STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN RINDLEY, D.D.S., )

)

Petitioner, )

)

vs. ) CASE NO. 92-0972F

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case on June 29, 1993, in Miami, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gary Gerrard, Esquire

Alhambra West, Suite 525

95 Merrick Way

Coral Gables, Florida 33134

For Respondent: Ashley Peacock, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

The issue in this case is whether Petitioner is entitled to an award of attorneys' fees and costs pursuant to Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code.

PRELIMINARY STATEMENT

On or about December 23, 1988, the Respondent, the Department of Professional Regulation 1/ (the "Department" or "DPR"), filed an Administrative Complaint before the Board of Dentistry against the Petitioner, Stephen Rindley, D.D.S. Dr. Rindley disputed the allegations of the Administrative Complaint and the case was referred to the Division of Administrative Hearings ("DOAH") to conduct a formal hearing pursuant to Section 120.57, Florida Statutes. The case was styled Department of Professional Regulation v. Stephen Rindley, D.D.S., DPR Case Number 00-95307, DOAH Case Number 89-648 (hereinafter referred to as the "Underlying Proceeding").

The Administrative Complaint alleged that Dr. Rindley had violated Section 466.028(1)(y), Florida Statutes (1987), by failing to obtain radiographs (x-

rays) before extracting teeth and by failing to properly fabricate a partial denture for a patient E. B. 2/ DPR filed an Amended Administrative Complaint on July 6, 1990, narrowing the facts at issue in the Underlying Proceeding. In the Amended Administrative Complaint, the allegations regarding the partial denture were deleted, but DPR continued to maintain that Dr. Rindley violated Section 466.028(1)(y), Florida Statutes, by failing to obtain x-rays before extracting teeth.

A formal hearing on the Amended Administrative Complaint was held before the undersigned Hearing Officer on April 16, 1991. A Recommended Order was issued on July 18, 1991, and adopted in toto by the Board of Dentistry on December 12, 1991. The Final Order found Respondent not guilty of the allegations set forth in the Amended Administrative Complaint and dismissed that Complaint.

On February 13, 1992, Dr. Rindley filed with DOAH a Petition for Attorneys' Fees Under the Equal Access to Justice Act (the "Petition") seeking fees and costs incurred as a result of defending against the proposed disciplinary action sought by DPR in the Underlying Proceeding. The present case, DOAH Case No. 92- 0972F, was opened as a result of the filing of that Petition.

In his Petition, Dr. Rindley alleged that he was a prevailing small business party from an action initiated by a state agency, that the actions of the agency were not substantially justified at the time they were initiated, and that there were no special circumstances that would make an award of attorney's fees unjust.

On March 11, 1992, after receiving an extension of time, DPR timely filed its Response to the Petition. DPR did not dispute that Dr. Rindley had prevailed in an action initiated by DPR. However, DPR alleged that its actions were substantially justified at the time initiated, that there were special circumstances that would make an award unjust, that Dr. Rindley's attorney's fees and costs were not reasonable without further review, and that Dr. Rindley did not qualify as a small business party under the Florida Equal Access to Justice Act ("FEAJA"), Section 57.111, Florida Statutes (1991).

Petitioner filed an Amended Petition for Attorney's Fees on September 9, 1992. Respondent filed a Response to and Motion to Strike Petitioner's Amended Petition on September 16, 1992. As set forth in an Order entered on November 17, 1992, a telephone conference hearing was conducted on November 16, 1992, during which the Amended Petition was accepted.

Prior to the hearing in this case, a dispute arose between the parties as to whether a "small business party" seeking an award of attorneys' fees and costs under the FEAJA must demonstrate both that it employed fewer than 25 full time employees and that its net worth was less than two million dollars at the time the action was initiated. As set forth in an Order entered on April 23, 1993, Petitioner was directed to respond to discovery requests regarding both of these issues. At the hearing in this matter on June 29, 1993, Respondent claimed that Petitioner did not comply with that Order and/or had not provided complete answers to the discovery requests. At the conclusion of the hearing, the parties were directed to confer to coordinate the production of the necessary documentation and determine if it was necessary to supplement the record in this case. On July 21, 1993, Respondent filed a Notice that the dispute had been resolved and that Respondent no longer contested the status of Petitioner as a small business party.

At the June 29, 1993 hearing, Petitioner testified on his own behalf and also offered the testimony of Stephen Mechanic, Esquire, Joel M. Berger, D.D.S, J.D., and Allen Glaser, Esquire. Petitioner offered 41 exhibits into evidence, all of which were accepted. Respondent's relevancy objections to Petitioner's Exhibits 1 and 2 were overruled. Petitioner's Exhibits 5 and 6 were copies of pleadings from a federal lawsuit brought by Petitioner against the Department and several current and former members of the Board of Dentistry. This federal lawsuit is discussed in more detail below. Respondent's relevancy objections to these Exhibits were overruled. Respondent also objected to Petitioner's Exhibit 40, which was a copy of the deposition of Nancy Snurkowski. Respondent argued that, since Ms. Snurkowski was present and available to testify at the hearing, her deposition should not be accepted. That objection was overruled and the deposition was accepted in accordance with the provisions of Section 120.58(1)(a), Florida Statutes.

Respondent presented the testimony of four witnesses: Jeffrey Matthews, an investigator employed by the Department; Nancy Snurkowski, Esquire, an attorney employed by the Department; Audie B. Wilson, an administrative assistant for the Department; and Jerry Zimmerman, D.D.S., an expert dental consultant for the Department.

Respondent offered 15 exhibits into evidence, all of which were accepted. Respondent's Exhibit 1 was a copy of a December 12, 1988 Probable Cause Panel meeting. Petitioner objected to the exhibits attached to that transcript on the grounds that they had not been authenticated. Similarly, Petitioner objected to Respondent's Exhibit 3 which was a composite of documents that Respondent had certified were provided to the December 12, 1988 Probable Cause Panel.

Essentially, Petitioner argues that there is no evidence that the Probable Cause Panel reviewed the Department's investigative file or any other documents prior to finding probable cause. Ruling on Petitioner's objections was reserved and Respondent was allowed to present evidence regarding these documents.

The case against Petitioner was one of several cases on the Probable Cause Panel agenda for December 12, 1988. Section 455.225, Florida Statutes (1987), required the Department to prepare an investigative report and provide the Probable Cause Panel with the report and a recommendation concerning the existence of probable cause. The testimony of Nancy Snurkowski, who was the prosecuting attorney for the Board of Dentistry at the time, and the deposition testimony of Edward Baines, D.D.S., the chairman of the Probable Cause Panel, established that the Department routinely provided the Probable Cause Panel with the Department's entire investigative file in advance of the meeting. The transcript of the December 12, 1988 Probable Cause Panel meeting reflects that each panel member acknowledged that he had received copies of the materials for all of the cases on the agenda and each member acknowledged that he had reviewed the materials. There is nothing in the transcript of that meeting that indicates any departure from the usual course of business for the Probable Cause Panel. The Memorandum of Finding Probable Cause, which is part of Respondent's Exhibit 6, states that the Panel received and reviewed the investigative report regarding Stephen Rindley which had been assigned Case No. 00-95307. In view of this evidence, it is concluded that the exhibits to the probable cause hearing have been properly authenticated and Petitioner's objections to those exhibits are overruled.

After both parties had completed the presentation of their case-in-chief, Petitioner moved to reopen its case to present testimony that Petitioner qualified as a small business party under the FEAJA. Respondent objected to this request since Petitioner had already rested. Because all parties and

witnesses were still present in the hearing room and no prejudice was shown by Respondent, Petitioner's request was granted and Dr. Rindley was recalled to testify.

At Respondent's request, official recognition has been taken of Chapters 455, 466 and Sections 57.111, and 766.103, Florida Statutes, and Rules 21, 28 and 60Q, Florida Administrative Code.

A transcript of the proceeding was ordered by the parties and filed with DOAH. Both parties submitted Proposed Final Orders. A ruling on each of the parties' proposed findings of fact is included in the Appendix to this Final Order.

FINDINGS OF FACT

Based upon the oral and documentary evidence presented at the final hearing and the entire record in this proceeding, the following findings of fact are made.

1. Respondent is the state agency charged with regulating the practice of dentistry pursuant to Section 20.30 (subsequently amended to Section 20.165) and Chapters 455 and 466, Florida Statutes (1987).

   
   

2. At all times pertinent to this proceeding, Petitioner was a Florida licensed dentist having been issued license number DN-0004795.

   
   

3. At all times pertinent to this proceeding, Petitioner maintained a professional dental practice in the State of Florida.

   
   

4. At all times pertinent to this proceeding, Petitioner maintained his primary residence within the State of Florida.

   
   

5. At all times pertinent to this proceeding, Petitioner employed no more than 25 full time employees. Petitioner has never employed more than 25 full time employees.

   
   

6. Petitioner has a net worth of less than two million dollars, including both personal and business investments, and he has not had a new worth of more than two million dollars since the time the underlying action was initiated against his license to practice dentistry.

   
   

7. Petitioner is the sole shareholder of a corporation known as IRN, Inc., d/b/a North Dade Dental Offices. At the time the Underlying Proceeding was initiated, Petitioner operated his incorporated business out of two separate locations. The corporation was not named as a Respondent in the Amended Administrative Complaint filed by Respondent.

   
   

8. As noted in the Recommended Order entered in the Underlying Proceeding, there have been a number of disputes between Petitioner (then Respondent) and the Department and/or the Board relating to complaints with the Department filed regarding Respondent and investigations conducted by the Department. During the hearing in the Underlying Proceeding, Petitioner testified vociferously regarding what he believes has been selective prosecution by the Department. Petitioner contends that the Department and/or the Board have been deliberately harassing him because he is an "advertising dentist." Petitioner has filed a lawsuit in federal court naming as defendants most, if not all the Board members during the period from approximately 1980-1987 and several Department employees

   and attorneys based on these contentions. That lawsuit (the "Federal Lawsuit") was originally filed at some point prior to the initiation of the investigation in the Underlying Proceeding. While the developments in and status of the Federal Lawsuit are not clear, the case was apparently still pending at the time of the hearing in this matter.

   
   

9. Respondent has submitted some exhibits in this case which set forth the complaints received by and investigations conducted by the Department regarding Petitioner. The merits of those other complaints and the results and reasons for the Department's investigations in those cases are beyond the scope of this proceeding. No persuasive evidence was presented in this case to establish that the Administrative Complaint or Amended Administrative Complaint filed in the Underlying Proceeding were initiated for improper purposes or as part of a conspiracy against Petitioner because he is an "advertising dentist."

   
   

10. The Underlying Proceeding began on or about February 22, 1988, when E.

    B. (the "Patient") filed a written complaint with the Department regarding the care and treatment he had received from Dr. Rindley. There is no evidence that

    1. B.'s complaint was solicited or prompted in any way.

       
       

11. In his written complaint, the Patient stated that:

    
    

    I went to Dr. Rindley to have teeth pulled and have a lower plate made. The teeth were pulled and the lower plate was made, however I am unable to wear the plate as it hurts and I can not eat with it. I have to wear my old

    plate. I went back to Dr. Rindley and was told I now needed my upper plate relined. I told him I can eat fine with my old plate and to remake a new plate. He refused. I must go to another dentist and have a new plate made . . . Also,

    He was to pull a broken tooth and fill the cavities in the one crown left for the anchor of the plate, which he has not done, when asked when he kept saying next time.

    
    

12. The Patient also wrote a letter to MasterCard disputing his payment to Petitioner and advising MasterCard that he was filing a complaint with the Department. Petitioner argues that this action by the Patient demonstrates that the Patient and Petitioner were involved in a fee dispute over which the Department had no authority. However, the mere fact that a complaintant seeks a refund from a professional against whom he has filed a complaint does not preclude the Department from investigating the validity of the complaint.

    
    

13. In response to the complaint, the Department began an investigation which was assigned DPR Case Number 00-95307. The Department's investigator interviewed the Patient on March 4, 1988. E. B. told the Department's investigator that he was dissatisfied with the treatment provided by the Petitioner. He gave no indication that he had refused any recommended treatment or diagnostic test.

    
    

14. Petitioner was notified of the Patient's complaint during an interview conducted by the Department's investigator, Alison Lichtenstein, on March 10, 1988. Ms. Lichtenstein was accompanied by Jeffrey Matthews who sat in on the interview. During the interview, Petitioner provided the Department with the Patient's records and had his staff meet with the investigators.

15. As part of its investigation, the Department sought to interview a dentist who the Patient had identified as providing subsequent treatment. That dentist had no record of having provided any treatment to E. B.

    
    

16. On June 16, 1988, the Patient's records received from the Petitioner at the March 10, 1988 interview and the compiled investigative report were forwarded to Jerry Zimmerman, D.D.S., a Department consultant, for an expert opinion.

    
    

17. Dr. Zimmerman met with the Patient and examined the Patient's old partial denture, the lower partial manufactured by the Petitioner and a new partial that was made by a subsequent dentist. Dr. Zimmerman asked the Patient if any x-rays had been taken before his teeth were extracted and the Patient said no.

    
    

18. On August 5, 1988, Dr. Zimmerman wrote to the Department's attorney and noted that, in reviewing the file provided by Dr. Rindley, ". . . there [was] an unusual absence of portions of the dental records" and requested that the Department obtain a complete set of records from the Petitioner.

    
    

19. On August 24, 1988, Dr. Zimmerman issued a written opinion based on his review of the compiled investigative report, the Patient's records provided by the Petitioner, and the results of his own examination and interview of the Patient. Dr. Zimmerman noted:

    
    

    Upon an interview, in my office, patient EB sought dental care from Dr. Steven Rindley of

    North Miami Beach. Three teeth were to be extracted, and a lower denture fabricated. Upon receipt

    of the immediate partial, the patient immediately complained that the teeth wobbled, and he could

    not eat. . . During the examination of the patient EB, it was revealed that a new partial denture

    had been fabricated, after the work done by Dr. Rindley. EB showed this dentist that the appliance did not rock, nor did the first partial that he wore before Dr. Rindley's work was initiated.

    This reviewer tried in the partial fabricated by the attending Dr. Rindley, and indeed the partial did rock from side to side upon applying downward pressure, on the occluding surfaces of the lower teeth of the partial. It was evident that the lower teeth as fabricated on the lower partial were not placed over the ridge. This condition establishes a tipping motion considering the

    bony ridge as the fulcrum. The action of this fabrication, or the absence of knowledge that

    this condition would constitute a rocking appliance, thus endangering the teeth and supporting alveolar structure constitutes negligence. This act

    is a violation of Rule 21-G, Chapter 466.028(1)(Y)(GG). 3/

    
    

20. Dr. Zimmerman's opinion noted that the records contained an ambiguous, unsigned medical history. In Dr. Zimmerman's opinion, Petitioner's extraction of teeth without the benefit of an x-ray "in conjunction with an unsigned

    medical record constitutes negligence and malpractice under . . .[Sections] 466.028(1)(I), (M), (Y), (GG), [Florida Statutes] . . ."

    
    

21. On August 29, 1988, Petitioner's attorney submitted an affidavit executed by Petitioner for consideration by the Department's consultant and probable cause panel. That affidavit described E. B. as a very difficult patient who refused to follow the Petitioner's instructions and eventually walked out in the middle of his treatment. The letter was forwarded to Dr. Zimmerman.

    
    

22. On September 29, 1988, the Department received a letter from Petitioner's attorney purporting to transmit ". . . all of the medical and corollary reports/documents/notes, relating [the case]." With the exception of a few recent entries regarding the investigation, the records provided were the same as those received from Petitioner at the March 10, 1988 interview. The records did not indicate any prior treatment by the Petitioner or indicate that the Petitioner had prior x-rays from which to determine a course of treatment for the Patient. Petitioner's records did reflect that the Patient complained of problems with the partial manufactured by Petitioner and that adjustments were performed as early as January 30, 1988. Petitioner's records also indicated that further adjustments were necessary on February 1 and 4, 1988. On February 9, 1988, Petitioner noted that the upper partial was too loose and needed a reline.

    
    

23. The Department provided Dr. Zimmerman with all the information received from Petitioner, including the "complete" Patient records from Petitioner's attorney and the Petitioner's affidavit as well as correspondence received from Petitioner's attorney, and an internal memo issued to the investigator. In a letter dated October 11, 1988, Dr. Zimmerman indicted that he did not think it was appropriate for a consultant to consider anything other than the "dental records, radiographs, histories and testimony from the complainant." Dr. Zimmerman's letter reaffirmed his prior opinion and also noted that any problems encountered by Dr. Rindley should have been recorded in his patient records. No such problems were documented by Dr. Rindley.

    
    

24. On October 13, 1988, E. B. forwarded the lower partial manufactured by the Petitioner to the Department. It appears that, by the time it reached the Department, the partial had been damaged.

    
    

25. A Memorandum from a Department legal clerk to the investigator dated October 13, 1988, refers to Petitioner's Affidavit and states "Dr. Rindley is trying to establish a defense that the complainant prevented the completion of the treatment with his uncooperative behavior." The memo further requests the investigator to conduct a supplemental report accounting for "facts as remembered by the employees who were present at the dental office, patients who were scheduled for treatment at the time and the complainant himself and any witnesses who may have accompanied him to his dental appointments." It is not clear whether a supplemental investigation was undertaken. The investigative file does not contain any additional information from the Patient.

    
    

26. On October 14, 1988, the Department's legal clerk wrote to Dr. Zimmerman stating:

    
    

    Furthermore, you were requested not to conduct any interviews with the witnesses as requested

    by the subject. These witnesses will be interviewed by the investigator. Should further probing be

    necessary, Ms. Snurkowski will make the decision if and when probable cause is found.

    
    

27. On November 10, 1988, a memo was generated by a Department employee reflecting the status of the investigation. It noted that Dr. Zimmerman's opinion had not changed as a result of the information provided by Petitioner's attorney and that Dr. Zimmerman felt Petitioner had violated the Dental Practice Act with respect to the Patient as a result of his extraction of teeth without radiographs and because of the fabrication of an inadequate a lower partial.

    The memo further noted that Dr. Zimmerman believed there was "probable cause for further investigation and action."

    
    

28. Ms. Snurkowski, the prosecuting attorney for the Department, prepared a draft administrative complaint on or about November 17, 1988. The draft administrative complaint did not charge Petitioner with any deficiency in his records for E. B.

    
    

29. On December 12, 1988, the Probable Cause Panel for the Board of Dentistry met to consider the Department's compiled investigative report, including the Patient records, Dr. Zimmerman's opinion, the Department's recommendations, and Petitioner's response to the complaint. The Panel was composed of Edward F. Baines, D.D.S., and Thomas C. Kraemer. Like virtually all the other Board of Dentistry members since 1980, both of these individuals were named in the amended complaint filed in the Federal Lawsuit in June of 1988.

    The exact status of the Federal Lawsuit at the time of the Probable Cause Panel Meeting is not clear. The Probable Cause Panel transcript does not reflect any discussion of the Federal Lawsuit and there is no evidence that the existence of the lawsuit impacted upon the Probable Cause Panel's evaluation of the case against Petitioner. There is no evidence that these Panel members were even aware of the Federal Lawsuit. There is also no evidence that Dr. Baines or Mr. Kraemer were aware of or involved in any prior disciplinary matters regarding Petitioner and/or that they knew Dr. Rindley was an "advertising dentist."

    
    

30. Petitioner argues that there is no competent evidence of the materials provided to the Panel. However, it was established that the usual and customary practice of the prosecuting attorney, Ms. Snurkowski, was to provide the Panel members with copies of the Department's entire file and its recommendation in advance of the Probable Cause Panel meeting. There is no evidence to indicate that she failed to conform to her usual and customary practice in this case. At the outset of the Probable Cause Panel meeting, the Panel members indicated on the record that they had received copies of the Department's materials, and that they had an opportunity to review the materials and to familiarize themselves with the materials. The Department's investigative file was attached to the transcript of the proceeding to reflect the materials reviewed by the Panel in accordance with the Department's standard procedure.

    
    

31. Dr. Baines testified that it was customary for him to receive materials related to cases to be considered by the Probable Cause Panel at least thirty days in advance of the meeting and that those materials always included the patient records, witness interviews, consultant's reports, and the Department's investigative file. By the time of the December 12, 1988 Probable Cause meeting, Dr. Baines had made an independent evaluation of the case after reviewing all the material presented to him.

    
    

32. At the Probable Cause Panel meeting, Ms. Snurkowski had in her possession the Department's original file in case the members had any questions

    or problems with the materials previously provided to them. No problems with the materials were noted by the members.

    
    

33. During the meeting, Dr. Baines briefly described the case and noted that the factual allegations underlying the one count violation alleged in the draft administrative complaint were very serious, particularly the failure to take an x-ray. Dr. Baines asked if there was any additional discussion. When no questions were raised, he entertained a motion for a determination of probable cause of a violation of Section 466.028(1)(y), Florida Statutes, as alleged in the draft administrative complaint. The Panel determined that there was probable cause of a violation and directed the Department to file an Administrative Complaint against the Petitioner's license.

    
    

34. The Department filed an Administrative Complaint against the Petitioner on December 23, 1988, alleging that Petitioner had violated Section 466.028(1)(y), Florida Statutes. Paragraph 5 of the Administrative Complaint stated:

    
    

    5. The treatment rendered by [Dr. Rindley] to

    1. failed to meet the minimum standards of diagnosis and treatment as evidenced by, but not limited to, the following:

       1. failure to take radiographs;

       2. the partial denture rocked from side to side upon applying downward pressure;

       3. the lower teeth, as fabricated, were not placed over the ridge;

       4. the rocking partial endangered the teeth and the supporting alveolar structure.

       5. extracting teeth without the benefit of a radiographic examination.

    
    

35. The Administrative Complaint did not include any allegations of a record-keeping violation by Dr. Rindley. No allegation of such a violation was contained in the draft administrative complaint or discussed by the Probable Cause Panel.

    
    

36. In his response to the Administrative Complaint, Petitioner's counsel made specific reference to Petitioner's pending lawsuit against the Board and the Department's previous efforts to discipline Petitioner as well as purported investigations by the Federal Trade Commission on the allegations made by Petitioner in the Federal Lawsuit.

    
    

37. The Department retained a private law firm on a contract basis to handle the prosecution of the case. On June 7, 1989, the contract attorney for the Department wrote to Nancy Snurkowski about a conversation he had with Dr. Zimmerman and noted that:

    
    

    [Zimmerman] did not think this case was particularly strong. However, Zimmerman stated that he was

    able to find probable cause for DPR based on the fact that Rindley did not take x-rays before surgery. Zimmerman further stated that: because this case involved only a partial plate, he is afraid the hearing office [sic] might throw it out because it is so small.

    Zimmerman stated that the hearing officer might not rule in our favor because the patient could have gone back to Rindley for additional treatment

    in order to have his partial plate fitted correctly. However, Zimmerman will still testify that x-rays were not taken before surgery, which he feels

    is in violation of Florida Statutes.

    
    

38. After he learned that the Administrative Complaint filed against Petitioner did not include a count charging Petitioner with failing to properly document his treatment plan for the Patient, Dr. Zimmerman wrote to Nancy Snurkowski on July 5, 1989 stating that he was withdrawing from the case and would not testify because the prosecution had "been so poorly executed" and that he felt "most strongly that my efforts have been totally ignored, . . ." Dr. Zimmerman testified in the hearing in this case that, while he was disturbed by the way the prosecution was being handled, he felt at the time and still feels that, based on the evidence he reviewed, there was probable cause to find that Petitioner violated the provisions of law set forth in his August 24, 1988 letter.

    
    

39. The contract attorney wrote to Ms. Snurkowski on July 11, 1989, regarding Dr. Zimmerman's concerns. That letter provided as follows:

    
    

    As we discussed in our telephone conversation on July 7, 1989, we are having some problems with our expert, Dr. Jerry Zimmerman. Dr.

    Zimmerman apparently is of the opinion that this case involves poor record keeping, rather than negligence or incompetence. In fact, he has gone so far as to say that unless we amend

    our Administrative Complaint to reflect a charge for poor record keeping, he will no longer be our expert in this case. . . . You and I both agree that Dr. Zimmerman has 'missed the boat' on his opinion because this is a case of negligence or incompetence, and not poor record keeping.

    Dr. Zimmerman believes that the Respondent's failure to take x-rays is evidence of poor record keeping. You and I agree that it would have

    only been poor record keeping if he had taken the x-rays and then discarded or lost them. [Dr. Rindley's] failure to take the x-rays at

    all is evidence of incompetence or gross negligence.

    I also advised you that Dr. Zimmerman felt that our case was weak anyway.

    
    

40. The parties proceeded with discovery and preparations for a formal hearing. In a letter dated September 18, 1989, the contract attorney advised the Department that a good argument could be made in defense of the Administrative Complaint that the Patient did not give the Petitioner "ample opportunity to adjust the lower plate to fit properly or permit the [Petitioner] to make a new upper plate." Counsel also expressed his opinion that the Patient was a "terrible witness" who was easily roused to anger and emotional outbursts." The attorney pointed out that the Patient had obtained a new upper and lower plate from a subsequent dentist. These factors led the contract attorney to conclude that chances of success at formal hearing were remote.

41. With the consent of both parties, the hearing in the Underlying Proceeding was continued at least twice.

    
    

42. On January 30, 1990, the contract attorney wrote to Ms. Snurkowski confirming a discussion they had regarding the weakness of the case "based upon the nature of our complainant's testimony and demeanor combined with the problems we have with our expert witness, Dr. Jerry Zimmerman." The letter also confirms that Ms. Snurkowski authorized the contract attorney to propose a settlement pursuant to which Respondent would dismiss the Administrative Complaint filed in the Underlying Proceeding in exchange for Petitioner's agreement to waive any rights to seek fees or costs against Respondent and "not to endeavor to utilize this particular prosecution in connection with any unrelated allegations [Dr. Rindley] has or will be bringing against the DPR." This reference to the unrelated allegations was apparently an allusion to Petitioner's Federal Lawsuit. The letter indicates that Petitioner's counsel refused the settlement offer unless two other pending disciplinary cases against Petitioner were included. The contract attorney stated that if an agreement could not be reached along the lines proposed by Petitioner's attorney, it would be necessary to either dismiss the case unilaterally or "immediately retain a new expert witness, in hopes that his opinion, as in the case of our prior expert, is a favorable one."

    
    

43. The Department's contract attorney sought input from two additional expert consultants. He obtained the opinion of John Jordan, Jr., D.M.D., on April 9, 1990, and the opinion of Peter A. Keller, D.D.S., on March 5, 1990. Both Dr. Jordan and Dr. Keller felt that the failure to take an x-ray before extracting teeth was below community standards. Dr. Jordan was unable to comment on the lower partial manufactured by Petitioner and Dr. Keller found that, under the circumstances of the case and as revealed by the evidence, Petitioner's manufacture of the partial was not below community standards.

    
    

44. On May 31, 1990, the deposition of the Patient, E. B., was taken. At some point during that day, the Patient spoke off the record with the attorneys. As a result of those discussions, the Patient signed a written statement dated May 31, 1990, which was drafted with the assistance of Petitioner's counsel. That statement provided as follows:

    
    

    To whom it may concern:

    
    

    . . . as I have stated now on numerous occasions to various people associated with the Department of Professional Regulations and the various attorneys assigned to this matter, I do not

    want to prosecute or pursue this matter.

    
    

    As was stated both throughout my prior deposition and at several conversations after the deposition

    . . . I wanted only certain work performed and he indicated [sic] needed only what I requested,

    but other work. I was only going to be in town for a short period of time and I wanted what I wanted done quickly. Dr. Rindley had, in the

    past, done work for me in a timely and satisfactory manner and I got angry with him and he got angry with me. I left his office without allowing

    him to complete and/or adjust the work done.

45. It is not clear from the evidence presented in this case whether Petitioner refunded the Patient's money or otherwise made any accommodation to him in return for the Patient's execution of this statement.

    
    

46. Because (a) Dr. Zimmerman had withdrawn from the case, (b) the Patient no longer wanted to cooperate and (c) the lower partial made by Petitioner had apparently been damaged, there was very little evidence to support paragraphs 5(b), 5(c), and 5(d) of the original Administrative Complaint regarding the alleged improper fabrication of the partial.

    
    

47. After seeking and obtaining the necessary approval from the Hearing Officer, an Amended Administrative Complaint was filed by the Department on July 6, 1990. The Amended Administrative Complaint dropped the charges regarding the fabrication of the partial denture and narrowed the issues in the case to whether Petitioner's alleged failure to obtain x-rays violated Section 466.028(1)(y), Florida Statutes.

    
    

48. At the time, after probable cause had been found, the Department could only close a file by taking the case back to a Probable Cause Panel or to the entire Board. On July 27, 1990, the Department's attorney took the case back to the Probable Cause Panel with a recommendation to terminate the prosecution because of what she felt was a lack of clear and convincing evidence of a violation

    
    

49. This second Probable Cause Panel was composed of Robert T. Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. Dr. Ferris and Dr. Cadle were named defendants in Petitioner's Federal Lawsuit. Mr. Hudson was apparently not named as a defendant. The transcript reflects that both Drs. Ferris and Cadle were aware during the Probable Cause Panel hearing that they were defendants in the federal case. Ms. Snurkowski advised the panel that:

    
    

    The second [reason for dropping the case], in all candor, references Dr. Rindley and his past disciplinary history with the Department and his federal action and whatnot. . . . I just felt that it was not worth getting into additional potential federal litigation or potentially try to go to hearing and lose the case, and then looking at attorney's fees and costs imposed upon the Board . . . It wasn't worth at that point trying to litigate the case, albeit a remaining issue is still viable.

    
    

50. As noted above, it was Ms. Snurkowski's usual and customary procedure to provide the panel members with a complete copy of the Department's investigative file in advance of the Probable Cause Panel meeting. When a case was re-presented to the Probable Cause Panel after it had been in litigation, the Probable Cause Panel would not necessarily receive the entire litigation file. Petitioner argues that there were extensive depositions taken during discovery in the Underlying Proceeding which were not provided to the Second Probable Cause Panel for consideration. Many of those depositions had not been transcribed. In any event, Petitioner has not shown that there was any information that was known to the Department at the time that was not presented to the Second Probable Cause Panel and would likely have changed the conclusions reached by the Second Probable Cause Panel.

51. The transcript of the Second Probable Cause Panel hearing does not include any attachments to confirm what information the Panel considered. Each of the panel members indicated on the record that they had received the Department's investigative report and had reviewed it prior to the meeting. Ms. Snurkowski admittedly had only a "bare bones file" with her at the time of the Second Probable Cause Panel. The opinions of the two experts retained in anticipation of the formal hearing by the contract attorney were only provided to the Second Probable Cause Panel in summary or verbal form.

    
    

52. At the Second Probable Cause Panel meeting on July 27, 1990, Ms. Snurkowski recommended against pursuing the Amended Administrative Complaint. At least one member of the Panel recognized that Petitioner claimed the Patient refused to have x-rays taken. After considering the investigative report, Dr. Zimmerman's opinion, the response of the Petitioner, the Patient records, and the feelings of the Department regarding the credibility of the witnesses and the strength of the case, the Second Probable Cause Panel directed that prosecution of the case should continue with the proviso that the Department should review Dr. Keller's opinion regarding paragraphs 5(b), 5(c), and 5(d) of the original Administrative Complaint and proceed only on paragraphs 5(a) and 5(e) if Dr. Keller's opinion supported that decision. The evidence did not establish that the decision of the second Probable Cause Panel was motivated by the Federal Lawsuit or any prejudice against Petitioner because he was an "advertising dentist." Instead, the more persuasive evidence established that the members of that panel, like Drs. Zimmerman, Keller and Jordan, were very

    concerned about Petitioner's extraction of teeth without the benefits of x-rays.

    
    

53. A formal hearing was conducted on April 16, 1991, on the Amended Administrative Complaint. At that hearing, the Department presented no live witnesses and only submitted the deposition testimony of Dr. Jordan and Dr. Keller. Neither of these depositions addressed the community standards expected of a dentist when a patient refuses x-rays. E. B.'s patient records were not introduced into evidence. Petitioner testified on his own behalf and presented deposition testimony from two experts in the field of dentistry. During the hearing, Petitioner testified that the Patient refused to let him take x-rays during the treatment rendered in 1987 and 1988. Petitioner contended that he utilized x-rays taken of the Patient during treatment rendered in 1981 to assist him in his diagnosis and treatment in 1987-1988. Although those radiographs were outdated, Petitioner contends that they provided some useful information regarding tooth morphology and other matters. Based upon this information and his clinical observations that the teeth that were being extracted were extremely distressed, the Petitioner proceeded with the extractions without new x-rays.

    
    

54. Petitioner's experts testified that, under the circumstances, Petitioner's care of the Patient did not fall below community standards. This testimony of Petitioner and his experts at the April 16, 1991 hearing was not successfully rebutted or impeached. The deposition testimony of the Department's witnesses did not address the unique circumstances asserted by Petitioner at the April 16, 1991 hearing.

    
    

55. In his prior statements to the Department's investigators and in the correspondence received from his attorney, Petitioner had never previously conveyed to the Department that he had used x-rays from his previous treatment of the Patient. Moreover, based upon this information and his clinical observations that the teeth that were being extracted were extremely distressed, the Petitioner proceeded with the extractions without new x-rays. The Patient's records provided by Petitioner to the Department did not contain the x-rays

    purportedly used by Petitioner in treating the Patient nor did the records contain any notation regarding the allegedly extremely distressed condition of the teeth and the Patient's refusal to permit new x-rays. Consequently, these issues were not addressed in the depositions submitted by Respondent.

    
    

56. A Recommended Order was entered on July 18, 1991 recommending that the Amended Administrative Complaint be dismissed. Because the Amended Administrative Complaint did not include a count charging Respondent with failure to keep appropriate records, the Recommended Order did not address the adequacy of the Petitioner's records with respect to his course of treatment for the Patient. The Board of Dentistry adopted the Recommended Order and dismissed the Amended Administrative Complaint by Final Order issued December 12, 1991.

    
    

57. It is clear that the professional members of both the first and second Probable Cause Panels felt strongly that the extraction of teeth without the benefit of x-rays was a very serious matter. While the Board of Dentistry has not adopted any rules specifically requiring x-rays before extracting teeth, the evidence presented in the Underlying Proceeding and in this case established that it is below community standards to extract teeth without current x-rays except, possibly, in very unique circumstances. No such circumstances were evident from Petitioner's records. If the Department had anticipated the defense advanced by Petitioner during the hearing in the Underlying Proceeding, it is likely that a charge for deficient record keeping would have been included in the Amended Administrative Complaint. Indeed, such a charge had been recommended by the Department's expert from the time he first received the case.

    
    

    CONCLUSIONS OF LAW

    
    

58. 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 (1991).

    
    

59. Section 57.111, Florida Statutes, provides for an award of attorney's fees and costs in certain administrative proceedings. Section 57.111(4)(a) 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 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 an award unjust.

    
    

60. As set forth in Section 57.111(3)(b) Florida Statutes, a state agency initiates a proceeding when it is 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. By filing the Administrative Complaint against Dr. Rindley, the Department and the Board of Dentistry initiated an action against Dr. Rindley within the meaning of Section 57.111(3)(b)3, Florida Statutes.

    
    

61. Section 57.111(3)(e), Florida Statutes, provides 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."

62. As stated in Section 57.111(2), Florida Statutes, the purpose of the FEAJA is to diminish the deterrent effect on certain persons from defending against unreasonable governmental action because of the expense of civil actions and administrative proceedings.

    
    

63. The initial burden in an action under the FEAJA is on a petitioner to establish that it was a small business party that prevailed in an action initiated by a state agency. The burden then shifts to the state agency to establish that there was a reasonable basis in law and fact to justify the initiation of the action against the petitioner or that special circumstances exist which would make an award of attorney's fees and costs unjust.

    
    

64. Section 57.111(3)(c), Florida Statutes, provides that a small business party becomes a prevailing small business party when one of the following has occurred:

    
    

    1. 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;

    2. 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

    3. The state agency has sought a voluntary dismissal of its complaint.

       
       

65. Petitioner was a prevailing party in the Underlying Proceeding. Petitioner also qualified as a small business party as defined in Section 57.,111(3)(d)(1)(b), Florida Statutes. However, the evidence presented in this case established that there was a reasonable basis in law and fact for the initiation of the Underlying Proceeding. Accordingly, the Department was substantially justified in initiating the action.

    
    

66. For purposes of the FEAJA, the determination of whether a proceeding was substantially justified must focus on the time when the proceeding was initiated. In this case, that focus should be at the time of the first Probable Cause Panel meeting. Much of the evidence in this case dealt with the manner in which the prosecution was handled and the Board's decision to direct the Department to continue the prosecution even after its original expert quit and the Patient announced he was no longer interested in pursuing the case. All of these actions took place after the initiation of the action and, therefore, are not relevant to a proceeding under the FEAJA. In any event, the evidence established that the decision of the Second Probable Cause Panel to continue the prosecution was also substantially justified.

    
    

67. The Patient's complaint against Dr. Rindley was unsolicited. There is no persuasive evidence that the Department did anything out of the ordinary by initiating an investigation. Section 455.225, Florida Statutes (1987), provides that, when an investigation is complete and legally sufficient, DPR shall prepare and submit to the Probable Cause Panel the investigative report, findings, and recommendations of the Department. If the Panel finds, through a majority vote of its members, that probable cause exists under Section 455.225(4), Florida Statutes (1987), it can direct the Department to file a

    formal complaint, which the Department must then prosecute pursuant to the provisions of Chapter 120, Florida Statutes.

    
    

68. "To sustain a probable cause determination, there must be some evidence considered by the panel that would reasonably indicate that the violations alleged had indeed occurred." Kibler v. Department of Professional Regulation, 418 So.2d 1081, 1084 (Fla. 4th DCA 1982).

    
    

69. The Probable Cause Panel of the Board of Dentistry is composed of one lay member of the Board of Dentistry and two licensed dentists from the Board who are capable of reviewing patient records and expert opinions to determine if the violations alleged had occurred. In this case, only one of the professional members was present at the first Probable Cause Panel meeting. However, both members present voted to find probable cause. This initial finding of probable cause made after the professional member of the probable cause panel reviewed the patient records and an opinion rendered by another dentist had a reasonable basis in law and fact. Gentele v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987).

    
    

70. The burden of proof at a formal administrative hearing where the agency is seeking revocation and/or suspension of a professional license is clear and convincing evidence of the alleged violation. See generally, Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987). The standard of proof at a probable cause panel meeting is lower than that required at formal hearing and, as noted above, is simply whether the evidence, if credited at formal hearing, would reasonably indicate that the violations alleged had occurred. Kibler, supra.

    
    

71. As noted by the First District Court of Appeal in Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So.2d 715. 719 (Fla. 1st DCA 1989), review of the investigative report is important in evaluating a probable cause panel's decision that probable cause exists for the issuance of a formal complaint against a licensee. "[A]lthough a review of the entire transcript of the proceedings before the panel might be helpful in deciding whether the panel's initiation of prosecution was substantially justified, it is not essential to a resolution of [the] issue."

    549 So.2d at 719.

    
    

72. The investigative report submitted to the Probable Cause Panels in this case contained information which, if credited at final hearing, could reasonably have been construed to constitute a violation as alleged in the Administrative Complaint. In addition to the statements of two (2) witnesses (the Patient and Dr. Zimmerman), the investigative report contained Dr. Rindley's patient records which did not include any patient x-rays.

    
    

73. The evidence established that the lack of x-rays was very important to Dr. Zimmerman, the Department's initial consultant and the professional member of the First Probable Cause Panel. Moreover, Dr. Zimmerman, who examined the Patient, was convinced that the work he reviewed clearly reflected substandard care. The issues regarding the fabrication of the partial denture were later abandoned because (1) the Patient was not expected to be a very good witness and he decided during the course of the proceedings that he no longer wanted to cooperate with the prosecution; (2) Dr. Zimmerman, the Department's consultant who reviewed the Petitioner's work, withdrew from participation and refused to testify because he felt the attorney prosecuting the case had failed to include essential allegations regarding record-keeping; and (3) the plate fabricated by Petitioner was damaged and the Patient had the work redone. These factors made it unlikely that the Department would prevail. However, they do not vitate the

    initial finding that there was probable cause of a violation with respect to the fabrication of the partial. While Petitioner argues that he was not given an adequate opportunity to adjust the partial, Dr. Zimmerman's opinion, if credited at the formal hearing, might have been sufficient for the Department to prevail anyway.

    
    

74. The Second Probable Cause Panel's decision to direct this litigation to continue only on the counts regarding the lack of x-rays does not impugn the first Panel's decision that the fabrication of the partial was below community standards. Both Probable Cause Panels and the three experts who reviewed the case were unanimous in their belief that Petitioner's extraction of teeth without the benefit of x-rays fell below community standards. Because the Department's experts were not present at the final hearing and did not address in their deposition testimony the unique circumstances raised by Petitioner in his testimony, there was no persuasive evidence presented in the Underlying Proceeding to reject the opinions of Petitioner's experts based on the facts presented.

    
    

75. Dr. Rindley complains that the Department did not explore reasons why x-rays were not taken. However, at no point prior to the hearing in the underlying case did Petitioner express that the Patient had refused to have x- rays taken and/or that prior x-rays were available and used. The Patient's alleged refusal is not documented in this Patient's records. In fact, all five of these dentists consider the lack of x-rays to be an egregious situation.

    
    

76. Some of the Panel members have subsequently been made aware of the factors that Petitioner raised at the hearing to justify his decision to go forward with the work without x-rays. At least two of these dentists still believe that Petitioner's actions fell below community standards. Furthermore, it is clear that they would have expected the factors claimed by Petitioner to be documented in the records.

    
    

77. Dr. Rindley also complains because the transcripts of the Probable Cause Panel Meetings do not reflect an in-depth discussion of the investigative report. However, the evidence was sufficient to establish that the Department's investigative report was sent to all Probable Cause Panel members before the meetings and all members reviewed this information prior to the meetings.

    
    

78. Arguably, the Department's investigation could have been more thorough. Certainly, there should have been better coordination between the Department's attorney and its expert consultant. Dr. Zimmerman, the Departmental consultant, pointed out several potential areas for additional investigation that might have bolstered the case against Dr. Rindley, including a possible records charge. It is not clear what effort, if any, was expended by the Department to gather this additional evidence. The Department's unsuccessful effort at further investigation, or even the lack of effort, does not vitiate the reasonableness of the Probable Cause Panel's decision to direct the filing of an Administrative Complaint in this case.

    
    

79. The transcripts of the second Probable Cause Panel meeting and Dr. Cadle's deposition confirm that certain members of the Second Panel were aware of Dr. Rindley's Federal Lawsuit. However, it does not appear that the Lawsuit was a factor in reaching the decision to continue the prosecution of the Administrative Complaint. If anything, the evidence indicated Petitioner's Federal Lawsuit made the Department's attorneys more cautious about proceeding with the charges against Petitioner.

80. Petitioner argues that the Probable Cause Panel members named in the Federal Lawsuit should have disqualified themselves from sitting on the Probable Cause Panels when Petitioner's case was being considered. There is no such requirement in the statute. If Petitioner's argument is accepted, it would have been virtually impossible to pursue any complaints made against Dr. Rindley since virtually all the Board members were named as defendants in the Federal Lawsuit. It has not been shown that the Probable Cause Panel considered any information that was erroneously or improperly presented to them.

    
    

81. In conclusion, DPR has met its burden of showing that its actions were substantially justified. Therefore, Dr. Rindley is not entitled to the award he seeks. 4/

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Dr. Rindley's application for attorney's fees and costs from

Respondent is DENIED.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of March 1994.

J. STEPHEN MENTON 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 22nd day of March 1994.

ENDNOTES

1/ The Department of Professional Regulation has subsequently been merged with the Department of Business Regulation, and is now know as the Department of Business and Professional Regulation. See Section 3, Chapter 93-220, Laws of Florida.

2/ References in this Final Order to the patient will be first and last initial to protect patient confidentiality.

3/ The Department's investigative file includes two signed letters from Dr. Zimmerman dated August 24, 1988. The language quoted in the Findings of Fact was from the letter provided to the December 12, 1988 Probable Cause Panel. The second letter reached the same conclusions and was identical in all pertinent respects. The second letter included some additional language regarding Dr.

Zimmerman's interview with the Patient and the adjustments that were made to the partial. The evidence was inconclusive as to why two letters were prepared.

Neither party has established that there was any significance to the preparation of two letters.

4/ Petitioner argues that he is entitled to an award of fees and costs in excess of $42,000. As set forth above, it is concluded that no award should be made under the facts of this case. It is noted that, even if Petitioner had established that he was entitled to an award, no award made pursuant to FEAJA may exceed $15,000. Section 57.111(4)(d)2., Florida Statutes. Furthermore, Petitioner has not provided the itemized statements required by Section 57.111(4)(b), Florida Statutes and Rule 60Q-2.035(3), Florida Administrative Code. No conclusions are reached herein as to the reasonableness of the fees sought.

APPENDIX

Both parties have submitted Proposed Final Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where

Accepted or Reason for Rejection.

1. Adopted in substance in Findings of Fact 2.

2. Addressed in the Preliminary Statement and in the Conclusions of Law. This subject matter is also covered in Findings of Fact 3 through 6.

3. Addressed in the Preliminary Statement and in Findings of Fact 34.

4. Adopted in substance in Findings of Fact 10 and 11.

5. Adopted in substance in Findings of Fact 12.

6. Adopted in substance in Findings of Fact 13 through 15.

7. Rejected as unnecessary.

8. Rejected as unnecessary.

9. Adopted in substance in Findings of Fact 16 and 18.

10. Adopted in substance in Findings of Fact 18.

11. Rejected as unnecessary.

12. Rejected as a mischaracterization of the evidence. The subject matter is address in Findings of Fact 21 and 23.

13. Adopted in substance in Findings of Fact 19 and 20.

14. Adopted in substance in Findings of Fact 22.

15. Subordinate to Findings of Fact 23.

16. Subordinate to Findings of Fact 25.

17. Adopted in substance in Findings of Fact 26.

18. Subordinate to Findings of Fact 52 and 57. This subject matter is also addressed in paragraph 75 and 76 of the Conclusions of Law.

19. Rejected as a mischaracterization of the evidence and subordinate to Findings of Fact 55 and 57.

20. Subordinate to Findings of Fact 27.

21. Rejected as argumentative and subordinate to Findings of Fact 53 and

    55.

22. Adopted in substance in Findings of Fact 28.

23. Subordinate to Findings of Fact 29 through 31 and 33.

24. Rejected as unnecessary.

25. Rejected as unnecessary.

26. Rejected as unnecessary.

27. Rejected as unnecessary.

28. Subordinate to Findings of Fact 53 and 55. This subject matter is also addressed in paragraphs 75 and 76 of the Conclusions of Law.

29. Adopted in substance in Findings of Fact 34 and 35.

30. Adopted in substance in Findings of Fact 36.

31. Adopted in substance in Findings of Fact 37.

32. Adopted in substance in Findings of Fact 37.

33. Adopted in substance in Findings of Fact 38.

34. Rejected as unnecessary.

35. Adopted in substance in Findings of Fact 39.

36. Subordinate to Findings of Fact 44.

37. The first sentence is adopted in substance in Findings of Fact 48. The second sentence is rejected as unnecessary and ambiguous.

38. Adopted in substance in Findings of Fact 47.

39. Subordinate to Findings of Fact 52.

40. Subordinate to Findings of Fact 50 and 51.

41. Adopted in substance in Findings of Fact 49.

42. Subordinate to Findings of Fact 49.

43. Subordinate to Findings of Fact 52, 53 and 55.

44. Subordinate to Findings of Fact 50 and 51.

45. Rejected as a mischaracterization of the testimony and subordinate to Findings of Fact 52.

46. Rejected as unnecessary.

47. Rejected as unnecessary.

48. Subordinate to Findings of Fact 8 and 9. It should also be noted that the evidence was insufficient to establish when Petitioner's began advertising and/or that there was any correlation between his advertising and the Department's investigations of him.

49-52. Rejected as unnecessary. As noted in footnote four above, an award under the FEAJA cannot exceed $15,000.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 21.

2. Adopted in substance in Findings of Fact 21.

3. Adopted in substance in Findings of Fact 19.

4. Adopted in substance in Findings of Fact 20.

5. Adopted in substance in Findings of Fact 19.

6. Adopted in substance in Findings of Fact 22.

7. Adopted in substance in Findings of Fact 22.

8. Adopted in substance in Findings of Fact 22.

9. Adopted in substance in Findings of Fact 22.

10. Adopted in substance in Findings of Fact 22.

11. Adopted in substance in Findings of Fact 22.

12. Adopted in substance in Findings of Fact 23.

13. Adopted in substance in Findings of Fact 23.

14. Adopted in substance in Findings of Fact 24.

15. Adopted in substance in Findings of Fact 29.

16. Adopted in substance in Findings of Fact 29.

17. Rejected as unnecessary.

18. Subordinate to Findings of Fact 29.

19. Adopted in substance in Findings of Fact 30.

20. Adopted in substance in Findings of Fact 30.

21. Adopted in substance in Findings of Fact 30.

22. Adopted in substance in Findings of Fact 30.

23. Adopted in substance in Findings of Fact 31.

24. Adopted in substance in Findings of Fact 30.

25. Adopted in substance in Findings of Fact 31.

26. Rejected as unnecessary.

27. Adopted in substance in Findings of Fact 32.

28. Adopted in substance in Findings of Fact 33.

29. Addressed in paragraph 75 and 76 of the Conclusions of Law.

30. Adopted in substance in Findings of Fact 33.

31. The last sentence is adopted in Findings of Fact 23. The remainder of this proposal is addressed in footnote 3.

32. Adopted in substance in Findings of Fact 34.

33. Adopted in substance in Findings of Fact 34.

34. Subordinate to Findings of Fact 38.

35. Adopted in substance in Findings of Fact 46.

36. Adopted in substance in Findings of Fact 44.

37. Adopted in substance in Findings of Fact 40.

38. Adopted in substance in Findings of Fact 40.

39. Rejected as unnecessary.

40. Adopted in substance in Findings of Fact 47.

41. Adopted in substance in Findings of Fact 47.

42. Adopted in substance in Findings of Fact 48.

43. Adopted in substance in Findings of Fact 49.

44. Subordinate to Findings of Fact 49.

45. Adopted in substance in Findings of Fact 51.

46. Adopted in substance in Findings of Fact 50.

47. The first sentence is rejected as irrelevant. The remainder is adopted in substance in Findings of Fact 51.

48. Adopted in substance in Findings of Fact 43.

49. Adopted in substance in Findings of Fact 51.

50. Adopted in substance in Findings of Fact 51.

51. Adopted in substance in Findings of Fact 52.

52. Adopted in substance in Findings of Fact 53 and 56.

53. Adopted in substance in Findings of Fact 53.

54. Adopted in substance in Findings of Fact 53.

55. Adopted in substance in Findings of Fact 53.

56. Adopted in substance in Findings of Fact 56.

57. Rejected as unnecessary. This issues was not fully litigated at the hearing on the Underlying Proceeding.

58. Adopted in substance in Finding of Fact 9.

59. Adopted in substance in Findings of Fact 9, 29 and 49.

COPIES FURNISHED:

Gary Gerrard, Esquire Alhambra West, Suite 525

95 Merrick Way

Coral Gables, Florida 33134

Ashley Peacock, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William Buckhalt, Executive Director Department of Business and

Professional Regulation Board of Dentistry

1940 North Monroe Street Tallahassee, Florida 32399-0765

Jack McRay, Acting General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

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: 92-000972F

Orders for Case No: 92-000972F