The Issue By means of two consolidated rule challenge petitions, Petitioner seeks determinations that a specified agency policy and practice is an agency statement which is an invalid unpromulgated rule and that certain specified existing agency rules are invalid for other reasons. In view of the number of and the nature of the issues in these two cases, it is perhaps easiest to describe the issues in each of these cases in the words chosen by Petitioner. The petition in Case No. 04-4398RU describes the issues as follows: Whether Florida Board of Medicine's uniform "nod an wink" nonrule policy and practice of uniform licensure denial to anyone on probation is: (i) an "Agency Statement of general applicability that implements, interprets, or prescribes law or policy;" (ii) and "Agency Statement," defined as a "Rule;" (iii) "Rule," unpromulgated by mandatory and compulsory rulemaking procedures; and (iv) an invalid exercise of delegated legislative authority in violation of § 120.54(1)(a), Fla. Stat. (2003), as defined in § 120.52 Fla. Stat. (2003) and within the meaning of § 120.57(1)(e)? Whether the Board's failure to provide notice to prospective applicants of its unpromulgated rule policy and practice of uniform licensure denial to anyone on probation is [a] violation of due process requirements of United States and Florida Constitutions and of § 120,57(1)(e)(2)(e), Fla. Stat. (2003)? Whether Florida Board of Medicine's final Administrative Order, Order No. DOH- 04-0662-FOF-MQA, dated June 17, 2004, denying Petitioner's Application for Temporary Certificate to practice in Areas of Critical Need -- an Agency action based on an unpromulgated rule -- is null and void, pursuant to §120.56(4)(d), 120.56(4)(e)(5) and 120.57(1)(e), Fla. Stat. (2003)? Whether attorney fees and costs [are] to be awarded to the Petitioner pursuant to §120.595(4), Fla. Stat. (2003)? (Emphasis in original.) The petition in Case No. 04-4571RX describes the issues as follows: Whether all the relevant provisions of Rule 64B8-8.001 F.A.C. that punish or sanction Applicants in whole or in part -- as promulgated in Rules 64B8-8.001(1); 64B8- 8.001(2); and 64B8-8.001(2)(b) F.A.C. -- are an invalid exercise of delegated legislative authority in violation of § 120.536(1), Fla Stat. (2000), as defined in § 120.52(8), Fla. Stat. (2003)? Whether the Board's Final Administrative Order, Order No. DOH-04-0662- FOF-MQA, dated June 17, 2004, denying Petitioner's Application for Licensure -- an Agency action based on an invalidated rule - - is null and void? Whether attorney fees and costs [are] to be awarded to the Petitioner pursuant to §120.595(3), Fla. Stat. (2003)?
Findings Of Fact Findings incorporated from findings of fact in Case No. 03-4433 Petitioner is a medical doctor, presently licensed to practice medicine in the State of New York. Petitioner signed a Florida Department of Health Board of Medicine Application for Temporary Certificate to Practice in an Area of Critical Need on June 19, 2003. Question number 13 on that application form asked, “Have you ever had any Medical/professional license revoked, suspended, placed on probation, received a citation, or other disciplinary action taken in any state territory or country?” Petitioner answered “yes” to question number 13. The Notice of Intent to Deny issued by the Florida Board of Medicine cited as the only reason for denial “[t]he applicant had action taken against the license by the New York and the Utah Medical Licensing Boards.” It has since been confirmed that the Utah Division of Occupational & Professional Licensing did not take any action against Petitioner’s medical license in Utah. The New York Department of Health, Monitoring Unit, Office of Professional Medical Conduct, did take action against Petitioner’s medical license in New York. The New York Department of Health described its action as follows: Dr. Jacoby currently holds a valid NYS medical license, and is permitted to practice in this State, however the sanctions imposed by the enclosed Order are still in effect, and have not yet been fully satisfied. The suspension was lifted in January 2003, however the three years probation remains ‘tolled’ at this time, to be imposed when Dr. Jacoby returns to the practice of medicine in this State. (Emphasis added.) The underlying reason for Petitioner’s discipline in New York is for failing to repay a student loan guaranteed by the federal government. Petitioner had secured a health education assistance loan guaranteed by the federal government for approximately $51,000.00 between 1982 and 1983. The loan came due nine months after Petitioner graduated from medical school in June or July of 1984. Petitioner did not make any payments toward the loan for approximately 18 years. In September of 2002, Petitioner finally settled his long past-due student loan debt. Petitioner requested to withdraw his Application for Temporary Certificate to Practice in an Area of Critical Need after the Credentials Committee voted to recommend denial of his application to the full Board of Medicine. Petitioner promptly made a similar written request addressed to the full Board of Medicine. The full Board of Medicine denied Petitioner’s request to withdraw his application. The Board of Medicine then considered the merits of Petitioner’s application and voted to deny the application. The Board’s action was memorialized in a Notice of Intent to Deny Licensure by Area of Critical Need, which reads as follows in pertinent part: This matter came before the Credentials Committee of the Florida Board of Medicine at a duly-noticed public meeting on September 13, 2003, in Tampa, Florida and the full Board on October 3-4, 2003, in Ft. Lauderdale, Florida. The applicant appeared before the Credentials Committee on September 13, 2003, and presented testimony regarding the application file. The application file shows: The applicant had action taken against the license by the New York and the Utah Medical Licensing Boards. Additionally, the Board considered applicant’s Motion to Withdraw his application during the full Board meeting and voted to deny applicant’s motion. The applicant is guilty of violating Section 458.331(1)(b), Florida Statutes, for having a license acted upon by another jurisdiction. Based on the foregoing, the Board may refuse to certify an applicant for licensure, or restrict the practice of the licensee, or impose a penalty, pursuant to Sections 458.331(2) and 456.072(2), Florida Statutes. It is therefore ORDERED that the application for licensure by area of critical need be DENIED. If a final order is issued denying Petitioner’s license, the denial will be reported to the Federation of State Medical Boards, which is a depository of all disciplinary actions and license application denials by state boards in the United States. In recent years, it has been the consistent practice of the Florida Board of Medicine to deny applications for licenses to practice medicine if the applicant’s medical license is on probation in another state. Such practice is not required by either rule or statute. The Board of Medicine does not make any effort to advise applicants or prospective applicants of its consistent practice of denying applications from physicians who are on probation elsewhere. At the time he filed the subject application, as well as at the time of his appearance before the Credentials Committee, Petitioner was not aware of the Board of Medicine’s history of not granting applications submitted by physicians on probation elsewhere. Had Petitioner been aware of the Board’s history in that regard, he would not have filed an application.3 Findings based on testimony in Case No. 03-4433 All applications for licensure submitted by physicians licensed in other states are reviewed on their merits by the Florida Board of Medicine. Notwithstanding the Board's long history of denying such applications when the applicant's license in another state is on probation, it is nevertheless possible that the Board might in the future grant an application by a physician whose license is on probation. Because such a possibility exists, the Board does not advise prospective applicants that their applications will be denied if their license in another state is on probation. Facts about the existing rules The existing rule provisions challenged in Case No. 04-4571RX are all portions of Florida Administrative Code Rule 64B8-8.001. That rule contains the disciplinary guidelines regarding physicians regulated under Chapter 458, Florida Statutes. (Unless otherwise noted, all references to the Florida Statutes are to the current version of those statutes.) Subsection (1) and the introductory portion of subsection (2) of that rule read as follows: 64B8-8.001 Disciplinary Guidelines. Purpose. Pursuant to Section 456.079, F.S., the Board provides within this rule disciplinary guidelines which shall be imposed upon applicants or licensees whom it regulates under Chapter 458, F.S. The purpose of this rule is to notify applicants and licensees of the ranges of penalties which will routinely be imposed unless the Board finds it necessary to deviate from the guidelines for the stated reasons given within this rule. The ranges of penalties provided below are based upon a single count violation of each provision listed; multiple counts of the violated provisions or a combination of the violations may result in a higher penalty than that for a single, isolated violation. Each range includes the lowest and highest penalty and all penalties falling between. The purposes of the imposition of discipline are to punish the applicants or licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations. Violations and Range of Penalties. In imposing discipline upon applicants and licensees, in proceedings pursuant to Sections 120.57(1) and (2), F.S., the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included. Following the language quoted immediately above, the subject rule describes all of the statutory violations for which discipline may be imposed and for each such violation describes minimum and maximum recommended penalties. With regard to the violation described as "(b) Action taken against license by another jurisdiction," the subject rule provides the following recommendation for a first offense: (b) From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken, and an administrative fine ranging from $1,000.00 to $5,000.00. And for a second offense of the same type, the recommended penalty is stated as follows: (b) From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to revocation or denial of the license, and an administrative fine ranging from $5,000.00 to $10,000.00. Facts about disposition of Petitioner's application In the conclusions of law in the Recommended Order in Case No. 03-4433, the undersigned concluded that . . . on the facts in this case, the Board of Medicine clearly has the authority and the discretion to deny the application for the specific reasons stated in the Board's notice of intent to deny, to-wit: "The applicant is guilty of violating Section 458.331(1)(b), Florida Statutes, for having a license acted upon by another jurisdiction." But it is equally clear that there is nothing in the applicable rules or statutes that mandates denial of the application. The Board of Medicine can lawfully resolve this matter either way. The ultimate recommendation in that Recommended Order was that "a Final Order be issued . . . granting Petitioner's application for a temporary certificate to practice medicine in communities in Florida where there is a critical need for physicians." On June 18, 2004, the Board of Medicine filed a Final Order in Case No. 03-4433 in which it disagreed with the recommendation described above and, based on Petitioner's violation of Section 458.331(1)(b), Florida Statutes, and on "several aggravating factors and policy considerations" described in the Final Order, denied the application for a temporary certificate to practice in an area of critical need. Petitioner sought appellate court review of the Final Order of June 18, 2004. On April 14, 2005, the appellate court issued a decision in which the Board's Final Order of June 18, 2004, was affirmed without opinion. See A. Alexander Jacoby, M.D. v. Florida Board of Medicine, 900 So. 2d 559 (Fla. 1st DCA 2005).
The Issue The issue for determination is whether Respondent was substantially justified, within the meaning of Section 57.111, Florida Statutes (2002), in initiating disciplinary proceedings against Petitioner, a licensed dentist, in Division of Administrative Hearings (DOAH) Case Number 01-3509PL (the underlying case). (All statutory references are to Florida Statutes (2002) unless otherwise stated.)
Findings Of Fact 1. Petitioner is a licensed dentist in the State of Florida pursuant to license number DN9676. Respondent is the state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Chapter 456, and Chapter 466. 2. Several facts are not disputed by the parties. Petitioner filed this proceeding pursuant to Section 57.111. Respondent initiated the underlying case. Respondent is not a nominal party. Petitioner is a "prevailing small business party." The attorney's fees sought by Petitioner are reasonable in an amount up to $15,000.00. The statutory cap of $15,000.00 applies in this case. 3. At the Probable Cause meeting of June 12, 2001, the members of the Probable Cause Panel had probable cause to believe that Petitioner violated applicable law by failing to refer his patient to a specialist for lingual nerve damage suffered by the patient when Petitioner extracted the patient's wisdom teeth. At the Probable Cause meeting, the Panel received the entire investigative file, including all medical records, a statement and expert opinion submitted on the behalf of Petitioner by his attorney, and the expert opinion of Nidal Elias, D.D.S. M.S., submitted by Respondent. 4. Dr. Elias reviewed the medical records and rendered an expert opinion that the medical records submitted by Petitioner did not contain an indication that Petitioner referred his patient to a specialist. The medical records failed to reveal that the Petitioner referred the patient to a specialist. 5S. The medical records did not contain an express notation that Petitioner referred the patient to a specialist and did not contain a referral form. The Probable Cause Panel correctly determined probable cause existed for initiating disciplinary action against Petitioner. 6. The Administrative Complaint filed in the underlying case alleged that Petitioner failed to refer his patient to a specialist. However, counsel for Respondent attempted to prove that Petitioner failed to refer his patient in a timely manner. The ALJ excluded any evidence of the untimely nature of a referral to a specialist because the Administrative Complaint did not allege that Petitioner failed to refer his patient ina timely manner. The ALJ found the evidence to be less than clear and convincing that Petitioner failed to refer his patient to a specialist.
Conclusions For Petitioner: William M. Powell, Esquire Powell & Steinberg, P.A. 3515 Del Prado Boulevard Waterside Plaza, Suite 101 Cape Coral, Florida 33904 For Respondent: Trisha D. Bowles, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Other Judicial Opinions 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 the original notice of appeal with the Clerk of the Division of Administrative Hearings and a 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.
Findings Of Fact The Respondent Alam Farzad is a currently licensed medical doctor practicing medicine in Dade County, Florida. The Respondent was first licensed in Florida in 1975. In February, 1972, the Respondent resided in Miami with her husband, Kiumaris Bakshandeh, having moved to the United States from Iran in 1971 where they had both studied medicine and received medical degrees. In February, 1972, the Respondent's sister, Iran Farzad Rafael, was residing in Chicago, Illinois. Prior to February, 1972, the Respondent's sister graduated as a medical doctor in Iran and after moving to the United States, attempted to qualify for eventual licensure by taking an examination for foreign medical graduates administered by the Educational Council for Foreign Medical Graduates (ECFMG). In 1972 a passing grade was required on the examination by a foreign medical graduate in order to become eligible to take medical training in an intern program in the United States. Upon completion of the training for foreign professionals, another examination was required to be passed in order to become licensed in a state. Thus, the examination was a type of qualifying exam, the successful passage of which entitled a foreign graduate to receive medical training in the United States and eventually sit for the state medical licensing exam which was administered to all persons who desired to become licensed physicians. The Respondent's sister took the ECFMG exam three times prior to February, 1972, and failed it each time. At the request of her husband, the Respondent flew to Chicago in February of 1972, to take the ECFMG exam for her sister. The Respondent went to the examination site with the examination entrance papers she had taken from her sister, forged her sister's name at the examination site and took the examination using her sister's name. She subsequently received word from her sister that she had received a passing grade on the examination. The night after taking the examination, the Respondent received a phone call from her husband at her sister's home. During the conversation between the Respondent's husband and sister, the husband requested that the sister perform an abortion on the Respondent in return for her help on the examination. The Respondent's sister refused the husband's request. But for the Respondent taking and passing the ECFMG exam on behalf of her sister, the sister could not have practiced medicine or entered into a residency program. In 1978, the Respondent testified that her sister had practiced medicine in 1976 specializing in physical medicine and rehabilitation. However no official records were submitted by the Petitioner that the Respondent's sister is presently licensed or has been licensed as a physician in Illinois. In 1976, the Respondent's husband used his knowledge concerning the ECFMG examination to coerce the Respondent into signing a property settlement and custody agreement in a pending divorce proceeding. In exchange for agreeing to the property and custody agreement, the Respondent's husband signed an affidavit that would allegedly ensure that no information concerning the 1972 examination would be made public. In early 1978, the Respondent instituted proceedings in the Eleventh Judicial Circuit, Dade County, to set aside the child custody and support provisions contained in the final decree of dissolution of marriage between the Respondent and her husband on the grounds of coercion and duress. Following a lengthy hearing in which numerous witnesses were heard and exhibits entered into evidence, the Circuit Court in March, 1978, granted Respondent's motion to set aside the agreement and awarded custody of the couple's minor child to the Respondent. Dr. Bakshandeh appealed the trial court's decision to the District Court of Appeal, Third District. The court affirmed the trial court noting that there was " . . . an abundance of evidence in the record. . ." to support the Respondent's contention that she had been subjected to coercion and duress by her husband into entering into the agreement and that such coercion and duress constituted "misconduct of an adverse party" which would authorize a trial court to set aside a final judgment. See Bakshandeh v. Bakshandeh, 370 So.2d 417 (Fla. 3rd DCA 1979). The court went on to make, however, the following observation: As a final note, we are disturbed by an undisputed fact which emerges from this record. The wife Dr. Alam Farzad Bakshandeh is a physician licensed to practice medicine in Florida; the husband Kiumaris Bakshandeh is a chief resident urological surgeon for the University of Miami. Both were originally from Iran where they received part of their medical training. The record reveals that in February, 1972, the wife took a medical examination for her sister Iran Farzad Rafael for admission to a medical training program as a foreign physican in the State of Illinois. The examination was given in Chicago wherein the wife used her sister's name, took the exami- nation and passed it. The sister after additional training and examination was ad- mitted to practice medicine in Illinois. There is evidence that the husband urged the wife to take the examination for her sister and thereafter used this indiscretion to blackmail the wife into signing the pro- perty settlement agreement herein. The re- cord does not reflect whether the appropriate medical authorities have been notified of the above facts. We trust that such notifi- cation will be accomplished in the near future. Thereafter, on April 24, 1979, the Clerk of the Third District Court of Appeal forwarded a copy of the court's opinion to the Board of Medical Examiners for appropriate action. This was presumably the first actual notice the Petitioner received concerning the Respondent's actions on behalf of her sister in February, 1972. In July, 1981, a Board of Medical Examiners Probable Cause Panel found probable cause to believe violations of Chapter 458, Florida Statutes existed in this case and an Administrative Complaint was issued and filed against Respondent. Respondent was licensed by the Board of Medical Examiners as a medical physician in approximately February, 1975. The Petitioner filed the Administrative Complaint approximately 9 years after the incident in question occurred. The Petitioner failed to introduce evidence at the final hearing that while exercising due diligence it was unable to discover this incident prior to April, 1979.
