01-002351PL
Department Of Business And Professional Regulation, Board Of Veterinary Medicine vs.
Acme Grooming Company
Status: Closed
Recommended Order on Thursday, September 27, 2001.
Recommended Order on Thursday, September 27, 2001.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF BUSINESS AND )
13PROFESSIONAL REGULATION, )
16BOARD OF VETERINARY MEDICINE, )
21)
22Petitioner, )
24)
25vs. )
27) Case No. 01-2351PL
31ACME GROOMING COMPANY, )
35)
36Respondent. )
38)
39RECOMMENDED ORDER
41Notice was provided and on August 21, 2001, a hearing was
52conducted pursuant to Sections 120.569 and 120.57(1), Florida
60Statutes. The hearing location was City Hall, 150 North
69Alachua Street, Lake City, Florida. The hearing was held
78before Charles C. Adams, Administrative Law Judge.
85APPEARANCES
86For Petitioner : Charles F. Tunnicliff, Esquire
93Tiffany Short, Qualified Representative
97Department of Business and
101Professional Regulation
1031940 North Monroe Street
107Tallahassee, Florida 32399-2202
110For Respondent : No appearance
115STATEMENT OF THE ISSUE
119Should Petitioner impose an administrative fine against
126Respondent, based upon the allegation that a person associated
135with Respondent, knowingly operated a veterinary establishment
142or premises without a premise permit issued to Respondent?
151Sections 455.226(1)(q) and (2) and 474.213(1)(k), Florida
158Statutes.
159PRELIMINARY STATEMENT
161On December 15, 2000, Petitioner executed an
168administrative complaint against Respondent, Case No. 2000-
17505594, seeking to impose an administrative fine not to exceed
185$5,000.00, in that a person affiliated with Respondent removed
195the claws from a kitten owned by Michael Burch, constituting
205the operation of a veterinary establishment or premises
213without the benefit of a premise permit. Respondent, in the
223person of Joan Susan Poole, who by the proof is alleged to
235have committed the offense, responded to the administrative
243complaint in behalf of the Respondent, by contesting the
252underlying factual allegations and requesting an evidentiary
259hearing pursuant to Section 120.57(1), Florida Statutes. This
267election to contest the case was made on January 5, 2001. On
279June 11, 2001, the case was forwarded to the Division of
290Administrative Hearings for the assignment of an
297Administrative Law Judge to conduct a contested fact hearing.
306The assignment was made and the hearing ensued.
314To support its case, Petitioner presented the testimony
322of Michael Burch at hearing. Petitioner's Exhibit No. 1 was
332admitted. The admission of Petitioner's Exhibit No. 2 was
341reserved pending entry of the recommended order. Petitioner's
349Exhibit No. 2 is admitted. Petitioner requested the
357opportunity to depose Douglas Hagler, D.V.M. post-hearing.
364That deposition was taken on August 31, 2001, and the
374transcript of the deposition was received on September 14,
3832001, following the filing of the hearing transcript on
392September 13, 2001.
395Tiffany Short was qualified to represent Petitioner's
402interests at hearing through inquiry made on the hearing date.
412Rule 28-106.106, Florida Administrative Code.
417Petitioner timely filed a proposed recommended order
424which has been considered in preparing the recommended order.
433Respondent did not provide a post-hearing submission.
440FINDINGS OF FACT
4431. Acme Grooming Company conducts business at US Highway
45227 and State Road 27, Fort White, Florida 32038. That
462business is conducted without the benefit of a
470license/premises permit issued by the Department of Business
478and Professional Regulation under Section 474.215, Florida
485Statutes. At a time relevant to the inquiry, Acme Grooming
495Company through a sign in the front of the business premises
506at the location described advertised the services of the
515business as the sale of pets and pet foods, as well as
527grooming.
5282. Acme Grooming Company is the business of Joan Poole.
5383. Sometime around June 14, 2000, Michael David Burch
547took a kitten, approximately two months old, to the Acme
557Grooming Company to have the kitten de-clawed. The kitten was
567attended by Ms. Joan Poole at the business premises for Acme
578Grooming Company in Fort White, Florida. Mr. Burch observed
587Ms. Poole hold the kitten under her right arm with her hand
599pressing out the claws of the kitten and once exposed the
610claws were cut off "at the stub," as opposed to trimming the
622claws with the clipping device used. A knife was sitting on a
634gas burner being heated. Ms. Poole took the knife and
644pressed it against the open wounds where the claws had been
655removed for purposes of cauterizing the claws. These
663activities met with Mr. Burch's opposition. Ms. Poole
671responded that this was the more humane way "to do it." This
683is taken to mean the way which Ms. Poole had in mind to de-
697claw the kitten. The de-clawing was allowed to proceed during
707which no medication was offered for pain or antibiotics
716provided for the use of the kitten, notwithstanding Mr.
725Burch's request that these items be provided. Ms. Poole
734responded that the cat would lick itself clean and would
744protect itself from any infection. Mr. Burch paid Ms. Poole
754$35.00 for her efforts in dealing with the kitten.
7634. A short time later the kitten was taken to be seen by
776Douglas Hagler, D.V.M., licensed to practice veterinary
783medicine in Florida. Dr. Hagler saw the kitten on June 14,
7942000. In his testimony Dr. Hagler established that the
803cutting of the digits (de-clawing) in the manner perceived by
813Ms. Poole constituted the practice of veterinary medicine, in
822that it was the amputation of a body part, a procedure
833involving an incision and removal of a body part. Dr. Hagler
844was persuasive in his testimony that it was inappropriate to
854hold the kitten manually while Ms. Poole performed her acts in
865de-clawing. As Dr. Hagler described, the appropriate way to
874de-claw the kitten would have been to place the kitten under
885general anesthesia so that the kitten was not aware of the act
897of de-clawing.
8995. At the time Dr. Hagler saw the kitten on June 14,
9112001, the cat was trembling, appeared in distress and
920traumatized, and did not seem willing to walk or stand on its
932front feet. Exposed bone was observed in each digit and the
943hair around the wounds on the feet gave the appearance that
954the wounds had been cauterized with a hot instrument. The
964most appropriate method for closing the wounds would have been
974to use a dissolvable stitch. In some instances veterinarians
983would use a medical grade tissue adhesive-type glue to seal
993the wound.
9956. Two days after seeing the kitten, Dr. Hagler drove to
1006Fort White where the Acme Grooming Company has its premises.
1016While in the vicinity Dr. Hagler used his cell phone and
1027called the Acme Grooming Company and identified himself as a
1037person who had a kitten . He explained that he understood that
1049the kitten could be de-clawed at the company. The person he
1060spoke to had a voice so distinctive as to be attributable to
1072Ms. Poole, based upon a subsequent opportunity afforded Dr.
1081Hagler to verify who Ms. Poole was through comparing her voice
1092on that latter occasion to the voice while making the
1102telephone call that has been described and being made aware of
1113who she was on the latter date. Ms. Poole when describing the
1125process for de-clawing the fictional kitten that Dr. Hagler
1134referred to in the telephone call he made, said that the
1145kitten would be restrained manually without the use of
1154anesthesia, that the claws would be cut off and that a hot
1166knife blade would be applied to the wounds for cauterization.
1176Ms. Poole referred to the fact that the cat would not
1187voluntarily allow the de-clawing and that was the reason that
1197the cat had to be held down. Ms. Poole volunteered in her
1209remarks that the method for de-clawing that would be done at
1220the Acme Grooming Company was "more humane than a veterinarian
1230doing it under anesthesia." According to Ms. Poole, the
1239reasoning behind that statement was that when cats wake up
1249from anesthesia "that they just bang their head around and
1259sometimes knock themselves out or knock their brains out."
1268The fee Ms. Poole quoted to Dr. Hagler for removing the claws
1280of the imaginary kitten was $35.00, the same fee amount as was
1292charged to Mr. Burch.
1296CONCLUSIONS OF LAW
12997. The Division of Administrative Hearings has
1306jurisdiction over the subject matter and the parties to this
1316action in accordance with Sections 120.569 and 120.57(1),
1324Florida Statutes.
13268. Petitioner has the burden to prove that Respondent
1335committed the violations alleged in the administrative
1342complaint. Department of Banking and Finance v. Osborne Stern
1351& Co ., 670 So. 2d 932 (Fla. 1996) . That proof must be by
1366clear and convincing evidence.
13709. In reference to this case, Section 455.227(1)(q),
1378Florida Statutes, states:
1381(1 ) The following acts shall constitute
1388grounds for which the disciplinary actions
1394specified in subsection (2) may be taken:
1401* * *
1404(q ) Violating any provision of this
1411chapter, the applicable professional
1415practice act, a rule of the department or
1423the board, or a lawful order of the
1431department or the board, or failing to
1438comply with a lawfully issued subpoena of
1445the department.
144710. Pertinent to this case, the penalty requested is in
1457accordance with Section 455.227(2), Florida Statutes, which
1464states:
1465(2 ) When the board, or the department when
1474there is no board, finds any person guilty
1482of the grounds set forth in subsection (1)
1490or of any grounds set forth in the
1498applicable practice act, including conduct
1503constituting a substantial violation of
1508subsection (1) or a violation of the
1515applicable practice act which occurred
1520prior to obtaining a license, it may enter
1528an order imposing one or more of the
1536following penalties:
1538* * *
1541(d ) Imposition of an administrative fine
1548not to exceed $5,000 for each count or
1557separate offense.
155911. The specific provision alleged to have been violated
1568is in association with the statute regulating the practice of
1578veterinary medicine where Section 474.213(1)(k), Florida
1584Statutes, states the following:
1588Prohibitions; penalties .--
1591(1 ) No person shall:
1596* * *
1599(k ) Knowingly operate a veterinary
1605establishment or premises without having a
1611premise permit issued under s. 474.215.
1617* * *
162012. Joan Poole knowingly operated Acme Grooming Company
1628as a veterinary establishment or premises without having a
1637premise permit issued under Section 474.215, Florida Statutes,
1645when she removed the claws from the kitten owned by Michael
1656Burch. This act was an action prohibited by Section
1665474.213(1)(k), Florida Statutes, thus constituting a violation
1672of Section 455.227(1)(q), Florida Statutes, and subjecting
1679Acme Grooming Company an administrative fine in accordance
1687with Section 455.227(2)(d), Florida Statutes.
1692RECOMMENDATION
1693Upon consideration of the facts found and conclusions of
1702law reached, it is
1706RECOMMENDED:
1707That Petitioner enter a final order imposing a $1,000.00
1717administrative fine upon Respondent.
1721DONE AND ENTERED this 27th day of September, 2001, in
1731Tallahassee, Leon County, Florida.
1735CHARLES C. ADAMS
1738Administrative Law Judge
1741Division of Administrative
1744Hearings
1745The DeSoto Building
17481230 Apalachee Parkway
1751Tallahassee, Florida 32399-3060
1754(850) 488- 9675 SUNCOM 278-9675
1759Fax Filing (850) 921-6847
1763www.doah.state.fl.us
1764Filed with the Clerk of the
1770Division of Administrative
1773Hearings
1774this 27th day of September, 2001.
1780COPIES FURNISHED:
1782Charles F. Tunnicliff, Esquire
1786Tiffany Short, Qualified Representative
1790Department of Business and
1794Professional Regulation
17961940 North Monroe Street
1800Tallahassee, Florida 32399-2202
1803Acme Grooming Company
1806c/o Joan Poole
1809Post Office Box 133
1813Fort White, Florida 32303
1817Sherry Landrum, Executive Director
1821Board of Veterinary Medicine
1825Department of Business and
1829Professional Regulation
18311940 North Monroe Street
1835Tallahassee, Florida 32399-2202
1838Hardy L. Roberts, III, General Counsel
1844Department of Business and
1848Professional Regulation
18501940 North Monroe Street
1854Tallahassee, Florida 32399-2202
1857NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1863All parties have the right to submit written exceptions within
187315 days from the date of this recommended order. Any exceptions
1884to this recommended order should be filed with the agency that
1895will issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 09/27/2001
- Proceedings: Recommended Order issued (hearing held August 21, 2001) CASE CLOSED.
- PDF:
- Date: 09/27/2001
- Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
- Date: 09/13/2001
- Proceedings: Transcript filed.
- Date: 08/21/2001
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- PDF:
- Date: 08/21/2001
- Proceedings: Notice of Taking Deposition D. Hagler, D.V.M. (filed via facsimile).
Case Information
- Judge:
- CHARLES C. ADAMS
- Date Filed:
- 06/12/2001
- Date Assignment:
- 06/12/2001
- Last Docket Entry:
- 04/04/2002
- Location:
- Lake City, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- PL
Counsels
-
Joan Susan Poole
Address of Record -
Charles F. Tunnicliff, Esquire
Address of Record