STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK A. BROWN, PH.D., )

)

Petitioner, )

)

vs. ) CASE NO. 92-6307F

) BOARD OF PSYCHOLOGICAL ) EXAMINERS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 9, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul W. Lambert, Esquire

2851 Remington Green Circle, Suite C Tallahassee, Florida 32308-3744

For Respondent: Charles T. Faircloth, Jr., Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

The issue is whether petitioner is entitled to attorney's fees and costs under Section 57.111, Florida Statutes.

PRELIMINARY STATEMENT

This matter began on October 23, 1992, when petitioner, Dr. Frank A. Brown, a licensed psychologist and owner of a professional association, filed a petition for attorney's fees and costs seeking an award in the amount of

$12,537.00. The petition was filed under Section 57.111, Florida Statutes, and contained general allegations that petitioner was a prevailing small business party in an action initiated by respondent, Board of Psychological Examiners, the matter was initiated without a reasonable basis in law or fact, and no special circumstances were present which would make the award unjust. On December 11, 1992, respondent filed its response to the petition.

By notice of hearing dated December 31, 1992, a final hearing was scheduled on February 15, 1993, in Tallahassee, Florida. At respondent's request, the matter was continued to April 23, 1993, and then again to June 9, 1993. At final hearing, the parties stipulated that there were no facts in dispute and offered joint exhibits A-F. All exhibits were received in evidence.

A transcript of the hearing was filed on July 7, 1993. Proposed final orders were filed by petitioner and respondent on July 8 and 9, 1993, respectively, and have been considered by the undersigned.

FINDINGS OF FACT

Based upon all of the evidence, including the pleadings and supporting documents, the following findings of fact are determined:

1. Petitioner, Dr. Frank A. Brown, is a licensed psychologist having been issued license number PY-0002079. Respondent, Board of Psychological Examiners (Board), is the state agency charged with regulating the practice of psychology pursuant to Chapter 490, Florida Statutes. The parties agree that Dr. Brown is a small business party as defined in Subsection 57.111(3)(d)1.a., Florida Statutes.

   
   

2. On August 24, 1989, the Board issued an amended administrative complaint against Dr. Brown alleging that he had violated chapter 490 in three respects while treating patient R. B. during the period from 1978 until 1987. In general terms, the complaint alleged that:

   
   

   Petitioner had violated sections 490.0111 and 490.009(2)(k) by committing any act upon a patient or client, other than the spouse of the doctor, which would constitute sexual misconduct. (Count I)

   
   

   Petitioner had violated section 490.009(2)

   (s) by failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. (Count II)

   
   

   Petitioner had violated section 490.009(2)(p) by being unable to practice the profession for which he is licensed under chapter 490 with reasonable skill or competence as a result of a mental or physical condition or by reason of illness, drunkeness, chemicals or any other substance. (Count III)

   
   

3. The complaint was later referred to the Division of Administrative Hearings and was assigned Case No. 89-0599. An evidentiary hearing on the complaint was held on September 12 and 13, 1989. At the formal hearing the agency prosecutor voluntarily dismissed Count I, and the case was tried on the remaining two counts. On May 14, 1990, a Recommended Order was issued by Hearing Officer Diane Cleavinger recommending that all remaining charges be dismissed. Of significance to this proceeding is the allegation in Count II which charged Dr. Brown with failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. Bearing on Hearing Officer Cleavinger's decision to dismiss that count was her determination that the psychologist-patient relationship ended prior to the beginning of any love affair between Dr. Brown and his former patient. Among others, the hearing officer made the following findings:

   5. Respondent's psychologist/client relationship was with R. B. and did not include her husband. The interest demonstrated by R. B.'s husband in her therapy was that of a concerned husband. Dr. Brown saw him collateral to the therapy he was conducting with R. B. He met with

   R. B.'s husband in order to make R. B.'s termination of therapy more successful.

   The evidence did not show that Respondent had ever agreed to formulate a psychologist/

   client relationship with R. B.'s husband and, although the husband paid R. B.'s therapy bills, he was never charged separately for the discussions he had with Respondent during

   R. B.'s therapy. The other contacts, referenced by R. B.'s husband's testimony as supporting a professional relationship between him and Respondent, occurred well after R. B.'s therapy had terminated.

   The contacts variously involved obtaining advice from Dr. Brown on the impending death of a relative during an otherwise social gathering at the B.'s home, asking Dr.

   Brown, during a lunch meeting, for help with sexual problems for which Dr. Brown referred him to another psychologist, and testing of the B's children for scholastic purposes.

   All such contacts appear to have been given in friendship and not in a professional capacity. (Emphasis added)

   
   

   The underscored portion of the findings was intended to make a determination that any contact between Dr. Brown and R. B.'s children was not made in a professional capacity and as to those contacts the psychological/client relationship did not exist.

   
   

4. The recommended order was considered by the Board at a meeting held on June 7, 1990, and was adopted in toto without change. A final order was issued on July 2, 1990, dismissing all charges against Dr. Brown.

   
   

5. During the meeting held on June 7, 1990, and while discussing an exception to the recommended order raised by the agency prosecutor, the following statement was made by Board counsel:

   
   

   I will express now what other concern I've had with reading this case. It does seem clear that a dual relationship was formed during that period of time when there was regulation, in that Dr. Brown gave psychological services to the children of his lover, and of her unsuspecting husband. I have - you know, I'm just going to be very honest with you. When I was reading through the transcripts, some of the thoughts that

   occurred to me were out of his own mouth. . . (emphasis added)

   This statement was made in the belief, albeit incorrect, that Hearing Officer Cleavinger's findings in paragraph 5 of her recommended order regarding a dual relationship pertained only to the husband and not to the children. Counsel's statement suggested that Dr. Brown's relationship with the children was done in a professional capacity and thus was unethical, given his romantic relationship with R. B. Accordingly, prior to the issuance of a final order in Case No. 89- 0599, on June 11, 1990, the Board's counsel authored the following memorandum to counsel for the Department of Professional Regulation (DPR):

   
   

   By Dr. Brown's own admission, he performed psychological services for the children of

   R. B. The facts surrounding the dual relationship were not included in the administrative complaint filed in Case No. 89-0599. They do, however, constitute a separate cause of action and should be brought to the attention of the probable cause panel.

   
   

6. Responding to this memorandum, DPR counsel recommended on June 18, 1990, that DPR open a new investigation against Dr. Brown concerning the issue of a possible dual relationship, that is, the testing of R. B.'s children while Dr. Brown was engaged in a love affair with R. B. The DPR uniform complaint form described the alleged misconduct in the following manner:

   
   

   Subject stated during testimony in previous DPR case (89-0599 DOAH) that he had engaged in a love affair with a client whose children he was counseling. Possible violation of Section 490.009(2)(s), F. S.

   
   

   The matter was assigned DPR Case No. 9007566.

   
   

7. By letter dated August 11, 1990, petitioner's counsel was advised that a complaint had been filed against his client. The letter gave the following pertinent reasons for initiating the matter:

   
   

   This complaint is based upon information obtained in formal proceedings in Department of Professional Regulation case number 0081809. It is alleged by the Department that during the time Dr. Brown was providing psychological services to the children of

   R. B., he was concurrently engaged in a love affair with her. This dual relationship is a possible violation of Section 490.009(2) (s), Florida Statutes, which prohibits a licensee from failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance.

   
   

8. Dr. Brown, through counsel, put DPR on notice by letter dated September 5, 1990, that:

   It would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable.

   
   

   By a second letter dated September 25, 1990, petitioner's counsel again advised DPR "that the Department does not have a basis in law or fact for any allegations."

   
   

9. On October 18, 1990, petitioner's counsel authored another letter to DPR stating in part as follows:

   
   

   I reiterate that it would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable.

   
   

   I respectfully request that this letter be made a part of the investigative file to be considered by the Probable Cause Panel.

   
   

10. DPR counsel advised petitioner's counsel on September 28, 1990, that all factual and legal matters, including the objections raised in his letter, would be presented to the probable cause panel. Thereafter, DPR counsel submitted a suggested closing order to the panel proposing that a letter of guidance be issued based upon a belief of a violation of Chapter 490, Florida Statutes, as outlined in the August 17, 1990 letter sent to petitioner's counsel.

    
    

11. By letter dated January 11, 1991, petitioner's counsel again placed the Board on notice that the subject matter of the new investigation was barred by the doctrine of collateral estoppel. The letter stated as follows:

    
    

    Dr. Brown was served with the notice of investigation in August, 1990. I have advised the department of Dr. Brown's position by letters dated August 13, August 20, September 5, September 25, October 1 and

    October 18, 1990. This investigation stems from matters resolved in favor of Dr. Brown in DPR Case number 0081809, DOAH Case Number 89-0599 in which Dr. Brown was charged with failure to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance in violation of Section 490.009 (2)(s), Florida Statutes (1981-86).

    
    

    Included in consideration of that charge was the scholastic testing of the children of (D. and R. B.) which is the subject of this pending investigation. The adopted finding of fact number 5 in the above case refers

    to the collateral relationships between Dr. Brown and (D. B.) and the children including "testing of the B's children for scholastic purposes." Finding of fact number 5 finds that:

    
    

    ALL SUCH CONTACTS APPEAR TO HAVE BEEN GIVEN IN FRIENDSHIP AND NOT IN A PROFESSIONAL CAPACITY.

    
    

    I reiterate that it would be a violation of due process of law to charge Dr. Brown with a violation based upon the same set of facts previously adjudicated. The doctrines of res judicata, collateral estoppel and bar and merger are applicable.

    
    

12. The panel met on February 14, 1991, and considered DPR's recommendation to prosecute, the investigative report and all supplemental materials including a report from its expert consultant. The panel was also given a copy of the letter sent by Dr. Brown's counsel on January 11, 1991, which raised the collateral estoppel issue. After considering all of these materials, including the estoppel matter, the panel made a determination that respondent violated chapter 490 by providing therapy to the children while romantically involved with their mother and failing to disclose this relationship to the children's school and father. While the panel found probable cause to exist, it was advised by its counsel that the case was "weak," the chances of a successful prosecution were "minimal," and the best it could hope for was a reprimand. Accordingly, it followed the suggestion of counsel and recommended to DPR that the case be closed with a letter of guidance to the subject, which was then the most lenient form of discipline for a licensee. By the admission of counsel and panel members at that meeting, however, it was clear they knew the letter would become a part of Dr. Brown's disciplinary file, it was accessible by any member of the public examining his file, and the Board could use the letter against Dr. Brown in the event of future proceedings. In disposing of the contention by Dr. Brown that the doctrine of collateral estoppel applied, DPR and Board counsel gave the following advice:

    
    

    Ms. Gaffney: There's a great big legal issue in this case. That is whether or not this has been litigated. If we pursue an administrative complaint, we're going to be considering whether or not he treated the children and whether or not that's below the standards. That's easily proved testimony.

    But we have a pending litigation for attorney's fees on that prior case and this one is a case in which Mr. Lambert, in the materials there, there's correspondence indicating respondent's attorney, Mr. Lambert, will make legal attempts to squash the case

    by argument and motions to dismiss, such as this has already been litigated and so forth. Possibly double jeopardy, all that. Res judicata and double jeopardy, I think, are the two issues he's raised. I don't know whether he would prevail on that or not.

    I have a point of view, which is that the actual issue here was not charged in the administrative complaint when it was at the final hearing before the Board. The Board took notice of and supplements, and he said well, that's not charged. You can't do anything about that. So I don't know but that would be already double jeopardy or res judicata.

    
    

    Ms. Daire: I would agree with you on that, that it was not charged in the initial administrative complaint. It only came out in the testimony of Dr. Brown, when he talked about having treated the children, as well, and we could not do anything about that issue that was raised during the proceedings except to issue a new

    administrative complaint on his own admission.

    
    

    Although the panel members themselves did not discuss the issue, by finding probable cause, they implicitly accepted their counsel's advice and rejected the contention that they were precluded by the doctrine of collateral estoppel from issuing a second complaint on the stated ground.

    
    

13. On March 27, 1991, DPR counsel, acting on behalf of the Board and in response to the panel's decision, sent a letter of guidance to respondent which read as follows:

    
    

    This letter is sent to inform you of the action taken in regard to the above-referenced complaint. This complaint concerned allegations that you failed to meet minimum standards of performance in professional activities in violation of Section 490.009 (2)(s), Florida Statutes.

    
    

    It has been determined that probable cause exists to believe that you have violated the provisions governing the practice of psychology. In light of the circumstances presented, however, this case is closed with issuance of this Letter of Guidance in lieu of further administrative action.

    
    

    It has been noted that your professional care for the patient's children while involved with the patient on a personal basis, without disclosure to the father and school falls

    below minimum standards. The Panel recommends that you review current literature regarding dual relationship issues.

    
    

    I would encourage you to familiarize yourself with the statutes and rules governing the practice of psychology and to abide by these provisions in the future. If

    you have any questions or comments regarding this matter, please feel free to contact me.

    
    

14. On March 19, 1991, or before the letter was issued, petitioner filed a motion to set aside the probable cause determination as improvidently found. After the letter was issued, he requested a formal hearing on four separate occasions. All requests were denied and a final order was issued by DPR on April 24, 1991, denying the petition in all respects. Thereafter, petitioner appealed the letter of guidance to the First District Court of Appeal. The court reversed the Board's action and remanded the matter with instructions to dismiss the complaint. Brown v. Department of Professional Regulation, Board of Psychological Examiners, 602 So.2d 1337 (Fla. 1st DCA 1992). In dealing with the estoppel issue raised by Dr. Brown, the court noted that Hearing Officer Cleavinger had made the following findings in her recommended order:

    
    

    . . . and testing of the B's children for scholastic purposes. All such contacts appear to have been given in friendship and not in a professional capacity.

    
    

    The court went on to say

    
    

    The above-quoted findings of fact establishes that the sole allegation of misconduct in the 1990 complaint was actually litigated in the 1989 case. The record in that case contains evidence that the results of testing the children were submitted to the school. The Department, the Board, and the Probable Cause Panel became bound by the determination of fact that Dr. Brown did not violate section 490.009(2)(s) because a nexus between Dr. Brown's conduct and his practice of psychology did not exist. The Department, Board, and Panel are thus collaterally estopped from reasserting any charge of professional misconduct predicated on these acts.

    
    

    Id. at 1341.

    
    

    The court also noted that a letter of guidance affected Dr. Brown's substantial interests within the meaning of section 120.57, and that Dr. Brown was thus entitled to a section 120.57 hearing as requested. The court added, however, that because the agency was collaterally estopped from relitigating the issues raised in the second complaint, it was remanding the case with directions to dismiss the complaint.

    
    

15. The parties are in agreement that the amount of attorney's fees and costs requested by petitioner is reasonable. Such fees and costs total

    $12,537.00.

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Subsection 57.111(4)(a), Florida Statutes, sets forth the circumstances under which a petition for fees and costs should be granted. They are as follows:

    
    

    Unless otherwise provided by law, an award of attorney's fees and costs shall be made 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.

    
    

    Under well-established principles of law, petitioner bears the burden of showing that it is a prevailing small business party within the meaning of the law, and that the requested fees and costs, which cannot exceed $15,000, are reasonable and necessary. Once this burden is met, respondent must then demonstrate that it was "substantially justified" in taking the questioned action or that special circumstances exist that would make an award unjust. In other words, the Board must show that on February 14, 1991, the probable cause panel had a reasonable basis in law or fact to justify finding probable cause against Dr. Brown and recommending the issuance of a letter of guidance.

    
    

18. By a preponderance of the evidence, petitioner has established that he is a prevailing small business party in an administrative action initiated by the state, and the state had no reasonable basis in law or fact for taking that action. In addition, no special circumstances exist that would make an award unjust. Therefore, Dr. Brown's petition should be granted.

    
    

19. In reaching this conclusion, the undersigned has given thoughtful consideration to three arguments by respondent. First, the Board contends that even though petitioner prevailed from an appeal of agency action, he did not prevail from an action "initiated by a state agency." Subsection 57.111(3)(b), Florida Statutes, defines that term as follows:

    
    

    (b) The term "initiated by a state agency" means that the state agency:

    
    

    1. Filed the first pleading in any state or federal court in this state;

    2. Filed a request for an administrative hearing pursuant to chapter 120; or

    3. Was 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.

    
    

    The first two criteria are not applicable. As to the third, respondent contends it had no duty to advise Dr. Brown of a clear point of entry after issuing the letter of guidance and thus paragraph 3. cannot apply. In support of this

    position, the Board points out that when it issued the letter of guidance, no rule, statute or decision required it to offer Dr. Brown a clear point of entry. But even if DPR had misconstrued the law and had never previously offered a point of entry after taking this type of action, and no affected person had ever litigated that issue, this does not mean that subsection 57.111(3)(b)3. does not apply. Indeed, in Brown the court made clear that "(b)y the panel's own admission, a letter of guidance affects the licensee's substantial interests . .

    . within the meaning of section 120.57 . . . and that Dr. Brown was entitled to a section 120.57 hearing as requested." Brown at 1340. Therefore, even though there was a lack of precedent on this issue, and DPR had consistently followed a different policy, when issuing the letter of guidance, DPR was obligated to offer Dr. Brown a clear point of entry to contest that action. For purposes of this proceeding, then, the issuance of a letter of guidance constituted an action initiated by a state agency within the meaning of subsection 57.111(3)(b)3.

    
    

20. Respondent next contends that even if petitioner prevailed from action initiated by the agency, it was substantially justified in bringing that action. Respondent goes on to argue that the panel had some evidence before it which, if credited at final hearing, would constitute a violation as alleged in the letter of guidance. But this argument misses the mark because the critical issue here is not whether the investigative file contained some evidence to support the panel's decision, but rather whether the panel knew or should have known that it was barred by the doctrine of collateral estoppel from bringing this action. As to this issue, respondent argues that the legal issue was not clear cut, and the panel could have reasonably believed that the matters contained in the second complaint were not litigated in the first proceeding. In resolving this contention, it is noted that the sole allegation in the second complaint was as follows:

    
    

    [Dr. Brown] stated during testimony in previous DPR case (89-0599 DOAH) that he had engaged in a love affair with a client whose children he was counseling. Possible violation of Section 490.009(2)(s), F. S.

    
    

    Since the record shows clearly that, before the panel voted, it was aware that the Board had adopted a finding in Case No. 89-0599 that "(a)ll such contacts (with the children) appear to have been given in friendship and not in a professional capacity," they should have known that the new allegation had already been litigated in the prior case. Indeed, they were specifically apprised of this finding in a letter sent by Dr. Brown's attorney on January 11, 1991. Had a careful and thoughtful analysis of the legal issue been made, the Board should have concluded that its position was tenuous at best and it would have to bear the consequences of taking further action. Accordingly, it is concluded that there was no reasonable basis upon which to believe that the doctrine of collateral estoppel did not apply. It follows that there was no substantial justification for the panel's actions.

    
    

21. Finally, respondent asserts that a number of special circumstances exist that would make an award of fees and costs unjust. The term "special circumstances" is not defined, but the use of the word "special" connotes something unusual or unique. In this case, respondent cites as special circumstances the unsettled state of the law regarding the need to offer a point of entry to contest a letter of guidance, the panel having to rely on its counsel's recommendation on the legal issue, the obligation of DPR to investigate any legally sufficient complaint and refer the complaint to a

    probable cause panel, and remarks made by Dr. Brown's counsel at the June 6, 1990, Board meeting, in response to suggestions by Board counsel that a new cause of action might exist. The first three circumstances are irrelevant since they have no bearing on the principal issue of whether the Board was substantially justified in initiating an action against Dr. Brown. According to the Board, the final circumstance raises an inference that the Board was misled by certain remarks made by Dr. Brown's counsel at the June 6, 1990 meeting. At that meeting, which was held for the purpose of considering the Recommended Order in Case No. 89-0599, Board counsel suggested that the Board might pursue another cause of action against Dr. Brown. In response to that suggestion, Dr. Brown's counsel stated that "apparently" the new charge was not an issue in Case No. 89-0599. At that time, however, his counsel was not prepared to argue the issue. In any event, after studying the record, Dr. Brown's position on the "new" cause of action became abundantly clear and this position was conveyed in writing to DPR counsel no less than five times before the panel met. Therefore, none of these circumstances rises to a level of being so special or unique as to excuse respondent's actions.

    
    

22. In summary, Dr. Brown is a small business party who prevailed in an action initiated by the state, and the state had no reasonable basis in fact or law to initiate that action. At the same time, there are no special circumstances present that would make an award of fees and costs unjust. The petition should accordingly be granted. It is, therefore,

ORDERED that the petition of Dr. Frank Brown for attorney's fees and costs be granted, and the Board of Psychological Examiners pay petitioner $12,557.00 within thirty days after the date of this order as required by Subsection 57.111(5), Florida Statutes.

DONE AND ORDERED this 24th day of August, 1993, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1993.

COPIES FURNISHED:

Jack L. McRay, Esquire 1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Paul W. Lambert, Esquire 2851 Remington Green Circle Suite C

Tallahassee, Florida 32308-3744

Charles T. Faircloth, Jr., Esquire 1940 North Monroe Street

Suite 60

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: 92-006307F

Orders for Case No: 92-006307F