STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM H. JERNIGAN, D.V.M., )

)

Petitioner, )

)

vs. ) Case No. 96-3680F

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

)

Respondent. )

)

FINAL ORDER

Upon due notice, William R. Cave, Administrative Law Judge, Division of Administrative, held a formal hearing in this matter on June 2, 1997, in Sebring, Florida

APPEARANCES

For Petitioner: Bert J. Harris, III, Esquire

SWAIN, HARRIS, SHEEHAN and MCCLURE, P.A.

212 Interlake Boulevard Lake Placid, Florida 33852

For Respondent: James E. Manning, Esquire

Department of Business and Professional Regulation

Suite Number 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

Is Petitioner entitled to attorney's fees and costs under Section 57.111, Florida Statutes, the Florida Equal Access To Justice Act?

PRELIMINARY MATTERS

On August 6, 1996, Petitioner filed his Application For an Award of Attorney's Fees with the Division of Administrative Hearings. The matter was initially set for hearing for November 8, 1996, but due to scheduling problems and the hospitalization of the undersigned the matter, it was not heard until June 2, 1997.

At the hearing, Petitioner testified on his own behalf and presented the testimony of William F. Jackson, D.V.M.; Larry Dee, D.V.M.; Wade G. Gardner, D.V.M.; and Richard Wilkes, D.V.M. Petitioner's Exhibits 1 through 5, and Composite Exhibit 6 and 7 through 9 were received as evidence. Respondent did not present any witnesses. Respondent's Exhibits 1 through 3 were received as evidence. Joint Exhibit 1 was received as evidence. Chapter

474 and Section 57.111, Florida Statutes and Chapters 60Q-2 and 61G18, Florida Administrative Code were officially recognized.

A transcript of this proceeding was filed with the Division on June 26, 1997. On a Joint Motion For Extension of Time the time for filing proposed final orders was extended until

5:00 p.m. on July 21, 1997, with the understanding that any time constraint imposed under Rule 28-5.402, Florida Administrative Code was waived in accordance with Rule 60Q-2.031(2), Florida Administrative Code. The parties timely filed their proposed final orders under the extended time frame.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The action in this case was initiated by the Respondent, a state agency. The Respondent was not a nominal party.

2. Petitioner was the prevailing party in the administrative action brought against his license by Respondent in Department of Business and Professional Regulation, Board of Veterinary Medicine vs. William H. Jernigan, D.V.M., Case No. 95-4487 in that Respondent voluntarily dismissed the case.

3. Petitioner incurred attorney's fees and costs in excess of $15,000, and there is no dispute as to the reasonableness of attorney's fees and costs.

4. There are no special circumstances which would make an award of attorney's fees and costs unjust.

5. At all times pertinent to this proceeding, Petitioner's veterinary practice was organized as a sole proprietorship under the fictitious name of Sebring Animal Hospital located in Sebring, Florida. Petitioner is the sole proprietor of Sebring Animal Hospital, an unincorporated business. Both Petitioner and Sebring Animal Hospital are domiciled in the State of Florida.

6. At all times pertinent to this proceeding, Petitioner through Sebring Animal Hospital employed less than 25 employees.

7. At no time pertinent to this proceeding, did Petitioner and Sebring Animal Hospital have a combined net worth in excess of two million dollars.

8. Petitioner is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes.

9. On or about September 23, 1993, a dog was presented to the Sebring Animal Hospital for boarding and grooming.

10. On or about October 1, 1993, a hospital employee, during the course of grooming the dog, left the dog unattended. While unattended, the dog either fell or jumped off the grooming table and accidentally hanged herself with a leash that was being used to restrain her. The dog's owner was notified of the accident on October 1, 1993.

11. Petitioner was not present in the hospital at the time of the accident.

12. The owner of the dog subsequently filed a complaint with the Respondent on March 28, 1995.

13. An investigation of the incident was conducted by an investigator from the Department of Business and Professional Regulation (Department). The investigator prepared an Investigative Report which included, among other things, the Investigator's interview with the complainant and Petitioner's response. The factual allegations of the incident contained in the Investigative Report are the same as those set out in findings of fact 9, 10, and 11.

14. The Investigative Report was presented to the Probable Cause Panel (PCP) of the Board of Veterinary Medicine.

15. The members of the PCP reviewed the Investigative Report prior to its meeting and discussed the Investigative Report at the PCP meeting on June 29, 1995.

16. The PCP found probable cause and issued a Memorandum of Finding of Probable Cause but did not state the statutory violations upon which the finding of probable cause was based. The PCP directed the Department to file an Administrative Complaint.

17. Although the Board's attorney was present at the PCP meeting on June 29, 1995, none of the panel members made an inquiry of the Board's counsel as to whether under the facts presented there was a violation of Chapter 474, Florida Statutes, specifically Section 474.214(1)(o), Florida Statutes. In fact, the PCP made no inquiry of anyone as whether the facts as presented constituted a violation of Chapter 474, Florida Statutes. Of all the evidence considered by the PCP, there was no evidence which would reasonably indicate that a violation of Chapter 474, Florida Statutes, had occurred.

18. As directed by the PCP, the Department filed an Administrative Complaint against Petitioner alleging a violation of Section 474.214(1)(o), Florida Statutes.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, in these proceedings pursuant to Sections 120.57(1), Florida Statutes.

20. Pertinent to this case, Section 57.111(4)(a), Florida Statutes, provides:

    Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in an 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 exists which would make the award unjust.

21. Section 57.111(3), Florida Statutes, defines the following pertinent terms:

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

    
    

    * * *

    
    

    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-from proceeding of the agency.

    
    

    * * *

    
    

    1. A small business party is a "prevailing small business party" when:

       
       

       * * *

       
       

       3. The state agency has sought a voluntary dismissal of its complaint.

    2. The term "small business party" means:

       1.a A sole proprietor of an incorporated 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. . .

       
       

    3. 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.

    
    

22. In a case of this nature, Petitioner bears the initial burden to establish by a preponderance of the evidence that he has prevailed in the underlying action and that he is a small business party as defined by statute. Once this burden has been met, the burden shifts to the Respondent to establish that it was substantially justified in initiating the underlying action. Department of Professional Regulation v. Toledo Realty, 549

    So. 2d 715 (1st DCA Fla. 1989).

    
    

23. By filing the Administrative Complaint, a part of which advises Petitioner of a clear point of entry, the Respondent initiated an action against the Petitioner within the meaning of Section 57.111(3)(b), Florida Statutes. There is no dispute that Petitioner was the "prevailing party.” However, the Respondent contends that Petitioner is not a "prevailing small business party" because this proceeding was initiated against the Petitioner's veterinary license as an individual and not against the Sebring Animal Hospital, an unincorporated business of which

    Petitioner is the sole proprietor. This contention is rejected. Such an interpretation of the term "small business party" would obviously lead to a result not intended by the legislature.

    Anthony Gentele, O. D. vs. Department of Professional Regulation, Board of Optometry, DOAH Case No. 85-3857F, 9 F.A.L.R. 311, 322- 323, Final Order issued June 20, 1986, appealed on other issues and affirmed in Gentele vs. Department of Professional Regulation, Board of Optometry, 513 So. 2d 672 (1st DCA Fla.

    1987); William L. McCallister vs. Department of State, Division of Licensing, 9 F.A.L.R. 4064, 4066-4069, Final Order issued June 15, 1987; S. G. vs. Department of Health and Rehabilitative Services, Final Order issued on February 12, 1992, appealed on other issues, affirmed in part and reversed in part in Department of Health and Rehabilitative Services vs. S. G., 613 So. 2d 1380 (1st DCA Fla.. 1993); Ali A. Azima, M.D. vs. Agency For Health Care Administration, DOAH Case No. 93-4130F, Final Order issued on November 2, 1994.

24. While the Florida Equal Access to Justice Act (FEAJA) was patterned after the Federal Equal Access To Justice Act (Federal Act), the construction placed on the FEAJA by the courts has been that it will take the same construction in the Florida courts as its prototype has been given in the federal courts insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject. Gentele, 513 So. 2d 672, 673; Pasco County School Board vs. Florida Public

    Employee Relations Commission, 353 So. 2d 108, 116 (1st DCA Fla. 1977). Unlike the Federal Act, Section 57.111(4)(a), Florida Statutes, provides that an award of attorney's fees and costs shall be made unless the actions of the agency were substantially justified at the time they were initiated, not for subsequent aspects of a proceeding where the agency's position has been determined to be no longer justified. Frederick Mann, D.D.S. vs. Department of Professional Regulation, Board of Dentistry, Case No. 91-7865F (April 10, 1992); Brown vs. Department of Professional Regulation, Board of Psychological Examiners, 13

    F.A.L.R. 3444, 3451 (August 2, 1991). Therefore, for the Respondent to show that it was substantially justified in bringing this action against the Petitioner, it must show that Respondent had a reasonable basis in law and in fact at the

    time the PCP met and authorized the issuance of an Administrative Complaint

25. The boarding and grooming of an animal does not come within the definition of the "practice of veterinary medicine" as defined in Section 474.202(9), Florida Statutes, and would not be grounds for disciplining a veterinarian's license under Chapter 474, Florida Statutes. Bach vs. Florida State Board of Dentistry, 378 So. 2d 34 (1st DCA Fla. 1980).

26. To find probable cause, there must 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 a violation had occurred. David vs. Department of Professional Regulation, Board of Medicine, 13 F.A.L.R. 2454 (May 11, 1990); Kibler vs.

Department of Professional Regulation, 418 So. 2d 1081. It would be sufficient if the Panel had evidence before at which would constitute prima facie proof of a violation if credited at the final hearing. Gentele, 9 F.A.L.R. 311, 328. Clearly, the evidence that the PCP considered even if credited at the final hearing would not reasonably indicate that a violation had occurred or constitute prima facie proof of a violation. The Respondent has failed to meet its burden to show that it was "substantially justified" when it initiated the case against Petitioner.

RECOMMENDATION

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

ORDERED that Petitioner's Application for Attorney's Fees is Granted and the Respondent shall forthwith pay Petitioner the sum of $15,000 for attorney's fees and costs.

ORDERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997.

COPIES FURNISHED:

Richard T. Ferrell Secretary Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda L. Goodgame General Counsel Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Sue Foster Executive Director

Board of Veterinary Medicine Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Bert J. Harris, III, Esquire SWAIN, HARRIS, SHEEHAN and

MCCLURE, P.A.

212 Interlake Boulevard

Lake Placid, Florida 33852

James E. Manning, Esquire Department of Business and

Professional Regulation Suite Number 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to Judicial Review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings, and a second copy accompanied by filing fees prescribed by law with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 96-003680F

Orders for Case No: 96-003680F