97-003366 Department Of Agriculture And Consumer Services vs. Shirley Fifer Status: Closed Recommended Order on Wednesday, May 6, 1998.

Summary: Respondent technically failed to comply with rule requiring written report of Coggins Diffusion Test on special form. Respondent did give oral report to horse buyer; de minimus violation. $50.00 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 97-3366

)

SHIRLEY FIFER, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on February 24, 1998, in Brooksville, Florida, before the

Division of Administrative Hearings, by its designated

Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Floyd A. Hennen, Esquire

Department of Agriculture and

Consumer Services

Mayo Building, Room 515

Tallahassee, Florida 32399-0800

For Respondent: Shirley Fifer, pro se

1606 C 476 West

Bushnell, Florida 33513

STATEMENT OF THE ISSUE

Whether Respondent violated Section 585.145(2), Florida

Statutes, and Rule 5C-18010(3)(b), Florida Administrative Code,

by failing to provide, upon sale or transfer of a horse a report

of a negative Equine Infectious Anemia (EIA) test on VS

Form 10-11.

PRELIMINARY STATEMENT

On June 16, 1997, Petitioner issued an administrative

complaint, alleging that Respondent, Shirley Fifer, violated

Section 585.145, Florida Statutes and Rule 5C-18.010, Florida

Administrative Code. Specifically, the Administrative Complaint

alleged that Respondent should be fined $1,000.00 for selling a

horse to another without providing a report of a negative

Coggin's test on USDA VS Form 10-11 to the buyer. Respondent

disputed the allegations of the Administrative Complaint and

requested a formal administrative hearing. The case was

forwarded to the Division of Administrative Hearings.

At the hearing Petitioner offered the testimony of two (2)

witnesses and offered four (4) exhibits into evidence.

Respondent offered the testimony of two (2) witnesses and offered

two (2) exhibits into evidence.

After the hearing, Petitioner filed a Proposed Recommended

Order on April 3, 1998. Respondent did not file a Proposed

Recommended Order. The Petitioner's proposed findings of fact

have been considered and utilized in the preparation of this

recommended order except where the proposed findings of fact were

cumulative, immaterial, irrelevant, or not shown by the evidence.

FINDINGS OF FACT

1. Equine Infectious Anemia (EIA) is a highly contagious

viral disease in the horse family. It is transmitted primarily

by blood sucking insects, such as horse flies, stable flies, deer

flies, and mosquitoes. The disease is transferred from infected

horses to non-infected horses through the bite of the insect.

2. If EIA does not kill an infected animal it will

generally impact the health of an infected horse the rest of its

life. One symptom of an infected animal is staggering. However,

there are rare instances when an infected animal shows no

symptoms of the disease but still carries the virus in its blood.

3. There are only three options for horses infected with

EIA. First, they can be euthanatized. Second, they can be sent

to a slaughtering plant and processed for non-human consumption.

Third, they can be quarantined on premises which separate the

infected horse at least two hundred yards from any other animal

and which are approved by the Division of Animal Industry and

inspected monthly by a member of the Department of Agriculture

and Consumer Services.

4. The test for EIA is the Coggin's Diffusion Test

(Coggin's test). A negative result demonstrates that the horse

does not currently carry EIA. A positive result means the horse

is infected with EIA. The results of the Coggin's Diffusion Test

are reported on USDA VS Form 10-11. The use of the form is

required by Rule 5C-18.010, Florida Administrative Code.

5. In Florida, in order to control and prevent the spread

of EIA, a negative Coggin's Diffusion Test done within the prior

twelve months reported on USDA VS Form 10-11 is required before a

horse may be sold or its possession transferred. See Rule

5C-18.010, Florida Administrative Code.

6. A blank USDA VS Form 10-11 is not prepared or in the

possession of a horse owner such as Ms. Fifer. It is initially

prepared by the veterinarian taking the blood sample. The blood

sample, along with the form is sent to a regional diagnostic and

testing lab with the paperwork from the veterinarian. The horse

owner or seller then receives a copy of the form in the mail with

the test results.

7. Prior to May 29, 1997, Charlene Booth desired to

purchase a gentle horse for herself and her family. Towards that

goal and because she knew little about horses she enlisted the

help of Therman Tolbert, who was knowledgeable about horses.

8. At some point Ms. Booth was introduced t o Ms. Fifer by

Mr. Tolbert.

9. Ms. Fifer had recently (within the prior two weeks)

purchased an aged horse (probably over 18 years of age) named Big

Red. Bid Red was in very poor condition. The horse was grossly

undernourished to the point that his bones protruded, and he was,

as a result missing nine teeth. As a result Big Red was in very

poor condition. Ms. Fifer placed Big Red on a feeding regimen.

He seemed to be doing all right under her care. She had purchased

the horse with the idea of feeding him and bringing him back to a

good condition for resale. She had done the same with other

horses.

10. Big Red's Coggin's Diffusion Test had expired and

Ms. Fifer had her veterinarian pull a blood sample for a Coggin's

Diffusion Test on May 20, 1997. The test was forwarded to the

appropriate lab by the veterinarian.

11. On May 27, 1997, Ms. Booth, her family, and Mr. Tolbert

came to see Big Red. Because she had not received a copy of the

Coggin's Diffusion Test result for Big Red, Ms. Fifer called the

testing lab to find out the result of the Coggin's Diffusion

Test. She was told the test was negative.

12. The Booths and Mr. Tolbert stayed at least an hour or

two riding and petting Big Red. Mr. Tolbert checked its teeth

and agreed the horse was aged. Without knowledge of the birthday

of a horse, the age of a horse cannot be determined once it

passes 12 or 15 years old. The best that can be said is that the

horse is aged.

13. Even though Big Red was a very risky purchase because of

his condition, the Booths fell in love with him. They wanted to

take him home as soon as possible in order to care and love him,

and bring him back to health. Ms. Booth gave Respondent a

$100.00 deposit and made arrangements for Mr. Tolbert to

transport the horse.

14. On May 29, 1997, Ms. Booth paid the remaining $350.00

of the purchase price for Big Red and took possession of him from

Shirley Fifer. Mr. Tolbert loaded him in his trailer and

transported him to the Booth's home.

15. At the time of the sale and transfer of possession on

May 29, 1997, Ms. Booth did not receive a copy of the Coggin's

Diffusion Test on USDA VS Form 10-11 from Shirley Fifer.

Ms. Fifer was unaware that the form was required at the time of

actual transfer of a horse. She was generally aware that a

negative Coggin's result and test were required every twelve

months.

16. At the time of the transfer and sale on May 29, 1997,

Charlene Booth received from Therman Tolbert a receipt which

stated at the bottom that "Horse was transported without Coggin's

Papers."

17. Additionally, at the time of transfer and sale on

May 29, 1997, Ms. Booth received from Shirley Fifer a Bill of

Sale signed by Shirley Fifer which stated "Received $450.00 for

("Big Red") gelding from Kevin and Charlene Booth. Neg. Cog.

Test is guaranteed and will be mailed as soon as I get it back."

Additionally, both Mr. Tolbert and Ms. Booth were orally told on

May 27, 1997, that the Coggin's Diffusion Test was negative.

Ms. Booth did not understand the statement at the time and relied

on Mr. Tolbert.

18. Other than the Bill of Sale, Charlene Booth received no

other documents from Shirley Fifer at the time of the purchase of

and taking possession of Big Red.

19. However Ms. Fifer, once she received the Coggin's

Diffusion Test results from the lab or her veterinarian,

attempted to mail the test results to Ms. Booth via certified

mail. For unknown reasons Ms. Booth either did not accept or did

not receive the certified mail. The certified mail was

eventually returned to Ms. Fifer.

20. Ms. Booth obtained a Coggin's Certificate at her own

expense, for which the sample was drawn on June 16, 1997.

However, the sample was drawn for diagnosis of Big Red's medical

condition. As with Ms. Fifer's test results, Ms. Booth's test

results were negative. Eventually Big Red died from old age and

poor health related to being grossly underfed prior to purchase

by either Respondent or Ms. Booth. Big Red did not die from

anything related to Ms. Fifer's failure to use the appropriate

reporting form for the Coggin's test.

21. Shirley Fifer technically violated Section 585.145(2),

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

Administrative Code, by failing to supply USDA VS Form 10-11 at

the time of sale and transfer of possession of Big Red. A verbal

report of the horse's negative Coggin's test was given to the

buyer upon the date of purchase. A written report of the horse's

negative Coggin's test was given on the Bill of Sale when the

horse was transported. Ms. Fifer was unaware of the rule's

requirement that a particular form be used for reporting the

result of a Coggin's test. She did not intentionally violate the

rule. Moreover, the horse did have a negative Coggin's test at

the time of sale. Clearly, the violation is de minimus .

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. Section 120.57(1), Florida Statutes.

23. As stated in Section 585.145(2), Florida Statutes:

No animal shall be imported into the state,

moved within the state, or the ownership

thereof transferred within the state without

the owner, broker, or transferor first

obtaining such health tests, official

certificates of veterinary inspection, or

other certificates and documents as shall be

required by rules adopted by the department.

Evidence of compliance with this subsection

shall accompany the owner or agent having

jurisdiction of such animals imported, moved

intrastate, or to which ownership is being

transferred. However, unless an emergency is

declared, the department may not require

Florida residents to carry evidence of

compliance in intrastate travel for privately

owned domestic canines or domestic felines

which are not offered for sale. The

department may provide by rule specific

exceptions to this subsection upon finding

that certain importations, intrastate

movements, or transfers pose no threat to

affected industries in Florida.

24. Rule 5C-18.010(3)(b), Florida Administrative Code,

states:

"[f]or private sale . . . 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. Shirley Fifer technically violated Section 585.145(2),

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

Administrative Code, by failing to supply USDA VS Form 10-11 at

the time of sale and transfer of possession of Big Red. A verbal

report of the horse's negative Coggin's test was given to the

buyer upon the date of purchase. A written report of the horse's

negative Coggin's test was given on the Bill of Sale when the

horse was transported. Ms. Fifer was unaware of the rule's

requirement that a particular form be used for reporting the

result of a Coggin's test. She did not intentionally violate the

rule. Moreover, the horse did have a negative Coggin's test at

the time of sale.

26. Section 585.007(1), Florida Statutes, provides for an

administrative fine up to $10,000.00 for violations of Chapter

585, Florida Statutes, or Rule 5C-18.010, Florida Administrative

Code. However, failure to use the appropriate form as required

by Rule 5C-18.010, Florida Rules of Administrative Procedure is a

de minimus violation and only warrants a de minimus fine.

Therefore, a fine of $50.00 for Respondent's failure to use the

appropriate form for reporting a negative Coggin's test would be

appropriate.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is,

RECOMMENDED:

That the Department enter a final order finding Respondent

guilty of a de minimus violation of Section 585.145, Florida

Statutes, and Rule 5C-18.010, Florida Administrative Code, and

impose a fine of $50.00 for this offense.

DONE AND ENTERED this 6th day of May, 1998, in Tallahassee,

Leon County, Florida.

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of May , 1998.

COPIES FURNISHED:

Floyd A. Hennen, Esquire

Department of Agriculture and

Consumer Services

Mayo Building, Room 515

Tallahassee, Florida 32399-0800

Shirley Fifer

1606 C 476 West

Bushnell, Florida 33513

Brenda Hyatt, Chief

Bureau of Licensing and Bond

Department of Agriculture

and Consumer Services

508 Mayo Building

Tallahassee, Florida 32399-0800

Richard Tritschler, General Counsel

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399-0810

Honorable Bob Crawford, Commissioner

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 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.