STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORMAN A. FENICHEL, D.D.S., )

)

Petitioner, )

)

vs. ) CASE NO. 92-0494F

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case on July 8, 1992, in Tallahassee, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Samantha D. Boge, Esquire

Stowell, Anton & Kraemer

201 South Monroe Street, Suite 200 Post Office Box 11059

Tallahassee, Florida 32302

For Respondent: E. Renee Alsobrook, Esquire

Chief Attorney - Professions Department of Professional Regulation Northwood Centre, Suite 60

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 attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code.

PRELIMINARY STATEMENT

On or about October 19, 1990, the Respondent, the Department of Professional Regulation (the "Department" or "DPR"), filed an Administrative Complaint against the Petitioner, Norman A. Fenichel, D.D.S. Dr. Fenichel disputed the allegations of the administrative complaint and the case was referred to the Division of Administrative Hearings ("DOAH"). The case was styled Department of Professional Regulation vs. Norman A. Fenichel, D.D.S., DPR Case Number 89-8779, DOAH Case Number 90-7729 (hereinafter referred to as the "Underlying Proceeding.")

On November 20, 1991, DPR filed a Notice of Voluntary Dismissal of its complaint in the Underlying Proceeding. An Order Closing File was entered by DOAH on November 21, 1992. Subsequently, on or about December 16, 1991, DPR entered a Closing Order which concluded that there was probable cause of a violation but that the case would be closed with a letter of guidance issued to Dr. Fenichel.

On January 24, 1992, Dr. Fenichel filed with DOAH a Petition for Award of Attorney's Fees and Costs (the "Petition") regarding fees and costs incurred as a result of defending against the disciplinary action filed by DPR. This case, DOAH Case No. 92-0494F, was opened as a result of the filing of that Petition. Dr. Fenichel alleges that he was a prevailing small business party from 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 attorney's fees unjust.

On February 11, 1992, DPR timely filed its Response to the Petition. DPR contends that Dr. Fenichel failed to timely file his Petition for Attorney's Fees and Costs and, therefore, was not entitled to an award. DPR further alleges that, (a) even if the Petition was deemed to have been timely filed, Dr. Fenichel was not a prevailing small business party from action initiated by DPR,

(b) that the actions of DPR were substantially justified at the time initiated 7and (c) that there were special circumstances that would make an award unjust.

Prior to the formal hearing in this case, the parties entered into a Pre- hearing Stipulation in which the parties agreed that Dr. Fenichel was a small business party for purposes of Section 57.111 and the hourly rate charged by Dr. Fenichel's counsel was reasonable. At the hearing, DPR's Motion to Amend the Pre-hearing Stipulation was granted without objection and a ruling on DPR's Motion to Dismiss for lack of jurisdiction was deferred pending the conclusion of the formal evidentiary hearing.

In accordance with the Pre-hearing Stipulation of the parties, ten exhibits were offered and admitted at the commencement of the hearing as Respondent's exhibits. Respondent offered one additional exhibit, Respondent's Exhibit 11, to which Petitioner objected. No evidence was presented to authenticate or establish the relevancy of Respondent's Exhibit 11. Therefore, it was not accepted into evidence and has not been considered in the preparation of this Final Order.

Dr. Fenichel offered four additional exhibits, all of which were accepted without objection.

The Petitioner and the Respondent each called one witness at the hearing.

A transcript was ordered by the parties and filed with DOAH. 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.

FINDINGS OF FACT

1. Dr. Fenichel is a Florida licensed dentist having been issued license number DN-0008157.

   
   

2. Dr. Fenichel maintains a professional dental practice in the State of Florida having a principal business address of 7544 Lake Worth Road in Lake Worth, Florida 33467.

3. Dr. Fenichel maintains his primary residence within the State of Florida.

   
   

4. Dr. Fenichel employs no more than twenty-five full-time employees and has never employed more than twenty-five full-time employees.

   
   

5. Dr. Fenichel has a net worth of less than two million dollars, including both personal and business investments and has not had a net worth of more than two million dollars since the time the underlying action was initiated against his license to practice dentistry.

   
   

6. Sometime in the late summer or early fall of 1989, F.P., 1/ a former patient of Dr. Fenichel, (hereinafter referred to as the "Patient") filed a written complaint regarding the care and treatment she had received from Dr. Fenichel.

   
   

7. During the fall of 1988, Dr. Fenichel provided dental care to the Patient which included prophylaxis, an extraction, the recapping of crowns on teeth #'s 21, 22, 27 and 28 and a removable denture for teeth #'s 29, 30, 31 and 18, 19 and 20.

   
   

8. DPR began an investigation of the Patient's complaint assigning it DPR Case Number 89-08779, notified Dr. Fenichel on or about September 27, 1989 of the complaint, conducted interviews with the Patient and Dr. Fenichel, obtained a written response, the Patient's records and x-rays from Dr. Fenichel, and obtained information and x-rays from a subsequent treating dentist in New Jersey, Dr. Lucca.

   
   

9. The Probable Cause Panel of the Board of Dentistry met on at least three separate occasions pursuant to Section 455. 255, Florida Statues, to review DPR's investigative report and recommendations concerning the case.

   
   

10. On March 15, 1990, the Probable Cause Panel met to consider the DPR investigative report and the recommendation from DPR of a finding of probable cause of a violation with a letter of guidance issued to Dr. Fenichel in connection with his treatment of F.P.

    
    

11. The March 15, 1990 Probable Cause Panel made a determination that there was probable cause of a violation and, after discussion, directed DPR to file an Administrative Complaint against Dr. Fenichel's license to practice dentistry.

    
    

12. The investigative report presented by the Department to the March 15, 1990 Probable Cause Panel included, among other things, summaries of interviews with Dr. Fenichel and with the complaining Patient, the Patient's written complaint, the written response of Dr. Fenichel, Dr. Fenichel's treatment/billing records and x-rays, a letter from Dr. Lucca, the subsequent treating dentist from New Jersey, outlining his clinical findings, x-rays and pictures apparently taken by Dr. Lucca and records of payments made by the Patient to Dr. Fenichel and to Dr. Lucca.

    
    

13. Dr. Fenichel's billing records, his interview as reported by the Departmental investigator, his written response, and his treatment records all indicate that, from at least December 22, 1988 through February 23, 1989, the Patient was complaining about the work done by Dr. Fenichel, that Dr. Fenichel

    made several adjustments to the dentistry at no charge, and that the Patient's complaints were reflected in the observations and notes made by Dr. Lucca in March of 1989.

    
    

14. In an entry dated January 17, 1989, Dr. Fenichel documented in his treatment records that the "patient maintains that partial is 'not right' she can't chew and is swallowing 'chunks'...". Dr. Fenichel also noted during this visit that he realigned the partial and adjusted the bite.

    
    

15. During a February 23, 1989 visit, Dr. Fenichel noted that he again adjusted the partial. Dr. Lucca's records reflect that the Patient went to New Jersey on or about March 9, 1989 at which time he conducted an evaluation of her. Dr. Lucca had been the Patient's dentist when she was living in New Jersey. The Patient claims that this trip to New Jersey was necessitated by the pain she was experiencing from the work performed by Dr. Fenichel.

    
    

16. Dr. Lucca advised the Patient of his clinical findings following the March 9, 1989 visit in a letter dated March 22, 1989 as follows:

    
    

    Porcelain to metal crowns on teeth #21, 22 and 27, 28 are ill-fitting, especially on facial margins. These are causing some gingival inflammation at present and may initiate caries at these margins in the future.

    
    

    The semi-precision removable partial denture framework fits well, but there is no occlusion of the posterior teeth on this partial denture. (posterior teeth do not meet.)

    
    

    Since you are uncomfortable and are complaining on the inability to chew, plus the above factors, I would suggest having the lower case redone.

    
    

17. In addition to his clinical findings, Dr. Lucca advised the Patient that other dentists nearer to where she lived "...would certainly be able to help you so that you would not have to travel up here and have to stay several months."

    
    

18. After seeing Dr. Lucca on March 9, 1992, the Patient was sent to another New Jersey dentist, Dr. Berger, who did a root canal on March 13 and 14, 1992.

    
    

19. Dr. Fenichel's billing records reflect that the patient returned to his office on or about March 31, 1989, following her visit and evaluation with the New Jersey dentist and before the work was "redone."

    
    

20. In her written complaint, the Patient alleged that during the March 31 visit she advised Dr. Fenichel of the New Jersey dentist's clinical findings. She claims that she requested Dr. Fenichel to pay for her treatment by Dr. Lucca, but Dr. Fenichel only offered to refund her money for the work performed by him. Ultimately, the Patient had Dr. Lucca redo the work done by Dr. Fenichel. It appears that Dr. Lucca also did some additional work on the Patient.

21. Dr. Fenichel noted in his written response to the Patient's complaint that he had offered to refund her money for the work performed even though, in his opinion, there was nothing wrong with his work. No evidence was presented as to whether Dr. Fenichel ever refunded any money to the Patient.

    
    

22. It is clear that the findings of the subsequent treating New Jersey dentist and the persistent complaints by the Patient were key factors in the Probable Cause Panel's decision to direct DPR to file an Administrative Complaint against Dr. Fenichel. At the March 5, 1990 Probable Cause meeting, the Panel and the DPR prosecuting attorney recognized that the credibility of the witnesses would be very important in order to establish at formal hearing that Dr. Fenichel was in violation of the rules and regulations of the Board of Dentistry. There was also a recognition that the work had been redone by Dr. Lucca and that it might be difficult and perhaps impossible to get an evaluation of Dr. Fenichel's work from a qualified expert who did not have a financial interest in the case.

    
    

23. Following the March 15, 1990 Probable Cause Panel Meeting, DPR retained an expert, Dr. Rupert Q. Bliss, to evaluate the Departmental investigative report.

    
    

24. Dr. Bliss noted several potential pitfalls to successful prosecution of Dr. Fenichel. Dr. Bliss expressed concern that no independent evaluation of Dr. Fenichel's work was possible since the work had been redone by Dr. Lucca. He suggested that complete records from Dr. Lucca and Dr. Berger would be necessary in order to successfully prosecute the case. Even though Dr. Bliss' editorial comments pointed out some of the potential problems to successfully prosecuting the case, he also noted some of the evidence that indicated Dr. Fenichel's work may not have met minimum standards.

    
    

25. Dr. Bliss noted that Dr. Fenichel's patient records contained in the investigative report were inadequate and below minimum standards when measured against generally prevailing peer performance because there was no patient health history, no patient dental history, no tooth charting, no periodontal charting, and no treatment plan. In addition, Dr. Fenichel's treatment records were "very brief".

    
    

26. Dr. Bliss reviewed two periapical x-rays of the Patient taken on or about March 13, 1989 and prior to the work performed by Dr. Lucca. Dr. Bliss was uncertain as to the origin of these x-rays. Dr. Bliss noted that the periapical x-rays dated March 13, 1989 showed two substandard crowned teeth with one tooth appearing "...to have the labial-gingival margin standing away from the tooth..." and the other appearing "...to have the distal interproximal crown margin short of the prepared tooth margin thus exposing a significant amount of cut tooth structure to the oral environment..." Dr. Bliss noted that these x- rays could establish a violation of the minimum standards for the practice of dentistry as measured against generally prevailing peer performance.

    
    

27. The same x-rays and photos reviewed by Dr. Bliss were provided by the Department to the Probable Cause Panel for its March 15, 1990 meeting at a second meeting on September 14, 1990.

    
    

28. In addition to Dr. Bliss' report and the investigative report discussed above, the September 14, 1990 Probable Cause Panel had before it for consideration yearly progress reports from the Patient's periodontist, Dr. Feldman, the billing record and x-rays from Dr. Berger, the New Jersey endodontist who performed the root canal on the Patient prior to Dr. Lucca

    redoing Dr. Fenichel's work, and copies of photographs from the Patient representing the physical condition of the dentistry prior to the work having been redone.

    
    

29. The September 14, 1990 Probable Cause Panel met to consider the Department's renewed recommendation for a finding of probable cause and the issuance of a letter of guidance to Dr. Fenichel in connection with his treatment of F.P.

    
    

30. After discussion and consideration, the September 14, 1990 Probable Cause Panel made a determination that probable cause of a violation did exist and again directed DPR to file an Administrative Complaint against Dr. Fenichel's license.

    
    

31. At the September 14, 1990 Probable Cause meeting, the Panel and the Department's prosecuting attorney noted the crucial nature of credibility issues regarding the subsequent treating dentist and the Patient before making a determination that probable cause did exist to believe that Dr. Fenichel had violated Section 466.028(1)(y), Florida Statutes.

    
    

32. As a result of the September 14, 1990 Probable Cause Panel decision, an Administrative Complaint was filed on or about October 19, 1990 for DPR Case Number 89-08779 initiating action against Dr. Fenichel's license to practice dentistry.

    
    

33. Dr. Fenichel's treatment and billing records contained within the investigative report reflect the dates of treatment and the services provided to the complaining Patient as alleged in paragraphs numbered three and four of the Administrative Complaint.

    
    

34. Paragraph five subparagraph (c) of the Administrative Complaint alleged that Dr. Fenichel's records regarding the complaining Patient were inadequate and below minimum standards for the profession. This allegation was based on Dr. Bliss' review of Dr. Fenichel's records regarding the Patient that were in the DPR investigative report.

    
    

35. Subsequent to the filing of the Administrative Complaint, Dr. Fenichel's attorney took the deposition of Dr. Bliss. At the deposition, Dr. Fenichel's attorney provided Dr. Bliss with additional records from Dr. Fenichel's patient file. These documents prompted Dr. Bliss to partially retreat from his previous opinion that Dr. Fenichel's records regarding the Patient were inadequate.

    
    

36. Subparagraphs (a) and (b) of paragraph five of the Administrative Complaint charged Dr. Fenichel with incompetence and/or negligence in his treatment of the Patient. These charges were based on the March 22, 1989 letter to the Patient by Dr. Lucca outlining his clinical findings, Dr. Fenichel's treatment records reflecting the problems the Patient was experiencing and Dr. Fenichel's repeated attempts at adjusting the dentistry, the Patient's x-rays, the photographs provided by the subsequent treating New Jersey dentists and/or the Patient, the Patient's written complaint, and Dr. Bliss' report.

    
    

37. Petitioner disputed the factual allegations contained within the Administrative Complaint and a request for formal administrative hearing was filed with DOAH on or about November 5, 1990. The case was assigned DOAH Case Number 90-07729.

38. On November 8, 1991, the Probable Cause Panel met to reconsider the case against Dr. Fenichel. The membership of the Panel had changed since Dr. Fenichel's case had last been considered. The DPR attorney indicated to the Panel that the Department did not believe that it could prevail at final hearing against Dr. Fenichel because no independent evaluation of his work could be obtained. The Department recommended a finding of probable cause with a letter of guidance issued to Dr. Fenichel.

    
    

39. It is unclear what, if any efforts were made to contact the subsequent treating New Jersey dentist. During his presentation to the Probable Cause Panel on November 8, 1991, the DPR prosecuting attorney indicated that he had tried to contact Dr. Lucca and found him to be uncooperative.

    
    

40. After a brief discussion, the November 8, 1991 Probable Cause Panel accepted the Department's recommendation, determined that probable cause of a violation did exist and directed the Department to close the case with a letter of guidance issued to Dr. Fenichel.

    
    

41. A Notice of Voluntary Dismissal for DPR Case Number 89-08779, DOAH Case Number 90-07729, was filed by DPR with DOAH on November 20, 1991.

    
    

42. The undersigned Hearing Officer entered an Order closing the DOAH file in the underlying proceeding on November 21, 1992.

    
    

43. On November 25, 1991 Dr. Fenichel, through his attorney, received a copy of DPR's Notice of Voluntary Dismissal dated November 20, 1991.

    
    

44. A Closing Order in DPR Case Number 89-08779 was entered by the Probable Cause Panel on or about December 16, 1991, finding that there was probable cause of a violation, but closing the case with a letter of guidance issued to Dr. Fenichel.

    
    

45. Sometime after December 16, 1991, Dr. Fenichel, through his attorney, received a copy of the closing order issued by the Probable Cause Panel of the Board of Dentistry on December 16, 1991. The Closing Order noted: "The Department's expert consultant was unable to make a determination as to the standard of care rendered by the subject to F.P."

    
    

46. Dr. Fenichel's Petition for Attorney's Fees and Costs was filed on January 24, 1992.

    
    

47. The parties have stipulated that the hourly rate charged by Dr. Fenichel's counsel in the underlying case was reasonable.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

49. Section 57.111, Florida Statutes, provides for the 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.

    
    

50. 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. Fenichel, which advised Dr. Fenichel of a clear point of entry, DPR and the Board of Dentistry initiated an action against Dr. Fenichel within the meaning of Section 57.111(4)(b)3, Florida Statutes.

    
    

51. Under Section 57.111, Florida Statutes, the initial burden is on a petitioner to establish that it was a small business party that prevailed in an action initiated by a state agency. See, Gentele v. Department of Professional Regulation, Board of Optometry, 9 F.A.L.R. 310, 326, 327 (June 20, 1986); aff'd.

    513 So.2d 672 (Fla. 1st DCA 1987) (distinguishing the respective burdens of the parties under Section 57.111, Florida Statutes); David v. Department of Professional Regulation, Board of Medicine, 13 F.A.L.R. 2454, 2459 (May 31, 1991). 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.

    
    

52. 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.

       
       

53. Under Section 57.111(4)(b)(2), Florida Statutes, and Rule 22I- 6.035(1), Florida Administrative Code, a petition for an award of attorney's fees and costs must be filed within sixty (60) days after the date in which a small business party becomes a prevailing small business party.

    
    

54. In the Underlying Case, there were two events which could be interpreted as making Dr. Fenichel a prevailing small business party under Section 57.111(3)(c), Florida Statutes: (1) the filing by DPR of the Notice of Voluntary Dismissal on November 20, 1991 or (2) the closure of the case by DPR on or about December 16, 1991.

    
    

55. DPR argues that the Notice of Voluntary Dismissal is the event under Section 57.111(3)(c)(3), Florida Statutes, which made Dr. Fenichel a prevailing

    small business party. DPR contends that Dr. Fenichel failed to timely file for an award of his attorney's fees and costs and, therefore, his Petition should be dismissed. The Petition for Attorney's Fees and Costs was filed on January 24, 1992, 65 days after DPR mailed the Notice of Voluntary Dismissal to counsel for Dr. Fenichel and 60 days after it was received by counsel.

    
    

56. DPR contends that the date of the filing the Notice of Voluntary Dismissal starts the sixty day limitation period. DPR further argues that failure to file the Petition within sixty days is jurisdictional and DOAH can not grant an award of attorney's fees and costs based upon an untimely filed petition. To support its position, DPR cites to Eager and Calusa Camp Resort, Inc. v. Florida Keys Aqueduct Authority, 14 F.A.L.R. 448, 450, 451 (January 6, 1992), Minkes v. Department of Professional Regulation, Board of Osteopathic Medical Examiners, 11 F.A.L.R. 1818, 1820, 1821 (March 8, 1989), aff'd. 550 So.2d 1175 (Fla. 3d DCA), Tully v. Department of Professional Regulation, Board of Medicine, 10 F.A.L.R. 5182, 5183, 5184, 5188 (August 20, 1987) and Rindley v. Department of Professional Regulation, Board of Dentistry, 9 F.A.L.R. 302, 304,

    305 (March 11, 1986). However, contrary results have been reached in several other cases. See e.g., Carl Mathews Construction School, Inc. v. Department of Transportation, 13 F.A.L.R. 2469, 2471 (May 17, 1991) (applying equitable principles, the Order Closing File was deemed to "activate" the Notice of Voluntary Dismissal so that a petition filed more that sixty days from the Notice was timely when filed within sixty days from the Order Closing File); Hardy and Aquatic Realty, Inc. v. Department of Professional Regulation, Division of Real Estate, 11 F.A.L.R. 5174, 5178 (September 22, 1989) (distinguishing Minkes, supra, and holding that until a party receives notice of its status as a prevailing party, equity requires that the jurisdictional time period for filing be tolled).

    
    

57. Dr. Fenichel argues that application of Rule 22I-6.002 of the Florida Administrative Code makes the petition timely. That rule provides:

    
    

    Computation of Time. In computing any period of time prescribed or allowed by these rules, by order of a Hearing Officer, or by an applicable statute, the date of the act from which the designated period of time begins to run shall not be included....Five days may be added to prescribed time limits when service is made by mail.

    
    

58. The Third District Court of Appeal recently adopted this argument and overturned one of the DOAH orders cited by DPR above. In Eager v. Florida Keys Aqueduct Authority, 17 F.L.W. 1889 (Fla. 3d DCA Aug. 11, 1992), the court held that a petition filed under Section 57.111(4)(b)(2) was timely when it was filed within 65 days of the date a small business became a prevailing party. 2/ Applying Rule 22I-6.002, the Court added five days to the 60 day limitations period because the triggering event--the mandate--was served by mail. In view of this recent judicial interpretation, the 60 day limitation period in this case did not expire until, at the earliest, January 24, 1992 (sixty days after DPR filed and mailed the Notice of Voluntary Dismissal to Dr. Fenichel's counsel plus five days for mailing.) Under this interpretation, Dr. Fenichel's petition was timely. 3/

    
    

59. DPR also argues that Dr. Fenichel has failed to establish that he is a prevailing party from action initiated by the Respondents. In this regard, DPR claims that the Closing Order entered by the Department under Section

    57.111(3)(c)(1), Florida Statutes, is not a final judgment or order that has been entered in Petitioner's favor. DPR's Closing Order reflects that the case has been closed by the Department pursuant to Section 455.225(4), Florida Statutes, with a finding of probable cause of a violation but with a letter of guidance issued to Dr. Fenichel. DPR contends that the issuance of a letter of guidance represents a form of discipline similar to a formal reprimand and this action will appear upon the individual's licensure file. 4/ This argument raises some serious constitutional issues since Dr. Fenichel was apparently never given an opportunity to challenge the determination of probable cause.

    See Rindley v. Gallagher, 929 F.2d 1552, 1557 (11th Cir. 1991) (noting that use of a letter of guidance is a modification of the more formal disciplinary/complaint procedure without deciding whether the procedure is permissible under federal constitutional due process concerns); cf. 1992 Fla.

    Laws ch. 92-149 Section 21 (Amendment modifying previous disciplinary/complaint procedure on use of letter of guidance allowing for its use only when no probable cause has been found). In view of the undersigned's limited jurisdiction as well as the conclusions reached herein, these issues need not be and are not resolved in this Final Order.

    
    

60. In sum, DPR's Motion to Dismiss is denied.

    
    

61. The key issue in this case is whether the action taken against Dr. Fenichel's license had a reasonable basis in both law and fact at the time it was initiated. As stated in Section 57.111(2), Florida Statutes, the purpose of the Florida Equal Access to Justice Act (Section 57.111, et seq. Florida Statutes) 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. 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."

    
    

62. Section 455.225, Florida Statutes (1989), provides that, when an investigation is complete and legally sufficient, DPR shall prepare and submit to the Probable Cause Panel the investigative report, findings, and recommendations of the Department. If the panel finds, through a majority vote of its members, that probable cause exists, under Section 455.225(4), Florida Statutes (1989), it shall direct the Department to file a formal complaint, which the Department must then prosecute pursuant to the provisions of Chapter 120, Florida Statutes. These steps were followed in this case.

    
    

63. The Probable Cause Panel of the Board of Dentistry is composed of one lay member of the Board of Dentistry and two licensed dentists from the Board who are capable of reviewing patient records, the patient records of a subsequent treating professional, photographs, and patient x-rays to determine if the violations alleged had occurred. See, David v. Department of Professional Regulation, Board of Medicine, 13 F.A.L.R. 2454, 2460 (May 31, 1991) (finding of probable cause made after the physician members of a probable cause panel reviewed the patient records and an opinion rendered by another physician had a reasonable basis in law and fact).

    
    

64. "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).

65. 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 is simply whether the evidence, if credited at formal hearing, would reasonably indicate that the violations alleged had occurred. Gentele v. Department of Professional Regulation, Board of Optometry, 9 F.A.L.R. 310, 327, 328 (June 20, 1986); aff'd,

    513 So.2d 672 (Fla. 1st DCA 1987); Kibler v. Department of Professional Regulation, 418 So.2d 1081, 1084 (Fla. 4th DCA 1982).

    
    

66. The investigative report submitted to the Probable Cause Panels in this case contained information which, if credited at final hearing, could reasonably have been construed to constitute a violation as alleged in the Administrative Complaint. In addition to the statements of two (2) witnesses (the patient and Dr. Fenichel), the investigative report contained both Dr. Fenichel's patient records and the findings of the subsequent treating professional, which included photographs of the affected sites and patient x- rays. The use by the Probable Cause Panel of the written findings of Dr. Lucca does not taint the reasonableness of the probable cause determination. See e.g., Department of Professional Regulation v. Bert Ong, D.M.D., 11 F.A.L.R. 3714, 3725 (June 22, 1989); aff'd, 565 So.2d 1384, 1386 (Fla. 5th DCA 1990), (in part relying upon a letter summarizing the findings of an interested dentist to find a respondent guilty of substandard practice.)

    
    

67. The patient's desire to have Dr. Fenichel's work immediately redone complicated any effort to obtain an independent evaluation of that work, especially in view of the legal precedent that calls into question the credibility of the subsequent treating dentist. See, Robinson v. Florida Board of Dentistry, 447 So.2d 930 (Fla. 3rd DCA 1984). Nonetheless, there was evidence in addition to Dr. Lucca's findings upon which the Probable Cause Panel justifiably relied, including the statements and complaints of the Patient and the photographs and x-rays.

    
    

68. The evidence established that the photographs were especially important to at least one professional member of the Probable Cause Panel in his consideration. While Dr. Bliss was more cautious in his assessment of the value of the photographs, Dr. Ferris, the Chairman of the Probable Cause Panel and a specialist in the area, felt the photographs clearly reflected substandard care.

    
    

69. Dr. Fenichel complains that the photographs and x-rays reviewed by the Probable Cause Panel and the Department's expert, Dr. Bliss, did not clearly identify the patient and that it has not been conclusively established that the work reflected in those pictures and x-rays was the work performed by Dr. Fenichel. There is no requirement that the evidence presented to the Probable Cause Panel must meet any particular evidentiary standard. After reviewing all of the evidence in this case, including the transcripts of the Probable Cause Panel Meetings and the deposition of the Chairman of the Probable Cause Panel, it is clear that the Panel assumed the pictures in the investigative report reflected, in part, the work done by Dr. Fenichel. Dr. Fenichel has not proven that this assumption was erroneous. While a better predicate may have been necessary before the photographs would have been accepted into evidence at the final hearing, such a predicate was not necessary at the probable cause stage.

    
    

70. Dr. Fenichel also complains because the transcript of the Probable Cause Panel Meetings do not reflect an in-depth discussion of the photographs and/or x-rays. However, the transcripts do reflect that the entire

    investigative reports, including the photographs and x-rays, were sent to all Probable Cause Panel members before the meetings and all members reviewed this information prior to the meetings. The deposition of Dr. Ferris, the Chairman of the first two Probable Cause Panel meetings, convincingly established that the photographs were a critical factor in his decision to vote for filing an administrative complaint.

    
    

71. The Probable Cause Panel and the DPR prosecutor recognized that the testimony of the subsequent treating dentist would probably not, standing alone, be sufficient evidence to prevail at a formal hearing. Dr. Bliss, the Departmental investigator, pointed out several potential sources of additional evidence that might have bolstered the case against Dr. Fenichel. It is not clear what effort, if any, was expended by the Department to gather this additional evidence. The Department's unsuccessful efforts, or even the lack of effort, does not vitiate the reasonableness of the Probable Cause Panel's decision to direct the filing of an Administrative Complaint.

    
    

72. The transcripts of the Probable Cause Panel meetings and Dr. Ferris' deposition indicate that Dr. Fenichel's prior disciplinary record was also a factor that was considered in reaching the decision to proceed with the filing of the Administrative Complaint. While no competent evidence was presented in this case to establish the nature or basis of any prior disciplinary action against Dr. Fenichel, it has not been shown that the Probable Cause Panel considered information that was erroneously or improperly presented to them.

    
    

73. 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. As noted by the Court in Toledo, "although a review of the entire transcript of the proceedings before the panel might be helpful in deciding whether the panel's initiation of prosecution was substantially justified, it is not essential to a resolution of [the] issue." 549 So.2d at 719.

    
    

74. 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, 513 So.2d at 673; Arias v. Department of Professional Regulation, Board of Medicine, 13 F.A.L.R. 2648, 2657 (July 1, 1991). DPR was aware of the more difficult burden it was facing at a formal hearing. For whatever reason, DPR was unable to put together a case that it felt comfortable taking to hearing. The Probable Cause Panel's ultimate decision to defer to this litigation strategy does not mean the Panel's initial decision that a violation had occurred was unreasonable when it made recommendations to the Probable Cause Panel for the type of disciplinary action that should be taken in the case.

    
    

75. It should also be noted that Dr. Fenichel's attorney produced additional patient records for the complaining Patient at the deposition of the Departmental Consultant. These records apparently had not been previously provided to the Department during its investigation or to the Probable Cause Panels in their consideration of the case.

    
    

76. In conclusion, DPR has met its burden of showing that its actions were substantially justified. Therefore, Dr. Fenichel is not entitled to the award he seeks.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Dr. Fenichel's application for attorney's fees and costs from

Respondent is DENIED.

DONE and ENTERED this 14th day of January, 1993, at Tallahassee, 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 14th day of January, 1993.

ENDNOTES

1/ References in this Final Order to the patient will be by first and last initial to protect patient confidentiality.

2/ In a Reply to Petitioner's Proposed Final Order, DPT argues that the Third DCA's decision in Eager should not be applied in this case because a Motion for Rehearing was pending. It does not appear that a reported order was entered on the Motion for Rehearing, but a review of the court record reveals that the Motion was denied in all pertinent parts.

3/ In view of the conclusions reached herein, it is not necessary to resolve the issue of whether the filing of a notice of voluntary dismissal with DOAH is sufficient to trigger a licensee's entitlement to petition for fees and costs under the Equal Access to Justice Act.

4/ A letter of guidance has been found to have a significant effect on a "...licensee's substantial interests as it can bee accessed by members of the public as well as the Board and can be used [by the Board in the aggravation of circumstances against the licensee] in the event of future proceedings." Brown

v. Department of Professionall Regulation, Board of Psychological Examiners, 17

F.L.W. 1771 (Fla. 1st DCA July 23, 1992).

APPENDIX

Both parties have submitted Proposed Final Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.

The Petitioner's Proposed Findings of Fact

Proposed Paragraph Number in the Findings of Fact Finding of in the Recommended Order Where

Fact Number Accepted or Reason for Rejection.

1. Adopted in substance in Findings of Fact 6.

2. Adopted in substance in Findings of Fact 22.

3. Subordinate to Findings of Fact 10.

4. Subordinate to Findings of Fact 11 and 22.

5. Rejected as argumentative. This subject matter is addressed in Paragraph 70 of the Conclusions of Law.

6. Adopted in substance in Findings of Fact 23. 7.- 8. Subordinate to Findings of Fact 23-26.

1. Subordinate to Findings of Fact 28 and 29.

2. Subordinate to Findings of Fact 31.

3. Rejected as constituting argument rather than a Finding of Fact. Some of the issues raised in this proposal are addressed in Findings of Fact 31 and Paragraphs 70 of the Conclusions of Law.

4. Rejected as unnecessary.

5. Rejected as unnecessary and because it is argumentative.

6. Subordinate to Findings of Fact 30 and 31 and Conclusions of Law 66-70.

7. Rejected as unnecessary. This subject

   matter is addressed in Conclusions of Law 74.

8. Rejected as unnecessary.

9. Adopted in substance in Findings of Fact 32-37.

10. Subordinate to Findings of Fact 38-39.

11. Subordinate to Findings of Fact 39.

12. Adopted in substance in Findings of Fact 44.

13. Adopted in substance in Findings of Fact 41 and 43.

14. Addressed in the Preliminary Statement and in Findings of Fact 2-5 and 47.

The Respondent's Proposed Findings of Fact

Proposed Paragraph Number in the Findings of Fact Finding of in the Recommended Order Where

Fact Number Accepted or Reason for Rejection.

1. Rejected as unnecessary.

1. Adopted in substance in Findings of Fact 38.

2. Adopted in substance in Findings of Fact 40.

3. Adopted in substance in Findings of Fact 41.

4. Adopted in substance in Findings of Fact 42.

5. Adopted in substance in Findings of Fact 43.

6. Adopted in substance in Findings of Fact 44.

7. Adopted in substance in Findings of Fact 45.

8. Adopted in substance in Findings of Fact 46.

9. Adopted in substance in Findings of Fact 47.

10. Rejected as unnecessary.

11. Rejected as constituting argument.

COPIES FURNISHED:

Samantha D. Boge, Esquire Stowell, Anton & Kraemer

201 South Monroe Street, Suite 200

P.O. Box 11059 Tallahassee, Florida 32302

E. Renee Alsobrook, Esquire Chief Attorney - Professions

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

William Buckhalt, Executive Director Department of Professional

Regulation/Board of Dentistry Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 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: 92-000494F

Orders for Case No: 92-000494F