STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK A. BROWN, PH.D., )

)

Petitioner, )

)

vs. ) CASE NO. 90-5318F

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF ) PSYCHOLOGICAL EXAMINERS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, this matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on March 28, 1991.

APPEARANCES

For Petitioner: Paul W. Lambert, Esquire

2851 Remington Green Circle, Suite C Tallahassee, Florida 32308-3749

For Respondent: E. Renee Alsobrook, Esquire

Department of Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

Whether Petitioner, Frank A. Brown, Ph.D., is entitled to an award of attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code.

PRELIMINARY STATEMENT

On July 2, 1990, the Board of Psychological Examiners issued a Final Order adopting the Recommended Order of the Division of Administrative Hearings dismissing the Amended Administrative Complaint in Department of Professional Regulation v. Frank A. Brown, Ph.D., DOAH Case No. 89-0599, DPR Case No. 81809. On August 28, 1990, Petitioner timely filed an application for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes and Rule 21I-6.035, Florida Administrative Code.

Rule 22I-6.035, Florida Administrative Code, requires the state agency against which a petition for costs and fees is filed to file a response or counter affidavit to the petition within 20 days of the filing of the petition. The Department of Professional Regulation, timely filed its response on September 17, 1990. The Department's response alleged that Petitioner was not entitled to an award of attorney's fees and costs since the charges against Petitioner in the Administrative Complaint and subsequent Amended Administrative Complaint had a reasonable basis in law and fact at the time the Department initiated the underlying proceeding and that therefore, the Department was substantially justified in the institution of the underlying proceeding. The Department further alleged that special circumstances existed which would make the award of attorney's fees and costs sought by the Petitioner unjust.

At the hearing Petitioner testified in his own behalf, and presented the testimony of two witnesses. The Respondent presented the testimony of five witnesses. Additionally, the parties stipulated to the admissability of twenty- one exhibits.

None of the statutory elements which would entitle Petitioner to an award of attorney's fees and costs under Section 57.111, Florida Statutes, were stipulated to by the parties with the exception of the reasonableness of the amount of the hourly charge utilized by Petitioner's attorney. Official recognition of the underlying proceeding, DOAH Case No. 89-0599, the Florida Statutes and the Florida Administrative Code was taken by the Hearing Officer.

Petitioner and Respondent filed Proposed Recommended Orders May 30, 1991 and May 31, 1991, respectively. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended order except where such proposals were not supported by the weight of the evidence or were immaterial, cummulative or subordinate. Specific rulings on the parties' proposals are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Department of Professional Regulation, Board of Psychological Examiners initiated an Administrative Complaint in Department of Professional Regulation Case No. 81809, DOAH Case No. 89-0599, against Petitioner, Frank A. Brown, Ph.D., on January 13, 1989.

   
   

2. Petitioner is the owner and proprietor of a professional service business engaged in the practice of psychology. At the time of the filing of the Administrative Complaint, Petitioner's business employed less than twenty- five (25) full-time employees and had a net worth under two million dollars. Additionally, Petitioner's residence, business domicile, and principal office were located in Florida, and have been so located since 1976.

   
   

3. The Administrative Complaint alleged that the Petitioner was guilty of sexual misconduct in the practice of psychology, that the Petitioner failed to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, and that Petitioner was unable to practice the profession for which he is licensed under Chapter 490, Florida Statutes, with reasonable skill or competence as a result of impairment due to a mental or physical condition or by reason of illness, drunkenness, or excessive use of drugs, narcotics, chemicals or any other substance, pursuant to Florida Statutes, 1981-1987. On August 24, 1989, an Amended Administrative

   Complaint was filed alleging the same violations pursuant to Florida Statutes, 1981-1986. Petitioner disputed these allegations and requested a formal administrative hearing.

   
   

4. Prior to hearing in the underlying proceeding, DOAH Case Number 89- 0599, Petitioner moved for dismissal of the Amended Administrative Complaint. Petitioner's motion was denied by the Hearing Officer.

   
   

5. A formal hearing was held in this matter on September 12-13, 1989. At the hearing and after presentation of a portion of the testimony, the Department voluntarily dismissed its allegation of sexual misconduct in the practice of psychology. The hearing proceeded on the remaining two charges in the Amended Administrative Complaint.

   
   

6. After the close of the evidence and submission of Proposed Recommended Orders by both parties, the Hearing Officer, on May 14, 1990, filed a Recommended Order recommending dismissal of the Amended Administrative Complaint against the Petitioner.

   
   

7. On July 2, 1990, the Department of Professional Regulation, Board of Psychological Examiners, filed a Final Order adopting the Recommended Order and dismissed the case consistent with the Hearing Officer's Recommended Order. Therefore, Petitioner became the prevailing party in the underlying action.

   
   

8. The allegations against Petitioner contained in the Administrative Complaint resulted from a complaint received in 1987 from R.B. and D.B. concerning the care and treatment R.B. received from Petitioner in his capacity as a psychologist which centered on the illicit 7-year love affair between R.B. & Petitioner. It was the turmoil caused by the discovery of this affair by D.B., R.B.'s husband, that caused Petitioner, in April, 1987, to be examined and treated at CPC Parkwood Hospital in Atlanta, Georgia by Psychiatrist Warren A. Hinson, M.D.

   
   

9. The Petitioner was advised of the complaint made by R.B. and D.B. around April 14, 1987. Petitioner responded through his attorney on at least two separate occasions with factual and legal arguments regarding the complaint lodged by R.B. and D.B.

   
   

10. On November 9, 1987, a Probable Cause Panel of the Board of Psychological Examiners met to review the investigative report and responses from Petitioner. The investigative report consisted of several statements from

    R.B. and D.B., the responses from Petitioner, an interview with a Dr. Trotter, who had rendered psychological services to both R.B. and Petitioner, together and separately, and various documentary evidence.

    
    

11. The investigative report was submitted to the Probable Cause Panel of the Board of Psychological Examiners by the Chief Attorney for Allied Health Services of the Department of Professional Regulation under cover of a memorandum dated October 27, 1987.

12. The memorandum states that the case was being submitted without a recommendation for an administrative complaint or closing order in Petitioner's case. The memorandum states:

    
    

    The attached case is being submitted without a recommended A/C or C/O. There are legal problems with charging sexual misconduct, although a strong argument could be made to support a finding that the subject failed to meet minimum standards of professional per- formance. Another issue, is the subject's fitness to practice by reason of emotional problems. Dr. Brown's attorney has suggested that the probable cause decision be deferred to allow Petitioner to enroll in the Impaired Practitioner's Program. Although there is no statutory provision for a psychologist to participate in the IPP, I see no reason why

    if couldn't be accomplished (by mutual agreement).

    
    

13. The Chief Attorney realized that there was a problem with the allegations against Dr. Brown, in light of the retroactive application of a recent rule of the Board of Psychological Examiners defining the psychologist/client relationship as continuing in perpetuity for purposes of sexual misconduct allegations and in light of the fact that Dr. Brown's conduct could be construed to have occurred after the termination of the professional relationship between Petitioner and R.B. The legal problem created by the fact that Dr. Brown's conduct could be construed to have occurred during a time when the practice of psychology was not regulated did not occur to the Chief Attorney at the time of the 1987 meeting. However, as indicated by both the memorandum and transcript of the comments made at the probable cause meeting there were legal arguments which could be legitimately made which might overcome the problems with this case. 1/ These arguments also could be applied to the legal problem caused by the absence of a statute regulating the practice of psychology.

    
    

14. The Probable Cause Panel, in the course of their review, considered the suggestion from Petitioner that a determination of probable cause be deferred pending the entry of the Petitioner into a program for impaired practitioners similar to the Impaired Practitioners Program utilized by other professions regulated by DPR.

    
    

15. At that meeting, the Probable Cause Panel of the Board of Psychological Examiners, after reviewing the investigative report and attachments, believed there was sufficient evidence to find probable cause. However, in light of the problems with this case and Petitioner's request to attempt to enter an impaired practitioners program (IPP), the Probable Cause Panel agreed to defer a finding of probable cause on condition that Petitioner develop and present to the Probable Cause Panel a comprehensive treatment and practice plan and possibly undergo a psychological/psychiatric evaluation.

    
    

16. Around November 10, 1987, the Chief Attorney for the Department of Professional Regulation, Allied Health Services, notified the Petitioner that the Probable Cause Panel of the Board of Psychology voted to "defer the probable cause decision", and requested that Petitioner initiate action to be accepted into an IPP and further, that Petitioner provide a comprehensive practice and

    treatment plan for the Probable Cause Panel's consideration at its next meeting. The Chief Attorney also requested that Petitioner's attorney contact the Department when he had the requested documentation prepared.

    
    

17. Importantly, neither the transcript nor the letter from the Department's Chief Attorney indicates what the Board or the Probable Cause Panel might do after the deferral period. At best, from a reading of the transcript, it appears that the Panel intended to leave its options open as to whether the Panel might later find probable cause even if Petitioner complied with the Panel's instructions. Clearly, both attorney's involved in the matter hoped the case would be settled. However, such attorney's hopes do not translate into a Board or Panel promise or settlement agreement to forgo action against Petitioner should he comply with the Panel's instructions. Given the transcript of the probable cause panels meeting, deferring a decision cannot be translated into an agreement to not take any action by the Panel. 2/

    
    

18. In any event, the Petitioner initiated action to enroll in an IPP. Around January 1988, Dr. Goetz, Director of the Physician Recovery Network accepted Petitioner into the IPP program.

    
    

19. Dr. Brown began participation in the Impaired Practitioners' Program by undergoing a five day inpatient evaluation in Atlanta. There was no judgment reached from this five day review that Petitioner was either incompetent or that he could not return to practice. Since there was no actual impairment of Dr. Brown, he returned to Pensacola to continue quarterly evaluations by psychiatrist Lawrence E. Mobley, M.D., and Pat O'Connell, M.D., and psychotherapy supervision with psychologist Jack Keller, Ph.D.

    
    

20. The Department received several generalized reports of Petitioner's status and progress with the IPP program. The reports were dated July 29, August 18, August 16, November 10, and December 1, 1988. The Department also received at least two status reports from Petitioner's attorney.

    
    

21. Around October 6, 1988, the Petitioner's attorney requested from the IPP program the information necessary to develop a comprehensive practice and treatment plan as requested by the November, 1987, Probable Cause Panel. The Respondent was never provided a comprehensive treatment and practice plan which was satisfactory to it. However, the Petitioner did make attempts to comply with this requirement. 3/

    
    

22. Believing Petitioner had complied with the Board's instructions, sometime around October 6, 1988, Petitioner's attorney informed the Department the Petitioner was established with an IPP program and that the matter was now ready for the Board's consideration.

    
    

23. On December 4, 1988, the Probable Cause Panel reviewed the investigative report which included, in part, the diagnosis and report of Dr. Hinson relating to the Petitioner and his hospitalization at CPC Parkwood, in Atlanta, Georgia; the Petitioner's responses and arguments as presented by his attorney's correspondence with DPR; the Petitioner's letter to R.B., returning professional fees previously collected during treatment; the August 5, November 10, and December 1, 1988, reports from the IPP program regarding Petitioner; the opinions of Patrick Cook, Ph.D., and Deborah Frank, R.N. Ph.D., L.M.F.T.; the interviews of R.B. and D.B.; additional sworn statements of R.B. and D.B., and various documentary evidence associated with the underlying case. Neither Dr. Brown nor his attorney were permitted to attend this Probable Cause Panel's meeting.

24. On the same date, the Probable Cause Panel after reviewing the investigative report, discussing the allegations, and consulting with legal counsel for the Board, Mr. Allen Grossman, Assistant Attorney General, by unanimous vote determined the existence of probable cause and directed the issuance of an Administrative Complaint as outlined in paragraph 3 above.

    
    

25. At the time a finding of probable cause was made by the Board, at least two factual issues were considered by the Probable Cause Panel. Those issues were whether the Petitioner built his intimate relationship with R.B. upon an existing professional relationship interrelated with whether there had been a termination of that professional relationship and whether Petitioner's romantic involvement with R.B. occurred during a time when the practice of psychology was a regulated profession. The Probable Cause Panel relied upon the interviews of R.B. and her additional sworn statements regarding her romantic and professional relationship with the Petitioner. These statements as well as other evidence in the investigative file supported a finding of probable cause of sexual misconduct with a patient. Additionally, the Probable Cause Panel reasonably relied upon the statements of R.B. and D.B. and Petitioner's responses to DPR, regarding his relationship with R.B. and her family in finding probable cause of practicing below the prevailing standard for practice.

    
    

26. On both these issues, the relevant time periods involved in this case were unclear from the information the Probable Cause Panel had before it. However, there was enough evidence in the investigative file for the Board to reasonably conclude that Petitioner had engaged in actions which would subject him to discipline during a time when the practice of psychology was regulated or cause his later behavior to relate back to a time when the practice of psychology was regulated. Additionally, as noted with the 1987 Probable Cause Panel, there were legitimate legal arguments which could be made in an attempt to overcome the problems due to a lack of rules or statutes incurred in the underlying action. Therefore, given the fact that the Board had a reasonable basis in law and fact to find probable cause against Petitioner for violation of Chapter 490, Florida Statutes, Petitioner is not entitled to an award of attorney's fees.

    
    

27. The Probable Cause Panel also, considered the issue of Petitioner's mental health vis a vis Petitioner's ability to safely practice psychology.

    This latter issue and the resultant charge in the Administrative Complaint appears to be a "throw in" charge for which the Panel had no reasonable legal or factual basis to find probable cause. However, the issue of Petitioner's mental health was never seriously prosecuted by the Department and did not play a significant role in the litigation or the fees expended in the litigation.

    Additionally, the evidence did not demonstrate what portion of the Petitioner's attorney's fees and costs could be attributed to this single issue. Therefore, Petitioner is not entitled to an apportionment of attorney's fees and costs based on this issue.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Sections 57.111 and 120.57(1), Florida Statutes; and Rule 22I-6.036, Florida Administrative Code.

29. Section 57.111, Florida Statutes, governs the award of attorney's fees and costs in an administrative action. Section 57.111(4)(a), Florida Statutes states:

    
    

    Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjud- icatory proceeding or administrative proceed- ing pursuant to Chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make an award unjust.

    
    

30. Section 57.111(3)(b), Florida Statutes, provides that the term "initiated by a state agency" means that the state agency:

    
    

    1. Filed the first pleading in any state or federal court in this state;

    2. Filed a request for an administrative hearing;

    3. Was required by law or rule to advise a small business party of a clear point of entry after some recognizable event in the investi- gatory or other free form proceeding of the agency. By filing the Administrative Complaint, part of which advises Petitioner of a clear point of entry, the Board initiated an action against Petitioner within the meaning of Section 57.111(4)(b)3., Florida Statutes.

       
       

31. Section 57.111(3)(e), Florida Statutes, states that "[a] proceeding is 'substantially justified' if it had a reasonable basis in law and fact at the time it was initiated by a state agency." In this case, the finding of the Probable Cause Panel was based, in part, on the investigative report compiled by DPR.

    
    

32. As noted by the First District Court of Appeal, "[t]he procedure set forth under Section 455.225, Florida Statutes (1987), relating to disciplinary proceedings initiated by a regulatory agency, clearly suggests that an investigative report may be the most substantial and relevant evidence necessary to assist the panel in rendering a decision of whether probable cause exists for the issuance of a formal complaint against the licensee." Department of Professional Regulation v. Toledo Realty, Inc., 549 SO.2d 715, 719 (Fla. 1st DCA 1989). Such a report may be relied upon for a finding of probable cause. 4/

    
    

33. However, in addition to the investigative report the Panel had Petitioner's counsel's responses and arguments, and the opinions of at least one expert on the minimum standards of practice. Given all this information, there was a reasonable basis in law and fact that probable cause existed to believe that Petitioner had violated Chapter 490, Florida Statutes, in that the Petitioner failed to meet the minimum standards of performance in professional activities when measured against prevailing peer performance, and that Petitioner had committed an act upon a patient or client, other than one's spouse, which would constitute sexual misconduct.

34. There was no substantial evidence presented that the Respondent failed to follow the statutory procedures in providing the investigative report of findings and recommendations to the Probable Cause Panel. As in Toledo, there was clearly some evidence before the Panel in the form of the investigative report and sworn statements of the complainants on which it based its decision to file the Administrative Complaint against the licensee. Toledo, 549 So.2d at 719. The fact that Petitioner was not granted admission to the Probable Cause Panel's meeting is irrelevant. Under the court's rationale in Toledo, a determination of probable cause by the Probable Cause Panel of the board of Psychological Examiners is not rendered suspect on the basis that the Petitioner was not allowed to be present and thereby give further input into the determinations of the Panel. The above is particularly applicable in this case since Petitioner responded through his attorney on at least two separate occasions and provided both factual and legal arguments as to why the allegations should be determined unfounded to the Probable Cause Panel.

    
    

35. Finally, the fact that the Department did not prevail at the final hearing does not raise the presumption that it was not "substantially justified" in initiating a disciplinary action against the Petitioner's license. Gentele

v. Department of Professional Regulation, Board of Optometry, 9 FALR 310, 327-

328 (June 20, 1986), aff'd, 513 So.2d 672 (Fla. 1st DCA, 1987). The appropriate period of time to be reviewed on the issue of substantial justification occurs when the finding of probable cause is made and not at the conclusion of a case when the Final Order is entered. Therefore, since the Probable Cause Panel, as evidenced by the transcript of its December 4, 1988, meeting, discussed the Department's recommendation for a determination of Probable Cause, reviewed the response and legal arguments as provided by the Petitioner, engaged in meaningful discussion and advice of legal counsel and had a reasonable basis in law and fact to determine the existence of Probable Cause, the Petitioner is not entitled to an award of attorney's fees and costs.

ORDERED

Wherefore, based on the foregoing Findings of Fact and Conclusions of Law, it is, ordered that Petitioner's application for attorney's fees and costs be denied.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of August, 1991.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1991.

ENDNOTES

1/ In the final analysis, these legal arguments did not serve to overcome these 'time' problems. However, at the time of the Board's action these were legitimate legal arguments and it was not unreasonable for the Board to push forward with a hard case. Litigation is seldom perfect and Section 57.111, Florida Statutes, should not be construed to eliminate or completely discourage the pursuit of such hard cases. See Gentele v. Department of Professional Regulation, Board of Optometry, 9 FALR 310 (June 20, 1986), aff'd, 513 So.2d 672 (Fla. 1st DCA, 1987).

2/ The confusion in this case was, in part, due to the changing attitudes toward the case which occurred when the attorney handling the case changed. The fact that such changes frequently occur in State government demonstrates the need to nail down the exact details of any settlement agreement.

3/ Again, there is no question that Petitioner's "failure" to submit a comprehensive plan was due to the change in Departmental attorneys.

4/ That is not to suggest that an investigative report which is based on a wholly insufficient investigation can be used by a Probable Cause Panel as a basis for a finding of probable cause since part of such a panel's duties is to make a good faith review of the facts of a given case. See Kibler v. Department Professional Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982); Turner v.

Department of Professional Regulation, 460 So.2d 395 (Fla. 5th DCA 1984) and Fieber v. Department of Banking and Finance, 9 FALR 5236 (1987).

APPENDIX TO FINAL ORDER, CASE NO. 90-5318F

The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,

14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 29 of Respondent

Proposed Findings of Fact are adopted, in substance isofar as material.

The facts contained in paragraphs 13, 28, and 30 of Respondent's Proposed Findings of Fact are subordinate.

The facts contained in paragraph 27 of Respondent's Proposed Findings of Fact were not shown by the evidence.

The facts contained in paragraphs 1, 2, 8, 9, 10, 11, 12, 13, 23, 31, 32, 34, 40 & 50 of Petitioner's Proposed Findings of Fact are adopted, in substance insofar as material.

The facts contained in paragraphs 3, 4, 7, 14, 15, 16, 17, 18, 19, 20, 22,

24, 25, 26, 27, 28, 29, 30, 33, 35, 36, 37, 38, 39, 41, 42, 44, 45, 46, 47, 48,

49, 53, 54, & 55 of Petitioner's Proposed Findings of Fact are subordinate.

The facts contained in paragraph 51 of Petitioner's Proposed Findings of Fact were not shown by the evidence.

The facts contained in paragraph 52 of Petitioner's Proposed Findings of Fact are irrelevant.

Petitioner's Findings of Fact did not contain any paragraphs numbered 5, 6 and 43.

COPIES FURNISHED:

E. Renee Alsobrook, Esquire Department of Professional

Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Paul W. Lambert, Esquire

2851 Remington Green Circle, Suite C Tallahassee, Florida 32308-3749

Henry Dover Executive Director

Board of Clinical Social Work, Marriage & Family Therapy and Mental Health Counselling

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street 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: 90-005318F

Orders for Case No: 90-005318F