STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAMY HELMY, D.V.M., )

)

Petitioner, )

)

vs. ) CASE NO. 96-3602F

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) BOARD OF VETERINARY MEDICINE, )

)

Respondent. )

)

FINAL ORDER

This cause was initiated upon the filing a Petition for Award of Attorney’s Fees and Costs pursuant to Florida Statutes

57.111. A formal hearing was originally scheduled for Gainesville, Florida however, pursuant to agreement of the parties a formal hearing was dispensed with. The parties stipulated to the record to be considered in this proceeding, agreeing upon exhibits and upon a time period for submission of final orders. The appearances were as follows.

APPEARANCES

For Petitioner: Robert A. Rush, Esquire

426 N. E. First Street Gainesville, Florida 32601

For Respondent: James E. Manning, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

The cause was initiated upon the filing of a Petition for Award of Attorney’s Fees and Costs, pursuant to Florida Statutes

57.111. A formal hearing was originally scheduled for Gainesville, Florida, however, pursuant to agreement of the parties it was dispensed with. The parties stipulated to the record to be considered in this proceeding, agreeing upon exhibits and upon a time period for submission of proposed final orders. The appearances were as follows.

PRELIMINARY STATEMENT

This cause was initiated upon the filing of a Petition for Award of Attorney’s Fees and Costs by the above-named Petitioner. It is stipulated that Petitioner Samy H. Helmy prevailed in the underlying formal administrative proceeding out of which this proceeding arose. It is stipulated the Petition for Attorney’s Fees and Costs was timely filed and that the costs and fees incurred in defense of these proceedings are reasonable, if the Petitioner can show entitlement thereto. The remaining dispute to be resolved concern whether the underlying administrative action to which this fee petition relates was “substantially justified” and whether or not the Petitioner qualifies as a “small business party.”

FINDINGS OF FACT

1. The Petitioner, Samy H. Helmy, was a licensed veterinarian in the State of Florida at all times pertinent

   hereto. The license was suspended by Final Order of the Board of Veterinary Medicine on or about August 3, 1990 and the suspension was upheld on appeal. That Final Order became a Final Decision upon the Court’s Mandate and Notice issued on December 26, 1991.

2. On or about February 21, 1992 Mr. Henry Scheid, in his capacity as an investigator for the Department of Business and Professional Regulation, Board of Veterinary Medicine, (DBPR) set up a “sting operation” in which he attempted to apprehend the Petitioner in activities which could be construed as unlawfully practicing veterinary medicine with a suspended license. Mr. Scheid’s investigative report is an exhibit by stipulation in this proceeding.

3. Mr. Scheid acknowledges in this report that another person, Dr. S. Strahler was present on the Petitioner’s veterinarian practice premises at the time he made his investigation. Mr. Scheid also recounts in his investigative report that although the Petitioner examined the animal which was involved in the sting operation, when it became necessary to give an injection to the animal, an employee of the veterinary practice who proved to be Dr. Strahler, was called in to actually perform the injection. It does appear that the investigator, Mr. Scheid, was aware that a licensed veterinarian was practicing on the premises. He would thus seem to have been aware that Dr. Strahler may have been in a position to supervise Dr. Helmy’s practice under his suspended license. However, there is also

   contained in the investigative report a statement by the investigator to the effect that he interviewed Dr. Strahler. Dr. Strahler indicated that he had only worked on Dr. Helmy’s premises for several days in February 1992 and that indeed, Dr.

   Helmy had performed surgeries without Dr. Strahler’s assistance, which could reasonably be interpreted by Mr. Scheid that Dr.

   Helmy might have been performing veterinary practice in an unsupervised way.

4. In the investigator’s report, page 10, reference is made to his interview with RFS (Dr. Strahler) as follows:

   “On February 27, 1992 investigator made phone contact with RFS. He advised he had only worked for subject; February 14, 1992, Friday, all day; February 15, 1992, Saturday, one-half day; and February 21, 1992, Friday, all day. During questioning RFS, with hesitation, did advise that subject was conducting surgeries, with or without RFS assistance. Further advised, he would cooperate as the last day he worked subject, he found out that subject’s license was suspended. After contacting investigator Sowder, Marion County Sheriff’s Office, a meeting with State Attorney for a sworn statement was set for March 4, 1992, at 2:00 p.m.”

5. There are a number of interviews of animal owners who took their animals to Dr. Helmy, for examination and/or treatment. Descriptions of these interviews are recounted in the investigator’s report. The results of those interviews indicate that Dr. Helmy, was performing veterinary practice in terms of diagnosing, taking blood samples, and performing various aspects of treatment. (See the Respondent’s proposed Findings of Fact

   numbers six through sixteen, adopted here by reference). Although Dr. Helmy, could perform veterinary practice. under the statute cited below, so long as he was supervised by a duly licensed veterinarian in good standing with the Board, the interview of Dr. Strahler (“RFS”) indicates that indeed he may have been practicing without any supervision on some occasions. The important point is that the investigator had sufficient investigative facts to have a good faith belief that he had discovered the Petitioner, practicing with a suspended license,

   without proper supervision by a duly licensed veterinarian on the premises. He could thus reasonable conclude then that the Petitioner was not in compliance with the statute concerning supervision cited below.

6. After his visits to the premises and contact with law enforcement authorities, Mr. Scheid filed the subject report on approximately April 19, 1992. Thereafter, the investigation apparently remained an open or active investigation, but as far as the evidence in this case shows, no administrative complaint was filed for a substantial period of time. In fact, on September 10, 1993 Nancy M. Snurkowski as chief attorney for the agency signed a document called a “Closing Order” on behalf of George Stuart, Secretary of the Department. That Closing Order indicates that the complainant, the agency, had alleged that the subject, Dr. Helmy, had violated Sections 474.213(1)(f) and 474.215(3), Florida Statutes (1991) for operating a veterinary

   establishment when the responsible veterinarian’s license had been suspended, or by knowingly employing an unlicensed person or persons in the practice of veterinary medicine. The Closing Order implies that the investigation substantiated the complaint in that the subject was a veterinary establishment operated by Dr. Helmy when his license to practice had been suspended. The Closing Order accounts that he continued to practice despite that suspension. The Closing Order states that he continued to practice despite that suspension. The Closing Order also states that:

   “[T]he establishment now lists Robert F. Strahler, DVM as a responsible veterinarian. Robert F. Strahler, DVM is a Florida-licensed veterinarian in good standing with an active license. He acquired the facility and premises permit number of VE0002026 on August 27, 1992. The previous permit number VE0001793 is no longer valid.”

   “The law: “Based on the foregoing, probable cause does exist at this time to believe that the subject was in operation while its responsible veterinarian’s license was suspended and it employed unlicensed individuals in the practice of veterinary medicine. However, since the unlicensed activity has been stopped and the responsible veterinarian holds a valid active license in good standing, this case will be closed.”

7. Thus on September 16, 1993 apparently the agency elected to terminate the prosecution with this “Closing Order”.

8. The agency however, does not admit in that Closing Order that probable cause to believe that unauthorized veterinary practice done by the Petitioner did not exist. Rather, it merely indicates that, since the investigation was commenced, Dr. Strahler had become a licensed supervising veterinarian, or a

   “responsible veterinarian” in good standing for the establishment. Therefore the violation previously believed to have been found by Mr. Scheid had been alleviated at that point. That Closing Order appears to have been merely the determination of the investigation at that point. The evidence before the Administrative Law Judge does not actually indicate that a formal administrative complaint, based upon a probable cause finding by the Board, had been made at that time or previously.

9. Nevertheless, in a probable cause panel meeting of November 30, 1993 (by telephone conference call) (the transcript of which is stipulated into evidence in this proceeding as Exhibit 3) probable cause to file an proceed on the administrative complaint which gave rise to this case was found by the Board of Veterinary Medicine. This may seem a harsh determination, since the Chief Attorney with the Board had recommended terminating the prosecution prior to that probable cause finding. However, the investigative report and related documents indicate that there was adequate reason to believe that unauthorized veterinary practice by Dr. Helmy had been conducted on the premises on and around the time when Mr. Scheid made his visitor visits to the premises and interviews of customers and others.

10. Thereafter, prosecution of the administrative complaint proceeded, (albeit slowly). Thus the Board litigated this case in 1993 until 1996. There is no question with attorney’s fees

    and costs were incurred by the Respondent (Dr. Helmy) in that administrative complaint case during that time. In fact, there is no dispute about the reasonableness of the fees and costs claimed in this proceeding. After attempting to conduct a hearing, but after at least one continuance, and before the case proceeded to formal hearing, the complaint was voluntarily dismissed by the prosecuting agency on June 5, 1996. Dr. Helmy made no admissions or agreements at any time to prompt the Department of file the motion for dismissal on the basis of a negotiated settlement.

11. A related criminal case was proceeding during 1992 through 1994 in the Fifth Judicial Circuit for Marion County Florida. Dr. Helmy was being prosecuted by the State based upon the same set of factual circumstances developed by Investigator Scheid. A Motion to Dismiss was filed by defense counsel in that case and the Circuit Court granted that motion based upon an undisputed set of facts which are the same underlying facts that gave rise to the administrative complaint in the formal proceeding underlying this attorney’s fee case. The circuit judge in that proceeding dismissed the criminal case against Dr. Helmy on January 27, 1995, finding that Dr. Helmy was providing supporting assistance under the supervision of responsible, duly- licensed veterinarian, who acted as a responsible veterinarian as defined by Chapter 474 Florida Statutes. The Circuit Judge found that the Petitioner’s actions at the times pertinent to the

    criminal proceeding and the administrative prosecution were lawful since they were done under the supervision of a duly- licensed, active practicing veterinarian.

12. The Administrative Law Judge ruled upon the Motion to Dismiss, and a subsequent motion, which raised the issues of collateral estoppel Res Judicata made by Dr. Helmy’s attorney in the formal proceeding underlying this attorney’s fee case. It was thus determined that the principals of collateral estopped and Res Judicata did not apply due to lack of mutuality of parties, etc. Accordingly, the administrative proceeding continued to remain active for sometime until the agency, on its own motion, voluntarily dismissed the matter on June 5, 1996.

13. It is true as Petitioner contends, that a deputy sheriff from Marion County, as well as Mr. Scheid, testified by deposition that their opinions concerning Dr. Helmy’s guilt of unauthorized practice of veterinary medicine would be different if they assumed that his actions were performed under the immediate supervision of a licensed veterinarian. Dr. Gary Ellison, an expert witness for the Department in the Helmy case acknowledged, in his deposition, essentially the same thing that if “everything in the complaint” had been done under the immediate supervision of a licensed veterinarian then Dr. Helmy would not have broken the law.

14. The fact remains, however, that at the time the investigation was commenced and Mr. Scheid conducted his

    interviews and conducted his operation on the then Respondent, Dr. Helmy premises, he had a reasonable belief that a violation had taken place. His conversation with Dr. Strahler himself could give him a good-faith belief that Dr. Strahler indeed did not truly supervise Dr. Helmy.

15. Thus, the Board, at the time probable cause was found in the administrative complaint was filed, had a reasonable basis in fact and in law to proceed against Dr. Helmy, even if it was later determined that in fact, his practice on those premises had been lawful. While it may seem unduly harsh for the Board to find probable cause after its chief attorney had recommended closing of the investigation, the fact remains that, at the time probable cause was found there was substantial justification for the Board to believe that unauthorized veterinary practice had been conducted by the Petitioner on the premises. The language of the “Closing Order” does not obviate such a finding.

16. Finance evidence into this proceeding in the form of Dr. Helmy’s tax returns for 1993 and 1994, as well as other evidence (see Exhibit 12) show that the Petitioner does not have a net worth of more than $2,000,000. The evidence, in its totality also shows that Dr. Helmy was operating a sole proprietorship of a professional practice dispensing veterinary services, at “Highway 200 Animal Hospital” at the time of the initiation of the Board’s action. This is documented in the investigative report and by the registration certificate for the

    veterinary establishment included in the record of this case as stipulated Exhibit 12. In fact, Dr. Helmy had entered into a business lease for the premises where he located to Highway 200 Animal Hospital with the lease specifying that the premises were to be occupied for a veterinary office, and the lease beginning June 15, 1990 and continuing through June 14, 1995. Thus, at all times pertinent hereto, Dr. Helmy had a lease for a business establishment operating as a veterinary practice from 1990 through 1995. His veterinary practice was not incorporated nor was it a partnership. It can only be inferred from the evidence available that it was a sole proprietorship of Dr. Helmy.

    CONCLUSIONS OF LAW

    
    

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

18. The Respondent agency and the Florida Board of Veterinary Medicine are the government agencies responsible for prosecution of alleged violations of the statutes and rules applicable to veterinary medicine and practice embodied in Chapter 474, Florida Statutes and Chapter 61G-18 (formerly Chapter 21X) Florida Administrative Code.

19. There is no dispute that the Petitioner was the prevailing party in the underlying administrative prosecution styled Department of Business and Professional Regulation, Board of Veterinary Medicine versus Samy H. Helmy, D.V.M., D.O.A.H.

    Case Number 95-0462.

    
    

20. The Section 57.111(4)(a) Florida Statutes (1996) provides:

    (4)(a) Unless otherwise provided by law, an order 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 was substantially justified or special circumstances exist that would make the award unjust.

21. The Petitioner has established that it is the prevailing party. It has also established that it is a prevailing small-business party. The evidence does not show that the Petitioner’s business of the veterinary practice in question was a corporation or partnership. It does sufficiently establish that Dr. Helmy was operating as a sole proprietor of an unincorporated business, consisting of his professional veterinary medicine practice. The preponderant evidence culminating in the above findings of fact establishes that. This is not a case involving the situation prevailing in Florida Real Estate Commission v. Shealy, 647 So2d 151 (Fla. 1st DCA 1994) relied upon by the Respondent herein, because this is not a case involving a corporation whose employee was proceeded against in the as to his individual licensure status. Although Dr. Helmy in the underlying case was proceeded against as to his individual licensure status, he was not shown to be the employee of a corporation. Rather, he was shown to be the sole proprietor of a

    unincorporated business consisting of the veterinary practice at issue. The court in the Shealy case acknowledges that “Section

    57.111 authorizes an attorney’s fee for a qualifying small business party, which must be corporation, a partnership or a sole proprietor of an unincorporated business.”

22. While the Shealy case and Thompson v. Department of Health and Rehabilitative Services, 533 So2d 840 (Fla. 1st DCA 1988) indicate that employees of a partnership corporation or professional association are not considered “small business parties” under the Florida Equal Access to Justice Act (FEAJA) Dr. Helmy is not such an employee rather he is a sole proprietor of an unincorporated business which meets the definition of “small business party” contained in Section 57.111 Florida Statutes.

23. There is no dispute that the Petitioner prevailed in the underlying case. It has also been established that he is a “small business party” in light of the above findings of fact and discussion. This does not mean, however, that the Respondent was not substantially justified in initiating a disciplinary action against the Petitioner’s license to practice veterinary medicine. Courts have found that “substantial justification” involves a test of reasonableness. In other words, for an agency to avoid an award of attorney’s fees the underlying proceeding must have had a reasonable basis in law and fact. In the opinion in Gentele v. Department of Professional Regulation, Board of

    Optometry, 9FALR310 (D.O.A.H. 1986); affirmed, 513 So2d 672 (Fla. 1st DCA 1987), the Appellate Court established a standard as follows:

    “The conclusion that the agency must prove its actions were substantially justified, or that special circumstances exist which would make an award unjust, is buttressed by the plain language of the statute. A mandatory language, Section 57.111(4)(a) declares the general rule - that these in “cost” “shall” be awarded to a prevailing small business party. Then, following a comma, the act creates two exceptions [actions substantially justified or special circumstances make an award unjust] which, if proven, make the general rule inapplicable. The agency is the best party to know the fact in a legal basis of its prior actions, and what special circumstances exist which would make an award unjust. Hence, it is the agency which must affirmatively raise and prove the exception.”

24. To determine if as a whole whether the underlying proceeding was substantially justified at the time it was initiated, it is necessary to determine whether there was a reasonable basis in law and fact for the violations charged by the Respondent. The most relevant consideration concerns whether the free form action by the Board of Veterinary Medicine probable cause and panel meeting of November 30, 1993 had a reasonable basis and a law in fact. See Section 455.225(2),(3)(4) Florida Statutes (1993). This statutory provision provide in pertinent part:

    “When an investigation is complete and legal sufficient, the Department shall prepare and submit to the probable cause panel of the appropriate regulatory board the investigative report . . . findings . . .

    and recommendations of the Department . . . .

    If the panel finds . . . for a majority vote of its members, that probable cause exist . .

    ., 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.”

    
    

25. The relevant time in this instance is thus when the agency initiated the disciplinary proceedings at the direction of the probably cause panel. Probable cause would then exist “if reasonable prudent persons in the conduct of their affairs would think that a violation had taken place.” Kasha v. Department of Legal Affairs, 375 So2d 43 (Fla. 3RD DCA 1979).

26. The standard approved for the probable cause panel meeting is much lower than that required at formal hearing and is one where the evidence, if credited at a formal hearing, would reasonably indicate that the violations alleged had occurred. Gentele supra, at 328; Kibler v. Department of Professional Regulation, 418 So2d 1081, (Fla. 4th DCA 1982).

27. In order to find probable cause “what must exist is that there be a meaningful inquiry conducted by the probable cause panel and a showing that the panel had some evidence before it which (if credited at the final hearing) would reasonably indicate that the violations had occurred.” David v. Board of Medicine, 14 FALR 2454, 2460 (May 11, 1991).

28. The preponderant evidence of record, culminating in the above findings of fact, shows that it was reasonable for the probable cause panel to conclude that there was a violation in

    the instant case as can be clearly seen from a review of the investigative report. As noted by the First District Court of Appeal in the Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc. 549 So2d 715 (Fla. 1st DCA 1989) “Section 455.225, Florida Statutes, suggests that . . . an investigative report may be the most substantial and relevant evidence necessary to assist the panel in rendering a decision of what a probable cause exist for the issuance of the formal complaint against the licensee.” Toledo Realty, 5.9 So2d at 719.

29. The Respondents investigative file and specifically the investigative report of Mr. Scheid, contains sufficient “evidence” upon which a finding of probable cause could have been based reasonably in law and in fact. The investigative report contained enough information regarding the February 21, 1992 “sting operation” to warrant a finding of probable cause in that, although it shows that Dr. Strahler was on the premises it also shows, through the interview of Dr. Strahler, that indeed Mr. Scheid could reasonably have drawn the conclusion that Dr. Helmy was performing veterinary practice without being properly supervised, as required by Section 474.202 and Section 474.203, Florida Statutes. Even if that later proved to be a mistaken conclusion controlling consideration in determining whether substantial justification (reasonable basis in law and fact) exists envisions proof that at the time the prosecution was initiated such a reasonable basis existed. If so, the agency’s

    action was substantially justified, thus obviating an award of attorney’s fees.

30. Here Respondent has met its burden. The Department was substantially justified at the initiation of the disciplinary proceedings against the Petitioner by the probable cause panel. The Board had a reasonable basis in law and in fact to initiate the disciplinary action against Dr. Helmy’s license. Consequently, although the attorney’s fees and costs are reasonable and although it has been established that the Petitioner was a small business party and prevailed in the underlying administrative prosecution, the Petitioner is not entitled to an award of attorney’s fees and costs in accordance with Section 57.111 Florida Statutes. The agency has sufficiently demonstrated, that at the time it was initiated, the administrative prosecution to which this proceeding relates was substantially justified. Thus the petition should be dismissed.

RECOMMENDATION

Accordingly, having considered the foregoing findings of fact and conclusions of law, the preponderant evidence of record and pleadings and arguments of the parties, it is therefore

ORDERED that the petition of Samy Helmy, D.V.M. is denied.

DONE AND ORDERED this 6th day of January, 1997, at Tallahassee, Florida.

COPIES FURNISHED:

Robert A. Rush, Esquire

426 N.E. First Street Gainesville, Florida 32601

James E. Manning, Esquire Department of Business and

Professional Regulation

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax FILING (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1997.

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Susan Foster Executive Director

Board of Veterinary Medicine Department of Business and

Professional Regulation

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, ACOMPANIED 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: 96-003602F

Orders for Case No: 96-003602F