08-005457PL Department Of Business And Professional Regulation, Board Of Veterinary Medicine vs. Philip J. Aleong, D.V.M. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, October 19, 2009.

Summary: Respondent is guilty of practicing while his license was suspended; that he believed, based on advice of counsel, that such action was not prohibited, militated in favor of a less severe penalty than revocation of his license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF VETINARY MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 08-5457PL

)

PHILIP J. ALEONG, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly-designated Administrative Law

Judge of the Division of Administrative Hearings (DOAH), on

March 5, 2009, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Elizabeth Duffy, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Bradford J. Beilly, Esquire

1144 Southeast Third Avenue

Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUE

Whether Respondent committed the violation alleged in the

Administrative Complaint and, if so, what disciplinary action

should be taken against him.

PRELIMINARY STATEMENT

On or about August 26, 2008, Petitioner filed an

Administrative Complaint alleging that Respondent "violated

Section 474.213(1)(e), Florida Statutes, by practicing

veterinary medicine with a suspended license" between April 10,

2008, and April 24, 2008.

By filing with Petitioner a completed "Election of Rights"

form, Respondent requested a "hearing involving disputed issues

of material fact before an Administrative Law Judge of the

Division of Administrative Hearings (DOAH), pursuant to Section

120.57(1), Florida Statutes." On October 31, 2008, the matter

was referred to DOAH.

On March 4, 2009, the parties filed an Amended Joint

Prehearing Stipulation, which contained, among other things, the

following "statement of the nature of the controversy," "brief

statement of each party's positions," "statement of facts which

are admitted," "issues of law on which there is agreement,"

"issues of fact which remain to be litigated," and "issues of

law which remain for determination":

A. STATEMENT OF THE NATURE OF THE

CONTROVERSY

The issue in this case is whether

disciplinary action should be taken against

Respondent's license to practice as a

veterinarian based on the allegation that

Respondent violated the following statutory

provision[] referenced in the Administrative

Complaint:

a. Section 474.213(1)(e), Florida

Statutes, by using or attempting to

use a veterinarian's license which

has been suspended or revoked.

B. BRIEF GENERAL STATEMENT OF EACH PARTY'S'

POSITIONS

DPBR :

It is Petitioner's position that

Respondent's license to practice as a

veterinarian should be subjected to

disciplinary action as a result of [the]

violation[] alleged in the administrative

complaint.

a. Count One - Respondent is in

violation of Section 474.213(1)(e),

Florida Statutes, by using his

veterinarian's license in the

practice of veterinary medicine while

it was suspended by the Department.

ALEONG

As set forth in Respondent's Answer and

Affirmative Defenses, the Amended Final

Order . . . which Petitioner alleges

suspended Respondent's veterinary license

was ambiguous on its face. In addition,

there was a prior course of performance

established between the Petitioner and

Respondent Aleong with respect to Final

Orders that had the effect of suspending

Respondent's license. Namely, Petitioner

had previously agreed to not enforce the

final order in between the entry of same and

the entry of a stay by the Fourth District

Court of Appeal[]. With respect to the

Amended Final Order at issue in this case,

the Fourth District Court of Appeal[]

entered a stay of same on April 24, 2008.

* * *

E. STATEMENT OF FACTS WHICH ARE ADMITTED

1. The Department of Business and

Profession[al] [Regulation, Board of

Veterinary Medicine] is the state agency

charged with regulating the practice of

veterinary medicine, pursuant to section

20.165, Florida Statutes, and Chapters 455

and 474, Florida Statutes.

2. At all times material to the

Administrative Complaint, Respondent was a

veterinarian in the State of Florida, having

been issued license number VM 6466.

3. At all times material to the count in

the Administrative Complaint, Respondent

practiced as a veterinarian at Calder Race

Track and at other venues, April 7 through

April 24, 2008.[ 2 ]

F. ISSUES OF LAW ON WHICH THERE IS

AGREEMENT

1. Petitioner is the Department of Business

and Professional Regulation (DBPR) charged

with regulating the practice of veterinary

medicine under Florida Law.

2. The Division of Administrative Hearings

has jurisdiction over the parties and the

subject matter of this proceeding pursuant

to section 120.57, Florida Statutes.

3. Petitioner must establish by clear and

convincing evidence the violation[] alleged

in the Administrative Complaint.

4. Petitioner bears the burden of proof

with respect to each and very fact necessary

to establish by clear and convincing

evidence the violation[] alleged in the

Administrative Complaint.

5. Any evidentiary disputes shall be

resolved by applying the provisions of

Chapter 90, Florida Statutes, and Chapter

120, Florida Statutes.

6. By virtue of the facts stipulated to

within this agreement, the burden of proof

shall shift to the Respondent to prove his

affirmative defenses.

G. ISSUES OF FACT WHICH REMAIN TO BE

LITIGATED

a. Whether the Amended Final Order was

ambiguous, thus precluding its enforcement

under the facts of this case.

b. Whether the parties' prior course of

performance precludes enforcement under the

facts of this case.

c. Whether the Petitioner's lack of finding

of probable cause in DBPR investigation case

no. 2008-028603 estops the Petitioner from

proceeding on its Administrative Complaint

in this action.

H. ISSUES OF LAW WHICH REMAIN FOR

DETERMINATION

DBPR

1. All other issues of law relevant to the

disposition of this matter, not set forth in

paragraph "F" above, remain for

determination.

ALEONG

a. Whether the Amended Final Order was

ambiguous, thus precluding its enforcement

under the facts of this case.

b. Whether the parties' prior course of

performance precludes enforcement under the

facts of this case.

c. Whether the Petitioner's lack of finding

of probable cause in DBPR investigation case

no. 2008-028603 estops the Petitioner from

proceeding on its Administrative Complaint

in this action.

As noted above, the hearing that Respondent had requested

was held on March 5, 2009. 3 Three witnesses testified at the

hearing: Respondent; Bradford Beilly, Esquire; and Drew

Winters, Esquire. In addition, 11 exhibits (Joint Exhibits 1

and 2, and Respondent's Exhibits A through I) were offered and

received into evidence.

At the close of the taking of evidence, the undersigned

established a deadline (30 days from the date of the filing with

DOAH of the hearing transcript) for the filing of proposed

recommended orders.

The Transcript of the hearing (consisting of one volume)

was filed with DOAH on March 26, 2009.

Petitioner timely filed its Proposed Recommended Order on

Monday, April 27, 2009.

On April 29, 2009, Respondent filed a motion requesting an

extension of time to file his proposed recommended order. On

that same day, Petitioner filed a response in opposition to the

motion. A hearing on the motion was held by telephone

conference call on April 30, 2009. Following the telephone

conference call on April 30, 2009, the undersigned issued an

Order Granting Extension of Time, which provided, in pertinent

part, as follows:

1. Respondent is hereby granted an

extension of time to file his proposed

recommended order. Petitioner shall file

his proposed recommended order no later than

40 days from the date of this order.

2. Petitioner shall have the opportunity to

file a supplemental proposed recommended

order. Any such supplemental proposed

recommended order shall be filed no later

than 15 days from the filing date of

Respondent's proposed recommended order.

3. The undersigned will issue his

recommended order within 30 days of either

the filing date Petitioner's supplemental

proposed recommended order or, if no

supplemental proposed recommended order is

filed, the expiration of the supplemental

proposed recommended order [filing]

deadline.

Respondent filed his Proposed Recommended Order on Monday,

June 15, 2009. 4

On June 30, 2009, Petitioner filed an Amended Proposed

Recommended Order.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. Respondent is now, and has been since June 6, 1994,

licensed to practice veterinary medicine in the State of

Florida.

2. Respondent holds license number VM 6466 issued by the

Board of Veterinary Medicine (Board).

3. Respondent supports his family by practicing veterinary

medicine. He is the family's sole wage earner.

4. At its March 14, 2006, meeting, the Board took action,

in Case No. 2003-93234, to suspend Respondent's license for 30

days.

5. 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]."

6. 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.

7. 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."

8. At no time did Mr. Winters ever make such a

representation to Mr. Beilly. 5

9. 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

10. The Board entered its original Final Order in Case No.

2003-93234 (Original Final Order) on March 28, 2006.

11. Mr. Beilly received a faxed copy of the Original Final

Order the following day.

12. 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.

13. The Fourth District Court of Appeal granted the motion

for stay on April 4, 2006.

14. Between March 28, 2006, and April 4, 2006, Respondent

openly engaged in the practice of veterinary medicine.

15. 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."

16. 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).

17. 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:

1. 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.]

2. 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.]

3. 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.]

4. 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.]

5. 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:

1. 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.

2. 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.

3. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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

23. There is no evidence that Respondent's practicing

veterinary medicine during this period of time resulted in

damage to any person, animal, or thing.

24. 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."

25. 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."

26. 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.

27. 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.

28. Respondent's appeal of the Amended Final Order is

still pending.

29. 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.

30. 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.

31. 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.

32. 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.

CONCLUSIONS OF LAW

33. DOAH has jurisdiction over the subject matter of the

instant proceeding and of the parties hereto pursuant to Chapter

120, Florida Statutes.

34. The Board is statutorily empowered to take

disciplinary action against Florida-licensed veterinarians based

upon any of the grounds enumerated in Section 474.214(1),

Florida Statutes, including "violating any provision of this

chapter [Chapter 474, Florida Statutes]."

35. Such disciplinary action may include one or more of

the following penalties: license revocation; license suspension

(for a period not exceeding ten years); imposition of an

administrative fine not to exceed $5,000.00 for each count or

separate offense; issuance of a reprimand; placement of the

licensee on probation; restricting the authorized scope of

practice of the licensee; imposition of costs of the

investigation and prosecution; and requiring the licensee to

undergo remedial education. "In determining appropriate action,

the [B]oard must first consider those sanctions necessary to

protect the public. Only after those sanctions have been

imposed may [it] consider and include in its order requirements

designed to rehabilitate the veterinarian." § 474.214(2), Fla.

Stat.

36. The Board may take disciplinary action only after the

licensee has been given reasonable written notice of the charges

and an adequate opportunity to request a proceeding pursuant to

Sections 120.569 and 120.57, Florida Statutes. See § 120.60(5),

Fla. Stat.

37. An evidentiary hearing must be held if requested by

the licensee when there are disputed issues of material fact.

See §§ 120.569(1) and 120.57(1), Fla. Stat.

38. At the hearing, the Department bears the burden of

proving that the licensee engaged in the conduct, and thereby

committed the violations, alleged in the charging instrument.

Clear and convincing evidence of the licensee's guilt must be

presented for the Department to meet its burden of proof. See

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d

932, 935 (Fla. 1996); Walker v. Florida Department of Business

and Professional Regulation , 705 So. 2d 652, 655 (Fla. 5th DCA

be based upon a preponderance of the evidence, except in penal

or licensure disciplinary proceedings or except as otherwise

provided by statute . . . .").

39. Clear and convincing evidence is an "intermediate

standard," "requir[ing] more proof than a 'preponderance of the

evidence' but less than 'beyond and to the exclusion of a

reasonable doubt.'" In re Graziano , 696 So. 2d 744, 753 (Fla.

1997). For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994)( citing with approval ,

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983));

see also In re Adoption of Baby E. A. W. , 658 So. 2d 961, 967

(Fla. 1995)("The evidence [in order to be clear and convincing]

must be sufficient to convince the trier of fact without

hesitancy."). "Although this standard of proof may be met where

the evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corporation, Inc. v.

Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

40. In determining whether the Department has met its

burden of proof, it is necessary to evaluate its evidentiary

presentation in light of the specific allegations of wrongdoing

made in the charging instrument. Due process prohibits the

Board from taking disciplinary action against a licensee based

on conduct not specifically alleged in the charging instrument,

unless those matters have been tried by consent. See Aldrete v.

Department of Health, Board of Medicine , 879 So. 2d 1244, 1246

(Fla. 1st DCA 2004); Shore Village Property Owners' Association,

Inc. v. Department of Environmental Protection , 824 So. 2d 208,

210 (Fla. 4th DCA 2002); and Delk v. Department of Professional

Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

41. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the charging instrument]

to have been violated." Delk , 595 So. 2d at 967. In deciding

whether "the statute or rule claimed [in the charging

instrument] to have been violated" was in fact violated, as

alleged, if there is any reasonable doubt, that doubt must be

resolved in favor of the licensee. See Djokic v. Department of

Business and Professional Regulation, Division of Real Estate ,

875 So. 2d 693, 695 (Fla. 4th DCA 2004); and Lester v.

Department of Professional and Occupational Regulations , 348 So.

2d 923, 925 (Fla. 1st DCA 1977).

42. In those cases where the proof is sufficient to

establish that the licensee committed the violation(s) alleged

in the charging instrument and that therefore disciplinary

action is warranted, it is necessary, in determining what

disciplinary action should be taken against the licensee, to

consult the Board's "disciplinary guidelines," as they existed

at the time of the violation(s). See Aleong v. Department of

Business and Professional Regulation , 963 So. 2d 799, 801 (Fla.

4th DCA 2007)("Pursuant to Florida Statutes section 455.2273,

the Board was required to include in its order imposing

sanctions written findings as to the aggravating circumstances

which were the basis for its deviation from the recommended

guidelines penalty."); Parrot Heads, Inc. v. Department of

Business and Professional Regulation , 741 So. 2d 1231, 1233

(Fla. 5th DCA 1999)("An administrative agency is bound by its

own rules . . . creat[ing] guidelines for disciplinary

penalties."); and Orasan v. Agency for Health Care

Administration, Board of Medicine , 668 So. 2d 1062, 1063 (Fla.

1st DCA 1996)("[T]he case was properly decided under the

disciplinary guidelines in effect at the time of the alleged

violations."); see also State v. Jenkins , 469 So. 2d 733, 734

(Fla. 1985)("[A]gency rules and regulations, duly promulgated

under the authority of law, have the effect of law."); Buffa v.

Singletary , 652 So. 2d 885, 886 (Fla. 1st DCA 1995)("An agency

must comply with its own rules."); and Williams v. Department of

Transportation , 531 So. 2d 994, 996 (Fla. 1st DCA 1988)(agency

is required to comply with its disciplinary guidelines in taking

disciplinary action against its employees).

43. At all times material to the instant case, the Board's

"disciplinary guidelines" have been set forth in Florida

Administrative Code Rule 61G18-30.001, and have provided, in

pertinent part, as follows:

(1) When the Board finds an applicant or

licensee whom it regulates under Chapter

474, F.S., has committed any of the acts set

forth in Section 474.213(1), F.S., which are

felonies of the third degree as well as

violations of the Practice act, it shall

issue a final order imposing appropriate

penalties, using the following disciplinary

guidelines.

* * *

(e) Using or attempting to use a

veterinarian's license which has been

suspended or revoked.

. . . . The usual action of the Board in

the case of a licensee shall be to impose

revocation if the subject's license has been

suspended and an administrative fine of five

thousand dollars ($5,000.00).

* * *

(4) Based upon consideration of aggravating

or mitigating factors present in an

individual case, the Board may deviate from

the penalties recommended in subsections

(1), (2) and (3) above. The Board shall

consider as aggravating or mitigating

factors the following:

(a) The danger to the public;

(b) The length of time since the violation;

(c) The number of times the licensee has

been previously disciplined by the Board;

(d) The length of time [the] licensee has

practiced;

(e) The actual damage, physical or

otherwise, caused by the violation;

(f) The deterrent [e]ffect of the penalty

imposed;

(g) The [e]ffect of the penalty upon the

licensee's livelihood;

(h) Any effort of rehabilitation by the

licensee;

(i) The actual knowledge of the licensee

pertaining to the violation;

(j) Attempts by [the] licensee to correct

or stop [the] violation or refusal by [the]

licensee to correct or stop [the] violation;

(k) Related violations against [the]

licensee in another state including findings

of guilt or innocence, penalties imposed and

penalties served;

(l) Actual negligence of the licensee

pertaining to any violation;

(m) Penalties imposed for related offenses

under subsections (1), (2) and (3) above;

(n) Pecuniary benefit or self-gain enuring

to [the] licensee;

(o) Any other relevant mitigating or

aggravating factors under the circumstances.

(5) Penalties imposed by the Board pursuant

to subsections (1), (2) and (3) above may be

imposed in combination or individually, and

are as follows:

(a) Issuance of a reprimand;

(b) Imposition of an administrative fine

not to exceed five thousand dollars

($5,000.00) for each count or separate

offense;

(c) Restriction of the authorized scope of

practice;

(d) Placement of the licensee on probation

for a period of time and subject to such

conditions as the Board may specify,

including requiring the licensee to attend

continuing education courses or to work

under the supervision of another licensee;

(e) Suspension of a license;

(f) Revocation of a license;

(g) Denial of an application for licensure

or a permit to own and operate a veterinary

establishment; and

(h) The taking and passing of a clinical

competency specialty examination.

* * *

44. The Administrative Complaint issued in the instant

case alleges that Respondent practiced veterinary medicine with

a suspended license between April 10, 2008, and April 24, 2008,

in violation of Section 474.213(1)(e), Florida Statutes.

45. At all times material to the instant case, Section

474.213(1)(e), Florida Statutes, has provided that "[n]o person

shall: [u]se or attempt to use a veterinarian's license which

has been suspended or revoked."

46. The Department need prove neither intent nor knowledge

to establish that a person has "[u]se[d] . . . a veterinarian's

license which has been suspended or revoked" in violation of

Section 474.213(1)(e), Florida Statutes. 8 A person who

"use[s] . . . a veterinarian's license which has been suspended

or revoked" is strictly liable under the plain meaning of the

statute, regardless of any advice he or she may have received

from his or her attorney. See Huff v. State , 646 So. 2d 742,

744 (Fla. 2d DCA 1994)("In a pretrial proceeding, the state

moved in limine to preclude Huff from presenting any evidence

that he had relied on advice of counsel with regard to the sale

of the mortgage interests. The judge granted the motion as to

the offenses relating to the unauthorized sale of securities,

which are strict liability crimes, and denied the motion as to

the balance of the charges. This ruling was correct because

scienter is not an element of security law violations. It was

irrelevant whether Huff's violation of the securities laws was

the result of erroneous legal advice. At a subsequent hearing

before a successor judge, the state renewed its motion in limine

and the successor judge, without explanation, granted the motion

as to all the charges. This was error. Advice of counsel can

be a valid defense to specific intent crimes.")(citation

omitted).

47. At all times material to the instant case, Section

474.214(1)(f), Florida Statutes, has authorized the Board to

take disciplinary action against a Florida-licensed veterinarian

who has violated any provision of Chapter 474, Florida Statutes,

including Section 474.213(1)(e), Florida Statutes.

48. The proof presented at the final hearing in this case

clearly and convincingly establishes that, as alleged in the

Administrative Complaint, Respondent practiced veterinary

medicine with a suspended license 9 from April 10, 2008, through

April 23, 2008, 10 in violation of Section 474.213(1)(e), Florida

Statutes, and therefore also Section 474.214(1)(f), Florida

Statutes.

49. Neither the "parties' prior course of performance" 11

nor the "lack of finding of probable cause in DBPR investigation

case no. 2008-028603" 12 prevents the Board from finding

Respondent guilty of these violations and disciplining him

therefor.

50. That Respondent believed that he was not prohibited

from practicing during this period (based upon what his attorney

had told him) does not insulate him from liability, but it is a

significant "mitigating factor" under Florida Administrative

Code Rule 61G18-30.001(4) weighing against the Board's

imposition in the instant case of the "usual" penalty for a

violation of Section 474.213(1)(e), Florida Statutes, by a

licensee (which is "revocation if the subject's license has been

suspended and an administrative fine of five thousand

dollars"). 13 Cf. In Re: Mitchell Kinzer , No. 93-0313EC, 1994

Fla. Div. Adm. Hear. LEXIS 5188 *40 (Fla. DOAH January 25,

1994)(Recommended Order)("Where, as here, there is no

requirement of wrongful intent, Respondent's reliance on the

incorrect advice of counsel is not a defense. Respondent's

reliance on the prior advice of counsel mitigates, but does not

obviate the violation.").

51. Having considered the facts of the instant case

(including, most significantly, but not exclusively,

Respondent's aforementioned belief that he was not violating the

law) in light of the pertinent and applicable provisions of

Florida Administrative Code 61G18-30.001, it is the view of the

undersigned that, as punishment for Respondent's violation of

Section 474.213(1)(e), Florida Statutes, and Section

474.214(1)(f), Florida Statutes, the Board should suspend his

license for 17 days (the number of days that he practiced

veterinary medicine with a suspended license); fine him

$1,000.00; place him on probation for a year; and require him to

pay the Department's investigative and prosecutorial costs.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of July, 2009.

ENDNOTES

1 Unless otherwise noted, all references in this Recommended

Order to Florida Statutes are to Florida Statutes (2008).

2 At the final hearing, the parties modified this stipulation of

fact to read as follows:

At all times material to the count in the

Administrative Complaint, Respondent

practiced as a veterinarian at Calder Race

Track and at other venues, April 7 through

April 2 3 , 2008.

3 The hearing was originally scheduled for December 22, 2008,

but was continued twice at the request of Petitioner.

4 The Proposed Recommended Order's Certificate of Service

reflects that a copy was "sent by email and U.S. Mail to counsel

for the Department on June 9, 2009."

5 It was Mr. Winters' standard practice, from which he did not

deviate in his dealings with Mr. Beilly, to tell those who

inquired "regarding an order [of suspension]" something to the

following effect:

[T]hat the order is effective and

enforceable upon rendering by the agency

clerk's office and that you have a right to

an appeal and can request a [s]tay but if

the order is effective and we do catch you

practicing, it will be considered a

violation and it will be investigated and

prosecuted according[ly] . . . .

6 While there is a conflict in the evidence regarding what

Mr. Winters told Mr. Beilly, no evidentiary conflict exists

regarding what Mr. Beilly told Respondent.

7 In his Proposed Recommended Order, Respondent admits that he

"practiced veterinary medicine between April 7, 2008 [the day

the Amended Final Order took effect] and April 23, 2008, the day

before the stay was entered."

8 Compare the language of Section 474.213(1)(e) with that of

Subsections (1)(f)("[n]o person shall: [k]nowingly employ

unlicensed persons in the practice of veterinary medicine"),

(1)(g)("[n]o person shall: [k]nowingly conceal information

relative to violations of this chapter"), and (1)(k)("[n]o

person shall: [k]nowingly operate a veterinary establishment or

premises without having a premise permit issued under s.

474.215") of the same statute. See Beshore v. Department of

Financial Services , 928 So. 2d 411, 413 (Fla. 1st DCA 2006)("One

of the first rules of statutory construction is that the plain

meaning of the statute is controlling. If the language is clear

and unambiguous, there is no need to engage in statutory

construction. The language of the statute [Section 626.901(1),

Florida Statutes] clearly imposes an absolute bar against

representing an unauthorized insurer. Moreover, the supreme

court has held that where the legislature has used a term in one

section of a statute but omitted the term in another section,

the court will not read the term into the sections where it was

omitted. The legislature's use of different terms in different

sections of the same statute is strong evidence that different

meanings were intended. . . . The fact that the very next

section of the statute [Section 626.901(2), Florida Statutes]

contains a knowledge element indicates that the legislature

intended to impose different knowledge requirements in each

section.")(citations omitted).

9 The Amended Final Order unambiguously provided that

Respondent's 30-day suspension would "take effect" upon the

Amended Final Order's "being filed with the Clerk of the

Department of Business and Professional Regulation." The

Amended Final Order was filed with the Department's Clerk On

April 7, 2008. Accordingly, Respondent's license was "under

suspension" from April 7, 2008, until the Fourth District Court

of Appeal entered a stay of the Amended Final Order on April 24,

2008.

10 The Department failed to prove by clear and convincing

evidence that Respondent practiced veterinary medicine with a

suspended license on April 24, 2008, as further alleged in the

Administrative Complaint.

11 At the heart of Respondent's argument that the "parties'

prior course of performance precludes enforcement under the

facts of this case" is his claim that "the DBPR, acting in March

2006 through Drew Winters, Esq., represented to Aleong's counsel

that the DBPR would not take action against Respondent Aleong

for practicing veterinary medicine prior to entry of an order of

a stay with respect to [the] March 28, 2006 Vet Board order."

Crediting the testimony of Mr. Winters' on the matter, the

undersigned has found that Mr. Winters made no such

representation.

12 In his Proposed Recommended Order, Respondent argues:

In the instant case, the DBPR issued a

letter to Respondent Aleong which stated

that in connection with investigation 2008-

028603 as to whether he violated Fla. Stat.

474.213(1)(e), no probable cause was found

that Respondent Aleong violated said

statute. The Administrative Complaint filed

in the above styled proceeding was filed

pursuant to a subsequent investigation and,

apparently, a second probabl[e] cause panel.

As the law above states, the Vet Board . . .

is not authorized to have more than one

probable cause panel. Accordingly, the

finding of no probable cause by the probable

cause panel, which considered the

investigation in case number 08-[028603],

precludes the filing of an administrative

complaint arising out of the same subject

matter as investigation number 08-028603

concerned.

The argument is unpersuasive. Firstly, the complaint

investigated in DBPR Case No. 2008-028603 was not based upon the

same alleged facts as the complaint investigated in the instant

case (DBPR Case No. 2008-029108). The former made allegations

concerning events that had occurred in Ocala, whereas the latter

made allegations concerning events that had occurred at Calder

Race Track in Miami Gardens. See Department of Health, Board of

Medicine v. Boczar , No. 01-1486PL, 2002 Fla. Div. Adm. Hear.

LEXIS 148 *18-19 (Fla. DOAH February 6, 2002)(Recommended

Order)("Dr. Boczar argues that she cannot be found guilty of a

violation of Rule 64B8-10.002(4), Florida Administrative Code,

because she received a Letter of Guidance concerning a charge of

relocating her office without complying with the notice

requirements of Rule 64B8-10.002(4), Florida Administrative

Code. The Letter of Guidance advised that the Probable Cause

Panel had dismissed Case No. 2000-08415 against her at its

meeting on May 11, 2001. There is no evidence to show that the

facts upon which the complaint in Case No. 2000-08415 was based

are the same facts on which the administrative complaint in the

instant case is based. . . . Without establishing that the

complaints are based on the same facts, Dr. Boczar cannot rely

on a defense of res judicata . . . ."). Secondly, the record

evidence fails to establish that the probable cause panel found

no probable cause in DBPR Case No. 2008-028603. Rather, it

appears that the Department merely closed the case "without a

finding of probable cause" having been made by the probable

cause panel. Moreover, it did so "without prejudice" to

subsequently reopening the case. "A voluntary dismissal without

prejudice will not support a claim of res judicata ." Froman v.

Kirland , 753 So. 2d 114, 116 (Fla. 4th DCA 1999).

13 In its Amended Proposed Recommended Order, the Department

proposes that the undersigned recommend that the Board impose

this "usual" penalty of revocation and a $5,000.00 fine.

COPIES FURNISHED :

Elizabeth Duffy, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Bradford J. Beilly, Esquire

1144 Southeast Third Avenue

Fort Lauderdale, Florida 33316

Juanita Chastain, Executive Director

Board of Veterinary Medicine

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.