STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT C. BROWN, JR., M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 93-2301F

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

Notice was provided and on August 3, 1993, a formal hearing was conducted pursuant to Section 120.57, Florida Statutes. The hearing location was Tallahassee, Florida. Charles C. Adams was the hearing officer.

APPEARANCES

For Petitioner: Julie Gallagher, Attorney at Law

Stowell, Anton and Kraemer Post Office Box 11059 Tallahassee, Florida 32302

For Respondent: Arthur B. Skafidas, Esquire

Senior Attorney Medical Section Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF ISSUES

In this case Petitioner seeks to recover attorney's fees and costs as an alleged prevailing small business party under authority set forth in Section 57.111, Florida Statutes.

PRELIMINARY STATEMENT

In Department of Professional Regulation, Board of Medicine v. Robert C. Brown, Jr., M.D., DPR Case No. 91-06883/DOAH Case No. 92-1076, the Board of Medicine sought to discipline Dr. Brown's license to practice medicine in Florida based upon alleged misconduct in treating the patients J.C., D.R., T.E. and K.J. That prosecution had been consolidated for formal hearing with DPR Case Nos. 0111343 and 0111344/DOAH Case No. 91-5325 and DPR Case Nos. 8901804, 0111385 and 0111353/DOAH Case No. 91-6358 involving the same parties.

On June 8 and 9, 1992, prior to the commencement of the formal hearing to consider those issues framed by the several administrative complaints, an evidentiary presentation was made and argument given concerning Dr. Brown's motion to dismiss DPR Case No. 91-0883/DOAH No. 92-1076 for reason that the prosecution had failed to comply with Section 455.255, Florida Statutes. That motion was granted pertaining to patients J.C., D.R. and T.E. It was denied as to patient K.J. The decision was without prejudice to the prosecution's future decision to pursue the matters pertaining to patients J.C., D.R. and T.E. consistent with Section 455.225, Florida Statutes. The ruling on the motion to dismiss was announced in the record and memorialized in the transcript that was prepared.

On December 30, 1992, when the recommended order was entered concerning the remaining cases, in its preliminary statement, reference was made to the prior decision to dismiss the actions directed to the patients J.C., D.R. and T.E. based upon procedural noncompliance with Section 455.225, Florida Statutes.

Notwithstanding that the decision to dismiss was final, the Board of Medicine in its final order entered February 26, 1993, treated the dismissal on procedural grounds pertaining to the three patients as a recommendation by the hearing officer about which the Board of Medicine had final order authority. In its treatment of the matter the Board of Medicine purported to approve the decision to dismiss with leave to refile.

By the present petition Dr. Brown seeks to recover the attorney's fees and costs associated with preparation for the motion to dismiss and defense of his actions concerning the three patients J.C., D.R., and T.E. and pursuit of the present case.

The present order together with the orders entered in this case on June 4, July 1, and August 26, 1993, form the basis for resolving this dispute.

The parties submitted Joint Exhibits 1 through 8. Dr. Brown testified in his own behalf and offered Exhibits A-C which were admitted. In addition, official recognition was given to the depositions of Dr. Arthur Rudolph taken in the administrative prosecutions previously referred to. Respondent did not present witnesses nor offer any other exhibits.

The proposed final orders by the parties have been reviewed. The fact finding set forth in the proposed final orders is discussed in the attached appendix to the final order.

FINDINGS OF FACT

1. By agreement with the prosecution Dr. Brown had sought to delay consideration of his procedural motion to dismiss DPR Case No. 91-06883/DOAH Case No. 92-1076, pertaining to the patients J.C., D.R., T.E. and K.J. The parties to that action anticipated considering the motion at the final hearing as part of the case on the merits. The hearing officer was persuaded that the procedural motion to dismiss had to be examined separate and apart from the consideration of the case on the merits as to those four patients. Consequently the motion to dismiss was entertained concerning its evidential and legal basis prior to a hearing on the merits. This led to the decision on June 9, 1992, to dismiss the action pertaining to treatment of the patients J.C., D.R., and T.E., with leave to refile at some future date. The decision to dismiss was based upon the pertinent facts and law when examined in accordance with Section 455.255(1), Florida Statutes. The motion to dismiss the action concerning treatment of the patient K.J. was denied.

2. The reason for the dismissal was announced in the record on June 9, 1992, and memorialized in the transcript of the proceedings. It was concluded that there was not an adequate basis to institute an investigation concerning the patients J.C., D.R., and T.E.; that the Department of Professional Regulation, now the Department of Business and Professional Regulation, did not furnish Dr. Brown or his attorney with a copy of the complaint or the document that resulted in the initiation of the investigation pertaining to the three patients; and, that Dr. Brown did not have the statutorily mandated opportunity to respond to the accusations made against him related to the care that he provided those three patients. Therefore, the procedural requirements under Section 455.225(1), Florida Statutes, had not been met and the case as it pertained to the three patients was dismissed with leave to refile. The procedural requirements related to the patient K.J. had been met and it was appropriate to present the K.J. case to the Probable Cause Panel for its deliberation, unlike the circumstance with the other three patients. It was determined that the quality of consideration by the Probable Cause Panel when voting to prosecute Dr. Brown for his treatment of K.J. was adequate. Based upon the ruling directed to the treatment of patients J.C., D.R., and T.E. the Department of Professional Regulation was not allowed to proceed against Dr. Brown for the care rendered those patients.

   
   

3. A subsequent recommended order addressed in substance the prosecutions associated with DPR Case No. 91-06883/DOAH Case No. 92-1076 pertaining to the patient K.J.; DPR Case Nos. 011343 and 011344/DOAH Case No. 91-5325 and DPR Case Nos. 8901804, 0111385 and 0111353/DOAH Case No. 91-6358, traced the history of those cases in the preliminary statement to the recommended order and identified the prior ruling dismissing the actions pertaining to the patients J.C., D.R., and T.E. That recommended order was not an invitation to the Board of Medicine to respond to a recommendation of dismissal. The recommended order in the cases pertaining to patients other than J.C., D.R., and T.E. was entered on December 30, 1992, based upon the formal hearing conducted pursuant to Section 120.57(1), Florida Statutes, on various dates in June and July, 1992, and concluded on July 10, 1992, before the present hearing officer.

   
   

4. On February 26, 1993, the Board entered its final order in the above- referenced cases and commented to the effect that it had approved the recommended dismissal by the hearing officer concerning the patients J.C., D.R., and T.E. with leave to refile.

   
   

5. Neither party appealed the hearing officer's decision dismissing those counts within DPR Case No. 91-06883/DOAH Case No. 92-1076 directed to the patients J.C., D.R., and T.E.

   
   

6. On March 8, 1993, Dr. Brown took an appeal from the final order of the Board of Medicine entered on February 26, 1993, which included the comment approving the actions by the hearing officer in dismissing the counts pertaining to the patients J.C., D.R., and T.E., but without prejudice to bring those actions again following compliance with Section 455.225, Florida Statutes.

   
   

7. Robert C. Brown, Jr., M.D., is a licensed physician practicing in the state of Florida. He has held a license entitling him to practice in that state at all times relevant to the inquiry.

8. At relevant times Dr. Brown has practiced medicine at 4519 Brentwood Avenue, Jacksonville, Florida, 32206. He is the sole medical practitioner of an incorporated professional practice. He has had less than 25 employees and his net worth has been not more than 2 million dollars.

   
   

9. Dr. Brown is the only share holder in his incorporated professional association. No one else has ownership interest in the incorporated professional association. At times Dr. Brown has drawn a salary from the professional association as an employee of the professional association.

   
   

10. His request for attorney's fees and costs are directed to the actions of the Department of Professional Regulation for its procedural noncompliance with Section 455.225, Florida Statutes, and the subsequent decision of the Board of Medicine to find probable cause and to have the Department of Professional Regulation proceed against Dr. Brown for care rendered the patients J.C., D.R., and T.E. The action to recover attorney's fees and costs not to exceed $15,000 was filed on April 27, 1993. The petition for attorney's fees and costs of April 27, 1993, was amended on July 15, 1993.

    
    

11. Dr. Brown retained the law firm of Stowell, Anton and Kraemer to represent him in the aforementioned cases pertaining to the administrative prosecutions. His present attorney, Julie Gallagher, was principal counsel in those cases.

    
    

12. No issue has been taken with the notion that $165.00 is a reasonable hourly rate for her services in defending Dr. Brown in the administrative prosecutions. Dr. Brown has paid all fees and costs charged by his lawyer in preparation for and participating in the proceedings related to the administrative prosecutions.

    
    

13. To challenge the alleged procedural infirmities associated with the right to investigate, notice to the accused, opportunity for the accused to respond to the accusations and deliberations by the Probable Cause Panel contemplated by Section 455.225, Florida Statutes, it was not necessary for Dr. Brown to fully develop his defense on the merits of the accusations pertaining to patients J.C., D.R., and T.E.

    
    

14. Dr. Brown's counsel in the exhibit associated with claims for attorney's fees and costs has highlighted the exhibit through color-codes in an attempt to assist the hearing officer in understanding the meaning of that exhibit. This color-code system attempts to identify those instances in which Dr. Brown claims that the work done on his behalf is associated only with patients with J.C., D.R. and T.E. and other occasions where a percentage is set forth in relation to work done in the entire DPR Case No. 91-06883/DOAH Case No. 92-1076, to include K.J. and in the other cases referenced before. The code is described in the August 16, 1993 cover letter from counsel for Dr. Brown. No attempt is made through the coding system to differentiate between those actions taken in moving to dismiss DPR Case No. 91-06883/DOAH Case No. 92-1076 pertaining to the patients J.C., D.R. and T.E. from other activities related to defending the accusations about those patients on the merits.

    
    

15. The right to recover, if at all, is limited to those attorney's fees and costs associated with the motion to dismiss counts pertaining to the patients J.C., D.R., and T.E., together with the attorney's fees and costs associated with the present case. No other efforts by Dr. Brown's attorneys may be the proper subject for recovery.

16. Not only was it not necessary to know information concerning the merits of the administrative complaint pertaining to patients J.C., D.R., and

    T.E. to pursue the motion to dismiss on procedural grounds, the decision that was made did not resolve the merits set forth in the administrative complaints directed to Dr. Brown's treatment of J.C., D.R., and T.E. The possibility exists that Dr. Brown could be called upon to defend against similar accusations to those set forth in the DPR Case No. 91-06883/DOAH Case No. 92-1076 at which time he could prepare himself to defend the merits and if successful that would be the appropriate moment to seek attorney's fees and costs for that aspect of the case.

    
    

17. The arrangement by stipulation between the parties in the prior prosecution to delay consideration of the motion to dismiss until the place at which prosecution of the cases involving J.C., D.R., and T.E. were being examined on their merits was not appropriate. Consequently, Dr. Brown may not assert that he was required to prepare his motion to dismiss on procedural grounds simultaneously with his defense on the merits of the administrative complaint directed to the patients J.C., D.R., and T.E.

    
    

18. Within this context, taking into account a lack of opposition to the

    $165.00 hourly rate charged by Dr. Brown's counsel, the following amounts are found to be associated with the pursuit of the motion to dismiss those counts related to patients J.C., D.R., and T.E. and claims under Section 57.111, Florida Statutes, to recover attorney's fees and costs: 3/11/92-$165.00; 3/14/92-$165.00; 3/16/92-$125.00; 3/31/92-$100.00; 4/2/92-$247.50; 4/6/92-

    $62.50; 4/6/92-$198.00; 4/10/92-$50.00; 4/16/92-$10.00; 4/17/92-$50.00; related

    to the motion to dismiss and 4/27/93-$165.00; 5/3/93-$33.00; 5/12/93-$15.00; 5/17/93-$82.50; 6/14/93-$165.00; related to the prosecution of the petition for attorney's fees and costs.

    
    

19. No proof was offered concerning any special circumstances that point to any injustice in awarding attorney's fees and costs in the amount identified.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

21. Section 57.111(3)(a), Florida Statutes, identifies the meaning of attorney's fees and costs as:

    
    

    . . . the reasonable and necessary attorney's fees and costs incurred for all preparations, motions, hearings, trials and appeals in a proceeding.

    
    

22. Under that definition only those attorney's fees and costs associated with the motion to dismiss for procedural infirmities under Section 455.255, Florida Statutes, pertaining to the patients J.C., D.R., and T.E. may be pursued. Attorney's fees and costs incurred in the defense of the merits of the actions taken against Dr. Brown for his treatment of those patients may not be sought. They were not reasonable and necessary to the pursuit of the motion to dismiss. His attorney's fees and costs to pursue the Section 57.111, Florida Statutes, case may also be requested.

23. The Department of Professional Regulation, now the Department of Business and Professional Regulation, upon a finding of probable cause issued by the Board of Medicine initiated action to discipline Dr. Brown's medical license in Florida. This constituted action "initiated by a state agency" as defined at Section 57.111(3)(b), Florida Statutes.

    
    

24. Limited to the order entered on June 9, 1992, dismissing the counts related to the patients J.C., D.R., and T.E. for procedural violations associated with the process of investigation and notice found at Section 455.225(1), Florida Statutes, Dr. Brown was a prevailing party as defined in Section 57.111(3)(c), Florida Statutes.

    
    

25. Moreover, Dr. Brown in the limited circumstance described was a "prevailing small business party" in that he was involved in a professional practice through a professional association in which he was the only share holder and held the only ownership interest in the incorporated professional association, through which he drew a salary as an employee at times. Although the action was taken against his individual license to practice medicine, that status is inseparable from the business of the incorporated professional association. In recognition of the facts here, the professional association and Dr. Brown are one in the same, and it is concluded that Dr. Brown meets the definition of "small business party" set out at Section 57.111(3)(d), Florida Statutes, taken together with recognition that his principal office and that of the P.A. is in Florida and at the time that the action to discipline his license was taken not more than 25 full-time employees worked for him and his net worth was not more than 2 million dollars. The holdings in Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So.2d 715 (Fla. 1stDCA 1989), and Thompson v. Department of Health and Rehabilitative Services,

    533 So.2d 840 (Fla. 1stDCA 1988), do not lead to a contrary conclusion concerning whether Dr. Brown is a "small business party".

    
    

26. The actions taken by the Department of Professional Regulation in investigating and notifying Dr. Brown concerning accusations about his treatment provided to the patients J.C., D.R., and T.E. and allowing him a reasonable opportunity to refute those matters violated Section 455.225(1), Florida Statutes. As a consequence there was no substantial justification for the Board of Medicine to find probable cause leading to an administrative complaint and prosecution beyond that point.

    
    

27. Under Section 57.111(3)(e), Florida Statutes, there was thus no justification for proceeding against Dr. Brown in that there was no reasonable basis in law and fact at the time that the action was initiated by the state.

    
    

28. Pursuant to the holding in Toledo Realty, supra, Dr. Brown bore the burden of proof in setting out his entitlement to attorney's fees and costs by pointing to the nature of those attorney's fees and costs, the initiation of action against him by the state, and demonstration that he was a prevailing small business party. The state bore the burden to show that their actions found to be inappropriate were substantially justified at their inception. The state has failed to respond to Dr. Brown's proof by showing that it was substantially justified in its actions examined through the motion to dismiss. It did not have a reasonable basis in law and fact when it sought the discipline against Dr. Brown. Nor has the state set forth special circumstances which would make any award of attorney's fees and costs unjust, as described in Section 57.111(4)(a), Florida Statutes.

29. Dr. Brown through his attorney has submitted an itemized affidavit to the Division of Administrative Hearings revealing the nature and extent of services rendered as well as the costs incurred in preparations, motions and hearings as envisioned by Section 57.111(b)1, Florida Statutes. Those attorney's fees and costs that are deemed to be reasonable and necessary to advance the motion to dismiss have been set forth in the fact finding.

    
    

30. Dr. Brown is not entitled to those attorney's fees and costs in that the application for the award of attorney's fees and costs was not made within

60 days after the June 9, 1992 final decision was reached through an order entered in favor of Dr. Brown. That order was memorialized. It has not been reversed on appeal and the time for seeking judicial review of that order has expired. It was a final order of dismissal concerning the counts pertaining to the patients J.C., D.R., and T.E. The further discussion by the Board of Medicine in its February 26, 1993 final order related to other counts within the administrative complaints was without force and effect. The February 26, 1993 order did not constitute a final order on the subject of the dismissal of the counts pertaining to J.C., D.R., and T.E. premised upon procedural noncompliance with Section 455.225, Florida Statutes. See Florida Real Estate Commission v. Frost, 373 So.2d 939 (Fla. 4thDCA 1979) and Sheppard v. Board of Dentistry, 385 So.2d 143 (Fla. 1stDCA 1980).

ORDER

Based upon the facts found and the conclusions of law reached, it is, ORDERED:

That the petition for attorney's fees and costs is dismissed.

DONE and ENTERED this 3rd day of November, 1993, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 3rd day of November, 1993.

APPENDIX CASE NO. 93-2301F

The following discussion is given concerning the proposed fact finding of the parties:

Petitioner's Facts:

Paragraphs 1 and 2 are subordinate to facts found.

Paragraph 3 is contrary to facts found in its suggestion that the Hearing Officer entered a Recommended Order related to the dismissal of those counts per-taining to the patients J.C., D.R., and T. E. The order by the Hearing Officer was final.

Paragraph 4 is contrary to facts found in its suggestion that the petition for attorney's fees and costs was timely filed.

Paragraphs 5 through 9 are subordinate to facts found.

Paragraph 10 is contrary to facts found in it suggestion that the Petitioner is entitled to an award of attorney's fees and costs in the amount of

$15,000.00.

Respondent's Facts:

Paragraphs 1 through 8 are not necessary to the resolution of the dispute. Paragraph 9 is subordinate to facts found.

Paragraph 10 is not necessary to the resolution of the dispute. Paragraphs 11 through 18 are subordinate to facts found.

Paragraph 19 is contrary to facts found.

Paragraphs 20 and 21 are subordinate to facts found.

Paragraph 22 is contrary to facts found in that in its suggestion that the Hearing Officer made a recommendation of dismissal as opposed to a final decision on dismissal.

Paragraphs 23 through 31 are not necessary to the resolution of the dispute.

Paragraph 32 is subordinate to facts found. Paragraph 33 is subordinate to facts found.

Paragraphs 34 through 37 are subordinate to facts found. Paragraph 38 is contrary to facts found.

COPIES FURNISHED:

Julie Gallagher, Esquire Post Office Box 11059 Tallahassee, FL 32302

Arthur B. Skafidas, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Dorothy Faircloth, Executive Director Board of Medicine, Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, FL 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: 93-002301F

Orders for Case No: 93-002301F