STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM F. GESSLER, M.D. )

)

Petitioner )

)

vs. ) CASE NO. 88-4902F

) DEPARTMENT OF PROFESSIONAL ) REGULATION )

)

Respondent. )

)

FINAL ORDER

This cause came on for consideration upon Petitioner Gessler's "Petition for Award of Attorney's Fees and Costs," Department of Professional Regulation's "Motion to Dismiss, Answer, and Affirmative Defenses to Petition for Attorney Fees and Costs," and Gessler's "Reply to Respondent's Motion to Dismiss," and "Reply to Affirmative Defenses."

APPEARANCES

The parties are represented as follows:

For Petitioner Charles L. Curtis, Esquire Gessler: 1177 Southeast Third Avenue

Fort Lauderdale, Florida 33316

For Respondent John R. Alexander, Esquire DPR: 130 North Monroe Street

Tallahassee, Florida 32399-0750 FINDINGS OF FACT

1. This case involves a Petition under Section 57.111 F.S. and Rule 22I-

   6.35 F.A.C.

   
   

2. Petitioner herein is William F. Gessler, M.D. Respondent herein is the Department of Professional Regulation.

   
   

3. This cause has been determined upon Gessler's "Petition for Award of Attorney's Fees and Costs," the Department of Professional Regulation's "Motion to Dismiss, Answer, and Affirmative Defenses to the Petition for Attorney Fees and Costs," Gessler's "Reply to Respondent's Motion to Dismiss", Gessler's "Reply to Affirmative Defenses," and the pleadings and papers of record in DOAH Case No. 86-3600.

   
   

4. Respondent charged Petitioner in a license disciplinary administrative complaint styled, Department of Professional Regulation, Board of Medical Examiners v. Gessler. Gessler requested a formal administrative hearing

   pursuant to Section 120.57(1) F.S., which request was granted. The formal administrative proceedings were assigned DOAH Case No. 86-3600.

   
   

5. The Department of Professional Regulation filed a Motion to Continue so as to effect settlement in DOAH Case No. 86-3600 on February 24, 1987. By Order of February 27, 1987, the undersigned hearing officer cancelled formal hearing scheduled for April 1-2, 1987, provided for the parties to advise within 90 days of the status of the matter, and of the need for formal hearing and mutually agreeable dates for rescheduling formal hearing. That order of February 27, 1987 also provided, in pertinent part,

   
   

   3. Failure of the parties to file any documents within 120 days will be deemed acknowledgment that all disputed issues of material fact have been resolved between the parties and that Respondent waives formal hearing in this cause and will result in an order of the undersigned relinquishing jurisdiction to the Board of Medical Examiners and closing the file of the Division of Administrative Hearings. (Emphasis supplied).

   
   

6. Neither the Department of Professional Regulation nor Gessler timely complied with the foregoing February 27, 1987 Order. Indeed, thereafter, no document or paper of any kind was filed by either party and by Order of July 1, 1987, the undersigned found that, pursuant to the February 27, 1987 order, their failure to file any paper at all constituted acknowledgment by each party that all disputed issues of material fact had been resolved between them, and relinquished jurisdiction to the Board of Medical Examiners, pursuant to Section 120.57(3) F.S., which provides, in pertinent part, as follows:

   
   

   Unless precluded by law, informal disposition may be made of any proceeding by stipulation, agreed settlement, or consent order.

   
   

7. On January 28, 1988, more than seven months later, a Notice of Appearance by new counsel for the Department of Professional Regulation was filed with the Division of Administrative Hearings.

   
   

8. There were no further filings with the Division of Administrative Hearings until August 2, 1988 when the new counsel for the Department of Professional Regulation filed a Motion to Reinstate and Reopen. That motion was clearly untimely, and, further, was filed at a time when no jurisdiction remained in the Division of Administrative Hearings for the proceedings or the relief sought. Since July 1, 1987, jurisdiction of the cause has remained continuously in the Board of Medicine, formerly the Board of Medical Examiners. Accordingly, the Motion to Reinstate and Reopen filed by the Department of Professional Regulation before the Division of Administrative Hearings was denied by an order entered on August 15, 1988.

   
   

9. The record herein shows that the Board of Medicine, which continues to retain jurisdiction of the charges under the administrative complaint which was formerly styled DOAH Case No. 86-3600, has entered no final order. Therefore, Gessler cannot qualify in this instant proceeding, DOAH Case No. 88-4902F, for an award of attorney's fees and costs as a result of being a "prevailing small

   business party" pursuant to Section 57.111(3)(c)(1) F.S. The former case 86- 3600 apparently remains in limbo because the parties' stipulation was never reduced to a writing, prepared in standard format, and signed by counsel for both parties for presentation to the Board of Medicine.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Sections 57.111 and 120.57(1), F.S. and Rule 22I-6.35 F.A.C.

    
    

11. Petitioner Gessler cannot recover herein because he has not demonstrated that he has prevailed in DOAH Case No. 86-3600.

    
    

12. Petitioner is caught in what has come to be known in the common American idiom as "a Catch-22." The Department of Professional Regulation's Chief Attorney, Medical Section, now declines to draft a settlement in the terms Gessler's attorney understood had been agreed upon over a year ago with a former staff attorney, and so the Board of Medicine has had no opportunity to either accept or reject any settlement stipulation whatsoever.

    
    

13. Gessler argued that by the Department of Professional Regulation's failure to file with the Division of Administrative Hearings any timely response to the February 27, 1987 order in DOAH Case No. 86-3600, the Department has acknowledged that all disputed issues of fact are resolved. That is indeed what the terms of the Order provided. Such language paves the way for an informal disposition by the agency pursuant to Section 120.57(2) F.S. in the event the parties elect to proceed in that manner.

    
    

14. However, Gessler misapprehends the nature of both previous Division of Administrative Hearing Orders in the underlying case. DOAH Case No. 86-3600 was never dismissed here. The Order entered July 1, 1987 clearly reads:

    
    

    2. Jurisdiction is hereby relinquished to the Board of Medicine and the file of the Division of Administrative Hearings is hereby closed, pursuant to Section 120.57(3) F.S.

    
    

15. Without either a voluntary dismissal by the Department of Professional Regulation or a Board of Medicine Final Order which is at least partly in Gessler's favor, Gessler cannot qualify as a "prevailing party" so as to bring the instant attorney's fees and costs action in this forum.

    
    

16. The Department's inordinate delay in the underlying case is understandably frustrating to citizen litigants, but it is likewise clear that Gessler, as a party to the original proceeding, had an equal opportunity with the Department, also a party, to file something in DOAH Case No. 86-3600 for the purpose of avoiding the presumed "acknowledgment that all disputed issues of material fact have been resolved between the parties and that Respondent waives formal hearing." Such filing could have been accomplished at any time from February 27, 1987 (date of the first order) until July 1, 1987 (date of the order relinquishing jurisdiction) [Emphasis supplied from Order of February 27, 1987.] Such a filing by Gessler would have automatically refuted the presumption and prevented relinquishment of jurisdiction from the Division of Administrative Hearings to the Board of Medicine. Also, Gessler may even now, in November, 1988, receive an informal hearing pursuant to Section 120.57(2) or

    petition the Board to relinquish jurisdiction of Case No. 86-3600 back to the Division of Administrative Hearings so that the original underlying charges may be tried before the Division of Administrative Hearings in a Section 120.57(1)

    F.S. evidentiary/fact-finding proceeding, as originally contemplated.

    
    

17. What Gessler cannot do is qualify for an attorney's fee and costs award at this time.

It is, accordingly ORDERED: The Petition for Award of Attorney's Fees and Costs is hereby DENIED.

DONE and ORDERED this 17th day of November, 1988, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1988.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Charles L. Curtis, Esquire 1177 S.E. Third Avenue

Fort Lauderdale, Florida 33316

John R. Alexander, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Lawrence A. Gonzalez, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Bruce D. Lamb, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 88-004902F

Orders for Case No: 88-004902F