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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0565

)

MICHAEL BERNSTEIN, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

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

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

Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Floyd A. Hennen, Senior Attorney

Department of Agriculture and

Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

For Respondent: Michael Bernstein, pro se

13607 Stirling Road

Fort Lauderdale, Florida 33330

STATEMENT OF THE ISSUES

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

Intent to Impose Administrative Fines?

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

against him?

PRELIMINARY STATEMENT

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

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

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

Notice, the Department alleged the following:

An investigation was conducted by the

Department into your business activities.

As a result of its investigation, the

Department has determined that you have

violated Section 585.145(2), Florida Statutes,

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

Administrative Code, by failing to provide

reports of a negative EIA test (VS Form 10-

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

Pete Trilla on December 31, 1994, and for

another horse, a Tennessee Walker, sold to

Mrilla on or about October 30, 1995.

Each offense subjects you to the imposition

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

Respondent denied the allegations of wrongdoing made in the Notice and

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

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

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

requested. 2/

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

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

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

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

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

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

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

undersigned.

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

presented was the testimony of Daryl Woods.

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

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

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

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

the hearing on December 4, 1996.

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

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

filed any post-hearing submittal.

FINDINGS OF FACT

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

following Findings of Fact are made:

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

County, Florida.

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

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

by club members.

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

operated the club.

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

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

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

Trillas for $1,800.00.

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

Troy Doniny's stables.

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

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

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

report of a subsequent negative EIA Laboratory Test administered within 12

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

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

of the paperwork he provided the Trillas.)

9. The Trillas had difficulty handling Chance.

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

exchange Chance for another horse.

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

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

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

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

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

County, Florida. 3/

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

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

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

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

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

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

15. The Trillas were dissatisfied with Walker.

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

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

Walker.

17. Respondent refused.

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

19. A trial was scheduled.

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

trial.

CONCLUSIONS OF LAW

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

industry."

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

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

Fla. Stat.

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

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

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

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

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

as follows:

(3) Negative EIA Test for Change of

Ownership. All horses, other than those

sold for slaughter, must have a report of

a negative EIA test conducted within the

previous 12 months for change of ownership.

This includes both public and private sales,

trial usage, gifts, and rentals or leases.

The test must be reported on VS Form 10-11

(Apr 90). . .

(b) For private sale or other transfer

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

must be provided to the new owner or

custodian at the time of change of location

or ownership.

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

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

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

of the [D]epartment."

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

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

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

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

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

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

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

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

120.57(1), Fla. Stat. (Supp. 1996).

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

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

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

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

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

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

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

that 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), quoting, with approval, from Slomowitz v. Walker, 429 So.2d 797,

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

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

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

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

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

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

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

of Intent to Impose Administrative Fines which alleged the following:

An investigation was conducted by the

Department into your business activities.

As a result of its investigation, the

Department has determined that you have

violated Section 585.145(2), Florida Statutes,

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

Administrative Code, by failing to provide

reports of a negative EIA test (VS Form

10-11) for a horse named "Chance" sold to Mr.

Pete Trilla on December 31, 1994, and for

another horse, a Tennessee Walker, sold to Mr.

Trilla on or about October 30, 1995. Each

offense subjects you to the imposition of an

administrative fine of up to $10,000.

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

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

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

preponderance of the evidence, that Respondent committed the violations alleged

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

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

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

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

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

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

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

concerning the transaction involving Walker and corroborated Respondent's

exculpatory testimony regarding that transaction. 6/

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

administrative fines should be imposed against him.

RECOMMENDATION

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

hereby

RECOMMENDED that the Department enter a final order dismissing all charges

against Respondent.

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

December, 1996.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of December, 1996.

ENDNOTES

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

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

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

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

Officer's schedule."

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

Respondent is one of his customers.

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

he (Respondent) had purchased the horse.

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

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

of its proposed recommended order.

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

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

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

testimony favorable to Respondent.

COPIES FURNISHED:

Floyd A. Hennen, Senior Attorney

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Michael Bernstein

13607 Stirling Road

Fort Lauderdale, Florida 33330

Honorable Bob Crawford, Commissioner

Department of Agriculture

and Consumer Services

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel

Department of Agriculture

and Consumer Services

The Capitol, PL-10

Tallahassee, Florida 32399-0810

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.