she observed the Respondent strike the dog "Star" on the head with the hose nozzle. In her testimony at hearing, she recanted and stated that she had not seen that incident. Her testimony is also inconsistent about the manner in which "Peaches" death was reported and the manner in which the dog's body was allegedly disposed of. Her testimony is simply incredible in the face of the testimony of Ms. Vetitoe, an avowed animal lover, who testified that she never buries a dog but rather, cremates all of the dogs she has ever had to die in her custody, placing the remains in urns. Her testimony concerning the Respondent threatening her with a gun on three different occasions was belied by that of Officer DeLeon, who certainly had no motive for fabrication of his testimony when he indicated that no report of her being threatened with a gun was ever made to him. He testified that she reported an alleged threat against her by the Respondent, "Just for the record". In his experience as a law enforcement officer, he testified that it is highly unusual for an employee to report such an altercation with her employer, "Just for the record". The testimony of Carla Fowler is inconsistent with that of Guinn and Lyttle concerning the question of Peaches death or disappearance. Like the other witnesses, it is found to have been guided by her resentment against the Respondent more than any righteous indignation and genuine concern for the animals in question, as evidenced by the fact, established by Ms. Vetitoe's testimony that she, herself, had had a verbal altercation with Carla Fowler. When Ms. Vetitoe brought her own dog to be cared for by Carla Fowler, she warned Ms. Fowler that the dog had a propensity bite. Ms. Fowler, supposedly an animal lover herself, responded to Ms. Vetitoe by saying that if the dog bit her, she would "knock the m f hell out of the dog", a remark and attitude which upset Ms. Vetitoe, a dog fancier and client of long standing. In summary, the testimony of these former employee witnesses is fraught with internal inconsistencies and inconsistencies with the testimony of each other. Their testimony is simply not credible and worthy of belief and is found to have been fabricated with regard to the essential details concerning alleged cruelty to the animals in question. The testimony of witness Gahimer, the owner of the cat "Leo" is rejected. She did not establish that the alleged hip injury to the cat, if it occurred, was caused by the Respondent. The testimony of Tina Lyttle herself shows that no injury to the cat's hip area could have occurred during that treatment episode. The Respondent established that the Gahimer complaint was motivated by a billing dispute with the Respondent. No other pet owner had any complaints.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the pleadings and arguments of the parties, and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that a Final Order be entered by the Board of Veterinary Medicine dismissing the entire Administrative Complaint, with the exception of the charges in paragraphs 44 and 45 concerning the records of the cat "Leo" and the dog "Beau", and that it find that the Respondent has violated Section 474.214(1)(f), Florida Statutes, derivatively, by violating Rule 21X-18.02, Florida Administrative Code, concerning those two animals. Because of the circumstances surrounding this violation, as delineated above, it is recommended that a private reprimand be accorded the Respondent for this violation. DONE and ENTERED this 1st day of December, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1989.
