The Issue Whether Respondent violated Subsection 550.2415(1)(a), Florida Statutes (2004), and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Holmes held a pari-mutuel wagering occupational license number 832105-1021, issued by the Department. On May 23, 2004, Holmes was the trainer of record of Hoov's KC, a racing greyhound. Hoov's KC was entered in, participated in, and won the first race of the afternoon performance at Naples-Ft. Myers Greyhound Track on May 23, 2004. Immediately after the race, a urine sample was collected from Hoov's KC by a veterinary assistant at the veterinary shack at the race track. The veterinary shack is operated by the Department, and the veterinary assistant is employed by the Department. The veterinary assistant collected the specimen by using a sterilized cup which is attached to a three-foot stick. The cups are kept in an unlocked box in the veterinary shack. After Hoov's KC's urine sample, numbered 947445, was collected, the cup was sealed, and placed in a freezer, which is kept locked. Holmes watched the collection of the specimen and the sealing of the cup containing the specimen. A specimen card was filled out for the urine sample, listing the number of the sample, the name of the dog, the owner and the trainer, and other information identifying the dog. The veterinary assistant signed the card, and then Holmes, as the owner's witness to the sampling and sealing of the specimen, signed the card. The veterinary assistant prepared a Form 503, which listed each of the samples taken at the racetrack on May 23, 2004. The form listed Hoov's KC and its urine specimen number. The urine sample and a redacted copy of the form were sent to the racing laboratory at the University of Florida, where the sample was to be tested for any prohibited substances. Information, other than the specimen number, which would identify the dog, the trainer, or the owner were redacted. The racing laboratory received the urine specimen in a locked cooler and assigned the urine sample an internal laboratory number of 77132L for tracking while the sample was being tested. The urine sample was tested using gas chromatography/mass spectrometry and found to contain benzoylecgonine, a metabolite of cocaine, which is a topical anesthetic and a Class I drug, according to guidelines promulgated by the Association of Racing Commissioners International Inc. At times, Holmes has found the veterinary shack unattended and unlocked. Holmes and James Blanchard, a kennel owner in the Fort Myers area, have seen sticks with collection cups attached placed in trash barrels in the area where the specimens are collected. Holmes has seen food and soft drinks in the collection areas. However, there was no evidence presented to show that the collection tool used by the veterinary assistant for the collection of Hoov's KC's sample was contaminated. Holmes witnessed both the collection and the sealing of the sample at issue and did not state that she observed any contamination of the sample. Holmes' pari-mutuel wagering license has not been previously disciplined for a violation of Subsection 550.2415(1)(a), Florida Statutes (2004).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Jennette D. Holmes violated Subsection 550.2415(1)(a), Florida Statutes (2004); imposing a $500 fine; and suspending her license for five days. DONE AND ORDERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 4th day of February, 2005. COPIES FURNISHED: Ralf E. Michels, Esquire Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jennette D. Holmes 11900 Forest Mere Drive, No. 101 Bonita Springs, Florida 34135 S. Thomas Peavy Hoffer, Esquire Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case concerns whether the Respondent violated Sections and 585.80, Florida Statutes, by selling or offering to sell animal products that were adulterated, misbranded, or uninspected, and, if so, a determination of the appropriate penalty to be imposed.
Findings Of Fact Respondent is engaged in the business of selling meat products at its location at 4267 Northwest 12th Street, Lauderhill, Florida 33313, and holds Food Permit No. 55402, pursuant to Section 500.12, Florida Statutes. On January 12, 1993, a United States Department of Agriculture Compliance Officer performed an inspection at Respondent's facility. During this inspection, the Compliance Officer examined and placed under detention approximately 327 pounds of uninspected meat product, consisting of the following: two pig carcasses, one cow head, singed cow feet, beef lungs, and goat tripe. None of the products bore any marks of inspection. With the exception of the two pig carcasses, 1/ all of the uninspected meat product was being offered for sale to retail customers. Beef lungs, or "lite," may not be sold as human food under any circumstances in the State of Florida. The goat tripe, or stomachs, were adulterated with ingesta, which is the contents of the stomach at the time the animal is slaughtered. Some of the beef lungs were darkly colored which, in the opinion of the Compliance Officer, was because they were either old or had been left unrefrigerated for some period of time. One of the pig carcasses was unclean and bruised, and was therefore condemned. The other carcass was released to Mr. Richard Gray after it was determined by the Compliance Officer that, despite the lack of proper labeling, the pig carcasses were being held for the personal use of Mr. Gray. On February 12, 1993, a Department Compliance Officer performed a second inspection at Respondent's facility. At this time, the Compliance Officer examined and detained approximately 65 pounds of uninspected meat products, consisting of the following: goat feet (hide on), goat intestines, goat tripe, and beef lungs. None of the products bore marks of inspection, nor were they marked as "Not for Sale." The goat feet and beef lungs were adulterated with ingesta and were generally dirty. The products detained during the February 12, 1993, inspection, were delivered to Respondent's facility on January 19, 1993, as part of the same purchase of meat products as the items found by the USDA Compliance Officer on January 12, 1993. The Florida meat inspection program requires an animal to be inspected both before and after slaughter. Antemortem inspection is necessary to determine the general health of the animal, while postmortem inspection may reveal pathological conditions and diseases. The tissue is also examined for evidence of abscess, parasites, and arthritic conditions, as well as drug residues. These steps must be taken to safeguard the consumer from exposure to contaminated and diseased meat products. By means of the Department's letter dated May 29, 1991, Respondent has previously received a formal notice of warning concerning a separate violation of the same statutory prohibition, namely the sale and offer for sale of adulterated and misbranded cow and goat feet.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services issue a Final Order in this case to the following effect: Concluding that the Respondent is guilty of a violation of Sections 500.04 and 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products on January 12, 1993; Concluding that the Respondent is guilty of a violation of Sections 500.04 and 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products on February 12, 1993; and Imposing an administrative fine in the amount of $1,000.00 for each of the two violations mentioned above, for a grand total of $2,000.00 in administrative fines. DONE AND ENTERED this 27th day of May 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 27th day of May 1994.
Findings Of Fact The findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein. There is competent substantial evidence to support the findings of fact.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1988.
The Issue The issue in this case concerns whether the Respondent violated Section 585.80, Florida Statutes, by selling or offering to sell animal products that were adulterated, misbranded, or uninspected, and, if so, a determination of the appropriate administrative fine to be imposed.
Findings Of Fact Respondent is engaged in the business of selling meat products at its location at 1221 Northwest 40th Avenue, Lauderhill, Florida 33313, and holds Food Permit No. 55403, pursuant to Section 500.12, Florida Statutes. On February 12, 1993, a United States Department of Agriculture Compliance Officer performed an inspection at Respondent's facility. During this inspection, the Compliance Officer examined and placed under detention approximately 63 pounds of uninspected meat product, including cow feet, cow tails, cow head meat, goat stomachs, and beef blood. Goat stomachs may not be sold as human food under any circumstances in the State of Florida. The stomachs at issue were also adulterated with ingesta, or the contents of the stomach at the time the animal was slaughtered. Respondent purchased the meat at issue from a farmer in Avon, Florida, and had sold approximately 415 pounds of the same product to its customers prior to the Compliance Officer's inspection. 1/ At the time of Respondent's selling and offering for sale of the adulterated and uninspected meat products, Respondent's owner was aware of the illegality of his actions. By means of the Department's letter dated June 2, 1991, Respondent has previously received a formal notice of warning concerning a separate violation of the same statutory prohibition, namely the sale and offer for sale of 253 pounds of uninspected goat meat. The Florida meat inspection program requires an animal to be inspected both before and after slaughter. Antemortem inspection is necessary to determine the general health of the animal, while postmortem inspection may reveal pathological conditions and diseases. The tissue is also examined for evidence of abscess, parasites, and tuberculosis. These steps must be taken to safeguard the consumer from exposure to contaminated and diseased meat products.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services issue a Final Order in this case to the following effect: Concluding that the Respondent is guilty of a violation of Section 585.80(2), Florida Statutes, by selling uninspected animal products and adulterated animal products: Concluding that the Respondent is guilty of a violation of Section 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products; and Imposing an administrative fine in the amount of $1,000.00 for each of the two violations mentioned above, for a grand total of $2,000.00 in administrative fines. DONE AND ENTERED this 27th day of May 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 27th day of May 1994.
Findings Of Fact Valaria Alsina has been licensed as a medical physician in Florida since 1976 and was so licensed at all times here relevant. On August 19, 1980, Elsa Trujillo and her daughter Nancy, age 12, visited the office of Respondent for treatment. This was the initial visit to Respondent by these patients. Patient histories in Exhibit 3 for Elsa show the first entry to be October 7, 1980; however, the language used in this history clearly shows this to be not Elsa's first visit. Respondent's testimony and reports submitted by Respondent to Petitioner, Exhibit 3, reveal initial complaints by this patient to be dizziness, urinary tract infection, vomiting, vaginal discharge, headache, depression, burning sensation while voiding, and dark urine. Respondent did a urinalysis, took blood for testing, did a PAP smear and vaginal irrigation. Other treatment rendered this patient was not disclosed. The skin and blood tests performed constitute the gravamen of the charges here involved. In Exhibit 1 Respondent billed the insurance carrier for Elsa $359.50 for this visit of August 19, 1980. Those blood tests, the necessity for some of which is questioned by Petitioner, are for glucose, BUN, creatinine, calcium, phosphorus, uric acid, electrolytes (including sodium, potassium, chlorides, and carbon dioxide) total protein, bilirubin, and albumin. The reason the need for these tests is questioned is because they were billed to Prudential Insurance Company as individual tests for each of which Respondent billed from $10.00 to $20.00. These tests are normally performed by medical laboratories in groups, automatically, in which testing machines are programmed to do certain tests on one blood sample introduced into the testing machine. These automatic testing procedures are generically designated "SMA" and are known as SMAC-6, SMAC-16, SMAC-26, etc., with the number denoting the number of tests performed. Those blood tests performed on the Trujillos are all included in the SMAC-22 program for which a laboratory normally charges the doctor $10-$12. Had these tests been charged as SMAC-22, the fact that several were unnecessary would have been accepted because, as a SMAC-22 neither physical nor financial harm resulted to the patient from the unnecessary blood tests conducted. The SMAC-22 could have been performed as cheaply as or cheaper than two manual and individual tests. Since Petitioner's expert witnesses both agreed that some of the tests conducted on this patient were indicated from the symptoms presented, the only fault they found was in Respondent's performing, and charging the patient for, individual and manual blood tests for which there was no medical justification. Nancy Trujillo was seen by Respondent on August 19, 1980. For this visit Respondent billed Prudential Insurance Company $262.50. Clinical data prepared by Respondent for Nancy shows usual childhood diseases, tonsillectomy, adenoid-ectomy, fever, sore throat accompanied by ear pains and swelling, patient complaining of weakness, history of anemia, poor appetite, burning sensation when voiding, dark urine, and a skin rash on right leg. Patient's weight was recorded as 70 pounds, but neither height nor temperature was recorded. In addition to a complete physical examination, a urinalysis, skin culture, and sensitivity test were done, and blood chemistry tests included complete blood count, calcium, glucose, BUN, creatinine, albumin, bilirubin, total protein, and SGPT. These blood tests, all of which (except the cbc) are included in a SMAC-22, were billed as having been performed as individual tests at costs ranging from $10.00 to $17.50 each. Treatment prescribed for Nancy consisted of aspirin suppositories. Respondent testified that Nancy was under weight, although her height was not measured, and that she took Nancy's temperature but failed to record it. Jose Trujillo was seen by Respondent on February 4, 1981, as a patient. Clinical data recorded by Respondent on this visit (Exhibit 3) include ". . . history of diverticulitis of colon, states that have diet but feels like some abdominal discomfort accompanied by diarrhea and feels weak. Patient with history of admission in the hospital, admission Palmetto General Hospital. Some lower discomfort abdomen and dark urine." For this visit prudential Insurance Company was billed $340 for complete physical examination (genital exam omitted) complete blood count; urinalysis; blood tests including glucose, BUN, creatinine, calcium, phosphorus, uric acid, electrolytes (including calcium, potassium, chlorides, and carbon dioxide) total protein, cholesterol, triglycerides, SGOT, SGPT, and alkaline phosphates; urine culture; sensitivity test; and collection and handling. The blood tests were all included in a SMAC- 22 but were billed as individual and manually performed tests with costs ranging from $10.00 to $20.00 each. Petitioner's expert witnesses both testified that some of the tests performed on these three patients were indicated by the symptoms and complaints described. Other tests conducted were not appropriate for the symptoms given. They also agreed that had these tests been conducted and billed as a SMAC-22 they would not consider that that could be a violation of the Medical Practices Act because, even though some of these tests were not medically indicated, they "come with the package" and would not increase the cost to the patient. However, when conducted manually and individually and so billed, the practice of conducting blood tests for which there is no medical justification does not conform to the generally prevailing standards in the medical community. Because of the findings below, it is unnecessary to denote those tests performed on each of the Trujillos for which there was no medical justification. Although billed to Prudential Insurance Company as manually and individually performed, the blood tests on the three patients above-named were conducted as a SMAC-22 and were not performed manually and individually as testified to by Respondent. This determination is based on the following facts, circumstances, and rationalizations: Respondent sent the blood samples from these three patients to Central Medical Laboratory, Inc., for a SMAC-22 test. Respondent testified that she performed each of the series of 10 to 15 tests on the blood samples of these patients in 20 to 30 minutes; however, other medical witnesses testified it took a trained technician 20 minutes to perform one of these blood tests manually. The latter testimony is deemed more credible. Many of these tests have subjective characteristics, such as color comparisons, and identical results from the same blood sample tested by two technicians or run through the same automated process would be rare. The odds against a technician performing individual and manual tests on 16 blood samples and obtaining the identical result on all tests that is obtained from a commercial laboratory SMA test is astronomical. Yet, the one report obtained from Central Medical Laboratory for the SMAC-22 conducted on the blood sample from Jose Trujillo (Exhibit 7) is identical to the "manual and individual" test report maintained by Respondent for the same blood sample in Exhibit 3--with one exception. The laboratory found the triglyceride test to be 254 MG/DL, well outside the 30-175 range for this test. On Exhibit 3 Respondent recorded 175 for this test. She testified she sent blood samples from the three Trujillos to the laboratory to have a check on her tests but did not ask the laboratory to do a recheck on the triglycerides test on Jose or recheck her test for triglycerides after receiving the laboratory report. Only a small amount of blood (5 or 10 cc) is required for an automated procedure for up to 40 different tests, whereas at least three times this amount of serum would be required for 10 tests conducted manually or individually. Accordingly, manual testing would require the drawing of a lot more blood than would be required for automated testing in a commercial lab. Respondent testified that she sent one-half of the blood sample taken on each Trujillo to the laboratory and kept the other one-half to test in her office. Commercial medical laboratories are licensed by the state; are checked for compliance with proper procedures; equipment used is checked for proper calibration at frequent intervals; reagents used in the testing is frequently replaced; and, when compared to the equipment, procedures, calibration, and reagents used in a physician's office which are subject to no regulation, the former should provide the more reliable test in a much shorter time. The equipment in Respondent's office is capable of being used to conduct all of the tests on these three patients for which Respondent billed Prudential Insurance Company. No rational explanation was provided to justify having a SMAC-22 performed and duplicating these tests manually. Respondent's testimony that the SMAC-22 was ordered to check the results of the manual tests she performed is not credible. If a check on the manual tests conducted on blood samples of Nancy and Elsa Trujillo for the August 17, 1980, visit was desired, it would appear appropriate to check the office procedures by doing a SMAC-22 on only one of those blood samples, rather than have both of these samples checked as was done here. Repeating this "check" on the sample taken from Jose Trujillo on February 4, 1981, does not make sense. Either the laboratory test is trusted or it is not. The same applies to the individual tests conducted manually in the office. If confident of the procedures, there would be no reason for Respondent to check the manual tests conducted in the office by sending one-half of the serum to a commercial laboratory. Respondent testified that Central Medical Laboratory picks up blood samples at her office daily. This suggests that some tests are routinely ordered by Respondent and conducted by the laboratory, and no evidence was presented to rebut such a conclusion. On the other hand, Petitioner presented no evidence of the volume of tests conducted by Central Medical Laboratory for Respondent which would solidify this conclusion. Nor did Petitioner submit the SMAC-22 results obtained by Central Medical Laboratory for the blood test conducted on the serum taken from Elsa and Nancy Trujillo on August 17, 1980, to see if they too were identical to the results shown in Exhibit 3. The only rational explanation for having SMAC-22 tests performed in a commercial laboratory and reporting these tests as done individually and manually in Respondent's office is the amount the insurance company will pay for the latter is nearly ten times what they will pay for the former. Laboratory tests billed for Jose Trujillo for the February 4, 1981, visit amount to nearly $250. Charges submitted for these tests reported on the SMAC-22 (Exhibit 7) amount to $187. Respondent testified she paid for the SMAC-22 tests she ordered and did not bill the insurance company for these tests because "they won't pay for both" SMAC and manual tests performed on the same sample. Since the lab charged Respondent only $10-$12 for the SMAC-22 tests conducted, the insurance company would not pay $187 if these tests were charged as automated tests. Considerable evidence was submitted that there was no medical justification for certain of the tests performed on Nancy, Elsa, and Jose Trujillo. For Nancy, these unnecessary tests included tests for calcium, glucose, BUN, creatinine, albumin, bilirubin, total protein, and SGPT. For Elsa, these unnecessary tests were calcium, phosphorus, uric acid, total protein, bilirubin, with either BUN or creatinine justified, but not both. For Jose, no medical justification was shown for manually performed tests for glucose, calcium, phosphorus, electrolytes, SGDT and SGNT. In view of the finding above, that these tests were not manually done but were performed as a SMAC-22, the fact that they are not medically justified if done manually becomes immaterial.
Findings Of Fact Patrick J. Wright, Respondent, as at all times here relevant, licensed as a doctor of veterinary medicine by the Florida Board of Veterinary Medicine, Petitioner. In April, 1978 Mrs. Gertrude Cole took her cat to Respondent's animal hospital because the cat appeared listless and was not eating. Prior to presenting the cat, Mrs. Cole called the clinic to inquire about the price of an examination and was advised it was $7. Upon Mrs. Cole's arrival at the clinic with the cat, she described the cat's symptoms to the receptionist, who inquired if the cat's shots were up- to-date. When the cat was taken into the operatory Respondent came in with several needles and proceeded to give the cat four injections in the neck. He then inquired about the cat, took the cat's temperature, took a blood sample, announced the cat was anemic, and gave the cat another shot. This latter shot was an antibiotic. Mrs. Cole did not request the cat be given the annual shots for rabies, distemper, etc. Respondent's version of Mrs. Cole's visit is that Mrs. Cole only wanted her cat vaccinated and after he gave the four vaccinations he inquired about the condition of the animal and was told the cat was listless and not eating. He then examined the animal, saw it had fleas, gave it an antibiotic, and took a blood sample, which test revealed the cat had hemobartonella. When Mrs. Cole said she had other cats at home, Respondent told her she should bring them in for vaccinations because of the hemobartonella of the cat he had just examined. Respondent also told Mrs. Cole that the cat needed intravenous feeding, that the cat's chance for survival was 50-50 and that the cat should be left at the animal hospital for treatment. When Mrs. Cole returned home she called to inquire how the cat was doing and was told the cat was on intravenous feeding and that she should bring her other pets in for shots. Mrs. Cole returned to the clinic, inquired about the cost of the treatment that was being given her cat, but was unable to get a satisfactory answer. The same afternoon Mrs. Cole had the cat put to sleep. She was presented with a bill for $97.00, which included examination fee, $7; intravenous fluids, $15; injections, $7; blood test, $12; immunization (rabies, pneumonitis, rhinotracheitis arid distemper), $32; medicated bath and dip, $8, and euthanasia, $16. Mrs. Jacueline Pate testified she was in the waiting room when Mrs. Cole came in and that she heard Mrs. Cole say that she only wanted the cat vaccinated and didn't want anything else done. Not only is this testimony in conflict with Mrs. Cole's testimony, but also it is at variance with the bill submitted to Mrs. Cole by Respondent, which included $7 for an examination. On 6 June 1978, Stanley Locke took his dog, a cock-a-poo, to Respondent for a rabies shot, dipping and a health certificate. When he left the dog at the animal hospital for this treatment, the dog appeared all right and Locke was advised the cost for rabies shot and dip would be $16. When Locke returned several hours later to pick up the dog, he received a bill of $66, which he paid. This bill included health certificate, $10; injections, $7; blood test, $12; immunizations (rabies, booster DLH, and parainfluenza) $22; bath and dip, $8; antibiotic capsules, $4, and tablets, $3. At this time the dog appeared well but Respondent, or his receptionist, told Locke the dog had thrown up and had received treatment. A few days later, the dog showed signs of illness, and on 12 June 1978, Locke took the dog to Dr. Widdeowson. He did not go back to Respondent because the bill from Respondent had been much higher than he had been led to expect. Locke testified the dog became lame the following morning. However, Dr. Widdeoson's records show that he saw Locke's dog June 12 and 13, six days after Respondent treated the cock-a-poo. Respondent recalled treating Locke's dog, which he described as a nervous, excitable pet who vomited a little grass when he came in the hospital. He administered antibiotics to the dog because it had a temperature of 102 degrees F. but looked fine. The blood sample was taken to issue the certificate of health. Following the bath and dip, the dog had a loose bowel movement so Respondent treated the dog for diarrhea after his receptionist was unable to contact Locke. Respondent and Respondent's expert witness both testified that the normal temperature of a dog is 100.5 degrees F. to 102.5 degrees F., and the same is true of cats. This testimony was not disputed. Similarly, Respondent's expert witness's testimony that diarrhea or vomiting could be caused by diet or excitement was not contradicted. On July 7, 1978, Gail Echols took her cat to Dr. Wright for emergency treatment around 10:00 p.m. Mrs. Echols's cat was obviously ill and she thought her cat had a recurring kidney malfunction. Wright's examination revealed the cat had low body temperature (hyperthermia) and was comatose. Wright's policy is to vaccinate all animals which remain in his hospital unless very ill. On the evening of 7 July, Mrs. Echols's cat was too sick to be vaccinated and Mrs. Echols requested the cat not be vaccinatsed. Mrs. Echols was told State law required vaccination of animals left overnight in a hospital. When she questioned this, she was told it was the hospital policy to vaccinate animals left overnight in the hospital. When Wright returned to the hospital the morning of 8 July, Mrs. Echols's cat was walking around and Respondent vaccinated the cat. Approximately one hour later the cat died. The bill presented to Mrs. Echols, which she paid, was $88. Thirty- two dollars of this total was for vaccinations. After Mrs. Echols complained about the bill, $32 was refunded to her. The disparity between Mrs. Echols's testimony and Dr. Wright's testimony regarding the time the vaccinations were given to the cat is not material. Mrs. Echols testified the shots were given over her protest the night the cat was taken to Wright and that when she called the following morning to inquire about the cat's condition she was told Wright had not yet come in and the cat was dead. Respondent's testimony was that he remained at the hospital until 2:00 a.m. and vaccinated the cat when he returned the following morning. On August 17, 1978, Susan Likens took her cat, "Misty", to Respondent to determine why the cat was scratching its ears. Upon examination, Wright told Mrs. Likens her cat had ear mites and an infection. The cat's temperature was normal. Respondent also told her the cat needed its shots. Mrs. Likens first said she would get the vaccinations when the cat was well. However, she reluctantly gave Wright permission to vaccinate the cat. Upon leaving the hospital, Mrs. Likens was given some medication in a bag. When she got home she found the bag also contained shampoo and flea dip for her dog. The medication given for Misty caused the cat's ears to crack and bleed. A few days later, Mrs. Likens called Respondent's office to advise about the cat's ears. She was told by the receptionist she could come in and get antibiotics to put in the cat's ears. She stopped by and was given medication without further examination of the cat. Some two weeks later the cat died due to distemper. Respondent's version of the incident involving the Likens cat was not materially different from Mrs. Likens's version. His version of prescribing medication without an additional examination was that his receptionist told him Mrs. Likens called to say her dog had destroyed the medication given for the cat and he only refilled the prescription. No evidence was presented that the second medication prescribed was the same as or different from the ear antibiotics billed to Mrs. Likens on Exhibit 4. The bill presented to Mrs. Likens for $61.50 included $32 for vaccinations (rabies, distemper, pneumonitis, and rhinotracheitis) and $9 for dog shampoo and dip. Neither of the latter two items had been requested by Mrs. Likens. Hemobartonella is transmitted by sucking insects such as fleas and ticks. There is no vaccination for hemobartonella and it usually manifests itself in an animal when the animal has been weakened by another primary illness. Hemobartonella can be treated with antibiotics, steroids and vitamins. The manufacturers of vaccines used for animal innoculation specify the vaccines be given to well animals. There are two reasons for this instruction. Primarily, the vaccine is likely to be ineffective if administered to an unhealthy animal. Secondarily, vaccinations, and particularly those manufactured from live viruses, place stress on the animal. If the animal is already weakened by illness, the additional stress caused by vaccination usually outweighs the potential benefit of the vaccination. Pneumonitis is an infection animals get which was described as similar in severity to the common cold in humans. Vaccination for pneumonitis was not favored by the majority of veterinarians in 1978 and is unlikely to be effective on ill animals. When questioned by a member of the Ethics Committee of the local veterinary association regarding complaints received about charges rendered for his services, Respondent replied that he expected such complaints to continue and as long as he had their money in his pocket he didn't care. Respondent has a reputation among his peers of overtreating animals, thereby increasing the cost to the client. One witness described this as performing unnecessary work to the point of being detrimental to the animal such as vaccinating an animal which is about to die from some other illness. Although one expert witness called by Respondent testified that vaccinations administered to ill animals won't hurt the animal, even he admitted such shots were unlikely to produce the immunization intended. The credible evidence in this regard is that immunizations should not be administered to unhealthy animals, that elective vaccinations should be administered only after the animal has been examined, and no vaccination should be administered without the owner's consent and concurrence. When issuing a health certificate, the veterinarian certifies the animal to be free from infection or communicable diseases and free from rabies. The number and quality of witnesses compels a finding that Respondent was sufficiently interested in vaccinating animals that his receptionist actively solicited such vaccinations; and Respondent was aware, or should have been, that inaccurate and incorrect information regarding vaccinations and the law was given out by has receptionist.
The Issue Whether Respondent raced a horse that was impermissibly medicated in violation of section 550.2415(1)(a), Florida Statutes (2015), and implementing administrative rules1/ as alleged in the Amended Administrative Complaint; and, if so, what sanction is appropriate.
Findings Of Fact The Division is the state agency charged with regulating pari-mutuel wagering in the state of Florida, pursuant to chapter 550, Florida Statutes. At all times material, Ms. Pompay held a pari-mutuel wagering professional individual occupational license, number 1001817-1021, issued by the Division. At all times material, Ms. Pompay was subject to chapter 550 and the implementing rules in Florida Administrative Code Chapter 61D. Under section 550.2415(1)(a), an animal that has been impermissibly medicated or determined to have a prohibited substance present may not be raced. It is a violation of the statute for a person to impermissibly medicate a horse which results in a positive test for such medications based on samples taken immediately after the race. Rule 61D-6.002(1) provides: "[t]he trainer of record shall be responsible for and be the absolute insurer of the condition of the horses . . . he/she enters to race." Ms. Pompay was the trainer of record for the horse named R Bling Shines who raced at Gulfstream Park on February 20, 2016. R Bling Shines won her race and was then sent to the Division-operated equine detention barn for the taking of urine, blood or other such samples pursuant to rule 61D-6.005. The equine detention barn is the site at each licensed racetrack in Florida where employees of the Division obtain urine and blood samples from racehorses. Ms. Pompay was the trainer of record for the horse named Run Saichi who raced at Gulfstream Park on May 13, 2016. Run Saichi finished second in his race and was then sent to the Division-operated equine detention barn for the taking of urine, blood or other such samples pursuant to rule 61D-6.005. Rule 61D-6.005, entitled "Procedures for Collecting Samples from Racing Animals" was in effect when R Bling Shines and Run Saichi were sent to the equine detention barn for the collection of "urine, blood or other such samples" as authorized by the rule. The term "other such samples," as used in the rule, means hair and saliva. The rule does not refer to the "processing" of whole blood samples into blood serum. The University of Florida Laboratory determined that the post-race blood sample taken from R Bling Shines tested positive for a blood serum overage of the permitted medication "betamethasone." The University of Florida Laboratory determined that the post-race blood sample taken from Run Saichi tested positive for a blood serum overage of the permitted medication "mepivicaine." On February 20, 2016, the Equine Detention Barn Procedures Manual (2010 Manual) was in effect for all equine detention barn facilities. The 2010 Manual was in effect between June 2010 and April 7, 2016. At the time the 2010 Manual became effective, rule 61D-6.005 (2001) was in effect. On November 25, 2015, the Recommended Order issued in Case No. 15-5037 concluded that subsection 4.6 of the 2010 Manual was an unadopted rule of the Division and that pursuant to section 120.57(1)(e)1., Florida Statutes, the Division could not base agency action on blood serum samples obtained pursuant to it. On January 11, 2016, the director of the Division issued a Final Order finding that subsection 4.6 of the 2010 Manual was an unadopted rule of the Division. On December 15, 2015, the Recommended Order issued in consolidated Case Nos. 14-4716 and 15-2326 concluded that subsection 4.6 of the 2010 Manual was an unadopted rule of the Division and that pursuant to section 120.57(1)(e)1. the Division could not base agency action on blood serum samples obtained pursuant to the unadopted rule. On January 11, 2016, the director of the Division issued a Final Order finding that subsection 4.6 of the 2010 Manual was an unadopted rule of the Division. On April 7, 2016, the 2016 Guidelines were distributed to all equine detention barn facilities to become effective as of that date. The 2016 Guidelines superseded and replaced the 2010 Manual. At the time the 2016 Guidelines became effective, rule 61D-6.005 (2015) was in effect. The 2016 Guidelines were in effect on May 13, 2016, when Run Saichi raced at Gulfstream Park. The 2010 Manual prescribed detailed procedures for collecting blood samples from race horses, spinning the blood in the centrifuge to extract the serum, pouring of the serum into the evergreen tube, sealing of the evergreen tube with evidence tape, and mailing of the specimen to the laboratory for testing. The 2010 Manual was applicable to every horse racing facility within the State of Florida. It had been in effect in its then- current form between 2010 and April 2016 and, by its own terms, was mandatory. It provided that veterinary assistants, chief veterinary assistants, detention barn security guards, and detention barn supervisors "study, become completely familiar with, and put into practice" the procedures outlined in the 2010 Manual. It described seven steps in chain-of-custody procedures, three of which are "collecting the specimen, sealing the specimen, and completing the required forms," and described detailed procedures in this "strict sequence of events that must be followed." The 2016 Guidelines do not prescribe the detailed procedures for collecting blood samples from racehorses, spinning the blood in the centrifuge to extract the serum, pouring of the serum into the evergreen tube, sealing of the evergreen tube with evidence tape, freezing the sample and mailing of the specimen to the laboratory for testing. However, since the date the 2016 Guidelines were put into effect, the procedures followed by Division employees in the testing barn for the processing of the whole blood into blood serum, the pouring of the serum into the evergreen tube, the sealing of the tube with evidence tape, the freezing of the sample and the mailing of the specimen to the laboratory have been the same as those prescribed by the 2010 Manual. At the time of the implementation of the 2016 Guidelines, there were no "established procedures pursuant to applicable law and administrative rule" to process whole blood into blood serum other than the procedures set forth in subsection 4.6 of the 2010 Manual. In addition, at the time of the implementation of the 2016 Guidelines, there were no "testing laboratory SOPs" or "protocols" in place for detention barn personnel to follow. According to the laboratory director, the laboratory’s SOPs and protocols do not begin to operate until the moment the samples arrive at the laboratory in Gainesville. The Division published the 2010 Manual under the direction of its deputy director and distributed it to every employee who worked at a detention barn, including the state veterinarian, the chief veterinary assistant, other veterinary assistants, detention barn security guards, and detention barn supervisors. The 2010 Manual was not made available to the general public unless a copy was requested as a public record. The 2010 Manual was an official publication of the Division used at all horse racing facilities in the State of Florida and was last updated on June 25, 2010. During the approximate six-year period that the 2010 Manual was in effect, not one owner’s witness went to the detention barn at the end of the racing day to observe the pouring of blood serum from the blood tubes into the evergreen tube. The Division published the 2016 Guidelines under the direction of its deputy director and distributed it to every employee that worked at a detention barn, including the state veterinarian, the chief veterinary assistant, other veterinary assistants, detention barn security guards, and detention barn supervisors. The 2016 Guidelines were not made available to the general public unless a copy was requested as a public record. Since the 2016 Guidelines took effect, not one owner’s witness has gone to the detention barn at the end of the racing day to observe the pouring of blood serum from the blood tubes into the evergreen tube. The Division uses various forms in connection with blood and urine sampling. The forms catalog the specimens and, if the procedures set forth in the 2010 Manual and the 2016 Guidelines are followed, demonstrate that the horse was in the testing barn at the time the blood and urine samples were taken. The Division’s Form RL 173-3 is a self-adhesive sequentially numbered bar-coded, three-part form (blood label, urine label and card) provided by the University of Florida Racing Laboratory used to catalog specimens by assigning them "Specimen Numbers." As specimens are collected, information regarding the animal from which the sample was collected is written on the bottom of this form. The top two portions of the form (blood, urine) are completed with the Track Number and Collection Date. The applicable top portions of the form are then separated and applied to the urine specimen cup and/or evergreen blood tube. The bottom portion, or Specimen Card is completed, appropriately signed, and sent to the Tallahassee Office of Operations to be filed. The sample tag thus consists of three portions: the numbered portion designated for the blood specimen (blood label), the numbered portion designated for the urine specimen (urine label), and the numbered portion containing information about the animal and trainer that was required to be signed by the witness (card) under rule 61D-6.005 (2001) and "may" be signed by the witness under rule 61D-6.005 (2015). In the sampling procedures followed in this case, the blood labels were not affixed to the collection tubes. The blood labels, from which the card portion was "detached," were affixed to the evergreen blood tubes. This was consistent with the governing rule, as well as the 2010 Manual. The evergreen tube is the specimen container for the serum. The sampling procedures followed on February 20, 2016, were in compliance with the procedures set forth in the 2010 Manual. The sampling procedures followed on May 13, 2016, were the same as those followed on February 20, 2016. As stated in subsection 4.4 of the 2010 Manual, "[s]ealing the sample ensures the specimen does not spill during shipment to the laboratory and assures all parties that the sample has not been tampered with" between the time the sample is sealed at the detention barn and the time the sample is received by the University of Florida Laboratory. The same purposes are served by sealing the serum specimen. The procedures prescribed in the 2010 Manual for the collection of whole blood and the processing of the whole blood into serum were followed when the blood samples from the horses trained by Ms. Pompay were taken on February 20, 2016, and May 13, 2016. After the blood was centrifuged, and the serum was poured into the evergreen tube, the serum was sealed with evidence tape, as described in subsection 4.6 of the 2010 Manual, and the chief veterinary assistant put his initials over the seal. This constituted "sealing" of the specimen in its container. Subsection 4.6 of the 2010 Manual provided: Serum is poured into applicable (numbered) "evergreen" tubes. Each "evergreen" tube is immediately properly sealed with evidence tape. The opening of the blood tubes, the pouring of the serum from the blood tubes into the evergreen tube, and the sealing of the evergreen tube was witnessed by two Division employees: a chief veterinary assistant or detention barn supervisor who pours the serum from the blood tubes to the evergreen tubes and another employee who observes the process. In the proposed recommended orders referred to in paragraphs 14 and 15 above, a specific finding of fact was made that the 2001 version of rule 61D-6.005 did not make reference to spinning the blood in the centrifuge to extract serum, the pouring of serum into an evergreen tube, the sealing of the evergreen tube with evidence tape or the freezing of the specimen. The state veterinarian who took the blood sample from R Bling Shines and Run Saichi signed PMW Form 504, a Daily Record of Sample Collection, indicating that this was done. After centrifuging the whole blood in the collection tubes, at the end of the day the state veterinarian usually leaves the collection tubes with the chief veterinary assistant, who pours the separated serum from each collection tube into the correspondingly numbered evergreen container and seals it (under the observation of another detention barn employee). Sometimes, the state veterinarian stays to observe the transfer of the serum to the evergreen specimen container. There is no signature indicating the time the state veterinarian leaves the samples at the detention barn or the time the chief veterinary assistant opens the collection tubes and transfers the serum. In each instance of sampling in this case, the owner's witness signed the card portion of the sample tag (Form RL 172- 03) after the taking of the urine and blood samples. In fact, since the change in rule 61D-6.005 in June 2015, no owner’s witness has refused to sign the sample tag. In each instance of sampling in this case, the owner's witness signed the card portion of the sample tag (Form RL 172- 03) after the sealing of the urine specimen in its container, but before the whole blood was processed into blood serum, the blood serum was poured into the serum container, and the serum container was sealed. The pouring of the collection tubes into specimen containers takes place at the end of the racing day, after all of the horses have departed from the detention barn. It would be very inconvenient for an authorized witness to remain until the serum specimens were sealed. The sampling procedures set forth in the 2010 Manual and the sampling procedures in use under the 2016 Guidelines are important to the Division, to the trainers, and to the public. These sampling procedures affect the substantive rights of the trainers as they are the "absolute insurer" of the horse’s condition when it races. The centrifuging process, extraction of the serum, and sealing of the serum specimen as described in detail in subsection 4.6 of the 2010 Manual were never discussed at a rule-making hearing. These procedures are not part of rule 61D- 6.005, adopted in 2001, nor are they part of rule 61D-6.005 as amended in 2015. Until it was superseded by the 2016 Guidelines, the 2010 Manual applied to every state-licensed horse racing facility in the State of Florida. It was a policy attributable to the Division. Amendments to rule 61D-6.005, effective June 15, 2015, to eliminate all references to the sealing of the blood serum specimen, left the 2010 Manual provisions establishing policy on extracting and sealing the serum specimen without support in statute or adopted rule. After the amendments to the rule, the provisions of the 2010 Manual requiring extraction and sealing of the serum specimen were generally applicable Division policy that created rights important to a trainer. These provisions constituted an unadopted rule. The established procedures pursuant to applicable law and administrative rule referenced by the 2016 Guidelines, which Division employees are required to follow, are the procedures that were set forth in the 2010 Manual. These procedures for the processing of the whole blood into blood serum, the pouring of the serum into the evergreen tube, the sealing of the tube with evidence tape, the freezing of the sample, and the mailing of the specimen to the laboratory survive as de facto policies of the Division notwithstanding the "repeal" of the 2010 Manual. The de facto Division policy regarding extraction and sealing of serum specimens affect rights important to trainers and has the direct and consistent effect of law. Division employees do not have the discretion not to follow the de facto Division policy regarding extraction and sealing of serum specimens. The de facto Division policy regarding extraction and sealing of serum specimens constitutes an unadopted rule.
The Issue Whether Respondent's veterinary license should be disciplined.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed doctor of veterinary medicine, having been issued License No. VM 0003845 by the Board of Veterinary Medicine on July 1, 1985. During his career, Respondent has taught at the University of Florida veterinary school, developed patents in the field of veterinary medicine, performed research in the veterinary field, and become certified in veterinary laser surgery. Because he does research and because his wife/veterinary partner frequently provides follow-up care, Respondent is a meticulous record keeper. Precious was a grossly obese, 11-year-old, female English bulldog. She was owned by the Salters and had been previously treated by the Respondent. In fact, the Salters were friends of some of the clinic's staff who treated her. On July 7, 1999, the Salters brought Precious to Respondent for emergency treatment. Precious was experiencing respiratory distress and had cyanotic mucous membranes indicating a lack of oxygen. Her condition was growing worse and life-threatening. Because of the emergency nature of Precious' condition, Respondent immediately began a physical examination of the dog to determine what was causing her inability to breath properly. At the same time, Respondent began a series of notes on Precious' record of treatment and examination. The notes contained in the record of treatment and examination are clearly preliminary and hurried. Some of the writing is that of other clinic staff. Most of the writing is Respondent's. The notes are consistent with the frenetic nature of the emergency. They included a checklist of various possible tests and treatments to be performed by Respondent or clinic staff, general impressions of the dogs physical condition, and possible medical causes to be ruled in or out (that is, tonsilar lymph nodes, soft palette resection, and tonsillectomy). The record, while lacking some information, does contain sufficient information to reflect Precious' condition, diagnosis, and course of treatment. Throughout the time Precious was at the clinic, the clinic staff or Respondent performed the various tests and treatments listed in the record of treatment. As each task was completed the task was checked off the checklist and results filled in, if possible. If it was not possible to fill in the results on the record of treatment, results would be noted by another method such as medical reports, logs, or note cards. In fact, Respondent makes notes regarding treatment, results, etc., of a particular animal on index cards because the larger, more formal veterinary record of an animal is often not carried around to the different places where an animal may be located in the clinic. The index cards are small and can be carried in Respondent's shirt pocket. Use of the cards was the record keeping procedure taught to him while in veterinary school at the University of Florida and is his primary contemporaneous record for an animal. Information on the note cards would later be recorded in an animal's permanent file. Respondent followed this process with Precious. However, Respondent's note cards for Precious are missing. Respondent's entries in Precious' medical record reflect some of the measures that were taken to save Precious' life. One such measure was to place Precious on an IV of lactated ringer solution (LRS in the record of treatment). However, no amount of solution was listed because when the note was made, placement of the IV was a task to be done, and the amount of solution would have been initially recorded on the index cards for Precious once treatment was complete for later entry in Precious' permanent record. Indeed the amount of solution was written on Respondent's note cards for Precious. The physical examination of Precious revealed that she had aspirated part of her mouth tissue in the epiglottis pharyngeal area of her mouth. The loose tissue appeared to be scar tissue from a previous operation or a tumor. Such loose tissue is not uncommon in English bulldogs and was exacerbated in Precious due to her obesity. Because the tissue was blocking her airway, Precious was put under anesthesia for placement of an intratrachial tube to open an airway, to complete a non- invasive ultrasound examination and to begin preparation for removal of the loose tissue. Information on the type and amount of anesthesia was kept in the controlled substances medication list and a missing anesthesia log for heart and respiration, as well as the missing index cards kept by Respondent. After placement of the tube inside Precious' airway, her condition began to improve. However, she was still in a very critical, life-threatening condition. At 2:00 p.m. Precious went into cardiac arrest. Epinephrine and Doxapram, medications used to control cardiac arrest, were administered and cardio-pulmonary resuscitation was performed. The amounts of the Epinephrine and Doxapram were not recorded in the record of treatment but were recorded on the missing note cards. Precious recovered from her cardiac arrest and was somewhat responsive to external stimuli. However, she was not aware of her surroundings and had dilated pupils. She did not recover from the coma and, subsequently, was euthanized with the owners permission. Again the amount of euthanasia solution was written on the Respondent's index cards. Because of the monitoring Precious required during the day and the other requirements of other patients at the clinic, Respondent placed Precious' permanent veterinary record and his index card notes on his desk so that he could permanently record the information in Precious' permanent file. Respondent could not finalize Precious' record until two days later because of the work load at the clinic. However, when Respondent went to finalize the record, he discovered that Precious' veterinary record, along with his index card notes and various logs and reports regarding Precious, had been stolen from his office. The office and premises were thoroughly searched by Respondent, his wife, and clinic staff. No records were found. Approximately three weeks later, part of the veterinary record reappeared at the clinic. However, it was apparent that some records in the recovered file were altered or were missing. The 3 x 5 index cards of Respondent's notes were missing. The dog owner's standard consent form for procedures on July 7, 1999, was missing and the original anesthesia log was missing. The anesthesia log, which was returned with the file, was prepared by another person who did not perform clinical tasks at the clinic. The log did not contain entries for heart and respiration which had been made by either Respondent or his assistant, Ric Berlinski. For unknown reasons a false log had been substituted for the original log by whoever had taken or had the file during its absence from the clinic. Respondent reasonably did not trust his memory to complete the veterinary records on Precious. Respondent made a decision not to change the recovered records in any manner lest he be accused of altering the records knowing that other parties may have copied the records in addition to removing and altering certain records. He felt not adding to the records was reasonable since there was no future need for the records to treat the deceased animal, the record would not be used in any research and had no educational purpose. In fact, neither the statute nor rules of the Board contain any guidance on the action a veterinarian should take under circumstances where a veterinarian, through no fault of his own such as theft, fire or disaster, is prevented from completing or maintaining an animal's veterinarian record. In response to the Salters' complaint in regard to Precious' treatment, Respondent was requested to provide Richard Ward, the investigator for the Department of Business and Professional Regulation, with records relating to Respondent's treatment of Precious. Respondent failed to inform Mr. Ward that Respondent believed the records had been tampered with or that he believed the medical records had been stolen. Respondent also failed to provide Mr. Ward with the controlled substance log containing the entries relating to the treatment of Precious because he did not ask for it. At the time, given the complaint, Respondent did not wish to and did not think it prudent to speak with the Department's investigator absent the advice of legal counsel. Therefore, he did not tell the investigator about the problems with the record. Respondent did not mislead the investigator and did not violate any statute or rule of the Board.
Recommendation Base on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding Respondent not guilty and dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of September, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 4th day of September, 2002. COPIES FURNISHED: C. Robert Edewaard, Esquire Post Office Box 2297 Gainesville, Florida 32602 Tiffany A. Short, Esquire Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 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
The Issue Whether the Respondent committed the acts alleged in the Administrative Complaint.
Findings Of Fact The Respondent in this case is Robin Karoly. Two horses, Daisy and Sugar, were the subject of this proceeding. Both Daisy and Sugar were infected with EIA. The Respondent knew Daisy and Sugar were both infected with EIA. Neither Daisy nor Sugar had received a negative Coggin's Test since being diagnosed with EIA. EIA or "Swamp Fever" is an equine disease. EIA is spread by blood sucking insects biting an infected horse and thereafter biting an uninfected horse. The disease can also be spread by the use of hypodermic needles contaminated with the blood of infected horses. There is no known cure for EIA. Once infected, a horse has EIA for the rest of its life. Chapter 585, Florida Statutes, and Rule 5C-18, Florida Administrative Code, provide that horses infected with EIA can be dealt with in one of three ways. An infected horse can be quarantined at a Department-approved site and its movement controlled by the Department; or the horse can be euthanized or sold for slaughter. The meat of horses which are destroyed with the use of drugs cannot be sold; however, the meat from horses which are shot may be sold. When a veterinarian diagnoses a horse with EIA, a report is made to the Department. The standard test for EIA is the AGIE Test, commonly known as a Coggin's Test. The results of the Coggin's Test are reported to the Department on VS Form 10-11. When an infected horse is diagnosed it is given an identification number by the Department and the identification number is freeze branded or tattooed on the left side of the horses neck. A Coggin's Test is considered valid for twelve months. In the state of Florida, a negative Coggin's Test must have been performed within the previous twelve months before a horse may be sold or possession transferred. The EIA disease control program seeks to control EIA by quarantining infected animals or destroying the infected animals. A horse infected with EIA cannot be moved from a quarantine location until a permit is issued by the Department. Infected animals can only be moved to approved quarantined sites. Quarantined sites are approved by the Department. On June 24, 1994, the Respondent and Paula Elmore took possession of four horses which were infected with EIA. Two of the horses were named Daisy and Sugar. See Petitioner's exhibit 6. At that time the Respondent and Paula Elmore were engaged in a personal relationship, and both were active in the care of horses infected with EIA. The Respondent knew that Daisy, an eight-year-old gray mare, ID Number 58 1556 and Sugar, a twenty-four-year-old paint, ID Number 58A6009, were both infected with EIA. See stipulated facts. On June 25, 1994, Daisy and Sugar were quarantined at the R.K. Isolation Lot, also known as the R. K. Ranch, a EIA quarantine site approved by the Department, located at 10200 NW 138th Street, Miami Lakes, Florida. See Petitioner's exhibit 7. Subsequently, uninfected horses were moved into a pasture adjoining R. K. Ranch, and the Department determined that the infected horses at R. K. Ranch would have to be moved. Discussions regarding moving the infected horses were on-going between the Department and Respondent and Elmore. The Respondent was officially notified by the Department on or about April 1, 1996, that the EIA-infected horses would have to be removed from the R.K. Ranch. The notice provided that the horses would have to be moved to another approved quarantined site or disposed via of euthanasia or slaughter. The Respondent testified at hearing. By the end of March 1996, the Respondent and Paula Elmore had severed their personal relationship and the Respondent urged Elmore to comply with the Department's demands to move the horses by having the horses euthanized or slaughtered. On or about March 30, 1996, Elmore called the Respondent and advised that she had arranged for the horses to be slaughtered. Towards that end, the Respondent met with Elmore to receive money from her prior to meeting the person responsible for slaughtering the horses and disposing of their bodies. The Respondent met with Elmore during his work day, received the money, and went to the R.K. Ranch where he met a Hispanic man to whom he delivered the money for the slaughter and disposal of the horses. Prior to the horses' disposal, the Respondent left and returned to his place of work. The Respondent faxed to the Department to the attention of Dr. Jeter two forms showing that Sugar and Daisy had been euthanized on March 30, 1996. The Respondent had nothing further to do with the horses. These certificates, which were introduced as the Department's exhibits 5 and 6, state as follows: This is to certify that the following EIA reactor owned by Robin Karoly 5641 SW 37 St Davie Fl 33314 (Name and Address) was euthanized on 3/30/96 (Date) Same as above (Name and Title) and the carcass disposed of by Hoof & Halter Foundation of Fla. (Means of disposal) Animal Identification: Sugar Paint 25 Gelding Name or Registry No. Breed Age Sex 58A6009 (Reactor Tattoo or Brand No.) Euthanasia of this animal was entirely voluntary on my part and I understand that I am not entitled to indemnity. \Robin Karoly\ (Signature) 4/2/96 (Date) This is to certify that the following EIA reactor owned by Robin Karoly 5641 SW 37 St Davie Fl 33314 (Name and Address) was euthanized on 3/30/96 (Date) Same as above (Name and Title) and the carcass disposed of by Hoof & Halter Foundation of Fla. (Means of disposal) Animal Identification: Daisy Mixed 9 Mare Name or Registry No. Breed Age Sex Bay 58 1556 (Color) (Reactor Tattoo or Brand No.) Euthanasia of this animal was entirely voluntary on my part and I understand that I am not entitled to indemnity. \Robin Karoly\ (Signature) 4/2/96 (Date) The business card of Halter and Hoof was included with each faxed certificate. On or about June of 1997, Debbie Beye Barwick observed a horse in a pasture near I-75 and Sheridan Street in Broward County which she identified as Daisy. The basis of the identification was the horse's color and a distinctive injury to the horse's leg. Jimmy Cangemie an inspector for the Department, inspected the horse which was suspected to be Daisy in the pasture at I-75 and Sheridan Street. Cangemie identified the horse by the unique freeze brand on the horse's neck. Cangemie, who was the Department's agent in Broward and Dade Counties, had not approved the movement of Daisy from the R.K. Ranch to the Sheridan Street and I-75 pasture, and had not approved the I-75 and Sheridan Street pasture as a quarantine site. As the Department's agent, Cangemie was charged with the duty of approving all quarantined sites in Broward and Dade Counties. Linda Baca testified that she saw a horse which she identified as Sugar in the I-75 and Sheridan Street pasture; however, neither Baca nor any of the other witnesses were able to positively identify the horse with its unique freeze brand.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That no action be taken against the Respondent. DONE AND ENTERED this 5th day of June, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1998.
