95-005057 Board Of Veterinary Medicine vs. Olfat Azouz Mansour Status: Closed Recommended Order on Tuesday, August 6, 1996.

Summary: Veterinarian who was unable to remove ovary, failed to take x-rays before surgery and failed to remove kidney stones is guilty of negligence and incompt & fined $499 and 1 year probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NOS. 95-5057

) 96-2657

OLFAT AZOUZ MANSOUR, D. V. M., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a

duly designated Hearing Officer of the Division of Administrative Hearings, on

June 13, 1996, in Orlando, Florida. The parties, witnesses, and court reporter

attended the formal hearing in Orlando. The undersigned participated by video

conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Miriam S. Wilkinson, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Charles L. Curtis, Esquire

Doumar, Curtis, Cross, Laystrom, P.A.

1177 Southeast 3rd Avenue

Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUES

The issues for determination are whether Respondent violated Section

474.214(1)(r) Florida Statutes (1995), 1/ by committing the acts alleged in

two administrative complaints and, if so, what, if any, penalty should be

imposed.

PRELIMINARY STATEMENT

On January 30, 1995, Petitioner filed an Administrative Complaint against

Respondent in Case Number 95-5057. The complaint alleges that Respondent

violated Section 474.214(1)(r) in his treatment of two cats, "Kari" and

"Elvira."

On November 8, 1995, Petitioner filed an Administrative Complaint against

Respondent in Case Number 96-2657. The complaint alleges that Respondent

violated Sections 474.214(1)(o) and (r) in his treatment of a dog, "Dudley."

The two cases were consolidated pursuant to the agreement of the parties.

Respondent timely requested a formal hearing.

At the formal hearing, Petitioner dismissed all allegations and counts

against Respondent pertaining to "Elvira." 2/ Petitioner also dismissed the

factual allegations and legal counts pertaining to violations of Section

474.214(1)(o) by Respondent's treatment of "Kari" and "Dudley."

Respondent admitted the allegations pertaining to "Dudley." The formal

hearing proceeded on the issues of: what penalty should be imposed for

Respondent's treatment of "Dudley;" and whether Respondent's treatment of "Kari"

was incompetent and negligent and, if so, what penalty, if any, should be

imposed.

At the formal hearing, Petitioner presented the testimony of two witnesses

and submitted four exhibits for admission in evidence. Respondent testified in

his own behalf, presented the testimony of two witnesses, and submitted four

exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each,

are set forth in the transcript of the formal hearing filed on June 24, 1996.

Petitioner timely filed its proposed recommended order ("PRO") on July 3, 1996.

Respondent timely filed his PRO on July 5, 1996. Proposed findings of fact in

the parties' PROs are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for issuing licenses

to practice veterinary medicine. Petitioner is also responsible for regulating

the practice of veterinary medicine.

2. Respondent is licensed as a veterinarian pursuant to license number VM

0002578. Respondent practices veterinarian medicine in Orlando, Florida.

1. Kari

3. On May 5, 1993, Respondent performed an ovariohysterectomy on a feline

("Kari"). An ovariohysterectomy is the surgical removal of the uterus and both

ovaries, i.e., a "spay."

4. Respondent failed to remove the left ovary from "Kari." During the

surgery, Respondent noted that the ovary was not on the gauze where Respondent

had placed the right ovary and other incidental material that Respondent removed

surgically. 3/

5. Respondent searched inside and outside the surgical area for about an

hour but could not locate the ovary. Respondent noted in the medical record

that an ovarian remnant may have been left in the cat. Respondent advised the

owner that if the cat went into heat she should bring the cat back for

exploratory surgery to attempt to find and remove the remnant.

6. On July 12, 1993, 4/ the owner observed "Kari" in heat and returned

the cat to Respondent. Respondent performed exploratory surgery in an attempt

to find an ovarian remnant.

7. Respondent spent approximately one hour searching for microscopic

tissue that could be the ovarian remnant. He cleaned the ovarian ligaments in

the area of the left and right ovaries, searched the peritoneal area, and

searched the adjacent organs. Respondent removed some material but did not

locate and remove an ovarian remnant.

8. Respondent advised the owner that he did not find a remnant but that he

thought he had removed all of the ovary. Respondent instructed the owner to

advise him if the cat came back into heat. Respondent did not charge the owner

for the second surgery.

9. In August, 1993, the owner advised Respondent that the cat was in heat.

The owner was unwilling to have Respondent perform surgery again. Respondent

advised the owner to see a surgical specialist at Respondent's expense.

10. On November 18, 1993, the owner took "Kari" to the Kissimmee Animal

Hospital. Medical tests established the cat's estrogen level to be 43.4 pg/ml.

The normal estrogen level for a spayed cat is below 25 pg/ml.

11. The treating physician at Kissimmee Animal Hospital referred the owner

to a specialist for a third surgery. The owner did not want to subject the cat

to a third surgery or incur additional veterinary expenses.

12. On February 16, 1994, "Kari" died. The owner had a necropsy

performed.

13. The left ovary was still present in the cat. The pathologist who

performed the necropsy retrieved the left ovary from the cat. He initially

identified the ovary by visual examination and subsequently confirmed his

initial identification on histopathology.

14. The histopathology examination revealed that the ovary and oviduct

fimbria were normal. The ovary was the original ovary in its original anatomic

position.

15. The ovary was attached to the ligaments that attach the ovary to the

dorsal abdominal wall and posterior part. The pathologist found no suture on

the ligament that attaches the left ovary to the posterior wall of the abdomen.

16. Respondent's treatment of "Kari," including Respondent's failure to

remove the left ovary, did not cause the cat to die. The cat died from a

massive infection in the abdominal cavity.

17. The cause of infection could not be determined. Based upon the type

and severity of the infection, it could not have begun more than two weeks

before the cat's death on February 16, 1994.

18. Respondent last treated "Kari" on July 12, 1993. Neither Respondent

nor the treating physicians at Kissimmee Animal Hospital detected any infection

in the cat.

2. Dudley

19. On September 7, 1994, Robert and Susan Micalizio took their dog

("Dudley") to a veterinarian who diagnosed the dog as having kidney stones. On

September 8, 1994, the owners brought Dudley to Respondent for a separate

opinion. Respondent confirmed the original diagnosis.

20. Respondent performed a urinary catheterization. The catheterization

failed to unblock the dog's urinary tract.

21. On September 9, 1994, Respondent performed a cystotomy and

urethrostomy on "Dudley." Respondent made three separate incisions in the dog's

bladder to determine if kidney stones were present.

22. Respondent did not take x-rays before performing surgery on the dog.

Respondent's failure to take radiographs prior to surgery in order to properly

diagnose the problem departed from the standard of care in the community.

23. Respondent found no kidney stones in the dog's bladder or urethra.

Respondent discharged the dog.

24. The dog's urinary symptoms persisted after Respondent released the dog

on September 9, 1994. The dog's condition worsened.

25. On September 13, 1994, the owners took "Dudley" to an emergency

clinic. X-rays disclosed the presence of kidney stones in the dog's urethra and

bladder. The emergency clinic diagnosed the dog with kidney failure.

26. On September 16, 1994, "Dudley" underwent a successful cystotomy and

urethrostomy at another animal clinic. It was necessary to perform a cystotomy

and urethrostomy to remove the kidney stones and successfully treat the dog.

Respondent performed the appropriate procedures but failed to locate the kidney

stones, extract them, and otherwise treat the dog appropriately.

27. Respondent reimbursed the owners for the costs of his procedures.

Respondent paid for the cost of the subsequent surgical procedures required to

treat "Dudley."

3. Penalty

28. Respondent was incompetent and negligent in his care of "Kari."

Respondent failed to remove all of the left ovary from "Kari" after two surgical

attempts to do so. "Kari" went into heat several more times and endured a

second surgery as a result of Respondent's incompetence and negligence.

29. Respondent was incompetent and negligent in his care of "Dudley."

Respondent failed to take x-rays prior to performing surgery. Although the

surgery Respondent performed ultimately proved to be necessary to treat

"Dudley," Respondent failed to detect kidney stones at the time Respondent

performed surgery and failed to correct the condition causing "Dudley's"

problems. As a result, the dog suffered longer and endured additional surgery.

30. The incompetence and negligence committed by Respondent did not

involve deceit, fraud, or misconduct. Respondent did not mislead the owners of

either animal.

31. Respondent's incompetence and negligence did not result in the death

or serious injury of either animal. Respondent made a reasonable effort to

locate the ovary he left in "Kari." Respondent either reimbursed or offered to

reimburse the owners of each animal for expenses incurred by them as a result of

Respondent's incompetence and negligence.

32. Respondent has no history of prior disciplinary action against him.

Respondent has performed over 20,000 spay procedures without incident.

Veterinarians leave ovaries, or ovarian remnants, in approximately three percent

of spayed animals. Respondent readily admits his lack of care in the treatment

of "Dudley."

4 Subject Matter Index

33. Petitioner maintains an index of its agency orders. Petitioner's index

is not alphabetical, hierarchical, or numbered sequentially. Petitioner's index

does not contain indentations below the subject headings or titles which are

more specific than the subject heading or title. The index does not contain

cross- referenced common and colloquial words as required by Florida

Administrative Code Rule 1S-6.008. 5/

34. Petitioner's index complies with the requirements of Section

120.53(2)(a)3. In lieu of a hierarchical subject matter index, Petitioner

maintains an electronic database that allows users, including Respondent, to

research and retrieve the full text of agency orders through an ad hoc indexing

system prescribed by statute.

35. Petitioner's electronic database contains complete case files related

to any final order issued by Petitioner from July 1, 1992, to the present. The

files include administrative complaints, settlement agreements, and orders.

36. Any person may access this information between 8:00 a.m. and 5:00 p.m.

Monday through Friday, either in person, by mail, or by telephone. Respondent

is able to determine those final orders that involve the statutory or rule

violations for which Respondent is charged.

37. Respondent's search of Petitioner's index revealed that Petitioner has

never suspended or revoked a license for the same or similar charges as those

against Respondent. Petitioner has not revoked the licenses of veterinarians

for more serious offenses.

38. Petitioner has imposed a reprimand, required direct supervised

probation, or mandatory appearances before Petitioner in only two cases in which

the veterinarian's treatment of the animal did not result in the death of the

animal treated. Both of those cases involved charges more serious than those

against Respondent.

39. Petitioner has imposed the sanctions of suspension, direct

supervision, and fines in excess of $500 only where a violation of the law has

occurred and the veterinarian's treatment resulted in the death of the animal

treated. Respondent's treatment did not result in the death of either animal

treated by Respondent.

CONCLUSIONS OF LAW

40. The Division of Administrative Hearings has jurisdiction over the

subject matter and parties in this proceeding. The parties were duly noticed

for the formal hearing.

41. Petitioner has the burden of proof in this case. Petitioner must show

by clear and convincing evidence that Respondent is guilty of negligence or

incompetence, within the meaning of Section 474.214(1)(r), and that the

penalties proposed by Petitioner are reasonable. Ferris v. Turlington, 510

So.2d 292 (Fla. 1987).

42. Section 474.214(1)(r) defines incompetence and negligence as the

failure to practice veterinary medicine with that level of care, skill, and

treatment which is recognized by a reasonably prudent veterinarian as being

acceptable under similar conditions and circumstances. Incompetency is

judicially defined to include a lack of ability or fitness to discharge a

required duty. County Board of Education of Clarke County v. Oliver, 116 So.2d

566 (Ala. 1959). Negligence is judicially defined to include the failure to do

what a reasonable and prudent person would ordinarily have done under the

circumstances, or doing what a reasonable and prudent person would not have done

under the circumstances. DeWald v. Quarnstrom, 60 So.2d 919 (Fla. 1952).

43. Respondent is guilty of incompetence and negligence within the meaning

of Section 474.214(1)(r) and applicable case law. Respondent was unable to

remove the left ovary from "Kari," neglected to take x-rays prior to performing

surgery on "Dudley," and was unable to locate and remove kidney stones from

"Dudley."

44. Section 474.214(2) authorizes Petitioner to revoke or suspend a

veterinarian's license, impose a fine up to $1,000 for each count or separate

offense, issue a reprimand, place the veterinarian on probation that may include

continuing education courses, restrict the veterinarian's practice, impose

investigative and prosecution costs, and require the veterinarian to undergo

remedial education. Rule 61G18-30.001(2)(o) provides that when a licensee

commits negligence or incompetence in the practice of veterinary medicine the

"usual" penalty ranges from probation for one year and a $1,000 fine to

revocation. 6/

45. Petitioner proposes that Respondent be: placed on probation for three

years; reprimanded; assessed a fine of $2,000; and required to complete 30 hours

of continuing education. Respondent proposes that he pay a $250 fine and take

three hours of continuing education courses.

5. Stare Decisis

46. The legal question involved in deciding which of the penalties

authorized in Section 474.214(2) to apply in a particular case may be controlled

by the judicial doctrine of stare decisis. 7/ The doctrine of stare decisis

controls subsequent determinations of the same question of law between parties

who were not parties in the earlier case in which the decision was made.

McGregor v. Provident Trust Co., 162 So 323 (Fla. 1935); Della-Donna v. Nova

University, Inc., 512 So.2d 1051, 1054 (Fla. 4th DCA 1987).

47. The object of stare decisis is uniformity, certainty, and stability in

the law. The objective is accomplished by:

. . . treating like cases alike and following

decisions rendered previously involving

similar circumstances. . . .

Gessler v. Department Business and Professional Regulation, 627 So.2d 501, 504

(Fla. 4th DCA 1993)

48. The doctrine of stare decisis:

. . . ensures that similarly situated

individuals are treated alike rather than

in accordance with the personal view of any

particular judge. . . .

Perez v. State, 620 So.2d 1256, 1259 (Fla. 1993) (Overton, J., concurring).

Although application of the doctrine may not be obligatory in a particular case,

the doctrine is generally applied unless there is a compelling reason for

departing from existing precedent. Forman v. Florida Land Holding Corporation,

102 So.2d 596, 598 (Fla. 1958)

49. Stare decisis applies to administrative proceedings, including the

imposition of penalties. Gessler, 627 So.2d at 503. Stare decisis protects

individuals against arbitrariness in administrative proceedings, including

arbitrary penalties. Stare decisis is intended:

. . . to protect citizens against arbitrari-

ness, to give citizens the means of finding

out whether they are receiving treatment

equal to similarly situated persons, and to

give the courts the opportunity to determine

whether the agency is acting [arbitrarily or

evenhandedly]. [emphasis supplied]

Gessler, 627 So.2d at 503 (discussing the statutory requirement for an indexing

system).

5.1 Burden Of Proof

50. Penalties that depart from existing precedent without a compelling

reason for doing so may be arbitrary. Gessler, 627 So.2d at 503. Arbitrary

penalties are not reasonable penalties. Petitioner has the burden of showing

that the penalties it proposes are reasonable. Ferris, 510 So.2d at 295.

51. Showing that a penalty is authorized by applicable statutes and rules

is only one of the factors to be considered in determining whether a penalty is

reasonable. Other factors include consistency with existing precedent.

52. Petitioner must adhere to its existing precedent or explain the

deviation. McDonald v. Department of Banking and Finance, 346 So.2d 569, 582

(Fla. 1st DCA 1977). Inconsistent orders based on similar facts, without a

reasonable explanation, may violate Section 120.68(12)(c) as well as the equal

protection guarantees of the federal and state constitutions. North Miami

General Hospital v. Department of Health and Rehabilitative Services, 355 So.2d

1272, 1278 (Fla. 1st DCA 1978). 8/

53. Petitioner has the burden of showing that its proposed penalties

adhere to existing precedent or, alternatively, that there are compelling

reasons for any departure. Petitioner must provide a reasonable explanation for

inconsistent orders based on similar facts. Petitioner did not satisfy its

burden of proof.

5.2 Existing Precedent

54. Petitioner failed to show that its proposed penalties adhere to

existing precedent. Petitioner failed to show that its proposed penalties treat

like cases alike, follow decisions rendered previously involving similar

circumstances, and ensure that similarly situated individuals are treated alike

rather than in accordance with the personal view of the agency head in whose

place a hearing officer sits when issuing recommended orders. 9/

55. Respondent submitted the only evidence of existing precedent from

Petitioner's index of final orders. Petitioner failed to provide any contrary

evidence and failed to show any compelling reason for departing from the

existing precedent evidenced by Respondent. 10/ Petitioner failed to provide

any reasonable explanation for the entry of inconsistent orders based upon

similar facts. 11/

6. Section 120.68(12)(c)

56. Even if stare decisis does not control the legal question of deciding

which penalties authorized in Section 474.214(2) to apply in a particular case,

Petitioner must explicate any inconsistent imposition of penalties. Failure of

an agency to explicate inconsistent results violates Section 120.68(12)(c) and

the equal protection guarantees of the state and federal constitutions. St.

Johns North Utility Corp. v. Florida Public Service Commission, 549 So.2d 1066,

1069 (Fla. 1st DCA 1989); Amos v. Department of Health and Rehabilitative

Services, 444 So.2d 43, 47 (Fla. 1st DCA 1983). 12/ Persons substantially

affected by proposed agency action must be able to rely on precedents born of

consistent application of policy to facts. University Community Hospital v.

Department of Health and Rehabilitative Services, 472 So.2d 756, 758 (Fla. 2d

DCA 1985).

57. Petitioner failed to show that the penalties it proposes are

consistent with the policy or practice evidenced in Petitioner's index of final

orders. Petitioner failed to explicate any reason for imposing penalties in a

way that is inconsistent with its policy or practice.

7. Protect The Public

58. In deciding which penalties to apply in a particular case, Section

474.214(2) requires Petitioner to:

. . . first consider those sanctions

necessary to protect the public. Only after

those sanctions have been imposed may the

disciplining authority consider and include

in its order requirements designed to

rehabilitate the veterinarian. All costs

associated with compliance with any order

issued under this subsection are the

obligation of the veterinarian

59. Petitioner failed to show why its proposed penalties are reasonably

necessary to "protect the public" within the meaning of Section 474.214(2).

Petitioner failed to show that it considered sanctions necessary to protect the

public before proposing penalties designed to rehabilitate Respondent, if any.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty

of violating Section 474.214(1)(r), imposing a fine of $499, requiring

Respondent to attend 4.9 hours of continuing education courses, and placing

Respondent on probation for one year without requiring mandatory appearances in

front of Petitioner. The costs of compliance with the final order are the

obligation of Respondent.

RECOMMENDED this 6th day of August, 1996, in Tallahassee, Florida.

___________________________________

DANIEL S. MANRY, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of August, 1996.

ENDNOTES

1/ All section and chapter references are to Florida Statutes (1995) unless

otherwise stated.

2/ Petitioner dismissed charges against Respondent pertaining to an animal

referred to by Petitioner as "Jasmyn." However, the two administrative

complaints filed with the undersigned refer only to the two cats, "Kari" and

"Elvira," and the dog, "Dudley."

3/ Respondent mistakenly believed that he had removed most of the ovary and had

left only an ovarian remnant in the cat. A necropsy performed several months

later showed the left ovary was still in the cat. See, paras. 12-15, infra.

4/ Respondent admitted the paragraph in the Administrative Complaint alleging

that the owner of "Kari" returned the cat to Respondent on July 29, 1993.

Respondent's records, however, indicate the owner returned the cat on July 12,

1993. The discrepancy in the two dates is immaterial and not outcome

determinative.

5/ All references to rules are to rules promulgated in the Florida

Administrative Code published as of the date of this Recommended Order unless

otherwise stated.

6/ Petitioner's rule states that the "usual" minimum fine is $1,000. Use of

the term "usual" implies that the agency may depart from the minimum fine

prescribed in the rule. Existing precedent evidenced by Petitioner's index of

final orders shows that the "usual" minimum fine does not exceed $500 when the

animal treated does not die as a result of the treatment.

7/ One court is uncertain of the extent to which administrative agencies are

bound by the doctrine of stare decisis. In Gessler v. Department of Business

and Professional Regulation, 627 So.2d 501 (Fla. 4th DCA 1993), the court

stated:

While it is apparent that agencies, with their

significant policy-making roles, may not be

bound to follow prior decisions to the extent

that the courts are bound by precedent, it is

nevertheless apparent the legislature intends

there be a principle of administrative stare

decisis in Florida.

Gessler, 627 So.2d at 504.

Compare McDonald v. Department of Banking and Finance, 346 So.2d 569, 582

(Fla. 1st DCA 1977) and North Miami General Hospital v. Department of Health and

Rehabilitative Services, 355 So.2d 1272, 1278 (Fla. 1st DCA 1978) (holding that

an agency must adhere to its existing precedent or explain the deviation).

8/ Apart from stare decisis, other legal considerations may also require

Petitioner to adhere to its existing precedent. Existing precedent shows that

Petitioner interprets Sec. 474.214(2) and Rule 61G18-30.001(2)(o) as meaning

that the minimum fine should not exceed $500 when the animal treated does not

die as a result of the treatment. If Petitioner now interprets Sec. 474.214(2)

and Rule 61G18-30.001(2) as generally requiring a minimum fine of $1,000 for

each offense, Petitioner is rescinding its prior interpretation of the law and

setting forth a new interpretation of the same law. Agency policy that rescinds

the agency's prior interpretation of a law and sets forth a new interpretation

is itself a rule. Florida Optometric Association v. Department of Professional

Regulation, Board of Opticianry, 567 So.2d 928, 936 (Fla. 1st DCA 1990); Price

Wise Buying Group v. Nuzum, 343 So.2d 115, 116 (Fla. 1st DCA 1977). Petitioner

has not promulgated such a rule in accordance with the rulemaking requirements

of Sec. 120.54. An agency generally is prohibited from imposing rules that are

not promulgated in accordance with Sec. 120.54. Sec. 120.535(1); McDonald, 346

So.2d at 580-582 (holding that policy statements of general applicability must

be promulgated in accordance with the rulemaking requirements prescribed in Sec.

120.54). Petitioner can not rely on such an unpromulgated rule to determine the

substantial interests of Respondent because Petitioner did not satisfy the

evidentiary requirements prescribed in Sec. 120.57(1)(b)15. Even if

Petitioner's interpretation of Sec. 474.214(2) and Rule 61G18-30.001(2)(o) in

this case is incipient agency policy that does not satisfy the test of general

applicability and therefore is not an unpromulgated rule, Petitioner can not

modify its interpretation of Rule 61G18-30.001(2)(o) from the meaning of the

rule evidenced in Petitioner's index of final orders. An agency's modification

of a promulgated rule using unpromulgated policy that departs from the meaning

of the promulgated rule is "forbidden" by Sec. 120.68(12)(b). University

Community Hospital v. Department of Health and Rehabilitative Services, 610

So.2d 1342, 1345 (Fla. 1st DCA 1992)

9/ McDonald, 346 So.2d at 582.

10/ Petitioner did not evidence any legislative or other changes that would

distinguish the law applied in the cases researched by Respondent from the law

applicable to this proceeding.

11/ Although Petitioner utilized its right under Section 120.53 to maintain an

electronic data base in lieu of a subject matter index, the option selected by

Petitioner may not enable Petitioner to satisfy its burden of proof in every

administrative proceeding

12/ The statute addressed in St. Johns and Amos was Sec. 120.68(12)(b). Prior

to 1984, Sec. 120.68(12)(b) prohibited agency action inconsistent with a rule,

policy, or practice unless the inconsistency was explained. In 1984, Sec.

120.68(12)(b) was amended to prohibit agency action that was inconsistent with a

rule whether or not such action was explained. Beginning in 1984, Sec.

120.68(12)(c) prohibited agency action that was inconsistent with agency policy

or practice if the inconsistency was not explained. Even though the decision in

St. Johns was rendered in 1989, after the amendment in 1984, the decision stated

that Sec. 120.68(12)(b) prohibited agency action inconsistent with a rule if

such action was not explained.

APPENDIX

Petitioner's Proposed Findings of Fact

1.-3. Accepted in substance

4. Rejected as recited testimony

5.-8. Accepted in substance

9. Rejected as not supported by credible and persuasive

evidence

10.-21. Accepted in substance

22.-27. Rejected as immaterial

28. Rejected as recited testimony

Respondents' Proposed Findings of Fact

Paragraphs 1-13 are not proposed findings of fact but are

statements of the issue and preliminary matters.

14.-18. Accepted as substance

19. Rejected as not supported by the evidence

20. Accepted in substance

21.-23. Accepted in substance

24. Rejected as recited testimony

25. Rejected as irrelevant and immaterial

26.-78. Accepted in substance

COPIES FURNISHED:

Susan Foster, Executive Director

Board of Veterinary Medicine

Department of Business

and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda Goodgame, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Miriam S. Wilkinson, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Charles L. Curtis, Esquire

Doumar, Curtis, Cross, Laystrom, P.A.

1177 Southeast 3rd Avenue

Fort Lauderdale, Florida 33316

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.