96-000565 Department Of Agriculture And Consumer Services vs. Michael Bernstein
 Status: Closed
Recommended Order on Friday, December 27, 1996.

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Summary: Evidence did not clearly and convincingly establish that seller of horses failed to provide buyer with required negative Equine Infectious Anemia test reports.






17Petitioner, )


20vs. ) CASE NO. 96-0565




30Respondent. )



35Pursuant to notice, a Section 120.57(1) hearing was conducted in this case

47on November 7, 1996, (in Fort Lauderdale, Florida) and on November 14, 1996, (by

61telephone conference call) before Stuart M. Lerner, a duly designated

71Administrative Law Judge of the Division of Administrative Hearings.


81For Petitioner: Floyd A. Hennen, Senior Attorney

88Department of Agriculture and

92Consumer Services

94515 Mayo Building

97Tallahassee, Florida 32399-0800

100For Respondent: Michael Bernstein, pro se

10613607 Stirling Road

109Fort Lauderdale, Florida 33330


1171. Whether Respondent committed the violations alleged in the Notice of

128Intent to Impose Administrative Fines?

1332. If so, what is the total amount of the fines that should be imposed

148against him?


152On December 27, 1995, the Department of Agriculture and Consumer Services

163(Department) issued a Notice of Intent to Impose Administrative Fines against

174Respondent pursuant to Section 585.007(1), Florida Statutes (Notice). In the

184Notice, the Department alleged the following:

190An investigation was conducted by the

196Department into your business activities.

201As a result of its investigation, the

208Department has determined that you have

214violated Section 585.145(2), Florida Statutes,

219and Rule 5C-18.010(3)(b), Florida

223Administrative Code, by failing to provide

229reports of a negative EIA test (VS Form 10-

23811) for a horse named "Chance" sold to Mr.

247Pete Trilla on December 31, 1994, and for

255another horse, a Tennessee Walker, sold to

262Mrilla on or about October 30, 1995.

269Each offense subjects you to the imposition

276of an administrative fine of up to $10,000.

285Respondent denied the allegations of wrongdoing made in the Notice and

296requested a formal administrative hearing on the matter. On January 30, 1996,

308the case was referred to the Division of Administrative Hearings (Division) for

320the assignment of a Hearing Officer 1/ to conduct the hearing Respondent had

333requested. 2/

335As noted above, the hearing was held on November 5 and 14, 1996. At the

350hearing, the Department presented the testimony of two witnesses, William Jeter,

361DVM, an Assistant Bureau Chief in the Department's Division of Animal Industry,

373and Orlando "Pete" Trilla, the individual who, according to the Notice, was not

386provided negative EIA tests for the two horses he purchased from Respondent.

398The Department also offered four exhibits (Petitioner's Exhibits 1 through 4)

409into evidence. All four of the Department's exhibits were admitted by the


422Respondent testified on his own behalf. The only other evidence that he

434presented was the testimony of Daryl Woods.

441At the conclusion of the evidentiary portion of the hearing, the

452undersigned, on the record, announced that proposed recommended orders had to be

464filed no later than 20 days after the undersigned's receipt of the complete

477transcript of the hearing. The undersigned received the complete transcript of

488the hearing on December 4, 1996.

494On December 20, 1996, the Department filed a proposed recommended order,

505which the undersigned has carefully considered. To date, Respondent has not

516filed any post-hearing submittal.


523Based upon the evidence adduced at hearing, and the record as a whole, the

537following Findings of Fact are made:

5431. Since 1990, Respondent has operated a recreational club in Broward

554County, Florida.

5562. Horse riding is among the activities offered at the club.

5673. Horses owned by Respondent and stabled on the club's premises are used

580by club members.

5834. Respondent has sold approximately six horses during the time he has

595operated the club.

5985. Two of these sales were made to Orlando "Pete" Trilla and his wife.

6126. The first of these two sales to the Trillas was made on or about

627December 31, 1994, when Respondent sold a quarter horse named Chance to the

640Trillas for $1,800.00.

6447. Pursuant to the Trillas' instructions, Respondent delivered Chance to

654Troy Doniny's stables.

6578. Respondent provided the Trillas with all of the paperwork that he

669(Respondent) had regarding Chance, including a report of a negative Equine

680Infectious Anemia (EIA) Laboratory Test administered August 20, 1993, and a

691report of a subsequent negative EIA Laboratory Test administered within 12

702months of the date Respondent relinquished possession of Chance to the Trillas.

714(Respondent, who does not sell horses on a regular basis, did not retain copies

728of the paperwork he provided the Trillas.)

7359. The Trillas had difficulty handling Chance.

74210. In or about October of 1995, they asked Respondent if they could

755exchange Chance for another horse.

76011. The Trillas subsequently entered into an agreement with Respondent,

770which provided that the Trillas were to receive a Tennessee Walker named Walker

783from Respondent in return for Chance plus $1,000.00.

79212. On or about October 30, 1995, Respondent, through his agent, Daryl

804Woods, delivered Walker to the Trillas at the Trillas' residence in Palm Beach

817County, Florida. 3/

82013. At the time of delivery, the Trillas were provided with all of the

834paperwork that Respondent had regarding Walker, including a report of a negative

846EIA Laboratory Test administered within the previous 12 months. 4/ (Respondent

857did not retain copies of the paperwork he provided the Trillas.)

86814. After receiving Walker, the Trillas relinquished possession of Chance

878to Woods. Chance returned to Respondent's club on Wood's trailer.

88815. The Trillas were dissatisfied with Walker.

89516. They complained to Respondent that Walker had "bad feet" and asked

907that Respondent return Chance, as well as the money that they had paid to obtain


92317. Respondent refused.

92618. The Trillas subsequently filed a civil action against Respondent.

93619. A trial was scheduled.

94120. The Trillas' lawsuit was dismissed when they failed to appear at



95721. Chapter 585, Florida Statutes, contains laws relating to "animal


96822. The Department is statutorily responsible for the enforcement of the

979provisions of Chapter 585, Florida Statutes. Sections 585.002 and 585.004,

989Fla. Stat.

99123. Its responsibility includes "promulgat[ing] rules to carry out the

1001provisions of this chapter." Section 585.002(4), Fla. Stat.

100924. Among the rules promulgated by the Department "to carry out the

1021provisions of this chapter" is Rule 5C-18.010, Florida Administrative Code,

1031which at all times material to the instant case has provided, in pertinent part,

1045as follows:

1047(3) Negative EIA Test for Change of

1054Ownership. All horses, other than those

1060sold for slaughter, must have a report of

1068a negative EIA test conducted within the

1075previous 12 months for change of ownership.

1082This includes both public and private sales,

1089trial usage, gifts, and rentals or leases.

1096The test must be reported on VS Form 10-11

1105(Apr 90). . .

1109(b) For private sale or other transfer

1116of ownership, the VS Form 10-11 (Apr 90)

1124must be provided to the new owner or

1132custodian at the time of change of location

1140or ownership.

114225. At all times material to the instant case, Section 585.007, Florida

1154Statutes, has authorized the Department to impose "an administrative fine of up

1166to $10,000.00 for each offense" upon "[a]ny person who violates . . . any rule

1182of the [D]epartment."

118526. Before taking such punitive action, however, the Department must

1195provide the alleged violator with written notice of its proposed action and a

1208reasonable opportunity to contest such action. See Florida League of Cities,

1219Inc. v. Administration Commission, 586 So.2d 397, 413-15 (Fla. 1st DCA 1991);

1231Section 120.569(1), Fla. Stat. (Supp. 1996); Rule 28-5.111, Fla. Admin. Code.

1242If the alleged violator challenges the proposed punitive action and there are

1254disputed issues of material fact, an evidentiary hearing must be conducted to

1266resolve the dispute. Section 120.569(1), Fla. Stat. (Supp. 1996); Section

1276120.57(1), Fla. Stat. (Supp. 1996).

128127. At the hearing, the Department has the burden to establish the alleged

1294violator's guilt by clear and convincing evidence. See Department of Banking

1305and Finance, Division of Securities and Investor Protection v. Osborne Stern and

1317Company, 670 So.2d 932, 935 (Fla. 1996); Section 120.57(1)(h), Fla. Stat.

1328(Supp. 1996)("[f]indings of fact shall be based on a preponderance of the

1341evidence, except in penal or licensure disciplinary proceedings or except as

1352otherwise provided by statute"). "'[C]lear and convincing evidence requires

1362that the evidence must be found to be credible; the facts to which the

1376witnesses testify must be distinctly remembered; the testimony must be precise

1387and explicit and the witnesses must be lacking in confusion as to the facts in

1402issue. The evidence must be of such weight that it produces in the mind of the

1418trier of fact a firm belief or conviction, without hesitancy, as to the truth of

1433the allegations sought to be established.'" In re Davey 645 So.2d 398, 404

1446(Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So.2d 797,

1458800 (Fla. 4th DCA 1983). Furthermore, the punitive action taken by the

1470Department may be based only upon those violations specifically alleged in the

1482written notice furnished the alleged violator. See Cottrill v. Department of

1493Insurance, 21 Fla. L. Weekly D2630 (Fla. 1st DCA December 12, 1996); Kinney v.

1507Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v.

1520Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

153228. In the instant case, the Department furnished Respondent with a Notice

1544of Intent to Impose Administrative Fines which alleged the following:

1554An investigation was conducted by the

1560Department into your business activities.

1565As a result of its investigation, the

1572Department has determined that you have

1578violated Section 585.145(2), Florida Statutes,

1583and Rule 5C-18.010(3)(b), Florida

1587Administrative Code, by failing to provide

1593reports of a negative EIA test (VS Form

160110-11) for a horse named "Chance" sold to Mr.

1610Pete Trilla on December 31, 1994, and for

1618another horse, a Tennessee Walker, sold to Mr.

1626Trilla on or about October 30, 1995. Each

1634offense subjects you to the imposition of an

1642administrative fine of up to $10,000.

1649Respondent denied the allegations of wrongdoing made in the Notice and requested

1661a Section 120.57(1) evidentiary hearing on the matter.

166929. At the hearing, the Department failed to establish, by even a

1681preponderance of the evidence, that Respondent committed the violations alleged

1691in the Notice. Although the Department elicited testimony (from Orlando "Pete"

1702Trilla), which, if believed, would be sufficient to prove that, in connection

1714with the sales of Chance and Walker to the Trillas, Respondent failed to provide

1728the Trillas with the reports required by Rule 5C-18.010(3)(b), Florida

1738Administrative Code, as alleged in the Notice, the undersigned has rejected this

1750testimony because, in his opinion, it is less credible than Respondent's

1761testimony to the contrary 5/ and the testimony of Daryl Woods, who testified

1774concerning the transaction involving Walker and corroborated Respondent's

1782exculpatory testimony regarding that transaction. 6/

178830. Accordingly, the charges against Respondent should be dismissed and no

1799administrative fines should be imposed against him.


1807Based upon the foregoing Findings of Fact and Conclusions of Law, it is


1821RECOMMENDED that the Department enter a final order dismissing all charges

1832against Respondent.

1834DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of

1846December, 1996.



1852Administrative Law Judge

1855Division of Administrative Hearings

1859The DeSoto Building

18621230 Apalachee Parkway

1865Tallahassee, Florida 32399-1550

1868(904) 488-9675 SUNCOM 278-9675

1872Fax Filing (904) 921-6847

1876Filed with the Clerk of the

1882Division of Administrative Hearings

1886this 27th day of December, 1996.


18931/ Pursuant to Chapter 96-159, Laws of Florida, the Division's "Hearing

1904Officers" became "Administrative Law Judges" effective October 1, 1996.

19132/ The hearing was originally scheduled to commence on June 21, 1996, but it

1927had "to be rescheduled to accommodate the [previously assigned] Hearing

1937Officer's schedule."

19393/ Woods, whose girlfriend is employed by Respondent, is a farrier by trade and

1953Respondent is one of his customers.

19594/ This was a report that Respondent had been provided by the person from whom

1974he (Respondent) had purchased the horse.

19805/ In evaluating Respondent's testimony, the undersigned has considered, but

1990rejected as unconvincing, the argument advanced by the Department in footnote 1

2002of its proposed recommended order.

20076/ Woods testified with apparent candor and sincerity. In the opinion of the

2020undersigned, neither his business relationship with Respondent, nor the fact

2030that his girlfriend is employed by Respondent, played any role in his giving

2043testimony favorable to Respondent.


2049Floyd A. Hennen, Senior Attorney

2054Department of Agriculture and Consumer Services

2060515 Mayo Building

2063Tallahassee, Florida 32399-0800

2066Michael Bernstein

206813607 Stirling Road

2071Fort Lauderdale, Florida 33330

2075Honorable Bob Crawford, Commissioner

2079Department of Agriculture

2082and Consumer Services

2085The Capitol, PL-10

2088Tallahassee, Florida 32399-0810

2091Richard Tritschler, General Counsel

2095Department of Agriculture

2098and Consumer Services

2101The Capitol, PL-10

2104Tallahassee, Florida 32399-0810


2113All parties have the right to submit written exceptions within 15 days from the

2127date of this recommended order. Any exceptions to this recommended order should

2139be filed with the agency that will issue the final order in this case.

Select the PDF icon to view the document.
Date: 02/06/1997
Proceedings: Final Order filed.
Date: 01/31/1997
Proceedings: Agency Final Order
Date: 01/31/1997
Proceedings: Recommended Order
Date: 12/27/1996
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 11/07/96 & 11/14/96.
Date: 12/20/1996
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 12/04/1996
Proceedings: Transcript filed.
Date: 12/02/1996
Proceedings: Transcript filed.
Date: 11/14/1996
Proceedings: Final Telephone Hearing Held; for applicable Time frames, refer to CASE STATUS form stapled on right side of Clerk`s Office case file.
Date: 11/12/1996
Proceedings: Notice of Resumption of Final Hearing (By Telephone Conference Call) sent out. (hearing set for 11/14/96; 10:00am)
Date: 11/05/1996
Proceedings: CASE STATUS: Hearing Partially Held, continued to 11/14/96; 10:00am.
Date: 10/31/1996
Proceedings: Order Granting Testimony by Telephone sent out.
Date: 10/25/1996
Proceedings: (Petitioner) Motion for Witness to Testify by Telephone filed.
Date: 09/18/1996
Proceedings: Order Rescheduling Hearing sent out. (hearing reset for 11/5/96; 10:30am; Ft. Lauderdale)
Date: 09/11/1996
Proceedings: (Petitioner) Response to Order Requiring Response filed.
Date: 08/26/1996
Proceedings: Order sent out. (parties to give available hearing dates immediately)
Date: 07/05/1996
Proceedings: Letter to HO from F. Hennen Re: Dates available for hearing filed.
Date: 06/21/1996
Proceedings: Order Cancelling Hearing and Requiring Response sent out. (parties to immediately give available hearing dates)
Date: 03/21/1996
Proceedings: Notice of Hearing sent out. (hearing set for 6/21/96; 9:00am; Ft. Laud)
Date: 02/16/1996
Proceedings: (Petitioner) Joint Response to Initial Order filed.
Date: 02/16/1996
Proceedings: Ltr. to HO from Mike Bernstein re: Reply to Initial Order; Letter to HO from Darryl Wood Re: Attesting to the concern shown to animals by Mr. Bernstein and his staff; Letter to Jay Levenstein from M. Bernstein Re: Mr. Trillo`s allegations filed.
Date: 02/08/1996
Proceedings: Initial Order issued.
Date: 01/30/1996
Proceedings: Agency referral letter; Petition for Formal Proceeding Form; Statement Of Facts; Supportive Documents; Agency Action letter filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Fort Lauderdale, Florida

Related DOAH Cases(s) (1):

Related Florida Statute(s) (6):

Related Florida Rule(s) (1):