STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH W. HOOVER, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 93-0168F

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to stipulation of the parties, no hearing was conducted and the issues in this case are presented on the record and on the parties' proposed orders, including their legal argument.

APPEARANCES

For Petitioner: Kenneth E. Brooten, Jr., Esquire

660 West Fairbanks Avenue Winter Park, Florida 32789

For Respondent: Mary B. Radkins, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code.

Petitioner, Dr. Hoover, seeks to recover his attorney's fees and costs incurred in the defense of an action brought against him by the Department of Professional Regulation, Board of Medicine.

The issues for determination are whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in DOAH Case No. 92-2202, DPR Case No. 0104601, and whether, in the absence of such substantial justification, Petitioner is entitled to the award of the amount of attorney's fees and costs sought, or whether special circumstances exist which would make an award unjust.

PRELIMINARY STATEMENT

Following the Board of Medicine's dismissal of charges against Petitioner in Department of Professional Regulation vs. Kenneth W. Hoover, M.D., DOAH Case No. 92-2202 (DPR Case No. 0104601), a Motion for Attorney's Fees and Costs was filed on January 14, 1993. Respondent timely filed a Motion to Dismiss and Response on February 3, 1993. The Hearing Officer ordered a pre-hearing conference report by the parties, which report was filed on February 19, 1993, and a prehearing stipulation to be filed by March 15, 1993. With his documents Dr. Hoover filed an affidavit qualifying him as a small business party. The proposed final orders, briefs or memoranda were filed by April 1, 1993.

Since both parties have requested consideration of the record, official recognition is taken of the pleadings, documents and orders entered in DOAH Cases 91-4068, 91-7526F, 92-2201 and 92-2202, all of which relate to the Byzantine procedural history of DPR Case #0104601.

In addition, DPR has filed a document not otherwise found in the DOAH case files, a memorandum of finding of probable cause dated October 4, 1992 in DPR Case #0104601. The document is now considered part of the record in the instant case, in the absence of objection by Dr. Hoover.

The proposed findings of fact proposed by both parties reflect that the facts of this case are substantially uncontroverted and they are adopted herein.

FINDINGS OF FACT

1. The Department of Professional Regulation, a state agency, initiated action against Dr. Hoover by filing an Administrative Complaint on May 16, 1991, in DPR Case No. 0104601 (Hoover I); Dr. Hoover by election of rights requested a formal hearing; the case was referred to the Division of Administrative Hearings (DOAH) and was assigned DOAH #91-4068. (DOAH Case No. 91-4068: Administrative Complaint, Election of Rights form)

   
   

2. The case was set for final hearing on November 13-14, 1991. Dr. Hoover requested a continuance on October 16 because he would be unavailable to assist counsel prepare for hearing. Hearing Officer Robert Meale denied his request. (DOAH Case No. 91-4068: Request for Continuance, Order Denying Continuance)

   
   

3. The Department moved for a continuance on October 29th because the primary expert witness had gone to Japan and could not return in time for the hearing or depositions by Dr. Hoover. The Hearing Officer also denied this motion. (DOAH Case No. 91-4068: Petitioner's Motion for Continuance, Order Denying Continuance)

   
   

4. On November 5, 1991, the Department filed a Notice of Voluntary Dismissal, Without Prejudice. (DOAH Case No. 91-4068: Notice)

   
   

5. The Hearing Officer closed the DOAH file on November 13, 1991. (DOAH Case No. 91-4068: Order)

   
   

6. Dr. Hoover then filed a Petition for Fees and Costs on November 21, 1991, and the case was assigned DOAH Case No. 91-7526F. (DOAH Case No. 91- 7526F: Petition)

7. After formal hearing the Petition was denied by the Hearing Officer, who on March 31, 1992, ruled that "the Department has met its burden of showing that the filing of the Administrative Complaint was substantially justified." (DOAH Case No. 91-7526: Final Order)

   
   

8. Immediately, without returning the case to the Probable Cause Panel, the Department served the same Administrative Complaint in DPR Case #0104601 on Dr. Hoover (Hoover II). By election of right, he again requested a formal hearing. (DOAH Case No. 92-2202)

   
   

9. On April 8, 1992 two cases against Dr. Hoover were referred to DOAH, DPR Case #0104601 and #110008. They were assigned DOAH Case #92-2202 and 92- 2201, respectively, and were assigned to Hearing Officer Mary Clark, who consolidated them without objection. (DOAH Case Nos. 92-2201, 92-2202)

   
   

10. Dr. Hoover's counsel withdrew and Mr. Brooten became counsel of record on May 4, 1992. (DOAH Case No. 92-2202)

    
    

11. On May 14, 1992, Dr. Hoover filed his Motion to Dismiss DOAH Case #92- 2202. After oral argument the motion was granted by the Hearing Officer on September 16, 1992. (Recommended Order of Dismissal, DOAH Case No. 92-2202)

    
    

12. The Hearing Officer held in her Conclusions of Law that the Department of Professional Regulation had no jurisdiction to dismiss a complaint, hold it in abeyance, and refile at its convenience without a new probable cause determination. The Hearing Officer also noted that the passage of time might yield changed circumstances and a changed result. (Recommended Order of Dismissal, DOAH Case No. 92-2202)

    
    

13. On October 12, 1992, Dr. Hoover filed a Motion for Attorney's Fees and Costs which was denied without prejudice by the Hearing Officer on October 21, 1992, on the grounds that, without a final order, he was not a prevailing small business party. (DOAH Case No. 92-2202)

    
    

14. On October 4, 1992, a Probable Cause Panel of the Board of Medicine again found probable cause in DPR Case #0104601. (Memorandum of Finding of Probable Cause, filed by DPR in DOAH Case No. 93-0168F)

    
    

15. By Final Order filed on December 30, 1992, the Board of Medicine dismissed DPR Case #0104601 without prejudice. The Board of Medicine in its Conclusions of Law in the Final Order expounded and clarified the Board's intentions and interpretation of the governing statutes. The Board rejected the Hearing Officer's conclusions, but "in the interest of equity" determined that ". . . the disposition recommended by the Hearing Officer be ACCEPTED AND ADOPTED." (DOAH Case No. 92-2202)

    
    

16. On February 8, 1993, the Department served the Administrative Complaint in DPR Case #0104601 (Hoover III) on Dr. Hoover. (Motion to Abate, filed 3/8/93 in DOAH Case No. 92-2201).

    
    

17. DPR Case #0104601 (Hoover III) is now pending in the Fifth District Court of Appeal, Case #93-455, on a petition for writ of prohibition by Dr. Hoover. DOAH Case #92-2201 (DPR Case #0110008) is in abeyance, at the request of the parties, awaiting determination by the appellate court on the extraordinary writ. (Order of Abeyance dated 3/17/93 in DOAH Case No. 93-2201)

18. It is uncontroverted that DOAH Case #92-2202 was initiated by a state agency, that Dr. Hoover prevailed when the case was dismissed, and that Dr. Hoover is a "small business party" as defined in Section 57.111(3)(d), F.S.

    
    

    The reasonableness of the claimed fees and costs, $10,376.22, total, is likewise uncontroverted.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction in these proceedings pursuant to Section 57.111(4)(b), F.S. and Section 120.57(1), F.S.

    
    

20. Section 57.111(4)(c), F.S., mandates an award of attorney's fees and costs to a prevailing small business party in an adjudicatory proceeding pursuant to Chapter 120 which was initiated by a state agency. There are two exceptions to this mandate:

    
    

    1. If the actions of the state agency were substantially justified; or

    2. If special circumstances exist which would make the award unjust.

       
       

21. The Petitioner bears the initial burden of proving that it is a small business party, that it prevailed, and that the underlying adjudicatory proceeding pursuant to Chapter 120 was initiated by a state agency. Once this showing is made, the burden shifts to the Department of Professional Regulation to demonstrate that its actions were substantially justified or that special circumstances exist which would make an award unjust. DPR, Department of Real Estate v. Toledo Realty, Inc., 549 So.2d 1715 (Fla. 1st DCA 1989).

    
    

22. 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. Section 57.111(3)(e), F.S.

    
    

23. The underlying proceeding in DOAH Case #92-2202 was "initiated" when the complaint was refiled and served on Dr. Hoover with his notice of election of rights advising him of a "clear point of entry". See Subsection 57.111(3)(b)3., F.S.

    
    

24. At that point, the agency did not have a reasonable basis in law and fact to proceed.

    
    

25. Hearing Officer Meale's determination that the complaint in DOAH Case No. 91-4068 was substantially justified is not dispositive of the issue here. That complaint was dismissed by the agency and its justification cannot be imputed to the subsequently filed, albeit identical, complaint.

    
    

26. Notwithstanding the agency's avowed intent to continue to pursue its prosecution of DPR Case #0104601, that prosecution could not proceed without a determination by the appropriate probable cause panel, pursuant to Section 455.225(4), F.S.

    
    

27. As argued by Dr. Hoover, and as concluded in the recommended order of dismissal in DOAH Case #92-2202, the Department has no jurisdiction to dismiss a complaint and refile it at its convenience without reporting or returning to the board or the probable cause panel. Section 455.225, F.S. provides an orderly scheme for the investigation, filing and prosecution of complaints against

    professional licensees. Extra-statutory exercise of authority by the Department frustrates the proper exercise of authority by the Board and by DOAH and denies the licensee his procedural rights. See, Nicolitz v. Board of Opticianry, 609 So.2d 92 (Fla. 1st DCA 1992); Lafergola v. Department of Professional Regulation, 497 So.2d 709 (Fla. 4th DCA 1986); and Turner v. Department of Professional Regulation, 460 So.2d 395 (Fla. 5th DCA 1985).

    
    

    The adherence to rules and statutes by the very agency charged with their enforcement is especially necessary if the public and the parties regulated are to maintain respect and confidence in the decisions rendered by the agency. It is one thing to seek the revision or removal of unnecessary or burdensome rules and regulations. But to ignore such rules while they remain in force is to invite disrespect and will ultimately result in a breakdown of the system.

    Kibler v. Department of Professional Regulation, 418 So.2d 1081, 1084 (Fla. 4th DCA 1982)

    
    

28. The agency argues that an award here would be unjust because it was acting at all times within its statutory authority and pursuant to the Board's intention. As stated above, that legal conclusion does not comport with a plain reading of Chapter 455, F.S. No other argument is made nor facts presented as to "special circumstance".

ORDER

Based on the foregoing, it is hereby,

ORDERED: That Respondent, Department of Professional Regulation pay Petitioner, Kenneth W. Hoover, M.D., attorney's fees in the amount of $10,104.00 and costs in the amount of $272.22, for a total of $10,376.22.

DONE AND ORDERED this 17th day of May, 1993, in Tallahassee, Florida.

MARY CLARK

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 17th day of May, 1993.

COPIES FURNISHED:

Kenneth E. Brooten, Jr., Esquire 660 West Fairbanks Avenue

Winter Park, Florida 32789

Mary B. Radkins, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Dorothy Faircloth, Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO APPEAL

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 Rule 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: 93-000168F

Orders for Case No: 93-000168F