06-002717PL Department Of Business And Professional Regulation, Board Of Veterinary Medicine vs. Philip Jerome Aleong, D.V.M. Status: Closed Recommended Order on Friday, January 5, 2007.

Summary: Respondent violated Petitioner`s Order when he paid a fine in a prior case late.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 06 - 2717PL

)

PHILIP J. ALEONG, D.V.M., )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

T his case came before Larry J. Sartin, an Administrative

Law Judge of the Division of Administrative Hearings, on the

filing of a Joint Stipulation of Facts and Documentary Evi dence.

APPEARANCES

For Petitioner: Drew Winters, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Bradford J. Beilly , Esquire

Law Offices of Bradford J. Beilly, P.A .

1144 Southeast Third Avenue

Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUE

The issue in th is case is whether Respondent, Philli p J.

Aleong, D.V.M. , violated Section 474.214(1)(f), Florida Statutes

(2005 ), by failing to pay an administrative fine and

investigative costs within 30 days from the date of the filing

of Final Order BPR - 2005 - 04911 with Petitioner's Clerk as alleged

in an Administrative Complaint filed by Petitioner, the

Department of Business and Professional Regulation , on June 26,

2006, in BPR Case Number 2005 - 066424 ; and, if so, what

disciplinary action should be taken against his license to

practice veterinary medicine in the State of Florida.

PRELIMINARY STATEMENT

On or about June 26, 2006 , the Department of Business and

Profess ional Regulation filed an Administrative Complaint

against Phillip Jerome Aleong, D.V.M., an individual licensed to

practice veterinary medicine in Florida, before the Board of

Veterinary Medicine , in which it alleged that Dr. Aleong had

violated Section 4 74.214(1)(f), Florida Statutes (2005 ).

Dr. Aleong executed and filed an Election of Rights form

indicating that he disputed the allegations of fact contained in

the Admini strative Complaint and requesting a formal

administrative hearing pursuant to Section 120.5 69(2)(a),

Florida Statutes (2006 ). An Answer was attached to the Election

of Rights form. In the Answer, Dr. Aleong "denied" paragraphs 8

through 11 and asserted three affirmative defenses. Two of the

affirmative defenses were subsequently withdra wn. Dr. Aleong

has continued to assert the following affirmative defense:

. . . Respondent alleges that Petitioner

is selectively prosecuting Respondent in

violation of the equal protection clause and

that Respondent has been singled out for

prosecution while the Petitioner has not

generally proceeded against other similarly

situated persons and Petitioner's

discriminatory selection of Respondent for

prosecution is not in good faith.

Respondent's proposed Recommended Order, Page 2.

On July 27 , 2006, th e matter was filed with the Division of

Administrative Hearings with a request that an administrative

law judge be assigned the case to conduct proceedings pursuant

to Section 120.57(1), Florida Statutes (200 6 ). The matter was

designated DOAH Case Number 06 - 2717 PL and was assigned to the

undersigned.

The final hearing was scheduled by Not ice of Hearing

entered August 11 , 2006, for October 1 0 , 2006. By Order

Granting Continuance and Re - scheduling Hearing by Video

Teleconference , a Joint Motion for Continua nce was granted, and

the final hearing was re - scheduled for November 9, 2006.

On October 31, 2006, Petitioner filed Petitioner's Motion

to Relinquish Jurisdiction. Dr. Aleong filed a response to the

Motion on November 6, 2006. A motion hearing was conduc ted by

telephone to consider the Motion. As a result of that hearing,

the parties and the undersigned agreed that the final hearing

would be cancelled and the parties would submit stipulated facts

and documentary evidence upon which this Recommended Order would

be ba sed.

On November 13, 2007, the parties filed a Joint Stipulation

of Facts and Documentary Evidence. The parties stipulated to

the admission into evidence of the following documents, which

were admitted into evidence by a n Order entered Novembe r 17,

20056, acknowledging receipt of the Joint Stipulation :

1. Final Order Approving Settlement Stipulation BPR - 2005 -

04911 (Exhibit "A");

2. Final Order BPR - 95 - 05774 (Exhibit "B"); and

3. Final Order BPR - 2003 - 02869 (Exhibit "C").

The Order acknowledgin g receipt of the Joint Stipulation

gave the parties until December 13, 2006, to file proposed

recommended orders . Petitioner filed Petitioner's Proposed

Recommende d Order and Dr. Aleong filed a P roposed Recommended

Order on December 13, 2006 . Both pleadi ngs have been fully

considered in entering this Recommended Order.

All further references to Florida Statutes and the Florida

Administrative Code are to the 200 5 versions unless otherwise

noted.

FINDINGS OF FACT

1. The following facts were stipulated to b y the parties:

1. Respondent is licensed in the State of

Florida as a veterinarian, having been

issued license number VM - 6466.

2. On September 1, 2005, Respondent

appeared before the Florida Board of

Veterinary Medicine to approve a Settlement

Stipu lation as to DOAH Case No. 05 - 1971PL.

At the hearing, the terms of the Settlement

Stipulation (herein after the "Stipulation")

were placed on the record and the members of

the Board voted to approve the settlement.

3. On September 9, 2005, the Florida

Board of Veterinary Medicine rendered the

Final order Approving Settlement Stipulation

Number BPR - 2005 - 04911 (herein after the

"Final Order") against Respondent's

veterinary license, by filing the original

Final Order with the Department's Agency

Clerk. A copy of the Final Order was mailed

to Respondent's Counsel. However, a copy

was not sent or mailed directly to the

Respondent.

4. The Settlement Stipulation, as adopted

by the Final Order, amongst other terms,

required Respondent to pay an administr ative

fine in the amount of $5000.00 and

investigative costs in the amount of $479.76

within thirty (30) days from the date of

filing the Final Order with the Department's

Agency Clerk.

5. As the Final Order was filed with the

Agency Clerk on Setpember [sic] 9, 2005,

Respondent's compliance with the payment

terms of the Final Order was required on or

before October 9, 2005.

6. Pursuant to the Final Order and the

Stipulation Agreement incorporated therein

by reference, Petitioner and Respondent

agree d that Respondent's veterinarian

license would be suspended for 90 days in

the event that Respondent failed to comply

with the terms of the Settlement Stipulation

or the Final Order. Respondent was aware of

this penalty provision at the time of

signing th e agreement, was present as the

time of its adoption by the Florida Board of

Veterinary Medicine, and was aware that the

sums would be due 30 days after the Board

signed the Final Order itself which was to

occur sometime after the September 1, 2005

meeting .

7. Respondent failed to remit payment of

the administrative fine and cost required

under the Final Order by October 9, 2005.

8. On December 27, 2005, the DBPR mailed

Respondent an investigatory complaint

placing Respondent on notice that the fine

had not been paid. The computer printout

attached to the investigatory complaint, as

well as the handwritten complaint generated

by the Petitioner, both of which were

included therein allege that Respondent had

not paid the fine. Neither document assert s

that the Respondent failed to remit the

costs, however, a copy of the Stipulation

and Order were included with the

investigatory complaint.

9. On January 12, 2006, after receipt of

the investigatory [sic] complaint,

Respondent paid the fine. Respond ent paid

the costs on May 8, 2006.

10. On June 26 2006, after both the fine

and costs were paid in full, Petitioner

filed this proceeding alleging that the fine

and costs had not been paid.

11. Petitioner has stated that it has not

located any case s in its records where a

fine was imposed, then paid late, in which

an administrative complaint was not filed.

However, Petitioner is unable to offer

testimony, with absolute certainty, that

prior to the administrative complaint filed

in this matter, tha t all other veterinarians

have paid fines assessed in a final order by

their due date.

12. Petitioner has not found any evidence

indicating that it has ever filed an

administrative complaint against a party for

failure to timely pay an imposed fine, af ter

said fine was paid by the party.

13. Petitioner has found no evidence

contrary to or may otherwise reasonably

dispute that the administrative complaint

against a party for failure to timely pay an

imposed fine, after said fine was paid by

the party .

2. The facts in Final Order BPR - 95 - 05774 (Exhibit "B") and

Final Order BPR - 2003 - 02869 (Exhibit "C") are distinguishable

from the facts of this case.

CONCLUSIONS OF LAW

A. Jurisdiction .

3 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties there to pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2006).

B. The Charges of the Administrative Complaint .

4 . Section 4 74.214(2) , Florida Statutes, authorizes the

Board of Veterin ary Medicine (hereinafter referred to as the

"Board"), to impose penalties ranging from the issuance of a

letter of concern to revocation of a veterinarian's license to

practice veterinary medicine in Florida if a veterinarian

commits one or more acts spec ified therein.

5 . In its Administrative Complaint , the Department of

Business and Professional Regulation (hereinafter referred to as

the "Department"), has alleged that Dr. Aleong has violated

Section 474 . 214( 1)( f ), Florida Statutes.

C . The Burden and S tandard of Proof .

6 . The Department seeks to impose penalties against

Dr. Aleong that include suspension or revocation of his license

and/or the imposition of an administrative fine. Therefore, the

Department has the burden of proving the specific allega tions of

fact that support its charge that Dr. Aleong violated Section

474.214 (1)( f ), Florida Statutes, by clear and convincing

evidence. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Co. ,

670 S o. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987); Pou v. Department of Insurance and Treasurer , 707

So. 2d 941 (Fla. 3d DCA 1998). See also Section 120.57(1)(j),

Florida Statutes (2006)("Findings of fact shall be based on a

preponde rance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute.").

7 . What constitutes "clear and convincing" evidence was

described by the court in Evans Packing Co. v. Department of

Agriculture an d Consumer Services , 550 So. 2d 112, 116 n.5 (Fla.

1st DCA 1989), as follows:

. . . [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 evidenc e 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

the firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); Walker v. Florida Department

of Business and Profess ional Regulation , 705 So. 2d 652 (Fla.

5th DCA 1998)(Sharp, J., dissenting).

8 . Dr. Aleong has asserted an affirmative defense. He has

the burden of proving the facts that support that defense. See

Ellingham v. Florida Department of Children and Family Services ,

896 So. 2d 926 (Fla. 1st DCA 2005) ; and Public Health Trust of

Dade County v. Holmes , 646 So. 2d 266 (Fla. 3d DCA 1994).

D. Section 474 . 214 (1)( f ), Florida Statutes .

9 . Section 474.214(1)(f), Florida Statutes , defines the

following offense : " Vi olating 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. " [Em phasis added].

10 . The Department has alleged that Dr. Aleong violated

Section 474.214(1)(f), Florida Statutes, by violating "a lawful

order of the board of department previously entered in a

disciplinary hearing . . . ."

11 . In support of its charge, th e Department has

essentially alleged that Dr. Aleong failed to timely pay an

administrative fine and costs in compliance with the Final Order

Approving Settlement Stipulation it entered in BPR - 2005 - 04911

(hereinafter referred to as the "Final Order") . Bas ed upon the

evidence stipulated to by the parties, the factual basis for the

Department's charge has been proved clearly and convincingly:

a. On September 9, 2005, the Final Order was entered.

That order approved the terms of a Settlement Stipulation

ent ered into between the Department and Dr. Aleong;

b. The Settlement Stipulation required that Dr. Aleong pay

an administrative fine and investigative costs "no later than

thirty days ( 30 ) of rendering of a Final Order adopting this

Settlement Stipulation" ;

c. The Final Order approving the Settlement Stipulation

was rendered on September 9, 2005;

d. Dr. Aleong was aware of the terms and approval of the

Settlement Stipulation by the Final Order, and was provided,

through counsel, with a copy of it;

e. Paym ent of the administrative fine and investigative

costs was due on or before October 9, 2005; and

f. Dr. Aleong failed to pay the administrative fine and

investigative costs consistent with the Board's Settlement

Stipulation as required in the Final Order.

E. Affirmative Defense .

12 . Dr. Aleong has argued that the Department has

arbitrarily sou ght enforcement of the Settlement Stipulation in

this case. He has suggested that the evidence proved that he is

the first person that the Department has filed an administrative

complaint against for failure to timely pay a fine, "after said

fine was ultimately paid . . . ." Dr. Aleong goes on to suggest

that the foregoing facts prove that the Department is singling

him out for prosecution .

13 . Dr. Aleong's view o f the evidence is rejected. While

the parties have stipulated that this case appears to be the

only one where a veterinarian was prosecuted for failure to pay

a fine timely, where the fine was ultimately paid, the evidence

did not prove that there were o t her similarly situated

veterinarians who were not prosecuted. In deed, the parties

stipulated that the Department was unable to find any other case

where "a fine was imposed, then paid late, in which an

administr ative complaint was not filed" even though i t could no t

say "with absolute certainty, that prior to the administrative

complaint filed in this matter, that all other veterinarians

have paid fines assessed in a final order by their due date."

14 . It must be remembered that Dr. Aleong has the burden

of proving his affirmative defense. The Department, therefore,

was not required to proves with absolute certainty that, prior

to this case, there were no similarly situated veterinarians;

Dr. Aleong was required to prove that t here were similarly

situated ve terinarians and that he is being arbitrarily treated

differently. This he failed to do.

F. The Appropriate Penalty .

15 . In addition to specifying the disciplinary action to

be imposed upon Dr. Aleong in the prior disciplinary case , the

Settlement Sti pulation adopted by the Final Order established

punishment for his failure to comply with the Settlement

Stipulation . The established punishment is a 90 - day suspension

of his license. In Petitioner's Proposed Recommended Order

Petitioner has argued that, having failed to comply with the

terms of the Settlement Stipulation as required by the Final

Order, Dr. Aleong is "thereby subject to the provisions of the

Settlement Stipulation requiring the suspension of the license

for a period of ninety (90) days."

16 . Despite the terms of the Settlement Stipulation , this

case is not an action to enforce the S ettlement Stipulation,

which is a contract between the Department and Dr. Aleong. Even

if this case could be considered as an action to enforce the

contract b etween the Department and Dr. Aleong, t his forum has

jurisdiction over such a dispute. What this case is about and

what this forum does have jurisdiction over is an alleged

violation of Section 474.214(1)(f), Florida Statutes, a

violation for which the Bo ard has the authority to impose

punishment. Therefore, in deciding the appropriate punishment,

it is Section 474.214(2), Florida Statutes, and the rules

adopted by the Board thereunder , which governs as opposed to the

terms of the Settlement Stipulation .

17 . I n determining the appropriate punitive action to

recommend to the Board in this case, it is necessary to consult

the Board's "disciplinary guidelines," which impose restrictions

and limitations on the exercise of the Board's disciplinary

authority un der Section 4 74.214 , Florida Statutes. See Parrot

Heads, Inc. v. Department of Business and Professional

Regulation , 741 So. 2d 1231 (Fla. 5th DCA 1999).

18 . The Board's guidelines are set out in Flo rida

Administrative Code Rule 61G1 8 - 30 .001, which provi des, in

pertinent part, the following penalty guidelin e for "[v]iolating

. . . a lawful disciplinary order . . . ":

The usual action of the Board shall be to

impose a penalty of one (1) year probation

and a two thousand dollar ($2,000.00)

administrative fi ne. In the case of a . . .

disciplinary order, the usual action shall

be to impose a period of suspension and a

four thousand dollar ($4,000.00)

administrative fine.

Fla. Admin. Code R. 61G18 - 30.001(2)(f).

19 . The foregoing penalty guideline is not in co nsistent

with the 90 - day suspension agreed to by the parties in the

Settlement Stipulation and proposed in Petitioner's Proposed

Recommended Order.

20 . Flo rida Administrative Code Rule 61B1 8 - 30 .001( 4 )

provides that, in applying the penalty guidelines, the following

aggravating and mitigating circumstances are to be taken into

account:

(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) T he 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 [sic] 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 licensee to correct or

stop violation or refusal by licensee to

correct or stop violation;

(k) Related violations against lic ensee

in another state including findings of guilt

or innocence, penalties imposed and

penalties served;

(l) Actual negligence of the 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 circumstances.

21 . In his proposed Recommended Order, Dr. Aleong has

suggested that several mitigating factors apply i n this case:

a. Dr. Aleong paid the imposed fine in its entirety prior

to the filing of the Administrative Complaint. The

administrative fine was paid on January 12, 2006, after

Dr. Aleong received the investi gatory complaint dated

December 27, 2005;

b. No danger was caused to the public by the late payment

of the administrative fine and investigative costs;

c. There no was prejudice to the Board, which ultimately

received the administrative fine;

d. The penalty sought, a 90 - day suspension, will have a

severe adverse impact on Dr. Aleong's ability to earn a living;

e. The Final Order was not sent to Dr. Aleong directly;

and

f. Dr. Aleong gained no pecuniary benefit by failing to

timely pay the imposed fine.

22 . Having carefully considered the facts o f this matter

in light of the provisions of Florida Administrative Code Rul e

61G1 8 - 30 .001, it is concluded that the Department's proposed

penalty is excessive . While Dr. Aleong failed to comply with

the Board's order, the evidence failed to prove why. In

particular, the evidence failed to prove that he failed to pay

timely for any reason other than his failure to pay attention as

opposed to an intentional defiance of the Board's order.

Therefore, it is suggested that the Board exercise its

discretion to impose a fine on Dr. Aleong, rather than a

suspension of his license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Board of

Veterinary Medicine finding that Phillip J. A leong, D.V.M. , has

violated Section 4 74 . 214( 1) ( f ), Florida Statutes , as described

in this Recommended Order, and requiring that he pay an

administrative fine of $ 2 ,000.00.

DONE AND ENTERED this 5th day of January, 2007 , in

Tallahassee, Leon County, Flor ida.

S

___________________________________

LARRY J. SARTIN

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 5th day of January, 2007 .

COPIES FURNISHED:

Drew Winters, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Bradford J. Beilly , Esquire

Law Offices of Bradford J. Beilly, P.A.

1144 Southeast Third Avenue

Fort Lauderdale, Florida 33316

Juanita Chastain, Execu tive Director

Board of Veterinary Medicine

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

1940 North Mon roe Street

Tallahassee, Florida 32399 - 0792

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 wi th the agency that

will issue the final order in these cases.