STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY N. IAZZO, Ph.D., )

)

Petitioner, )

)

vs. ) Case No. 97-0895F

) BOARD OF PSYCHOLOGY, AGENCY FOR ) HEALTH CARE ADMINISTRATION, )

)

Respondent. )

)

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 21, 1997, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul Watson Lambert, Esquire

1114 East Park Avenue Tallahassee, Florida 32301-2651

For Respondent: Laura P. Gaffney, Esquire

Agency for Health Care Administration Post Office Box 114229

Tallahassee, Florida 32317-4229 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, pursuant to Section 57.111, Florida Statutes.

PRELIMINARY STATEMENT

On February 28, 1997, Petitioner filed his Petition for Attorney's Fees and Costs, pursuant to Section 57.111, Florida Statutes, requesting reimbursement for the attorney's fees and costs he incurred in defending himself against an Administrative Complaint filed by Respondent. Respondent timely responded to that Petition, admitting some of Petitioner's allegations and denying others. This cause was, therefore, scheduled for an evidentiary hearing.

As a result of the Prehearing Stipulation and the Addendum to Prehearing Stipulation entered into by the parties, no material facts remained in dispute in this proceeding.

Accordingly, instead of an evidentiary hearing, the hearing was convened by agreement of the parties for the sole purpose of entering exhibits into evidence and presenting oral argument.

Petitioner's Exhibits numbered 1-21 were admitted in evidence. The parties also waived their right to submit proposed final orders and relied instead on their stipulated facts and the arguments memorialized in the transcript of this proceeding.

ADMITTED FACTS

l. At all times material hereto, Petitioner has been a psychologist licensed by the State of Florida.

1. At all times material hereto, Petitioner has been a resident of the State of Florida with a business address in Boca

   Raton.

   
   

2. At all times material hereto, Petitioner has had fewer than 25 employees and a net worth of less than $2,000,000.

3. Petitioner is a small business party who prevailed in the underlying proceeding.

   
   

4. The Department of Business and Professional Regulation, which agency was the predecessor of Respondent Agency for Health Care Administration, filed an Administrative Complaint charging Petitioner with violating Section 490.009(2)(s), Florida Statutes, by engaging in a dual relationship with a patient. That dual relationship is alleged to have occurred when Petitioner entered into a business arrangement with the patient just before therapy concluded.

5. The Administrative Complaint was based upon a finding of probable cause by the Probable Cause Panel of the Board of Psychology on February 21, 1992. That probable cause determination was based upon an investigative report and an opinion rendered by Philip C. Boswell, Ph.D.

6. Though the transcript of the probable cause panel proceeding does not so reflect, it is customary for the assistant attorney general advising the panel to ask the panel members whether they received the investigative report materials and whether they were sufficiently legible to base an opinion upon them. The assistant attorney general probably asked those

   questions in the proceedings sub judice. The Panel answered those questions in the affirmative.

7. Dr. Boswell states in his report dated November 18, 1991, that: "On the basis of his actions with the client D.L., Dr. Iazzo has been accused of violation of FS490.009(2)(s) 'Failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. '"

8. Dr. Boswell also states in his report that: "In my opinion, the [American Psychological Association Ethical] Principles reflect an aspect of the prevailing standard of psychological practice in Florida." He then quotes APA Ethical Principle 6a, in relevant part, as follows:

   Psychologists are continually cognizant of their own needs and of their potentially influential position vis-à-vis persons such as clients, students, and subordinates. They avoid exploiting the trust and dependency of such persons.

   Psychologists make every effort to avoid dual relationships that could impair their professional judgment or increase the risk of exploitation.

   Examples of such dual relationships include, but are not limited to, research with and treatment of employees, students, supervisees [sic], close friends, or relatives.

   Dr. Boswell's report concludes that: "In my opinion, to enter a business relationship with a client is clearly a dual relationship prohibited by the APA Principles and below prevailing minimal standards."

9. The Board of Psychology has not adopted by rule Ethical Principle 6 of the American Psychological Association. There is

   no rule of the Board of Psychology defining the terms "dual relationship", "business relationship", or "business relationship with a client as a dual relationship".

10. The term "dual relationship" is not defined in Chapter 490, Florida Statutes.

11. The transcript of the Probable Cause Panel which met on February 21, 1992, reports on page 5, between lines 2 and 21, that Dr. Hicks agreed with Dr. Boswell's conclusion that there was a "dual relationship in terms of establishing a business relationship." The transcript also reports at line 22 on page 5 that Dr. Webster agreed with Dr. Boswell's conclusion relating to the dual relationship in terms of establishing a business relationship.

12. Petitioner requested a formal hearing on the Administrative Complaint which was subsequently filed. Instead, an informal hearing was conducted over his objection by the Board of Psychology. A Final Order was issued following the informal hearing and filed on November 23, 1992, imposing discipline on Petitioner's license to practice psychology.

13. Petitioner appealed the Final Order to the First District Court of Appeal. That Court issued an opinion on

    June 20, 1994, which is reported at 638 So. 2d 583, reversing the Final Order and remanding the case for the conduct of a formal hearing.

14. Petitioner filed a Petition seeking attorney's fees

    under Section 57.111, Florida Statutes, for the fees incurred in objecting to the informal hearing and the appeal from the resulting Final Order. That Petition is styled Anthony N. Iazzo, Ph.D. v. Agency for Health Care Administration, Board of Psychological Examiners, Case No. 94-4903F.

15. A Final Order was issued by Administrative Law Judge (formerly Hearing Officer) Errol H. Powell on September 24, 1994, dismissing that Petition and holding that:

    Petitioner does not fall within the definition of a prevailing small business party. No final order has been entered in his favor. Hence, Petitioner cannot at this time take advantage of the remedy

    provided by Section 57.111. However, if Petitioner is successful in a Section 120.57(1), Florida Statutes, proceeding on the remanded case, this ruling does not preclude him from including these attorney's fees and costs in a request made pursuant to Section 57.111 predicated upon the Section 120.57(1) proceeding.

16. The Agency for Health Care Administration issued a Detailed Report/Closing Order on January 2, 1997, effectively dismissing the Administrative Complaint. The undersigned issued an Order Closing File in the Section 120.57(1), Florida Statutes, proceeding on January 21, 1997.

17. The subject Petition for Attorney's Fees and Costs ensued.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter

    hereof. Sections 57.111(4)(b), 120.569, and 120.57(1), Florida Statutes.

19. Section 57.111(4)(a), Florida Statutes, provides that:

    
    

    . . . an award of attorney's fees and costs shall be made to a prevailing small business party in any

    . . . 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.

    
    

    The parties have stipulated that Petitioner is a prevailing small business party. Therefore, the inquiry shifts to whether Respondent was substantially justified in initiating the underlying proceeding against Petitioner.

20. The Petition filed in this cause contains three counts. At the commencement of the final hearing in this cause, Petitioner dismissed Count II. In Count I Petitioner alleges that he is entitled to an award of attorney's fees and costs due to the Board's denial of his request for a formal proceeding, which denial did not have a reasonable basis in law and fact. Count III alleges that the Board improperly found probable cause for the filing of an administrative complaint based upon ethical guidelines not adopted by rule and based upon illegible documents. The parties' Prehearing Stipulation has resolved any issue as to allegedly illegible documents.

21. As to Count I, Petitioner is not entitled to an award of his attorney's fees and costs since the conduct of which he rightfully complains occurred subsequent to the filing of the Administrative Complaint in the underlying proceeding. The law

    is well settled that the critical time period is not subsequent to the filing of the Administrative Complaint when Petitioner requested an administrative proceeding; rather, the critical time period is the point at which the proceeding was initiated, i.e., when probable cause was found. Section 57.111(3)(e), Florida Statutes; Arias v . Department of Professional Regulation, Board of Medicine, 13 F.A.L.R. 2648 (DOAH Final Order 7/1/91).

22. Count III of the Petition addresses the proper time period and alleges that Respondent improperly determined there was probable cause to believe that Petitioner had violated a statute regulating his conduct as a psychologist because that determination was based solely upon the Probable Cause Panel's conclusion that Petitioner had violated an ethical principle of the American Psychological Association. Petitioner argues that since that ethical principle has not been adopted as a rule by Respondent and has not been declared by statute to be a basis for which disciplinary action can be taken, then Petitioner could not be charged with such a violation.

23. Petitioner misinterprets Dr. Boswell's report which was considered by the Probable Cause Panel. Dr. Boswell's report recites that he is rendering an opinion as to whether Petitioner violated Section 490.009(2)(s), Florida Statutes, which prohibits a licensee from failing to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance. Dr. Boswell then advises

    that the Ethical Principles of the American Psychological Association "reflect an aspect" of the prevailing standard of practice in Florida. Quoting from APA Ethical Principle 6a, and using that principle as a background, Dr. Boswell discusses his analysis of why Petitioner's conduct both violated APA Ethical Principles and fell below prevailing minimal standards. The APA Ethical Principle was simply one of the factors he considered in determining that Petitioner had violated Section 490.009(2)(s), Florida Statutes. Therefore, Dr. Boswell did not recommend that Petitioner be disciplined for violating an APA Ethical Principle but rather that Petitioner be disciplined for failing to meet minimum standards measured against generally prevailing peer performance as reflected by the ethical principle describing an aspect of that standard.

24. Accordingly, the fact that the Board has not adopted the ethical principle by rule and the fact that the Legislature has not specified that psychologists in Florida may not violate APA Ethical Principles are not persuasive. The Legislature has prohibited falling below the standards of the profession, and Dr. Boswell concluded that Petitioner had so fallen. Moreover, the members of the Board's Probable Cause Panel discussed

    Dr. Boswell's report, and the members stated their individual agreement that probable cause existed to file an administrative complaint charging Petitioner with a violation of Section 490.009(2)(s), Florida Statutes.

25. Accordingly, Respondent was substantially justified in initiating the underlying proceeding against Petitioner since there was a reasonable basis in law and fact at the time it was initiated by Respondent. Petitioner is, therefore, precluded from an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes. See, Gentele v. Department of Professional Regulation, Board of Optometry, 513 So. 2d 672 (Fla. 1st Dist. 1987).

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

ORDERED THAT the Petition for Attorney's Fees and Costs be and the same is hereby denied.

DONE AND ORDERED this 30th day of September, 1997, at Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 30th day of September, 1997.

COPIES FURNISHED:

Paul Watson Lambert, Esquire 1114 East Park Avenue Tallahassee, Florida 32301-2651

Laura P. Gaffney, Esquire

Agency for Health Care Administration Post Office Box 114229

Tallahassee, Florida 32317-4229

Dr. Kaye Howerton, Executive Director Board of Psychology

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0788

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 Clerk of the Division of Admini- strative 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: 97-000895F

Orders for Case No: 97-000895F