03-000609PL Department Of Business And Professional Regulation, Board Of Veterinary Medicine vs. Adel N. Assad Status: Closed Recommended Order on Thursday, June 19, 2003.

Summary: Failure of Respondent to comply with previous Final Order of the Board to obtain remedial education and testing is sufficient to merit license revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) Ca se No. 03 - 0609PL

)

ADEL N. ASSAD, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings held a formal hearing in the

above - styled case on May 13, 2003, in Ocala, Florida.

APPEARANCES

For Petitioner: Charles F. Tunn icliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0750

For Respondent: Thomas V. Infantino, Esquire

Infantino & Berman

Post Office Box 30

Winter Park, Florida 32792 - 0030

STATEMENT OF THE ISSUE

The issue in this case is whether Adel N. Assad, D.V.M.

(Respondent), failed to comply with a lawful Final Order of the

Florida Board of Veterinary Medicine (Board) previously entered

in a disciplinary hearing in violation of Section 474.214(1)(f),

Florida Statutes. The Order required, among other things, that

Respondent take a specific examination to determine his

competency to practice.

PRELIMINARY STATEMENT

By Administrative Complaint filed on January 24, 2003,

Respondent was charged by Petitioner with failure to comply with

a lawful order of the Board, specifically that Respondent had

failed to take an examination prepared by the National Board

Examination Committee (NBEC) known as the NBEC special purpose

examination in small animal medicine . The examination

requirement was part of the terms of Respondent's Board - ordered

probation.

Respondent disputed the allegations of the Administrative

Complaint and requested formal administrative proceedings. The

matter was trans ferred to the Division of Administrative

Hearings (DOAH) by Petitioner on February 24, 2003.

By motion dated April 10, 2003, Petitioner requested that

DOAH relinquish jurisdiction, claiming there was no dispute of

material facts and that informal procee dings were appropriate.

The motion was denied by Administrative Law Judge Charles Adams

on May 5, 2003.

Petitioner filed an additional Motion to Relinquish

Jurisdiction and presented that motion for argument at the

commencement of the final hearing. Rul ing was reserved pending

a consideration of the evidence, the parties proposed

recommended orders, and the transcript. The motion is denied at

this time.

At the final hearing, Petitioner presented the testimony of

Linda Tinsley, an employee of the Boar d, and the deposition

testimony of Dr. John R. Boyce, Executive Director of the

National Board of Veterinary Medical Examiners (NBVME).

Petitioner also presented eight exhibits.

Respondent testified in his own behalf and presented one

composite exhibit.

A Transcript of the final hearing was filed on May 28,

2003. Respondent and Petitioner filed Proposed Recommended

Orders, which have been reviewed in conjunction with the

preparation of this Recommended Order and addressed to the

extent possible.

FIN DINGS OF FACT

1. At all times pertinent to this proceeding, Respondent

was a licensed veterinarian, having been issued license

number VM - 2404 by the Board. Respondent has been practicing,

subject to discipline at various times, in the State of Florida

si nce October 1979.

2. On December 27, 2000, the Board issued a Final Order

Approving Settlement Counter - stipulation (Order) requiring

Respondent to take and successfully complete the NBEC special

purpose examination in small animal medicine.

3. The Order required Respondent to take and pass the NBEC

special purpose examination within the first two years of his

probation, or by December 27, 2002.

4. The NBEC special purpose examination was created and

regulated by the NBEC, which was renamed the Nationa l Board of

Veterinary Medical Examiners (NBVME) in July 2001.

5. The NBEC special purpose examination was thereafter

renamed the NBVME species specific examination in small animal

medicine in July 2001, in order to reflect the organization's

name change and is currently administered under that name. It

has not changed in substance or format since its creation in

1997 and is currently available in the original substance and

format under the name "National Board of Veterinary Medical

Examiners species spec ific examination in small animal

medicine."

6. Respondent or any other Florida licensee required to

take the NBVME species specific examination must contact the

Board in order to request administration of the examination.

7. Any Florida licensee who d irectly contacts the NBVME to

request the species specific examination or its current

equivalent would be informed that he or she must contact the

Board to request the examination. The NBVME does not offer

standard examinations directly to veterinarians.

8. Linda Tinsley is a government analyst employed by the

Florida Department of Business and Professional Regulation. She

is currently assigned to the Board where she serves as the

liaison between the Board and the NBVME. Ms. Tinsley is

responsible for coordinating the paperwork and procedures for

requesting and purchasing the NBEC special purpose examination

in small animal medicine or its current equivalent, the NBVME

species specific examination in small animal medicine.

9. Ms. Tinsley is also resp onsible for receiving phone

calls and correspondence from applicants and licensees submitted

to the Board's office. In this capacity, she would be the

person referred to if seeking or requesting administration on

the NBVME species specific examination.

10. Respondent was reminded that he was required to take

the NBEC special purpose examination in small animal medicine at

the September 2002 meeting of the Board. At that meeting,

Ms. Tinsley informed those in attendance, inclusive of

Respondent, that a l icensee must contact the Board's office in

order to request the NBVME species specific examination.

11. Respondent never contacted the Board's office to

request or to schedule the administration of the NBVME species

specific examination. Consequently, he has not taken or passed

the NBVME species specific examination in small animal medicine,

as required by the Order.

12. Respondent's disciplinary record, as established by

past Final Orders of the Board documenting discipline imposed on

his license, ma kes clear that Respondent presents a danger to

the public in the practice of veterinary medicine. Respondent

has previously been disciplined seven times by the Board.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over th e parties and subject matter of this

proceeding pursuant to Sections 120.57 and 120.569, Florida

Statutes.

14. Pursuant to Section 474.214(2), Florida Statutes

(1997), the Board is empowered to revoke, suspend or otherwise

discipline the license of a lic ensee who is found guilty of any

of the grounds enumerated in Section 474.214(1), Florida

Statutes. Specifically, Section 474.214(1)(f), Florida

Statutes, provides for discipline of a licensee for "[v]iolating

any provision of this chapter or chapter 455, a rule of the

board or department, or a lawful order of the board or

department previously entered in a disciplinary hearing, or

failing to comply with a lawfully issued subpoena of the

department."

15. Petitioner has the burden of proving by clear and

co nvincing evidence the allegations against Respondent.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company, 670 So. 2d 932

(Fla. 1996).

16. The Administrative Complaint charges Respondent with

vio lating Section 474.214(1)(f), Florida Statutes, by failing to

comply with a lawfully entered Final Order of the Board.

17. Petitioner has met its burden of proof and has shown

clearly and convincingly that Respondent violated Section

474.214(1)(f), Florida Statutes. The Board entered a Final

Order requiring that Respondent take and pass the NBEC special

purpose examination in small animal medicine within two years of

the date of the Order. Respondent failed to comply.

18. Rule 61G18 - 30.001(2)(f), Flori da Administrative Code,

provides, in a case absent aggravating factors, that the Board's

normal penalty for failure to comply with a subpoena or

disciplinary order of the Board shall consist of a period of

suspension and a four thousand dollar ($4,000.00) administrative

fine.

19. Rule 61G18 - 30.001(4), Florida Administrative Code,

provides that in cases containing mitigating or aggravating

factors, that the Board may deviate from the usual penalty upon

consideration of the following:

(a) The danger to the public;

(b) The length of time since the violation;

(c) The number of times the licensee has

been previously disciplined by the Board;

(d) The length of time licensee has

practiced;

(e) The actual damage, physical or

otherwise, caused by the violation ;

(f) The deterrent affect of the penalty

imposed;

(g) The affect of the penalty upon the

licensee’s livelihood;

(h) Any effort of rehabilitation by the

licensee;

(i) The actual knowledge of the licensee

pertaining to the violation;

(j) Attempts by li censee to correct or stop

violation or refusal by licensee to correct

or stop violation;

(k) Related violations against licensee in

another state including findings of guilt or

innocence, penalties imposed and penalties

served;

(l) Actual negligence of t he licensee

pertaining to any violation;

(m) Penalties imposed for related offenses

under subsections (1), (2) and (3) above;

(n) Pecuniary benefit or self - gain enuring

to licensee;

(o) Any other relevant mitigating or

aggravating factors under the circu mstances.

20. Petitioner correctly asserts that aggravating

circumstances present in this case, as evidenced by Respondent's

disciplinary record and status as a danger to the public in the

practice of veterinary medicine, justify the ultimate penalty of

l icense revocation. Respondent was aware that he was required

to take and pass the NBEC special purpose exam by December 27,

2002, because he was reminded of the fact at the Board's

September 2002 meeting. Respondent refused to take the exam

within the sp ecified time period and failed to even request the

administration of the test through the Board.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered (a) finding the

Respondent guil ty of having violated the provisions of

Section 474.214(1)(f), Florida Statutes, as alleged in the

Administrative Complaint; and (b) in view of the aggravating

circumstances in this case, the revocation of the Respondent’s

license to practice as a veterina rian in the State of Florida.

DONE AND ENTERED this 19th day of June, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apa lachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of June, 2003.

COPIES FURNISHED :

Thomas V. Infantino, Esquire

Infantino & Berman

Post Office Box 30

Winter Park, Florida 32790 - 0030

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0750

Sherry Landrum, Execu tive Director

Board of Veterinary Medicine

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

1940 Nort h 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 fil ed with the agency that

will issue the final order in this case.