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.

Summary: By de-clawing a kitten, the person responsible was practicing veterinary medicine without a license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. )

) Case No. 01-2351PL

ACME GROOMING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on August 21, 2001, a hearing was

conducted pursuant to Sections 120.569 and 120.57(1), Florida

Statutes. The hearing location was City Hall, 150 North

Alachua Street, Lake City, Florida. The hearing was held

before Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner : Charles F. Tunnicliff, Esquire

Tiffany Short, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent : No appearance

STATEMENT OF THE ISSUE

Should Petitioner impose an administrative fine against

Respondent, based upon the allegation that a person associated

with Respondent, knowingly operated a veterinary establishment

or premises without a premise permit issued to Respondent?

Sections 455.226(1)(q) and (2) and 474.213(1)(k), Florida

Statutes.

PRELIMINARY STATEMENT

On December 15, 2000, Petitioner executed an

administrative complaint against Respondent, Case No. 2000-

05594, seeking to impose an administrative fine not to exceed

$5,000.00, in that a person affiliated with Respondent removed

the claws from a kitten owned by Michael Burch, constituting

the operation of a veterinary establishment or premises

without the benefit of a premise permit. Respondent, in the

person of Joan Susan Poole, who by the proof is alleged to

have committed the offense, responded to the administrative

complaint in behalf of the Respondent, by contesting the

underlying factual allegations and requesting an evidentiary

hearing pursuant to Section 120.57(1), Florida Statutes. This

election to contest the case was made on January 5, 2001. On

June 11, 2001, the case was forwarded to the Division of

Administrative Hearings for the assignment of an

Administrative Law Judge to conduct a contested fact hearing.

The assignment was made and the hearing ensued.

To support its case, Petitioner presented the testimony

of Michael Burch at hearing. Petitioner's Exhibit No. 1 was

admitted. The admission of Petitioner's Exhibit No. 2 was

reserved pending entry of the recommended order. Petitioner's

Exhibit No. 2 is admitted. Petitioner requested the

opportunity to depose Douglas Hagler, D.V.M. post-hearing.

That deposition was taken on August 31, 2001, and the

transcript of the deposition was received on September 14,

2001, following the filing of the hearing transcript on

September 13, 2001.

Tiffany Short was qualified to represent Petitioner's

interests at hearing through inquiry made on the hearing date.

Rule 28-106.106, Florida Administrative Code.

Petitioner timely filed a proposed recommended order

which has been considered in preparing the recommended order.

Respondent did not provide a post-hearing submission.

FINDINGS OF FACT

1. Acme Grooming Company conducts business at US Highway

27 and State Road 27, Fort White, Florida 32038. That

business is conducted without the benefit of a

license/premises permit issued by the Department of Business

and Professional Regulation under Section 474.215, Florida

Statutes. At a time relevant to the inquiry, Acme Grooming

Company through a sign in the front of the business premises

at the location described advertised the services of the

business as the sale of pets and pet foods, as well as

grooming.

2. Acme Grooming Company is the business of Joan Poole.

3. Sometime around June 14, 2000, Michael David Burch

took a kitten, approximately two months old, to the Acme

Grooming Company to have the kitten de-clawed. The kitten was

attended by Ms. Joan Poole at the business premises for Acme

Grooming Company in Fort White, Florida. Mr. Burch observed

Ms. Poole hold the kitten under her right arm with her hand

pressing out the claws of the kitten and once exposed the

claws were cut off "at the stub," as opposed to trimming the

claws with the clipping device used. A knife was sitting on a

gas burner being heated. Ms. Poole took the knife and

pressed it against the open wounds where the claws had been

removed for purposes of cauterizing the claws. These

activities met with Mr. Burch's opposition. Ms. Poole

responded that this was the more humane way "to do it." This

is taken to mean the way which Ms. Poole had in mind to de-

claw the kitten. The de-clawing was allowed to proceed during

which no medication was offered for pain or antibiotics

provided for the use of the kitten, notwithstanding Mr.

Burch's request that these items be provided. Ms. Poole

responded that the cat would lick itself clean and would

protect itself from any infection. Mr. Burch paid Ms. Poole

$35.00 for her efforts in dealing with the kitten.

4. A short time later the kitten was taken to be seen by

Douglas Hagler, D.V.M., licensed to practice veterinary

medicine in Florida. Dr. Hagler saw the kitten on June 14,

2000. In his testimony Dr. Hagler established that the

cutting of the digits (de-clawing) in the manner perceived by

Ms. Poole constituted the practice of veterinary medicine, in

that it was the amputation of a body part, a procedure

involving an incision and removal of a body part. Dr. Hagler

was persuasive in his testimony that it was inappropriate to

hold the kitten manually while Ms. Poole performed her acts in

de-clawing. As Dr. Hagler described, the appropriate way to

de-claw the kitten would have been to place the kitten under

general anesthesia so that the kitten was not aware of the act

of de-clawing.

5. At the time Dr. Hagler saw the kitten on June 14,

2001, the cat was trembling, appeared in distress and

traumatized, and did not seem willing to walk or stand on its

front feet. Exposed bone was observed in each digit and the

hair around the wounds on the feet gave the appearance that

the wounds had been cauterized with a hot instrument. The

most appropriate method for closing the wounds would have been

to use a dissolvable stitch. In some instances veterinarians

would use a medical grade tissue adhesive-type glue to seal

the wound.

6. Two days after seeing the kitten, Dr. Hagler drove to

Fort White where the Acme Grooming Company has its premises.

While in the vicinity Dr. Hagler used his cell phone and

called the Acme Grooming Company and identified himself as a

person who had a kitten . He explained that he understood that

the kitten could be de-clawed at the company. The person he

spoke to had a voice so distinctive as to be attributable to

Ms. Poole, based upon a subsequent opportunity afforded Dr.

Hagler to verify who Ms. Poole was through comparing her voice

on that latter occasion to the voice while making the

telephone call that has been described and being made aware of

who she was on the latter date. Ms. Poole when describing the

process for de-clawing the fictional kitten that Dr. Hagler

referred to in the telephone call he made, said that the

kitten would be restrained manually without the use of

anesthesia, that the claws would be cut off and that a hot

knife blade would be applied to the wounds for cauterization.

Ms. Poole referred to the fact that the cat would not

voluntarily allow the de-clawing and that was the reason that

the cat had to be held down. Ms. Poole volunteered in her

remarks that the method for de-clawing that would be done at

the Acme Grooming Company was "more humane than a veterinarian

doing it under anesthesia." According to Ms. Poole, the

reasoning behind that statement was that when cats wake up

from anesthesia "that they just bang their head around and

sometimes knock themselves out or knock their brains out."

The fee Ms. Poole quoted to Dr. Hagler for removing the claws

of the imaginary kitten was $35.00, the same fee amount as was

charged to Mr. Burch.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1),

Florida Statutes.

8. Petitioner has the burden to prove that Respondent

committed the violations alleged in the administrative

complaint. Department of Banking and Finance v. Osborne Stern

& Co ., 670 So. 2d 932 (Fla. 1996) . That proof must be by

clear and convincing evidence.

9. In reference to this case, Section 455.227(1)(q),

Florida Statutes, states:

(1 ) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(q ) Violating any provision of this

chapter, the applicable professional

practice act, a rule of the department or

the board, or a lawful order of the

department or the board, or failing to

comply with a lawfully issued subpoena of

the department.

10. Pertinent to this case, the penalty requested is in

accordance with Section 455.227(2), Florida Statutes, which

states:

(2 ) When the board, or the department when

there is no board, finds any person guilty

of the grounds set forth in subsection (1)

or of any grounds set forth in the

applicable practice act, including conduct

constituting a substantial violation of

subsection (1) or a violation of the

applicable practice act which occurred

prior to obtaining a license, it may enter

an order imposing one or more of the

following penalties:

* * *

(d ) Imposition of an administrative fine

not to exceed $5,000 for each count or

separate offense.

11. The specific provision alleged to have been violated

is in association with the statute regulating the practice of

veterinary medicine where Section 474.213(1)(k), Florida

Statutes, states the following:

Prohibitions; penalties .--

(1 ) No person shall:

* * *

(k ) Knowingly operate a veterinary

establishment or premises without having a

premise permit issued under s. 474.215.

* * *

12. Joan Poole knowingly operated Acme Grooming Company

as a veterinary establishment or premises without having a

premise permit issued under Section 474.215, Florida Statutes,

when she removed the claws from the kitten owned by Michael

Burch. This act was an action prohibited by Section

474.213(1)(k), Florida Statutes, thus constituting a violation

of Section 455.227(1)(q), Florida Statutes, and subjecting

Acme Grooming Company an administrative fine in accordance

with Section 455.227(2)(d), Florida Statutes.

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED:

That Petitioner enter a final order imposing a $1,000.00

administrative fine upon Respondent.

DONE AND ENTERED this 27th day of September, 2001, in

Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative

Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative

Hearings

this 27th day of September, 2001.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

Tiffany Short, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Acme Grooming Company

c/o Joan Poole

Post Office Box 133

Fort White, Florida 32303

Sherry Landrum, Executive Director

Board of Veterinary Medicine

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.