STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT J. FISH, D.D.S., )

)

Petitioner, )

)

vs. ) Case No. 95-1478F

) DEPARTMENT OF HEALTH, BOARD OF ) DENTISTRY, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on October 27, 1997, in Tallahassee, Florida.1

APPEARANCES

For Petitioner: Max R. Price, Esquire

Solms & Price, P.A.

6701 Sunset Drive, Suite 104 South Miami, Florida 33143

For Respondent: William C. Childers, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229 STATEMENT OF THE ISSUES

At issue is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act," as well as an award of attorney's fees and costs pursuant to Section 120.57(1)(b)5, Florida Statutes (1995), now codified at Section

120.569(1)(c), Florida Statutes (1997), as alleged in the amended petition for attorney's fees and costs.

PRELIMINARY STATEMENT

On March 23, 1995, Petitioner, Robert J. Fish, D.D.S.

(Dr. Fish), filed a petition for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act," and Rule 60Q-2.035, Florida Administrative Code. The predicate for such an award was

Dr. Fish's contention that he was a "prevailing small business party" in a disciplinary action (the underlying proceeding) Respondent had initiated against him. Subsequently, by amended petition filed February 20, 1996, Dr. Fish sought an additional award of attorney's fees and costs under the provisions of Section 120.57(1)(b)5, Florida Statutes (1995), now codified at Section 120.569(1)(c), Florida Statutes (1997), for expenses incurred when "the Board of Dentistry illegally attempted to remand the [underlying disciplinary] matter to the Hearing Officer in contravention of Florida law thus causing the Respondent [Petitioner, Dr. Fish, in this case] to incur additional attorney's fees and costs in defending the Board's unwarranted actions and in attending an additional meeting of the Board of Dentistry."

The Respondent, Department of Health, Division of Medical Quality Assurance, Board of Dentistry2 (Agency), replied to the petition for attorney's fees and costs on April 12, 1995, and to

the amended petition for attorney's fees and costs on May 13, 1996. According to the Agency's response, it agreed that

Dr. Fish was a prevailing party in the underlying action and that his request for attorney's fees and costs was timely; however, it disputed Dr. Fish's status as a "small business party," as defined by Section 57.111(3)(d), Florida Statutes, and "[could] not agree that the attorney's fees and costs sought by the Petitioner are reasonable or necessary without further review [following discovery]." Moreover, the Agency affirmatively averred that, when the underlying proceeding was initiated, its actions were substantially justified or special circumstances existed which would make an award unjust. Finally, with regard to Dr. Fish's request for attorney's fees and costs under subsection 120.569(1)(c), the Agency disputed his entitlement to an additional award under that provision, and averred that

Dr. Fish's entitlement, if any, was under section 57.111 and, by law, limited to $15,000.

At the commencement of these proceedings, the parties suggested a formal hearing would not be necessary and that they could submit the matter for resolution on an agreed record. (Order of April 27, 1996.) Notwithstanding, it later became apparent that the case was not progressing and that a formal hearing would be required to bring the case to a conclusion.

That formal hearing was initially scheduled for July 10 and 11, 1997; however, because of numerous requests for continuance filed

by the parties, the formal hearing was not held until October 27, 1997.

At hearing, Joint Exhibit 1 (the case file for the underlying proceeding); Joint Exhibit 2 (the investigatory file); Joint Exhibit 3 (memorandum of finding probable cause and transcript of probable cause panel meeting); Joint Exhibit 4 (June 21, 1990, letter from Mervyn Dixon to Nancy Snurkowski); Joint Exhibit 5 (May 25, 1990, letter from Nancy Snurkowski to Mervyn Dixon); Joint Exhibit 6 (work authorization form and memo to Nancy Snurkowski dated May 16, 1990); and Joint Exhibit 7 (official record certification regarding the licensure status of Dr. Fish) were received into evidence. Petitioner called no witnesses; however, his Exhibit 1 (the deposition of Robert J. Fish, D.D.S.), and Exhibit 2 (the deposition of Mark S. Kimmel, Esquire) were received into evidence. Respondent called Richard

1. Law as a witness, and its Exhibit 1 (Mr. Law's resume) was received into evidence.

   The transcript of the formal hearing was filed November 18, 1997, and the parties, at their request, were accorded 30 days from that date to file proposed final orders. Consequently, the parties waived the requirement that a final order be rendered within 30 days after the transcript has been filed. Rule 60Q- 2.031, Florida Administrative Code. The parties elected to file such proposals, and they have been duly considered in the preparation of this final order.

   FINDINGS OF FACT

   
   

   Findings related to the underlying disciplinary action

   
   

   1. The Department of Health, Division of Medical Quality Assurance, Board of Dentistry (Department), is a state agency charged with the duty and responsibility for regulating the practice of dentistry pursuant to Section 20.43 and Chapters 455 and 466, Florida Statutes (1997).

   2. At all times pertinent to this proceeding, Robert J. Fish, D.D.S. (Dr. Fish) was licensed to practice dentistry in the State of Florida, having been issued license number DN 000 5694.

   3. On or about August 22, 1989, D. E. (the "Patient") filed a written complaint with the Department regarding the care and treatment that she had received from Dr. Fish. The complaint provided:

      On June 27, 1989 I came to see Dr. Garrison complaining about my lower partial made by Dr. Fish in 1988. Dr. Garrison examined [my] Lower Right #27, 28, 29 and found Buccal margins to be opened. Also, the Lower Partial is the kind his office uses as a temporary. Considering the amount of money paid, Dr. Garrison recommended that I consult with the Broward County Dental Assoc. They in turn told me that . . . they do not handle this type of problem and advised me to get in touch with the Fl Dept of Professional Regulation.

      
      

      As per my conversation with Mr. Hunter of your dept I filled these forms out and am enclosing zerox copies of my cancelled checks relating to payment and statements and other papers with pictures of my teeth. Should I have overlooked anything that I should have sent you kindly let me know.

   4. To the lay eye, the Patient's complaint would seem to relate to one matter, that being a lower partial, whose construction was more consistent with a temporary or transient appliance, as opposed to one intended for permanent use, and whereon the Buccal margins of teeth number 27, 28, and 29 were found to be open. In fact, as the investigatory record discloses, there are actually two separate items in the Patient's complaint. First is the complaint associated with open margins noted on teeth 27, 28, and 29. Those teeth are part of a fixed bridge installed by Dr. Fish, and distinguishable from the Patient's lower partial (denture), which was a removable appliance.3

   5. Following receipt of the complaint, the Department began its investigation in accordance with Section 455.225(1), Florida Statutes. The matter was assigned DPR Case No. 89-09812.

   6. By letter of October 9, 1989, the Department advised Dr. Fish of the Patient's complaint, as follows:

      THE PATIENT STATES that you provided lower partial for teeth #27, #28 and #29 in 1988. Complainant alleges subsequent dentist advised her that buccal margins are open.

      She further has been advised that the partial denture that you indicated was a permanent- denture is the type that is normally used as a temporary denture.

      Apparently, at this stage, the Department did not appreciate the nature of the Patient's complaint or, as observed in Endnote 3, the significance of the language it used to convey the Patient's

      complaint to Dr. Fish.

      
      

   7. In response to the Department's letter, Dr. Fish forwarded to the Department copies of the Patient's records, including x-rays. Additionally, Dr. Fish provided the following written response regarding the lower partial (denture):

      This patient is high strung and often incoherent, she often appears to be suffering from memory loss, i.e. Alzheimer's disease.

      The lower partial was made as a provisional partial due (sic) the extraction of several teeth. The patient was informed that upon sufficient stabilization of the boney ridge she could obtain a cast frame & acrylic partial. She refused to have any relining procedures which are necessary as bone resorbtion takes place. This option is still available to her.

   8. Dr. Fish's response did not address the open Buccal margins noted on teeth 27, 28, and 29; however, as heretofore noted, that question was unrelated to any complaint the Patient might have voiced regarding the lower partial.

   9. Pertinent to an understanding of the Patient's complaint, the Patient's records reveal the following two treatments. First, in October and November 1987, Dr. Fish undertook preventive and reconstructive work on the lower (mandibular) right side of the Patient's mouth. That work consisted of the replacement of the existent crowns on teeth 27, 28, and 29, with a ceramic three unit lower right bridge (also referred to as a three unit lower right splint), consisting of three individual crowns on teeth 27, 28, and 29, tied together (splinted) to strengthen the periodontally involved teeth.

      Contemporaneously, Dr. Fish replaced the lower right molar (tooth

      
      

      30) with a removable wrought wire and acrylic partial (removable denture). Second, in September 1988, Dr. Fish undertook preventive and reconstructive work on the lower left side of the Patient's mouth. At that time, an existing five unit bridge (teeth 18 through 22) was severed, the bridge for teeth 18 through 20 was removed, and teeth 18 and 19 were surgically extracted. Thereafter, the lower partial which had replaced the molar on the lower right side was modified to include the replacement of teeth 18, 19, and 20 on the lower left side. This lower wrought wire and acrylic partial (removable denture), which

      replaced the molar on the lower right and the teeth 18, 19, and

      
      

      20 on the lower left, was the lower partial the Patient complained of to the Department.

   10. As part of its investigation, the Department also contacted H. B. Garrison, D.D.S. (Dr. Garrison), who succeeded Dr. Fish as the Patient's treating dentist. Dr. Garrison provided the Department with the Patient's records, including

       x-rays, and by letter of November 6, 1989, advised the Department that:

       [D. E.] . . . came to my office on 5/8/89 for an examination and x-rays. At that time it was noted that treatment had been rendered by another dentist in 1988 and was giving the patient a great deal of discomfort.4

       I examined the lower bridgework and found the buccal margins of teeth #27, 28, 29 to be inadequately sealed. I also noted that the lower partial was inadequately fabricated.

       
       

       In my opinion, the care rendered fell below the minimum standards expected. If I can be of further assistance to you, please do not hesitate to contact me. Thank you.

       
       

   11. Given the Patient's records provided by Dr. Fish and Dr. Garrison, as well as Dr. Garrison's response, it is evident that there were two concerns raised by the Patient. First, the buccal margins observed on teeth 27, 28, and 29 of the lower right bridge, and second the adequacy of the lower partial.

   12. The Department presented its investigative report, together with the supporting documentation heretofore discussed, to the Probable Cause Panel of the Board of Dentistry (the Panel)

       for its consideration. Contemporaneously, the Department's counsel presented a draft closing order, which proposed a finding of probable cause with regard to the inadequacy of the lower partial and closure with a letter of guidance. No mention was made of the concerns related to the lower right bridge. The proposed order read as follows:

       CLOSING ORDER

       
       

       THE COMPLAINT: The Subject's treatment failed to meet the minimum standard of care.

       
       

       THE FACTS: The Subject provided patient

       D.E. with a lower denture which was allegedly unsatisfactory and has allegedly refused to correct the problem. Patient D.E. presented to a subsequent treating dentist who stated that the denture prepared by the Subject was inadequately fabricated. When contacted, the Subject stated that the denture provided to patient D.E. was made as a provisional partial due to the extractions of several teeth. The patient was informed by the Subject that upon stabilization of the lower ridge, she could obtain a cast frame and acrylic partial. The patient refused to have any relining procedures, which are necessary as bone resorption takes place.

       
       

       THE LAW: Based on the foregoing, probable cause does exist to establish a violation of Section 466.028(1)(y), Florida Statutes, however, this case will be closed with a letter of guidance.

       
       

       IT IS, therefore, ORDERED that this matter be, and the same is hereby, CLOSED.

       
       

       DONE and ORDERED this day of , 1990.

       
       

       CHAIRMAN, PROBABLE CAUSE PANEL BOARD OF DENTISTRY

       
       

   13. On April 27, 1990, the Panel met to resolve whether

       probable cause should be found and, if so, the appropriate disposition of the complaint. Initially, the Panel voted to find probable cause and to close the case with a letter of guidance, as recommended by the proposed closure order submitted by the Department's counsel; however, upon realizing that Dr. Fish had one prior disciplinary matter and two more cases pending on "below standard of care issues," the Panel elected to withdraw its decision to close with a letter of guidance and directed the Department to file an administrative complaint "based on a single charge of inadequate lower denture," a perceived violation of Section 466.028(1)(y), Florida Statutes. With regard to the separate matter relating to perceived deficiencies (open margins on teeth 27, 28, and 29) in the Patient's lower right bridge, the panel took no action.

   14. In May 1990, following the Panel's finding of probable cause, the Department employed Mervyn Dixon, D.D.S., as an expert to evaluate the Patient's compliant, and, by letter of May 25, 1990, the Department's counsel advised Dr. Dixon of the following matters:

       Thank you for consenting to review the enclosed case. . . .

       
       

       The Probable Cause Panel reviewed the merits of this claim on or about April 27, 1990. They determined that an expert review was necessary to properly evaluate the veracity of the complaint.5

       A clinical examination of the patient may be necessary in order to make an evaluation. Please do not hesitate to accomplish a

       patient examination if it is deemed necessary. This particular patient does not have access to transportation. It will be necessary to coordinate with the Bureau of Investigative Services in order to provide transportation.

       
       

       As always, your prompt attention to this case and the receipt of your report within thirty (30) days will be greatly appreciated. . . .

       
       

   15. Dr. Dixon examined the Patient on June 16, 1990, and, by letter of June 21, 1990, reported the results of that examination to the Department, as follows:

       On June 16, 1990, I performed a dental clinical exam for patient D.E. in my office.

       
       

       Since the complaint was limited to the mandibular arch, I merely noted that the patient presented with a full maxillary denture.

       
       

       The following findings were observed in the mandibular arch:

       1.) the patient was wearing a wrought wire and acrylic lower partial

       2.) a ceramic 3 unit bridge was present on teeth #'s 27, 28, 29

       3.) a gold and acrylic 2 unit bridge was present on teeth #'s 21 and 22

       4.) the four mandibular incisors were natural teeth and free from marked periodontal disease.

       
       

       The right three unit ceramic bridge exhibited the following:

       1.) #27 has an open facial margin that would admit an explorer

       2.) #28 has an open margin that would admit an explorer

       3.) #29 exhibited a grossly open margin both facial and distal

       4.) the only occlusion (partial out) was provided by tooth #28 - see enclosed bite registration

       5.) also please see enclosed x-ray

       The mandibular wire and acrylic partial exhibited extremely tight clasps and the lingual adaptation around the teeth and crowns was very poor. Please see enclosed study model.

       
       

       It is my conclusion that neither the mandibular ceramic 3 unit bridge or the mandibular wire and acrylic partial meet community standards.

       
       

       I have provided the x-ray, photo, bite registration and study model as evidence

       since it is necessary for the patient to have these items replaced.6 In the process of replacement, they will be destroyed.

       
       

   16. On September 6, 1990, the Department issued an administrative complaint against Dr. Fish (DPR Case No.

       89-009812) and on October 9, 1991, an amended administrative complaint.7 The amended complaint was served on Dr. Fish on October 15, 1991, and contained the following allegations upon which the Department proposed to take disciplinary action against Dr. Fish's license to practice dentistry:

       1. On or about October 1, 1987, patient

          D.E. presented to the Respondent [Dr. Fish] for bridgework on teeth #27, #28, and #29.

          
          

       2. On or about September 15, 1998, D.E. presented to the Respondent for a lower partial.

          
          

       3. On or about May 8, 1989, D.E. presented to a subsequent treating dentist complaining about discomfort with his (sic) lower partial.

          
          

       4. The subsequent treating dentist examined patient D.E.'s bridgework and observed the buccal margins of teeth #27, #28, and #29, were inadequately sealed. He also noted that the lower partial was the type usually used as a temporary partial.

          
          

       5. On or about June 16, 1990, patient D.E. presented to a departmental expert for examination. The consultant observed the teeth #27, #28, and #29 contained open margins.

          
          

       6. Failure to adequately provide a lower denture that was absent any open margins is failure to practice dentistry within the minimum standard of care as recognized by the prevailing peer community.

       7. Based on the foregoing, the Respondent is guilty of violating the following statutory provisions:

          1. Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of card (sic) in diagnosis and treatment when measured against generally prevailing peer performance.

   17. The administrative complaint filed by the Department is at material variance with the directions of the probable cause panel. Notably, while the complaint perceives the distinction between the two treatments (bridgework and lower partial) which formed the basis for the Patient's complaint, it bases the perceived violation of section 466.028(1)(y) on problems associated with the bridgework. The Panel did not find probable cause, nor direct the filing of a complaint, regarding the bridgework but, rather, the lower partial (denture).

   18. Dr. Fish filed an election of rights whereby he disputed the allegations contained in the amended administrative complaint, and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. Consequently, the case was referred to the Division of Administrative Hearings (DOAH) to conduct the formal hearing Dr. Fish had requested. The case was docketed as DOAH Case No. 92-0687.

   19. A formal hearing on the administrative complaint was held on June 1, 1993, where proof was offered and received regarding perceived deficiencies in both treatments (the bridgework and lower partial) provided by Dr. Fish.

       Subsequently, on January 24, 1994, a Recommended Order was rendered which concluded, inter alia, that the Department had failed to establish, by the requisite degree of proof, that, with regard to either the bridgework or the lower partial denture,

       Dr. Fish had failed to meet the minimum standard of care in diagnosis and treatment, and recommended that a final order be entered dismissing the amended administrative complaint.

   20. On April 16, 1994, the Board of Dentistry (Board) met to consider the Recommended Order. At the time, no exceptions had been filed by any party, and the Department recommended that the Board adopt the findings and recommended dismissal contained in that order. Notwithstanding, following discussion, the Board resolved to remand the case to the Division of Administrative Hearings. The Order of Remand was issued May 13, 1994.

   21. Following consideration of the parties' responses to the Order of Remand, the presiding officer entered an order (Order on Remand) on December 7, 1994, declining remand. That order, while amplifying upon the basis for certain factual findings and conclusions reached related to credibility, concluded that the Board had not presented any compelling reason to reconsider the findings of fact, conclusions of law, or recommended disposition contained in the Recommended Order.

   22. On January 6, 1995, the Board met to consider the Recommended Order and Order on Remand, and on February 25, 1995, entered a Final Order. The Final Order, with nominal

       modification, adopted the findings of fact and conclusions of law set forth in the Recommended Order, as well as the recommended disposition, and dismissed the amended administrative complaint filed against Dr. Fish.

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

       
       

   23. Pertinent to the claim for attorney's fees and costs, it is observed that the Department has, by its response to the application, conceded that the underlying action was initiated by the Department, or its predecessor, that Dr. Fish prevailed in the underlying case, and that the claim for attorney's fees and costs was timely filed. Accordingly, an award of reasonable attorney's fees and costs is appropriate provided Dr. Fish can establish, by a preponderance of the evidence, that he was a "small business party," as defined by Section 57.111(3)(d), Florida Statutes, and the Department fails to establish that its actions were substantially justified or special circumstances exist which would make an award unjust.

   24. Addressing first Dr. Fish's status, the proof demonstrates that at the time the underlying proceeding was initiated Dr. Fish was a "small business party," as that term is defined by Section 57.111(3)(d), Florida Statutes. Supportive of such conclusion is the proof of record which demonstrated that, at all times material: (1) Dr. Fish was the sole owner of, and operated his dental practice as, an unincorporated business;

       (2) that the principal place of business for his dental practice was Broward County, Florida; (3) that Dr. Fish resided in Broward County, Florida, and had been domiciled in the State of Florida since 1973; and, (4) that Dr. Fish's business did not employ more than 25 full time employees and his net worth, including both

       personal and business investments, was less than two million dollars.

   25. Next, it must be concluded that the Department failed to demonstrate that its actions were substantially justified or that special circumstances existed which would make an award unjust. Dispositive of this issue is the proof which demonstrated that the Panel did not find probable cause to conclude that the bridge work provided by Dr. Fish fell below community standards and did not direct the Department to file an administrative complaint on such issue. Therefore, the Department was without any factual or legal basis to file a complaint challenging the adequacy of the bridgework installed by Dr. Fish.8 Consequently, Dr. Fish is entitled to an award of reasonable attorney's fees and costs under Section 57.111, Florida Statutes.9

   26. Here, Petitioner's counsel claims $25,511.50 (based on

       
       

       184.5 hours) as attorney's fees, and $1,699.06 as costs, reasonably and necessarily incurred in the underlying proceeding. The Department, as heretofore noted, did not oppose the request for attorney's fees and costs by affidavit, but responded that it "[could] not agree that the attorney's fees and costs sought by the Petitioner are reasonable or necessary without further review [following discovery]." Thereafter, the Department never filed an affidavit, as required by law, opposing the request for fees and costs, did not question or oppose any portion of the request

       during hearing, and has not objected to any of the requests post- hearing. Section 57.111(4)(c), Florida Statutes, and Rule 60Q- 2.035(4), Florida Administrative Code. Indeed, the only proof of record regarding the reasonableness and necessity of the attorney's fees and costs sought was offered by Dr. Fish. With regard to attorney's fees, that proof suggested that the hours dedicated to the case (184.5) were reasonably and necessarily incurred, and that the hourly rate sought (an average of slightly over $138.00 per hour) was reasonable and less than the community standard of $175.00 per hour. Consequently, the attorney's fees sought in the sum of $25,511.50 were reasonable. With regard to costs, the proof observed that the $1,699.06 claimed was "reasonable." (Petitioner's Exhibit 2). Given the provisions of section 57.111(4), and the record, Petitioner's claim of attorney's fees in the sum of $25,511.50, and costs in the sum of

       $1,699.06 are, without further discussion, found reasonable.

       
       

       CONCLUSIONS OF LAW

       
       

   27. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 57.111(4)(b)1, Florida Statutes.

   28. Here, Petitioner has filed an application with the Division of Administrative Hearings for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and for an award of attorney's fees and costs pursuant to

       Section 120.569(1)(c), Florida Statutes. As the applicant, the

       burden rests on Petitioner to demonstrate, by a preponderance of the evidence, entitlement to the requested award. Department of Transportation v. J.W.C., Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981), and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

       The claim for attorney's fees and costs under Section 57.111, Florida Statutes

       
       

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

       (4)(a) Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding 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.

   30. By its response to the petition for attorney's fees and costs, the Department agreed that Dr. Fish was a prevailing party in the underlying action and that his request was timely filed; however, the Department disputed Dr. Fish's status as a "small business party," as defined by Section 57.111(3)(d), Florida Statutes, and "[could] not agree that the attorney's fees and costs sought by the Petitioner are reasonable or necessary without further review [following discovery]." Moreover, the Department affirmatively averred that, when the underlying proceeding was initiated, its actions were substantially justified or special circumstances exist which would make an award unjust.

   31. Pertinent to this case, a "small business party," as that term is used in section 57.111 means:

       1. a. A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional

       practice has, at the time the action is initiated by a state agency, not more than 25

       full-time employees or a net worth of not more than $2 million, including both personal and business investments. . . .

       
       

       Section 57.111(3)(d)1 a, Florida Statutes. As noted in the findings of fact, Dr. Fish satisfied these criteria, and was a "small business party," as defined by law, at the time the underlying action was initiated by the state agency.

   32. Since Dr. Fish was a "prevailing small business party" in the underlying proceeding, he is entitled to an award of "attorney's fees and costs" unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust." Section 57.111(4)(a), Florida Statutes.

   33. A proceeding is "substantially justified" if "it had a reasonable basis in fact and law at the time it was initiated by a state agency." Section 57.111(3)(e), Florida Statutes. "Unjust" is commonly understood to mean "not just; not acting or disposed to act according to law and justice; contrary to justice; unfair; wrongful. . . ." Webster's New Twentieth Century Dictionary, Unabridged, Second Edition (1979).10

   34. Generally, in resolving whether there was substantial justification for filing an administrative complaint against a licensee, one need only examine the information before the probable cause panel at the time it found probable cause and directed the filing of the administrative complaint. Information, such as Dr. Dixon's report that may have arisen

       subsequent to that decision, is not relevant to an assessment of

       the propriety of the Panel's decision. See Kibler v. Department of Professional Regulation, 418 So. 2d 1081 (Fla. 4th DCA 1982).

   35. In assessing the reasonableness of government action, based on a consideration of the evidence before the Panel, it has generally been accepted that for the government to be "substantially justified" in initiating a disciplinary action against a licensee it "must have a solid though not necessarily correct basis in fact and law for the position it took in the action." McDonald v. Schweiker, 726 F.2d 311, 316 (7th Cir 1983). Accord, Kibler v. Department of Professional Regulation,

       418 So. 2d 1081, 1084 (Fla. 4th DCA 1982) ("To sustain a probable cause determination there must be some evidence considered by the panel that would indicate that the violations alleged had indeed occurred.") The evidence, however, need not be as compelling as that which must be presented at the formal administrative hearing on the charges to support a finding of guilt and the imposition of sanctions. See Department of Professional Regulation v. Toledo Realty, Inc., 549 So. 2d 715 (Fla. 1st DCA 1989).

   36. The foregoing precepts are generally accepted and, under normal circumstances, would provide the standard by which the reasonableness of a government decision to commence a disciplinary action against a licensee would be assessed. The circumstances of the instant case, however, compel a different focus or consideration to resolve the reasonableness of the government action.

   37. Here, as noted in the findings of fact, the Panel voted probable cause and directed the filing of a one count administrative complaint based solely on the perceived "inadequate" lower partial (denture) and took no action with regard to the perceived deficiencies in the Patient's lower right bridge (open margins on teeth 27, 28, and 29). Notwithstanding, the Department drafted and filed an administrative complaint against Dr. Fish wherein the alleged violation was premised on perceived deficiencies in the Patient's lower right bridge.

       Since that action was not approved by the Panel, the Department's filing of the administrative complaint, as well as the amended administrative complaint, was unsupported by fact and law.

       Therefore, its decision to file the complaint, as drafted, cannot be considered substantially justified nor, given the circumstances, would an award of attorney's fees and costs be unjust.

   38. In reaching the foregoing conclusion, it has not been overlooked that the administrative complaint included some general observations concerning the lower partial (denture) and that proof was offered at hearing regarding whether it was properly constructed. However, the only actionable misconduct alleged in the administrative complaint was related to the Patient's bridgework. Consequently, disciplinary action could only be taken based on deficiencies in the Patient's bridgework (the offense specifically alleged in the administrative

       complaint), and proof related to other perceived deficiencies was not relevant or actionable. See Kinney v. Department of State,

       501 So. 2d 129 (Fla. 5th DCA 1987), and Sternberg v. Department of Professional Regulation, 465 So. 2d 1324 (Fla. 1st DCA 1985).

   39. Since the actions of the Department in filing the administrative complaint, as drafted, were not substantially justified, and special circumstances were not shown to exist which would make an award unjust, Dr. Fish is entitled to an award for reasonable attorney's fees and costs. As noted in the findings of fact, the reasonable and necessary attorney's fees and costs incurred by Dr. Fish were $25,511.50 and $1,699.06, respectively. Recovery under section 57.111 is, however, limited to $15,000. Section 57.111(4)(d)2, Florida Statutes.

       The claim for attorney's fees and costs under Section 120.569(1)(c), Florida Statutes

       
       

   40. Section 120.569(1)(c), Florida Statutes, authorizes an award of reasonable expenses, including reasonable attorney's fees, against a party who files any pleading, motion, or other paper for any improper purpose, such as to harass or cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation.

   41. Here, by his amended petition, Dr. Fish sought an award under section 120.569(1)(c) for expenses incurred when "the Board of Dentistry illegally attempted to remand the [underlying disciplinary] matter to the Hearing Officer in contravention of Florida law thus causing the Respondent [Petitioner Dr. Fish in

       this case] to incur additional attorney's fees and costs in defending the Board's unwarranted actions and in attending an additional meeting of the Board of Dentistry."

   42. Notwithstanding the allegations of the amended petition, Petitioner's "Proposed Recommended (sic) Order" makes no claim for attorney's fees and costs under section 120.569(1)(c) based on such allegations, but relies on those allegations as an additional basis for his claim for attorney's fees and costs under section 57.111. Based on such pleading, it is reasonable to assume that Petitioner has abandoned his contention that section 120.569(1)(c) provides a separate and independent basis for an award of attorney's fees and costs that may be recovered in this proceeding. Consequently, such request need not be addressed in significant detail. Rather, it is adequate to observe that section 120.569(1)(c) contemplates that any claim for attorney's fees or costs under that provision will be filed in the underlying action, and that once that matter has been concluded the opportunity to seek expenses under that provision of law is foreclosed. See Mercedes Lighting and Electrical Supply, Inc. v. Department of General Services, 560 So. 2d 272 (Fla. 1st DCA 1990). However, provided the requisite predicate exists, a party may still recover expenses associated with defending those actions under section 57.111, albeit recovery may be limited due to the cap ($15,000) established by law.

CONCLUSION

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

ORDERED that:

1. Petitioner's request for attorney's fees and costs under the provisions of Section 57.111, Florida Statutes, is granted, and Petitioner shall recover from Respondent the sum of $15,000 as reasonable attorney's fees and costs.

2. Petitioner's request for attorney's fees and costs under the provisions of Section 120.569(1)(c), Florida Statutes, is denied.

DONE AND ENTERED this 15th day of January, 1998, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1998.

ENDNOTES

1/ Petitioner's counsel, at his request, was accorded the opportunity to participate by telephone.

2/ At the time of the underlying proceeding and continuing to July 1, 1993, the Board of Dentistry was established within the Department of Professional Regulation, Division of Medical Quality

Assurance. Section 20.30, Florida Statutes (1991). Effective July 1, 1993, the Department of Professional Regulation and the Department of Business Regulation were abolished, and their functions transferred to the newly created Department of Business and Professional Regulation. Chapter 93-220, Laws of Florida.

Thereafter, the Board of Dentistry was established within the Department of Business and Professional Regulation, Division of Medical Quality Assurance. Section 20.165, Florida Statutes (1993). Effective July 1, 1994, the Legislature created the "Agency for Health Care Administration within the Department of Business and Professional Regulation." Chapter 94-216, Section 3, Laws of Florida. Thereafter, the Division of Health Quality Assurance of the Agency for Health Care Administration was responsible for the Board of Dentistry. Section 20.42, Florida Statutes (1995). Finally, effective July 1, 1997, the Department of Health was created. Thereafter, the Division of Medical Quality Assurance of the Department of Health was responsible for the Board of Dentistry. Section 20.43, Florida Statutes

(Supp. 1996). Pursuant to Chapter 96-403, Section 24, Laws of

Florida, the Department of Health was substituted as the party in interest in these proceedings. In reading this Final Order, the Department should be considered to mean the agency responsible for the Board of Dentistry at the time a particular event occurred.

3/ The record reveals that a denture is commonly understood in the practice of dentistry to be a removable appliance. Dentures, by definition, do not include real teeth and, therefore, cannot have margins.

4/ The letter is accurate as to D. E. first visiting Dr. Garrison on May 8, 1989, but is not accurate in suggesting that that was the date on which D. E. complained. Rather, as the Patient's records reflect, the Patient first complained on June 27, 1989.

5/ While the Panel was considering whether to proceed by administrative complaint or not, counsel for the Department advised the Panel as follows:

. . . In this particular case, apparently the subject is alleging a provisional partial, and that things -- it was kind of a temporary situation, they were just putting him in -- the patient in the temporary situation, and from what I understand later on, he was going to finish the treatment, if you will.

The other thing I would suggest to you, if you're entertaining an Administrative Complaint, that we obtain an expert first.

So I would ask you that you direct the Department for a supplemental. (Joint Exhibit 3, pages 13 and 14). (Emphasis added).

By "supplemental," it is inferred the Department was referring to "additional investigative information" as contemplated by Section 455.225(4), Florida Statutes, which the Panel may require to determine probable cause. There is, however, no proof that the question of probable cause was ever reconsidered by the Panel and, therefore, it is inferred that such report never formed a basis for the Panel's finding of probable cause. That it is the Panel's responsibility to find probable cause, and not the Department's, cannot be subject to serious debate. Section 455.225(4), Florida Statutes, ("Each regulatory board shall provide by rule that the determination of probable cause shall be made by a panel of its members or by the department or the agency."), and Rule 64B5- 13.001, Florida Administrative Code, (Board of Dentistry rule provides that its probable cause panel shall determine whether probable cause exists.)

In addition to bearing on the issue of probable cause, the Department's counsel also suggested to the Panel that employment

of an expert would also be necessary should the complaint proceed to formal hearing.

6/ The Department lost or misplaced the x-ray, photo, bite registration and study model provided by Dr. Dixon. Consequently, they were not available for consideration at the formal hearing held to address the charges in the administrative complaint filed in the underlying action.

7/ The amended complaint changed only two particulars of the original complaint. First, paragraph 5 was amended to read "May 8, 1989" instead of "June 27, 1989." Second, the second sentence of paragraph 7 was amended to read "The consultant observed the teeth #27, #28, and #29 contained open margins" instead of "grossly open margins."

8/ In so concluding, the findings of Dr. Dixon have not been overlooked; however, his findings were never considered by the Panel and are, therefore, not relevant to the resolution of the issues raised in this case.

9/ Dr. Fish's entitlement, if any, to an award under Section 120.569(2)(c), Florida Statutes (1997), is addressed in the conclusions of law.

10/ Where, as here, words used in a statute are not defined, "they must be construed according to their plain and ordinary meaning. . . ." Florida East Coast Industries, Inc. v. Department of Community Affairs, 677 So. 2d 357, 362 (Fla. 1st DCA 1996). If necessary, the plain, ordinary meaning of a word can be found by looking in a dictionary. Gardner v. Johnson, 451 So. 2d 477 (Fla. 1984), and Hernando County v. Florida Public Service Commission, 685 So. 2d 48 (Fla. 1st DCA 1996).

COPIES FURNISHED:

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

6701 Sunset Drive, Suite 104 South Miami, Florida 33143

William C. Childers, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Allen R. Grossman, Esquire Office of the Attorney General The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Nancy M. Snurkowski, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William Buckhalt, Executive Director Board of Dentistry

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

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: 95-001478F

Orders for Case No: 95-001478F