11-000912PL Department Of Business And Professional Regulation, Board Of Veterinary Medicine vs. Jose Davila-Delgado, D.V.M. Status: Closed Recommended Order on Thursday, June 16, 2011.

Summary: Respondent's conduct was exempt from Chapter 474 because he owned the animals alleged to be treated. The Department did not establish and exception to the exemption.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF VETERINARY MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 11 - 0912PL

)

JOSE DAVI LA - DELGADO, D.V.M. , )

)

Respondent . )

)

RECOMMENDED ORDER

On April 29, 2011 , a duly - noticed hea ring was held by means

of video teleconference with sites in Gainesville and

Talla hassee , Florida , before Lisa Shearer Nelson , an

Administrative Law Judge assigned by the Division of

Administrative Hearings .

APPEARANCES

For Petitioner: Elizabeth F. Henderson, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

For Respondent: William Furlow, III, Esquire

Veronica Bayo, Esquire

Grossman, Furlow and Bayo

2022 Raymond Diehl Road

Tallahassee, F lorida 32308

STATEMENT OF THE ISSUE S

The issues to be determined in this proceeding are whether

Respondent's actions are exempt from the provisions of chapter

474, Florida Statutes, pursuant to section 474.203 (5) , and if

not, whether Respondent violate d section 474.214(1)(ee) , Florida

Statutes (2008) . If Respondent's actions are not exempt and

violate section 474.214(1)(ee), then what penalty should be

imposed?

PRELIMINARY STATEMENT

On October 7, 2010, Petitioner, Department of Business and

Profession al Regulation (Petitioner or the Department ), filed a

two - count Administrative Complaint against Respondent , Jose

Davila - Delgado, D.V.M. (Respondent or Dr. Davila) , alleging that

Respondent violated section 474.214(1)(r) and (ee) with respect

to his care a nd treatment of three horses. On October 13, 2010,

Respondent filed a Petition for Formal Hearing disputing the

allegations in the Administrative Complaint and requesting a

hearing pursuant to section 120.57(1), Florida Statutes. On

February 18, 2011, th e matter was referred to the Division of

Administrative Hearings for the assignment of an administrative

law judge. On March 8, 2011, a Notice of Hearing was issued

scheduling the case for video hearing on April 29, 2011 .

On April 12, 2011, an Amended Administrative Complaint was

filed with the Division, but without an accompanying motion for

leave to amend the Administrative Complaint. See Fla. Admin.

Code R. 28 - 106.202. At the commencement of hearing, counsel for

Petitioner moved to amend the Admini strative Complaint without

objection, and the case proceeded on the Amended Administrative

Complaint . The amended complaint deleted the standard of care

violation originally alleged as Count I of the Administrative

Complaint and alleged only that Responde nt violated section

474.214(1)(ee) alone.

Prior to hearing, the parties also file d a Prehearing

Stipulation in which the parties stipulated to certain facts

that, where relevant, have been incorporated into the findings of

fact below. At the commencement of the hearing, the undersigned

asked for clarification of the parties' positions. The parties

confirmed that Respondent i s relying on the exemption in section

474.203(5), and that the Department is contending that the

exemption does not apply.

Petition er presented the testimony of Erin Cameron and Ben

Schachter, D.V.M., and Petitioner's Exhibits 1 and 2 were

admitted into evidence. Ruling on the admissibility of

Petitioner's Exhibit 3 was deferred , and the parties were

instructed to address the issue i n their proposed recommended

orders. As explained in the Conclusions of Law, Petitioner's

Exhibit 3 is not admitted. Respondent presented no evidence.

The Transcript of the proceedings was filed with the

Division on May 13, 2011. Both parties submitted Proposed

Recommended Orders that have been carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the practice of veterinary medicine pursuant to section 20.165

and chapters 455 and 474, Florida Statutes.

2. Respondent is and has been, at all times material to

this Administrative Complaint, licensed to practice veterinary

medicine in the State of Florida, having been issued license

number VM 8029.

3. Respondent's c ompany, Equitransfer, LLC, is a limited

liability company in t h e state of Florida. Equitransfer is

involved with perf o rm ing embryo transfers in recipient mares.

4. Dr. Davila owned horses #331, #645, and T14. These

horses died. Horse #645 had a foal ou t on September 16, 2009,

and horses #331 and T14 had embryo placements which had not been

birthed at the time of the horses ' deaths.

5. There are records of some sort that were requested from

and turned over to the Department by Dr. Davila. Included is a

document entitled "Verification of Completeness of Records "

(Verification of Completeness form) , which is a form on

Department letterhead with blanks to be completed with the

relevant information. This document as completed and received

with the document s states the following:

I, Jose R. Davila, DVM am the official

custodian of patient records f ro m recipient

mares under Frances Ramirez. My title is

Owner/President Equitransfer LLC. My

employer's address is: PO Box 770,

Summerfield FL 34492 (352)307 - 094 4. I hereby

verify that the I have searched the patient

records maintained at Equitransfer, LLC and

have determined that the attached records

consist ing of 1203 pages are true and correct

copies of the patient records as requested

pursuant to subpoena No. (left blank).

6. The Verification of Completeness does not indicate that

the records are for horses #645, #331 or T14, and does not state

that the records were made at or near the time of the occurrence

of the matters set forth , or from inform ation k ept in the course

of regular ly conducted activity. The Verification of

Completeness form also does not state that the records were made

as a regular practice in regularly conducted activity.

7. The Verification of Completeness indicates that there

are 1 203 pages of records. The records submitted at hearing

consist of approximately 955 pages. Moreover, the documents have

Bates stamps on the bottom right hand corner , but no one could

state who put the Bate s - stamped numbers on the documents or why

the doc uments were not in Bate - stamp order . Finally, while Erin

Cameron testified that she was present when the records were

received, she could not testify that the records presented at

hearing consisted of all of the records provided by Dr. Davila.

8. Dr. Da vila stipulated that the documents in Petitioner's

Exhibit 3 did not contain the items enumerated as required

medical records in the Administrative Complaint. In other words,

the documents did not constitute medical records under chapter

474.

CONCLUSIONS OF LAW

9 . The Division of Administrative Hearings has jurisdiction

over the subject matter and the parties to this action in

accordance with s ections 120.569 and 120.57(1), Florida Statutes.

10. This is a disciplinary action by Petitioner in which

P etitioner seeks to discipline Respondent's license as a

veterinarian. Petitioner bears the burden of proof to

demonstrate the allegations in the Administrative Complaint by

clear and convincing evidence. Dep't of Banking and Fin. v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

11. As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify mus t

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

12. As a preliminary, and in this case, dispositive matter,

Respondent asserts tha t he is entitled to the exemption contained

in section 474.203(5), and Petitioner asserts that the conduct at

issue fits within an exception to the exemption. Should

Respondent be correct, then he is not subject to disciplinary

action as alleged in the Am ended Administrative Complaint.

Should the Department's position be correct, then Respondent's

alleged actions could be the basis for disciplinary action ,

assuming Petitioner proves the allegations .

13. In disciplinary proceedings, the statutes and ru les for

which a violation is alleged, and here, the exception to the

exemption in section 474.203 (5) , must be strictly construed in

favor of the Respondent. 1 / Elmariah v. Dep't of Prof'l Reg. , 574

So. 2d 164 (Fla. 1st DCA 1990); Taylor v. Dep't of Prof'l Reg. ,

534 So. 2d 782, 784 (Fla. 1st DCA 1988).

14. The burden of proof related to the application of the

exemption is on the party asserting the affirmative of the issue.

Young v. Dep't of Cmty. Aff . , 625 So. 2d 831 (Fla. 1993); Balino

v. Dep't of Hea lth and Rehab. Svcs. , 348 So. 2d 349 (Fla. 1st DCA

1977). Thus, Respondent has the burden to show that he fits

within the exemption in section 474.203(5). The burden then

shifts to the Department to show that Respondent's alleged

conduct fits within an e xception enumerated in the exemption, and

thus is subject to disciplinary action.

1 5 . Section 474.203 provides in pertinent part:

474.203 Exemptions. -- This chapter shall

not apply to:

* * *

(5)(a) Any person, or the person' s regular

employee, administering to the ills or

injuries of her or his own animals,

including, but not limited to, castration,

spaying, and dehorning of herd animals,

unless title has been transferred or

employment provided for the purpose of

circumventin g this law. This exemption shall

not apply to out - of - state veterinarians

practicing temporarily in the state.

However, only a veterinarian may immunize or

treat an animal for diseases which are

communicable to humans and which are of

public health signif icance.

Accordingly, Respondent must demonstrate that he owns the animals

for whom the Administrative Complaint alleges he was caring . The

Department would then have to prove that 1) title had been

transferred or employment provided for the purpose of

c ircumventing Chapter 474; 2) that Respondent was an out - of - state

veterinarian practicing temporarily in the State of Florida; or

3) that Respondent was treating or immunizing his animals for

diseases that are communicable to humans and which are of public

health significance.

1 6 . The parties stipulated that Respondent owned the only

horses giving rise to allegations regarding medical records in

the Amended Administrative Complaint, #645, #331 and T14. Given

Respondent's undisputed ownership of the three animals named in

the Administrative Complaint, any care he rendered to these

horses would not be subject to the provisions of section 474.214,

because the administration to the ills and injuries of his own

animals is entitled to the exemption contained in section

474.203.

1 7 . The Department has argued that Respondent leased the

animals and then charged for their care. Charging for their

care, the Department contends, is evidence of the creation of a

veterinarian/client/patient relationship that would then bring

the conduct within the parameters of Chapter 474.

1 8 . However, as noted at hearing, nothing in the Amended

Administrative Co mplaint alleges that Respondent charged for

services to his own animals. Nor does the exemption in section

47 4.203(5) refer to the veterinarian/client/patient relation ship

as creating an exception to the exemption . While the Amended

Administrative Complaint references the leasing of the animals,

it does not allege that any lease s constitute a transfer of

ownersh ip. Respondent can only be held accountable for those

allegations actually contained in the Administrative Complaint.

Trevisani v. Dep't of Health , 908 So. 2d 1108 (Fla. 1st DCA

2005); Lusskin v. Ag. for Health Care Admin. , 731 So. 2d 67, 69

(Fla. 4th DC A 1999).

1 9 . The second exception to the exemption does not come

int o play, as neither party contends that Respondent is an out -

of - state veterinarian. Petitioner asserts that Respondent's

behavior fits into the third exception contained within the

"owne r" exemption, i.e., that Respondent was treating or

immunizing his animals for diseases that are communicable to

humans and which are of public health significance.

20 . Before this question can be reached, the admissibility

of Petitioner's Exhibit 3 mu st be addressed. As noted in the

findings of fact, there are substantial concerns regarding the

completeness of the document submitted for admission into

evidence. While the Verification of Completeness form indicates

that there should be 1203 pages , the re are approximately 955,

well short of the stated number. The pages are not in order, and

there is no knowledge as to who numbered them or where the

missing pages are located. Ms. Cameron, who was the only person

who testified at hearing regarding the a uthenticity of the

documents, was present when documents were retrieved from

Dr. Davila's place of business. However, she worked in a

different region from where the documents were retrieved, and

could not confirm how the documents were maintained once

re trieved by the Department.

21 . The Department has asserted that Petitioner's Exhibit 3

is the complete set of records retrieved by the Department from

Dr. Davila. In order to meet the authentication requirements of

section 90.901, Florida Statutes, th ere must be sufficient

evidence to establish "that the matter in question is what its

proponent claims." Here, given that the exhibit is some 248

pages short of what is identified in the Verification of Records

form , it cannot be authenticated.

22 . Peti tioner argues that the Verification of Completeness

form included with Petitioner's Exhibit 3 makes it a self -

authenticating document pursuant to section 90.902(11). This

section provides in pertinent part:

Self - authentication. Ï Extrinsic evidence of

authe nticity as a condition precedent to

admissibility is not required for:

1 0

* * *

(11 ) An original or a duplicate of evidence

that would be admissible under s. 90.803(6),

which is maintained in a foreign country or

domestic location a nd is accompanied by a

certification or declaration from the

custodian of the records or another qualified

person certifying or declaring that the

record:

(a) W as made at or near the time of the

occurrence of the matters set forth by, or

from information transmitted by, a person

having knowledge of those matters;

(b) W as kept in the course of the regularly

conducted activity; and

(c) W as made as a regular practice in the

course of the regularly conducted activity,

provided that falsely making such a

cer tification or declaration would subject

the maker to criminal penalty under the laws

of the foreign or domestic location in which

the certification or declaration was signed.

2 3 . Evidence admissible pursuant to section 90.803(6) is

hearsay evidence whic h is admissible under the business records

exception to the hearsay rule. However, as noted in the findings

of fact, the Verification of Completeness form does not state

that the records were made at or near the time of the occurrence

of the matters set f orth or from information kept in the course

of the regular ly conducted activity. The Verification of

Completeness form also does not state that the records were made

as a regular practice in regularly conducted activity.

Accordingly, Petitioner's Exhibit 3 is not self - authenticating,

cannot be assumed to be complete and i s inadmissible hearsay. As

a result, Petitioner's Exhibit 3 cannot be admitted into

evidence.

24 . Without Petitioner's Exhibit 3, Petitioner is left with

relying on the testimony of it s expert, Dr. Schachter. However,

s ection 90.702 provides,

[i] f scientific, technical, or other

specialized knowledge will assist the trier

of fact in understanding the evidence or in

determining a fact in issue, a witness

qualified as an expert by knowl edge, skill,

experience, training, or education may

testify about it in the form of an opinion;

however, the opinion is admissible only if it

can be applied to evidence at trial .

25 . Thus, Dr. Schachter's opinion regarding information

contained in Petit ioner's Exhibit 3 cannot be considered.

26 . Even assuming that Petitioner's Exhibit 3 was

admissible, the Department has not established the factual

predicate for the third exception to the owner exemption

contained in section 474.203(5). This exception provides "only a

veterinarian may immunize or treat an animal for diseases which

are communicable to humans and which are of public health

significance." Dr. Schachter testified based upon information in

Petitioner's Exhibit 3 that the bacterium in the h orses' systems

was Clostridium, and that the bacteria is transmissible to

humans. He was not asked and did not answer whether the disease

from which the horses died was one of public health concern.

Given the language of section 474.203(5), proof that th e disease

is communicable to humans and that the disease is one of public

health concern is required. That proof was not presented here.

27. While it may be appropriate from a policy standpoint to

regulate the type of business at issue here under the a uspices of

c hapter 474, this case must be decided based upon the express

language of the exemption in effect at the time of the conduct

alleged. Any change in the exemption would be a legislative

decision beyond the reach of this case.

RECOMMENDATION

Up on consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED that the Board of Veterinary Medicine enter a

final order dismissing the charges in the Amended Administrative

Complaint.

DONE AND ENTERED this 16 th day of June , 20 11 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of June , 20 11 .

ENDNOTE

1/ Established case law states that exemptions are strictly

construed against the person seeking the exemption. Young v.

Dep't of Cmty. Aff . , 625 So. 2d 831 (Fla. 1993); Balino v. Dep't

of Health & Rehab. Svcs. , 348 So. 2d 349 (Fla. 1st DCA 1977).

However, here it is not the exemption that is at issue, because

the parties have stipulated to the ownership of the animals. It

is the exceptions to the exemption, which would bring

Respondent's behavior within the confines of chapter 474, and

must be interpreted by the same standards as the disciplinary

provisions themselves.

COPIES FURNISHED:

William M. Furl ow, III, Esquire

Grossman, Furlow & Bayo, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

Elizabeth F. Henderson, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Juanita Chastain, Director

Board of Veterinary Medicine

Depart ment of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee , Florida 32399 - 0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIO NS

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.