07-001503RU The Humane Society Of The United States, Sharon And Richard Chambers, Miriam Barkley, Sheree Thomas, And Connie Crews vs. Department Of Agriculture And Consumer Services Status: Closed DOAH Final Order on Friday, December 21, 2007.

Summary: Unpromulgated statements are not a "rule" ; the proposed rule mirrors the statute and is permissible.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE HUMANE SOCIETY OF THE )

UNITED STATES, SHARON AND )

RICHARD CHAMBERS, MIRIAM )

BARKLEY, SHEREE THOMAS, AND )

CONNIE CREWS, )

)

Petitioners, )

)

vs. ) Case No. 07 - 1503RU

)

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Respon dent. )

)

FINAL ORDER

A formal hearing was not held before J. D. Parrish,

Administrative Law Judge, in this case. Instead , the parties

agreed that the matter would b e decided based upon the Parties'

Joint Stipulated Facts. At all times the parties have been

represented by counsel as follows:

APPEARANCES

For Petitioner: Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

7 11 Talladega Street

West Palm Beach, Florida 33405 - 1443

For Respondent: James R. Kelly, Esquire

Florida Department of Agriculture

and Consumer Services

Mayo B uilding, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

STATEMENT OF THE ISSUE

Whether statements issued by the Respondent's employees

constitute unpromulgated rules in violation of Section

120.54(1)(a), Florida Stat utes (2007).

Whether Florida Admin istrative Code Proposed Rule 5C -

27.001, incorporating a form is an invalid exercise of delegated

legislative authority.

PRELIMINARY STATEMENT

The Petitioners, The Humane Society of the United S tates,

Sharon and Richard Chambers, Miriam Barkley, Sheree Thomas, and

Connie Crews (Petitioners), filed a Request for Administrative

Hearing (hereinafter Petition) fo r the purpose of challenging

agency statement s as an unpromulgated rule . The agency

[ Res pondent, Department of Agriculture and Consumer Services

(Respondent or Department) ] , by and through its Division

Director had issued a written memorandum dated July 6, 2006 (the

memorandum) , intended for all veterinarians in the State of

Florida , but tran smitted by the Florida Veterinary Medical

Association . The Petitioners assert that the memorandum

constituted an unpromulgated rule. Additionally, the Respondent

created a form known in this record as the Official Certificate

of Veterinary Inspection (OC VI) form that it requires in

connection with the sale of pets . The Petition also alleged

the OCVI form is relied upon by the Department in violation of

Section 120.54(1)(a), Florida Statutes (2007). The case was

filed with the Division of Administrative Hearings on April 2,

2007.

A Notice of Hearing was issued on April 9, 2007, that set

the formal hearing in this matter for April 30, 2007. A Motion

to Continue Final Hearing and Stay Proceedings was filed by the

Respondent on April 18, 2007. That motio n represented that the

Department had initiated rule - making and that a rule development

workshop had been scheduled for May 15, 2007. In accordance

with Section 120.56(4)(e)2 . Florida Stat utes (2007), the request

to stay was granted pending the outcome of rulemaking and any

proceedings involving challenges to the proposed rules that

might be generated from the rule making process.

On July 2, 2007, the Department filed a Second Notice to

Hearing Officer that represented on June 27, 2007, the

Respondent tra nsmitted to the Florida Administrative Weekly for

publication on July 6, 2007, Notices of Proposed Rules for the

following rules: 5C - 24.001; 5C - 24.002; 5C - 24.003; 5C - 27.001

(includes adoption of form DACS - 09085 - the OCVI form ); and 5C -

28.001. At that time the Respondent did not know if anyone

would challenge the proposed rules.

Also on July 2, 2007, the Petitioners filed a Status Update

that represented the Department had only sought to adopt one of

the statements challenged as an unpromulgated rule and t hat the

intention to adopt only one of the statements still left the

Petitioners ' unresolved issues. Moreover, the Petitioners

expressed concern about a nother statement made by a Department

employee during the rule - making process. This second statement

( known in the record as the "Fuchs statement") created

additional concerns for the Petitioners. As such, Petitioners

represented their intent to challenge the proposed rule

(incorporating the OCVI form) and to add the Fuchs statement to

the Petition as a s econd unpromulgated statement of the

Department.

A telephone conference call was conducted with the parties

on July 13, 2007, to verify the status of the case and to

schedule a hearing. A second conference call on August 3, 2007 ,

was conducted to furth er address the outstanding issues. D uring

that call the Petitioners' First Amended Request for

Administrative Hearing was allowed. This amended claim seeks to

invalidate the proposed rule and the unpromulated statements of

the Department (both the July 6 , 2006 memorandum and the Fuchs

statement) . As no other person had sought to challenge the

proposed rule(s), in an economy of effort, the two challenges

proceeded: the Section 120.56(4) challenge as to the memorandum

and the Fuchs statement , and the Secti on 120.56(2) challenge as

to the OCVI form incorporated by reference into the newly

proposed rule.

The parties agreed to proceed to a resolution without a

formal he aring. At that time the parties announced that they

would file proposed final orders or mo tions to dismiss based

upon a stipulated record. It is undisputed that the terms of

the memorandum w ere not part of the proposed rules generated.

Further, t he Petitioners assert that the Fuchs statement

contravenes Section 474.202(5), Fl orida Statutes (2 007) . As to

the OCVI form that was addressed by the proposed rule, the

Petitioners assert that the proposed definition of "healthy" as

encompassed within the form is an invalid exercise of

legislative authority in that it modifies or contra venes Section

8 28.29, Florida Statutes (2007) , and is arbitrary and

capricious.

On August 16, 2007, the parties filed a statement of Joint

Stipulated Facts. Thereafter the parties were afforded another

conference call. Subsequently, an Order was entered on August

28 , 2007, that provided in pertinent part:

. . . The parties have represented they will

file motions based upon the stipulated

record in this matter and that a formal

evidentiary hearing will not be necessary.

Presumably the parties will stipulate to all

ma terial facts upon which the undersigned is

to rely in reaching a final decision. The

parties have agreed to file any additional

stipulations of fact and any additional

legal argument on the merits of this case no

later than 5:00 p.m., September 21, 2007.

This order is entered to memorialize that

agreement. Accordingly, it is

ORDERED:

1. The parties are to file any

additional stipulations of fact and/or

argument on the record in the form of a

proposed order not later than 5:00 p.m.,

September 21, 200 7.

2. If the parties are unable to agree

on all facts needed to resolve the issues of

this case, the parties are directed to file

a stipulated statement of the time needed to

try the matter, proposed dates for the

scheduling of the hearing, and any other

information pertinent to the timely

resolution of this cause. The parties will

not be afforded additional time to resolve

the case or reach stipulations of fact.

3. The failure to timely respond to

this Order will be deemed a waiver of the

party’s deci sion to file a proposed order.

[Emphasis Added.]

Both parties timely filed Proposed Final Orders that have

been fully considered in the preparation of this Final O rder.

This Final Order is entered based upon the stipulated record.

Proposed Findings of Fact that may have been proffered that

exceed the language of the parties' stipulation or are

unsupported by the stipulation have been rejected.

FINDINGS OF FACT

The following are the stipulated facts (verbatim) as agreed

by the parties:

1. In November and December 2005, Division of Animal

Industry inspectors conducted inspections of various pet

facilities located throughout Florida and found 11 violations

regarding OCVIs.

2. Dr. Thomas J. Holt, D.V.M., State Veterinarian and

Director of Animal Industr y , is signatory on a July 2006

Memorandum directed to "All Florida Veterinarians , " which

purports to provide "guidelines and reminders" to veterinarians

regarding the issuance of OCVIs pursuant to Section 828.29,

Florida Statutes. The memorandum is attach ed as Exhibit A.

3. Respondent does not license or regulate veterinarians

in Florida.

4. Respondent does not maintain a database of

veterinarians licensed or located in Florida.

5. The United States Department of Agriculture (USDA)

maintains a databa se of USDA - accredited veterinarians.

6. The July 6, 2006, memorandum was provided by Respondent

to the United States Department of Agriculture.

7. Respondent asked for the assistance of the United

States Department of Agriculture to distribute the July 6, 2006,

memorandum to all USDA - accredited veterinarians located in

Florida.

8. The July 6, 2006 memorandum was challenged by

Petitioners as an unpromulgated rule on April 2, 2007.

9. The Respondent agency published a Notice of Proposed

Rule in the Fl orida Administrative Weekly on July 6, 2007, to

adopt the Official Certificate of Veterinary Inspection for

Intrastate Sale of Dog or Cat (OCVI form) as a rule.

10. On May 15, 2007 , the Department conducted a "Pet

Certification Rules Workshop" regarding proposed changes to the

OCVI.

11. Current form DACS - 09085, Official Certificate of

Veterinary Inspections for Sale of Dog or Cat, was adopted by

Florida Administrative Code Rule 5C - 24.003, in 1999. This rule

is currently in effect.

12. A statement of Department Employee Diane Fuchs was

recorded, and such statement is attached hereto as Exhibit B.

13. None of the Petitioners have filed complaints with

Respondent concerning any of the allegations contained in

Petitioners' Request for Administrative Hea ring or Amended

Request for Administrative Hearing.

The following facts are from the materials noted above:

14. The "Exhibit A" memorandum referenc ed above that was

signed by the Department's State Veterinarian/Director of the

Division of Animal Industr y state d on its face, "This fax is

being sent by the Florida Veterinary Medical Association at the

request of the State Veterinarians Office." The memorandum

provided , in pertinent part :

TO: All Florida Veterinarians

SUBJECT: OCVI for Sale of a Dog or C at

Dear Florida Veterinarian:

Recent audits of Official Certificate of

Veterinary Inspection's (OCVI) for Sale of a

Dog or Cat by the Division of Animal

Industry (DAI), Florida Department of

Agriculture and Consumer Service (FDACS)

shows an increasing numb er of violations

related to the use and issuance of such

certificates by veterinarians. Each

violation compromises the integrity of the

certificate. Previously violations were

handled via personal communication and/or

written correspondence with the vete rinarian

outlining the violation and recommended

actions on how to correct them.

Beginning July 1, 2006, the DAI will

implement enforcement of such violations via

Administrative Fine Procedure. For this

reason, we are reminding veterinarians of

the serio usness of this issue and are

providing the following guidelines and

reminders:

Veterinarians are responsible for the

security and proposed use of all OCVI's and

must take reasonable care to prevent misuse

of them. Reasonable care means that the

veterinar ian must retain all copies of the

OCVI until he or she has inspected the

animal and fully completed and signed the

document(s).

Incomplete, blank, or unsigned OCVI books or

certificates cannot be sold to, or be in the

possession of, a pet seller whether t hey are

a breeder, broker, or retail pet store.

Possession by a seller of incomplete or

unsigned OCVI or of OCVI books compromises

the integrity and security of the documents

for which the veterinarian is responsible.

The issuing veterinarian's statement

certifies that the vaccines, anthelmintics,

and diagnostic tests were administered by or

under the direction of the issuing

veterinarian. The manufacturer, type, lot

#, expiration date, and date of

administration must be detailed in the

appropriate block s of all OCVI.

Vaccinations and/or anthelmintics

administered by anyone other than the

issuing veterinarian must be confirmed and

documented before listing them on the OCVI.

"Vaccines given by breeder" is not an

acceptable entry unless the vaccinations

w ere administered by or under the direction

of the issuing veterinarian who has personal

knowledge that such vaccines were actually

administered to the animal identified on the

OCVI.

OCVI should not be issued for a dog or cat

that has been found to have in ternal or

external parasites, excluding fleas and

ticks. This includes, but is not limited

to, coccidian and/or ear mites. The

dispensing of medicine to be administered by

the owner for treatment is not sufficient

for the veterinarian to issue the OCVI.

Such animals must be treated and be negative

before the sale can occur.

15. The statement attributed to Diana Fuchs (noted as

Exhibit B above) was:

You're correct because the Veterinary

Practice Act seeks supervision and it

clearly defines supervision. The pet law

does not state "supervision," it says

"direction." It doesn't say whether it's

direct supervision, it says "direction." As

an employer, you can direct an employee to

do something.

16. By and through the rule making process previously

des cribed the Respondent sought to promulgate a rule (5C - 27.001)

that by reference adopts and incorporates form DACS - 09085, the

OCVI for Intrastate Sale of Dog or Cat Revised in July 2007.

17. The OCVI form provides, in part:

ISSUING VETERINARIAN'S CERTIFIC ATION: I

hereby certify that the described animal was

examined by me on the date shown; that the

vaccines, anthelmintics, and diagnostic

tests indicated herein, were administered by

me, or under my direction; said animal is

found to be healthy in that to the best of

my knowledge it exhibits no sign of

contagious or infectious diseases and has no

evidence of internal or external parasites,

including coccidiosis an d ear mites , but

excluding fleas and ticks; and to the best

of my knowledge the animal has not been

exposed to rabies, nor did the animal

originate from an area under a quarantine

for rabies.

18. The Petitioner 's First Amended Request for

Administrative Hearing provided:

4. This petition is filed on behalf of The

Humane Society of the United Sta tes ("The

HSUS"). The HSUS is a nonprofit animal

protection organization headquartered in

Washington, (sic)DC. The HSUS Southeastern

Regional Office is at 1624 Metropolitan

Circle, Suite B Tallahassee, FL 32308.

5. The HSUS is the largest animal

protect ion organization in the United

States, representing over 9.5 million

members and constituents, including more

than 500,000 members and constituents

residing in Florida. For decades the HSUS

has been actively involved in educating the

general public regard ing the persistent

health and behavioral problems that are

common among puppies marketed by retail pet

stores. This suit is bought [sic] on behalf

of the HSUS and its Florida members. The

HSUS investigates puppy mill and pet store

cruelty complaints and offers its members,

constituents and the general public guidance

and advice as to how to select healthy, well

bred puppies. By ensuring that puppies sold

in retail pet stores actually receive the

statutorily mandated vaccines and

antelmintics, the health and welfare of

puppies will be improved. Further, by

eliminating from sale puppies that harbor

potentially dangerous zoonotic diseases, not

only is the public health protected but

breeding facilities where the puppies

originate and the pet stores that mar ket the

puppies have incentive to improve the often

overcrowded and unsanitary conditions to

which causes the puppies to be infested with

internal parasites.

6. A recent email survey revealed that more

than 70 HSUS constituents have purchased

puppies from Florida pet stores.

7. This petition is also filed on behalf of

Richard and Sharon Chambers, 5920 Our

Robbies Rd., Jupiter, FL 33458. The Chambers

purchased two puppies from Precious Puppy in

Jupiter, Florida, and were provided OCVI's,

signed by Dr. Dale Mitchell, DVM, but

stamped with the statement "Original

Vaccines Done by Breeder or Breeder's

Veterinarian." Accordingly, the Chambers

cannot verify if the vaccines indicated on

the health certificate, and "certified" by

Dr. Mitchell, were actually admin istered to

their puppies. One of the puppies developed

kennel cough, in spite of supposedly having

been vaccinated against it. The kennel

cough progressed to pneumonia and required

emergency veterinary care.

8. This petition is also filed on behalf of

M iriam Barkley, who lives at 600 SW 13 th

Avenue #7, Ft. Lauderdale, FL 33312. Ms.

Barkley purchased a Yellow Labrador

Retriever puppy from Puppy Palace in

Hollywood, Florida and was provided an OCVI.

At 13 weeks o f age the puppy has bilateral

hi p dysplasi a with severe right sided coxal

subluxation and will require thousands of

dollars worth of surgery, if she is even a

candidate for the surgery. Otherwise she

must be euthanized. In spite of the

requirement that each pet dealer provide

consumers with a ce rtificate of veterinary

inspection signed by a veterinarian that

certifies that "the animal was found to have

been healthy at the time of the veterinary

examination" the OCVI she was provided

contains no such certification.

9. This petition is also filed on behalf of

Sheree Thomas, 874 Hibiscus Street, Boca

Raton, FL 33486. Ms. Thomas was sold a

puppy by Puppy Palace of Boynton Beach, and

was given an OCVI upon which the attesting

veterinarian's signature had been forged.

Her puppy contracted distemper, a contagious

disease for which the puppy had supposedly

been vaccinated.

10. Petitioner Connie Crews purchased two

puppies from Puppy Palace in Hollywood, FL.

One puppy, Trinity, suffered kennel cough

that developed into severe bronchial

pneumonia for wh ich she was hospitalized.

Petitioner Connie Crews incurred more than

$4,000 in veterinary expenses saving

Trinity's life. The other puppy, Neo, also

had kennel cough, and suffers a bone defect

in both shoulders. Petitioner Crews was

provided an OCVI wit h each puppy, indicating

that the puppies had been vaccinated for

kennel cough. However, the OCVIs were not

signed by the attesting veterinarian, Dr.

William Rasberry, DVM, but rather had been

stamped with a signature stamp which had

been provided to the pet store.

19. For purposes of this order the foregoing allegations

have been deemed true or accurate. No evidence or stipulation s

of fact regarding the P etitioners was presented.

CONCLUSIONS OF LAW

20 . The Division of Administrative Hearings has

j urisdiction over the parties to and the subject matter of these

proceedings. §§ 120.54, and 120.56 , Fla. Stat . (2007).

21 . Section 120.52(15), Florida Statutes (2007), defines

"rule." That section provides, in part:

"Rule" means each agency statement o f

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by s tatute or by an existing rule.

The term also includes the amendment or

repeal of a rule.

22 . Section 120.54(1)(a), Florida Statutes (2007),

provides:

Rulemaking is not a matter of agency

discretion. Each agency statement defined

as a rule by s. 120.52 shall be adopted by

the rulemaking procedure provided by this

section as soon as feasible and practicable.

23. Section 120.56 , Florida Statutes (2007 ), provides in

pertinent part:

(1) GENERAL PROCEDURES FOR CHALLENGING THE

VALIDITY OF A RULE OR A PROPOS ED RULE. --

(a) Any person substantially affected by a

rule or a proposed rule may seek an

administrative determination of the

invalidity of the rule on the ground that

the rule is an invalid exercise of delegated

legislative authority.

(b) The petition seeking an administrative

determination must state with particularity

the provisions alleged to be invalid with

sufficient explanation of the facts or

grounds for the alleged invalidity and facts

sufficient to show that the person

challenging a rule is su bstantially affected

by it, or that the person challenging a

proposed rule would be substantially

affected by it.

(2) CHALLENGING PROPOSED RULES; SPECIAL

PROVISIONS. --

(a) Any substantially affected person may

seek an administrative determination of th e

invalidity of any proposed rule by filing a

petition seeking such a determination with

the division within 21 days after the date

of publication of the notice required by s.

120.54 (3)(a), within 10 days after the final

public hearing is held on the proposed rule

as provided by s. 120.54 (3)(c), within 20

days after the preparation of a statement of

estimated regulatory costs required pursuant

to s. 120.5 41 , if applicable, or within 20

days after the date of publication of the

notice required by s. 120.54 (3)(d). The

petition shall state with particularity the

objections to the proposed rule and the

reasons that the proposed rule is an invalid

exercise of delegated legislative authority.

The petitioner has the burden of going

forward. The agency then has the burden to

prove by a preponde rance of the evidence

that the proposed rule is not an invalid

exercise of delegated legislative authority

as to the objections raised. Any person who

is substantially affected by a change in the

proposed rule may seek a determination of

the validity of s uch change. Any person not

substantially affected by the proposed rule

as initially noticed, but who is

substantially affected by the rule as a

result of a change, may challenge any

provision of the rule and is not limited to

challenging the change to the proposed rule.

(b) The administrative law judge may

declare the proposed rule wholly or partly

invalid. Unless the decision of the

administrative law judge is reversed on

appeal, the proposed rule or provision of a

proposed rule declared invalid shall not be

adopted. However, the agency may proceed

with all other steps in the rulemaking

process, including the holding of a

factfinding hearing. In the event part of a

proposed rule is declared invalid, the

adopting agency may, in its sole discretion,

wit hdraw the proposed rule in its entirety.

The agency whose proposed rule has been

declared invalid in whole or part shall give

notice of the decision in the first

available issue of the Florida

Administrative Weekly.

(c) When any substantially affected pe rson

seeks determination of the invalidity of a

proposed rule pursuant to this section, the

proposed rule is not presumed to be valid or

invalid.

* * *

(4) CHALLENGING AGENCY STATEMENTS DEFINED

AS RULES; SPECIAL PROVISIONS. --

(a) Any person subst antially affected by an

agency statement may seek an administrative

determination that the statement violates s.

120.54 (1)(a). The peti tion shall include

the text of the statement or a description

of the statement and shall state with

particularity facts sufficient to show that

the statement constitutes a rule under s.

120.52 and that the agency has not adopted

the statement by the rulemaking procedure

provided by s. 120.54.

(b) The administrative law judge may extend

the hearing date beyond 30 days after

assignment of the case for good cause. If a

hearing is held and the petitioner proves

the allegations of the petition, the agency

shall have the burd en of proving that

rulemaking is not feasible and practicable

under s. 120.54 (1)(a).

(c) The administrative law judge may

determine wh ether all or part of a statement

violates s. 120.54 (1)(a). The decision of

the administrative law judge shall

constitute a final order. The division

shall transmit a copy of the final order to

the Department of State and the committee.

The Department of State shall publish notice

of the final order in the first available

issue of the Florida Administrative Weekly.

(d) When an administr ative law judge enters

a final order that all or part of an agency

statement violates s. 120.54 (1)(a), the

agency shall immediately disc ontinue all

reliance upon the statement or any

substantially similar statement as a basis

for agency action.

(e)1. If, prior to a final hearing to

determine whether all or part of any agency

statement violates s. 120.54 (1)(a), an

agency publishes, pursuant to s.

120.54 ( 3)(a), proposed rules that address

the statement, then for purposes of this

section, a presumption is created that the

agency is acting expeditiously and in good

faith to adopt rules that address the

statement, and the agency shall be permitted

to rely upo n the statement or a

substantially similar statement as a basis

for agency action if the statement meets the

requirements of s. 120.57 (1 )(e).

2. If, prior to the final hearing to

determine whether all or part of an agency

statement violates s. 120.54 (1)(a), an

agency pu blishes a notice of rule

development which addresses the statement

pursuant to s. 120.54 (2), or certifies that

such a notice has been tr ansmitted to the

Florida Administrative Weekly for

publication, then such publication shall

constitute good cause for the granting of a

stay of the proceedings and a continuance of

the final hearing for 30 days. If the

agency publishes proposed rules with in this

30 - day period or any extension of that

period granted by an administrative law

judge upon showing of good cause, then the

administrative law judge shall place the

case in abeyance pending the outcome of

rulemaking and any proceedings involving

chal lenges to proposed rules pursuant to

subsection (2) .

* * *

4. If an agency fails to adopt rules that

address the statement within 180 days after

publishing proposed rules, for purposes of

this subsection, a presumption is created

that the agency is n ot acting expeditiously

and in good faith to adopt rules. If the

agency's proposed rules are challenged

pursuant to subsection (2), the 180 - day

period for adoption of rules is tolled until

a final order is entered in that proceeding.

5. If the proposed rules addressing the

challenged statement are determined to be an

invalid exercise of delegated legislative

authority as defined in s. 12 0.52 (8)(b) - (f),

the agency must immediately discontinue

reliance on the statement and any

substantially similar statement until the

rules addressing the subject are properly

adopted.

(f) All proceedings to determine a

violation of s. 120.54 (1)(a) shall be

brought pursuant to this subsection. A

proceeding pursuant to this subsection may

be consolidated with a proceeding under any

other section of this chapter. Nothing in

this paragraph shall be construed to prevent

a party whose substantial interests have

been determined by an agency action from

bringing a proceeding pursuant to s.

120.57 (1)(e). ( Emphasis Added. )

24. Section 828.29, Florida Statutes (2007) , provides, in

pertinent part:

(1)(a) For each dog transported into the

state for sale, the tests, vaccines, and

anthelmintics required by this section must

be administered by or under the direction of

a veterinarian, licensed by the state of

origin and accredited by the United States

Department of Agriculture, who issues the

official certificate of veterinary

inspec tion . The tests, vaccines, and

anthelmintics must be administered no more

than 30 days and no less than 14 days before

the dog's entry into the state. The

official certificate of veterinary

inspection certifying compliance with this

section must accompan y each dog transported

into the state for sale.

(b) For each dog offered for sale within

the state, the tests, vaccines, and

anthelmintics required by this section must

be administered by or under the direction of

a veterinarian, licensed by the state a nd

accredited by the United States Department

of Agriculture, who issues the official

certificate of veterinary inspection . The

tests, vaccines, and anthelmintics must be

administered before the dog is offered for

sale in the state, unless the licensed,

a ccredited veterinarian certifies on the

official certificate of veterinary

inspection that to inoculate or deworm the

dog is not in the best medical interest of

the dog, in which case the vaccine or

anthelmintic may not be administered to that

particular d og. Each dog must receive

vaccines and anthelmintics against the

following diseases and internal parasites:

1. Canine distemper.

2. Leptospirosis.

3. Bordetella (by intranasal inoculation or

by an alternative method of administration

if deemed nec essary by the attending

veterinarian and noted on the health

certificate, which must be administered in

this state once before sale).

4. Parainfluenza.

5. Hepatitis.

6. Canine parvo.

7. Rabies, provided the dog is over 3

months of age and the inoc ulation is

administered by a licensed veterinarian.

8. Roundworms.

9. Hookworms.

If the dog is under 4 months of age, the

tests, vaccines, and anthelmintics required

by this section must be administered no more

than 21 days before sale within the st ate.

If the dog is 4 months of age or older, the

tests, vaccines, and anthelmintics required

by this section must be administered at or

after 3 months of age, but no more than 1

year before sale within the state.

(2)(a) For each cat transported into the

state for sale, the tests, vaccines, and

anthelmintics required by this section must

be administered by or under the direction of

a veterinarian, licensed by the state of

origin and accredited by the United States

Department of Agriculture , who issues the

official certificate of veterinary

inspection. The tests, vaccines, and

anthelmintics must be administered no more

than 30 days and no less than 14 days before

the cat's entry into the state. The

official certificate of veterinary

inspection certifying compliance with this

section must accompany each cat transported

into the state for sale.

(b) For each cat offered for sale within

the state, the tests, vaccines, and

anthelmintics required by this section must

be administered by or under the direction o f

a veterinarian, licensed by the state and

accredited by the United States Department

of Agriculture, who issues the official

certificate of veterinary inspection . The

tests, vaccines, and anthelmintics must be

administered before the cat is offered for

sale in the state, unless the licensed,

accredited veterinarian certifies on the

official certificate of veterinary

inspection that to inoculate or deworm the

cat is not in the best medical interest of

the cat, in which case the vaccine or

anthelmintic may not be administered to that

particular cat. Each cat must receive

vaccines and anthelmintics against the

following diseases and internal parasites:

1. Panleukopenia.

2. Feline viral rhinotracheitis.

3. Calici virus.

4. Rabies, if the cat is over 3 months of

age and the inoculation is administered by a

licensed veterinarian.

5. Hookworms.

6. Roundworms.

If the cat is under 4 months of age, the

tests, vaccines, and anthelmintics required

by this section must be administered no more

than 21 day s before sale within the state.

If the cat is 4 months of age or older, the

tests, vaccines, and anthelmintics required

by this section must be administered at or

after 3 months of age, but no more than 1

year before sale within the state.

(3)(a) Each dog or cat subject to

subsection (1) or subsection (2) must be

accompanied by a current official

certificate of veterinary inspection at all

times while being offered for sale within

the state. The examining veterinarian must

retain one copy of the offici al certificate

of veterinary inspection on file for at

least 1 year after the date of examination.

At the time of sale of the animal, one copy

of the official certificate of veterinary

inspection must be given to the buyer. The

seller must retain one cop y of the official

certificate of veterinary inspection on

record for at least 1 year after the date of

sale.

(b) The term "official certificate of

veterinary inspection" means a legible

certificate of veterinary inspection signed

by the examining veteri narian licensed by

the state of origin and accredited by the

United States Department of Agriculture,

that shows the age, sex, breed, color, and

health record of the dog or cat, the printed

or typed names and addresses of the person

or business from whom t he animal was

obtained, the consignor or seller, the

consignee or purchaser, and the examining

veterinarian, and the veterinarian's license

number. The official certificate of

veterinary inspection must list all vaccines

and deworming medications administ ered to

the dog or cat, including the manufacturer,

vaccine, type, lot number, expiration date,

and the dates of administration thereof, and

must state that the examining veterinarian

warrants that, to the best of his or her

knowledge, the animal has no si gn of

contagious or infectious diseases and has no

evidence of internal or external parasites,

including coccidiosis and ear mites, but

excluding fleas and ticks. The Department

of Agriculture and Consumer Services shall

supply the official intrastate cer tificate

of veterinary inspection required by this

section at cost.

(c) The examination of each dog and cat by

a veterinarian must take place no more than

30 days before the sale within the state.

The examination must include, but not be

limited to, a fecal test to determine if the

dog or cat is free of internal parasites,

including hookworms, roundworms, tapeworms,

and whipworms. If the examination warrants,

the dog or cat must be treated with a

specific anthelmintic. In the absence of a

definitive parasitic diagnosis, each dog or

cat must be given a broad spectrum

anthelmintic. Each dog over 6 months of age

must also be tested for heartworms. Each

cat must also be tested for feline leukemia

before being offered for sale in the state.

All of these tests must be performed by or

under the supervision of a licensed

veterinarian, and the results of the tests

must be listed on the official certificate

of veterinary inspection.

(d) All dogs and cats offered for sale and

copies of certificates held by t he seller

and veterinarian are subject to inspection

by any agent of the Department of

Agriculture and Consumer Services, any agent

of the United States Department of

Agriculture, any law enforcement officer, or

any agent appointed under s. 828.03 .

(Emph a sis Added)

(4) A person may not transport into the

state for sale or offer for sale within the

state any dog or cat that is less than 8

weeks of age.

(5) If, within 14 days following the sale

by a pet dealer of an animal subject to this

section, a licensed veterinarian of the

consumer's choosing certifies that, at the

time of the sale, the animal was unfit for

purchase due to illness o r disease, the

presence of symptoms of a contagious or

infectious disease, or the presence of

internal or external parasites, excluding

fleas and ticks; or if, within 1 year

following the sale of an animal subject to

this section, a licensed veterinarian o f the

consumer's choosing certifies such animal to

be unfit for purchase due to a congenital or

hereditary disorder which adversely affects

the health of the animal; or if, within 1

year following the sale of an animal subject

to this section, the breed, s ex, or health

of such animal is found to have been

misrepresented to the consumer, the pet

dealer shall afford the consumer the right

to choose one of the following options:

(a) The right to return the animal and

receive a refund of the purchase price,

including the sales tax, and reimbursement

for reasonable veterinary costs directly

related to the veterinarian's examination

and certification that the dog or cat is

unfit for purchase pursuant to this section

and directly related to necessary emergency

s ervices and treatment undertaken to relieve

suffering;

(b) The right to return the animal and

receive an exchange dog or cat of the

consumer's choice of equivalent value, and

reimbursement for reasonable veterinary

costs directly related to the veterinar ian's

examination and certification that the dog

or cat is unfit for purchase pursuant to

this section and directly related to

necessary emergency services and treatment

undertaken to relieve suffering; or

(c) The right to retain the animal and

receive reimbursement for reasonable

veterinary costs for necessary services and

treatment related to the attempt to cure or

curing of the dog or cat.

Reimbursement for veterinary costs may not

exceed the purchase price of the animal.

The cost of veterinary ser vices is

reasonable if comparable to the cost of

similar services rendered by other licensed

veterinarians in proximity to the treating

veterinarian and the services rendered are

appropriate for the certification by the

veterinarian.

(6) A consumer may s ign a waiver

relinquishing his or her right to return the

dog or cat for congenital or hereditary

disorders. In the case of such waiver, the

consumer has 48 normal business hours,

excluding weekends and holidays, in which to

have the animal examined by a licensed

veterinarian of the consumer's choosing. If

the veterinarian certifies that, at the time

of sale, the dog or cat was unfit for

purchase due to a congenital or hereditary

disorder, the pet dealer must afford the

consumer the right to choose one of the

following options:

(a) The right to return the animal and

receive a refund of the purchase price,

including sales tax, but excluding the

veterinary costs related to the

certification that the dog or cat is unfit;

or

(b) The right to return the a nimal and

receive an exchange dog or cat of the

consumer's choice of equivalent value, but

not a refund of the veterinary costs related

to the certification that the dog or cat is

unfit.

(7) A pet dealer may specifically state at

the time of sale, in wr iting to the

consumer, the presence of specific

congenital or hereditary disorders, in which

case the consumer has no right to any refund

or exchange for those disorders.

( 8) The refund or exchange required by

subsection (5) or subsection (6) shall be

m ade by the pet dealer not later than 10

business days following receipt of a signed

veterinary certification as required in

subsection (5) or subsection (6). The

consumer must notify the pet dealer within 2

business days after the veterinarian's

determina tion that the animal is unfit. The

written certification of unfitness must be

presented to the pet dealer not later than 3

business days following receipt thereof by

the consumer.

(9) An animal may not be determined unfit

for sale on account of an inju ry sustained

or illness contracted after the consumer

takes possession of the animal. A

veterinary finding of intestinal or external

parasites is not grounds for declaring a dog

or cat unfit for sale unless the animal is

clinically ill because of that con dition.

(10) If a pet dealer wishes to contest a

demand for veterinary expenses, refund, or

exchange made by a consumer under this

section, the dealer may require the consumer

to produce the animal for examination by a

licensed veterinarian designated b y the

dealer. Upon such examination, if the

consumer and the dealer are unable to reach

an agreement that constitutes one of the

options set forth in subsection (5) or

subsection (6) within 10 business days

following receipt of the animal for such

examina tion, the consumer may initiate an

action in a court of competent jurisdiction

to recover or obtain reimbursement of

veterinary expenses, refund, or exchange.

(11) This section does not in any way limit

the rights or remedies that are otherwise

availabl e to a consumer under any other law.

(12) Every pet dealer who sells an animal

to a consumer must provide the consumer at

the time of sale with a written notice,

printed or typed, which reads as follows:

It is the consumer's right, pursuant to

section 828.29 , Florida Statutes, to receive

a certificate of veterinary inspection with

each dog or cat purchased from a pet dealer.

Such cert ificate shall list all vaccines and

deworming medications administered to the

animal and shall state that the animal has

been examined by a Florida - licensed

veterinarian who certifies that, to the best

of the veterinarian's knowledge, the animal

was found to have been healthy at the time

of the veterinary examination. In the event

that the consumer purchases the animal and

finds it to have been unfit for purchase as

provided in section 828.29 (5), Florida

Statutes, the consumer must notify the pet

dealer within 2 business days of the

veterinarian's determination that the animal

was unfit. The consumer has the right to

retain, return, or ex change the animal and

receive reimbursement for certain related

veterinary services rendered to the animal,

subject to the right of the dealer to have

the animal examined by another veterinarian.

(13) For the purposes of subsections (5) -

(12) and (16), t he term "pet dealer" means

any person, firm, partnership, corporation,

or other association which, in the ordinary

course of business, engages in the sale of

more than two litters, or 20 dogs or cats,

per year, whichever is greater, to the

public. This de finition includes breeders

of animals who sell such animals directly to

a consumer.

(14) The state attorney may bring an action

to enjoin any violator of this section or s.

828.12 or s. 828.13 from being a pet dealer.

(15) County - operated or city - operated

animal con trol agencies and registered

nonprofit humane organizations are exempt

from this section.

(16) A pet dealer may not knowingly

misrepresent the breed, sex, or health of

any dog or cat offered for sale within the

state.

(17) Except as otherwise provide d in this

chapter, a person who violates any provision

of this section commits a misdemeanor of the

first degree, punishable as provided in s.

775.082 or s. 775.083. ( Emphasis Added. )

25. Based upon the foregoing statute, the Department is

directed to "supply the offi cial intrastate certificate of

veterinary inspection required by this section at cost."

26. The foregoing statute dictates that each dog or cat

must be accompanied by a current official certificate of

veterinary inspection. This OCVI is defined as:

...a legible certificate of veterinary

inspection signed by the examining

veterinarian licensed by the state of origin

and accredited by the United States

Department of Agriculture, that shows the

age, sex, breed, color, and health record of

the dog or cat, th e printed or typed names

and addresses of the person or business from

whom the animal was obtained, the consignor

or seller, the consignee or purchaser, and

the examining veterinarian, and the

veterinarian's license number. The official

certificate of vet erinary inspection must

list all vaccines and deworming medications

administered to the dog or cat, including

the manufacturer, vaccine, type, lot number,

expiration date, and the dates of

administration thereof, and must state that

the examining veterinar ian warrants that, to

the best of his or her knowledge, the animal

has no sign of contagious or infectious

diseases and has no evidence of internal or

external parasites, including coccidiosis

and ear mites, but excluding fleas and

ticks. ( Emphasis Added. )

27 . In this case, the Petitioner s maintain that the

Respondent 's memorandum and the Fuchs statement are agency

policy that have not been properly adopted through the

rulemaking procedures set forth by law. The Petitioners argue

that the statement by Di ana Fuchs at the rule making workshop

c onflicts with law. Further, the Petitioners maintain that the

adopted language of the new OCVI form (as incorporated into the

proposed rule) is an invalid exercise of legislative authority

because it modifies or cont ravenes Section 828.29, Fl orid a

Stat utes (2007) , and is arbitrary and capricious.

28 . First, as to the proposed rule, it must be noted that

the Department has utilized an OCVI form since 1999. The

Petitioners take exception to the form because it does n ot

specify that the inspecting veterinarian has determined the cat

or dog to be "healthy." To this end Petitioners rely on the

language found in Section 828.29(12), Florida Statutes (2007).

This subsection , however, speaks to the consumer's right to

rece ive the OCVI at the time of pur chase. The term "healthy" as

used in this subsection can only relat e back to the prior

definition o f the OCVI. "Healthy" as used in this subsection is

not defined elsewhere. Therefore , the specific language

required (as de fined by the Legislature) for the OCVI must

govern. Moreover, the consumer 's options (when the pet may be

found to be unfit for purchase), are clearly delineated. The

concept of "healthy" relates to those options. A pet may be

found to be unfit for purc hase despite a veterinary inspection.

For example, the law contemplates that in the case of congenital

or hereditary disorders, up to one year may be allowable for the

consumer to seek remedy. Based upon the foregoing, the

Petitioners' challenge to the O CVI, as contemplated by the

proposed rule, must fail. The OCVI form conforms to the

statutory definition and is reasonable to put the public (and

veterinarians) on notice of what the Legislature requires.

29. As to the unpromulgated statement of July 6, 2006, the

Department has announced its intention, after reviewing the

matter through the rulemaking process, that it will not attempt

to enforce the language of the memorandum. As such, the

Petitioners' concerns regarding this memorandum are moot.

30. Notwithstanding that conclusion, however, it is

further determined that the memorandum could not be a rule.

First, the Department does not have disciplinary jurisdiction

over licensed veterinarians. Second, the memorandum on its face

advises that the inf ormation is for "guidelines and reminders."

Memoranda issued for merely informational purposes do not,

absent more, rise to the level of a "rule" e specially, since i n

this case, the Department was not seeking to implement,

interpret, or prescribe law or p olicy for its agency or anyone

governed by its authority . This agency provides a form as

directed by the law. Persons who fail or refuse to abide by the

subject matter requirements of the law are held accountable

through disciplinary proceedings or crimi nal prosecution. While

the Department may act as a complainant (as any citizen might),

the law convey s no authority on the Department to enforce the

terms of Section 828.29, Florida Statutes (2007).

31. Similarly, the Fuchs statement is not unpromulga ted

agency policy. Ms. Fuchs' comment is not an agency statement of

general applicability. If in order to comply with the

professional guidelines of Chapter 474, Florida Statutes (2007),

veterinarians are required to supervise the administering of

vaccin es ( and this would clearly be the language of Section

828.29(1)(b)7 . Florida Statute (2007) ) , the informal comments of

a Department employee cannot relieve the veterinarian of that

responsibility. Further, as read in its entirety, Section

828.29, Florida Statutes (2007) , grants consumers specific

options when a dog or cat is sold in violation of the health

standards set forth in the law. The inarticulate comments of an

agency employee cannot diminish or limit those options and do

not rise to the level of "rule" as that term is used in Florida

law. And, as previously stated, the agency did not have

jurisdiction to enact the statement as a rule in any event.

32. As to the memorandum and the OCVI form , the Department

took appropriate steps to engage in rul emaking in a timely

manner. It is concluded that the Department acted expeditiously

and in good faith to address the Petitioners' concerns. That

the Department does not have jurisdiction to enact more

stringent or controlling rules does not condemn the e ffort

shown. Further, as the Department does not seek to rely on the

statements of its memorandum (were they deemed a "rule"),

additional rulemaking would not cure the Petitioners' concerns.

The Department does not have the statutory authority to do more .

33. Pursuant to Florida law, only a "substantially

affected person" may challenge the validity of a proposed rule.

To this end, the person seeking an administrative determination

that an agency rule is an invalid exercise of delegated

legislative auth ority must show a real and sufficiently

immediate injury in fact. See Lanoue v. Florida Department of

Law Enforcement , 751 So. 2d 94 (Fla. 1st DCA 1999) and Ward v.

Board of Trustees of the Internal Improvement Trust Fund and

Department of Environmental P rotection , 651 So. 2d 1236 (Fla.

4th DCA 1995) . None of the Petitioners in this cause have pled

or established an injury in fact. The Petitioners are required

to meet their burden of proof as to the rule challenge and

standing by a preponderance of the e vidence. See Department of

Health et al. v. Merritt , 919 So. 2d 561 (Fla. 1st DCA 2006).

The Petitioners have failed to meet this burden. Taking all of

the allegations as true, the Petitioners have not demonstrated

standing or an injury in fact.

34. The Petitioner, HSUS, has not alleged or established

that its members are substantially affected by the agency

statement or rule. No HSUS member was alleged to have been

injured. No HSUS member filed a complaint with the Department

and if one had the Dep artment would not have subject matter

jurisdiction . The minimum standard for "association" standing

as set forth in Florida Board of Medicine v. Florida Academy of

Cosmetic Surgery, Inc. , 808 So. 2d 243 (Fla. 1st DCA 2002) has

not been pled or established .

35 . Further, none of the individually named Petitioners

sustained an injury within the zone of interest. Any

substantially affected person may seek an administrative

determination that a proposed rule is invalid but there must be

a nexus between the cl aimant and the offending rule. None of

the Petitioners are alleged to be veterinarians. None of the

Petitioners as consumers filed complaints with the Department.

It is not alleged that any individual Petitioner has been

precluded from the remedies prov ided by the law. Whether any of

the Petitioners filed a criminal complaint is unknown. The

statute gives consumers very specific rights , but t hose options

are not achieved through enforcement by the Department. The

OCVI form does not create any right se parate from the statutory

guidelines. Accordingly, the Petitioners have failed to

establish an injury in fact or law.

36. It is concluded that the language of the OCVI form as

proposed in Fl orida Admin istrative Code R ule 5C - 27.001 conforms

to the overa ll intent and language of the statute. Reading the

statute as a whole it is certain that the legislature intended

to provide options for consumers who purchase dogs and cats.

The statute lists a series of protocols that govern the sale and

places specifi c responsibilities on those who participate in the

sale. The responsibility of the Department is limited. The

Department is directed to supply the official intrastate

certificate of veterinary inspection at cost. That OCVI must

list all vaccines and dew orming medications administered to the

dog or cat, including the manufacturer, vaccine, type, lot

number, expiration date, and the dates of administration, and

must state that the examining veterinarian warrants that, to the

best of his or her knowledge, t he animal has no sign of

contagious or infectious diseases and has no evidence of

internal or external parasites, including coccidiosis and ear

mites, but excluding fleas and ticks. See § 828.29(3), Fla.

Stat. (2007). The proposed rule contains that prov ision.

37 . For the reasons noted above it is concluded that the

proposed rule is not an invalid exercise of legislative

authority because it comports with the statutory authority from

which it derived. Further, it is not arbitrary or capricious

because it is supported by the logic and language of the statute

it dove - tails. As such it is supported by reason and logic.

See Board of Clinical Laboratory Personnel v. Florida

Association of Blood Banks , 721 So. 2d 317 (Fla. 1 st DCA 1998).

38 . Under the gui delines of Section 828.29, Fl orid a

Stat utes (2007) , consumers who purchase animals that are "unfit

for purchase" are provided certain options. The state has

described the standards and procedures regarding the return of

the animal, the exchange of the ani mal, or the acceptance of the

animal (with certain expenses being reimbursable). The

Department's role in this process is limited to its authority to

inspect OCVI certificates and its obligation to supply the OCVI

form at cost . Accordingly, the Petitione rs' challenges to the

proposed rule and the unpromulgated memorandum and Fuchs

statement must fail.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the instant case is hereby dismissed.

DONE AND ORDERED this 21st d ay of December 2007, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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

this 21st day of December 2007.

COPIES FURNISHED :

Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

711 Talladega Street

West Palm Beach, Florida 33405 - 1443

Richard Tritschler, General Counsel

Department of Agriculture

and Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0810

James R. Kelly, Esquire

Florida Department of Agriculture

a nd Consumer Services

Mayo Building, Suite 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

Honorable Charles H. Bronson

Commissioner of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Fl orida 32399 - 0810

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Pro cedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.