STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GLENN ROSS CADDY, Ph.D., )
)
Petitioner, )
)
vs. ) Case No. 00-2890F
)
DEPARTMENT OF HEALTH, )
BOARD OF PSYCHOLOGY, )
)
Respondent. )
)
FINAL ORDER OF DISMISSAL
A hearing was conducted on November 13, 2000, during which oral argument was heard on Petitioner's Amended Motion for Attorney's Fees, Costs, and Litigation Expenses. Counsel for the parties participated by telephone.
PRELIMINARY STATEMENT
This proceeding was initiated on July 13, 2000, when Glenn R. Caddy filed with the Division of Administrative Hearings Petitioner's Motion for Attorney's Fees, Costs (Including Appellate Costs), and Litigation Expenses. In his motion, Dr. Caddy sought to recover from the Department of Health, Board of Psychology ("Department"), attorneys' fees, costs, and litigation expenses incurred in the administrative proceeding before the Board of Psychology ("Board") styled Agency for Health Care Administration v. Glenn R. Caddy, DOAH
Case No. 97-1423, in which the Board entered a Final Order imposing sanctions on Dr. Caddy, and in the appeal of the Board's final order, reported as Caddy v. State of Florida, Department of Health, Board of Psychology, 764 So. 2d 625 (Fla. 1st DCA 2000), in which the First District Court of Appeal reversed the Board's Final Order on the grounds that the rule relied upon by the Board was facially unconstitutional. As authority for the requested award of attorneys' fees, costs, and litigation expenses, Dr. Caddy cited in his motion
Section 120.595(3), Florida Statutes, and Rule 9.400(a), Florida Rules of Appellate Procedure.
On July 25, 2000, the Department filed Respondent's Response to Petitioner's Motion for Attorney's Fees and Costs and Respondent's Motion to Strike Petitioner's Motion for Attorney's Fees. After consideration of the Petitioner's motion, of the Department's response in opposition to the motion, and of the Department's motion to strike, an order denying the motion with leave to amend was entered on August 23, 2000. With respect to Dr. Caddy's entitlement to an award of fees and costs pursuant to Section 120.595(3), Florida Statutes (2000), it was concluded in the order that Dr. Caddy was not entitled to an award of attorneys' fees and costs pursuant to Section 120.595(3), Florida Statutes (2000), 1/ first, because he had not initiated a proceeding pursuant to Section 120.56(1)
and (3), Florida Statutes, challenging the validity of the Board's rule as an invalid exercise of delegated legislative authority, and, second, because the court had not declared the rule an invalid exercise of delegated legislative authority pursuant to Section 120.56(3), Florida Statutes. With respect to Dr. Caddy's entitlement to an award of costs pursuant to Rule 9.400(a), Florida Rules of Appellate Procedure, it was concluded in the order that the Division of Administrative Hearings was not the "lower tribunal" authorized to award costs pursuant to Rule 9.400(a), Florida Rules of Appellate Procedure,
because the Board was the entity that entered the final order in the previous administrative proceeding.
After requesting and being granted an extension of time in which to file an amended motion, Dr. Caddy filed Petitioner's Amended Motion for Attorneys' Fees, Costs, and Litigation Expenses on October 16, 2000. In his amended motion, Dr. Caddy seeks an award of attorneys' fees, costs, and litigation expenses incurred in the previous proceedings, citing as authority Section 120.595(3), Florida Statutes (1999), and an award of attorneys' fees, costs, and litigation expenses incurred in determining entitlement to attorneys' fees, costs, and litigation expenses. Dr. Caddy did not, in his amended motion, request an award of costs pursuant to Rule 9.400(a), Florida Rules of Appellate Procedure. On October 26, 2000, the
Department filed Respondent's Response to Petitioner's Amended Motion for Attorney's Fees, Costs, and Litigation Expenses and Motion to Dismiss. A telephone hearing was held on November 13, 2000, during which oral argument was presented on the amended motion and in opposition to the amended motion, as well as on the Respondent's Motion to Dismiss.
For purposes of considering the amended motion, the undersigned has taken official recognition of the Administrative Complaint filed against Dr. Caddy by the Agency for Health Care Administration ("AHCA") on January 9, 1997, and the Election of Rights form and Answer and Affirmative Defenses served on AHCA by Dr. Caddy on February 20, 1997, all of which were part of the record in Agency for Health Care Administration v. Glenn R. Caddy, DOAH Case No. 97-1423. 2/
FACTUAL PREDICATE
A two-count Administrative Complaint signed December 31, 1996, formed the basis for the proceedings before the Division of Administrative Hearings in Agency for Health Care Administration v. Glenn R. Caddy, DOAH Case No. 97-1423. In the
Administrative Complaint, AHCA alleged that Dr. Caddy was a psychologist licensed to practice in Florida and requested that the Board impose a penalty on Dr. Caddy, to include revocation or suspension of his license or imposition of an administrative fine, based on the violations charged in the complaint. In
Count I of the Administrative Complaint, 3/ AHCA charged that Dr. Caddy violated Section 490.009(2)(k), Florida Statutes, "by committing any act upon a patient or client which would constitute sexual battery or which would constitute sexual misconduct as defined in Section 490.0111." It was further alleged in Count I that Section 490.0111, Florida Statutes, provides that sexual misconduct by any licensee under
Chapter 490, Florida Statutes, is prohibited and that "[s]exual misconduct shall be defined by rule." AHCA quoted Rule 59AA- 16.003, 4/ Florida Administrative Code, for the definition of sexual misconduct as it relates to psychologists licensed in Florida:
(2) It shall constitute sexual misconduct for a psychologist, who is involved in a psychologist-client relationship, to engage, attempt to engage, or offer to engage the client in sexual intercourse or other sexual behavior. Sexual behavior includes, but is not limited to, kissing, or the touching by either the psychologist or the client of the other's breasts or genitals.
* * *
(5) A psychologist-client relationship exists whenever a psychologist has rendered, or purports to have rendered, psychological services, including, but not limited to, psychotherapy, counseling, assessment or treatment to a person. A formal contractual relationship, the scheduling of professional appointments, or payment of a fee for services are not necessary conditions for the existence of a psychologist-client
relationship, though each of these may be evidence that such relationship exists.
For purposes of determining the existence of sexual misconduct as defined herein, the psychologist-client relationship is deemed to continue in perpetuity.
On the Election of Rights form submitted in response to the Administrative Complaint and dated February 19, 1997, Dr. Caddy indicated that he disputed the allegations of fact contained in the Administrative Complaint and that he requested
that this be considered a petition for a hearing involving disputed issues of material fact, pursuant to Section 120.569, Florida Statutes (Supp. 1996), and
Section 120.57(1), Florida Statutes (1995), before an Administrative Law Judge appointed by the Division of Administrative Hearings.
For the specific disputed facts, the Petitioner referred to the Answer that he filed concurrently with the Election of Rights form.
In the "Answer and Affirmative Defenses" filed with AHCA, Dr. Caddy denied certain allegations in the Administrative Complaint. He also alleged several "affirmative defenses" to the Administrative Complaint:
Section 490.0111, Florida Statutes and any applicable rules promulgated thereunder are too vague and uncertain to adequately advise respondent of the standards of conduct to which he or she must adhere and, accordingly, cannot consistent with due process give rise to imposition of discipline, penal in nature.
Section 490.011, Florida Statutes violates respondent's fundamental
associational and privacy rights under the United States and Florida constitutions.
Chapter 59AA-16.003 [now Rule 64B19- 16.003], Florida Administrative Code is an invalid delegation of legislative power.
Chapter 59AA-16.003 [now Rule 64B19- 16.003], Florida Administrative Code is an invalid exercise of delegated of [sic] legislative power.
The deeming that the psychologist- client relationship continues "in perpetuity" in Chapter 59AA-16.003 [now Rule 64B19-16.003], Florida Administrative Code creates an irrebutable [sic] presumption that violated respondent's constitutionally protected due process rights.
The filing of the Amended Administrative Complaint was not authorized by law and was in violation of law, and particularly, was filed in violation of [section] 286.011, Florida Statutes.
The conduct in which respondent is alleged to have engaged does not constitute a violation of Section 490.0111, Florida Statutes.
The Administrative Complaint, the Election of Rights form, and the Answer and Affirmative Defenses were forwarded by AHCA to the Division of Administrative Hearings, with a request that an administrative law judge be assigned to hear the case. It is undisputed that the file of the Division of Administrative Hearings was closed and jurisdiction was relinquished to the Board without an evidentiary hearing having been conducted on the allegations in the Administrative Complaint; that the Board issued a Final Order imposing sanctions on Dr. Caddy; and that, on appeal, the First District Court of Appeal reversed the
Board's Final Order. It is also undisputed that the First District Court of Appeal did not award attorneys' fees and costs to Dr. Caddy, nor did that court remand the case to the Division of Administrative Hearings for an award and/or assessment of attorneys' fees and costs.
ANALYSIS
Section 120.595(3), Florida Statutes (2000), which authorizes the award of attorneys' fees and costs in certain circumstances, provides:
(3) CHALLENGES TO EXISTING AGENCY RULES PURSUANT TO SECTION 120.56(3).--If the court or administrative law judge declares a rule or portion of a rule invalid pursuant to
s. 120.56(3), a judgment or order shall be rendered against the agency for reasonable costs and reasonable attorney's fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust. An agency's actions are "substantially justified" if there was a reasonable basis in law and fact at the time the actions were taken by the agency. If the agency prevails in the proceedings, the court or administrative law judge shall award reasonable costs and reasonable attorney's fees against a party if the court or administrative law judge determines that a party participated in the proceedings for an improper purpose as defined by
paragraph (1)(e). No award of attorney's fees as provided by this subsection shall exceed $15,000.
Section 120.56, Florida Statutes (Supp. 1996), 5/ provides in pertinent part:
Challenges to rules.--
GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A RULE OR A PROPOSED RULE.--
Any person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.
The petition seeking an administrative determination must state with particularity the provisions alleged to be invalid with sufficient explanation of the facts or grounds for the alleged invalidity and facts sufficient to show that the person challenging a rule is substantially affected by it, or that the person challenging a proposed rule would be substantially affected by it.
The petition shall be filed with the division which shall, immediately upon filing, forward copies to the agency whose rule is challenged, the Department of State, and the committee. Within 10 days after receiving the petition, the division director shall, if the petition complies with the requirements of paragraph (b), assign an administrative law judge who shall conduct a hearing within 30 days thereafter, unless the petition is withdrawn or a continuance is granted by agreement of the parties or for good cause shown. Evidence of good cause includes, but is not limited to, written notice of an agency's decision to modify or withdraw the proposed rule or a written notice from the chair of the committee stating that the committee will consider an objection to the rule at its next scheduled meeting. The failure of an agency to follow the applicable rulemaking procedures or requirements set forth in this chapter shall be presumed to be material; however, the agency may rebut this presumption by showing that the substantial interests of the petitioner and the fairness of the proceedings have not been impaired.
Within 30 days after the hearing, the administrative law judge shall render a decision and state the reasons therefor in writing. The division shall forthwith transmit copies of the administrative law judge's decision to the agency, the Department of State, and the committee.
Hearings held under this section shall be conducted in the same manner as provided by ss. 120.569 and 120.57, except that the administrative law judge's order shall be final agency action. The petitioner and the agency whose rule is challenged shall be adverse parties. Other substantially affected persons may join the proceedings as intervenors on appropriate terms which shall not unduly delay the proceedings. Failure to proceed under this section shall not constitute failure to exhaust administrative remedies.
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CHALLENGING EXISTING RULES; SPECIAL PROVISIONS.--
A substantially affected person may seek an administrative determination of the invalidity of an existing rule at any time during the existence of the rule.
The administrative law judge may declare all or part of a rule invalid. The rule or part thereof declared invalid shall become void when the time for filing an appeal expires. The agency whose rule has been declared invalid in whole or part shall give notice of the decision in the Florida Administrative Weekly in the first available issue after the rule has become void.
It is clear from the provisions of Section 120.56(1) quoted above that an action challenging the validity of an agency rule is initiated by filing a petition with the Division of Administrative Hearings, that the scope of the jurisdiction of
an administrative law judge of the Division of Administrative Hearings is to determine whether a rule is an invalid exercise of delegated legislative authority, and that the administrative law judge hearing the rule challenge issues a final order at the conclusion of the evidentiary hearing on the matter. The final order of the administrative law judge is subject to judicial review. Section 120.68(1) and (9), Florida Statutes
(Supp. 1996).
It is undisputed that Dr. Caddy did not challenge the validity of Rule 64B19-16.003, Florida Administrative Code, as an invalid exercise of delegated legislative authority by filing a petition with the Division of Administrative Hearings pursuant to the provisions of Section 120.56(1) and (3), Florida Statutes. Rather, in addition to raising several constitutional challenges to Section 490.0111, Florida Statutes, and to "Chapter" 59AA-16.003, now Rule 64B19-16.003, Florida Administrative Code, 6/ Dr. Caddy stated as an "affirmative defense" to the Administrative Complaint that "Chapter 59AA-
16.003 [now Rule 69B19-16.003], Florida Administrative Code is an invalid exercise of delegated of [sic] legislative power." This statement did not vest jurisdiction in the Division of Administrative Hearings to determine in a final order the validity of Rule 64B19-16.003, Florida Administrative Code. The proceeding Dr. Caddy initiated when he submitted his Election of
Rights form to AHCA was a proceeding conducted pursuant to Section 120.57(1), Florida Statutes, in which an administrative law judge can either relinquish jurisdiction to the referring agency when it appears that there are not disputed issues of material fact, Section 120.57(1)(i), Florida Statutes, or submit a recommended order to the referring agency after an evidentiary hearing. Section 120.57(1)(k), Florida Statutes. Because no petition was filed pursuant to Section 120.56(1) and (3), Florida Statutes, an administrative law judge could not have entered a final order declaring Rule 64B19-16.003(5)(a), Florida Administrative Code, "invalid pursuant to s. 120.56(3)."
Nor has any court declared Rule 64B19-16.003(5)(a), Florida Administrative Code, invalid pursuant to Section 120.56(3), Florida Statutes. Section 120.68(9), Florida Statutes, relating to judicial review, provides that
[n]o petition challenging an agency rule as an invalid exercise of delegated legislative authority shall be instituted pursuant to this section, except to review an order entered pursuant to a proceeding under s.
120.56, unless the sole issue presented by the petition is the constitutionality of a rule and there are no disputed issues of fact.
In its opinion in Caddy v. State of Florida, Department of Health, Board of Psychology, 764 So. 2d 625, 629-30 (Fla. 1st DCA 2000), the court determined that, on its face, Rule 64B19- 16.003(5)(a), Florida Administrative Code, was unconstitutional
in that it violated the right to privacy guaranteed by the Florida Constitution; the court expressly stated that it declined to reach the constitutional question of whether the rule was an invalid delegation of legislative authority.
Because no order was entered as a result of a proceeding initiated under Section 120.56(1) and (3), Florida Statutes, the appellate court did not "review an order entered pursuant to a proceeding under s. 120.56(3)," Section 120.68(9), Florida Statutes, and, therefore, did not hold that the rule was "invalid pursuant to s.120.56(3)."
Dr. Caddy argues in his amended motion and in the memorandum in support of the motion that a rule that is facially unconstitutional is per se invalid as an invalid exercise of delegated legislative authority, as that term is defined in Section 120.52(8), Florida Statutes. This may be so, but the fact remains that Dr. Caddy did not challenge the validity of Rule 64B19-16.003, Florida Administrative Code, as an invalid exercise of delegated legislative authority in a proceeding initiated pursuant to Section 120.56(1) and (3), Florida Statutes; no administrative law judge declared the rule invalid pursuant to Section 120.56(3), Florida Statutes; and the First District Court of Appeal did not review an order entered pursuant to Section 120.56(3), Florida Statutes. As a result,
no predicate has been laid for the award of attorneys' fees and costs pursuant to Section 120.595(3), Florida Statutes.
Statutes awarding attorneys' fees must be strictly construed. See Whitten v. Progressive Casualty Insurance Company, 410 So. 2d 501 (Fla. 1982); Kittel v. Kittel, 210 So.
2d 1 (Fla. 1967); Oruga Corporation, Inc., v. AT & T Wireless of Florida, Inc., 712 So. 2d 1141 (Fla. 3d DCA 1998); Ciaramello v. D'Ambra, 613 So. 2d 1324 (Fla. 2d DCA 1991); Jory v. Department
of Professional Regulation, 583 So. 2d 1075 (Fla. 1st DCA 1991). Accordingly, because there has been no proceeding challenging Rule 64B19-16.003, Florida Administrative Code, as invalid pursuant to Section 120.56(3), Florida Statutes, Dr. Caddy is not entitled to an award of attorneys' fees and costs pursuant to Section 120.595(3), Florida Statutes (2000).
CONCLUSION
Based on the foregoing, the Petitioner's Amended Motion for Attorneys' Fees, Costs, and Litigation Expenses is dismissed.
DONE AND ORDERED this 19th day of December, 2000, in
Tallahassee, Leon County, Florida.
PATRICIA HART MALONO
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 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2000.
ENDNOTES
Section 120.595(3), Florida Statutes (2000), provides that, "[i]f the court or administrative law judge declares a rule or portion of a rule invalid pursuant to s. 120.56(3), a judgment or order shall be rendered against the agency for reasonable costs and reasonable attorney's fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust."
Counsel for the parties were advised during the hearing on November 13, 2000, that the undersigned had officially recognized these documents, and no objections were raised.
AHCA subsequently dismissed Count II, and it is not relevant to the instant proceeding.
This rule has since been transferred and is now found at 64B19-16.003, Florida Administrative Code. All further references to the rule will be to its new designation.
This is the statute in effect at the time Dr. Caddy filed his Answer and Affirmative Defenses to the Administrative Complaint served by AHCA.
Dr. Caddy asserted violations of his constitutional rights to due process, to association, and to privacy, as well as the
constitutional violation of invalid delegation of legislative power. An administrative law judge has no jurisdiction to determine constitutional challenges to statutes or existing rules. See State, Department of Administration, Division of Personnel v. State, Department of Administration, Division of Administrative Hearings, 326 So. 2d 187 (Fla. 1st DCA).
COPIES FURNISHED:
Ephraim Roy Hess, Esquire
Colleen Kathryn O'Loughlin, Esquire Hess & O'Loughlin
50 Northeast 26th Avenue, Suite 311 Pompano Beach, Florida 33062
Karen Coolman Amlong, Esquire Amlong & Amlong
500 Northeast Fourth Street, Second Floor Fort Lauderdale, Florida 33301-1154
R. Lynn Lovejoy, Esquire Office of the Attorney General Administrative Law Section
The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Donna Erlich, Esquire Board of Psychology Department of Health
2020 Capital Circle, Southeast Bin C05
Tallahassee, Florida 32399-3255
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 thirty (30) days of rendition of the order to be reviewed.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 19, 2000 | DOAH Final Order | Petitioner failed to establish that Board rule had been declared invalid pursuant to Section 120.56(3) because no rule challenge was initiated under that section; not entitled to attorneys fees for appeal in which court held rule facially unconstitutional |
