STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS MICHAEL SEDLAK, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3192F

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) BOARD OF DENTISTRY, )

)

Respondent. )

)

FINAL ORDER

On June 10, 1994, Petitioner filed a Petition for Attorney's Fees and Costs Pursuant to the Florida Equal Access to Justice Act. Attached to the petition are the Amended Administrative Complaint in DOAH Case No. 93-2794, the Final Order entered May 13, 1994, and the Recommended Order entered by the undersigned Hearing Officer on January 25, 1994.

Petitioner also filed on June 10, 1994, an Affidavit in Support of Respondent's Petition for Attorneys' Fees and Costs, showing total billed fees of $14,138 and total billed costs of $1533.47. Copies of invoices are attached to the affidavit.

Respondent filed on June 30, 1994, a Response to Petition for Attorney's Fees and Costs. Accompanying the response are several exhibits.

The undersigned Hearing Officer takes official notice of Department of Professional Regulation v. Thomas M. Sedlak, DOAH Case No. 93-2794, including the final order. The final order adopts the findings of fact and conclusions of law of the recommended order, which was prepared by the undersigned Hearing Officer.

By Joint Stipulation, the parties agreed to waive an evidentiary hearing. Each party filed a proposed final order, and rulings on the proposed findings are in the appendix.

FINDINGS OF FACT

1. On February 21, 1992, Peggy Angle wrote a letter to Respondent stating that Petitioner allowed his six-month old son "to roam" (presumably, crawl) through patient treatment areas in Petitioner's dental office, which Ms. Angle described as unclean on "several occasions." Ms. Angle raised additional complaints in her letter and requested an investigation.

   
   

2. Upon receiving the complaint, one of Respondent's investigators performed an unannounced inspection of Petitioner's office on June 4, 1992. The investigator found the office to be "messy and cluttered."

3. Based on the investigator's findings, Respondent retained an expert to make an unannounced inspection with one of Respondent's investigators. The inspection took place on June 18, 1992.

   
   

4. At the time of the unannounced inspection, Petitioner, his wife, and their child were on vacation. They had purchased the trip at the last moment at a reduced rate, so they had not been able to plan extensively for their departure.

   
   

5. The record is unclear as to how long Petitioner had been gone when the inspection took place. He had been gone for at least several days. In any event, at the time of the June 18 inspection, the office smelled musty and the carpeting was discolored. There was also debris on the floor, although this was due to the presence of the woman (and her child) whom Petitioner had asked to stay at the office and answer the phone.

   
   

6. At the time of the inspection, the expert and investigator found several handpieces and metal-tipped syringes out on the counter, rather than sanitized and bagged. Likewise, they found x-ray rings unsanitized. Surplus scalers were in drawers, also unbagged, but they were not used on patients. The expert and investigator noticed several other relatively insignificant items.

   
   

7. Petitioner intended to sanitize the above-described equipment upon his return. Likewise, he intended to repair other equipment at the office before reopening it.

   
   

8. Based upon his inspection, the expert advised Respondent's counsel by letter dated June 22, 1992, of the above- described conditions and concluded that "I can state the office in general has a dirty, unsanitary appearance and is in violation of 466.028(1)(v), Failure to provide and maintain reasonable sanitary facilities and conditions . . .." He noted other violations, including breaches of various rules requiring sterilization of instruments.

   
   

9. On September 17, 1992, the probable cause panel met and determined that probable cause existed to charge Petitioner with a violation of Section 466.028(1)(bb)(v), Florida Statutes, which

   involves the failure to maintain proper sterilization and disinfection procedures.

   
   

10. On October 26, 1992, Respondent filed an Administrative Complaint against Petitioner, alleging that the above-described conditions constituted violations of various statutes and rules requiring the provision and maintenance of sanitary conditions. By Order entered September 10, 1993, the hearing officer allowed Respondent to amend the Administrative Complaint to make a minor addition to the charging allegations.

    
    

11. Following the hearing, the hearing officer entered a recommended order finding that, despite the above-described conditions, Respondent had failed to prove by clear and convincing evidence the grounds on which Respondent had proposed to discipline Petitioner. The recommended order concluded that the amended administrative complaint should be dismissed against Petitioner.

    
    

12. The Board of Dentistry subsequently entered a final order adopting the recommended order and dismissing all charges against Petitioner. At the meeting to consider the recommended order, one member of the Board of Dentistry questioned the wisdom of a prosecution based on a closed office without patients

    and expressed his opinion that the probable cause panel should not have directed the filing of an administrative complaint in the case.

    
    

13. Understandably, Petitioner argues in his proposed final order that an inspection of a closed office--without a dentist or patients--cannot support a finding of probable cause. This is untrue. The unspoken assumption in Respondent's disciplinary case was that one could reasonably infer that Petitioner failed to follow sanitary practices, given the condition of the closed office while Petitioner was gone.

    
    

14. The inference sought by Respondent in the disciplinary case was strengthened somewhat by the conditions noted two weeks earlier by the first investigator while the office was open. The inference was weakened by Respondent's failure to address much else besides what the second investigator found during his visit to the closed office. Facts evidently left unaddressed in the investigation include how long Petitioner had been gone at the time of the second inspection and the condition of the office when he left.

    
    

15. On balance, though, Respondent had a reasonable basis in fact and law to proceed against Petitioner. Respondent legitimately proceeded in the hope of prevailing based on the inference. The above-described facts justified the prosecution, especially in view of the importance of the alleged violations, which involved provisions intended to ensure that infectious diseases not be transmitted between patients or between a dentist and his patients.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Sections 57.111 and 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

17. Section 57.111 provides that a prevailing small business party is entitled to his attorneys' fees and costs against a state agency unless the agency's actions were "substantially justified" or "special circumstances exist which would make the award unjust." Section 57.111(4)(a).

    
    

18. The filing of the administrative complaint and prosecution of the underlying case against Petitioner were substantially justified.

ORDER

Based on the foregoing, it is

ORDERED that the petition for attorneys' fees and costs is denied. ENTERED on August 23, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on August 23, 1994.

APPENDIX

Rulings on Petitioner's Proposed Findings

1-7: adopted or adopted in substance. 8: rejected as irrelevant.

9: adopted or adopted in substance.

10: rejected as unsupported by the appropriate weight of the evidence. 11-13: adopted or adopted in substance.

14: rejected as irrelevant.

15-16: adopted or adopted in substance.

17: rejected as unsupported by the appropriate weight of the evidence.

See the discussion of inferences in the findings of fact. Obviously, the inference sought by Respondent would be facilitated when the closed office was inspected five minutes before the dentist was about to see patients.

18: rejected as irrelevant.

19: rejected as unsupported by the appropriate weight of the evidence. In the disciplinary proceeding, Respondent failed to prove by clear and convincing evidence that Petitioner failed to provide and maintain reasonable sanitary facilities and conditions.

20-23: adopted or adopted in substance.

Rulings on Respondent's Proposed Findings

1-18: adopted or adopted in substance. 19-21: rejected as subordinate.

22: adopted or adopted in substance. 23: rejected as subordinate.

24-26: adopted or adopted in substance. 27: rejected as irrelevant.

28-34: adopted or adopted in substance. 35: rejected as legal argument.

36-43: adopted or adopted in substance. 44-45: rejected as legal argument.

46-50: adopted or adopted in substance. 51: rejected as irrelevant.

52-53: rejected as legal argument.

54-55: adopted or adopted in substance.

COPIES FURNISHED:

Nancy M. Snurkowski, Chief Attorney Department of Business and

Professional Regulation 1940 North Monroe St.

Tallahassee, FL 32399-0792

Michael K. Blazicek Stephens, Lynn

4350 West Cypress St., Suite 700

Tampa, FL 33607

William Buckhalt Executive Director Board of Dentistry

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: 94-003192F

Orders for Case No: 94-003192F