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BOARD OF VETERINARY MEDICINE vs DONALD J. BECK, 98-003307 (1998)
Division of Administrative Hearings, Florida Filed:Clearwater, Florida Jul. 21, 1998 Number: 98-003307 Latest Update: Jul. 15, 2004

The Issue The issue in the case is whether the allegations of the Administrative Complaint are true, and if so, what penalty should be imposed.

Findings Of Fact At all time material to this case, the Respondent was licensed as a veterinarian in the State of Florida, license no. VM0004187. The Respondent worked as a veterinarian at Animal Hospital Hyde Park, a combination animal hospital and kennel facility. The facility encompassed approximately 5,000 square feet, and was located at 800 West Kennedy Street, Tampa, Florida. During the Respondent's tenure at Animal Hospital Hyde Park, another veterinarian, Marianne Keim, owned the facility. Ms. Keim operated a boarding business, a grooming center, and a veterinary clinic, all located within Animal Hospital Hyde Park. There is no evidence that the Respondent had an ownership interest in Animal Hospital Hyde Park. The Petitioner presented testimony suggesting that the Respondent was the "responsible veterinarian" for Animal Hospital Hyde Park, and as such was responsible for the actions of all facility employees. The testimony is not supported by the greater weight of the evidence and is rejected. There is no evidence that the Respondent was responsible for the operation of the facility. There is no evidence that the Respondent presented himself to the public or to facility staff as a veterinarian generally responsible for boarded animals. The evidence establishes that the Respondent provided veterinary services by appointment only for animals brought to the facility. The Respondent also provided veterinary services by appointment on a "house call" basis. There is no evidence that the Respondent generally provided routine medical services to animals being boarded. Boarded animals received medical treatment from the Respondent only when an animal owner, after being advised by kennel staff of a medical problem, gave approval for the Respondent to treat the identified problem. After receipt of the authorization, kennel staff would take the ill animal to the Respondent's examination room. After receiving the medical attention, the animal would be returned by kennel staff to the boarding area. On February 9, 1996, the Respondent examined two dogs, Casey and Chloe, owned by Mr. and Mrs. Robert Yuill. The Yuills had moved to the Tampa area in January of 1996. The apartment facility where the Yuills lived did not permit large animals inside the housing units. At the time the Respondent met Mr. Yuill, the dogs had been living in the back of Mr. Yuill's Ford truck for three to four weeks. The Respondent examined the animals on February 9, 1996. Both dogs were overweight. At the February 9 examination, Chloe had an ear infection. The Respondent offered to medically treat the infection. Mr. Yuill declined, noting that he had appropriate medication remaining from the animal's former veterinarian. At the February 9 examination, Casey had a foot problem. The Respondent suggested Epsom salt soaks, and subsequently treated the foot with an antibiotic. There is no evidence that the February 9 examination and medical treatment provided at that time, or as follow-up care for problems identified during that examination, was inappropriate or failed to meet acceptable standards of care. From March 23, 1996, to August 12, 1996, the Yuill dogs were boarded at Hyde Park Animal Hospital. Upon admission to the kennel, the dogs remained overweight. The Yuills advised the kennel staff that the dogs were to receive food specifically designed to promote weight loss. The Yuills provided the food to the kennel. In April of 1996, the Respondent performed a successful spay surgery on Chloe, complicated only by the dog's obesity. There is no evidence that the spay surgery or any related follow- up was inappropriate or failed to meet acceptable standards of care. The Yuills took the dogs from the kennel for the Memorial Day weekend. The Yuills testified that the animals were dirty, ungroomed, appeared lethargic, and were infested with fleas. Nonetheless, they returned the animals to the facility at the close of the weekend. The Yuills testified that they advised Ms. Keim of the situation when the animals were returned to the kennel at the end of the Memorial Day weekend. Ms. Keim denies that the dogs were not in acceptable condition upon their release for the weekend, and denies being advised of any problem. From Memorial Day weekend until August 10, 1996, the Yuill dogs remained in the kennel facility, unvisited by the Yuills. The Yuills testified that they refrained from visiting the animals after Ms. Keim advised them that family visits were resulting in psychological and behavioral problems for the animals. Ms. Keim denies that she ever advised the Yuills to refrain from visiting the animals. On August 10, 1996, the Yuills came to remove the dogs after being advised that Ms. Keim was closing the facility. Prior to releasing the animals, Marianne Keim weighed Chloe at 54.5 pounds. Casey was too heavy for Ms. Keim to lift and was not weighed. According to Ms. Keim's testimony, the Yuills owed a balance of approximately $1,300 at the time the dogs were removed from the facility. Ms. Keim asserted at the hearing that the bill remains unpaid. The Yuills dispute her recollection. Shortly after retrieving the dogs from the Animal Hospital Hyde Park, the Yuills contacted the Board of Veterinary Medicine and was advised to take the animals for examination by Dr. Jerry Alan Greene at the Academy Animal Hospital. Dr. Greene examined the animals on August 13, 1996. Dr. Greene photographed the dogs and performed a number of tests at the expense of the Petitioner. According to the tests, there was an indication that the dogs had hookworms, but there was no other indication of disease or other illness. Blood test results provided no indication of illness. Hookworms can occur when an animal comes into contact with fecal material from another animal. There is no evidence that hookworms resulted from any negligence or poor medical practice by the Respondent. Dr. Greene stated that Ms. Yuill had remarked on Chloe's thirst and possible dehydration. There is no evidence that the dog was dehydrated. Dr. Greene testified that Chloe had otitis externa, an ear infection. According to Dr. Greene's testimony, Chloe's weight upon examination was 46 pounds. Dr. Greene opined that the dog was grossly underweight. The Respondent presented the testimony of Dr. Richard Goldston. The testimony of Dr. Goldston is credited. Based on his review of the photographs, including bone structure and coat of the animal, Dr. Goldston opined that the dog, though perhaps thin, was of a healthy weight. The dog's coat appeared to be healthy. No bones were observed to protrude from the dog's frame. Chloe also had an ailment identified as an "acral lick granuloma," on her lower leg. The condition, a swollen reddish lump generally surrounded by saliva-stained skin, results from excessive licking of an area. There was credible testimony that the licking behavior can initially result from boredom. Although an acral lick granuloma can be visually identified upon examination, there is no debilitation such as limping that would draw attention to the animal. The condition does not result in pain or discomfort to the animal, other than itching. The itching results in further licking, which aggravates the condition. There is no evidence that the Respondent was aware of the granuloma. There is no evidence that boarding staff advised him or sought approval from the Yuills to have the condition treated. According to Dr. Greene's testimony, Casey remained overweight and had a slight foot problem. He advised the Yuills to treat the problem area with Epsom salt soaks. Several boarding kennel employees testified at the hearing. All were very familiar with Casey and Chloe, noting that their familiarity was related to the dogs long-term boarding status. According to the boarding employees, the dogs were healthy and energetic while at the kennel.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final Order DISMISSING the Administrative Complaint filed in this case. DONE AND ENTERED this 29th day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1999. COPIES FURNISHED: Paul F. Kirsch, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles E. Lykes, Jr., Esquire 501 South Fort Harrison Avenue, Suite 101 Clearwater, Florida 33756 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Currie, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

Florida Laws (2) 120.57474.214
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DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING vs JAMES E. O'DONNELL, 14-000907PL (2014)
Division of Administrative Hearings, Florida Filed:Miami, Florida Feb. 25, 2014 Number: 14-000907PL Latest Update: Nov. 12, 2019

The Issue Whether Respondent failed to keep proof of vaccination on file for racing greyhounds in his kennel, had a hypodermic needle on premises where racing greyhounds were lodged or kept, or stored cleaning supplies in the same area as bedding intended for racing greyhounds, as alleged in the Administrative Complaint, and if so, what is the appropriate sanction.

Findings Of Fact The Department is the state agency charged with regulating pari-mutuel wagering in the state of Florida, pursuant to chapter 550, Florida Statutes. Mr. O'Donnell owns racing greyhounds. He keeps his dogs, along with some leased dogs of other owners, in kennels that he leases for that purpose. At all times material to this case, Mr. O'Donnell held a pari-mutuel wagering business occupational license, number 441699, issued by the Department. At all times material to this case, Mr. O'Donnell held a pari-mutuel wagering professional individual license, number 330177, issued by the Department. A "permitholder" is a person or entity which holds an annual license to conduct pari-mutuel operations at the location specified in the permit. The licenses held by Mr. O'Donnell do not allow him to operate a pari-mutuel track or to conduct pari- mutuel operations at specified locations. Mr. O'Donnell is not a permitholder. Mr. O'Donnell employed a licensed trainer, Mr. Dennis Smith, who was responsible for day-to-day activities involving the dogs. Mr. O'Donnell personally kept responsibility for setting up vaccinations for the dogs. Mr. O'Donnell was not always physically present when vaccinations were given. Dr. Emilio L. Vega was a licensed veterinarian that Mr. O'Donnell employed to vaccinate his racing dogs. Dr. Vega came to Mr. O'Donnell's kennels for many years to vaccinate the dogs. Dr. Vega died on September 4, 2010, at the age of 80 years. On September 14, 2011, Investigator Tyrell Smith of the Department was reviewing operations of licensees who own or train greyhounds at the Florida Kennels Compound in Hialeah, Florida. At kennel number 45, leased by Mr. O'Donnell, he asked a kennel helper to let him inspect the vaccination records for the dogs.3/ Fifty-two vaccination records that had been signed in 2011 were produced for dogs in that kennel, and the helper indicated that Mr. O'Donnell was keeping vaccination records for other dogs. Investigator Smith noted that the name in the veterinarian's signature block on the forms was Dr. Vega. He was not aware at that time that Dr. Vega was deceased and could not have signed the forms in 2011. On September 23, 2011, Investigator Smith asked a kennel helper at Steubenville Kennel, numbers 36 and 37, which are also leased by Mr. O'Donnell, for vaccination records for the dogs. The kennel helper provided four records that contained the name of Dr. Vega in the veterinarian's signature block, dated in 2011. After talking with other trainers at the track, Investigator Smith learned that Dr. Vega had died in 2010. On September 30, 2011, Investigator Smith and other employees of the Department visited two animal clinics where Dr. Vega had formerly worked. The clinics did not have vaccination records for dogs in any of Mr. O'Donnell's kennels. Investigator Smith was able to view copies of some other vaccination records, and the signature appeared to Investigator Smith to be the same signature that appeared on the forms that had been given to him for the dogs in Mr. O'Donnell's kennels. On October 4, 2011, Investigator Smith visited kennel number 39 in Hialeah and asked Mr. O'Donnell for the vaccination records for those dogs. Mr. O'Donnell told him that the records had been stolen. Investigator Smith asked Mr. O'Donnell if he had filed a police report. Mr. O'Donnell said he had not. He indicated that he would just re-do the vaccinations. Investigator Smith returned to kennel number 39 on October 14, 2011. The vaccination records were not available. Mr. O'Donnell gave Investigator Smith the telephone number of Dr. Ann Romano, a veterinarian, and was told that she would be able to give him the vaccination information. Investigator Smith called Dr. Romano, but had only a very brief conversation with her, because communication was poor and because she was leaving on vacation. On October 25, 2011, Investigator Smith returned to kennel number 39 and again requested to see vaccination records for the dogs. He was provided records signed on October 24, 2011, by Dr. Romano. He later talked to Dr. Romano, who confirmed that she had vaccinated the dogs on October 24, 2011, but had not ever vaccinated any of Mr. O'Donnell's dogs before that date. The rule provides no "grace period" for enforcement of the requirement to keep proof of vaccination on file. Mr. Charles Taylor is an investigation specialist for the Department. Investigator Taylor was asked by his supervisor to go to the Orange Park Kennel Club ("Orange Park") and examine dog vaccination records for dogs in Mr. O'Donnell's kennels to see if any had been signed by Dr. Vega. Investigator Taylor visited the Orange Park facility on December 21, 2011. In the racing secretary's office, he found 56 National Greyhound Association papers, with vaccination records attached, for dogs in Mr. O'Donnell's kennels. The National Greyhound Association is an association that registers racing greyhounds. Examining these 56 vaccination records, he found that 21 of them contained the name of Dr. Vega in the veterinarian's signature block, with dates ranging from January 15, 2011, to September 16, 2011. He also found one undated, blank record with Dr. Vega's name in the veterinarian's signature block. Investigator Taylor made copies of these vaccination records. He did not contact either Mr. O'Donnell or the trainer of record about these vaccination records. Dr. Vega was deceased and did not sign any vaccination forms in 2011. Any forms purporting to contain his signature with a 2011 date were invalid and did not constitute proof of vaccination. The Department had visited the workplaces of Dr. Vega, and no other proof of vaccination could be obtained through the treating veterinarian. On August 27, 2013, Mr. O'Donnell occupied or had the right to occupy kennel number 45, at the Florida Kennels Compound, 7218 West Fourth Avenue, Hialeah, Florida, 33014. Mr. Luis Miranda is the facility manager of the Florida Kennel Compound. He conducts regular walk-through inspections of the kennels. Mr. Miranda points out any violations he observes to Investigator Smith when he comes to inspect the kennels. On August 27, 2013, Mr. Miranda told Investigator Smith that Mr. Miranda had found that kennel 45 was dirty during his walk-through inspection.4/ Investigator Smith went to kennel 45. There was no one there. A kennel is never locked, because it must remain open for safety of the dogs; however, there is a security gate and guard on duty at the entrance to the facility, and only licensees can gain entrance. Inspector Smith testified that kennel 45 did not appear dirty. He looked in the medicine cabinet in the kitchen area of the kennel, which is only about five feet from the dogs. He saw a syringe with a hypodermic needle attached. He confiscated it, took a picture, and placed it in a storage container. He never asked Mr. O'Donnell about the needle. On October 10, 2013, Mr. O'Donnell occupied or had the right to occupy kennel numbers 36 and 37, at the Florida Kennels Compound. On October 10, 2013, Inspector Smith conducted an inspection of kennel numbers 36 and 37, the Steubenville Kennel. He found the vaccination records all in order. He found a bottle of Clorox bleach and spray bottles containing unknown substances sitting on top of a crate that had a dog sleeping inside. He asked kennel workers about the chemicals. They told him they had just put them up there for cleaning and would move them in a few minutes. He found a hypodermic needle with syringe in kennel 36. He photographed these items. Kennel helpers removed the bleach and spray chemicals. Mr. O'Donnell was not there when Investigator Smith arrived, but came later while Investigator Smith was still there. While the Department showed that a bottle of Clorox cleaning solution was on top of a crate that had a dog sleeping inside, it did not clearly show that the Clorox cleaning solution was being "stored" there. The word "store" is defined as "to take in or hold supplies, goods, or articles, as for future use" or "to deposit or receive in a storehouse or warehouse for safekeeping" or "to put something that is not being used in a place where it is available, where it can be kept safely, etc." See Random House Dictionary, Random House, Inc. (2014), online at http://dictionary.reference.com/browse/store; American Heritage Dictionary of the English Language, 5th ed. (2014), by Houghton Mifflin Harcourt, at www.ahdictionary.com/word/search.html?q=store; and Merriam-Webster Online Dictionary, http://www.merriam- webster.com/dictionary/store. If the helpers only placed the Clorox on the crate while they were using it, as claimed, the Clorox and other cleaning materials were not "stored" there. There was no clear evidence to refute the helpers' admissions. The Department showed by clear and convincing evidence that Mr. O'Donnell failed to keep proof of vaccination for 52 of his racing greyhounds on September 14, 2011. The Department showed by clear and convincing evidence that Mr. O'Donnell failed to keep proof of vaccination for his racing greyhounds on October 4, 2011. The Department showed by clear and convincing evidence that Mr. O'Donnell failed to keep proof of vaccination for 21 of his racing greyhounds on December 21, 2011. The Department showed by clear and convincing evidence that on August 27, 2013, and October 10, 2013, Mr. O'Donnell had hypodermic needles with syringes on premises which he had a right to occupy on the grounds of a racing permitholder where racing greyhounds were kept. Mr. O'Donnell has been involved with racing greyhounds for over 60 years. Prior to the incidents involved in this case, Mr. O'Donnell had never received a notice of violation from the Department.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Business and Professional Regulation, Division of Pari-mutuel Wagering, enter a final order: (1) finding Mr. James E. O'Donnell guilty of 74 counts of violating Florida Administrative Code Rule 61D-6.009(9) and two counts of violating Florida Administrative Code Rule 61D- 6.004(2)(a); and (2) imposing an administrative fine of $76,000. DONE AND ENTERED this 24th day of December, 2014, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 2014.

Florida Laws (6) 120.569120.57120.68550.002550.0251550.105
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BOARD OF VETERINARY MEDICINE vs. PHILLIP F. HABIB, 88-004691 (1988)
Division of Administrative Hearings, Florida Number: 88-004691 Latest Update: Jul. 07, 1989

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 =================================================================

Florida Laws (2) 120.68474.214
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DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF INSURANCE AGENTS AND AGENCY SERVICES vs CHASE CARMEN HUNTER, 12-003622PL (2012)
Division of Administrative Hearings, Florida Filed:Orlando, Florida Nov. 07, 2012 Number: 12-003622PL Latest Update: Aug. 07, 2013

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.

Florida Laws (9) 120.569120.57626.112626.172626.331626.611626.621626.752626.9541
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JUAN "JOHN" BOCARDO vs WALT DISNEY PARKS AND RESORTS U.S., INC., 15-006147 (2015)
Division of Administrative Hearings, Florida Filed:Orlando, Florida Oct. 30, 2015 Number: 15-006147 Latest Update: Jun. 24, 2016

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)

CFR (2) 28 CFR 36.20828 CFR 36.302(c)(4) Florida Laws (4) 120.68413.08760.08760.11
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BOARD OF VETERINARY MEDICINE vs. ALEX J. PELLINI, 82-000616 (1982)
Division of Administrative Hearings, Florida Number: 82-000616 Latest Update: Sep. 21, 1982

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

Florida Laws (3) 120.5715.01474.215
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BOARD OF VETERINARY MEDICINE vs BARRY A. GOLDBERG, 90-004549 (1990)
Division of Administrative Hearings, Florida Filed:Miami, Florida Jul. 24, 1990 Number: 90-004549 Latest Update: Jun. 13, 1991

Findings Of Fact Based upon the record evidence and the factual stipulations entered into by the parties, the following Findings of Fact are made: Respondent's Licensure and Practice Respondent is now, and was at all times material hereto, a veterinarian authorized to practice veterinary medicine in the State of Florida under license number VM 1797. Respondent is a sole practitioner. He owns and operates the Kendall Lakes Pet Health Care Center in Dade County, Florida. Case No. 90-4549 On or about October 6, 1988, J.C. took his eight year old English Bulldog, 3/ R.C., to Respondent's office. The purpose of the visit was to have Respondent examine a lump that J.C. had discovered under R.C.'s chin while playing with the dog. Respondent had last seen R.C. a few years back when he treated him for an ear infection. Since that time R.C. had not been examined by any veterinarian. Upon approaching the dog in the examining room, Respondent noted a foul odor emanating from the dog's ears indicative of an ear infection. Furthermore, he could see that the dog's teeth had an extraordinary amount of tartar buildup and, more importantly, that the dog's lymph nodes were swollen. After palpating the dog's lymph nodes, Respondent told J.C., who was present during the examination, that it was likely that the dog had cancer 4/ and that he needed to take a blood sample from the dog. An attempt was then made to draw blood from the dog. R.C., however, in obvious discomfort, became unruly. He snarled, showed his teeth and shook his head. J.C. tried to restrain the dog by holding him down, but was unable to do so. As a result, no blood sample could be obtained. Conventional wire muzzles do not fit English Bulldogs because they are a brachycephalic or "smashed face" breed. Accordingly, in an effort to restrain R.C., Respondent tied R.C.'s mouth closed with a hospital lead. English Bulldogs tend to have congenitally small tracheas and anatomical deficiencies in the areas of their nose and throat which lead to difficulty in breathing. Consequently, caution must be exercised when muzzling this breed of dog. The practitioner should make sure that the dog is able to breath satisfactorily through its nose or that the muzzle is loose enough so that the dog can still breathe through its mouth. Unlike some English Bulldogs, R.C. was able to breath through his nose for an extended period of time, as evidenced by the fact that he slept with his mouth closed. As a general rule, tranquilizing is an attractive alternative to muzzling as a means of restraining an English Bulldog because respiratory compromise is less of a risk. The use of this method of restraint, particularly where the dog is in the advanced stages of cancer, is not free of problems, however. Whether tranquilizing or muzzling should be employed in a particular instance is a decision to be made by the practitioner based upon his assessment of the physical characteristics and condition of the dog under his care. It has not been shown that, in exercising his professional judgment to muzzle rather than to tranquilize R.C., Respondent acted in a manner inconsistent with what a reasonably prudent veterinarian would have done under like circumstances or that he engaged in conduct that fell below any minimum standard of acceptable care for veterinarians in the community. After he was muzzled, R.C. continued to struggle. J.C. was holding the dog around the head and shoulders, but was unable to control him. Respondent therefore placed a towel over R.C. to try to subdue the dog. J.C. meanwhile maintained his grip on the dog. Shortly thereafter, R.C. went limp and collapsed. Respondent picked up R.C. and carried him to a treatment table. He took a stethoscope to the dog's chest to listen for a heartbeat. Hearing none, he performed an external cardiac massage, but with no success. Respondent looked down R.C.'s throat and determined that, because R.C.'s lymph nodes were so swollen, it would not be possible to quickly pass an endotracheal tube through the dog's trachea. Respondent therefore had a member of his staff attempt to administer oxygen to R.C. by using a "face mask" device. While this technique, as a general rule, is relatively ineffective with this breed of dog, it was the best means available under the circumstances. Respondent instructed his staff to fill a syringe with epinephrine. They did so and he administered the drug to R.C. Under ideal conditions, epinephrine should not be administered before an ECG is performed to determine if epinephrine is indicated. In the instant case, however, while he had the equipment, Respondent did not have the time to perform an ECG on R.C. Throughout the time that these efforts were being made to revive R.C., an emotionally distraught J.C. was yelling and shouting at Respondent. While Respondent was unsuccessful in his efforts to resuscitate R.C., it has not been shown that these efforts were inconsistent with what a reasonably prudent veterinarian would have done under like circumstances or constituted conduct that fell below any minimum standard of acceptable care for veterinarians in the community. After R.C. was pronounced dead, J.C. did not request that an autopsy be done and therefore none was performed. Accordingly, it is impossible to determine with a high degree of medical certainty the cause of R.C.'s death. A member of Respondent's staff recorded information concerning R.C.'s visit on the dog's chart. The entries made, however, provided very little detail regarding what happened during the visit. There was no indication that a physical examination had been conducted. Furthermore, while there were notes that oxygen and "2 1/2 cc epinephrine" 5/ had been administered, the entries made did not reflect how they had been administered, nor did they indicate what other resuscitation efforts had been made. Also missing was an entry reflecting that an autopsy had neither been requested nor performed. Case No. 90-8113 On or about June 18, 1990, Detective Jerry Rodriguez of the Metro-Dade Police Department, who was working undercover at the time, met with Respondent at the Kendall Lakes Pet Health Care Center. The meeting was arranged by a confidential informant. After he was introduced to Respondent by the confidential informant, Detective Rodriguez entered into negotiations with Respondent to purchase Winstrol-V anabolic steroids. The negotiations culminated in Detective Rodriguez agreeing to buy a bottle of Winstrol-V from Respondent for $1,000. Respondent was led to believe by Detective Rodriguez that these steroids would be used for human consumption. Respondent accepted a $1,000 advance payment from Detective Rodriguez and issued him a receipt. Respondent did not fulfill his end of the bargain, nor did he ever have any intention to do so. He never made any steroids available to Detective Rodriguez, nor did he take any action, including ordering or prescribing the steroids, toward that end. 6/ A subsequent inspection of Respondent's veterinary facility conducted on or about June 18, 1990, revealed the presence of certain prescription medications that were beyond the expiration date or had obliterated labels which were missing lot numbers, manufacturers' names and addresses and expiration dates.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Veterinary Medicine enter a final order (1) finding Respondent guilty of maintaining inadequate medical records, in violation of Section 474.214(1)(f), as charged in the Administrative Complaint issued in Case No. 90-4549; (2) imposing a $1,000.00 administrative fine and placing Respondent on probation for a period of one year for this violation; and (3) dismissing the remaining charges against Respondent set forth in the Administrative Complaints issued in Case Nos. 90-4549 and 90-8113. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of June, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1991.

Florida Laws (3) 474.202474.214777.201
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DEPARTMENT OF HEALTH, BOARD OF PHARMACY vs GORDON GYOR, R.PH., 01-000165PL (2001)
Division of Administrative Hearings, Florida Filed:Boca Raton, Florida Jan. 12, 2001 Number: 01-000165PL Latest Update: Jan. 13, 2025
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THE HUMANE SOCIETY OF THE UNITED STATES, SHARON AND RICHARD CHAMBERS, MIRIAM BARKLEY, SHEREE THOMAS, AND CONNIE CREWS vs DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, 07-001503RU (2007)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Apr. 02, 2007 Number: 07-001503RU Latest Update: Dec. 21, 2007

The Issue Whether statements issued by the Respondent's employees constitute unpromulgated rules in violation of Section 120.54(1)(a), Florida Statutes (2007). Whether Florida Administrative Code Proposed Rule 5C- 27.001, incorporating a form is an invalid exercise of delegated legislative authority.

Findings Of Fact The following are the stipulated facts (verbatim) as agreed by the parties: In November and December 2005, Division of Animal Industry inspectors conducted inspections of various pet facilities located throughout Florida and found 11 violations regarding OCVIs. Dr. Thomas J. Holt, D.V.M., State Veterinarian and Director of Animal Industry, is signatory on a July 2006 Memorandum directed to "All Florida Veterinarians," which purports to provide "guidelines and reminders" to veterinarians regarding the issuance of OCVIs pursuant to Section 828.29, Florida Statutes. The memorandum is attached as Exhibit A. Respondent does not license or regulate veterinarians in Florida. Respondent does not maintain a database of veterinarians licensed or located in Florida. The United States Department of Agriculture (USDA) maintains a database of USDA-accredited veterinarians. The July 6, 2006, memorandum was provided by Respondent to the United States Department of Agriculture. Respondent asked for the assistance of the United States Department of Agriculture to distribute the July 6, 2006, memorandum to all USDA-accredited veterinarians located in Florida. The July 6, 2006 memorandum was challenged by Petitioners as an unpromulgated rule on April 2, 2007. The Respondent agency published a Notice of Proposed Rule in the Florida Administrative Weekly on July 6, 2007, to adopt the Official Certificate of Veterinary Inspection for Intrastate Sale of Dog or Cat (OCVI form) as a rule. On May 15, 2007, the Department conducted a "Pet Certification Rules Workshop" regarding proposed changes to the OCVI. Current form DACS-09085, Official Certificate of Veterinary Inspections for Sale of Dog or Cat, was adopted by Florida Administrative Code Rule 5C-24.003, in 1999. This rule is currently in effect. A statement of Department Employee Diane Fuchs was recorded, and such statement is attached hereto as Exhibit B. None of the Petitioners have filed complaints with Respondent concerning any of the allegations contained in Petitioners' Request for Administrative Hearing or Amended Request for Administrative Hearing. The following facts are from the materials noted above: The "Exhibit A" memorandum referenced above that was signed by the Department's State Veterinarian/Director of the Division of Animal Industry stated on its face, "This fax is being sent by the Florida Veterinary Medical Association at the request of the State Veterinarians Office." The memorandum provided, in pertinent part: TO: All Florida Veterinarians SUBJECT: OCVI for Sale of a Dog or Cat Dear Florida Veterinarian: Recent audits of Official Certificate of Veterinary Inspection's (OCVI) for Sale of a Dog or Cat by the Division of Animal Industry (DAI), Florida Department of Agriculture and Consumer Service (FDACS) shows an increasing number of violations related to the use and issuance of such certificates by veterinarians. Each violation compromises the integrity of the certificate. Previously violations were handled via personal communication and/or written correspondence with the veterinarian outlining the violation and recommended actions on how to correct them. Beginning July 1, 2006, the DAI will implement enforcement of such violations via Administrative Fine Procedure. For this reason, we are reminding veterinarians of the seriousness of this issue and are providing the following guidelines and reminders: Veterinarians are responsible for the security and proposed use of all OCVI's and must take reasonable care to prevent misuse of them. Reasonable care means that the veterinarian must retain all copies of the OCVI until he or she has inspected the animal and fully completed and signed the document(s). Incomplete, blank, or unsigned OCVI books or certificates cannot be sold to, or be in the possession of, a pet seller whether they are a breeder, broker, or retail pet store. Possession by a seller of incomplete or unsigned OCVI or of OCVI books compromises the integrity and security of the documents for which the veterinarian is responsible. The issuing veterinarian's statement certifies that the vaccines, anthelmintics, and diagnostic tests were administered by or under the direction of the issuing veterinarian. The manufacturer, type, lot #, expiration date, and date of administration must be detailed in the appropriate blocks of all OCVI. Vaccinations and/or anthelmintics administered by anyone other than the issuing veterinarian must be confirmed and documented before listing them on the OCVI. "Vaccines given by breeder" is not an acceptable entry unless the vaccinations were administered by or under the direction of the issuing veterinarian who has personal knowledge that such vaccines were actually administered to the animal identified on the OCVI. OCVI should not be issued for a dog or cat that has been found to have internal or external parasites, excluding fleas and ticks. This includes, but is not limited to, coccidian and/or ear mites. The dispensing of medicine to be administered by the owner for treatment is not sufficient for the veterinarian to issue the OCVI. Such animals must be treated and be negative before the sale can occur. The statement attributed to Diana Fuchs (noted as Exhibit B above) was: You're correct because the Veterinary Practice Act seeks supervision and it clearly defines supervision. The pet law does not state "supervision," it says "direction." It doesn't say whether it's direct supervision, it says "direction." As an employer, you can direct an employee to do something. By and through the rule making process previously described the Respondent sought to promulgate a rule (5C-27.001) that by reference adopts and incorporates form DACS-09085, the OCVI for Intrastate Sale of Dog or Cat Revised in July 2007. The OCVI form provides, in part: ISSUING VETERINARIAN'S CERTIFICATION: I hereby certify that the described animal was examined by me on the date shown; that the vaccines, anthelmintics, and diagnostic tests indicated herein, were administered by me, or under my direction; said animal is found to be healthy in that to the best of my knowledge it exhibits no sign of contagious or infectious diseases and has no evidence of internal or external parasites, including coccidiosis and ear mites, but excluding fleas and ticks; and to the best of my knowledge the animal has not been exposed to rabies, nor did the animal originate from an area under a quarantine for rabies. The Petitioner's First Amended Request for Administrative Hearing provided: This petition is filed on behalf of The Humane Society of the United States ("The HSUS"). The HSUS is a nonprofit animal protection organization headquartered in Washington, (sic)DC. The HSUS Southeastern Regional Office is at 1624 Metropolitan Circle, Suite B Tallahassee, FL 32308. The HSUS is the largest animal protection organization in the United States, representing over 9.5 million members and constituents, including more than 500,000 members and constituents residing in Florida. For decades the HSUS has been actively involved in educating the general public regarding the persistent health and behavioral problems that are common among puppies marketed by retail pet stores. This suit is bought [sic] on behalf of the HSUS and its Florida members. The HSUS investigates puppy mill and pet store cruelty complaints and offers its members, constituents and the general public guidance and advice as to how to select healthy, well bred puppies. By ensuring that puppies sold in retail pet stores actually receive the statutorily mandated vaccines and antelmintics, the health and welfare of puppies will be improved. Further, by eliminating from sale puppies that harbor potentially dangerous zoonotic diseases, not only is the public health protected but breeding facilities where the puppies originate and the pet stores that market the puppies have incentive to improve the often overcrowded and unsanitary conditions to which causes the puppies to be infested with internal parasites. A recent email survey revealed that more than 70 HSUS constituents have purchased puppies from Florida pet stores. This petition is also filed on behalf of Richard and Sharon Chambers, 5920 Our Robbies Rd., Jupiter, FL 33458. The Chambers purchased two puppies from Precious Puppy in Jupiter, Florida, and were provided OCVI's, signed by Dr. Dale Mitchell, DVM, but stamped with the statement "Original Vaccines Done by Breeder or Breeder's Veterinarian." Accordingly, the Chambers cannot verify if the vaccines indicated on the health certificate, and "certified" by Dr. Mitchell, were actually administered to their puppies. One of the puppies developed kennel cough, in spite of supposedly having been vaccinated against it. The kennel cough progressed to pneumonia and required emergency veterinary care. This petition is also filed on behalf of Miriam Barkley, who lives at 600 SW 13th Avenue #7, Ft. Lauderdale, FL 33312. Ms. Barkley purchased a Yellow Labrador Retriever puppy from Puppy Palace in Hollywood, Florida and was provided an OCVI. At 13 weeks of age the puppy has bilateral hip dysplasia with severe right sided coxal subluxation and will require thousands of dollars worth of surgery, if she is even a candidate for the surgery. Otherwise she must be euthanized. In spite of the requirement that each pet dealer provide consumers with a certificate of veterinary inspection signed by a veterinarian that certifies that "the animal was found to have been healthy at the time of the veterinary examination" the OCVI she was provided contains no such certification. This petition is also filed on behalf of Sheree Thomas, 874 Hibiscus Street, Boca Raton, FL 33486. Ms. Thomas was sold a puppy by Puppy Palace of Boynton Beach, and was given an OCVI upon which the attesting veterinarian's signature had been forged. Her puppy contracted distemper, a contagious disease for which the puppy had supposedly been vaccinated. Petitioner Connie Crews purchased two puppies from Puppy Palace in Hollywood, FL. One puppy, Trinity, suffered kennel cough that developed into severe bronchial pneumonia for which she was hospitalized. Petitioner Connie Crews incurred more than $4,000 in veterinary expenses saving Trinity's life. The other puppy, Neo, also had kennel cough, and suffers a bone defect in both shoulders. Petitioner Crews was provided an OCVI with each puppy, indicating that the puppies had been vaccinated for kennel cough. However, the OCVIs were not signed by the attesting veterinarian, Dr. William Rasberry, DVM, but rather had been stamped with a signature stamp which had been provided to the pet store. For purposes of this order the foregoing allegations have been deemed true or accurate. No evidence or stipulations of fact regarding the Petitioners was presented.

Florida Laws (14) 120.52120.54120.56120.57120.6828.00128.29474.202775.082775.083828.03828.12828.13828.29
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