Initial Brief - Fourth District Court of Appeal

E-Copy Received Jan 16, 2014 4:52 PM
STATE OF FLORIDA
FOURTH DISTRICT COURT OF APPEAL
DCA Case No. 4D13-4093
DBPR Case No. 2012-046327
JAMIE DeROIN, D.V.M.,
Appellant,
vs.
STATE OF FLORIDA, DEPARTMENT OF
BUSINESS AND PROFESSIONAL REGULATION,
BOARD OF VETERINARY MEDICINE,
Appellee.
____________________________________________/
INITIAL BRIEF OF THE APPELLANT,
JAMIE DeROIN, D.V.M.
David S. Romanik
Florida Bar Number 212199
DAVID S. ROMANIK, P.A.
P.O. Box 650
Oxford, Florida 34484
Telephone: 954/610-4441
Email: [email protected]
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS
i
CITATIONS OF AUTHORITY
ii-viii
STATEMENT OF THE FACTS AND THE CASE
1-6
STANDARD OF REVIEW
7-8
SUMMARY OF THE ARGUMENT
9-10
ARGUMENT
11-50
I.
The Entry of the PMW Ruling is not a violation of §474.214(1)
11-34
II.
DeRoin’s timely request for a Formal Hearing under
§120.57(1) was improperly denied
34-44
III. The Penalty imposed on DeRoin improperly exceeds the
applicable Penalty Guidelines
44-48
IV. Requests for Attorneys’ Fees
48-49
CONCLUSION
.
CERTIFICATE OF SERVICE
50
CERTIFICATE OF COMPLIANCE
i CITATION OF AUTHORITIES
CASE
PAGE
Agency for Health Care Administration v.
Associated Industries of Florida, Inc.,
678 So.2d 1239, 1251 (Fla. 1996)
30
Aleong v. State, Department of Business and
Professional Regulation,
963 So.2d 799 (Fla. 4th DCA 2007)
23, 47
Bach v. Florida State Board of Dentistry,
378 So.2d 34 (Fla. 1st DCA 1979)
19
Bajrani v. Department of Business Regulation,
Division of Alcoholic Beverages and Tobacco,
561 So.2d 410, 415 (Fla. 5th DCA 1990)
32
Bell Atlantic Business Systems, Inc. v. Florida Department of Labor
and Employment Security,
677 So.2d 989 (Fla. 1st DCA 1996)
Board of Optometry v. Florida Society of Ophthalmology,
538 So.2d 878 (Fla. 1st DCA 1988)
Bowling v. Department of Insurance,
394 So.2d 165 (Fla. 1st DCA 1981)
43
12, 16, 31, 40, 46
Breesman v. Department of Professional Regulation,
Board of Medicine,
567 So.2d 469 (Fla. 1st DCA 1990)
Brown v. State, Dep’t of Corrections,
701 So.2d 1211 (Fla. 1st DCA 1997)
19
7, 8, 49
Department of Business and Professional Regulation v.
Calder Race Course, Inc.,
724 So.2d 100 (Fla. 1st DCA 1998)
29, 31
ii 40
CITATION OF AUTHORITIES CONTINUED
CASE
PAGE
Department of General Services v. Willis,
344 So.2d 580, 592 Fla. 1st DCA 1977)
43
Capeletti Brothers, Inc. v. State, Department of Transportation,
362 So.2d 346 (Fla. 1st DCA 1978)
33
Capital National Financial Corporation v. Department of Insurance
and Treasurer,
690 So.2d 1335 (Fla. 3d DCA 1997)
8, 20, 24, 31, 47
Community Health Charities of Florida v. State,
Department of Management Services,
961 So.2d 372 (Fla. 1st DCA 2007)
Cone v. State, Department of Health,
886 So.2d 1007 (Fla. 1st DCA 2004)
43
14, 15, 17, 20, 49
Debary Real Estate Holdings, LLC v. Department of Business
and Professional Regulation,
Case No. 1D12-1654 (Fla. 1st DCA May 10, 2013)
Department of Banking and Finance v. Osborne Stern and Company,
670 So.2d 932, 935 (Fla. 1996)
Doyle v. Department of Business Regulation,
794 So.2d 686, 690 (Fla. 1st DCA 2001)
Elmariah v. Department of Professional Regulation,
Board of Medicine,
574 So.2d 164 (Fla. 1st DCA 1990)
Fernandez v. Florida Department of Health, Board of Nursing,
82 So.3d 1202 (Fla. 4th DCA 2012)
Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)
iii 7
12
8
7, 19
47, 48
8
CITATION OF AUTHORITIES CONTINUED
CASE
PAGE
Ft. Myers Real Estate Holdings, LLC v. Department of Business
and Professional Regulation,
53 So.3d 1158 (Fla. 1st DCA 2011)
8, 39, 42
Fox v. Florida State Board of Osteopathic Medical Examiners,
366 So.2d 515 (Fla. 1st DCA 1979)
19
Higgins v. Florida Keys Aqueduct Authority,
403 So.2d 1042 (Fla. 3d DCA 1981)
29
Hollis v. Department of Business and Professional,
982 So.2d 1237 (Fla. 5th DCA 2008)
36
Iazzo v. Department of Professional Regulation,
Board of Psychological Examiners,
638 So.2d 583 (Fla. 1st DCA 1994)
36
Lee v. Department of Highway Safety,
4 So.3d 754 (Fla. 1st DCA 2009)
37, 38, 41
Lester v. Department of Professional and Occupational Regulations,
State Board of Medical Examiners,
348 So.2d 923 (Fla. 1st DCA 1977)
8, 18, 19, 20, 26, 33, 46
Machules v. Department of Administration,
523 So.2d 1132 (Fla. 1988)
Marrerro v. Department of Professional Regulation,
Board of Psychological Examiners,
622 So.2d 1109 (Fla. 1st DCA 1993)
McDonald v. Department of Professional Regulation,
Board of Pilot Commissioners,
582 So.2d 660 (Fla. 1st DCA 1991)
iv 33, 50
23
12, 38, 41
CITATION OF AUTHORITIES CONTINUED
CASE
PAGE
Myers v. State,
696 So.2d 893 (Fla. 4th DCA 1997)
(rev’d on others grounds 713 So.2d 1013 (Fla. 1998))
Ocampo v. Department of Health,
806 So.2d 633 (Fla. 1st DCA 2002)
21, 23
11, 20, 25, 26, 27, 49
PPI, Inc. v. Department of Business & Professional Regulation,
Division of Pari-Mutuel Wagering,
698 So.2d 306 (Fla. 3d DCA 1997)
Pro Tech Monitoring, Inc. v. State, Department of Corrections,
72 So.3d 277 (Fla. 1st DCA 2011)
40
32, 34, 36
St. Petersburg Kennel Club v. Department of Business & Professional
Regulation, Division of Pari-Mutuel Wagering,
719 So.2d 1210 (Fla. 2d DCA 1998)
40
State ex rel. Jordan v. Pattishal,
99 Fla. 296, 126 So. 147 (1930)
17
State ex rel. Vining v. Florida Real Estate Commission,
281 So.2d 487(Fla. 1973)
12
Strax Rejuvenation and Aesthetic Institute, Inc. v. Shields,
49 So.3d 741 (Fla. 2010)
33
Summer Jai Alai Partners v. Department of Business &
Professional Regulation, Division of Pari-Mutuel Wagering,
Case No. 3D13-395 (Fla. 3d DCA October 9, 2013)
40
Symons v. State, Department of Banking and Finance,
490 So.2d 1322 (Fla. 1st DCA 1986)
29
v CITATION OF AUTHORITIES CONTINUED
CASE
PAGE
Taylor v. Department of Professional Regulation,
Board of Medical Examiners,
534 So.2d 782, 784 (Fla. 1st DCA 1988)
14, 19
Totura v. Department of State, Division of Licensing,
553 So.2d 272 (Fla. 1st DCA 1989)
36
Tri-City Systems, Inc. v. DOT,
500 So.2d 212 (Fla. 1st DCA 1986)
30
Turner v. Department of Professional Regulation,
591 So.2d 1136 (Fla. 4th DCA 1992)
46
United Health, Inc. v. HRS,
579 So.2d 342 (Fla. 1st DCA 1991)
43
United Wisconsin Life Insurance Company v.
Florida Department of Insurance,
831 So.2d 239 (Fla. 1st DCA 2002)
44
Weintraub v. Alter,
482 So.2d 454 (Fla. 3d DCA 1986)
34
FLORIDA STATUTES
Chapter 459
Chapter 474
Chapter 550
§57.105
§57.111
§57.111(4)
§120.52(9)
§120.56
§120.56(4)
§120.57
§120.57(1)
14
25, 46
40
4, 10, 48, 49
4, 5, 10, 48, 49
48
21
44
41, 42, 43
42, 43, 44
34, 42
vi CITATION OF AUTHORITIES CONTINUED
FLORIDA STATUTES
PAGE
§120.57(1)(e)1
4, 10, 41, 43, 44
§120.57(2)
42
§120.595
49
§120.595(6)
49
§120.68(7)(d)
7
§455.2273(a)
22, 44
§455.2273(c)
6, 44, 47
§456.072(1)
14
§455.072(1)(f)
14, 15
§458.305(3)
21
§458.311-.313
26
§458.331(1)
20
§458.331(1)(b)
20, 21
§458.1201(1)(m)
18
§459.015(2)
14
§474.207
10, 25, 40, 44
§474.214
9, 10, 14, 21
§474.214(1)
11
§474.214(1)(b) 3, 4, 5, 9, 11, 12, 13, 15, 16, 17, 21, 22, 24, 26, 28, 39, 41, 45
§474.214(1)(jj)
4, 5, 9, 10, 11, 27, 28, 29, 30, 31, 32, 35, 38, 41, 45
§474.214(2)
6, 46, 47
§550.105(2)(a)2
1, 24, 25
§550.105(10)
25
FLORIDA ADMINISTRATIVE RULES
Rule 61D-3.001(1)-(18)
Rule 61D-3.001(14)
Rule 61G18-30.001(2)(b)
Rule 61G18-30.001(2)(jj)
3
3, 27, 30
9, 22, 23, 26, 45
45
OTHER SOURCE MATERIAL
The Free Online Dictionary
21
Gard, Florida Evidence 2nd Ed., Rule 15.03 (1980)
37
vii CITATION OF AUTHORITIES CONTINUED
OTHER SOURCE MATERIAL
PAGE
Moore’s Federal Practice, 2d Ed., Volume 11 §902.02 (1989)
37
Webster’s Dictionary, 2nd Edition
21
viii STATEMENT OF THE FACTS AND THE CASE
The Appellant, Jamie DeRoin, D.V.M. (“DeRoin”), a resident of Broward
County, is the holder of a license issued to her by the Respondent that authorizes
DeRoin to engage in the practice of veterinary medicine in the State of Florida.
The Appellee, Department of Business and Professional Regulation,
Board of Veterinary Medicine (the “Vet Board”), is the agency that regulates
the practice of veterinary medicine under Chapter 474, Fla. Stat. (2013).1
Because DeRoin’s patients are primary race horses that are stabled at horse
tracks regulated by another subagency of the Department of Business and
Professional Regulation, the Division of Pari-Mutuel Wagering (“PMW”), DeRoin
also holds an occupational license issued by the PMW as provided in
§550.105(2)(a)2. The PMW license is required for DeRoin to access the restricted
areas of the racetracks where the horses are kept. Id.
This is an appeal from a final order (the “Final Order”) entered by the Vet
Board on October 17, 2013 imposing discipline on DeRoin’s veterinary license
following an informal hearing held before the Vet Board on September 4, 2013.
1
Unless otherwise indicated, all references to the Florida Statutes shall refer to the
2013 edition published by the Statutory Revision Commission. Citations to the
Record on Appeal will be indicated as “R:” or “(R:)” followed by the appropriate
page number. Citations to the transcript of the proceeding held before the Vet
Board on September 4, 2013 will be indicated by reference to the appropriate page
number of the Record on Appeal.
1 The informal hearing occurred over the objection of DeRoin who asserted then and
continues to assert that there are disputed issues of fact and asserted unadopted rule
challenges that required the referral of this proceeding to DOAH. R: 156, 157.
DeRoin’s first interaction with the Vet Board regarding the matters that have
ultimately resulted in this appeal occurred on or about November 13, 2012 when
DeRoin received a letter from an investigator employed by the Department of
Business and Professional Regulation.2 R: 58. In the letter, DeRoin was asked to
explain why she had not self-reported to the Vet Board a ruling that had been
entered against DeRoin by PMW on September 22, 2012 (the “PMW Ruling”) (R:
64) within 30 days as required by §474.214(1)(jj). DeRoin responded to the
investigator’s letter, explaining that while she had participated in a PMW hearing
on September 22, 2012, she was first provided with a copy of the PMW Ruling on
November 9, 2012; and that she had been “waiting for the official written ruling
from the Calder stewards” before reporting it. R: 54, 55.
Although DBPR investigators also work PMW cases, the investigation
report (R. 52-64) does not indicate that the investigator took the obvious next
step—to speak with the PMW state steward who DeRoin indicated had presided at
DeRoin’s PMW hearing, Kevin Scheen (R: 54, 55), to see if indeed PMW had
2
The Department of Business and Professional Regulation (“DBPR”) apparently
serves as the prosecuting agency in disciplinary action before the Vet Board. To
avoid confusion, DBPR, in its role as the prosecution agency, will be referred to as
“the prosecution”.
2 failed to provide DeRoin a copy of the ruling until November 9, 2013. See Rule
61D-3.001(1)-(18) regarding the mandatory procedures in PMW stewards’
hearings.3 Furthermore, the fact that DeRoin’s statement indicating that she had
not received an official copy of the ruling until at least 18 days after expiration of
the 30-day period (as DBPR had calculated the period) apparently did not raise any
due process or fair treatment concern to the investigator or to the prosecutor
handling the file or to the probable cause panel that recommended prosecution—
although DeRoin does not comprehend that a fundamental right such as the receipt
of due and proper notice could have gone unrecognized by a trained investigator
and an experience administrative law lawyer and by members of a state level
regulatory board.
On August 1, 2013, the prosecution filed the operative administrative
complaint, captioned Corrected Administrative Complaint (the “Corrected AC”).
R: 13-17. The Corrected AC attempts but fails to properly charge DeRoin with
violating either §474.214(1)(b)4 on account of the entry of the PMW Ruling or
3
Rule 61D-3.001(14) concerns service of orders and provides that “[s]ervice shall
be made upon the respondent or his representatives by delivering a copy or by
mailing it to the last known address.” A public records request made by DeRoin is
included in the Record at R: 110-117 and it confirms that PMW’s file contained no
evidence of service by mail and no evidence that any attempt was made.
4
Section 474.214(1)(b) provides that a veterinarian is in violation for: “[h]aving a
license or the authority to practice veterinary medicine revoked, suspended,
or otherwise acted against, including the denial of licensure, by the licensing
authority of any jurisdiction, including any agency or subdivision thereof.”
3 §474.214(1)(jj)5 on account of the failure to timely self-report the PMW Ruling.
On August 13, 2013, DeRoin filed a response to the Corrected AC in which she
denied two of the three material factual allegations of the charges against her,
asserted affirmative defenses, asserted unadopted rule challenges under
§120.57(1)(e)1 and made a claim for attorneys’ fees under §57.111. R: 65. DeRoin
had also previously filed a Motion for Sanctions under §57.105 (R: 103), but
DBPR declined in writing to withdraw the offending pleading identified in the
Motion for Sanctions—being the Corrected AC. R: 122.
Disregarding that DeRoin’s answer clearly denies the authenticity of the
PMW Ruling and disputes the fact that PMW is “the licensing authority”
mentioned in §474.214(1)(b), DBPR summarily denied DeRoin’s request for a
formal hearing. R: 25. The notification denying DeRoin’s request for a formal
hearing did not indicate the basis upon which the prosecution unilaterally
determined there no disputed issues of material facts when disputed factual issues
were identified in DeRoin’s response to the Corrected AC. Id. It was not until the
informal hearing (R: 159-161) that the prosecutor explained her legal theory that
the facts disputed by DeRoin in her answer were “undisputable” by DeRoin as a
5
Section 474.214(1)(jj) provides that a veterinarian is in violation for: “[f]ailing to
report to the board within 30 days, in writing, any action set forth in
paragraph (b) that has been taken against the practitioner’s license to practice
veterinary medicine by any jurisdiction, including any agency or subdivision
thereof.”
4 matter of law because: (i) prior undisclosed decisions of the Vet Board
conclusively establishes that PMW is “a licensing jurisdiction” for the purposes of
§474.214(1)(b); and (ii) the fact that the PMW Ruling is a self-authenticating
document conclusively establishes that the PMW Ruling was authentic and
therefore executed on September 22, 2012. The Vet Board’s quick ratification of
these two conclusive presumptions rendered the informal hearing a sham, a fait
accompli. The fairness of this proceeding was certainly impaired by this procedure
that allowed DBPR to rely on these presumptions to conclusively prove the
existence of the required elements of the violation—yet deprive DeRoin of any
opportunity to rebut either presumption.
Before the informal hearing, DeRoin filed an affidavit in this proceeding in
which she states that she was not in receipt of the PMW Ruling before November
9, 2013; that DeRoin had informed the prosecution of the date she first received the
PMW Ruling well before the decision was made to prosecute her; that the Vet
Board was aware that its construction of §474.214(1)(jj) meant that DeRoin was in
violation before PMW provided her with a copy of the PMW Ruling; and that
DeRoin qualifies for equal access to justice under §57.111. R: 86-88.
The Vet Board held its informal hearing on the Corrected AC on September
4, 2013. The transcript of the hearing is found in the Record on Appeal at R: 145252. Because of the conclusive effect accorded the two presumptions just
mentioned, the prosecutor offered no evidence to establish that PMW is “the
5 licensing authority” within the statute, no evidence to establish that the PMW
Ruling was served on DeRoin and no evidence to establish the actual date that the
PMW Ruling was executed. DeRoin was found in violation of both charges.
The penalty imposed included an administrative fine of $1,000.00 and the
requirement that DeRoin re-take and pass the “Laws and Rules” part of the Vet
Board entrance examination. R: 236-7; 255-6. The Vet Board did not make any
findings about aggravating circumstances that §455.2273(c) requires be made
before a penalty in excess of the penalty guideline is imposed. In fact, the
members specifically indicated that probation was not needed here because this
incident was DeRoin’s first offense. R: 230. While the monetary fine appears to be
with the applicable guideline, the re-examination requirement is not an authorized
penalty that the Vet Board can impose under §474.214(2,) but in any event reexamination is an upward deviation from the penalty guidelines for which no
finding of aggravating circumstances was made.
On October 17, 2013, the Final Order was filed with the Agency Clerk. R:
253-8.
On November 7, 2013, this appeal was initiated. On December 3, 2013, this
Court stayed the enforcement of that part of the Final Order that required reexamination until after that issue is resolved in this appeal.
6 STANDARD OF REVIEW
Review of statutory or rule interpretation is de novo. §120.68(7)(d). By the
terms of the statute, an appellate court need only determine that the agency made a
legal error and that the error was one that affected the outcome of the case in order
to set aside agency action. Brown v. State, Commission on Ethics, 969 So.2d 553
(Fla. 1st DCA 2007).
A recognized limitation on an appellate court’s de novo review under
§120.68(7)(d) arises when the agency interprets a statute it administers or a rule it
has adopted. In such circumstances, the case law requires the appellate court to
show deference to the agency’s interpretation unless clearly erroneous or
unauthorized. Debary Real Estate Holdings, LLC v. Department of Business and
Professional Regulation, Case No. 1D12-1654 (Fla. 1st DCA May 10, 2013).
A recognized exception to the requirement that the appellate court show
deference to the agency’s statutory or rule interpretation is in a disciplinary
proceeding in which the statutes or the rules interpreted by the agency authorize
sanctions or penalties against a professional license. Elmariah v. Department of
Professional Regulation, Board of Medicine, 574 So.2d 164 (Fla. 1st DCA 1990).
Because disciplinary sanctions and penalties imposed against a professional license
are penal in nature, the appellate courts must strictly construe the statutes and rules
providing for disciplinary penalties, with any ambiguity resolved against the
agency and in favor of the licensee. Lester v. Department of Professional and
7 Occupational Regulations, State Board of Medical Examiners, 348 So.2d 923 (Fla.
1st DCA 1977); Capital National Financial Corporation v. Department of
Insurance and Treasurer, 690 So.2d 1335 (Fla. 3d DCA 1997).
Another exception to the general rule of deference is when the interpretation
of the statute or the rule does not require special agency’s expertise. Doyle v.
Department of Business Regulation, 794 So.2d 686, 690 (Fla. 1st DCA 2001). A
recognized circumstance outside of an agency’s special expertise is an agency’s
interpretation of general provisions of administrative law. Ft. Myers Real Estate
Holdings, LLC v. Department of Business and Professional Regulation, 53 So.3d
1158, 1161 (Fla. 1st DCA 2011). Another recognized circumstance is when the
statute interpreted is an attorneys’ fees statute. Brown, supra at 557. In
circumstances when deference to the agency’s interpretation is not required, the
standard of review is de novo. §120.68(7)(d); Brown, supra at 557.
Review of the agency’s findings of fact is whether the findings are supported
by “clearing and convincing evidence”. Ferris v. Turlington, 510 So.2d 292 (Fla.
1987).
8 SUMMARY OF THE ARGUMENT
In proceedings of this nature when the disciplinary statute provides grounds
for the revocation or other discipline on a professional license, the provisions of
the statute must be strictly construed and strictly followed. This rule requires that
not only must the disciplinary statute (§474.214 in the case at bar) be strictly
construed to include within the statute’s proscription only those matters clearly
embraced within its terms, but that the charging document must also properly
allege all of the essential elements of a violation.
No violation of either §474.214(1)(b) of §474.214(1)(jj) was been properly
alleged. Furthermore, the provisions of §474.214(1)(b) show that PMW is not
clearly identified as “the licensing authority” that licenses or otherwise authorizes
the practice of veterinarian medicine in Florida; and in fact, the proper construction
of the phrase “the licensing authority” utilizing dictionary definitions of the
meaning of the article “the” and the Vet Board’s own interpretation of the meaning
of that phrase set forth in its Rule 61G18-30.001(2)(b) support DeRoin’s
contention that PMW is not “the licensing authority”.
The rule of strict construction also requires that this Court set aside the Vet
Board’s legal conclusion that commencement date of the 30-day period of selfreporting under §474.214(1)(jj) is the date the ruling was entered as reflected on
the face of the ruling irrespective of when the ruling was properly served upon
veterinarian subject to the duty to self-report. The effect of this determination is
9 that DeRoin was already in violation of §474.214(1)(jj) before the PMW Ruling
was ever provided to her—a result that violates DeRoin’s right to due process.
The Vet Board also failed to grant to DeRoin a formal hearing
notwithstanding that DeRoin’s answer denied the material allegations of the
Corrected AC. The stated justification for the denial of the formal hearing, viz.,
that the material allegations of the Corrected AC were rendered “undisputable” by
DeRoin through the operation of two conclusive presumptions, is a gross
misapplication of fundamental principles of administrative law as to amount to a
gross abuse of discretion.
DeRoin’s response also asserted an unadopted rule challenge under
§120.57(1)(e)1 directed to the allegations of the Corrected AC that required the
Vet Board to automatically refer the Corrected AC to DOAH.
The Vet Board’s imposition of the penalty requiring DeRoin to re-take and
pass the Laws and Rules part of the Vet Board entrance exam (see §474.207) is not
a penalty authorized under the applicable penalty guidelines or under §474.214(2);
or if authorized as a penalty enhancement because of aggravating circumstances, is
nevertheless an improper upward deviation of the penalty guidelines because of a
lack of the specific findings required before such a deviation can be imposed.
DeRoin renews her prior motion for sanctions/attorneys’ fees under §57.105
and, to the extent necessary to preserve DeRoin’s right to fees under §57.111,
DeRoin renews that fee request as well.
10 ARGUMENT
I. THE ENTRY OF THE PMW RULING IS NOT A VIOLATION OF
§474.214(1)
The common elements of the two (2) subsections of §474.214(1) that the
Corrected AC alleges DeRoin violated is that there was action taken against
DeRoin’s “license or the authority to practice veterinary medicine” by “the
licensing authority of any jurisdiction, including any agency or subdivision
thereof.” See §474.214(1)(b) and §474.214(1)(jj). Because of the interrelationship
between the two disciplinary statutes, the prosecutor and counsel for the Vet Board
acknowledged that a determination that PMW is NOT “the licensing authority” for
the purposes of §474.214(1)(b) is dispositive of both counts of the Corrected AC in
favor of DeRoin. R: 182. Accord, Ocampo v. Department of Health, 806 So.2d
633 (Fla. 1st DCA 2002).
A. The Corrected AC fails to properly charge DeRoin with a violation of
§474.214(1)(b)
As will be discussed in Article I (B) of this brief, application of the rule of
strict construction, particularly the requirement that all ambiguities regarding the
inclusion of PMW as an agency within the ambit of §474.214(1)(b) must be
construed in favor of non-inclusion, compels the conclusion that PMW cannot be
considered “the licensing authority” for the purposes of either §474.214(1)(b) or
§474.214(1)(jj). Separate from that argument, however, is that there are
procedures applicable to administrative disciplinary proceedings that require that:
11 “…. the moving agency must set forth the charges against the
licensee with specificity, carry the burden of proving each specific
charge and set forth in the final order explicit findings of fact and
conclusions of law addressing each specific charge.”
McDonald v. Department of Professional Regulation, Board of Pilot
Commissioners, 582 So.2d 660, 670-1 (Fla. 1st DCA 1991)(concurring opinion of
J. Zehmer).
Consistent with the prosecution of other penal statutes, the burden is on the
prosecution to allege in the administrative complaint every essential element of the
violation and to prove that the licensee violated every essential element by a record
foundation of evidence. State ex rel. Vining v. Florida Real Estate Commission,
281 So.2d 487, 492 (Fla. 1973); Bowling v. Department of Insurance, 394 So.2d
165, 170-1 (Fla. 1st DCA 1981); and Department of Banking and Finance v.
Osborne Stern and Company, 670 So.2d 932, 935 (Fla. 1996).
Section 474.214(1)(b) provides in relevant part as follows:
(1) The following acts shall constitute grounds for which the
disciplinary actions in subsection (2) may be taken:
(b) Having a license or the authority to practice veterinary
medicine revoked, suspended, or otherwise acted against,
including the denial of licensure, by the licensing authority
of any jurisdiction, including any agency or subdivision thereof.
Accordingly, the two essential elements of a violation under §474.214(1)(b)
are: (1) the veterinarian’s license or the authority to practice veterinary medicine
has been acted against; and (2) the action against the veterinarian’s license or the
12 authority to practice veterinary medicine was taken by the licensing authority of
any jurisdiction, including any agency or subdivision thereof.
Under the cited case law, the burden squarely rests with the prosecution to
allege with specificity both of the essential elements of the alleged violation of
§474.214(1)(b). A review of the Corrected AC shows that neither of the two
essential elements of a violation under §474.214(1)(b) are specifically or properly
pled. In paragraphs 4 and 9, the Corrected AC alleges that PMW entered a ruling
against DeRoin. In paragraph 10, the Corrected AC alleges that DeRoin “violated
Section 474.214(1)(b), Florida Statutes (2012), by being guilty of being disciplined
by another agency.” These allegations simply lack the precision and specificity
required by the case law in administrative disciplinary proceedings. There is no
allegation in the Corrected AC that the PMW Ruling “revoked, suspended, or
otherwise acted against a license or the authority to practice veterinary medicine.”
Furthermore, the Corrected AC does not contain any allegation whatsoever that
PMW is “the licensing authority” for the purposes of §474.214(1)(b). The
allegation that DeRoin was “disciplined by another agency” completely misses the
mark because the only rulings that can cause a violation of §474.214(1)(b) are
rulings that are issued by “the licensing agency” that licenses or authorizes the
practice of veterinary medicine.6
6
The Department of Highway Safety and Motor Vehicles, for example, is “another
agency” that might have occasion to discipline most every veterinarian.
13 Because §474.214 provides grounds for the revocation of DeRoin’s
professional license, the provision of that statute must be strictly construed and
strictly followed. Taylor v. Department of Professional Regulation, Board of
Medical Examiners, 534 So.2d 782, 784 (Fla. 1st DCA 1988). Accordingly, the
prosecution’s failure to properly allege all of the essential elements of a violation
under §474.214(1)(b) requires dismissal of the Corrected AC. Cone v. State,
Department of Health, 886 So.2d 1007, 1012 (Fla. 1st DCA 2004).
In Cone, the licensee held a license in Florida to practice osteopathic
medicine. A disciplinary proceeding was initiated after a license held by Dr. Cone
to practice allopathic medicine in the state of California was revoked. Because the
parallel disciplinary statute in Chapter 459 to §474.214(1)(b) authorized discipline
only when a license or the authority to practice osteopathic medicine is acted
against, the Board sought revocation under §459.015(2), which subsection
authorized the Board to seek discipline against an osteopathic physician for a
violation of any provision of §456.072(1).7 Id. at 1010. Section 456.072(1)(f) was
the operative subsection and it provided as follows:
(1) The following acts shall constitute grounds for which the
disciplinary actions in subsection (2) may be taken:
(f) Having a license or the authority to practice any regulated
profession revoked, suspended, or otherwise acted against,
7
Section 456.072 is the general disciplinary statute applicable to all health care
professions including osteopathic physicians.
14 including the denial of licensure, by the licensing authority of any
jurisdiction, including its agencies or subdivisions, for a violation
that would constitute a violation under Florida law.
The court dismissed the count asserting a violation under §456.072(1)(f) for
not charging a violation because the administrative complaint failed to specially
allege, as required by §456.072(1)(f), that Dr. Cone’s California medical license
“was revoked, suspended, or otherwise acted against, by the licensing authority of
any jurisdiction for a violation that would constitute a violation under Florida law.”
Id. at 1012. Although §474.214(1)(b) does not contain a similar proviso regarding
a violation of Florida law, application of the rationale in Cone nonetheless requires
dismissal of the Corrected AC because the allegations clearly fail to allege with
specificity the two essential elements of a violation under §474.214(1)(b).
When confronted with the argument that the prosecution had the burden of
pleading and proving all of the essential elements of the violation, the prosecutor
made the incredible argument at R: 182-183 that no such pleading or proof was
necessary in this proceeding because the Vet Board has previously disciplined
other veterinarians for actions taken by PMW. Essentially, the prosecutor’s
position was that prior undisclosed decisions of the Vet Board entitled the Vet
Board to conclusively presume PMW’s status as “the licensing authority” as a
matter of law without the necessity of pleading or proving PMW’s status as “the
licensing authority”. Also see the discussion on the improper affect the
presumption had on this proceeding in Article II (C), infra.
15 The First District rejected the same argument in Bowling v. Department of
Insurance, supra. In Bowling, an element of the alleged violation of the insurance
code was that Bowling’s agency had failed to forward premiums to the carrier in
the “applicable course of business.” Neither the statute nor the agency’s rules
defined this term. In its unsuccessful attempt to defend the discipline it had
imposed on Bowling, the Department argued that the applicable course of business
for an agent’s handling of premiums had been “established” for the purposes of the
proceeding against Bowling in the Department’s final order in a prior disciplinary
proceeding.8 The First District held that the agency’s determination of that issue in
the prior disciplinary proceeding had “no probative or precedential value whatever
in this case.” 394 So.2d at 174. In fact, as DeRoin asserted in her response to the
Corrected AC, the court in Bowling suggested that the agency’s uniform
application of this policy indicates that the policy may be an unadopted rule.9
8
Unlike here, it appears that the prior disciplinary order the agency relied on in
Bowling was made part of the record.
9
The colloquy between the Vet Board’s counsel and Board Member Helm at R:
223 (lines 16-24) echoes precisely what the First District stated in Bowling with
regard to precedential value of prior agency disciplinary orders while
simultaneously negating the prosecutor’s contention that the Board was entitled to
rely its prior orders to establish a necessary element of the alleged violation:
Dr. Helm: *** It’s been customary for the whole time that I’ve been on this board
that whatever the fine was is exactly what we do.
Mr. Jennings: Madam Chair, may I quickly remind you that what is customary—
precedential value is nil. And if you’re telling me that it’s an absolute slam dunk,
you do that every single time then that qualifies as a rule, I’m certain you’re not
telling me that.
16 Because the Corrected AC does not specifically and precisely allege all of
the essential elements of DeRoin’s alleged violation of §474.214(1)(b), the
Corrected AC does not state a charge against DeRoin and therefore must be
dismissed. Cone.
B. The Vet Board’s legal conclusion that the PMW Ruling is a violation of
§474.214(1)(b) is clearly erroneous
In the “Conclusions of Law” section of the Final Order, the Vet Board
determined as a matter of law that the entry of the PMW Ruling was a violation of
§474.214(1)(b). R: 255. DeRoin suggests that the narrow reading of
§474.214(1)(b) necessitated by the case law requiring strict construction compels
the determination that the Vet Board’s legal conclusion in this regard is either
erroneous or the provisions of §474.214(1)(b) are sufficiently ambiguous that such
provisions must be construed against the inclusion of the entry of the PMW Ruling
as proscribed conduct under 474.214(1)(b).
(i) Prior precedent
The general rule that the statutes governing professional disciplinary
proceedings “are to be strictly construed and strictly followed” apparently
emanated from the Supreme Court’s decision in an attorney disbarment
proceeding, State ex rel. Jordan v. Pattishal, 99 Fla. 296, 126 So. 147 (1930). The
earliest of the decisions in which an appellate court performed an in-depth analysis
of the rule of strict construction in a professional licensee disciplinary proceeding
17 appears to be the First District’s decision in Lester v. Department of Professional
and Occupational Regulations, State Board of Medical Examiners, 348 So.2d 923
(Fla. 1st DCA 1977).
In Lester, the Board of Medical Examiners filed an administrative complaint
against Dr. Lester, a medical doctor, charging that certain payments received from
a hospital were impermissible rebates or kick-backs, the receipt of which by a
medical doctor the Board claimed was a violation of the disciplinary statute
prohibiting “unprofessional conduct”. The operative disciplinary statute in Lester,
§458.1201(1)(m), provided that a physician’s license shall be disciplined for:
(m) Being guilty of immoral or unprofessional conduct,
incompetence, negligence, or willful misconduct. Unprofessional
conduct shall include any departure from, or the failure to
conform to, the standards of acceptable and prevailing medical
practice in his area of expertise as determined by the board, in
which proceeding actual injury to a patient need not be established;
when the same is committed in the course of his practice, whether
committed within or without this state.
The court viewed the issue before it as whether the acceptance of rebates or
kick-backs is condemned unprofessional conduct as that term is defined by
§458.1201(1)(m). The court observed that because disciplinary statutes must be
strictly constructed, no conduct is to be considered within the ambit of a statute’s
proscription that is “not clearly included” within the conduct proscribed by the
statute; and that any ambiguity regarding the inclusion of certain conduct as
prohibited conduct “must be construed in favor” of the licensee. Id. at 925.
18 Application of the rule of strict construction led the court in Lester to
determine that the alleged conduct was not unprofessional conduct within the
statutory definition. In this regard, the court noted that: (a) nowhere in
§458.1201(1)(m) is the acceptance of rebates prohibited or declared to be
unprofessional conduct; (b) the definition of “unprofessional conduct” in
§458.1201(1)(m) only proscribes poor medical practice when measured against the
prevailing standard of acceptable medical practice; and (c) if the legislature had
desired to include the acceptance of rebates or kick-backs within the term
“unprofessional conduct”, it could have easily done so. Id. at 926. The court
concluded its analysis by stating that:
“It is beyond the function and power of this court to read into
a statute a proscription not clearly or by reasonable implication
included therein.” Id. at 926.
The principles of law established in Lester have been consistently followed
in later appellate court decisions in which a regulatory agency has attempted to
discipline a professional licensee for conduct not expressly prohibited by the
specific words of the disciplinary statute under which the licensee was charged.10
10
The following cases are representative of the many decisions that have applied
the rule of strict construction in professional licensee disciplinary hearings: (a)
Fox v. Florida State Board of Osteopathic Medical Examiners, 366 So.2d 515 (Fla.
1st DCA 1979) (b) Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st
DCA 1979); (c) Taylor v. Department of Professional Regulation, Board of
Medical Examiners, 534 So.2d 782 (Fla. 1st DCA 1988) (d) Breesman v.
Department of Professional Regulation, Board of Medicine, 567 So.2d 469 (Fla. 1st
DCA 1990); (e) Elmariah v. Department of Professional Regulation, Board of
19 Of the decisions cited in Footnote 10, the fact pattern most similar to this
case is found in the First District’s decision in Ocampo v. Department of Health,
806 So.2d 633 (Fla. 1st DCA 2002). In Ocampo, the Department imposed
discipline on Dr. Ocampo, a medical doctor, after the federal government issued a
ruling excluding Dr. Ocampo from participating in federal health care programs.
The operative disciplinary statute was §458.331(1)(b), the parallel disciplinary
statute in the medical practice code to §474.214(1)(b). Section 458.331(1)(b)
provides that it is a violation of §458.331(1) whenever a medical doctor has
“ a license or the authority to practice medicine [is] revoked,
suspended, or otherwise acted against, including the denial
of licensure, by the licensing authority of any jurisdiction,
including its agencies or subdivisions.”
Dr. Ocampo successful argued on appeal that the ruling of the federal
government did not act against his license or his authority to practice medicine and
that the federal government in any event was not “the licensing authority” for the
purposes of §458.331(1)(b). In applying Lester’s rule of strict construction, the
court stated:
“A plain reading of the statute at issue reveals the Board's
determination that Ocampo's exclusion from all federal health
care programs violates §458.331(1)(b), Florida Statutes
(1999), is clearly erroneous. First, DOH does not dispute that
Medicine, 574 So.2d 164 (Fla. 1st DCA 1990); (f) Capital National Financial
Corporation v. Department of Insurance and Treasurer, 690 So.2d 1335 (Fla. 3d
DCA 1997); (g) Ocampo v. Department of Health, 806 So.2d 633 (Fla. 1st DCA
2002); and (h) Cone v. State, Department of Health, 886 So.2d 1007 (Fla. 1st DCA
2004).
20 the only privilege taken away from Ocampo by his exclusion from
federal health care programs is the entitlement to bill the federal
government, which is not included in Florida's definition of the
"practice of medicine." § 458.305(3), Fla. Stat. (1999). Thus,
Ocampo still has the same authority to practice medicine as
he did prior to the exclusion. While it may affect Ocampo's
ability to practice medicine because some patients will most
likely be forced to go elsewhere, it does not affect his authority.
Further, DOH does not dispute that a Medicare provider
number is not a license pursuant to §120.52(9), Florida
Statutes (1999). Thus, while the federal government may be a
licensing authority for certain purposes, it is not "the" licensing
authority for purposes of §458.331(1)(b), Florida Statutes
(1999), because it has not licensed Ocampo. Id. at 635.
(ii) Analysis
The rule of strict construction emanating from Lester and the other cited
cases requires that disciplinary statutes like §474.214 be construed to include
within the statute’s proscription only those matters clearly embraced within its
terms. By its terms, §474.214(1)(b) does not clearly or specifically identify PMW
as “the licensing authority”. Webster’s says that the definite article “the” limits a
general term to the individual indicated by the succeeding element of the sentence.
The Free Online Dictionary indicated that the article “the” is “used to indicate
uniqueness”, such as “the Prince of Wales” or, in this case, “the licensing
authority”. The foregoing dictionary definitions are consistent with the meaning
ascribed to the article “the” in this Court’s decision in Myers v. State, 696 So.2d
893 (Fla. 4th DCA 1997), rev’d on others grounds 713 So.2d 1013 (Fla. 1998). In
Myers, it was noted that the article “the”, when used before a noun as in
21 §474.214(1)(b), “specifies a definite and specific noun, as opposed to any member
of a class”, whereas the indefinite article “a” has an accepted meaning of “any”.11
Based on a reasonable interpretation arising from the legislature’s use of the
article “the” before the words “licensing authority” would exclude from the reach
of the statutory proscription every agency except the Vet Board and the Vet
Board’s equivalent agency in “other” jurisdictions. This is so because, at least in
Florida, the only agency that the legislature has specifically empowered to
authorize persons to engage in the “practice of veterinary medicine” is the Vet
Board. Chapter 474. Inclusion of PMW as a second “the licensing authority” in
Florida is completely incongruous with the dictionary meaning of the article “the”.
Although §474.214(1)(b) does not contain a definition for the phrase “the
licensing authority”, the Vet Board ascribed a meaning to that phrase when it
adopted the penalty guidelines that §455.2273(a) required it to do. The rule that
establishes the penalty guidelines for §474.214(1)(b) is Rule 61G-30.001(2)(b);
and in the text of the rule, the Vet Board defined the types of rulings that
constituted a violation of §474.214(1)(b) as:
11
A review of the transcript shows that the prosecution almost without fail referred
to PMW as “an agency”, thereby improperly implying to the Vet Board that “any”
agency that issues any kind of license to a veterinarian can be “the licensing
authority” for the purposes of §474.214(1)(b). R: 179; 182-6. Indeed, the Board’
motion finding PMW to be within the purview of the Vet Board “as an agency”.
R: 196
22 “(b) Having a license to practice veterinary medicine revoked,
suspended, or otherwise acted against, including the denial of
licensure, by the licensing authority of another state, territory
or country.”
It is apparent that the text of the Vet Board’s rule creates a further ambiguity
with regard to the meaning of the phrase “the licensing authority” because the text
of the rule is entirely inconsistent with the meaning ascribed to that phrase by the
either the prosecution or by the Vet Board in this proceeding. R: 179-196. That
being said, the text of foregoing rule limiting the ambit of “the licensing authority”
to those “unique” agencies outside the State of Florida with equivalent powers to
the Vet Board to license or otherwise authorize a person to engage in the practice
of veterinary medicine is entirely consistent with the use of the definite article
“the” in the phrase “the licensing authority”. Myers, supra.
It is a well-established principle of administrative law that an agency is
obligated to follow its own rules. Marrerro v. Department of Professional
Regulation, Board of Psychological Examiners, 622 So.2d 1109 (Fla. 1st DCA
1993) (agency bound to comply with its own rules); and Aleong v. State,
Department of Business and Professional Regulation, 963 So.2d 799 (Fla. 4th DCA
2007) (because the Vet Board is required to follow its own rules, deviation by Vet
Board from adopted penalty guidelines improper). Application of this principle to
the specific verbiage in the Vet Board’s Rule 61G-30.001(2)(b) prohibits the Vet
23 Board from extending the scope of “the licensing authority” to which
§474.214(1)(b) applies beyond the Vet Board’s equivalent agency in any other
state, territory or country—and thereby excluding PMW and any ruling made by
PMW against a veterinarian, including the PMW Ruling. Capital National
Financial Corporation v. Department of Insurance and Treasurer, supra (improper
to be extend the reach of penal statutes by construction).
DeRoin also suggests that the decision in Ocampo fully supports the
dismissal of this proceeding. Here, DeRoin holds both a license from the Vet
Board that authorizes her to practice veterinary medicine in Florida and an
occupational license from PMW. The class of occupational license issued by
PMW to veterinarians is set forth in §550.105(2)(a)2; and it is the same class of
occupational license that is issued to any person desiring to have access to the
restricted area of a racetrack where the racing animals are stabled—generally
called the “backside”. The pari-mutuel occupations eligible for licensure under
§550.105(2)(a)2 include, in addition to veterinarians, horse trainers, racing
officials, jockeys, jai alai players, horse and dog owners, medical doctors, nurses,
EMTs and track management.
DeRoin’s PMW license is by no stretch a professional license. DeRoin’s
professional license to practice veterinary medicine was issued to her by the Vet
Board upon a demonstration that she met the statutory requirements of education,
examination, aptitude, ability and integrity to engage in the practice of veterinary
24 medicine. See §474.207. DeRoin’s PMW occupational license was issued to her
because she paid an annual license fee of $40.00 and has not suffered a felony
conviction. §550.105(2(a)2 and (10).
Similar to the role of the federal government in Ocampo, PMW does not
have the authority to grant or deny any veterinarian the authority to practice
veterinary medicine. Inasmuch as DeRoin’s PMW license only allows her access
to the “backside”, it follows that DeRoin’s right of access is the only privilege that
PMW can take from her. Once DeRoin is on the “backside”, DeRoin’s authority to
practice veterinary medicine on her equine patients arises exclusively under the
license DeRoin holds under Chapter 474. The PMW license issued to DeRoin
simply provides DeRoin with the privilege of participating in the pari-mutuel
industry and is a means of assuring minimum protections to the public for horse
racing and wagering against persons previously convicted of certain identified
crimes. Accordingly, the PMW occupational license held by DeRoin, as a matter
of law, is not an independent source of authority for the practice veterinary
medicine by DeRoin. Ocampo.
DeRoin does recognize that in Ocampo the court noted that the federal
government had not licensed Ocampo, thereby possibly distinguishing Ocampo
from this case. However, DeRoin suggests that even if Dr. Ocampo’s Medicare
provider number had been determined to be “a license” that was suspended by the
federal government, that fact should not have resulted in a finding in Ocampo that
25 the federal government was “the licensing authority” for the purposes of
§474.214(1)(b). The issue of secondary licensure did not have to be resolved in
Ocampo. However, from the finding in Ocampo that the federal exclusionary
order did not affect Dr. Ocampo’s authority to practice medicine, it logically
follows that the federal government is legally incapable of granting or denying to
Dr. Ocampo the authority to practice medicine in Florida—as that very specific
privilege can only be granted or denied by the Board of Medicine. §458.311-.313.
With regard to §474.214(1)(b), it is apparent that the legislature did not to
define the statutory phrase “the licensing authority” to specifically include PMW,
the legislature did not specifically include a ruling from PMW as a violation, the
legislature used the definite article “the” in the phrase “the licensing authority”
indicating the unique agency that is empowered by law to authorize a person to
engage in the practice of veterinary medicine and the text of the Vet Board’s Rule
61G18-30.001(2)(b) that specifically excludes as a violation a disciplinary ruling
issued by any Florida regulatory agency like PMW. DeRoin suggests that, under
these circumstances, the Vet Board’s conclusion (R: 196) that PMW is “the
licensing authority” under §474.214(1)(b) is either erroneous or the provisions of
§474.214(1)(b) are sufficiently ambiguous to require this Court to construe those
provisions strictly in favor of the non-inclusion of both PMW and the PMW
Ruling. Lester.
26 C. The Vet Board’s legal conclusion that DeRoin’s failure to self-report the
entry of the PMW Ruling is a violation of §474.214(1)(jj) is clearly erroneous
The Vet Board’s legal conclusion that DeRoin violated §474.214(1)(jj) for
failing to self-report the entry of the PMW Ruling within 30 days after the entry of
the PMW Ruling is also erroneous or the provisions of §474.214(1)(jj) are
sufficiently ambiguous to require that all doubts about whether DeRoin’s failure to
self-report the PMW Ruling within 30 days of its entry is proscribed conduct under
474.214(1)(jj) must be resolved in favor of DeRoin.12
Section 474.214(1)(jj) provides:
“(1) The following acts shall constitute grounds for which the
disciplinary actions in subsection (2) may be taken:
(jj) Failing to report to the board within 30 days, in writing, any
action set forth in paragraph (b) that has been taken against the
practitioner’s license to practice veterinary medicine by any
jurisdiction, including any agency or subdivision thereof.”
The unique factual twist in this proceeding is DeRoin’s assertions that the
PMW never served the PMW Ruling on her as required by law13; and that at the
time PMW provided DeRoin with a copy of the PMW Ruling, DeRoin, according
to the Vet Board, was already in violation of §474.214(1)(jj). R: 159-161.
12
As indicated in Ocampo and as acknowledged by the prosecution, if PMW is not
“the licensing authority” for the purposes of §474.214(1)(b), then the failure to
self-report a ruling issued by an agency that is not the licensing authority is not a
violation of §474.214(1)(jj).
13
PMW Rule 61D-3.001(14).
27 DeRoin’s assertions/statements in this regard are set forth in her answer to the
allegations of the Corrected AC (R: 65) and in her affidavit submitted to the Vet
Board (R: 86).
According to the prosecution, the date upon which DeRoin received the
PMW Ruling is not a relevant factor in a disciplinary proceeding under
§474.214(1)(jj) for the following three reasons:
(1)
DeRoin’s actual knowledge of PMW’s oral ruling on September 22,
2012 was sufficient notice to DeRoin. (R: 161; 164);
(2)
The date on which the written ruling was served on the licensee in the
manner required by law with regard to that ruling is irrelevant because
§474.214(1)(jj) “says” that a ruling to which §474.214(1)(b) applies must be selfreported “within 30 days of the order being entered”. (R: 159-169);
(3)
The Vet Board cannot effectively enforce §474.214(1)(jj) if the 30
day period commenced upon the licensee’s receipt of the ruling because the Vet
Board would not know when that occurred. (R: 197-198).
Not surprisingly, the Vet Board adopted the prosecution’s arguments (R:
173), but when doing so, several members expressed their perception that DeRoin
was culpable because she did not follow-up with PMW to make assure that PMW
complied with its own rules. (R: 205-6).
Application of the rule of strict construction and the attendant requirement
that all doubt must be resolved in favor of DeRoin compels the conclusion that the
28 prosecution’s arguments and the Vet Board’s legal conclusion based on those
arguments that must all be rejected as a matter of law.
The first two of the prosecution’s arguments are interrelated and therefore
will be analyzed together. The case law is clear, as between DeRoin and PMW,
that the commencement of that administrative process was not triggered by PMW’s
oral ruling on September 22, 2012, but could have only been triggered by
DeRoin’s receipt of the official written ruling that informed DeRoin of the right to
request a hearing and the time limit for doing so. Higgins v. Florida Keys
Aqueduct Authority, 403 So.2d 1042 (Fla. 3d DCA 1981) (holding that actual
knowledge of an award to another bidder does not justify dismissal of a request for
a hearing as untimely when agency failed to provide to the unsuccessful bidder the
written notice required by the agency’s rules); and Bell Atlantic Business Systems,
Inc. v. Florida Department of Labor and Employment Security, 677 So.2d 989
(Fla. 1st DCA 1996) (holding that inferring implied notice is not sound policy).14
The issue here is slightly different than in the cited cases in that, in each of
those cases, the agency that failed to give the written notice of final agency action
required by statute or rule was the same agency that issued the ruling that the
14
As will be discussed in Article II, DeRoin’s denial of receipt of the PMW Ruling
until November 9, 2012 created a factual issue that will require a referral to DOAH
to resolve should DeRoin’s legal arguments not result in dismissal of the Corrected
AC. See Symons v. State, Department of Banking and Finance, 490 So.2d 1322,
1324 (Fla. 1st DCA 1986).
29 affected party desired to challenge. Here, the ruling that triggers a veterinarian’s
duty to self-report under §474.214(1)(jj) must by definition be issued by “the
licensing authority” other than the Vet Board. The issue, therefore, is whether,
under the rule of strict construction applicable to disciplinary proceedings, the Vet
Board can find DeRoin to be in violation for not self-reporting a ruling that
DeRoin did not receive until after the statutory period to self-report had already
expired in a circumstance where the failed receipt of the ruling was caused by the
misfeasance of a governmental official who was required by law to provide the
ruling to DeRoin in accordance with binding administrative rules.15
DeRoin suggests that the imposition of any sanction by the Vet Board for
her failure to self-report the PMW Ruling before she received the PMW Ruling in
the manner required Rule 61D-3.001(14) also violates DeRoin’s due process rights
and therefore requires that the Final Order be set aside. See Agency for Health
Care Administration v. Associated Industries of Florida, Inc., 678 So.2d 1239,
1251 (Fla. 1996) (holding that due process is flexible and calls for such procedural
protections as the particular situation demands). The prosecution’s position that
the only possible interpretation of §474.214(1)(jj) is that the reporting period
15
At R: 211-213, the prosecutor alluded to the fact that Mr. Scheen, although
unavailable to DeRoin through forced attendance, would have been made available
if the prosecution needed him. DeRoin believes that the statement in her affidavit
(R: 86) regarding the date on which she first received the PMW Ruling must be
accepted as credible evidence because the prosecution failed to call Mr. Scheen to
controvert DeRoin’s affidavit statement or to secure from him a contrary affidavit.
Tri-City Systems, Inc. v. DOT, 500 So.2d 212 (Fla. 1st DCA 1986).
30 commences on the date the ruling was entered by PMW is belied by the express
words used by the legislature. Notwithstanding the prosecutor’s insistence that the
statute says “within 30 days of the order being entered” (R: 167), the words “of the
order being entered” do not appear in §474.214(1)(jj). There is also no support in
the statute for the prosecutor’s statement at R: 161 that DeRoin’s lack of
knowledge that the PMW Ruling had been entered is not a defense to DeRoin’s
alleged violation of §474.214(1)(jj). Common sense dictates that the entire
concept of self-reporting requires knowledge by the licensee of the event that must
be self-reported. Contrary to the dictates of Capital National Financial
Corporation v. Department of Insurance and Treasurer, supra, it is improper for
the Vet Board to attempt to extend the reach of §474.214(1)(jj) by construction.
Furthermore, the statements of board members about how he or she thinks
they would have dealt with the issue of PMW’s misfeasance lend no support to the
Vet Board’s rulings. The court in Bowling indicated its approval of the following
statement made by the hearing officer: “If their (the Department’s witnesses)
perception comports with the requirement of law, it is not because of their
perception that I would be finding in your favor on that point; it would be because
of the requirements of law.” The Vet Board members’ perceptions
notwithstanding, it is very clear that the law does not require that an affected party
“follow-up” with the agency to make sure the agency complies with the laws to
which the agency is required to comply. Bell Atlantic Business Systems, supra (the
31 agency cannot excuse its failure to give an unsuccessful bidder the statutorily
required notice because the bidder had failed to telephone the agency to determine
the date and time of posting of the bid results); and Pro Tech Monitoring, Inc. v.
State, Department of Corrections, 72 So.3d 277 (Fla. 1st DCA 2011) (improper to
dismiss a bid protest as untimely on the basis that the affected party was under a
legal obligation to insure that a petition timely delivered to a designated agency
employee was also timely filed by the agency employee with the agency clerk).
The prosecutor’s final argument against any interpretation that would
impede the Vet Board’s ability to enforce §474.214(1)(jj) if the self-reporting
period is interpreted not to commence until the veterinarian is properly served with
the ruling illustrates the precise reason why the rule of strict construction is
applicable in proceedings of this nature. Borrowing from Bajrani v. Department of
Business Regulation, Division of Alcoholic Beverages and Tobacco, 561 So.2d
410, 415 (Fla. 5th DCA 1990), experience has taught that agencies like the Vet
Board “are strong believers in their own authority”. The purpose of the rule of
strict construction is to protect the licensees from any attempt by an agency to
extend its disciplinary authority over conduct that is not clearly and specifically
proscribed by the disciplinary statute. The rule requiring that all ambiguities in a
disciplinary statute must be resolved in favor of the licensee also means that all
ambiguities must be resolved against the prosecution. Most certainly, the rule of
strict construction is the exact opposite of the “un-strict” construction that the
32 prosecution correctly suggests will make it far easier and more expedient for the
prosecuting agency to secure a conviction.
In the context of the factual statements contained in DeRoin’s affidavit
(R: 86), the prosecution’s view that the legislature intended for the 30-day selfreporting period to begin on the date the offending ruling was entered irrespective
of the date that the ruling was actually served on the licensee implicates the due
process clause. DeRoin’s view that the self-reporting period does not begin until
the licensee is served with a reportable ruling comports with notions of due process
and with the statutory scheme consistently applied throughout Chapter 120 that
requires service of written notice of agency action on all parties. This ambiguity
must be resolved in favor of DeRoin. Lester.
Given how few cases have addressed the unfair treatment of citizens
following obvious governmental error, it is apparent and indeed fortunate that
these scenarios rarely arise. However, when they have, the courts have
consistently favored the party adversely affected by the governmental error.
Capeletti Brothers, Inc. v. State, Department of Transportation, 362 So.2d 346
(Fla. 1st DCA 1978) (uncertainty or confusion in an agency’s rules and practice on
point of entry will usually be resolved in favor of the affected party). Also see
Machules v. Department of Administration, 523 So.2d 1132 (Fla. 1988); Strax
Rejuvenation and Aesthetic Institute, Inc. v. Shields, 49 So.3d 741 (Fla. 2010);
33 Weintraub v. Alter, 482 So.2d 454 (Fla. 3d DCA 1986); and Pro Tech Monitoring,
supra. The same result is warranted here.
II. DEROIN’S TIMELY REQUEST FOR A FORMAL HEARING UNDER
§120.57(1) WAS IMPROPERLY DENIED
A. Denial of Allegations of the Corrected AC entitled DeRoin to a formal
hearing
Included in DeRoin’s response to the Corrected AC is a request for a formal
hearing under the provisions of §120.57(1). (R: 65). The response also includes
an answer to the Corrected AC in which DeRoin denied most of the allegations.
Paragraph 4, 5 and 6 of the Corrected AC are the allegations what the prosecution
considers to be the “Material Facts”. Set forth below are the allegations of
paragraph 4, 5 and 6 (R: 14) followed by DeRoin’s answer to those allegations (R:
66-7):
MATERIAL FACTS
(Allegation) 4. On September 22, 2012 the Division of Pari-Mutuel Wagering,
Department of Business and Professional Regulation (PMW) entered a ruling
against Respondent finding that she had failed to administer Salix to the horse
“Humor Me Doc” within 4 hours of a scheduled post time.
(Answer)
4. The Respondent is unable to admit or deny the allegations of
paragraph 4 of the AC because the Respondent did not personally witness the
execution of the written ruling (the “ruling”) by the Board of Stewards of the
Division of Pari-Mutuel Wagering (“PMW”) and therefore the Respondent does
not have personal knowledge of whether the ruling was actually entered on
September 22, 2012 as the ruling shows on its face or on some later date and then
backdated to September 22, 2012. The Respondent does not have any knowledge
of any facts that indicate that the ruling was not executed on September 22, 2012,
but, on the other hand, the Respondent does not know of any facts that indicate that
the ruling was actually executed on that day. Furthermore, the Respondent
34 affirmatively states that she did not receive a written copy of the ruling until
November 9, 2012 irrespective of the actual execution date. The Respondent
further states and asserts that the date upon which the Respondent first received
written notice of the ruling, November 9, 2012, is the effective date of the ruling
for the purpose of this AC irrespective of when it was actually entered or executed.
Because the Respondent cannot admit or deny the allegations of paragraph 4, the
Respondent denies and disputes all allegations of fact relating to the effective date
of the ruling and strict proof of the allegations of paragraph 4 is demanded.
(Allegation) 5. Respondent was issued a fine in the amount of two hundred
dollars $200.00 by PMW.
(Answer)
5. The Respondent admits the allegations of paragraph 5.
(Allegation) 6. The Board’s investigation on November 1, 2012 revealed that
Respondent had not submitted notice of her disciplinary actions.
(Answer)
6. With regard to allegations of paragraph 6 of the AC, the
Respondent does not know whether or not the Vet Board did any investigation on
November 1, 2012 as alleged. However, even if the Vet Board did conduct such
an investigation, the Respondent denies and disputes that she was required to
submit a notice of the ruling to the Vet Board before November 1, 2012 for two
reasons: (i) because the PMW ruling is not a ruling to which subparagraphs
474.214(1)(b) and/or 474.214(1)(jj) apply; and (ii) even if the ruling falls under
either of those subparagraphs, that it was not until November 9, 2012, eight days
AFTER the date (November 1, 2012) that the Vet Board claims it conducted its
investigation about the Respondent’s non-disclosure of the ruling that the
Respondent first received written of notice of the ruling; and therefore the date the
Respondent was in first in receipt of notice of the written ruling, and not before
that date, did the 30-day time period to inform the Vet Board of any reportable
event first began to run.
Notwithstanding that DeRoin denied the allegations of two of the three
“Material Facts” upon which the prosecution of DeRoin is based, the prosecution
determined that no issues of material fact were in dispute and ordered that this
matter proceed under as an informal hearing. R: 25. Contrary to this
determination, a general denial of the material factual allegations in an
35 administrative complaint automatically entitles the affected party to a formal
hearing. Totura v. Department of State, Division of Licensing, 553 So.2d 272 (Fla.
1st DCA 1989) (a denial that states “we deny the allegations in your latest
correspondence, and demand strict proof” sufficient to require a formal hearing);
Iazzo v. Department of Professional Regulation, Board of Psychological
Examiners, 638 So.2d 583 (Fla. 1st DCA 1994) (request for a formal hearing
indicating that all material allegations are disputed sufficient to require a formal
hearing); Hollis v. Department of Business and Professional, 982 So.2d 1237 (Fla.
5th DCA 2008) (the response that “I dispute the allegations of fact” sufficient to
require a formal hearing); and Pro Tech Monitoring, supra (denial of a request for
a formal heating to determine disputed facts related to the timeliness of the filing
of a bid protest so contrary to basic principals of administrative law that the denial
constituted a gross abuse of discretion warranting award of attorneys’ fees under
§120.595(5)).
Clearly DeRoin’s answer (R: 65) raised disputed issues of fact with regard
to the actual date that the PMW Ruling was entered since the PMW Ruling was not
executed in DeRoin’s presence on September 22, 2012 and she was not provided a
copy of it until November 9, 2012. The actual date that the PMW Ruling was
entered is a material fact, particularly under the Vet Board’s determination that the
date of entry of the PMW Ruling is when the 30-day self-reporting clock started
running on DeRoin.
36 B. DeRoin’s answer raises a disputed issue of fact regarding the authenticity
of the PMW Ruling
The following is the prosecutor explanation of her theory why, despite
DeRoin’s answer, there are no disputed issues of fact in this case:
Ms. Henderson: And, again, though, before the Board today is a selfauthenticating document from the Division.
****
And you’ve got a document before you today on the stationary of the
Pari-Mutuel Wagering Division with a date of September 22nd, 2012.
And so the Department contends that the actual facts of the two
elements in this case are not disputed – not disputable.” R: 160-161.
Despite the prosecution’s stated belief to the contrary, it is completely
beyond argument or dispute that the prosecution’s declaration that the PMW
Ruling is self-authenticating does not establish the PMW Ruling as either
“undisputable”, or in evidentiary terms, conclusively authentic. Gard, Florida
Evidence 2nd Ed., Rule 15.03 (1980). Self-authenticating documents are only of
prima facie authenticity and may be shown by extraneous evidence not to be
authentic. Id. Although the document is admitted without preliminary proof
because of its prima facie authenticity, the opponent may attack the authenticity
and the ultimate decision will be for the trier of fact. Moore’s Federal Practice, 2d
Ed., Volume 11 §902.02 (1989).
The First District in Lee v. Department of Highway Safety, 4 So.3d 754 (Fla.
1st DCA 2009) addressed a similar situation. Lee involved the administrative
suspension of a driver’s license following a DUI arrest. The hearing officer
37 accorded conclusive authenticity to a self-authenticating inspection report
submitted by the Department by considering the report as evidence yet denying the
opponent the right to cross-examine the individuals who prepared the reports. In
granting certiorari on second-tier review, the court found that the hearing officer’s
refusal to allow cross-examination of the report preparers violates the basic
principles of due process. Id.16
The prosecution’s case with regard to DeRoin’s alleged violation of
§474.214(1)(jj) was built entirely upon the incredibly faulty legal premise that the
declaration that the PMW Ruling is self-authenticating automatically establishes
the PMW Ruling as “undisputable” which it clearly is not. As a consequence of
the initial faulty premise, the equally erroneous denial of the request for a formal
hearing followed. As a consequence of the denial of the request for a formal
hearing, DeRoin’s due process rights were violated because the Vet Board relied
upon the PMW Ruling as conclusive evidence by inappropriately prohibiting
DeRoin from examining the persons whose names appear in the PMW Ruling to
ascertain its actual authenticity which DeRoin contested in her answer. Lee, supra.
Although it is possible that the Vet Board may ultimately be correct that the PMW
Ruling was entered on September 22, 2012, this is a disputed matter to be
16
Accord, McDonald v. Department of Professional Regulation, 582 So.2d 660,
664 (Fla. 1st DCA 1991) (holding that without a provision in the disciplinary
statute authorizing the use of a legal presumption, the agency lacks authority to
adopt a legal presumption that effectively relieves it from having to prove specific
acts of misconduct and shifts the burden of proving innocence to the licensee).
38 determined by a trier of fact based upon the facts developed at a formal hearing. Ft
Myers, supra, 53 So.3d at 1162.
C. DeRoin’s answer raises a disputed issue of fact regarding PMW’s status as
“the licensing authority” under §474.214(1)(b)
In Article I (B), DeRoin argued that, as a matter of law, PMW is not “the
licensing authority” for the purposes of §474.214(1)(b). Assuming arguendo that
this Court determines that PMW’s status vis-à-vis §474.214(1)(b) cannot be
determined as a matter of law, then DeRoin asserts her entitlement to a formal
hearing based upon her answer to paragraph 6 of the Corrected AC (see page 35 of
this brief) that raised as a disputed issue of fact whether PMW is “the licensing
authority” for the purposes of §474.214(1)(b). DeRoin suggests that PMW’s status
as “the licensing authority” is either a question of fact or more likely a mixed
question of law and fact, but in either event is reasonably susceptible of
conventional forms of proof.17 The scope of the authority granted to PMW by the
legislature has been analyzed in many appellate court decisions in which agency
17
In footnote 17 of Bowling, the First District stated its preference to requiring the
agency to prove both “adjudicative facts” and “legislative facts”. Legislative facts
were defined by the court as facts that do not usually concern the immediate
parties, but are general facts which help the tribunal decide questions of law and
policy and discretion. The court noted that requirement that legislative facts be
proved “contributes vitality and verification to agency decisionmaking”. 394
So.2d at 176, n.17.
39 action taken by PMW has been challenged for lack of delegated authority.18 If
PMW is “the licensing authority” for the practice of veterinary medicine in Florida,
then it was incumbent upon the prosecution to cite either to those specific
provisions in Chapter 550 that support the prosecution’s claim that the legislature
granted PMW the authority to license or authorize the practice of veterinary
medicine in Florida or to an appellate court decision confirming that PMW has
been granted such authority by the legislature.19
Instead of making even the slightest attempt to establish that PMW is “the
licensing authority” through conventional means of proof, the prosecution
improperly relied upon the undisclosed prior disciplinary orders of the Vet Board
to conclusively establish that PMW is “the licensing authority”. R: 196. Bowling,
18
Four of the most recent cases that discuss the jurisdiction of PMW are PPI, Inc.
v. Department of Business & Professional Regulation, Division of Pari-Mutuel
Wagering, 698 So.2d 306 (Fla. 3d DCA 1997); Department of Business and
Professional Regulation v. Calder Race Course, Inc., 724 So.2d 100 (Fla. 1st DCA
1998); St. Petersburg Kennel Club v. Department of Business & Professional
Regulation, Division of Pari-Mutuel Wagering, 719 So.2d 1210 (Fla. 2d DCA
1998); and Summer Jai Alai Partners v. Department of Business & Professional
Regulation, Division of Pari-Mutuel Wagering, Case No. 3D13-395 (Fla. 3d DCA
October 9, 2013).
19 By
way of example, §474.207 describes the process by which DBPR issues
licenses to practice veterinary medicine to those persons that the Vet Board has
certified have passed the required examination and have otherwise satisfied the
educational and other fitness requirements for licensure as a veterinarian in
Florida. If there exists a statute within Chapter 550 that grants to PMW these same
rights to issues licenses to practice veterinary medicine, then the burden was on the
prosecutor to bring that statute forward. The prosecutor’s inability to do is
apparent from the record.
40 supra. The imposition of this conclusive presumption upon DeRoin is as
constitutionally offensive as is the conclusive authenticity ascribed to the PMW
Ruling discussed immediately above; and accordingly the Vet Board’s improper
reliance of both of these conclusive presumption requires that the Final Order be
set aside and this matter remanded to DOAH. Lee; McDonald.
D. DeRoin’s assertion that the Final Order was based on unadopted rules
automatically required referral of this proceeding to DOAH
Section 120.57(1)(e)1 provides that an agency may not base agency action
that determines the substantial interests of a party on an unadopted rule. In
DeRoin’s response to the Corrected AC, DeRoin asserted that the Vet Board’s
policies of uniformly considering PMW to be “the licensing authority” under
§474.214(1)(b) and uniformly commencing the 30-day self-reporting period under
§474.214(1)(jj) on the date of entry of the ruling instead of the date of receipt of
the official ruling are both unadopted rules. Perhaps in recognition of the notion
that agencies “are strong believers in their own authority”, the legislature has
assigned exclusive jurisdiction over unadopted rule challenges to DOAH. See
§§120.56(4) and 120.57(1)(e)1. Accordingly, DeRoin suggests that as soon as a
respondent entitled to participate in any proceeding under §120.57, whether under
§120.57(1) or §120.57(2), asserts that the agency policy the administrative
complaint is attempting to enforce is alleged to be an unadopted rule, immediate
referral to DOAH is required. §120.57(1)(e)1.
41 As seen in the discussion between the lawyers at R: 169-173, DeRoin’s legal
theory stated above was rejected. However, the rejection of this argument lacks
substance for several reasons.20 The primary reason for rejection was that an
unadopted rule challenge under §120.57(1)(e)1 is available only in formal,
§120.57(1) proceedings. That notion is belied by the clear language of
§120.57(1)(e)1 that includes within its scope any “agency action that determines
the substantial interests of a party”. Inasmuch as the substantial interests of parties
are determined in both §120.57(1) proceedings and §120.57(2) proceedings, the
Vet Board cannot legitimately question that §120.57(1)(e)1 prohibits the Vet Board
from basing its agency action in any disciplinary proceeding on an unadopted rule.
A corollary to the primary reason for rejection is that, notwithstanding the
unavailability of an unadopted rule challenge within a §120.57(2) proceeding,
DeRoin still has available to her the right to initiate an independent unadopted rule
challenge proceeding at DOAH under §120.56(4). This argument is based on a
misapprehension of both the particular and different functions of unadopted rule
challenges under §120.56(4) and under §120.57(1)(e).
In an unadopted rule challenge under §120.56(4), the challenge is to whether
an agency’s nonrule policy meets the definition of a rule. If DOAH declares an
20
Because an agency’s interpretation of the general provisions of administrative
law is a recognized circumstance outside of an agency’s special expertise, no
deference is given this Vet Board’s ruling. Ft. Myers, supra, 53 So.3d at 1161. 42 agency policy to be an unadopted rule in a §120.56(4) proceeding, the legal effect
of that declaration is only that the agency must immediately discontinue reliance
on the voided policy, i.e., prospective application only. State Board of Optometry
v. Florida Society of Ophthalmology, 538 So.2d 878, 889 (Fla. 1st DCA 1988).
Because of this prospective application only aspect of §120.56(4), an
unadopted rule challenge under this subsection is ineffective to challenge whether a
pending administrative complaint seeks discipline against a professional licensee
based on an unadopted rule. Indeed, prior to the enactment of current
§120.57(1)(e) in 1996 as part of Chapter 96-159, Laws of Florida, the courts—
going back to the seminal APA decision in Department of General Services v.
Willis, 344 So.2d 580, 592 Fla. 1st DCA 1977)—have specifically authorized
parties to §120.57 proceedings to include an unadopted rule challenge within that
party’s other grievances. As provided in Willis, the legislative purpose of §120.57
is “to avoid any appearance of requiring a substantially affect party to initiate
duplicative 120.54 or .56 proceedings” if the rule challenge is regularly presented
in the §120.57 proceeding as it was here.21 Indeed, because §120.56(4) provides
prospective relief only, denying DeRoin the right to raise her unadopted rule
challenges in this §120.57 disciplinary proceeding completely and inappropriately
21
The enactment of §120.57(1)(e) appears to be a codification of this aspect of
Willis. Also see United Health, Inc. v. HRS, 579 So.2d 342,343 (Fla. 1st DCA
1991); Community Health Charities of Florida v. State, Department of
Management Services, 961 So.2d 372 (Fla. 1st DCA 2007).
43 eliminates her ability to ever challenge this particular Final Order as being
inappropriately based on an unadopted rule as prohibited by §120.57(1)(e)1.
Furthermore, the decision in United Wisconsin Life Insurance Company v. Florida
Department of Insurance, 831 So.2d 239 (Fla. 1st DCA 2002) may actually prohibit
DeRoin from the initiation of a separate §120.56 rule challenge because she had an
adequate rule challenge remedy in this §120.57 proceeding. DeRoin asserts that
§120.57(1)(e)1 provides that remedy; and that the Vet Board’s refusal to allow her
to pursue that remedy in this §120.57 proceeding—before DOAH—was in error.
III. THE PENALTY IMPOSED ON DEROIN IMPROPERLY EXCEEDS
THE APPLICABLE PENALTY GUIDELINES
As mentioned in Article I (B)(ii) above, the Vet Board, as required by
§455.2273(a), adopted by rule the penalty guidelines found in its Rule 61G1830.001. Section 455.2273(c) allows boards subject to Chapter 455 to deviate from
its adopted guidelines only when the board makes “[a] specific finding of
mitigating or aggravating circumstances” justifying the deviation.
The penalty imposed on DeRoin in the Final Order is the imposition of an
administrative fine of $1,000.00 and the requirement that DeRoin take and pass
that part of the required examination for licensure under §474.207 dealing with
“Laws and Rules”.22 23
22
The penalty is actually having to submit to being re-examined.
Members of the Vet Board specifically declined consideration of placing DeRoin
on probation. R: 230.
23
44 The monetary fine appears to be within the range of penalties for a violation
of §474.214(1)(b) and §474.214(1)(jj) under the guidelines, Rule 61G-1830.001(2)(b) and (jj). However, there are two alternative reasons why the
requirement of the Final Order that DeRoin take and pass the Laws and Rules
examination is an improper and unauthorized penalty that must be set aside.
First, requiring DeRoin to take and pass the Laws and Rules exam is not
within the penalty guidelines for either a violation of §474.214(1)(b) or
§474.214(1)(jj). The penalty guideline for a violation of §474.214(1)(b) is found
in Rule 61G-18-30.001(2)(b) as follows:
“The usual action of the Board will be the penalty generally
concurrent with that of the other jurisdiction with the addition of
appropriate safeguards as determined by the Board.”24
The penalty guideline for a violation of §474.214(1)(jj) is found in Rule 61G-1830.001(2)(jj) as follows:
“The usual action of the Board shall be the issuance of a
reprimand and an administrative fine from one thousand
dollars ($1,000.00) to three thousand dollars ($3,000.00).
Accordingly, the only penalties authorized by the guidelines for this case
would be: (a) imposing the same penalty as imposed by the “other jurisdiction”
which is a $200.00 fine (R: 64); (b) imposing a fine of between $1,000.00 and
24
For the purposes of this argument only, it will be assumed that PMW is “the
licensing authority” of the other jurisdiction for the purposes of §474.214(1)(b).
45 $3,000.00; (c) issuing a reprimand; and (d) imposing additional appropriate
safeguards as determined by the Board.
Of the range of penalties, the only possible authority to require DeRoin to
submit to re-examination would be as an additional “appropriate safeguard”. As
noted in Lester, the purpose of the rule of strict construction is to assure that the
violation of a penal statute is not based on an agency’s loose interpretation of the
statutory provisions, but instead to require that the statute be construed to include
only those matters clearly embraced within its terms. Accord Bowling, supra.
Consistent with the rule of strict construction and the attendant requirement that all
ambiguities must be resolved in favor of the licensee, DeRoin asserts that to be an
authorized penalty under Chapter 474, the only “appropriate safeguards” that the
Vet Board is authorized to impose must come from the list penalties otherwise
authorized by the Vet Board’s disciplinary statute, §474.214(2).25 Turner v.
Department of Professional Regulation, 591 So.2d 1136 (Fla. 4th DCA 1992)
25
Section 474.214(2) provides: When the board finds any applicant or veterinarian
guilty of any of the grounds set forth in subsection (1), regardless of whether the
violation occurred prior to licensure, it may enter an order imposing one or more of
the following penalties: (a) Denial of certification for examination or licensure; (b)
Revocation or suspension of a license; (c) Imposition of an administrative fine not
to exceed $5,000 for each count or separate offense; (d) Issuance of a reprimand;
(e) Placement of the veterinarian on probation for a period of time and subject to
such conditions as the board may specify, including requiring the veterinarian to
attend continuing education courses or to work under the supervision of another
veterinarian; (f) Restricting the authorized scope of practice; (g) Imposition of
costs of the investigation and prosecution; and (h) Requiring the veterinarian to
undergo remedial education.
46 (provision of final order permanently revoking a chiropractic license set aside
because the chiropractic medicine laws do not authorize the penalty of permanent
revocation).
A review of the penalties authorized by §474.214(2) in Footnote 25 shows
that there is no provision that empowers the Vet Board to require a licensed
veterinarian to submit to re-examination as a disciplinary penalty; and accordingly
that part of the Final Order must be set aside. Application of the rule of strict
construction forbids extending the statutory language by construction to include a
penalty not expressly stated in the statute. Capital National Financial Corporation
v. Department of Insurance and Treasurer, supra.
Alternatively and assuming arguendo that the Vet Board has the authority to
require re-examination as a penalty, then DeRoin’s second reason for setting aside
the penalty of re-examination is that the Final Order fails to articulate a specific
finding of aggravating circumstances to justify an upward departure from the
penalty guidelines as required by §455.2273(c). Here, the Final Order is
completely silent as to aggravating circumstances that would justify a harsher
penalty than the applicable guidelines provide; and, in fact the record contains the
comments of some of the members directly to the opposite. R: 230.
This Court’s decisions in Aleong v. State, Department of Business and
Professional Regulation, supra, and Fernandez v. Florida Department of Health,
Board of Nursing, 82 So.3d 1202 (Fla. 4th DCA 2012) are on point. Inasmuch as
47 the Final Order fails to articulate any aggravating circumstances to justify a
deviation from the guidelines, application of the decisions in Aleong and
Fernandez to the Final Order requires that the penalty that DeRoin submit to reexamination be set aside.
IV. REQUESTS FOR ATTORNEYS FEES
DeRoin has requested that she be awarded her attorneys’ fees under both
§57.105 and §57.111. The request for fees under §57.111—designated the
“Florida Equal Access to Justice Act”—was made in the response to the Corrected
AC (R: 65) and through the submission of DeRoin’s affidavit of qualification and
the affidavit of fees of DeRoin’s counsel and an expert witness. R: 86. DeRoin
acknowledges that her request for fees and submission of proof of entitlement and
amount may have been premature under §57.111(4). Nevertheless, to the extent
necessary not to be deemed a waiver of her claim for fees under §57.111, DeRoin,
should she shall prevail in this appeal, reserves the right to seek all attorneys’ fees
she had incurred in defending against these frivolous charges, including her
appellate attorneys’ fees, through the process described in §57.111(4).
DeRoin’s Motion for Sanctions under §57.105 (R: 103) and the Vet Board’s
response declining to withdraw the charges (R: 122) are in the record. In DeRoin’s
motion, it is asserted in paragraph 1 as follows:
“That the claim presented by the Agency in the Administrative
Complaint is not supported by the application of existing law to the
material facts set forth in the Administrative Complaint. In particular,
48 the Respondent states that application of the decisions of the 1st
District Court of Appeal in Ocampo v. Department of Health, 806
So.2d 633 (Fla. 1st DCA 2002) and Cone v. State, Department of
Health, 886 So.2d 1007 (Fla. 1st DCA 2004) to the material facts
negates the statutory violation that serves as the basis for the
Administrative Complaint, thereby precluding the imposition of the
discipline that the Agency seeks to impose upon the Respondent
through the Administrative Complaint.
Not surprisingly, one of the grounds that formed the basis for DeRoin’s
claim for sanctions is the decision in Ocampo that DeRoin identified in Article I
(B) above as the most factual similar decision to this case. DeRoin relies upon the
arguments herein set forth as the basis of an award of attorneys’ fees to DeRoin for
the proceedings before the Vet Board and for her appellate fees to which DeRoin
respectfully suggests she is entitled to be awarded by this Court.
In the Final Order,26 the Vet Board at R: 256 denied both DeRoin’s claim for
fees, ruling that §120.595 (entitled “Attorney’s fees”) does not provide for the
recovery of attorney’s fees from an agency in §120.57(2) proceedings. In making
its ruling, the Vet Board must not have been aware of §120.595(6) that provides:
120.595(6) OTHER SECTIONS NOT AFFECTED.—Other
provisions, including §§ 57.105 and 57.111, authorize the
awards of attorney’s fees in administrative proceedings.
Nothing in this section shall affect the availability of
attorney’s fees and costs as provided in those sections.
26
No deference is given to an agency’s interpretation of an attorneys’ fees statute.
Brown, supra, 969 So.2d at 557.
49 CONCLUSION
In its decision in Machules v. Department of Administration, 523 So.2d 1132
(Fla. 1988), the Supreme Court favorably noted Judge Zehmer’s observation set
forth in his dissenting opinion in the First District decision in Machules that:
“The present Florida Administrative Procedure Act was intended to
simplify the administrative process and provide the public with a more
certain administrative procedure, thereby insuring that the public
would receive due process and significantly improved fairness of
treatment, than was commonly afforded under the predecessor
act. Machules v. Department of Administration, 502 So.2d at 446.
The procedures utilized by the prosecution and the Vet Board to achieve the
conviction of DeRoin does considerable violence to the “laudable objective”
underpinning the enactment of the current APA. The treatment DeRoin received
from the prosecution and the Vet Board was patently unfair and oppressive, denied
DeRoin due process and was otherwise clearly improper and unauthorized. As a
consequence, the Final Order must be set aside for any and all of the reasons herein
set forth.
Respectfully submitted,
S/David S. Romanik
David S. Romanik
Florida Bar Number 212199
DAVID S. ROMANIK, P.A.
Counsel for the Appellant
P.O. Box 650
Oxford, Florida 34484
Telephone: 954/610-4441
Email: [email protected]
50 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Initial Brief of the
Appellant, Jamie DeRoin, D.V.M., was served by electronic mail on this 16th day
of January, 2014 upon the following counsel of record:
Garnett W. Chisenhall
Chief Appellate Counsel
DBPR Office of the General Counsel
1940 North Monroe St.
Tallahassee, Fl 32399
S/David S Romanik
David S. Romanik
CERTIFICATE OF COMPLIANCE
I hereby certify that the Reply Brief of the Appellant is in compliance with
the font requirements of Rule 9.210(a)(2). This document is submitted in Times
New Roman 14-point font.
S/David S Romanik
David S. Romanik