STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY GENTELE, O.D., )

)

Petitioner, )

)

vs. ) CASE NO. 85-3857F

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

OPTOMETRY, )

)

Respondent. )

)

FINAL ORDER

On March 12, 1986, this case was heard in Tallahassee, Florida, by R.L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings. The parties were represented by counsel:

APPEARANCE

For Petitioner: Richard A. Pettigrew, Esquire

Melvia L. Bailey-Green, Esquire 3200 Miami Center

100 Chopin Plaza Miami, Florida 33131

For Respondent: Joseph W. Lawrence, II, Esquire

Edward C. Hill, Jr., Esquire

130 North Monroe Street Tallahassee, Florida 32301

and

Arden M. Siegendorf, Esquire Room 1602, The Capitol Tallahassee, Florida 32301

ISSUE

Whether petitioner, Anthony Gentele, O.D., is entitled to recover attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes (1985), for his successful defense against the charges contained in Count II of the amended administrative complaint filed against him by respondents Department of Professional Regulation, Board of Optometry, in Department of Professional Regulation, Board of Optometry v.

Anthony Gentele, O.D., DOAH Case No. 84-3555.

INTRODUCTION

On November 12, 1985, Anthony Gentele, O.D. ("Petitioner"), filed with the Division of Administrative Hearings an "Application for Attorney's Fees and Costs" pursuant to Section 57.111, Florida Statutes (1985), the Florida Equal

Access to Justice Act ("FEAJA"). Specifically, Petitioner sought to recover his attorney's fees and costs from the Department of Professional Regulation, Board of Optometry ("Department" or "Board"), for his successful defense against charges contained in Count II of an amended administrative complaint filed and prosecuted by the Department. Department of Professional Regulation v. Anthony Gentele, O.D., DOAH Case No. 84-3555.

The Department filed a response opposing Petitioner's application and requested a bifurcated evidentiary hearing. The request for a bifurcated hearing was denied and final hearing was set for February 28, 1986.

On January 22, 1986, the Department's unopposed motion for continuance was granted and hearing was reset for March 12, 1986, in Tallahassee, Florida.

Petitioner's request that the hearing be held in Broward or Dade Counties was denied in reliance on Rule 211-6.35(6), Florida Administrative Code, which suggests that hearings arising under FEAJA should normally be held in Tallahassee, Florida.

On January 15, 1986, Petitioner moved to strike a settlement letter dated January 11, 1985, attached to the Department's response to his application for attorney's fees. On February 3, 1986, the motion was granted.

On March 5, 1986, the Department moved for entry of a "Summary Final Order." On March 12, 1986, the day of final hearings Petitioner filed written opposition. At the outset of hearing, the motion was denied, without prejudice to the Department's right to reassert its argument in subsequent posthearing memoranda.

Prior to hearings the parties filed a prehearing stipulation identifying their respective positions. Petitioner asserts that, pursuant to FEAJA, he is entitled to recover attorney's fees and costs associated with his successful defense against Count II of an amended administrative complaint filed by the Department in a prior proceeding to discipline his license to practice optometry in Florida. Department of Professional Regulation v. Anthony Gentele, O.D., DOAH Case No. 84-3555. He contends that he was the prevailing party as to Count II since a Recommended Order entered by the undersigned recommended its dismissal, a recommendation ultimately adopted by the Board of Optometry.

Further, he claims that he is a small business party within the meaning of FEAJA, and that he is entitled to attorney's fees and costs because the initiation and prosecution of Count II lacked substantial justification.

In opposition, the Department denies that he is entitled to recover attorney's fees and costs, and asserts that he is not a prevailing small business party within the meaning of FEAJA; that the prior license revocation proceeding had a reasonable basis in law and fact at the time it was initiated; and that special circumstances exist which would make the award of fees and costs unjustified.

At hearing, Petitioner presented the testimony of Stephen Ecenia, Esquire, on the issue of the reasonableness of Petitioner's attorney's fees. The Department presented the testimony of Douglas L. Stowell, Esquire, on the reasonableness of Petitioner's attorney's fees and Edwin Walker, O.D., a qualified optometrist who sat as a member of the Probable Cause Panel (of the Board of Optometry) which found "probable cause" to file and prosecute the two- count amended administrative complaint against Petitioner. Petitioner's Exhibit Nos. 1 through 12 and the Department's Exhibit Nos. 1 through 5 were received in evidence.

The transcript of hearing was filed on April 10, 1986. The parties filed proposed findings of fact and conclusions of law by May 2, 1986. Rulings on the proposed findings are contained in the attached Appendix.

On May 13, 1986, Petitioner filed exceptions to the Department's proposed findings. On May 27, 1986, the Department moved to strike the exceptions as unauthorized. The motion was denied and the Department was allowed to file a response to Petitioner's proposed findings no later than June 5, 1986.

Based on the parties' stipulation and the evidence adduced at hearings the following findings are determined:

FINDINGS OF FACT

I.

1. The Department initiated an investigation of Petitioner's conduct as a licensed optometrist based on a complaint filed by Mary Lou Santos, one of his patients, alleging improper optometric care resulting in the permanent loss of her vision. After completing its investigation, including a review by two consulting optometrists (Dr. Walter Hathaway and Dr. Charles Pappas), the Department submitted its investigative report and recommendations to a two member Probable Cause Panel of the Board of Optometry. On August 24, 1984, the Panel found probable cause, after which the Department filed an administrative complaint against Petitioner. The complaint sought to suspends revoke or otherwise discipline his license to practice optometry on charges that he violated Rule 210-3.07, Florida Administrative Code and Section 463.016(1)(g),

   (h) and (n) Florida Statutes, by failing to perform a visual analysis on Mary Lou Santos in accordance with minimum procedures, by failing to adequately meet her vision needs, by failing to practice optometry with reasonable skill and safety and in accordance with generally accepted and prevailing optometric practice, and by failing to make an appropriate referral to a qualified health care provider.

   
   

2. Prompted by concern about Petitioner's competence to continue practicing optometry, the Probable Cause Panel also authorized the Department to investigate further to determine whether Petitioner was administering eye examinations in accordance with minimum standards and whether action should be taken against his license on an emergency basis. For this purpose, the Panel asked the Department to obtain his patient records prior and subsequent to January 1983--the month during which Petitioner gave Mary Lou Santos her initial eye examination.

   
   

3. After concluding that such patient records could not be obtained without releases from patients, the Department's counsel requested that an investigator be trained by an optometric consultant on the prescribed procedures for vision analysis, and then undergo an eye examination by Petitioner for the purpose of determining his compliance.

   
   

4. Alison Smith the investigator selected to be trained and have her eyes examined had been employed as a Department investigator for approximately six months. She had no prior investigative experience in the field of optometry, and no education or formal training in the subject. She had never before investigated the sufficiency of a visual examination given by an optometrist.

5. On September 6, 1984, Dr. Frederick Bergman, O.D., a consulting optometrist, discussed the Minimum Procedures for Vision Analysis in his office with her for approximately one and one-half hours. He demonstrated, but did not actually perform the procedures on her at that time.

   
   

6. Although Ms. Smith took notes of her discussion with Dr. Bergman, he never saw those notes nor tested her on her understanding of his explanation. Neither did he teach her how to interpret a patient's analytical record which reflects the results of a visual examination.

   
   

7. On September 7, 1984, Ms. Smith, using the alias of Alison Golden, went to Petitioner for an eye examination. She was accompanied by Richard J. Wohl, a Department investigator who was neither trained by Dr. Bergman nor familiar with the minimum procedures for vision analysis. He introduced himself as Ms. Smith's husband and remained during the examination.

   
   

8. Neither Ms. Smith nor Mr. Wohl made notes of the procedures used by Petitioner during the eye examination. They did not question him about his findings or the various procedures utilized.

   
   

9. After Petitioner completed his examination of Ms. Smith's eyes, she presented him with a medical release and asked for the patient record of her examination. He complied with her request and she left with the record. He neither made nor attempted to make any additions or deletions to her patient record after she identified herself as an investigator.

   
   

10. Ms. Smith and Mr. Wohl immediately left to investigate an unrelated case. Several days later, Ms. Smith prepared a supplemental investigative report alleging that Petitioner had failed to comply with the prescribed Minimum Procedures for Vision Analysis by failing to pull down her eyelids to check for infection and by failing to perform the tests for phorias. The patient record prepared during her eye examination reflects that Petitioner performed both procedures.

    
    

11. Ms. Smith's investigative report was prepared on or about September 1, 1984 and was based on her memory of the examination. She did not compare her observations with those of investigator Wohl. (Had she done so, she would have found that he distinctly recalled Petitioner pulling down her eyelids to administer eye drops in connection with the glaucoma test. This test was recorded on her patient record.) She did not consult with or have her patient record reviewed by Dr. Bergman prior to preparing her investigative report.

    
    

12. Counsel for the Department found a discrepancy in Ms. Smith's supplemental investigative report. By memorandum to the investigator, dated November 20, 1984, he noted that although she stated that Petitioner failed to test her eyes for phorias her patient record indicated that phorias were checked and results reported. He questioned whether this was a mistake by the consultant (or investigator) or whether this was "fraud in the records." He asked her to confer with the consultant and respond in writing by the end of the week. (Respondent's Exhibit 2)

    
    

13. Investigator Smith responded by memorandum dated December 3, 1984, and confirmed her prior findings:

    
    

    2. Phorias were not checked by Dr. Gentele [Petitioner], this is a subjective, not an

    objective test done with either a refractor or a pherobopter.

    
    

    (Respondent's Exhibit 2)

    
    

14. On December 13, 1984, the same Probable Cause Panel of the Board reconvened to consider the supplemental investigative report and where probable cause existed to file additional charges against Petitioner. Dr. Walker, one of the two panel members, noted that although the supplemental report stated that Petitioner failed to test Ms. Smith's eyes for phorias, her patient's record contained phoria findings. For this reason, he explained, I subsequently requested [counsel for the Department] to check to determine whether, in fact, this investigator was reporting that the findings were not taken . . . or whether . . . this was an oversight." (Petitioner's Exhibit 9, p. 2) The response he received was that Petitioner failed to test her eyes for phorias.

    He went on:

    
    

    This is a subjective and not an objective test done with either a refractor or phorome- ter. Based upon that information, I don't have any questions that probable cause should be found that [Petitioner] did not perform a minimum examination.

    
    

    (Petitioner's Exhibit 9, p. 2)

    
    

    Dr. Pena, the other Panel members concurred.

    
    

15. Dr. Pena was critical, however, of investigator Smith's complaint that Petitioner failed to pull her eye lids down to check for irritation. He thought this complaint "was a little weak." (Petitioner's Exhibit 9, p. 3) Dr. Walker agreed:

    
    

    In fact, there's probably some people that I wouldn't pull the lids down unless I suspect- ed some problems. There's no place in the rule that specifies what you do in external examination of the eye. I thought that was weak. If, in fact, he did not perform bio- microscopy . . . [another omission, according to the investigator] if, in fact, he did not do any phorias, then I think that is suffi- cient evidence to find probable cause.

    
    

    (Petitioner's Exhibit 9, p. 3)

    
    

16. After the Panel agreed that probable cause existed, counsel for the Department informed them that it was his intent--on a finding of probable cause and directions to issue an administrative complaint--to include the additional charge by filing an amended complaint in the then pending license revocation proceeding. He noted, however, that the additional charge concerned a "separate matter. One [charge] does not hinge on the other, therefore, it was not really part of the [pending] DOAH proceeding." (Petitioner's Exhibit 9, p. 4)

    
    

17. Later in the discussions the panel members once again addressed the discrepancy between the findings of the Investigator and the phoria results recorded on her patient records. Counsel for the Department asked them:

    If I could ask you one other question--you noted from the supplemental investigative report certain discrepancies between what the investigator says happened and what was shown on the medical records. In your minds what does that indicate?

    
    

    (Petitioner's Exhibit 9, p. 5) Dr. Walker responded:

    In my minds it indicates that he . . . uhhh

    . . . that the optometrist recorded findings that he did not perform in the matter of phorias. . . .

    
    

    (Petitioner's Exhibit 9, p. 5)

    
    

    Discussion then turned to whether Petitioner should also be charged with false recordkeeping i.e., recording findings without actually performing a test. Dr. Pena then asked counsel for the Board:

    
    

    Mr. Siegendorf, some of this is based upon the investigator's report to us. We are assuming that the investigator is accurate in reporting to us. How . . . how can we be

    . . . how can be assured the investigator knows that these tests weren't done?

    
    

    (Petitioner's Exhibit 9, p. 6) Mr. Siegendorf replied:

    It relates to your finding of probable cause

    . . . you base your decision . . . on the

    report that the Department provides to you. . . .

    
    

    (Petitioner's Exhibit 9, p. 6)

    
    

    Later in the discussions Dr. Pena observed:

    
    

    There is a possibility that a licensee who is under investigation for not having complied with minimum examinations may be radaring or filling in the blanks, so to speak, and not doing the procedures . . . the minimum required procedures.

    
    

    (Petitioner's Exhibit 9, p. 5)

    
    

18. The Probable Cause Panel thus found probable cause for charging Petitioner with failing to perform a visual analysis upon Alison Smith in accordance with the minimum procedures required by Board rules. The Panel's probable cause finding had a reasonable basis in fact and law. The Panel was justified in relying on the observations and findings of a Department investigation who had been trained by a qualified optometrist prior to

    undergoing a visual analysis by Petitioner. When questioned further, the investigator confirmed and repeated her finding that--contrary to Board Rules-- Petitioner failed to test for phorias or use a biomicroscope. The test for phorias (a subjective test requiring the lining-up of two objects, vertically and horizontally) was recognizable without special training or technical knowledge. The Panel resolved the conflict between the investigator's assertion that no phoria test was administered and the phoria results recorded on her patient records by concluding that Petitioner must have recorded or "radared" findings without actually performing the test. Based on the investigative report before it, the conclusion was a reasonably permissible one.

    
    

19. On December 28, 1984, pursuant to the Panel's finding of probable cause, the Department moved to file an amended administrative complaint against Petitioner (in the pending license revocation proceeding) by adding an additional count, alleging that he performed an inadequate visual analysis on Alison Smith. The motion stated that amendment was proper because the "two separate factual situations (underlying existing Count I and proposed Count II) should be combined in one . . . proceeding for purposes of saving all parties and the Division of Administrative Hearings time and money. (Petitioner's

    Exhibit 1) The motion was granted and Count II was deemed filed.

    
    

20. On or about January 18, 1985, subsequent to the filing of Count II, investigator Smith underwent a complete visual examination by Dr. Bergman, O.D. (the consulting optometrist who had earlier trained her) so the results of his examination could be compared with Petitioner's. Dr. Bergman's results did not differ significantly from those of Petitioner. Petitioner contends that once the Department became aware of this, it should have voluntarily dismissed Count

    II. Although the similarity of Dr. Bergman's and Petitioner's results tends to make investigator Smith's denial (that Petitioner tested her for phorias) less believable, the Department's continued prosecution of Count II was reasonable. It had eyewitness testimony of a trained investigator that Petitioner failed to test for phorias. In combination with other evidence offered at final hearings such testimony could have been found credible and Count II sustained. The fact that a hearing officer ultimately found such testimony insufficient to satisfy the elevated standard of proof applicable to license revocation proceedings does not make the Department's earlier decision to prosecute an unreasonable one.

    
    

21. On February 26, 1985, the undersigned hearing officer conducted a formal hearing on the two-count amended administrative complaint. On July 25, 1985, a Recommended Order was submitted to the Board. As to Count I, it was found that in examining Mrs. Santos, Petitioner failed to comply with Board rules and that his negligence in misdiagnosing and treating her eyes was flagrant, glaring, and inexcusable. It was found that if Petitioner had performed the visual analysis examination with reasonably prudent skill and safety, and in accordance with the rules of the Board, he would have discovered a pathology which would have dictated her referral to a qualified medical practitioner for treatment which, if provided, would have resulted in her visual acuity being considerably better than it is today. As to Count II, it was found that the charge that Petitioner performed an inadequate visual examination of Alison Smith was not sustained by the necessary quantum of evidenced and should be dismissed.

    
    

22. As penalty for the violations contained in Count I, the order recommended that the Board suspend Petitioner's license to practice optometry pending reeducation with potential reinstatement in a probationary status.

23. On August 22, 1985, the Recommended Order was presented to the entire Board for its final action. By Final Order dated September 14, 1985, the Board approved and adopted the findings of fact and conclusions of law contained in the Recommended Order. Petitioner's license to practice optometry was suspended until he demonstrated his ability to practice with reasonable skill and safety. Conditions to reinstatement included successful completion of a specified number of hours of optometric education (with examinations), to be followed by a monitored probationary period of five years. In addition, a $1,000 administrative fine was imposed. No appeal was taken and the time for appeal has now expired.

III.

1. Petitioner has been licensed to practice optometry in Florida since 1981. His principal office is within the state. His professional practice is organized as a corporation, not a sole proprietorship. At the time the Department instituted its action against his license, he had less than 25 full- time employees and a net worth of not more than $2 million.

   
   

   CONCLUSIONS OF LAW I.

   Florida Equal Access to Justice Act Patterned After Federal Prototype

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Sections 57.111, 120.57(1), Fla. Stat. (1985).

   
   

3. This case arises under the Florida Equal Access to Justice Act ("FEAJA" or "Florida Act"), Section 57.111, Florida Statutes (1985), which provides in pertinent part:

   
   

   (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 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 the

   award unjust.

   
   

4. FEAJA, enacted by the Florida legislature in 1984, is patterned after a federal law on the same subject--the Federal Equal Access to Justice Act ("the Federal Act") 5 U.S.C. Section 504. Section 504 of the Federal Acts enacted in 1981, provides in part:

   
   

   (a)(1) An agency that conducts an adversary adjudication shall awards to a prevailing party other than the United States, fees and expenses incurred by that party in connection with that proceedings unless the adjudicative officer of the agency finds that the position

   of the agency was substantially justified or that special circumstances make an award unjust. . . .

   
   

5. The federal and state statutes use similar language, and the legislative history of the Florida Act shows that legislators were aware of the federal prototype. See, Senate Staff Analysis and Economic Impact Statement, CS/SB 438 (5-2-84), and record of the 5-2-84 meeting of the Senate Governmental Operations Committees, sponsor of the bill. Lambert Attorney's Fees and Costs in Administrative Proceedings, FLORIDA BAR JOURNAL, July/August 1985, at 76. ("Section 57.111 is generally patterned after the federal Equal Access to Justice Act.") Since the Florida Act is patterned after the federal law, it [the Florida Act] will take the same construction in the Florida courts as its prototype has been given in the federal courts insofar as such construction is harmonious with the spirit and policy of the Florida legislation on the subject." Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108, 116 (Fla. 1st DCA 1977).

II.

Petitioner is a Small Business Party Under the Act

1. Under FEAJA, only "small business parties" are eligible for an award of attorney's fees and costs incurred in defending against agency action. A "small business party" means:

   
   

   1. 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

   2. A partnership or corporation, including a professional practice, which has its principle 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), Fla. Stat. (1985).

      
      

2. The record establishes that Petitioner was a "small business party" within the meaning of FEAJA at the time Count II was initiated against him. He operated a professional optometric practice, organized as a professional optometric corporation, with his principal office in Florida, and without more than 25 full-time employees or a net worth of more than $2 million.

   
   

3. The Department contends that Petitioner is not a qualified "small business party" since the license revocation proceeding was initiated against him, not his corporation. This contention is rejected since a construction which leads to a result obviously not intended by the legislature should be avoided. City of St. Petersburg v. Siebold 48 So.2d 291 (Fla. 1950) Most professional licenses are issued to persons who seek to operate a professional

practice. Any subsequent license revocation proceedings are constituted against that person's license. The literal construction urged by the Department would make FEAJA inapplicable to persons operating a professional practice under a corporate form of business and conflict with clear legislative intent that the Act apply to all professional practices below a specified size, regardless of organizational form.

III.

Petitioner is the Prevailing Party on

Count II of the Amended Administrative Complaint

1. Under FEAJA, a small business party is a "prevailing party when a final judgment or order has been entered in his favor and such judgment or order has not been reversed on appeal or the time for seeking judicial services has expired." Section 57.111(3)(c)1., Florida Statutes (1985).

   
   

2. Here, the Board--by final order--found Petitioner guilty of the charges contained in Count I and dismissed the charges contained in Count II as not substantiated by the evidence. The final order was not appealed and the time for seeking judicial review has expired.

   
   

3. The Department argues that the Board's order was obviously not entered in Petitioner's "favor," since it found him guilty of Count I and disciplined his license to practice optometry. See, Annette J. Ruffin v. Department of Professional Regulation, Division of Real Estate, D0AH Case No. 85-4465F, Final Order dated February 7, 1986. In essence, the Department argues that a party is ineligible for an award of fees and costs under FEAJA unless the party is successful in defending against all of the charges brought by an agency. If a person is found guilty of any charged the order is not deemed entered in that person's "favor." This argument is rejected for two reasons.

   
   

4. First, it ignores authoritative federal case law to the contrary. The determination of whether a person is a "prevailing party" under the Federal Equal Access to Justice Act is guided by existing case law under the Civil Rights Attorney's Fees Acts 42 U.S.C. Section 1988. Grand Blvd. Improvement Association v. City of Chicago, 553 F. Supp. 1154, 1166 (N.D. Ill. 1982). Under that Act, parties can recover fees even if their victories are less than complete. Id. at 1167. In Hensley v. Eckerhart 461 U.S. 424 (1983), the U.S. Supreme Court set standards for awarding attorney's fees in cases arising under the Civil Rights Attorney's Fees Acts as well as cases arising under all other federal acts authorizing an award of fees to a "prevailing party." The court held that parties may be considered "prevailing" for attorney's fees purposes" if they succeed on any significant issue in litigation which achieves some of the benefits the parties sought in bringing the suit." Id. at 1939. Any fees awarded are adjusted based on the "results obtained," a factor particularly crucial when a party is deemed "prevailing," though succeeding on only some of his or her claims. 2/

   
   

5. Second, the Department's "all or nothing" approach places form over substance and could lead to anomalous results. The award of attorney's fees would hinge on whether multiple charges were consolidated in one proceedings or prosecuted in separate proceedings. 3/ As illustrated in the instant case, charges against a licensee are frequently combined in a single proceeding merely to achieve efficiencies and reduce costs. Pretrial procedural findings based on such legitimated but extraneous considerations, should not dictate whether a party can later obtain relief under FEAJA. Moreover, under the construction urged by the Departments an agency could bring multiple unfounded charges

   (lacking a reasonable basis in law and fact) yet avoid FEAJA by prevailing on one technical, or trivial charge. 4/ Such a result would frustrate the stated purpose of FEAJA--to diminish the deterrent effect of defending against unreasonable government action. Section 57.111(2), Fla. Stat. (1985).

   
   

6. It must therefore be concluded that Petitioner was the "prevailing party" on Count II of the Amended Administrative Complaints a count based on a separate incident and requiring different proof. He successfully defended against the charges in that count and must be deemed to have realized a benefit. By failing to prove Count II, the Department was unable to show that Petitioner repeatedly or routinely administered eye examinations in violation of prescribed standards. A recurring pattern of misconduct would have justified a penalty more severe than that imposed. Moreover, if Petitioner had been found guilty of Count II, he could have been fined an additional $1,000.00. Section 463.016(2)(c) Fla. Stat. (1985).

IV.

Both Board and Department were Substantially Justified in Finding Probable

Cause for, and Prosecuting, Count II

1. FEAJA entitles a prevailing small business party to recover attorney's fees and costs "unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust." Section 57.111(4)(a), Fla. Stat. (1985). A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it was initiated. Section 57.111(3)(e), Fla. Stat. (1985). As interpreted by the staff analyst of the Senate Governmental Operations Committee, committal sponsor of CS/SB 438: "The Act establishes the general rule that attorney's fees and costs are recoverable by a prevailing small business party in any proceeding initiated by a agency unless the action of the state agency was substantially justified." D. Clint Smawley, The Florida Equal Access to Justice Act: A Sword for Small Business in Civil Proceedings Initiated by State Agencies, ADMIN. LAW SECTION NEWSLETTER, FLORIDA BAR, Vol. VII, No. 2, p. 6 (February, 1986).

   
   

2. Using almost identical languages the Federal Equal Access to Justice Acts 5 U.S.C. Section 504(a)(1) establishes the general rule that the prevailing party is entitled to an award of fees and expenses unless the hearing officer "finds that the position of the agency was substantially justified or that special circumstances make an award unjust. . . ." Federal courts construing this language have consistently held that the agency has the burden of demonstrating that its actions were substantially justified. Derickson v. National Labor Relations Board 774 F.2d 229, 232 (8th Cir. 1985) ("Unless the agency meets its burden of demonstrating the substantial justification for its position, the denial of attorney fees and expenses by the agency is an abuse of discretion. . . ."); Temp Tech Industries, Inc. v. National Labor Relations Board 756 F.2d 586, 589 (7th Cir. 1985), ("The agency can avoid the imposition of fees and costs only by demonstrating that its position as a party to the proceeding was 'substantially justified,' or that special circumstances exist that would make such an award unjust.") Charter Management Inc. v. National Labor Relations Board 768 F.2d 1299, 1301 (11th Cir. 1985) ("At the administrative level the burden is on the agency to prove that a fee award should not be made under [the Equal Access to Justice Act]."), Ashburn v. United State of America, 740 F.2d 843, 850 (11th Cir. 1984). ("The government bears the burden of showing that its position was substantially justified."), Enerhaul Inc. v. National Labor Relations Board 710 F.2d 748, 750 (11th Cir. 1983).

   ("The burden of proving that a fee award should not be made [to a prevailing party] rests with the government.")

   
   

3. The conclusion that the agency must prove that its actions were substantially justified or that special circumstances exist which would make an award unjust, is buttressed by the plain language of the statute. In mandatory language, Section 57.111(4)(a) declares the general rule--that fees and costs "shall" be awarded to a prevailing small business party. Then, following a comma, the Act creates two exceptions (actions substantially justified or special circumstances make an award unjust) which, if proven, make the general rule inapplicable. The agency is the party best able to know the factual and legal basis of its prior actions, and whether special circumstances exist which would make an award unjust. Hence it is the agency which must affirmatively raise and prove the exception. Contra, Ruffin v. Department of Professional Regulation, Division of Real Estate, DOAH Case No. 85-4465F, (Final Order dated Feb. 7, 1986), Nutt v. Department of Professional Regulation, DOAH Case No. 85- 3499F (Final Order dated Jan. 28, 1986).

   
   

4. The Department and Board have established that the filing and prosecution of Count II was "substantially justified" within the meaning of FEAJA. A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it was initiated by the agency. Section 57.111(3)(e) Fla. Stat. (1985). The Panel's finding of probable cause had a reasonable basis in law and fact. The Panel relied on the report of a trained investigator of the Department and acted only after the investigator, on further questioning, confirmed her finding that Petitioner failed to test her eyes for phorias. The Panel conducted a "meaningful" probable cause inquiry, and did not merely "rubber stamp" the recommendation of the Department. Compared Kibler v. Department of Professional Regulations 418 So.2d 1081 (Fla. 4th DCA 1982). The probable cause finding meets the Kibler standards in that the Panel had evidence before it which (if credited at final hearing) would reasonably indicate that the alleged violation had occurred. Id. at 1084. The fact that the agency later failed to prove its charge does not raise a presumption that it was not "substantially justified." Nor does the agency have to prove that its decision to prosecute was based on a "substantial probability of prevailing." Ashburn 740 F.2d at 850. It is sufficient that the Panel had evidence before it which would constitute prima facie proof of a violation if the testimony of the Department investigator had been credited at final hearing. Natchez Coca-Cola bottling Co., Inc. v. National Labor Relations Board 750 F.2d 1350, 1352 (5th Cir. 1985) (finding that agency general counsel had substantial justification to prosecute because he had evidence which would constitute a prima facie case of unlawful conduct if the testimony of his witness had been credited at final hearing was rational reason to affirm administrative law judge's rejection of an employer's application for attorney's fees under the Federal EAJA), Temp Tech Industries, Inc., supra at 590. (We cannot find that the General Counsel's decision to litigate an issue that turned on a credibility assessment was itself unreasonable, the fact that an administrative law judge might make an adverse finding on a credibility issue does not, in and of itself, deprive the General Counsel's position of a basis in fact.")

   
   

5. Section 455.225(3), Florida Statutes, requires the Department to follow the directions of a probable cause panel with regard to the filing and prosecution of a formal complaint. In the instant case, since a probable cause panel found probable cause to file and prosecute Count II, the Department's action in doing so was "substantially justified" i.e., had a reasonable basis in fact and law. If FEAJA is construed as placing a continuing duty on state agencies to dismiss charges which no longer have a reasonable basis in fact and

   law, 5/ the Department's failure to dismiss Count II does not breach such a duty. The testimony of its investigator (even after Dr. Bergman examined her and recorded phoria results similar to Petitioner's) could still have been credited at final hearings and ultimately sustained the charge.

   
   

6. Since the Department and Board have demonstrated that the finding of probable cause and the filing and continued prosecution of Count II was "substantially justified" within the meaning of FEAJA, Petitioner's application for an award of attorney's fees and costs must be denied. It is, therefore, unnecessary to reach the issue of the amount and reasonableness of the fees and costs which Petitioner incurred in defending against Count II. Accordingly, it is

ORDERED:

That Petitioner's application for attorney's fees and costs is DENIED. DONE and ORDERED this 20th day of June, 1986, in Tallahassee, Florida.

R.L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 20th day of June, 1986.

ENDNOTES

1/ In determining probable cause, the question is not the guilt or innocence of an accused, but whether there was some evidence before the Panel that would reasonably indicate that the alleged violations had indeed occurred. Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982) Cf.

Northwest Florida Home Health Agency v. Merrill, 469 So.2d 893, 901 (Fla. 1st DCA 1985).

2/ Although FEAJA defines a prevailing small business party as one who has obtained an order in its "favor," Section 57.111(3)(c)1.--a definition not used in the Federal Act--such language is at the same level of abstraction as the phrase "prevailing party," and adds nothing to the analysis. Hence federal case law remains a valuable guide to interpreting FEAJA and commands respect.

3/ The anomaly is obvious. If Count II was not combined with Count I, if the Department prosecuted Count II in a separate administrative complaint, and if the evidence was found insufficient (as it was in the combined proceeding), Petitioner would be, unquestionably, the "prevailing party" under FEAJA.

4/ Conversely--under the construction adopted in this order--defendants who are victorious only on a minor or technical charge--and found guilty of all serious charges--are not necessarily "prevailing parties" under FEAJA. Such defendants

may be unable to show that they realized a benefit from a victory on a minor or nominal charge.

5/ See, Cox v. United States of America, 593 F.Supp. 1238, 1240 (S.D. Fla. 1984) (Federal EAJA may impose requirement on federal agency to litigate in good faith and cease prosecuting a case which ceases to be substantially justified.); Natchez Coca Cola Bottling Co., supra at 1352 ("Each stage of the prosecution must be substantially justified, or a party may recover its expenses for the unnecessary proceedings.") Although FEAJA requires only that a proceeding has substantially justified "at the time it was initiated" by the state agency, Section 57.111(3)(e), the operative language generally imposes the "substantially justified" standard on "actions of the agency," Section 57.111(4)(a).

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire Edward C. Hill, Jr., Esquire

130 N. Monroe St. Tallahassee, Florida 32301

Arden M. Siegendorf, Esquire Room LL-04, The Capitol Tallahassee, Florida 32301

Richard A. Pettigrew, Esquire Melvia L. Bailey-Green, Esquire 3200 Miami Center

100 Chopin Plaza Miami, Florida 33131

NOTICE OF RIGHT TO JUDICIAL REVIEW

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: 85-003857F

Orders for Case No: 85-003857F