STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOEL M. BERGER, D.D.S., J.D., )

)

Petitioner, )

)

vs. ) Case No. 96-2562F

)

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION and AGENCY ) FOR HEALTH CARE ADMINISTRATION, )

)

Respondents. )

)

FINAL ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on July 8, 1998, in Miami, Florida.

APPEARANCES

For Petitioner: Max R. Price, Esquire

Solms and Price, P.A.

6701 Sunset Drive, Suite 104

Miami, Florida 33143

For Respondents: Thomas E. Wright, Esquire

Department of Business and Professional Regulation

Post Office Box 14229 Tallahassee, Florida 32317

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner is entitled to be reimbursed for his attorney's fees and costs incurred in defending the underlying proceeding.

PRELIMINARY STATEMENT

On May 28, 1996, Petitioner Joel M. Berger, D.D.S., J.D.,

filed his Petition for Attorneys' Fees Under Florida Equal Access to Justice Act against the Department of Professional Regulation, Board of Dentistry. On June 14, 1996, a Response to Petition for Attorney's Fees and Costs was filed by the Department of Business and Professional Regulation (successor to the Department of Professional Regulation) and the Agency for Health Care Administration, to which agency the Board of Dentistry had been transferred. Pursuant to agreement of the parties, this cause was thereafter placed in abeyance pending resolution of related Circuit Court proceedings.

At the commencement of the final hearing in this cause, Petitioner's Motion to Amend Petition for Attorney's Fees was granted. Further, the parties agreed that the style of this cause should be amended to delete the Board of Dentistry as a Respondent in this cause.

Petitioner Joel M. Berger testified on his own behalf, and Petitioner's Exhibits numbered 1 and 2 were admitted in evidence. Respondents presented the testimony of Petitioner and of Charles

1. Faircloth, Jr., and Respondents' Exhibits numbered 1-4 were admitted in evidence.

   Both parties submitted post hearing proposed orders. Those documents have been considered in the entry of this Final Order.

   FINDINGS OF FACT

   
   

   1. On July 2, 1992, the Department of Professional Regulation filed an Administrative Complaint against Petitioner,

      alleging that Petitioner had used the letters "D.D.S." following his name on letterhead and had testified as an expert in the field of dentistry in a case involving a Florida licensed dentist. The Administrative Complaint alleged that such conduct by Petitioner constituted the unlicensed practice of dentistry.

   2. Petitioner requested a formal hearing regarding those allegations. That cause was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceeding and was assigned DOAH Case No. 92-4570.

   3. On January 27, 1993, a Recommended Order was entered in DOAH Case No. 92-4570, holding that Petitioner's use of the letters "D.D.S." did not represent that he was licensed to practice dentistry in the State of Florida, but merely reflected Petitioner's educational background, and that Petitioner was not required by the Florida Evidence Code or any other law to be licensed in the State of Florida in order to testify as an expert in an administrative or judicial proceeding. The Recommended Order concluded that Petitioner should be found not guilty of the allegations in the Administrative Complaint.

   4. The Department of Professional Regulation entered a Final Order rejecting findings of fact and conclusions of law in that Recommended Order and found Petitioner guilty of the unauthorized practice of dentistry. Petitioner appealed that Final Order to the District Court of Appeal of Florida, Third District. The appellate court reversed the Department's Final

      Order and remanded the cause for entry of an order consistent with the Recommended Order.

   5. The attorney for the Department who prosecuted the underlying proceeding reviewed the investigative file and then discussed his recommendation with his supervisor. He recommended that Petitioner be prosecuted criminally, not administratively, because he believed that Petitioner was committing a criminal offense and not an administrative violation by holding himself out to be a dentist licensed in the State of Florida.

   6. No evidence was offered to show who made the decision to initiate the underlying proceeding on behalf of the Department, and, therefore, no evidence was offered to show what was considered by that person or persons when the decision was made to initiate the underlying proceeding against Petitioner. There is, accordingly, no evidence to show the factual basis for the Department's determination to issue an Administrative Complaint against Petitioner.

   7. No evidence was offered to show that anyone on behalf of the Department determined that there was a legal basis for initiating a proceeding against Petitioner for disclosing his educational credentials on letterhead or testifying as an expert witness without being licensed in the state where that testimony was given.

   8. In 1990 (the year during which Petitioner testified as an expert witness) and in 1991 (the year during which Petitioner

      wrote an opinion on the letterhead which concerned the Department), Petitioner performed his services as a legal-dental consultant as a sole proprietor of an unincorporated business, under his own name, although some other services were performed through Dental-Legal Advisors, Inc. Petitioner's principal office was located in Florida, he was domiciled in Florida, he had no employees, and Petitioner's net worth was less than

      $2,000,000, including both personal and business investments.

      
      

   9. The Department was not substantially justified in initiating the underlying proceeding against Petitioner.

   10. Petitioner qualified as a small business party when the underlying proceeding was brought against him.

   11. Petitioner is entitled to recover $15,000 from the Department for his costs and attorney's fees in defending the underlying proceeding.

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.

   13. The Amended Petition for Attorneys' Fees filed in this cause contains two counts. Count I seeks attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the Florida Equal Access to Justice Act. Count II seeks attorney's fees and costs pursuant to Section 120.59(6), Florida Statutes. The parties have stipulated that the version of Section 120.59(6)

       from the 1990 Supplement to Florida Statutes (1989) controls in this proceeding.

   14. Petitioner's claim for reimbursement pursuant to Section 120.59(6) is without merit. Although that statute provided that a prevailing party could recover attorney's fees and costs, it specifically provided that: "The provisions of this subsection shall not apply to a prevailing or nonprevailing party that is an agency." See also, John Allison Rowe, D.D.S. v. Agency for Health Care Administration; Ralph E. Toombs, D.D.S. v. Agency for Health Care Administration, DOAH Case Nos. 94-0542F and 94-1250F (Final Order Nov. 23, 1994).

   15. Section 57.111 provides for a maximum of $15,000 in attorney's fees and costs for a small business party which prevails in a proceeding initiated by a state agency without substantial justification. The only elements of that cause of action remaining in dispute between the parties are whether Petitioner is a small business party within the meaning of that statute and whether the Department was substantially justified in initiating the underlying proceeding against Petitioner. Petitioner has met his burden of proving that he is a small business party, and the Department has failed in its burden of proving that its actions were substantially justified.

   16. Although the Department argues that Petitioner was employed by a corporation thereby precluding recovery of attorney's fees and costs as a sole proprietor, the Department

       offered no evidence to support its argument. Conversely, Petitioner testified that he utilized the letterhead and gave testimony by deposition as a sole proprietor, and his income tax returns for the two relevant years reflect that Petitioner filed Schedule C with those returns, which schedule is entitled "Profit or Loss from Business (Sole Proprietorship)." Accordingly, Petitioner's evidence is uncontroverted. It is worthy of note that the Department did not initiate a proceeding against the corporation, only against Petitioner individually.

   17. 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." Since there is no evidence as to who within the Department determined to initiate the underlying proceeding against Petitioner, then, a fortiori, there is no evidence as to what was considered by the Department, factually or legally, as the basis for filing an Administrative Complaint against Petitioner. The only evidence as to the decision-making by the Department was from the attorney who prosecuted the underlying proceeding, and he testified that he recommended the filing of criminal charges rather than the filing of an Administrative Complaint.

   18. The Petition filed in this cause was supported by an Affidavit on Attorney's Fees and Costs, which represents that Petitioner agreed to pay his attorneys $10,000 for defending the

Administrative Complaint plus $10,000 for the appeal of the Department's Final Order. It is apparent that Petitioner incurred additional costs and fees for this proceeding. However, the recovery under Section 57.111, Florida Statutes, is limited to $15,000. Petitioner is entitled to receive that amount.

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

ORDERED THAT:

1. Petitioner's Amended Petition for Attorneys' Fees is granted as to the claim pursuant to Section 57.111, Florida Statutes.

2. Petitioner's Amended Petition for Attorneys' Fees is denied as to the claim pursuant to Section 120.59(6), Florida Statutes.

3. The Department shall pay Petitioner the amount of

$15,000 as and for his attorney's fees and costs incurred in the underlying proceeding.

DONE AND ORDERED this 29th day of September, 1998, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 29th day of September, 1998.

COPIES FURNISHED:

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

6701 Sunset Drive, Suite 104

Miami, Florida 33143

Thomas E. Wright, Esquire Department of Business and

Professional Regulation Post Office Box 14229 Tallahassee, Florida 32317

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Richard T. Farrell, Secretary Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Paul J. Martin, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Fort Knox Building III Tallahassee, Florida 32308

Sam Power, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Suite 3431

Fort Knox Building III Tallahassee, Florida 32308

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 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: 96-002562F

Orders for Case No: 96-002562F