STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULES MINKES, D.O., )

)

Petitioner, )

)

vs. ) CASE NO. 91-4913F

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF ) OSTEOPATHIC MEDICAL EXAMINERS, )

)

)

Respondent. )

)

FINAL ORDER

Upon the agreement of the parties, no formal hearing has been conducted in this case. The findings set forth herein are based upon the stipulated record submitted by the parties.

APPEARANCES

For Petitioner: Daniel Minkes, Esquire

17615 Southwest 97th Avenue Miami, Florida 33157

For Respondent: Arthur B. Skafidas, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to an award of attorneys' fees and costs pursuant to Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code.

PRELIMINARY STATEMENT

On June 20, 1989, the Department of Professional Regulation, Board of Osteopathic Medical Examiners, filed an Administrative Complaint against Jules

1. Minkes, D. O., alleging that Dr. Minkes violated various provisions of Chapter 459, Florida Statutes, in his treatment of a patient, T.G. Dr. Minkes disputed the allegations in the Administrative Complaint and timely requested a hearing on the charges. The case was referred to the Division of Administrative Hearings ("DOAH") to conduct a formal hearing pursuant to Section 120.57, Florida Statutes. The case was assigned DPR Case No. 0099707 and DOAH Case No. 89-4323 and will be referred to in this Final Order as the "Underlying Proceeding."

   Following the completion of a formal hearing, the undersigned Hearing Officer entered a Recommended Order in the Underlying Proceeding on December 13, 1990, recommending that the Board of Osteopathic Medical Examiners (the "Board") enter a Final Order finding Dr. Minkes not guilty of the allegations contained in Count I of the Administrative Complaint, but finding him guilty of Counts II and III. The Recommended Order was considered by the Board at a meeting on March 9, 1991. During that meeting, the Board voted to adopt certain exceptions filed by Dr. Minkes to paragraphs 8 and 13 of the Conclusions of Law in the Recommended Order and directed the entry of a Final Order dismissing the Administrative Complaint in its entirety. Following the entry of the Final Order, Dr. Minkes filed a Petition for Attorney's Fees and Costs (the "Petition") with DOAH pursuant to the Florida Equal Access to Justice Act ("FEAJA"), Section 57.111, Florida Statutes (1991). The Petition resulted in this present case, which has been assigned DOAH Case No. 91-4913F.

   
   

   In his Petition, Dr. Minkes alleged that he was a prevailing small business party in an action initiated by a state agency, that the actions of the agency were not substantially justified at the time they were initiated, and that there were no special circumstances that would make an award of attorneys' fees unjust. The Department of Professional Regulation (the "Department") 1/

   timely filed a Response to the Petition. The Department did not dispute that Dr. Minkes had prevailed in an action initiated by it, that Dr. Minkes qualified as a small business party and/or that the attorney's fees and costs claimed by Dr. Minkes were reasonable. However, the Department asserted that the maximum amount of fees that could be awarded under the FEAJA was $15,000. In addition, the Department claimed that its actions were substantially justified at the time initiated and that there were special circumstances that would make an award of attorney's fees and costs unjust.

   
   

   The case was scheduled for hearing and the parties proceeded with discovery. After the case was continued on several occasions, the parties advised that they were in agreement that all of the evidence pertinent to resolving this case could be submitted for consideration without the need for a formal evidentiary hearing. Subsequently, the parties encountered difficulty in obtaining a transcript of the Board meeting during which the Final Order was adopted. Ultimately, the Board arranged for a written transcription to be made from the audio tapes of the Board meeting. Dr. Minkes has not objected to the resulting transcript.

   
   

   In accordance with the above-referenced agreement, Respondent submitted the following eight (8) exhibits which are hereby accepted without objection:

   
   

   1. A transcript of a Probable Cause Panel meeting of the Board of Osteopathic Medical Examiners on June 16, 1989.

      
      

   2. A certified copy of a Memorandum of Finding of Probable Cause regarding Jules G. Minkes, D. O., dated June 16, 1989.

      
      

   3. The deposition of Providence Padrick.

      
      

   4. The Department's complete investigative file regarding the Underlying Proceeding.

      
      

   5. The deposition of Brian Lynch.

      
      

   6. The deposition of Stephanie Daniel, chief medical attorney for the Department.

   7. The transcript prepared by the Department from the audio tapes of the March, 1991 Board of Osteopathic Medical Examiners meeting.

      
      

   8. The Final Order entered in the Underlying Proceeding along with the Recommended Order, Exceptions and Administrative Complaint.

Respondent also filed a Motion for Official Recognition regarding the DOAH file from the Underlying Proceeding. It should be noted that the transcript and exhibits from the Underlying Proceeding were transmitted to the Board and have not been returned. The DOAH file was sent to storage after the Recommended Order was entered. The file was apparently lost or destroyed before the Motion for Official Recognition was received. Efforts to locate the DOAH file have been unsuccessful. In view of the conclusions reached in this Final Order, the unavailability of that file is irrelevant.

Both parties submitted proposed final orders. A ruling on each of the parties' proposed findings of fact is included in the Appendix to this Final Order. Attached to Petitioner's proposed Final Order was a portion of the transcript from the hearing in the Underlying Proceeding, some pages from the deposition of Dr. Tytler, which was accepted into evidence during the hearing in the Underlying Proceeding and the Department's answers to interrogatories propounded by Dr. Minkes in this case. The Department has not objected to any of these exhibits. Accordingly, they have been accepted into evidence.

FINDINGS OF FACT

Based upon the record in this proceeding, the following findings of fact are made:

1. At all times pertinent to this proceeding, Petitioner, Jules G. Minkes, was licensed as an osteopathic physician in the State of Florida having been issued license number 0S001516. For purposes of this proceeding, there is no dispute that Dr. Minkes qualifies as a small business party as defined in the FEAJA.

   
   

2. In approximately May of 1988, the Department of Insurance notified the Department of Professional Regulation of a closed claim regarding Dr. Minkes. 2/ Specifically, the notice advised that an indemnity had been paid on behalf of Dr. Minkes to a patient T. G. (the "Patient") in the amount of $150,000 in

   settlement of a claim that Dr. Minkes had allegedly failed to diagnose and treat the Patient's basal cell carcinoma.

   
   

3. The Department assigned an investigator to the case who notified Dr. Minkes of the investigation by letter dated June 26, 1988. The investigator interviewed Dr. Minkes and Dr. Munzer, a dermatologist who treated the Patient upon Dr. Minkes' referral. The Investigator also obtained the Patient's medical records from Dr. Minkes and several other physicians who treated her.

   
   

4. From the outset of the Investigation, Dr. Minkes' maintained that the Patient had lied in connection with her claim. The investigator did not interview the Patient nor her husband, nor did the Investigator contact any of the individuals identified by Dr. Minkes as having knowledge of the case.

   
   

5. The notes of the Investigator's interview with Dr. Minkes and the Patient's medical records were sent to an osteopathic physician with similar credentials to Dr. Minkes, a specialist in internal medicine.

6. Joseph H. Rosin, D. O., was the expert retained by the Department to review Dr. Minkes' treatment of the Patient. In a report dated January 18, 1989, Dr. Rosin opined that Dr. Minkes' care of the Patient did not meet community standards. In particular, the Report noted that the Patient had a clear history of invasive basal cell carcinoma and Dr. Minkes failed to provide adequate treatment when it was known to have reoccurred. Dr. Rosin stated that it was not the standard of care in the community for an internist such as Dr. Minkes to treat extensive basal cell carcinoma, that surgical intervention and proper follow-up care by a dermatologist was necessary and the Patient's locally invasive carcinoma, which had been confirmed by a biopsy performed by Petitioner, should have been treated in a more timely and appropriate manner.

   
   

7. After the consultant's report was obtained, the investigative file was completed and sent to Tallahassee for review by the investigator's supervisors in Tallahassee.

   
   

8. The complete investigative report was reviewed and approved by the investigator's supervisor on January 31, 1989.

   
   

9. On June 7, 1989, the Department's investigative file was forwarded to members of the Probable Cause Panel (the "Panel") of the Board along with a copy of the Department's recommendation to find probable cause and a copy of a proposed Administrative Complaint.

   
   

10. The Panel, consisting of one lay member from the Board who was serving as chairman of the Panel and a licensed osteopathic physician, met on June 16, 1989. Both members acknowledged that they had received the materials sent to them and had reviewed the materials prior to the meeting. An assistant attorney general was present to answer any questions concerning the Panel's duties and/or the proper interpretation of the applicable laws or rules. A prosecuting attorney for the Board was also present to discuss the Department's recommendation to file an Administrative Complaint.

    
    

11. The transcript of the June 16, 1989 Panel meeting reflects little discussion of the case. The Panel members concurred with the Department's recommendation and authorized the filing of the Administrative Complaint against Dr. Minkes.

    
    

12. The Department filed the Administrative Complaint against Dr. Minkes' license to practice osteopathic medicine on or about June 20, 1989. That Administrative Complaint included three charges. Count I charged Dr. Minkes with violating Section 459.015(1)(r), Florida Statutes, as a result of his alleged failure to refer the Patient to a specialist for adequate treatment of her basal cell carcinoma, thus exploiting her for his own financial gain. Count II charged Dr. Minkes with violating Section 459.015(1)(p), Florida Statutes, by failing to keep medical records justifying his course of treatment of the Patient. Count III charged Dr. Minkes with violating Section 459.015(1)(y), Florida Statutes, by failing to practice osteopathic medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances. Although the allegations in the Administrative Complaint are somewhat vague and ambiguous, it arguably charges Dr. Minkes with malpractice because he failed to refer the Patient for proper treatment of her basal cell carcinoma, he attempted to treat the Patient's growing recurring basal cell carcinoma himself even though it was a condition which the Administrative

    Complaint alleges should have been treated by a specialist in that area of medicine, and he ignored the Patient's basal cell carcinoma.

    
    

13. Most of the allegations contained in the Administrative Complaint were consistent with and apparently based upon the allegations made in the civil complaint filed by the Patient and her husband against Dr. Minkes. A copy of the civil complaint was contained in the Department's Investigative File. (It was the settlement of that civil law suit which prompted the investigation by the Department.) The charge that Dr. Minkes had not referred the Patient to a specialist for treatment was also supported by the Department investigator's conversation with Dr. Munzer, whom Dr. Minkes had identified as the specialist to whom he had referred the Patient.

    
    

14. A formal administrative hearing was held before the undersigned Hearing Officer pursuant to Section 120.57(1), Florida Statutes. Following the conclusion of that hearing, a Recommended Order was issued on December 13, 1990, recommending the dismissal of Count I, but recommending that a Final Order be entered finding Petitioner guilty of Counts II and III.

    
    

15. As noted above, the Department's investigative file does not include any interviews with the Patient or her husband to confirm the allegations that were made in the civil law suit. However, the Department presented the testimony of the Patient's husband during the hearing in the Underlying Proceeding and, in addition, the previously transcribed testimony of the Patient was also accepted into evidence. (The Patient had died of unrelated causes prior to the hearing in the Underlying Proceeding.) As noted in Finding of Fact

    35 of the Recommended Order, both the Patient and her husband testified that Dr. Minkes advised them that he could treat the Patient's basal cell carcinoma and that he in fact attempted to do so. If this testimony had been accepted as credible, it would have been sufficient when considered with the other evidence presented, to establish that Dr. Minkes was guilty of all of the allegations contained in the Administrative Complaint. However, after considering all of the evidence, that testimony was specifically rejected.

    
    

16. Notwithstanding the conclusion that Dr. Minkes did not attempt to treat the Patient's basal cell carcinoma himself as alleged in the Administrative Complaint, the Recommended Order concluded that certain violations had been established. As set forth in paragraphs 8 through 13 of the Conclusions of Law, the undersigned Hearing Officer concluded that Dr. Minkes' records regarding the Patient were deficient and that his treatment fell below the standard of care expected of a reasonably prudent physician under similar conditions and circumstances. Dr. Minkes filed exceptions to the Recommended Order arguing that the factual grounds for the violations found in the Recommended Order were not specifically alleged in the Administrative Complaint. The Board apparently agreed with this contention since, in its Final Order, the Board adopted all of the Findings of Fact in the Recommended Order, but dismissed the charges in the Administrative Complaint.

    
    

17. Some of the charges in the Administrative Complaint presume that Dr. Minkes attempted to treat the Patient's basal cell carcinoma. In particular, the Administrative Complaint refers to several instances when Dr. Minkes hyfercated lesions on the Patient's forehead. The Administrative Complaint suggests that these instances were improper attempts to treat the Patient's basal cell carcinoma. The evidence presented at the hearing was insufficient to overcome Dr. Minkes contention that his clinical observations justified his conclusions that these lesions were keratotic and not related to the Patient's basal cell carcinoma. This testimony by Dr. Minkes and the rejection of the

    testimony of the Patient and her husband on this matter undermined some of the fundamental presumptions in the Administrative Complaint. Nonetheless, the undersigned Hearing Officer concluded that the evidence was still sufficient to establish violations of the statutory provisions cited in Counts II and III of the Administrative Complaint. The Board's apparent determination that the violations found in the Recommended Order were not adequately alleged in the Administrative Complaint does not obviate the conclusion that violations of the charged statutes were found to have in fact occurred.

    
    

18. Dr. Minkes complains that the consultant's opinion which led to the Panel's finding of probable cause indicates that Dr. Minkes did not refer the Patient to a specialist for treatment when, in fact, such a referral was made to Dr. Munzer. This matter was recognized in Findings of Fact 67 of the Recommended Order. As noted in that Finding, the consultant subsequently acknowledged the referral to Dr. Munzer and amended his opinion. The consultant still felt that Dr. Minkes failed to meet the applicable standard of care because he failed to take adequate steps to insure that the Patient's basal cell carcinoma was treated. It should be noted that there are many unresolved questions regarding the scope of Dr. Minkes' referral to Dr. Munzer. Dr. Munzer's statement to the Department's investigator and his deposition testimony offered into evidence during the Underlying Proceeding regarding his treatment of the Patient differed greatly from Dr. Minkes' version of the referral. Dr. Munzer claimed that he did nothing more than evaluate the Patient's biopsy. He claimed that he told Dr. Minkes that the Patient needed chemosurgery, but Dr. Minkes continued to treat her. Dr. Munzer disclaimed any responsibility for treating the Patient's basal cell carcinoma and states that he would not have agreed to treat her condition because he was not qualified to do so. In determining whether probable cause existed to file the Administrative Complaint, the Panel was not required to, and did not attempt to, reconcile this discrepancy between Dr. Minkes and Dr. Munzer.

    
    

19. Dr. Minkes also points out that Dr. Tytler, whose opinion was not available at the time the Administrative Complaint was filed but whose subsequent deposition was accepted into evidence at the final hearing, testified that there was no indication in the Patient's medical records that Dr. Minkes ever treated or attempted to treat the Patient's basal cell carcinoma as alleged in the Administrative Complaint. However, Dr. Tytler did testify that Dr. Minkes' treatment of the Patient did not meet community standards in certain respects.

    
    

20. Without question, there were some gaps and/or oversights in the Department's investigation. In retrospect, the Department perhaps should have recognized the possibility that the Patient's version of events might not be accepted in its entirety in which case the Administrative Complaint could have been drafted in a manner that would have minimized the impact of such a conclusion. Notwithstanding these deficiencies, there was sufficient evidence for the Panel to conclude that the Patient had received substandard care. Even if the Patient's own decisions contributed to the delay in treating her basal cell carcinoma, there was clearly a lack of understanding and/or miscommunication between Dr. Minkes and Dr. Munzer as to how the Patient was to be treated. While there were conflicting versions as to who was responsible for this breakdown in communication, there was some evidence considered by the Panel which would reasonably indicate that the violations alleged had indeed occurred. After considering all of the circumstances, it is concluded that the Department was substantially justified in filing the Administrative Complaint.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 57.111 and 120.57(1), Florida Statutes (1993).

    
    

22. Section 57.111, Florida Statutes, provides for an award of attorney's fees and costs in certain administrative proceedings. Section 57.111(4)(a) states:

    
    

    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 an award unjust.

    
    

23. As stated in Section 57.111(2), Florida Statutes, the purpose of the FEAJA is to diminish the deterrent effect on certain persons from defending against unreasonable governmental action because of the expense of civil actions and administrative proceedings.

    
    

24. The initial burden in an action under the FEAJA is on a petitioner to establish that it was a small business party that prevailed in an action initiated by a state agency. The burden then shifts to the state agency to establish that there was a reasonable basis in law and fact to justify the initiation of the action against the petitioner or that special circumstances exist which would make an award of attorney's fees and costs unjust. Department of Professional Regulation v. Toledo Realty, Inc., 549 So.2d 715 (Fla. 1st DCA 1989).

    
    

25. As set forth in Section 57.111(3)(b), Florida Statutes, a state agency initiates a proceeding when it is required by law or rule to advise a small business party of a clear point of entry after some recognizable event in the investigatory or other free form proceeding of the agency. By filing the Administrative Complaint against Dr. Minkes, the Department and the Board of Osteopathic Medicine initiated an action against Dr. Minkes within the meaning of Section 57.111(3)(b)3, Florida Statutes.

    
    

26. Section 57.111(3)(c), Florida Statutes, provides that a small business party becomes a prevailing small business party when one of the following has occurred:

    
    

    1. A final judgment or order has been entered in favor of the small business party and such judgment or order has not been reversed on appeal or the time for seeking judicial review of the judgment or order has expired;

    2. A settlement has been obtained by the small business party which is favorable to the small business party on the majority of issues which such party raised during the course of the proceeding; or

    3. The state agency has sought a voluntary dismissal of its complaint.

       
       

27. The parties have stipulated that Dr. Minkes qualifies as a small business party as defined in Section 57.111(3)(d)(1)b, Florida Statutes. Dr. Minkes was also a prevailing party in the Underlying Proceeding.

    
    

28. Section 57.111(3)(e), Florida Statutes, provides that "[a] proceeding is 'substantially justified' if it had a reasonable basis in law and fact at the time it was initiated by a state agency." The evidence presented in this case established that there was a reasonable basis in law and fact for the initiation of the Underlying Proceeding. Accordingly, the Department was substantially justified in initiating the action.

    
    

29. For purposes of the FEAJA, the determination of whether a proceeding was substantially justified must focus on the time when the proceeding was initiated. In this case, that focus should be at the time of the Probable Cause Panel meeting.

    
    

30. There is no persuasive evidence that the Department did anything out of the ordinary by initiating an investigation. Section 455.225, Florida Statutes, (1987) provided that, when an investigation was complete and legally sufficient, DPR was to prepare and submit to the Probable Cause Panel the investigative report, findings, and recommendations of the Department. If the Panel found, through a majority vote of its members, that probable cause existed under Section 455.225(4), Florida Statutes (1987), it could direct the Department to file a formal complaint, which the Department was required to prosecute pursuant to the provisions of Chapter 120, Florida Statutes.

    
    

31. "To sustain a probable cause determination, there must be some evidence considered by the panel that would reasonably indicate that the violations alleged had indeed occurred." Kibler v. Department of Professional Regulation, 418 So.2d 1081, 1084 (Fla. 4th DCA 1982).

    
    

32. The burden of proof at a formal administrative hearing where the agency is seeking revocation and/or suspension of a professional license is clear and convincing evidence of the alleged violation. See generally, Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987). The standard of proof at a probable cause panel meeting is lower than that required at formal hearing and, as noted above, is simply whether the evidence, if credited at formal hearing, reasonably indicates that the violations alleged had occurred. Kibler, supra. Under this standard, the Panel was not required to reconcile the clear conflict between Dr. Minkes' version of his treatment of the Patient and the conflicting version of events alleged by the Patient. Likewise, the Panel did not have to resolve the discrepancy between Dr. Minkes and Dr. Munzer regarding the referral of the Patient.

    
    

33. As noted by the First District Court of Appeal in Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc. 549 So.2d 715, 719 (Fla. 1st DCA 1989), review of the investigative report is important in evaluating a probable cause panel's decision that probable cause exists for the issuance of a formal complaint against a licensee.

    
    

34. The investigative report submitted to the Probable Cause Panel in this case contained information which, if credited at final hearing, could reasonably have been construed to constitute a violation of the statutes cited in the Administrative Complaint. The allegations contained in the Patient's civil law

    suit and the statements of Dr. Munzer, if credited, would have sustained the charges in the Administrative Complaint. While the testimony of the Patient and her husband on certain critical facts was not accepted in the Recommended Order, a decision to prosecute based upon a credibility assessment of the witnesses is a reasonable basis in law and fact to justify the initiation of proceedings against a licensed professional. See, Gentele, 9 F.A.L.R. at 328, 329, on appeal 513 So.2d 672, 673 (Fla. 1st DCA 1987); Arias v. Department of

    Professional Regulation, Board of Medicine, 13 F.A.L.R. 2648, 2657 (July 1,

    1991).

    
    

35. The Board's reasoning in dismissing the Administrative Complaint is not entirely clear. Arguably, it was not a complete exoneration of Dr. Minkes' treatment of the Patient. Instead, it appears that the Board accepted Dr. Minkes' contention that he was not adequately notified of the violations found in the Recommended Order. In other words, the ultimate result reflected in the Final Order seems to have been the result of a deficiency in pleading rather than the absence of any violations of Chapter 459 and/or the standard of care. Under these circumstances, an award of attorney's fees would be unjust.

    
    

36. In conclusion, DPR has met its burden of showing that its actions were substantially justified. The initial finding of probable cause made after the Probable Cause Panel reviewed the Patient's records and an opinion rendered by another osteopathic physician had a reasonable basis in law and fact. Gentele

1. Department of Professional Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987). Moreover, in view of the $150,000 settlement of the civil action against Dr. Minkes which prompted the investigation in this case and after considering the apparent technical basis for the Board's Final Order in the Underlying Proceeding, an award of attorney's fees under these circumstances would be unjust. Therefore, it is concluded that Dr. Minkes is not entitled to the award he seeks.

   
   

   RECOMMENDATION

   
   

   Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Dr. Minkes' Petition for Attorney's Fees and Costs is DENIED.

   DONE AND ENTERED this 27th day of February 1995 in Tallahassee, Leon County, Florida.

   
   

   
   

   J. STEPHEN MENTON 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 27th day of February 1995.

   ENDNOTES

   
   

   1/ As of July 1, 1993, the Department of Professional Regulation was abolished and its duties were transferred to the Department of Business and Professional Regulation. See Chapter 93-220, Laws of Florida. Pursuant to Chapter 93-129, Laws of Florida, and Section 20.165, Florida Statutes, the Board of Osteopathic Medicine was transferred from the Department of Business and Professional Regulation to the Agency for Health Care Administration, effective July 1, 1994. For purposes of this Final Order, the "Department" shall refer to the appropriate state agency charged with regulating the practice of Osteopathic medicine pursuant to Chapters 455 and 459, Florida Statutes, during the pertinent time period.

   
   

   2/ The Department of Insurance reports closed claims to the Department of Professional Regulation in accordance with Section 627.912, Florida Statutes.

   
   

   APPENDIX

   
   

   The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact.

   1. Adopted in substance in Findings of Fact 10 and 11.

   2. Subordinate to Findings of Fact 10 and 11.

   3. Adopted in substance in Findings of Fact 12.

   4. Adopted in substance in Findings of Fact 12.

   5. Rejected as unnecessary.

   6. Rejected as unnecessary.

   7. Subordinate to Findings of Fact 14.

   8. Subordinate to Findings of Fact 15.

   9. Adopted in pertinent part in Findings of Fact 14 and 16.

   10. Subordinate to Findings of Fact 16.

   11. Subordinate to Findings of Fact 18.

   12. Subordinate to Findings of Fact 18.

   13. Subordinate to Findings of Fact 18.

   14. Subordinate to Findings of Fact 15 and 18.

   15. Rejected as argumentative and Subordinate to Findings of Fact 13 and 15.

   16. Subordinate to Findings of Fact 19.

   17. Rejected as irrelevant.

Respondent's Proposed Findings of Fact.

1. Adopted in substance in Findings of Fact 2.

2. Adopted in substance in Findings of Fact 3.

3. Adopted in substance in Findings of Fact 3, 4, 7 and 8.

4. Adopted in substance in Findings of Fact 6.

5. Adopted in substance in Findings of Fact 9.

6. Adopted in substance in Findings of Fact 9.

7. Adopted in substance in Findings of Fact 10.

8. Adopted in pertinent part in Findings of Fact 10.

9. Adopted in pertinent part in Findings of Fact 10.

10. Adopted in pertinent part in Findings of Fact 10.

11. Rejected as unnecessary.

12. Rejected as unnecessary.

13. Adopted in substance in Findings of Fact 11.

14. Adopted in substance in Findings of Fact 11.

15. Adopted in substance in Findings of Fact 12.

16. Addressed in the Preliminary Statement.

17. Adopted in substance in Findings of Fact 14.

18. Rejected as vague and confusing. This subject matter is addressed in Findings of Fact 16.

19. Addressed in the Preliminary Statement and in Findings of Fact 16.

COPIES FURNISHED:

Daniel Minkes, Esquire 17615 Southwest 97th Avenue Miami, Florida 33157

Arthur B. Skafidas, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Tom Wallace, Assistant Director Agency for Health Care Administration

325 John Knox Road, Suite 301 Tallahassee, Florida 32303-4131

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 91-004913F

Orders for Case No: 91-004913F