THE STATE OF NEW HAMPSHIRE MERRIMACK, SS. SUPERIOR COURT IN RE: DR. CARLTON R. KIBBEE, DVM D/B/A ANIMAL FITNESS 258 Monument Rd, Hinsdale, NH 03451 ASSURANCE OF DISCONTINUANCE NOW COMES the State of New Hampshire, by and through the Office of the Attorney General, and enters into the following Assurance of Discontinuance ( Assurance ) pursuant to RSA 358-A:7 with Dr. Carlton R. Kibbee d/b/a Animal Fitness. Parties 1. Joseph A. Foster is the Attorney General of the State of New Hampshire. He is authorized by RSA 358-A:4, III(a) and (b) to seek injunctive relief, restitution, and civil penalties against any person who he has reason to believe has engaged in or is about to engage in unfair or deceptive acts or practices in the conduct of trade or commerce in violation of RSA 358-A:2. The Attorney General is authorized to seek criminal penalties for violations of the New Hampshire Consumer Protection Act ( CPA ) under RSA 358-A:6. The Attorney General is authorized to enter into this Assurance by and through the Consumer Protection and Antitrust Bureau (the Bureau ) pursuant to RSA 358-A:7, in settlement of claims which could be raised under RSA 358-A:2. 2. Animal Fitness is a veterinary medicine and grooming business located at 258 Monument Rd, Hinsdale, NH 03451. Animal Fitness was opened in 2008 and is not registered as a business entity or as a trade name with the Secretary of State. 3. Dr. Carlton Kibbee, DVM ( Dr. Kibbee ) is a veterinarian. Dr. Kibbee is licensed by the NH Board of Veterinary Medicine ( the Board ). Dr. Kibbee resides at 258 Monument Rd, 1
Hinsdale, NH 03451. Dr. Kibbee jointly owns and operates Animal Fitness with his wife, Paula J. Fitzpatrick ( Fitzpatrick ). 4. RSA 358-A:2 states, in part: Applicable Law It shall be unlawful for any person to use any unfair method of competition or any unfair or deceptive act or practice in the conduct of any trade or commerce within this state. Such unfair method of competition or unfair or deceptive act or practice shall include, but is not limited to, the following: II. Causing likelihood of confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services; III. Causing likelihood of confusion or misunderstanding as to affiliation, connection or association with, or certification by, another; V. Representing that goods or services has sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that such person does not have; 5. RSA 358-A:7 states as follows: Nothing contained in this chapter shall be construed as preventing the attorney general, in cases in which the attorney general is authorized to bring an action, from accepting in lieu thereof an assurance of discontinuance of any act or practice which violates this chapter. Such assurance may include a stipulation for the voluntary payment by the alleged violator of the costs of investigation by the attorney general, or of an amount to be held in escrow pending the outcome of an action, or of an amount to restore to any person any money or real or personal property which may have been acquired by such alleged violator, or all 3. Any such assurance of discontinuance shall be in writing and be filed with the superior court of Merrimack county. Matters thus closed may be reopened by the attorney general at any time it is in the public interest. Evidence of a violation of such assurance shall constitute prima facie evidence of an act or practice declared to be unlawful by this chapter in any action thereafter commenced by the attorney general. Factual Allegations 6. At all times relevant to this Assurance, Dr. Kibbee and Fitzpatrick conducted business as Animal Fitness in Hinsdale, NH. 2
Complaints to Board of Veterinary Medicine 7. On July 24, 2015, M.O. made a verbal complaint to the NH Board of Veterinary Medicine. M.O. stated that she had been taking her dog to Animal Fitness for about a year and had no idea that Fitzpatrick was not a veterinarian. M.O. said that she has never seen Dr. Kibbee. 8. On April 6, 2015, M.O. brought her dog in for an exam and distemper and rabies shots. She said that Fitzpatrick did everything and that Dr. Kibbee never looked at or treated her dog. She said that Fitzpatrick filled out the rabies certificate and signed it. M.O. later discovered that Fitzpatrick signed Dr. Kibbee s name to the certificate. 9. Dr. Kibbee disputes that he never saw M.O. and disputes the claim that an exam was performed on April 6, 2015 10. The treatment records show that the distemper and rabies vaccines were administered on April 6, 2015. The record was filled out in what appears to be Fitzpatrick s handwriting. 11. On July 27, 2015, B.F. filed a written complaint with the Board. B.F. stated that Fitzpatrick gave her dog vaccines, exams and anesthesia and trimmed her nails, which made her dog bleed. According to B.F., Fitzpatrick also filled out and signed the rabies certificate. 12. B.F. said that Fitzpatrick was the only person that she saw at the facility and that she assumed Fitzpatrick was a veterinarian. Fitzpatrick did all of the treatment and offered advice on nutrition. B.F. produced a copy of the receipts she received from Animal Fitness which read: C.R. Kibbee P.J. Fitzpatrick as the heading. 13. Based on that representation, B.F. assumed that both Kibbee and Fitzpatrick were veterinarians. She had seen Dr. Kibbee in passing on one occasion and observed that he is an older gentleman. She assumed that Fitzpatrick was the other veterinarian at the practice who 3
was taking on more of the duties for Dr. Kibbee. B.F. stated that Paula did everything and presented as a veterinarian, giving advice on diet as well as other issues related to her pets. 14. Dr. Kibbee disputes that B.F. s dog was given anesthesia by Fitzpatrick and asserts that it was a mild sedative given at his direction. Dr. Kibbee also disputes that Fitzpatrick provided all of the treatment for B.F. s dog, citing to, among other things, the fact that he performed a spay on the dog on November 28, 2011. 15. On August 11, 2015, A.N. filed a written complaint with the Board. A.N. brought her two dogs to Animal Fitness for exams and shots. She stated that Fitzpatrick performed the yearly exam on both dogs and administered vaccinations on both. Fitzpatrick then filled out and signed the rabies certificate by signing Dr. Kibbee s name. A.N. stated that, at no time did Dr. Kibbee present himself or treat her dogs. A.N. was present in the room for the entire treatment of her dogs that day. 16. The treatment records were completed in Fitzpatrick s handwriting and are consistent with the complaint. A.N. assumed Fitzpatrick was a veterinarian due to how she presented and explained everything and because Dr. Kibbee never examined or treated her pets. 17. Dr. Kibbee denies that Fitzpatrick performed yearly exams on A.N. s two dogs, citing to the records that show they received vaccinations and had their ears cleaned on the only date they were brought to Animal Fitness: May 6, 2015. 18. On August 11, 2015, P.W. and D.W. filed a written complaint with the Board. In that complaint, they stated, to the best of our knowledge, Paula Fitzpatrick performed all of the work in reference to the veterinary work/services performed on their two dogs. This includes full wellness/annual exams as well as rabies vaccines. 4
19. Both P.W. and D.W. were present and in the room for the treatment performed on their dog and at no time did they see Dr. Kibbee. Fitzpatrick filled out and signed the rabies vaccination form by signing Dr. Kibbee s name. 20. Dr. Kibbee disputes that the dogs of P.W. and D. W. ever received full wellness/annual exams at animal fitness Work performed by Fitzgerald while Dr. Kibbee was recovering from surgery 21. The Bureau conducted an Administrative Subpoena Hearing with Dr. Kibbee at the Attorney General s Office on September 11, 2015. Dr. Kibbee was represented by counsel. 22. Dr. Kibbee stated under oath that he had surgery on March 9, 2015. He stated that he was in the hospital for around two weeks following that surgery. 23. Dr. Kibbee stated that he went to a residential rehabilitation center in Vermont for four weeks following his release from the hospital. 24. Dr. Kibbee stated that Fitzpatrick saw animals at Animal Fitness during the time he was in the hospital and in rehabilitation. He stated that during this time, Fitzpatrick would call him with any questions. Although Dr. Kibbee does not have a specific recollection of the content of those phone calls, he did state that Fitzpatrick was refilling medications and administering vaccinations during that time period. 25. Animal Fitness treatment records show that T.D. brought her dog Bentley to Animal Fitness on March 18, 2015 during the time that Dr. Kibbee was at the hospital. The records state that the dog was sick and that the dog was treated with azimycin, a combination antibiotic/cortical steroid. 5
Additional instances of suspected treatment by Fitzpatrick 26. Animal Fitness s business schedule reflects that on April 6, 2015, D.P. and F.P. brought in their dog to have a microchip implanted. The treatment record reflects the wrong date in that it shows a date of April 6, 2014. The treatment record simply states, micro chipped avid. The entry appears to be done in handwriting consistent with Fitzpatrick. 27. The schedule reflects that on May 6, 2015, M.L. brought in her dog for a rabies shot. The entry appears to be done in handwriting consistent with Fitzpatrick. Advertisements, website, and consumer literature 28. The business cards used by Dr. Kibbee and Fitzpatrick read, in relevant part: Jack Kibbee & Paula Fitzpatrick Integrated Veterinary Practice Animal Fitness Allopathic & Holistic Medicine 29. The business cards do not distinguish that Dr. Kibbee is a licensed DVM or that Fitzpatrick is a veterinary technician and a groomer and not a licensed DVM. 30. The heading on the transaction receipts issued to customers do not distinguish that Dr. Kibbee is a licensed DVM or that Fitzpatrick is a veterinary technician and a groomer and not a licensed DVM. 31. The business has a website, animalfitness.com. Prior to September 10, 2015, the website did not distinguish that Dr. Kibbee is a licensed DVM or that Fitzpatrick is a veterinary technician and a groomer and not a licensed DVM. 32. Additionally, animalfitness.com reproduced a local newspaper article which stated, in part: The husband and wife duo of Carlton Jack Kibbee and Paula Fitzpatrick run a country veterinary practice called Animal Fitness on their 55-acre property, servicing both small and large animals with a focus on integration (which Fitzpatrick calls a combination of allopathic medicine and holistic remedies). 6
33. The article reproduced on animalfitness.com did not distinguish that Dr. Kibbee is a licensed DVM or that Fitzpatrick is a veterinary technician and a groomer and not a licensed DVM. Consumer Protection Act Violations 34. The facts contained in paragraphs 6 through 33 constitute unfair and deceptive acts and practices in the conduct of trade or commerce within this state and violations of RSA 358- A:2. Dr. Kibbee and Fitzpatrick, doing business as Animal Fitness, have caused likelihood of creating confusion or misunderstanding as to the certification of Fitzpatrick to perform veterinary medicine services by not distinguishing in their consumer literature, advertisements, and individual consumer contacts that Dr. Kibbee is the sole licensed veterinarian at Animal Fitness and that Fitzpatrick is a veterinary technician and groomer who is not licensed to administer veterinary medicine. Assurance of Discontinuance 35. The Parties enter into this Assurance pursuant to RSA 358-A:7. 36. Dr. Kibbee agrees to immediately cease and discontinue any and all practices that are in violation of RSA 358-A:2. 37. Dr. Kibbee agrees to comply with all provisions of the New Hampshire Veterinary Practice Act (RSA 332-B) and the rules of the Board of Veterinary Medicine. 38. Dr. Kibbee agrees to post a copy of this Assurance at Animal Fitness in a manner accessible to consumers for a period of three months from the date of this Assurance. 39. Dr. Kibbee agrees to make a copy of this Assurance available to the public on animalfitness.com for a period of three months from the date of this Assurance. 40. If required by law, Dr. Kibbee and Fitzpatrick shall register their business with the Secretary of State within 30 days from the date of this Assurance. 7
41. Pursuant to RSA 358-A:7, this Assurance shall be filed in the Merrimack County Superior Court. Matters covered by this Assurance may be reopened at any time it is in the public interest to do so, and evidence of a violation of any provision of this Assurance shall constitute prima facie evidence of a violation of RSA 358-A. 42. This Assurance shall be binding on the parties on the date it is accepted by the Attorney General or his representative. Dr. Carlton Kibbee d/b/a Animal Fitness 258 Monument Rd. Hinsdale, NH 03451 Date:, 2015 Dr. Carlton R. Kibbee The foregoing Assurance of Discontinuance is accepted. Angela Linson, Esq THE STATE OF NEW HAMPSHIRE Joseph A. Foster Attorney General Date:, 2015 John W. Garrigan NH Bar No. 21001 Attorney Consumer Protection and Antitrust Bureau New Hampshire Department of Justice 33 Capitol Street Concord, New Hampshire 03301 Tel. (603)-271-1252 8