STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES C. VASSAR, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 89-2674F

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the above-styled matter was heard before Joyous D. Parrish, a Hearing Officer with the Division of Administrative Hearings, on October 2, 1989, in Tallahassee, Florida. The parties were represented as follows:

APPEARANCES

For Petitioner: Michael I. Schwartz

Slepin & Schwartz 1114 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Mary B. Radkins

Senior Attorney

Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

The central issue in this case is whether the Petitioner, Charles C. Vassar, M.D., is entitled to an award of attorneys fees as a prevailing party since he successfully defended a disciplinary action brought against him by the Department of Professional Regulation (Department). More specifically, the issue is whether the initiation of the disciplinary proceedings was substantially justified and had a reasonable basis in law and fact at the time of initiation.

PRELIMINARY STATEMENT

This case began on May 18, 1989, when the Petitioner filed a Petition for Attorney's Fees and Costs which sought reimbursement for fees and costs incurred as a result of the defense of an administrative complaint which had been filed by the Department. The basis for recovery was alleged to be Section 57.111, Florida Statutes. On May 25, 1989, the Department filed a Motion to Dismiss the

petition and alleged that it failed to comply with Section 57.111(4)(b)(2), in that it was filed more than sixty days after the Petitioner became a "prevailing party." The Petitioner filed a response to the motion and, on June 13, 1989, an order was entered denying the request for dismissal.

Thereafter, the matter was scheduled for final hearing for August 14, 1989. The Department sought a continuance of the matter to which the Petitioner had no objection. Subsequently, the matter was rescheduled for hearing October 2, 1989, and the parties filed a prehearing stipulation on August 28, 1989.

At the hearing, the Department filed a motion in limine which was denied. Petitioner presented the testimony of Julie Gallagher and Paul Watson Lambert. Petitioner's exhibit 1 was admitted into evidence. The Department offered the testimony of Cecilia Bradley and M. Catherine Lannon. The Department's exhibit

1 and Joint Exhibits 1-3, constituting the transcript of the probable cause panel meeting, the administrative complaint, and the investigative report, together with the supporting information which was reviewed by the panel, were admitted into evidence.

The transcript of the proceedings was filed on October 17, 1989. By stipulation, the parties agreed to file their proposed orders within fifteen days of the filing of the transcript. Both timely filed their proposed final orders which have been considered in the preparation of this final order.

Rulings on the parties' proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

1. On June 5, 1985, the Department filed an administrative complaint against the Petitioner. That complaint alleged Petitioner had violated seven subsections of Section 458.331, Florida Statutes. The matter was not referred to the Division of Administrative Hearings for formal proceedings until July 10, 1987. The record does not explain the time delay which elapsed between the time of filing the administrative complaint and the time the matter was referred for hearing. On September 7, 1988, a formal hearing was conducted in connection with the matter.

   
   

2. On November 16, 1988, a recommended order was entered which recommended the dismissal of all counts of the complaint. The basis for the recommendation was the Department's failure to prove by clear and convincing evidence the facts constituting the alleged violations. A ruling on a preliminary motion had determined that the Department was not entitled to compel the licensee to testify or provide evidence against himself. On February 18, 1989, the Board of Medicine (Board) entered a Final Order, DOAH Case No. 87-2896, which approved and adopted the recommended order, both as to the findings of fact and conclusions of law. The Board rejected all exceptions which had been filed by the Department.

   
   

3. Petitioner is a "prevailing small business party" and is entitled to seek attorneys fees pursuant to Section 57.111, Florida Statutes. Petitioner has not sought fees on another basis.

   
   

4. Petitioner filed his petition for fees within 60 days of becoming a prevailing party and has, therefore, timely asserted his claim for fees.

5. The attorney fees and costs which Petitioner seeks are reasonable for the fees and costs incurred for all preparations in these proceedings (prehearing stipulation). The amount claimed to be due Petitioner exceeds

   $15,000.

   
   

6. There are no special circumstances which would make the award of attorney's fees and costs unjust (prehearing stipulation).

   
   

7. The administrative complaint which is the subject of this case was filed following a probable cause panel meeting which occurred on May 23, 1985. Present at that meeting were panel members Bass and Feinstein. Information presented to the members included an investigative report. Both members acknowledged that they had thoroughly reviewed the materials related to the allegations against Petitioner.

   
   

8. After reviewing the materials, the probable cause panel recommended the filing of the administrative complaint. Included with the investigative report were the following documents: a uniform complaint form, dated October 8, 1984, based upon a letter, dated October 2, 1984, received from the Food and Drug Administration; a copy of a letter dated October 23, 1984, addressed to Petitioner from the investigator informing Petitioner of the pending investigation; a copy of a letter from an attorney on behalf of Petitioner (which letter referenced the Fountain of Life Medical Centers and suggested Petitioner had valid patient/doctor relationships with persons being treated); another letter from the attorney for Petitioner referring to procaine and identifying Petitioner as the staff physician for the clinic under investigation; and an affidavit from an investigator who had attempted to make an appointment to see a doctor at the clinic.

   
   

9. The information noted in the investigative report contained alleged admissions made by Petitioner to the investigator. The purported admissions connected Petitioner to the Fountain of Life Medical Centers and the dispensing of the substance, procaine.

   
   

10. The investigative file did not contain information as to whether procaine is a legend drug, the identity of any person who had allegedly received the substance from the Petitioner, copies of any medical records related to the dispensing of the substance, or any confirmation that the dispensing of the substance in the manner alleged, if true, would fall below the prevailing standard of practice observed by the medical community.

    
    

11. The investigation conducted in this case was inadequate to fully clarify the factual issues prior to the probable cause hearing. The materials submitted to the probable cause panel did, however, create a reasonable basis for the panel's determination for reasons hereinafter discussed in the Conclusion of Law.

    
    

12. Counsel for the Department was not present at the probable cause meeting during the discussion of the Petitioner's case. Legal opinions regarding the sufficiency of the factual materials or admissibility of the evidence related to the claims were not sought by the panel nor rendered unsolicited by the counsel for the Board (who was present).

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties pursuant to Section 57.111 and Section 120.57, Florida Statutes.

14. Section 57.111, Florida Statutes, provides, in pertinent part: (3)(e) A proceeding is "substantially

    justified" if it had a reasonable basis in

    law and fact at the time it as initiated by the state agency.

    (4)(a) Unless otherwise provided by law, an award of attorney's fees and costs shall be made to `a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would made the award unjust. (e.s.)

    
    

15. In the case at issue, there was a reasonable basis for the probable cause panel to conclude as it did. The panel is not required to determine the admissibility of evidence prior to a probable cause decision. Nor is the panel obligated to challenge the accuracy of the facts reported to it by the Department's investigator unless the circumstances of the report would suggest an inherent unreliability. In this instance, the panel reviewed what was believed, at the time, to be accurate statements of admissions made by the licensee, copies of correspondence which connected the licensee to the activity in question, and advertisements which connected the questioned substance to the licensee's business address. Consequently, the panel had a reasonable suspicion based upon information, which to a reasonable person would appear to be reliable, to support the actions taken.

    
    

16. Therefore, the actions of the Department, at the time the matter was initiated, were substantially justified. The probable cause decision was based upon reasonable information to which the panel gave meaningful inquiry. Later, however, it became apparent that the Department did not have sufficient proof to go forward on the administrative complaint. For example, the Department maintained that the licensee could be compelled to testify against himself.

Once that preliminary matter was resolved against the Department, the prosecution of the cause became less justified since it became apparent that, either due to the delay in the original prosecution or to poor investigation, the Department had little or no reliable, admissible evidence to support the claims against this licensee. If Section 57.111, Florida Statutes, allowed a proration of fees and costs from that point in time (which it does not), Petitioner would recover. Based upon the statutory limitation which connects the time frame to that time when the matter is initiated, the Petitioner's claim must fail.

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that the petition for attorney's fees and costs be DENIED.

DONE AND ENTERED this 5th day of December, 1989, in Tallahassee, Leon County, Florida.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1989.

APPENDIX

RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT:

1. Paragraphs 1 through 3 are accepted.

2. With the explanation to paragraph 4 that the paragraph referred to evidence presented at the fees and costs hearing, the paragraph is accepted.

3. Paragraph 5 is accepted.

4. Paragraph 6 is rejected as contrary to the evidence presented. While the majority of the information given to the probable cause panel was "hearsay, the admissions allegedly made to the investigator would constitute an exception to the hearsay rule.

5. Paragraph 7 is rejected as contrary to the evidence.

6. Paragraph 7a is rejected as contrary to the record.

7. Paragraph 7b is accepted.

8. Paragraph 7c is accepted.

9. Paragraph 7d is rejected as contrary to the record.

10. Paragraph 7e is accepted.

11. Paragraph 7f is accepted.

12. Paragraph 7g is rejected as contrary to the record.

13. Paragraph 7h is rejected as contrary to the record.

14. Paragraph 8 is accepted.

15. Paragraph 9 is accepted.

16. To the extent that Paragraph 10 recites the opinion of one former DPR prosecutor, the paragraph is accepted,' however, the Petitioner did not present written evidence of such a non- rule policy or that such policy was mandated for all boards at the time in question.

17. The first two sentences of paragraph 11 are accepted. The balance of the paragraph is rejected as argument.

18. Paragraph 12 is rejected as irrelevant, argument, or an erroneous conclusion of law.

19. Paragraph 13 is accepted.

20. Paragraph 14 is accepted but is irrelevant.

21. Paragraph 15 is accepted but is irrelevant.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraphs 1 through 7 are accepted.

2. Paragraph 8 is rejected as unsupported by the record.

3. To the extent that the file contained an affidavit reciting such contact, paragraph 9 is accepted; however, no conclusion is reached as to the accuracy of that information.

4. Paragraphs 10 through 13 are accepted.

5. Paragraphs 14 through 16 are rejected as irrelevant.

6. Paragraph 17 is accepted.

7. Paragraph 18 is rejected as irrelevant; the issue which might be relevant would be whether the panel "rubber stamped" this item.

8. Paragraphs 19 through 25 are accepted.

COPIES FURNISHED:

Michael I. Schwartz Slepin & Schwartz 1114 East Park Avenue

Tallahassee, Florida 32301

Mary B. Radkins Senior Attorney

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Lawrence A. Gonzalez Secretary

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Kenneth D. Easley General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

Dorothy Faircloth Executive Director Board of Medicine

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

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: 89-002674F

Orders for Case No: 89-002674F