STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROBERT J. FISH, D.D.S, )
)
Petitioner, )
)
vs. ) Case No. 00-3116F
)
DEPARTMENT OF HEALTH, )
BOARD OF DENTISTRY, )
)
Respondent, )
)
FINAL ORDER
On March 14, 2001, the undersigned granted the parties' Joint Motion to Dispense with Formal Hearing. In lieu of a final hearing, the parties stipulated to certain facts and to the admissibility of certain exhibits. This Final Order is based on those stipulated facts and exhibits.
APPEARANCES
For Petitioner: Max R. Price, Esquire
Solms & Price, P.A.
6701 Sunset Drive, Suite 104
Miami, Florida 33143
For Respondent: Michael J. Cohen, Esquire
517 Southwest First Avenue Fort Lauderdale, Florida 33301
STATEMENT OF THE ISSUES
Whether Petitioner should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act (the Act), Section 57.111, Florida Statutes. Specifically, the
parties dispute whether Respondent was substantially justified in bringing the Administrative Complaint against Petitioner and/or whether special circumstances exist which would make the award of attorney's fees and costs unjust.
PRELIMINARY STATEMENT
On September 3, 1999, the Department of Health, Board of Dentistry (the Department) referred an Administrative Complaint against Robert J. Fish, a dentist licensed by the State of Florida, to the Division of Administrative Hearings. That matter was assigned DOAH Case No. 99-3742. The Administrative Complaint contained certain factual allegations and, based on those allegations, charged Dr. Fish with certain violations of the laws governing the practice of dentistry.1 On June 1, 2000, the undersigned granted the Department's Amended Motion to Relinquish Jurisdiction and closed DOAH Case 99-3742.2 No final hearing was conducted on the merits of the Administrative Complaint.
Dr. Fish thereafter timely filed a petition for award of attorney's fees and costs pursuant to the Act. The parties stipulated to certain facts and to the admissibility of
19 exhibits, each of which has been admitted into evidence. No other evidence has been presented.
FINDINGS OF FACT
The Department is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.43 and Chapters 455, 456, and 466, Florida Statutes.
At all times pertinent to this proceeding, Dr. Fish has been a dentist licensed by the State of Florida, where he has maintained a practice.
At all times pertinent to this proceeding, Dr. Fish was represented by Max Price, Esquire.
By letter dated April 30, 1997, Allen Horowitz, D.D.S., filed a complaint against Dr. Fish.
By letter dated October 22, 1997, Laura Eggnatz Tepperberg, an Investigation Specialist II employed by the Department, notified Dr. Fish that there was a pending investigation and enclosed documents that supported the investigation.
By letter dated November 20, 1997, Mr. Price notified Ms. Tepperberg that he represented Dr. Fish and requested a copy of the complete investigation file as soon as the investigation was completed. This letter also suggested that Dr. Horowitz was retaliating against Dr. Fish because Dr. Fish had served as an expert witness for the plaintiff in a civil action brought against Dr. Horowitz.
On December 15, 1997, Ms. Tepperberg completed her Investigative Report.
By letter dated March 9, 1998, Mr. Price acknowledged receipt of a copy of the Department's investigative file. The letter requested a copy of a videotape that was referred to by the investigative material but was not enclosed in the package of materials that had been provided.
By letter dated March 10, 1998, counsel for the Department advised Mr. Price that he had overlooked the videotapes when preparing the package of material and was in the process of having a copy made for him.
By letter dated April 24, 1998, the Department mailed a copy of the videotape to Mr. Price.
By letter dated April 30, 1998, Mr. Price advised the Department that the videotape had been damaged in transit and requested a second copy of the videotape.
By letter dated June 12, 1998, the Department mailed Mr. Price a second copy of the videotape.
By letter dated June 26, 1998, Mr. Price advised the Department that the second copy of the videotape had been damaged in transit and requested a third copy of the videotape.
On July 9, 1998, the Department caused a third copy of the videotape to be hand-delivered to Mr. Price.
In his correspondence pertaining to the videotape, Mr. Price repeatedly asserted that he would need to review the entire investigative file, including the videotape, before he could file a response to be considered by the Probable Cause panel.
By letter dated July 24, 1998, Mr. Price filed his response to the investigative file. The Department received the letter and attachments in Tallahassee on July 28, 1998.
Dr. Fish's response to the investigative file disputed, but did not disprove, the evidence supporting the allegations against him.
By letter dated July 28, 1998, Mr. Price filed a supplemental response to the investigative file. The Department received the supplemental response in Tallahassee on August 7, 1998. This supplemental response also disputed, but did not disprove, the evidence supporting the allegations against him.
On July 31, 1998, the Probable Cause Panel met in Fort Myers and found that probable cause existed to file an administrative complaint against Dr. Fish. The Probable Cause Panel had before it at its meeting on July 31, 1998, an investigative report and supporting documentation. That packet
of information substantially justified the Department's decision to initiate the Administrative Complaint that underpinned DOAH Case No. 99-3742.
In its Proposed Recommended [sic] Order, the Department stipulated that Dr. Fish's response dated July 24, 1998, and his supplemental response dated July 28, 1998, were not reviewed by the Probable Cause Panel at or before its meeting of July 31, 1998.
The parties stipulated that Dr. Fish was entitled to file his response within 20 days after he received the entire investigative file on July 9, 1998.
Dr. Fish's response filed July 24, 1998, was timely.
The parties stipulated that Dr. Fish was entitled as a matter of law to have his timely response considered by the Probable Cause Panel prior to its consideration and vote of probable cause on July 31, 1998.3 The failure to do so constituted a due process violation.
On June 1, 2000, the undersigned granted the Department's Amended Motion to Relinquish Jurisdiction and closed DOAH Case No. 99-3742. Dr. Fish thereafter timely filed his petition for attorney's fees and costs4 pursuant to the Act.
The parties stipulated that the proceeding below was initiated by the Department5, that Dr. Fish qualified as a prevailing small business6, and that he incurred attorney's fees and costs in excess of $15,000.00, which Section 57.111(4)(d)2, Florida Statutes, sets as the maximum that can be awarded.
Consequently, if Dr. Fish is to be awarded attorney's fees and costs, the amount of the award should be $15,000.00.
Section 57.111(4), Florida Statutes, mandates an award of attorney's fees and costs to a prevailing small business party as follows:
(4)(a) Unless otherwise provided by law,
an award 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 were substantially justified or special circumstances exist which would make the award unjust.
Section 57.111(3)(e), Florida Statutes, defines the term "substantially justified" as follows:
(3)(e) A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it was initiated by the state agency.
The Act does not specify what acts constitute special circumstances which would make an award of attorney's fees and costs unjust within the meaning of Section 57.111(4)(a), Florida Statutes.
The Department failed to establish the existence of special circumstances which would make an award of attorney's fees and costs unjust.
The Department established that it had information that substantially justified the filing of the Administrative
Complaint in DOAH Case No. 99-3742. Dr. Fish did not prove that the Probable Cause Panel's failure to consider his responses to the investigative file vitiated that substantial justification.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Sections 57.111 and 120.57, Florida Statutes.
Generally, in the absence of a statute to the contrary, the ultimate burden of persuasion and the burden of going forward with the evidence is on the party asserting the affirmative of an issue in a formal administrative proceeding. See Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993); Graham v. Estuary Properties, Inc., 399 So. 2d 1374 (Fla. 1981),
cert. denied 454 U.S. 1083 (1981); and State, Department of Health and Rehabilitative Services v. South Beach Pharmacy, Inc., 635 So. 2d 117, (Fla. 1st DCA 1994).
Dr. Fish made a prima facie showing of his entitlement
to an award of attorney's fees and costs. The burden of going forward with the evidence thereafter shifted to the Department to establish that it was either substantially justified in initiating the disciplinary action against Dr. Fish or that special circumstances exist which would make an award of attorney's fees and costs unjust.
Once the Department established that it was substantially justified in proceeding against him, it became the burden of Dr. Fish to establish that the due process violation vitiated that substantial justification.
There is no presumption that the mere existence of a due process violation such as the one involved in this proceeding would require a finding that an agency was not substantially justified in initiating an Administrative Complaint against a small business party.7
Dr. Fish's failed to meet his burden of proof in this proceeding because he did not present sufficient evidence to negate the Department's showing of substantial justification.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the petition for attorney's fees and costs is DENIED.
DONE AND ORDERED this 4th day of June, 2001, in Tallahassee, Leon County, Florida.
CLAUDE B. ARRINGTON
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 4th day of June, 2001.
ENDNOTES
1/ Dr. Fish was retained by the plaintiff in Nehr v. Reid, a civil proceeding in Broward Circuit Court. Plaintiff's counsel was Richard Chosid and defendant's counsel was Steven Billings. On July 24, 1993, Judge Paul M. Marko ruled in open court that Dr. Fish was not qualified to give expert testimony in the case and disqualified him as an expert. On August 5, Judge Marko confirmed his earlier ruling with a written order. The Department subsequently received a complaint that Dr. Fish had testified that he had never been disqualified as an expert witness and that he had lied about or exaggerated his experience and qualifications as an expert. DOAH Case 99-3742 pertained to that complaint.
2/ A material factual dispute in the underlying proceeding was when Dr. Fish knew that he had been disqualified as an expert by Judge Marko in Nehr v. Reid. After the Administrative Complaint had been filed, both Judge Marko and Mr. Billing died. In addition, the Department learned that Mr. Chosid had a disciplinary history with the Florida Bar, which it took into consideration when determining whether to continue with the prosecution of the underlying case.
3/ This stipulation is based on the provisions of Sections 455.225(1)(a) and (10), Florida Statutes, and on the Department's practices.
4/ Section 57.111(3)(a), Florida Statutes, provides that the term attorney's fees and costs means the reasonable and necessary attorney's fees and costs incurred for all preparations, motions, hearings, trials, and appeals in a proceeding.
5/ Section 57.111(3)(b), Florida Statutes, provides as follows:
The term "initiated by a state agency" means that the state agency:
Filed the first pleading in any state or federal court in this state;
Filed a request for an administrative hearing pursuant to chapter 120; or
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-form proceeding of the agency.
6/ Section 57.111(3)(c) and (d), Florida Statutes, provide as follows:
A small business party is a "prevailing small business party" when:
A final judgment or order has been entered in favor of the small business party and such judgment or order has not been reversed on appeal or the time for seeking judicial review of the judgment or order has expired;
A settlement has been obtained by the small business party which is favorable to the small business party on the majority of issues which such party raised during the course of the proceeding; or
The state agency has sought a voluntary dismissal of its complaint.
The term "small business party" means:
1.a. A sole proprietor of an unincorporated 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; or
b. A partnership or corporation, including a professional practice, which has its principal office in this state and 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; or
2. Either small business party as defined in subparagraph 1., without regard to the number of its employees or its net worth, in any action under s. 72.011 or in any administrative proceeding under that section to contest the legality of any assessment of
tax imposed for the sale or use of services as provided in chapter 212, or interest thereon, or penalty therefor.
7/ While it is appropriate for a court of competent jurisdiction or the legislature to create such a presumption, it is inappropriate for the undersigned to do so. McDonald v.
Department of Professional Regulation, Bd. of Pilot Com'rs, 582 So. 2d 660 (Fla. 1st DCA 1991).
COPIES FURNISHED:
Michael J. Cohen, Esquire
517 Southwest First Avenue Fort Lauderdale, Florida 33301
Max R. Price, Esquire Solms & Price, P.A.
6701 Sunset Drive, Suite 104
Miami, Florida 33143
William H. Buckhalt, Executive Director Board of Dentistry
Department of Health 4052 Bald Cypress Way
Tallahassee, Florida 32399-1701
Theodore M. Henderson, Agency Clerk Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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.
2 A material factual dispute in the underlying proceeding was when Dr. Fish knew that he had been disqualified as an expert by Judge Marko in Nehr v. Reid. After the Administrative Complaint had been filed, both Judge Marko and Mr. Billing died. In addition, the Department learned that Mr. Chosid had a disciplinary history with the Florida Bar, which it took into consideration when determining whether to continue with the prosecution of the underlying case.
3 This stipulation is based on the provisions of Sections 455.225(1)(a) and (10), Florida Statutes, and on the Department's practices.
4 Section 57.111(3)(a), Florida Statutes, provides that the term attorney's fees and costs means the reasonable and necessary attorney's fees and costs incurred for all preparations, motions, hearings, trials, and appeals in a proceeding.
5 Section 57.111(3)(b), Florida Statutes, provides as follows:
The term "initiated by a state agency" means that the state agency:
Filed the first pleading in any state or federal court in this state;
Filed a request for an administrative hearing pursuant to chapter 120; or
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-form proceeding of the agency.
6 Section 57.111(3)(c) and (d), Florida Statutes, provide as follows:
A small business party is a "prevailing small business party" when:
A final judgment or order has been entered in favor of the small business party and such judgment or order has not been reversed on appeal or the time for seeking judicial review of the judgment or order has expired;
A settlement has been obtained by the small business party which is favorable to the small business party on the majority of issues which such party raised during the course of the proceeding; or
The state agency has sought a voluntary dismissal of its complaint.
The term "small business party" means:
1.a. A sole proprietor of an unincorporated 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; or
b. A partnership or corporation, including a professional practice, which has its principal office in this state and 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; or
2. Either small business party as defined in subparagraph 1., without regard to the number of its employees or its net worth, in any action under s. 72.011 or in any administrative proceeding under that section to contest the legality of any assessment of tax imposed for the sale or use of services as provided in chapter 212, or interest thereon, or penalty therefor.
7 While it is appropriate for a court of competent jurisdiction or the legislature to create such a presumption, it is inappropriate for the undersigned to do so. McDonald v. Department of Professional Regulation, Bd. of Pilot Com'rs, 582 So.2d 660 (Fla. 1st DCA 1991).
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 04, 2001 | DOAH Final Order | Respondent was substantially justified in filing underlying administrative complaint. Fees and costs denied. |
