Findings Of Fact At all times pertinent hereto, Respondent, T. E. Watson, was licensed as a veterinarian in Florida under license number VM 0000957, and the Petitioner, Board of Veterinary Medicine, (Board), was the state agency charged with regulating the practice of veterinary medicine in this state. On February 20, 1986, the Grand Jury in the United States District Court for the Eastern District of Arkansas entered an Indictment charging Respondent with six counts of mail fraud. The counts relating to Respondent were part of a thirty- three count Indictment of eight defendants. Only six of the counts pertained to Respondent. After trial by jury, on June 19, 1986, Respondent was found not guilty of two counts of mail fraud but guilty of four. In each of these four counts, Numbers 7, 8, 20, & 21, Respondent was found guilty of mail fraud involving a horse. He was sentenced to serve a period of imprisonment in the Federal Prison Camp at Eglin A.F.B., Florida. The mail fraud engaged in by Respondent involved a scheme by him and others to artificially inflate the book value of certain horses, then have the horses destroyed, and collect insurance in an amount in excess of the actual value of the horse. This activity constitutes misconduct which relates to the practice of veterinary medicine and reflects adversely on the Respondent's ability to practice veterinary medicine. On October 25, 1988, the Arkansas Veterinary Medical Examining Board entered Findings of Fact, Conclusions of Law, and an Order finding that Respondent had been found guilty of mail fraud as alleged, supra, and revoked his Doctor of Veterinary Medicine license. While incarcerated, on September 26, 1988, Respondent submitted a letter to the Board in which he outlined the facts and circumstances leading up to his involvement in the misconduct alleged. He contends in this letter, as he did at the hearing, that he was merely an honest horse farmer who purchased several animals from the individuals who thereafter killed them in the furtherance of their fraudulent scheme to defraud the insurance company. Respondent further claims that when he confronted these individuals, they threatened him and his family with bodily harm and even acted out a portion of that threat. Respondent claims he had no one to turn to as the insurance company representatives were involved in the scheme and the local law enforcement officials were inadequate. As a result, he went along with the scheme but did not actively participate. In support of his position, he refers to the account statements he attached to the letter he sent to the Board which purport to show that he made no profit on any of the animals involved in the counts of which he was convicted. Since he made no profit, he claims, he can be found guilty of no crime. This documentation is of little probative value, however, since there is no source material to support its accuracy or authenticity. Respondent claimed at hearing that his conviction was based on "perjured, prejudicial, and impeached testimony" and that the newly discovered evidence he has gathered and submitted to Federal officials will prove his innocence. This evidence was not presented at the hearing, however, and in his letter to the Department of Professional Regulation, he admits to knowingly being a party to the fraud. However, he claims, his participation was neither intentional or willing. The jury which heard his evidence was satisfied he was guilty, however, and nothing has been submitted here which would cause that judgement to be questioned. His request for a new trial on the basis of newly discovered evidence was denied, and the Parole Commission has declined to modify his conviction or sentence. Respondent moved his wife and four sons from Florida to Arkansas in 1974 to follow a lifelong dream to be a farmer. It was only after several years that he got into the horse breeding business which resulted in his difficulties. He has been engaged in the practice of veterinary medicine for 30 years. Numerous individuals including clients, civic officials, colleagues, neighbors, and business people who uniformly describe him as an honest, trustworthy and dedicated veterinarian and individual were surprised and dismayed by his involvement in this matter. Respondent undoubtedly has an excellent reputation in both the geographic and professional communities in which he operates.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, T. E. Watson's license to practice veterinary medicine in Florida be suspended for a period of three years under such terms and conditions as are specified by the Board of Veterinary Medicine. RECOMMENDED this 8th day of February, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of February, 1989. COPIES FURNISHED: Laura F. Gaffney, Esquire Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 T. E. Watson, D.V.M. 5004 7th Street East Bradenton, Florida 34203 Linda Biedermann Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since June 6, 1994, licensed to practice veterinary medicine in the State of Florida. Respondent holds license number VM 6466 issued by the Board of Veterinary Medicine (Board). Respondent supports his family by practicing veterinary medicine. He is the family's sole wage earner. At its March 14, 2006, meeting, the Board took action, in Case No. 2003-93234, to suspend Respondent's license for 30 days. Following the meeting, but before the issuance of the Board's final order, Respondent's attorney, Bradford Beilly, Esquire, telephoned the Department of Business and Professional Regulation (Department) attorney who prosecuted the case before the Board, Drew Winters, Esquire. Mr. Beilly informed Mr. Winters that he would be filing, on behalf of Respondent, an appeal of the Board's final order, as well as a motion for stay, with the Fourth District Court of Appeal. Mr. Beilly then asked Mr. Winters if the Department would be opposing the motion for stay. Mr. Winters responded that he would "talk to others at the Department and get back to [Mr. Beilly]." When Mr. Winters "did get back" to Mr. Beilly, he told him that "the Department was not going to object to a stay." Mr. Winters and Mr. Beilly then had a discussion regarding what would happen if Respondent practiced veterinary medicine between the time the Board's final order took effect and the stay was obtained. Mr. Beilly misunderstood Mr. Winters to have said during their discussion that the Department would not "treat [Respondent's] practicing veterinary medicine from the [time] that the order was rendered and filed in Tallahassee to the time the appellate court issued . . . the [s]tay as practicing veterinary medicine under a suspended license." At no time did Mr. Winters ever make such a representation to Mr. Beilly.5 Mr. Beilly subsequently "advised [Respondent] of [his] discussion with Mr. Winters and told [Respondent] that there [would] not [be] a problem with him practicing between the entry of the final [order] and entry of the [s]tay."6 The Board entered its original Final Order in Case No. 2003-93234 (Original Final Order) on March 28, 2006. Mr. Beilly received a faxed copy of the Original Final Order the following day. On March 30, 2006, Mr. Beilly, on behalf of Respondent, filed a notice of appeal and motion for stay with the Fourth District Court of Appeal. The Fourth District Court of Appeal granted the motion for stay on April 4, 2006. Between March 28, 2006, and April 4, 2006, Respondent openly engaged in the practice of veterinary medicine. No charges were brought against Respondent for having practiced veterinary medicine with a suspended license during this seven-day period, inasmuch as the Department did not "catch [him] practicing." On July 25, 2007, the Fourth District Court of Appeal affirmed in part and reversed in part the Original Final Order, holding as follows: Based upon the above, the order of the Board is affirmed to the extent that it determined that Dr. Aleong's failure to timely file his request for an administrative hearing operated as a waiver of his right to such a hearing, and to the extent that it rejected Dr. Aleong's claim that the doctrines of equitable tolling and excusable neglect relieved him of the consequences of his untimely request for a hearing. The Board's order is reversed to the extent that it imposed a penalty greater than that provided for in the disciplinary guidelines, and the matter is remanded for the Board to either impose a penalty within the guidelines or to make written findings which support the imposition of a harsher penalty. Aleong v. Department of Business and Professional Regulation, 963 So. 2d 799, 802 (Fla. 4th DCA 2007). On remand, the Board chose not to impose a lesser penalty. Its Amended Final Order in Case No. 2003-093234, which was filed with the Clerk of the Department on April 7, 2008, read as follows: THIS CAUSE came before the Board of Veterinary Medicine (Board) on March 18, 2008, in Ft. Lauderdale, Florida, for consideration upon a remand from the District Court of Appeal of the State of Florida, Fourth District. In its written opinion the Court affirmed this Board's Final Order filed on March 28, 2006, in all regards except with respect to the penalty imposed. With respect to the penalty, the Court reversed the penalty and remanded the case to the Board with directions that the Board either impose a penalty within its disciplinary guidelines or make written findings which support the imposition of a harsher penalty. The Board chooses the latter. Section 455.2273, Florida Statutes, requires the Board to make written findings as to the aggravating circumstances which were the basis for its deviation from the recommended guidelines penalty. The Board finds that the aggravating circumstances which justify imposing a harsher penalty are as follows: Respondent has had two prior actions taken against his license by this Board. Those cases are DBPR Case Number 2001-04949 and DBPR Case Number 2003-057847. [See Rule 61G18-18.001(4)(c), Florida Administrative Code.] One of the violations in the previous case[s] was the same violation as the violation is this case: failing to keep accurate medical records as required by Section 474.214(1)(ee), Florida Statutes, and Rule 61G18-18.002, Florida Administrative Code. (Case Number 2[0]0[1]- 04949)(T26)[See Rule 61G18-18.001(4)(i) and (j), Florida Administrative Code.] Respondent admitted on the record at the hearing that he had not timely complied with the Final Order in a case which had come before the Board just six months prior to the meeting at which the penalty in this case was imposed. (T26, 28)[See Rule 61G18- 18.001(4)(c), (h), (i), and (j), Florida Administrative Code.] Furthermore, Respondent was on probation at the time the instant case came before the Board for action. (T28)(See Rule 61G18- 18.001(4)(h) and (j), Florida Administrative Code.] The discussion by the Board members clearly indicated that the Board believed Respondent was not "getting the message" that he had to comply with the regulations. As expressed during the discussions, "So I think that we have to send a message, a strong message that he has to do that from now on." (T27)(See also T 28). And later in the discussion, another Board member asked: How can we leave a message that he has to have complete [sic] the complete record so another veterinarian can go behind you and know exactly what was done to that horse day by day, document whether the horse - or not document what he saw, how he came to that conclusion. If a dog comes in I can't say he is sick and this is what I did. I have to say, well, he was limping on his right front limb. I have to explain it, or whatever, you have to document how you came to those conclusions. (T31)[See Rule 61G18-18.001(4)(f)(j)(a), Florida Administrative Code.] WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED THAT: Respondent shall pay COSTS of $542.42, FINES of $3,000.00, and take and pass the applicable laws and rules examination at Respondent's own expense no later than thirty (30) days after the filing of this Order with the Department's Clerk. Payment of said costs and fines shall be mailed to the Board of Veterinary Medicine, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, FL 32399-0792. Respondent shall be required to take an additional five (5) hours of continuing education related to the area of medical records within six (6) months after the filing of this Order. Respondent's license is suspended for a period of thirty (30) days. This Final Order shall take effect upon being filed with the Clerk of the Department of Business and Professional Regulation. At the end of the Amended Final Order was the following "Notice of Right to Judicial Review": A party who is adversely affected by this Final Order is entitled to Judicial Review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk of the Department of Health [sic] and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the district court of appeal in the appellate district where the party resides. The notice of appeal must be filed within thirty (30) days of rendition of the order to be reviewed. Respondent and Mr. Beilly attended the March 18, 2008, meeting at which the Board decided to take the action it subsequently memorialized in the Amended Final Order. After the meeting, Respondent authorized Mr. Beilly to seek appellate review and a stay of the Board's action. Mr. Beilly received a copy of the Board's Amended Final Order on April 9 or 10, 2008, and he faxed a copy to Respondent, who read it. After receiving the Board's Amended Final Order, Mr. Beilly spoke with Jennifer Tschetter, Esquire, the Department attorney who "would be handling the appeal of the [A]mended [F]inal [O]rder." Ms. Tschetter advised Mr. Beilly that the Department "would have no objection to a stay of the [A]mended [F]inal [O]rder being entered" by the appellate court. During their conversation, Mr. Beilly and Ms. Tschetter did not discuss whether Respondent would be able to lawfully practice prior to the entry of the appellate court's stay. It is undisputed that "Respondent practiced as a veterinarian at Calder Race Track and at other venues, [from] April 10 [three days after the Amended Final Order took effect] through April 2[3], 2008."7 There is no evidence that Respondent's practicing veterinary medicine during this period of time resulted in damage to any person, animal, or thing. At the time Respondent engaged in this activity, he believed, based upon the advice that he had previously been given by Mr. Beilly, that he was not doing anything wrong. It was his understanding that he "had 30 days to file an appeal [of the Amended Final Order] before [his] license was suspended" and that he "was allowed to practice while he applied for an appeal [and a] [s]tay." On April 23, 2008, upon being informed by a Department investigator that his license was "under suspension" and that he therefore was "not allowed" to practice, Respondent "stopped working." Respondent immediately telephoned Mr. Beilly, who filed, on behalf of Respondent, a Notice of Administrative Appeal of Amended Final Order and a Motion to Stay with the Fourth District Court of Appeal that same day, April 23, 2008. The appeal was docketed as Case No. 4D-08-1624. On April 24, 2008, the Fourth District Court of Appeal issued the following order in Case No. 4D-08-1624: BY ORDER OF THE COURT: ORDERED that appellant's motion filed April 23, 2008, for stay pending appeal on expedited basis is granted. The enforcement of the Amended Final Order rendered on April 7, 2008, by the State of Florida Board of Veterinary Medicine is stayed pending the disposition of the above-styled appeal. Respondent's appeal of the Amended Final Order is still pending. On May 15, 2008, Department Investigator Russell Lambert sent Respondent a letter advising him that the Department was investigating the following complaint that had been assigned DBPR Case No. 2008-028603: Alleged violation of FSS 474.213(1)(e) use [of] a license that has been suspended. On 4/22/08 and 4/23/08 a sweep was conducted at the Ocala Breeders Sale. On 4/23/08, the Gainesville investigative office was notified that the Resp[ondent] was possibly working there and that his license had recently been suspended. On 4/23/08 at approximately 7:00 AM, investigators observed Dr. Aleong enter stall number 60, Building 17 and scope a horse with HIP Number 1025 owned by a person known as Hal Hatch. After Dr. Aleong completed the process and exited the stall, investigators approached him and referenced the status of his license, at which time Dr. Aleong stated that he was not aware that his license had been suspended. Dr. Aleong's wife, Pamela, was also present and advised that the horse was being scoped for her sister Christine Wasilewski. On May 20, 2008, Department Investigator Beatriz Caldera sent Respondent a letter advising him that the Department was investigating the following complaint that had been assigned DBPR Case No. 2008-029108: Alleged Violation of F.S. 474.213(1)(e) practicing on a suspended license. On 4/24/08 Investigator Caldera visited Calder Race Track and found evidence which revealed that Dr. Aleong treated and prescribed medicine for horses at the track between 4/10/08-4/24/08. Dr. Aleong's license was suspended at the time. The Administrative Complaint that is the subject of the instant proceeding was filed in DBPR Case No. 2008-029108 on or about August 26, 2008. On November 13, 2008, Department Assistant General Counsel Elizabeth Duffy, Esquire, sent a letter to Respondent's attorney, Mr. Beilly, advising him of the following concerning DBPR Case No. 2008-028603: Please be advised the above-referenced case [DBPR Case No. 2008-028603] has been reviewed by the Department and closed without a finding of probable cause to believe your client violated the provisions of chapter 474, Florida Statutes, and/or the rules promulgated pursuant thereto. The case has been closed without prejudice[;] if the Department receives additional evidence or determines, upon further review, that the determination to close was in error, the Department reserves the right to reopen the case. If the case is reopened, you will be promptly notified. As this case has been dismissed without a finding of probable cause, the materials included within the file are confidential and may not be disclosed to the public without your written permission. Please contact me if you have any questions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order: (1) finding Respondent guilty of violating Section 474.213(1)(e), Florida Statutes, and Section 474.214(1)(f), Florida Statutes; (2) suspending his license for a period of 17 days; (3) fining him $1,000.00; (4) placing him on probation for a year; and (5) ordering him to reimburse the Department's investigative and prosecutorial costs. DONE AND ENTERED this 1st day of July, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 1st day of July, 2009.
The Issue The issue in this case is whether Adel N. Assad, D.V.M. (Respondent), failed to comply with a lawful Final Order of the Florida Board of Veterinary Medicine (Board) previously entered in a disciplinary hearing in violation of Section 474.214(1)(f), Florida Statutes. The Order required, among other things, that Respondent take a specific examination to determine his competency to practice.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed veterinarian, having been issued license number VM-2404 by the Board. Respondent has been practicing, subject to discipline at various times, in the State of Florida since October 1979. On December 27, 2000, the Board issued a Final Order Approving Settlement Counter-stipulation (Order) requiring Respondent to take and successfully complete the NBEC special purpose examination in small animal medicine. The Order required Respondent to take and pass the NBEC special purpose examination within the first two years of his probation, or by December 27, 2002. The NBEC special purpose examination was created and regulated by the NBEC, which was renamed the National Board of Veterinary Medical Examiners (NBVME) in July 2001. The NBEC special purpose examination was thereafter renamed the NBVME species specific examination in small animal medicine in July 2001, in order to reflect the organization's name change and is currently administered under that name. It has not changed in substance or format since its creation in 1997 and is currently available in the original substance and format under the name "National Board of Veterinary Medical Examiners species specific examination in small animal medicine." Respondent or any other Florida licensee required to take the NBVME species specific examination must contact the Board in order to request administration of the examination. Any Florida licensee who directly contacts the NBVME to request the species specific examination or its current equivalent would be informed that he or she must contact the Board to request the examination. The NBVME does not offer standard examinations directly to veterinarians. Linda Tinsley is a government analyst employed by the Florida Department of Business and Professional Regulation. She is currently assigned to the Board where she serves as the liaison between the Board and the NBVME. Ms. Tinsley is responsible for coordinating the paperwork and procedures for requesting and purchasing the NBEC special purpose examination in small animal medicine or its current equivalent, the NBVME species specific examination in small animal medicine. Ms. Tinsley is also responsible for receiving phone calls and correspondence from applicants and licensees submitted to the Board's office. In this capacity, she would be the person referred to if seeking or requesting administration on the NBVME species specific examination. Respondent was reminded that he was required to take the NBEC special purpose examination in small animal medicine at the September 2002 meeting of the Board. At that meeting, Ms. Tinsley informed those in attendance, inclusive of Respondent, that a licensee must contact the Board's office in order to request the NBVME species specific examination. Respondent never contacted the Board's office to request or to schedule the administration of the NBVME species specific examination. Consequently, he has not taken or passed the NBVME species specific examination in small animal medicine, as required by the Order. Respondent's disciplinary record, as established by past Final Orders of the Board documenting discipline imposed on his license, makes clear that Respondent presents a danger to the public in the practice of veterinary medicine. Respondent has previously been disciplined seven times by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered (a) finding the Respondent guilty of having violated the provisions of Section 474.214(1)(f), Florida Statutes, as alleged in the Administrative Complaint; and (b) in view of the aggravating circumstances in this case, the revocation of the Respondent’s license to practice as a veterinarian in the State of Florida. DONE AND ENTERED this 19th day of June, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2003. COPIES FURNISHED: Thomas V. Infantino, Esquire Infantino & Berman Post Office Box 30 Winter Park, Florida 32790-0030 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Sherry Landrum, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
