STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOUNIR ALBERT, D.D.S., )

)

Petitioner, )

)

vs. ) Case No. 98-2884F

) DEPARTMENT OF HEALTH, BOARD ) OF DENTISTRY, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on November 19, 1998, by video teleconference.

APPEARANCES

For Petitioner: Reginald D. Dixon, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Max Price, Esquire

Solms & Price, P.A.

6701 Sunset Drive, Suite 104

Miami, Florida 33143 STATEMENT OF THE ISSUE

At issue is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act."

PRELIMINARY STATEMENT

On June 29, 1998, Petitioner, Mounir Albert, D.D.S.

(Dr. Albert), filed a petition for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act." The predicate for such an award was Dr. Albert's contention that he was a "prevailing small business party" in a disciplinary proceeding Respondent had initiated against him (the underlying proceeding).

The Respondent, Department of Health, Division of Medical Quality Assurance, Board of Dentistry (Department), filed its response (answer) to the petition for attorney's fees and costs on July 28, 1998. Pertinent to this case, the Department's response disputed Petitioner's status as a "prevailing small business party," and affirmatively averred that the Department was "substantially justified" when it initiated the underlying proceeding. Consequently, resolution of the subject application under Section 57.111 resolved itself to whether Petitioner was a "prevailing small business party," as defined by law, and, if so, whether the Department was "substantially justified" when it initiated the underlying proceeding. Section 57.111(4), Florida Statutes, and Department of Insurance and Treasurer v.

Administrators Corp., 603 So. 2d 1359 (Fla. 1st DCA 1992).

At hearing, Petitioner testified on his own behalf, and also called Joel Berger, as a witness. Petitioner offered no exhibits. The Department called Stephen Holderman and Gregory Files, as witnesses, and the Department's (Respondent's) Exhibits 1 and R1 through R5 were received into evidence.

The transcript of the formal hearing was filed December 3, 1998, and the parties were initially accorded until December 14, 1998, to file proposed final orders; however, at Petitioner's request, the deadline was extended to December 21, 1998.

Consequently, the parties waived the requirement that the final order be rendered within 30 days after the transcript was filed. Rule 28-106.216(2), Florida Administrative Code. The parties elected to file such proposals, and they have been duly considered in the preparation of this order.

FINDINGS OF FACT

Findings relating to the underlying disciplinary action

1. The Department of Health, Division of Medical Quality Assurance, Board of Dentistry (Department), is a state agency charged with the duty and responsibility for regulating the practice of dentistry pursuant to Section 20.43 and Chapters 455 and 466, Florida Statutes.

2. At all times material hereto, Petitioner, Mounir Albert,

   
   

   D.D.S. (Dr. Albert), was licensed to practice dentistry in the State of Florida, having been issued license number DN 0010217.

3. On September 2, 1997, the Department issued an Administrative Complaint against Dr. Albert (Agency Case Number 95-12645). The complaint charged that Dr. Albert was subject to disciplinary action under the provision of Subsection 466.028(1)(aa), Florida Statutes (1995), for having violated Subsection 455.241(1), Florida Statutes, by having

   failed, upon request, to furnish a patient in a timely manner, without delays for legal review, copies of all reports and records relating to the patient's examination or treatment, including x-rays and insurance information.

4. For such violation, the Department proposed that one or more of the following penalties be imposed:

   . . . revocation or suspension of . . . [Dr. Albert's] license, restriction of . . . [Dr. Albert's] practice, imposition of an administrative fine, issuance of a reprimand, placement of . . . [Dr. Albert] on probation, and/or any other relief that the Board deems appropriate.

   
   

5. Dr. Albert disputed the allegations of fact contained in the Administrative Complaint, and the matter was referred to the Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge to conduct a formal hearing. The matter was assigned DOAH Case No. 97-5001, and a hearing was duly held on February 5, 1998.

6. On March 9, 1998, a Recommended Order was rendered, which concluded that, while Dr. Albert failed to furnish the patient records on request, the Administrative Complaint should be dismissed. Central to such conclusion was the finding that:

   . . . while subsection 455.241(1) obligates the health care provider to provide, upon request, copies of a patient's medical records, subsection 455.241(4) also authorizes the health care provider to charge, for such service, the cost of duplication. Reading the provisions in pari materi, it is reasonable to conclude that, absent payment of the cost of duplication, a health care provider is under no obligation

   to provide a patient with copies of his records.

   
   

   Since the patient failed to pay Dr. Albert for the cost of duplication, as requested, it was resolved that Dr. Albert had not violated Subsection 455.241(1) as alleged in the Administrative Complaint.

7. On June 9, 1998, the Board of Dentistry entered a Final Order in the underlying case. The Final Order approved and adopted the Findings of Fact and Conclusions of Law set forth in the Recommended Order, and dismissed the Administrative Complaint. Judicial review of the Final Order was not sought, and Petitioner timely filed the subject petition for attorney's fees and costs pursuant to Section 57.111, Florida Statutes.

   Findings relating to the claim for attorney's fees and costs

   
   

8. Pertinent to Dr. Albert's claim for attorney's fees and costs, the Department has conceded that the underlying action was initiated by the Department, that Dr. Albert prevailed in the underlying case, and that the claim for attorney's fees and costs was timely filed.1 The Department has, however, denied that Dr. Albert was a "small business party" and, therefore, a "prevailing small business party," as those terms are defined by Section 57.111, Florida Statutes, and has affirmatively averred that its actions were "substantially justified." Given the circumstances, an award of reasonable attorney's fees and costs would be appropriate provided Dr. Albert can establish, by a preponderance

   of the evidence, that he was a "prevailing small business party" in the underlying proceeding and, if so, the Department fails to establish that its actions were "substantially justified."

9. Addressing first Dr. Albert's status, it must be concluded that the proof fails to support the conclusion that at the time the underlying proceeding was initiated, or at any other time material hereto, Dr. Albert (the party to the underlying proceeding) was a "small business party," as that term is defined by Section 57.111(3)(d), Florida Statutes, and, consequently, the proof fails to support the conclusion that he was a "prevailing small business party," as required for compensation under the Florida Equal Access to Justice Act. See Section 57.111(4)(a), Florida Statutes. In so concluding, it is observed that the proof demonstrates that, at all times material, Dr. Albert practiced dentistry as an employee of a professional service corporation, Mounir Albert, D.D.S., P.A. (the corporation or business), as authorized by Chapter 621, Florida Statutes, and was not shown to be the sole proprietor of, or operate his dental practice or any other enterprise, as an unincorporated business.

10. Having resolved that Dr. Albert was not shown to be a "prevailing small business party," and was, therefore, not eligible for an award of attorney's fees and costs under the Florida Equal Access to Justice Act, it is not necessary to address whether the Department's actions were "substantially justified," when the underlying proceeding was initiated.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 57.111, Florida Statutes.

12. Here, Dr. Albert has filed an application with the Division of Administrative Hearings for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes. As the applicant, the burden rests on the Petitioner to demonstrate, by a preponderance of the evidence, entitlement to the requested award. Department of Transportation v. J.W.C. Co., Inc., 396

    So. 2d 778 (Fla. 1st DCA 1981), and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350

    (Fla. 1st DCA 1977) ("The burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.")

13. Pertinent to this case, the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, provides:

    (4)(a) 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 pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

14. By its response to the application for attorney's fees and costs, the Department agreed that the underlying action was initiated by the Department, that Dr. Albert prevailed in the

    underlying proceeding, and that the claim for attorney's fees and costs was timely filed. Section 57.111(4), Florida Statutes, and Department of Insurance and Treasurer v. Administrators Corp., 603 So. 2d 1359 (Fla. 1st DCA 1992). However, the Department disputed Dr. Albert's status as a "small business party," as defined by Section 57.111(3)(d), Florida Statutes, and, therefore, his status as a "prevailing small business party," and contended that, when the underlying proceeding was initiated, its actions were "substantially justified."

15. Pertinent to this case, "small business party," as that term is used in Section 57.111, Florida Statutes, is defined as follows:

    (d) The term "small business party" means:

    1.a. A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by a state agency, not more than 25 full-time employees or a net worth of not more than $2 million, including both personal and business investments; or

    b. A partnership or corporation, including a professional practice, which has its principal office in this state and has at the time the action is initiated by a state agency not more than 25 full-time employees or a net worth of not more than $2 million;

    . . .

    Section 57.111(3)(d)1a, Florida Statutes.

    
    

16. As noted in the Findings of Fact, at the time the underlying proceeding was commenced against Dr. Albert, he practiced dentistry through a professional service corporation

and was not, therefore, shown to be a sole proprietor of an unincorporated business. Consequently, Dr. Albert was not a "small business party," as defined by law. Section 57.111(3)(d)1a, Florida Statutes, Florida Real Estate Commission v. Shealy, 647 So. 2d 151 (Fla. 1st DCA 1994). See also Rivera v. Deauville Hotel, Employers' Service Corp., 277 So. 2d 265 (Fla. 1973) (An award of attorney fees to any litigant is in derogation of the common law and is allowed only when provided for by contract or statute.); Humana of Florida, Inc. v.

McKaughan, 652 So. 2d 852, 859 (Fla. 2d DCA 1995) ("[B]ecause the Plan . . . is a statutory substitute for common law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms."); Hooper v.

State Road Department, 105 So. 2d 515, 516 (Fla. 2d DCA 1958), ("[I]t is a cardinal rule of statutory construction that the plain meaning of a statute will not be disturbed in the absence of ambiguity or conflict."); and Devin v. City of Hollywood,

351 So. 2d 1022 (Fla. 4th DCA 1976) (Finally, were an ambiguity or conflict to exist, it is a general principle of statutory, construction that the mention of one thing implies the exclusion of another. Hence, where, as here, a statute enumerates who may file a claim, it would ordinarily be construed as excluding from its operation all those not expressly mentioned.) Given the circumstances, Dr. Albert has failed to demonstrate entitlement to attorney's fees and costs under Section 57.111, Florida

Statutes.2

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that Petitioner's claim for attorney's fees and costs under Section 57.111, Florida Statutes, is denied.

DONE AND ORDERED this 29th day of December, 1998, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1998.

ENDNOTES

1/ Initially, the Department disputed the reasonableness of the attorney's fees and costs claimed by Petitioner; however, at hearing, it agreed that the attorney's fees claimed by Petitioner through November 18, 1998 (as set forth in the Affidavit of Attorney's Fees and Costs, filed November 18, 1998), were reasonable and necessary. The Department further agreed that the Division of Administrative Hearings reserve jurisdiction, if necessary, to assess the necessity and reasonableness of any fees incurred subsequent to November 18, 1998. In turn, Petitioner conceded that the costs detailed in the Affidavit of Attorney's Fees and Costs were not taxable as a matter of law, and withdrew those items from consideration.

The Affidavit of Attorney's Fees and Costs reflects an attorney's fee of $9,106.25 accrued through November 18, 1998. The Department has agreed such fee was necessarily incurred and reasonable in amount. Consequently, were an award appropriate in this case, such sum would be awarded without further discussion and jurisdiction would be reserved to assess (absent an agreement by the parties) an award for reasonable attorney's fees incurred subsequent to November 18, 1998, but not to exceed a total award of $15,000, as proscribed by Section 57.111(4)(d)2, Florida Statutes. However, given the conclusion reached infra, that

Dr. Albert was not shown to be a "prevailing small business party," the necessity for, or reasonableness of, any attorney's fee incurred need not be resolved.

2/ While Dr. Albert may be fairly described as the sole or majority owner of the corporation (Petitioner's Exhibit 1), which he uses as a vehicle for the practice of his profession, he is not (nor by such ownership may Dr. Albert be fairly considered) "a sole proprietor of an unincorporated business." Therefore, Dr.

Albert (the party to the underlying proceeding) was not shown to be a "small business party," as defined by law. See Florida Real Estate Commission v. Shealy, 647 So. 2d 151 (Fla. 1st DCA 1994); Department of Professional Regulation v. Toledo Realty, Inc., 549 So. 2d 715 (Fla. 1st DCA 1989); and Thompson v. Department of Health and Rehabilitative Services, 533 So. 2d 840 (Fla. 1st DCA 1988).

COPIES FURNISHED:

Reginald D. Dixon, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Max Price, Esquire Solms & Price, P.A.

6701 Sunset Drive, Suite 104

Miami, Florida 33143

William Buckhalt, Executive Director Board of Dentistry

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle Southeast Tallahassee, Florida 32399-1703

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-002884F

Orders for Case No: 98-002884F