v. ) CASE NO. 91-7865F
Respondent. )
This matter came on for consideration before the Division of Administrative Hearings by its designated Hearing Officer, Diane K. Kiesling, upon the certified record established by agreement of the parties as set forth in the March 16, 1992 Order Certifying Record and Establishing Schedule for Proposed Orders. By agreement of the parties, no further evidentiary hearing was held.
For Petitioner: Samuel S. Jacobson
For Respondent: E. Renee Alsobrook
The issue is whether Petitioner, Frederick Mann, D.D.S., is entitled to an award of his appellate attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes.
On September 13, 1986, the Board of Dentistry held an informal Section 120.57(2) hearing in the case of Department of Professional Regulation v.
Frederick Mann, D.D.S., Case No. 00-52375. Petitioner did not dispute the facts alleged in the Administrative Complaint and requested only an informal hearing. The Board entered a Final Order on October 2, 1986, suspending Petitioner's license from the remunerative practice of dentistry for a period of ten (10) years. Petitioner did not appeal that Final Order.
On at least three (3) occasions subsequent to the Final Order, Petitioner requested reconsideration and modification of the October 2, 1986 Final Order. Each request was denied. Petitioner did not appeal the denials entered in 1987 and 1988. The third Motion for Modification was considered by the Board at its meeting on July 28, 1990. It was also denied by a Final Order entered on August 13, 1990. Petitioner filed an appeal from this Final Order. It is the attorney's fees and costs from that appeal which Petitioner seeks in this proceeding. On September 4, 1991, the First District Court of Appeal issued its opinion in Mann v. Department of Professional Regulation, Board of Dentistry,
585 So.2d 1059 (Fla. 1st DCA 1991). For the reasons stated therein, the First District Court of Appeal remanded the matter to the Board for further proceedings.
The Petitioner filed an Amended Motion for Modification on October 15, 1991. On November 8, 1991, the Board met to reconsider Petitioner's third Motion for Modification and his Amended Motion for Modification, together with the Court's opinion and mandate. After hearing Petitioner's arguments and evidence, the Board entered a Final Order on December 12, 1991, granting the requested modification of the October 2, 1986 Final Order.
On December 5, 1991, Petitioner filed the instant application for appellate attorney's fees and costs pursuant to Section 57.111.
A certified evidentiary record was agreed to by the parties and no further evidentiary hearing was needed. The record consists of the DPR records regarding Case No. 00-52375, including the original Final Order, the three Motions for Modification and the Board's Final Orders on each, the DCA Opinion and Mandate, the Amended Motion for Modification, the Final Order on remand, and the transcripts of the July 28, 1990, and November 8, 1991, meetings of the Board relevant to this case.
The parties agreed to file their proposed orders no later than March 30, 1992. DPR timely filed its proposed findings of fact and conclusions of law on March 30, 1992. Petitioner filed his proposed order on April 1, 1992, together with a Supplement to Motion for Appellate Attorney's Fees (seeking fees and costs for the instant proceeding) and a Motion for Extension of Time to File Proposed Order. While DPR is represented to be in opposition to the late filing of Petitioner's proposed order, any objection is hereby overruled. The Motion for Extension of time is granted. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Final Order.
The Department of Professional Regulation, Board of Dentistry, filed an Administrative Complaint in DPR Case Number 00-52375 against the Petitioner's license to practice dentistry on May 13, 1986.
The Petitioner did not dispute the facts alleged in the Administrative Complaint and the Board of Dentistry held an informal hearing, pursuant to Section 120.57(2), Florida Statutes, on September 13, 1986.
On October 2, 1986, the Board of Dentistry issued a Final Order suspending the Petitioner from the remunerative practice of dentistry for a period of ten (10) years and advised the Petitioner of his right to appeal the Board's Final Order.
The Petitioner did not appeal the October 2, 1986 Final Order of the Board of Dentistry.
On or about May 1, 1987, and/or May 2, 1987, the Board of Dentistry met to consider correspondence from the Petitioner seeking a determination of compliance with the Board's October 2, 1986 Final Order for his proposal to do volunteer community service dental work at "St. Catherine Laboure Manor" in Jacksonville, Florida. The Board of Dentistry requested further clarification from the Petitioner and took no further action with respect to the Petitioner's request.
On June 10, 1987, the Board of Dentistry met to consider the Petitioner's request to allow him to provide volunteer community service dental work under indirect supervision, and on June 26, 1987, the Board of Dentistry issued an Order Denying the Modification.
The Petitioner did not appeal the June 26, 1987, Order of the Board of Dentistry.
On or about March 9, 1988, the Petitioner submitted his second request to the Board of Dentistry for modification of its October 2, 1986 Final Order.
The Petitioner identified the following reasons as why the Board of Dentistry should grant his request:
My obligation to the people of the State of Florida was fully satisfied on September 28, 1987 (enc.).
My civil rights were restored on February 25, 1988 (enc.).
The fine imposed by the Board of Professional Regulation ($2000.00) has been paid in full.
Since July 1987 I have been treating patients in St. Catherine Laboure' Manor under the direct supervision of Owen Boales D.D.S., as required by order of the Board (enc.).
I am currently 64 years of age and need gainful employment. My wife and I are currently surviving primary on her earnings as an employee of the Florida Community College at Jacksonville.
My mentally disabled son was admitted to The Northeast Florida State Hospital approximately one month after my arrest. His condition would be benefited by whatever personal attention and care my wife and I may be able to provide.
The ten year suspension order now in effect is tantamount to lifetime punishment. This long suspension does not benefit the public but severely obstructs rehabilitative effort. It minimizes the opportunities for professional public service and prevents professional employment. It reduces the available options to demonstrate reliability and observable conformity to the profession's ethical standards. It will continue to impede all my effort to becoming a self sustaining productive and worthy member of society.
On April 23, 1988, the Board of Dentistry met to consider the Petitioner's second request for modification of the Board's October 2, 1986 Final Order.
After discussion and consideration of the evidence and arguments of the Petitioner, the Board of Dentistry on July 13, 1988, issued an Order Denying Modification of Final Order.
The Petitioner did not appeal the Board's July 13, 1988 Order denying his second request.
On or about June 5, 1990, the Petitioner through his attorney submitted his third request to the Board of Dentistry for a modification of the October 2, 1986 Final Order. The Petitioner's third Motion for Modification of Final Order submitted to the Board on or about June 5, 1990, did not contain information or circumstances that were substantially different from those known to the Board at the time the Final Order of October 2, 1986, was entered, at the time the first order was entered denying the modification request, or that were known to the Board when it had previously heard and denied Petitioner's second request in 1988.
On July 28, 1990, the Board of Dentistry met to consider the Petitioner's third request for modification of the October 2, 1986 Final Order.
After discussion of the parties and upon the advice of legal counsel, the Board of Dentistry on August 13, 1990, issued an Order Denying Modification of Final Order.
The Petitioner timely sought an appeal of the Board's August 13, 1990 Order in the First District Court of Appeal, Case Number 90-2369.
On September 4, 1991, the First District Court of Appeal issued its opinion where they found the August 13, 1990 Final Order to be ambiguous, vacated the August 13th Final Order, and remanded the case back to the Board of Dentistry for further proceedings.
On October 8, 1991, the First District Court of Appeal issued its Mandate to the Board of Dentistry to hold further proceedings consistent with the Court's opinion.
On or about October 15, 1991, the Petitioner submitted an Amended Motion for Modification alleging for the first time that "there had been material changes in circumstances since his suspension was entered and/or since the previous rulings as to his suspension."
On November 8, 1991, the Board of Dentistry met to consider the Petitioner's third request for modification of the Board's October 2, 1986 Final Order, the Amended Motion for Modification of Final Order, and the Opinion and Mandate of the First District Court of Appeal.
After discussion and consideration of the Petitioner's requests for modification, the Opinion and Mandate of the First District Court of Appeal, and the evidence presented, on December 12, 1991, the Board of Dentistry issued a Final Order on Remand granting the Petitioner's Amended Motion for Modification of the Board's October 2, 1986 Final Order.
The Petitioner is a sole proprietor of a professional practice of dentistry. His principal office and domicile are located in Jacksonville, Florida. He has fewer than twenty-five (25) full-time employees, and his net worth, at the time of filing, was less than two million ($2,000,000) dollars.
The Petitioner incurred appellate attorney's fees in the amount of
$8,990.00 and costs in the amount of $323.92. The Respondent did not dispute the reasonableness of the fees and costs in this case.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code.
Section 57.111(4)(a), Florida Statutes, states the following:
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 make the award unjust.
Pursuant to Section 57.111(3)(d), Florida Statutes, the Petitioner is a small business party for the purposes of the Florida Equal Access to Justice Act (FEAJA).
The Respondent was not a nominal party to the proceedings underlying this petition for an award of appellate attorney's fees and costs.
The Petitioner's burden is to establish that he is a prevailing small business party from action initiated by a state agency. Rudloe v. Department of Environmental Regulation, 11 F.A.L.R. 54, 59 (November 8, 1988); Romaguera v. Department of Professional Regulation, Board of Medical Examiners, 10 F.A.L.R. 929, 931 (January 4, 1988); Gentele v. Department of Professional Regulation, Board of Optometry, 9 F.A.L.R. 310, 326, 327 (June 20, 1986); aff'd 513 So.2d 672 (Fla. 1st DCA 1987). The burden then shifts to the Respondent to establish that it had a reasonable basis in law and fact when it initiated action against the Petitioner and/or to establish if any circumstances exist that would make the award unjust. Id.
Section 57.111(3)(b), Florida Statutes, defines the term "initiated by a state agency" for purposes of determining whether the agency action is of the type contemplated under FEAJA for an award of attorney's fees and costs as follows:
the state agency filed the first pleading in any state or federal court in this state;
the state agency filed a request for an administrative hearing pursuant to Chapter 120; or
the state agency was required by law or rule to advise a small business party of a clear point of entry after some recognizable event in the investigatory or other free-form proceeding of the agency.
Section 120.52(2), Florida Statutes, defines agency action as "the whole or part of a rule or order, or the equivalent, or the denial of a petition to adopt a rule or issue an order." The Florida Equal Access to Justice Act does not provide for an award of attorney's fees and costs for all types of agency action. Sections 57.111(2) and 57.111(4)(a), Florida Statutes.
The actions taken by the Board of Dentistry regarding the Petitioner constitute agency actions as defined under Section 120.52(2), Florida Statutes. However, to be entitled to an award of attorney's fees and costs under FEAJA, the Petitioner must establish that he prevailed from action initiated by a state agency as defined under Section 57.111(3)(b), Florida Statutes. Romaguera at 931. The Petitioner has not met this burden.
There are two periods of time and actions taken by the Board of Dentistry which are relevant to determining whether the Respondent initiated action under FEAJA from which the Petitioner prevailed. The first action taken by the Board of Dentistry occurred on or about May 13, 1986, when the Respondent filed an Administrative Complaint against the Petitioner's license to practice dentistry. After the Administrative Complaint was filed, the Petitioner advised the Board of Dentistry that he did not dispute the facts alleged within the complaint, but wished to be accorded a Section 120.57(2), Florida Statutes, informal hearing to submit evidence in mitigation of the penalty and to dispute a conclusion of law regarding an alleged violation of Section 466.028(1)(c), Florida Statutes (1985). On September 13, 1986, an informal hearing was held before the Board of Dentistry and on October 2, 1986, the Board issued a Final Order imposing discipline against the Petitioner's license to practice dentistry including a ten (10) year suspension from the remunerative practice of dentistry. Petitioner took no appeal from the October 2, 1986 Final Order.
Under Section 57.111(3)(b), Florida Statutes, the actions of the Respondent taken in filing the administrative complaint and filing the request for a Section 120.57(2) informal hearing are actions defined under FEAJA as initiated by a state agency.
More problematic is the agency action taken by the Board of Dentistry on or about August 13, 1990 when the Board issued a Final Order denying the Petitioner's third Motion for Modification of Final Order. The August 13, 1990 Final Order advised the Petitioner of his right to seek judicial review of the Board's Order. The question is whether this action is of the type contemplated under FEAJA specifically Section 57.111(3)(b)(3), Florida Statutes.
Until the Petitioner submitted his third Motion to the Board for Modification of the Final Order, there had been no free-form, investigatory, or other agency action regarding the Petitioner since 1988. Following submission of Petitioner's motion, the Board set the motion for hearing at their July 28, 1990, meeting. The Petitioner was notified by the Board that the motion for reconsideration of the October 2, 1986 Final Order would be heard by the Board at its July 28, 1990, meeting. At the meeting and after discussion of the parties, the Board denied the Petitioner's request and through the Final Order advised the Petitioner of his right to judicial review.
There is no statutory authority or rule of the Board of Dentistry or Department of Professional Regulation which authorizes the Board to hear a motion for modification/reconsideration of a Final Order. However, the cases cited by the Board of Dentistry in their August 13, 1990 Final Order, as explained by the First District Court of Appeal in reviewing the Board's Final
Order, stand for the proposition that agencies, in their proper exercise of discretion, do have inherent power to reconsider final orders which are still under their control although the inherent authority is a limited one.
The actions of the Board of Dentistry at its meeting of on or about July 28, 1990, were neither investigatory nor free form in nature but were adjudicatory in nature. See generally, Capeletti Brothers, Inc. v. Department of Transportation, 362 So.2d 346, 348, 349 (Fla. 1st DCA 1978); cert. denied,
368 So.2d 1374 (Fla. 1979) (court defining free-form proceedings as the day-to- day business of an agency which is not subject to the APA). Therefore, no state action was initiated by the Respondent as defined under Section 57.111(3)(b), Florida Statutes, and an award of appellate attorney's fees and costs to the Petitioner is not authorized under the circumstances of these proceedings.
Assuming the Respondent initiated agency action as defined under Section 57.111(3)(b), Florida Statutes, the Petitioner must also establish that he has prevailed from the action initiated by the Respondent. Section 57.111(3)(c), Florida Statutes, defines when a small business party becomes a prevailing party for the purpose of an award of attorney's fees and costs as follows:
A final judgment or order has been entered in favor of the small business party and such judgment or order has not been reversed on appeal or the time for seeking judicial review of the judgment or order has expired.
A settlement has been obtained by the small business party which is favorable to the small business party on the majority of issues which such party raised during the course of the proceeding; or
The state agency has sought voluntary dismissal of its complaint.
There has been no settlement obtained by the Petitioner and the Respondent has not sought voluntary dismissal of its complaint.
On December 12, 1991, the Board of Dentistry entered a Final Order on Remand granting the Petitioner's Amended Motion for Modification. On December 5, 1991, the Petitioner filed his application for an award of his appellate attorney's fees and costs prior to the entry of a final order by the Board of Dentistry and prior to the time for which seeking judicial review of the Board's actions had expired. Under Section 57.111(3)(c)(1), Florida Statutes, assuming that there was agency action initiated by the Respondent from which the Petitioner prevailed, the Petitioner had not reached prevailing party status as of the time he filed his request for an award of attorney's fees and costs. Therefore, the award is not authorized at this time under FEAJA.
If, as urged by the Petitioner, this case is looked at as having originated when the Department of Professional Regulation filed its Administrative Complaint against the Petitioner's license, the Petitioner is clearly not a prevailing party. The Board of Dentistry entered a Final Order on October 2, 1986, imposing discipline against the Petitioner's license. The Petitioner did not dispute the facts of the complaint, admitted to committing at least one of the violations charged, and did not appeal the Board's October 2, 1986 Final Order finding that the Petitioner had committed the violations alleged. Instead, the Petitioner sought a modification of the discipline imposed by the Board. The Petitioner's request for a modification was denied by the Board, and the Petitioner sought appellate review of Board's Order denying
his request. While noting that the Board could have properly denied the Petitioner's third request, the First District Court of Appeal found that the Board's Order denying the Petitioner's request for modification was ambiguous and remanded the case back to the Board for further proceedings. On December 12, 1991, the Board of Dentistry issued a Final Order granting the Petitioner's amended motion for modification of the previously justified discipline. There was no finding by the Board or the First District Court of Appeal reversing the Board's October 2, 1986, finding that the Petitioner had committed acts in violation of Florida Statutes subject to discipline by the Board. Pluto v.
Department of Professional Regulation, Division of Real Estate, 11 F.A.L.R. 3019, 3022 (May 15, 1989) (Hearing Officer finding that a party is not a prevailing small business party under FEAJA where only the penalty imposed against a licensee is modified but the findings of guilt remain).
The Federal Equal Access to Justice Act (Federal Act) does not provide a proper analogy for the basis for Petitioner's recovery of appellate attorney's fees and costs under the circumstances of the instant case. 28 U.S.C. Section 2412(d)(1)(A). While the Florida Equal Access to Justice Act has been given the same construction as the Federal Act when harmonious to the spirit and policy of the Florida Legislation, Petitioner's construction of Section 57.111(4)(a), Florida Statutes, is contrary to the plain meaning of the statute. Gentele 9
F.A.L.R. at 321; 513 So.2d at 673. Unlike the Federal Act, Section 57.111(4)(a), Florida Statutes, provides that an award of attorney's fees and costs shall be made unless the actions of the agency were substantially justified at the time they were initiated not for subsequent aspects of a proceeding where the agency's position has been determined to be no longer justified. Brown v. Department of Professional Regulation, Board of Psychological Examiners, 13 F.A.L.R. 3444, 3450 (August 2, 1991) (Hearing Officer finding that to determine if the actions of the agency were substantially justified the focus is at the time initiated); Union Trucking, Inc. v. Department of Transportation, 10 F.A.L.R. 6039, 6043 (October 5, 1988); Romaguera at 934. Therefore, assuming the case had its genesis with the filing of the Administrative Complaint, the Petitioner has clearly not prevailed from the Board's justified action, but has only obtained a modification of the discipline imposed.
The Mandate of the First District Court of Appeal does not make the Petitioner a prevailing party in that the First District Court of Appeal did not enter a Final Judgment or Order in Petitioner's favor. Instead, the First District Court of Appeal remanded the matter to the Board of Dentistry for clarification of their August 13, 1990 Final Order or in the alternative to hold further proceedings to determine whether the Petition for Modification of the Board's Final Order of October 2, 1986, should be granted.
The First District Court of Appeal found that the Board could have denied the Petitioner's third (3) Motion for Modification of the Board's October 2, 1986 Final Order because of the Petitioner's failure to state sufficient facts to justify his request for modification. However, the First District Court of Appeal found the August 13, 1990 Final Order lacking in its content to sufficiently advise the Petitioner or the Court of the Board's rationale. The First District Court of Appeal further found that, contrary to the stated position of the Board, the Board did have jurisdiction to hear Petitioner's request for modification of the October 2, 1986 Final Order.
On or about October 15, 1991, the Petitioner, on his own initiative, submitted an Amended Motion for Modification of the October 2, 1986 Final Order to the Board of Dentistry alleging "that there have been material changes in
circumstances since his suspension was entered and/or since the previous rulings as to his suspension. The Board has not previously been provided information as to these subsequent changes and developments." The Amended Motion corrected for the deficiencies noted by the First District Court of Appeal and was the first time that the Petitioner had alleged in any of his motions for modification before the Board of Dentistry that there had been a material change in circumstances to warrant modification.
On or about November 8, 1991, the Board of Dentistry held a meeting to consider the Petitioner's third Motion for Modification of the Board's October 2, 1986 Final Order in light of the First District Court of Appeal's Mandate and Opinion. The Board of Dentistry consider the Opinion and Mandate of the First District Court of Appeal and reviewed the Petitioner's Amended Motion for Modification.
The Board of Dentistry, after considering Petitioner's Amended Motion and the evidence presented, found that there had been a substantial change in circumstances such that the Board granted the Amended Petition for Modification of the Board's October 2, 1986 Final Order. The Board's Final Order granting the modification was filed on December 12, 1991.
Under Section 57.111(3)(c)(1), Florida Statutes, the actions of the Board of Dentistry by granting the Amended Motion for Modification did not make the Petitioner a prevailing party as to the appeal of the Board's August 13, 1990 Final Order through the entry of a Final Judgment or Order in Petitioner's favor.
If Petitioner is not entitled to the relief sought in his original request for attorney's fees and costs, his supplemental request fees and costs for the current proceeding is likewise denied.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Motion for Attorney's Fees and Costs is DENIED.
DONE and ORDERED this 10th day of April, 1992, in Tallahassee, Florida.
DIANE K. KIESLING
Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1992.
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Frederick Mann, D.D.S.
Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation, Board of Dentistry
1. Each of the following proposed findings of fact is adopted in substance as modified in the Final Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-23(1-23).
Samuel S. Jacobson Attorney at Law
E. Renee Alsobrook Senior Attorney
Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street
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.
