The Issue Whether Petitioner may be granted an exemption from employment disqualification, pursuant to Section 435.07(3), Florida Statutes, which would allow him to work in a position of special trust (i.e. youthful offender counseling) for the Department of Juvenile Justice.
Findings Of Fact On February 16, 1999, a request for a Preliminary Florida Criminal Information Center/National Criminal Information Center (FCIC/NCIC) and Division of Highway Safety and Motor Vehicle (DHSMV) Screening Check was submitted on behalf of Petitioner by Dawn Torres of Youth Service International, Cypress Creek Academy. The screening package contained an Affidavit of Good Moral Character signed by Petitioner and notarized on January 11, 1999, in which Petitioner indicated that he did not have a disqualifying criminal history. There is every reason to believe that this affidavit was actually signed by Petitioner on January 8, 1999, at the same time he signed a consent to background screening and a job application which described a prior "misdemeanor" of assault on an ex-girlfriend. (Respondent's Composite Exhibit 1). This means the affidavit was notarized improperly. Cypress Creek Academy is a youth rehabilitation facility located in LeCanto, Florida. On February 19, 1999, Petitioner's preliminary screening was rated as "favorable" based upon an FCIC (Florida) check only. Petitioner was therefore employed by Cypress Creek Academy on April 12, 1999. (Petitioner's Exhibit 1). An FBI Identification Record dated May 9, 1999, indicated Petitioner had pled guilty to, and been found guilty of, assault on June 30, 1994, and that he had been sentenced to six months' jail time (suspended), 12 months' probation, and attendance at the Mens' Anger Program. In a letter dated May 17, 1999, Petitioner was asked by DJJ to provide, within 30 days of receipt of the letter, certified copies of arrest reports and judicial dispositions referencing the assault charge. Petitioner submitted the requested information to DJJ. It showed that Petitioner was arrested on June 3, 1994, by the Fairfax, Virginia, Police Department for abduction and assault and battery on a minor (17 years of age). On June 30, 1994, Petitioner pled guilty to assault and battery in the Fairfax County, Virginia, Juvenile and Domestic Relations District Court and was then found guilty. He was sentenced to a six months' jail sentence (suspended) and 12 months' active probation; ordered to attend the Mens' Anger Program; and instructed to have "no violation towards victim." A Show Cause Summons (Criminal) was issued by Fairfax County, Virginia, on June 23, 1995, to Petitioner concerning his failure to attend the Mens' Anger Program and his failure to contact his probation officer from September 26, 1994, to March 20, 1995. On September 21, 1995, the Fairfax County, Virginia, Juvenile and Domestic Relations District Court found Petitioner guilty of contempt based upon his plea of guilty. He was sentenced to a jail term of 60 days (with 57 days suspended), placed on probation for an additional 12 months, and again ordered to attend the Mens' Anger Program. By departmental letter of June 22, 1999, DJJ notified Petitioner of his ineligibility for continued employment and his right to request a departmental exemption hearing. Simultaneously, Cypress Creek Academy was notified that Petitioner was ineligible/disqualified from employment as a youth counselor and that he must be immediately removed from direct contact with juveniles. However, according to Petitioner's evidence presented at hearing, Petitioner only worked at Cypress Creek Academy from April 12, 1999, until June 3, 1999. (Petitioner's Exhibit 1). Also, the Academy's director was unable to assess Petitioner's performance fully, since he had worked there less than two months, but the director felt Petitioner would be an asset, and if exempted, that Petitioner would be eligible for rehire. (Petitioner's Exhibit 1). Petitioner timely requested an exemption, which was denied by DJJ. He then timely requested this disputed-fact hearing. The circumstances surrounding the June 3, 1994, incident giving rise to disqualification were described by Petitioner as follows: In 1994, Petitioner, who was barely 21 years old, was living with his 17-year-old girlfriend and her mother. He and the girlfriend got into a dispute and she kicked him in the stomach. He instinctively lashed out and hit her, even though intellectually, he knew it was wrong to hit a woman. Petitioner believed that his girlfriend also should have been criminally charged, but that did not happen. Petitioner claimed that although his girlfriend bailed him out of jail and wanted to drop the charges, his public defender made him plead guilty against his own better judgment. Petitioner maintained that his "instinctive" reaction to hit back was due to having been a battered child. His sister confirmed a dysfunctional and abusive family history. Petitioner's NCCI report does not reveal any criminal charges against Petitioner since 1994. Petitioner completed the Mens' Anger Program in Virginia as of June 26, 1996, pursuant to the Court's 1995 suspended sentence, by attending 22 out of 24 sessions. His only excuse for his delay in attending this program (see Finding of Fact 10, above) was that he was trying to straighten himself out. Petitioner testified that he has completed his probation in Virginia, but he presented no corroboration thereof, either from his probation officer or from any other Virginia authority. This defect in Petitioner's presentation is of concern because he has had nearly 10 months since the exemption process began in which to obtain these records, if they exist. Petitioner denied that he attempted to camouflage his prior criminal record from either Cypress Creek Academy or DJJ. He reasonably pointed-out that if he had been actively attempting to hide his prior criminal record when he signed the January 11, 1999, affidavit stating that he had no prior criminal record, he would not also have signed a consent to background screening on January 8, 1999 and on the same date disclosed the details of the assault on his ex-girlfriend to his potential employer, describing it as a misdemeanor. (Respondent's Composite Exhibit 1). I have weighed the fact that Petitioner is a high school graduate who has completed one year of college (Respondent's Exhibit 1) against his representation that he just did not read the good moral character affidavit he signed, and I have compared the lengthy and complex single-spaced disclosure forms involved, including the affidavit, which lists a variety of felonies by their Florida Statute numbers. I have also considered the detail of Petitioner's disclosure of the facts of the assault but mischaracterization of it as a "misdemeanor" rather than a felony. I accept that Petitioner's failure to disclose that his prior criminal history in Virginia was a disqualifying felony was careless and irresponsible rather than a deliberate attempt to conceal his criminal record from the employer and DJJ. On the other hand, his carelessness and lack of responsibility with regard to the affidavit/oath do not speak favorably for his current good character when it applies to a position of counseling young offenders. Since 1995, Petitioner has married and fathered a child. Since leaving Virginia, Petitioner has worked as a security guard in Reno, Nevada, dealing with cash, personal safety of casino patrons, and safety of patrons' vehicles. Currently, Petitioner is a regular church-goer and is working 52 hours a week to support his family. Petitioner's wife testified that he is non-violent toward her, even if she hits him; that he "scares me because he's so religious"; that she gets mad because he does so much for others; and that he is a "real caring person" and a "good father." Petitioner's sister testified to Petitioner's being entirely non-violent since he became a church-goer.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order denying Petitioner an exemption at this time and clearly stating therein upon what date it will consider a new application for exemption. DONE AND ENTERED this 30 day of May, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 30th day of May, 2000.
Findings Of Fact In July, 1992, the Department of Health and Rehabilitative Services (HRS) published notice soliciting proposals from interested attorneys to provide intrastate and interstate child support legal services HRS District VI. The services were to be provided from October 1, 1992, through June 30, 1993. (Exhibit #4). Within relevant deadlines, protests to the written specifications of the solicitation were filed by Petitioner, Donald W. Belveal, and others. HRS determined that material disputes of fact existed and the protests were referred to the Division of Administrative Hearings (DOAH) where the cases were consolidated and set for final hearing. (Exhibit #5) Hearing Officer, Veronica Donnelly, conducted the hearing and issued a recommended order on December 22, 1993, recommending that the specifications be rejected as flawed and that they be extensively revised. (Exhibit #5). Exceptions were filed, and upon a suggestion of mootness HRS entered a final order on March 17, 1993, dismissing the proceedings and finding further: No Final Order has been issued in this cause which granted any affirmative relief to Petitioners. Therefore, they are not a prevailing party, and are not entitled to attorney fees. The request for a determination of attorney fees is DENIED. The request to dismiss the department's exceptions to the Recommended Order is DENIED. (Exhibit #6) Donald Belveal appealed this final order to the Second District Court of Appeal. The full opinion of the court in Donald W. Belveal v. State of Florida, Department of Health and Rehabilitative Services, case no. 93-01121, dated February 25, 1994, provides: The law firm of Donald Belveal appeals a final agency order entered by the Florida Department of Health and Rehabilitative Services (HRS) which dismisses administrative proceedings and denied Belveal's motion for attorney's fees and costs under section 57.111(4), Florida Statutes (1991) on the ground that Belveal was not a prevailing party. We reverse. Belveal and other lawyers formally protested a bid solicitation package prepared by HRS to procure legal services for its child support program in Hillsborough County. The Department of Administrative Hearings (DOAH) held a formal hearing after which the hearing officer entered a recommended order that the package be revised, citing numerous improprieties. HRS filed excep- tions to the order. In addition, to prevent a lapse in services during the protest proceedings, HRS extended the existing contract for legal services to cover the remainder of the bid proposal period. Arguing that the extension nullified the bid solicitation and rendered the administrative contest moot, Belveal and the others filed a motion to dismiss the exceptions. They also asked that the case be remanded to DOAH for an award of attorney's fees and costs under the Florida Equal Access to Justice Act, section 57.111(4), Florida Statutes (1991). The deputy secretary for human services of HRS entered a "final order" which concluded that Belveal's motion to dismiss/suggestion of mootness was tantamount to a request that the proceedings be discontinued. The department dismissed the proceedings, denied the request to dismiss HRS's exceptions, and denied the request for attorney's fees stating, "[n]o final order has been issued in this cause which granted any affirmative relief to Petitioners. Therefore, they are not a prevailing party, and are not entitled to attorney fees." HRS exceeded its authority in entering this order. First, the dismissal of the action exceeded the scope of the motion to dismiss the exceptions. Second, the determination of whether Belveal was a prevailing party entitled to attorney's fees and costs was solely within the jurisdiction of the DOAH hearing officer. See Dep't. of Health and Rehabilitative Services v. S. G., 613 So. 2d 1380, 1384 n.1 (Fla. 1st DCA 1993). Because HRS denied the motion to dismiss the exceptions yet never ruled on the hearing officer's recommended order, we remand the case to HRS for further proceedings in accordance with section 120.57, Florida Statutes. Reversed; remanded. In addition, the appellate court issued its order granting fees in the appeal, "...provided that appellant is ultimately the prevailing party in the proceeding below." (Exhibit #2) HRS entered its corrected final order on June 22, 1994, finding the case to be moot with the exception of the attorney's fees issue, acknowledging that the agency is without jurisdiction to determine who is the prevailing party and entitled to fees, and dismissing the case. (Exhibit #4) It is undisputed that Donald Belveal is a small business party. (Respondent's proposed final order, paragraph 8). Donald Belveal claims total fees of $21,292.25, incurred in the administrative proceeding, which fees are based on 121.67 hours at an hourly rate of $175. He claims additional fees for the appeal. (Exhibit #3) As stipulated, the claimed fees are reasonable, but the award may not exceed $15,000. (Respondent's proposed final order, paragraph 9.)
The Issue Whether Petitioners are entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Stipulated Facts On or about May 14, 2007, the Department filed an Administrative Complaint alleging that Respondents in the merits case held themselves out as interior designers. On or about August 15, 2007, Braxton filed an Election of Rights requesting a formal hearing. On October 15, 2007, Braxton filed a Motion for Attorney’s Fees and Costs. On or about October 18, 2007, the Department filed a Motion to Dismiss Formal Hearing based on the parties’ agreement that the case would be resubmitted to the Probable Cause Panel with the recommendation of dismissal. On or about October 19, 2007, the Division of Administrative Hearings entered an Order Closing File. On or about November 5, 2007, the case was presented to the Probable Cause Panel and a Closing Order was entered. On or about December 18, 2007, a letter was sent to Braxton’s attorney indicating the matter was closed and no further action was required. However, the letter did not enclose a copy of the Probable Cause Panel Closing Order. On March 3, 2008, Braxton sent a letter to the Department’s counsel asking for a copy of “any final action taken by the Probable Cause Panel.” On or about March 7, 2008, a copy of the closing order was faxed to counsel for Braxton. On or about April 7, 2008, Braxton filed a Supplemental Motion of Attorney’s Fees and Costs. Facts Based Upon the Evidence of Record In the Motion and Supplemental Motion, Braxton seeks relief under the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes. There is no dispute that Braxton is a small business party for purposes of Subsection 57.111(4)(a), Florida Statutes. There is no dispute that Braxton is the prevailing party in the underlying merits case. There is no dispute that the fees and costs set forth in the April 7, 2008, affidavit filed with the Supplemental Motion for Attorney’s Fees and Costs are reasonable. The undersigned has reviewed the Supplemental Affidavit as to Attorney’s Fees and Costs filed on October 27, 2008, and the Second Supplemental Affidavit as to Attorney’s Fees and Costs filed on December 10, 2008, and finds the fees and costs contained therein to be reasonable. Dwight Chastain is an investigator for the Department and, while employed by a private law firm, investigates complaints concerning the Board of Architecture and Interior Design. In December 2006, Mr. Chastain received a complaint letter regarding Petitioner herein, Sheryl Lyn Braxton. The complaint letter was addressed to the law firm for which Mr. Chastain is employed. The letter alleged that Ms. Braxton represented herself to the public as an interior designer, and that the complainant could find no evidence that she held a license “specifically that of an interior designer as represented in attached CBS website, is held either by her personally or her company “Braxton Designs.” Attached to the complaint letter is a page purportedly from the website, CBS.com, specifically a link from the television show, “Big Brother 2.” Additionally, the complaint letter alleged that Ms. Braxton had verbally represented to "many individuals" that she had performed interior design work for Ivana and Donald Trump at the Plaza Hotel in Manhattan. While the letter contains a signature, it is impossible to decipher the writer’s last name, and Mr. Chastain considered the signature to be illegible. Further, the letter did not contain a return address or a telephone number. Because the writer’s name is illegible and there was no contact information in the letter, the complaint letter is essentially anonymous. The printed page attached to the complaint letter from the CBS website identifies a participant on the show as “Sheryl,” with no last name mentioned, from Ponte Vedre Beach, Florida. Under the heading “personal profile,” her occupation is listed as interior designer. The copyright date at the bottom of the page is “MMIII,” which is 2003, although Ms. Braxton participated in the Big Brother show in 2001. The name “Braxton Interiors” does not appear on the printout from the CBS website. Also attached to the complaint letter is a page purportedly from the myflorida.com website showing that Sheryl Lyn Braxton held a current real estate license and was employed by Florida Network LLC, a real estate corporation. Mr. Chastain could not decipher the signature on the letter and, therefore, did not attempt to contact the complainant. He did a fictitious name search of and did not find anything under the name of Braxton Designs, Braxton Designers or Sheryl Lyn Braxton. Mr. Chastain searched the Department's database and found that Sheryl Lyn Braxton was not licensed by the Board of Architecture and Interior Design. Mr. Chastain also went to the CBS website and found the page referencing “Sheryl” more fully described above in paragraph 18. There is nothing in the record to indicate that Mr. Chastain called CBS to seek any information which Ms. Braxton submitted to CBS about herself, i.e., whether she actually held herself out to be an interior designer to CBS. Mr. Chastain acknowledged at hearing that in his computer searches of Ms. Braxton’s name and “Braxton Designs,” he found nothing indicating that Ms. Braxton held herself out to anyone as an interior designer. There is nothing in the record to indicate that Mr. Chastain spoke to anyone who confirmed the allegations in the complaint letter that Ms. Braxton verbally held herself out to anyone that she was an interior designer. On January 5, 2007, Mr. Chastain wrote a letter to Ms. Braxton informing her that the Board of Architecture and Interior Design had initiated a complaint investigation as to allegations that she was using the title “interior designer," or words to that effect, without a valid license. The letter also informs her that “[y]ou have 20 days to respond in writing or you may contact me at (850) 402-1570. My email address is dwightc@stslaw.com.” Ms. Braxton called Mr. Chastain’s office and left two voice mail messages for him, neither of which he received. Regardless of the circumstances of Ms. Braxton’s response to the letter, Mr. Chastain proceeded with the belief that she had not responded to his letter.3/ Mr. Chastain wrote an Investigative Report which was provided to the Probable Cause Panel. The report read in pertinent part: Alleged Violation: FS481.223(1)(c) use of the name or title “interior designer”, or words to that effect, without a valid state license. Synopsis: This investigation was based on a consumer complaint in which it is alleged that subject appeared on the CBS television show Big Brother Show link, identifies her as an interior designer. Complainant alleges subject does business under the name Braxton Design and that she has verbally represented herself to “many individuals” that she has been involved in the interior design of many high-profile residential and commercial buildings. (Exhibit 1) Subject is not licensed as an interior designer in Florida, but is licensed as a real estate sales associate. Braxton design is not a registered corporation or fictitious name with the Florida Secretary of State. (Exhibit 2) Subject was notified of this investigation by letter dated January 5, 2007, but failed to respond. The letter was not returned undelivered. (Exhibit 3) Meeting of Probable Cause Panel The Probable Cause Panel met on May 14, 2007, during which the Braxton case was considered. The packet of materials which the panel members received regarding the Braxton case consists of a memorandum to the panel members from the prosecuting attorney regarding the case; another memorandum from the prosecuting attorney to someone named Emory Johnson regarding the case; a draft administrative complaint; a draft Notice and Order to Cease and Desist; the investigative report written by Mr. Chastain with three attachments: the complaint letter with the page from the CBS website and printout showing Ms. Braxton’s real estate licensure status; copies of licensing and corporate registration information found by Mr. Chastain; and the letter written by Mr. Chastain to Ms. Braxton notifying her of the complaint. The transcript of the Probable Cause Panel concerning the Braxton case reads as follows: MR. MINACCI: Tab A-6, Sheryl Lyn Braxton, Case Number 2007-000968. The subject is unlicensed and held herself out as an interior designer on the CBS television show “Big Brother.” The subject failed to respond to the investigation. Recommendation, notice of order to cease and desist, one count Administrative Complaint for using the title “interior designer” without a license. MR. WIRTZ: Motion to accept counsel’s recommendation for one count. THE CHAIR: Second. Discussion. Hearing none, all those in favor of the motion, signify by saying aye. (so signified by aye.) THE CHAIR: Opposed, like sign. (No response.) THE CHAIR: Hearing none, the motion carries unanimously. MR. WIRTZ: She’s a big star. She can afford 5,000 for the count plus costs. THE CHAIR: Second. Recommendation has been made and seconded. Discussion? Hearing none, all those in favor of the recommendation, signify by saying aye. (So signified by aye.) THE CHAIR: Opposed, like sign. (No response.) THE CHAIR: Hearing none, the recommendation carries. MR. HALL: Shall we send a copy of the complaint to CBS? THE CHAIR: If you would like to. THE [sic] HALL: We certainly can. MR. Wirtz: I think we should. An Administrative Complaint was filed against Sheryl Lyn Braxton and Braxton Designers with the Department’s clerk on May 21, 2007, which began the underlying merits case.
The Issue Whether Petitioner, as a prevailing small business party in an adjudicatory proceeding initiated by a state agency, should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Subsection 57.111(4)(a), Florida Statutes, in these two cases.
Findings Of Fact As to Both Cases Petitioner, Larry D. Thomas, M.D., is a licensed physician in the State of Florida, having been issued license number ME 036360. Respondent, Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine, pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. This matter was filed pursuant to Section 57.111, Florida Statutes. The actions in AHCA Case Nos. 1994-12341 and 1999-57795 were initiated by the Agency, an agent for the Department of Health, a state agency, and neither the Agency nor the Department of Health was a nominal party to the underlying actions. The attorney's fees sought by Petitioner are reasonable in the amount up to $15,000 for each case, and the statutory cap of $15,000 applies to each case separately. Petitioner prevailed in the underlying action, and there are no special circumstances that exist that would make an award of attorney's fees and costs unjust in these cases. Petitioner is a small business party within the meaning of Section 57.111, Florida Statutes, because he is a sole proprietor of an unincorporated professional practice, whose principal office is in this state, who is domiciled in this state, whose professional practice is in this state, and whose professional practice had, at the time the action was initiated by the state agency, not more than 25 full-time employees or did not have a net worth of more than $2 million, including both personal and business investments. As to Case No. 02-4843F In 1994, pursuant to Section 455.225, Florida Statutes (currently renumbered as Section 456.073, Florida Statutes), Petitioner was notified of the investigation by the Agency and invited to submit a response to the allegations. Petitioner, through his attorney, submitted a detailed response to the allegations, which included an expert opinion by William Yahr, M.D., and medical literature that discussed the risks of the procedure at issue in the case. The expert opinion of Dr. Yahr stated that Petitioner did not fall below the standard of care in this case and that the patient died of a predictable complication of the procedure at issue in the case. The Administrative Complaint in the underlying case, DOAH Case No. 01-4406PL (AHCA Case No. 1994-12341), was filed on May 10, 1999, against Petitioner. The complaint alleged that Petitioner had violated Subsection 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; by failing to treat Patient D.J.P.'s preoperative coagulopathy; and by failing to use an alternate vein that would have allowed visualization of the shunt placement, thereby reducing the risk of causing hemorrhage given the patient's preoperative history. As required by statute, the probable cause panel that considered this matter was composed of two physicians, who were or are Board of Medicine members, and a consumer member of the Board of Medicine. Present at the May 5, 1999, meeting of the South Probable Cause Panel of the Board of Medicine (Panel) were Panel members Margaret Skinner, M.D., Chairperson of the Panel; John Glasgoe, M.D.; and Becky Tierney. Also present at the meeting were Allen R. Grossman, Acting Board Counsel; Randy Collette, Senior Attorney for the Agency; Jim Cooksey of Agency Investigations; Larry McPherson, Senior Attorney for the Agency; and Susan Drake, M.D., Medical Consultant for the Agency. Prior to the May 5, 1999, meeting, the members of the Panel received and reviewed the Agency's entire investigative file, including Petitioner's response and Dr. Yahr's opinion, and the expert opinions of Henry Black, M.D., and John Kilkenny, III, M.D. The expert opinions available to the Panel were those completed in 1997 and 1999, respectively. Dr. Black opined that Petitioner met the standard of care in the case, but admitted that he did not perform the procedure at issue in the case; Dr. Kilkenny, who did perform the procedure at issue in the case, opined that Petitioner failed to meet the standard of care in the case; and Dr. Yahr opined in 1994 that there was no evidence that Petitioner failed to meet the standard of care in the case, but did not state whether he performed the procedure at issue in the case. In addition, the Panel had access to the written response to the investigation prepared by counsel on behalf of Petitioner, which was submitted on October 13, 1994. Prior to consideration of the case, Mr. Grossman advised the Panel that any questions concerning interpretation of the law or rules, or what the Panel's duties were, should be directed to him. Mr. Grossman also advised the Panel that any questions they had regarding the materials that they received, the recommendations that had been made, or the investigation that had been conducted should be directed to Mr. Collette, as the attorney for the Agency. Mr. Collette then gave a summary of the complaint to the Panel members and recommended that an Administrative Complaint be filed in the case. The Panel discussed the complaint very briefly, asked no questions, and voted for a finding of probable cause for alleged violations of Subsection 458.331(1)(t), Florida Statutes. The record in the underlying case does not demonstrate why there was an inordinate delay between the completion of the Agency's investigation in October 1994 and the Agency's retention of Dr. Black in 1997; why Dr. Kilkenny was retained in 1999 after Dr. Black had given his opinion on August 4, 1997, that there was no deviation from the standard of care by Petitioner; nor why Dr. Yahr's opinion was not given any consideration. While Dr. Black may not have had the appropriate qualifications to render an expert opinion in the case, both Dr. Kilkenny and Dr. Yahr did have sufficient qualifications to render an expert opinion in this matter. Further, there was no assertion by the prosecuting authority that any of the fact witnesses needed to prove this case were even available after five years of delay. Nor did the counsel for the Panel bring any special attention to the Panel members in regard to the possible proof problems with this case caused by the inordinate delay in bringing the case before the Panel. Finally, no explanation has been given for the delay in forwarding the Administrative Complaint, issued on May 10, 1999, to the Division of Administrative Hearings until October 15, 2001. As to Case No. 02-4844F The Administrative Complaint in the underlying case, DOAH Case No. 01-4407PL (AHCA Case No. 1999-57795) was filed on June 13, 2001, against Petitioner. The complaint alleged that Petitioner had violated Subsection 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances; by failing to adequately monitor Patient H.H. post-operatively given Patient H.H.'s high risk for distal emboli and/or due to evidence of tissue ischemia; by failing to clamp the arteries distally prior to manipulation of the aneurysm; and/or by failing to take adequate steps to prevent emboli, such as ensuring periodic monitoring of the patient's condition post-operatively for evidence of ischemia or other problems. Pursuant to Section 455.225, Florida Statutes (now at 456.073, Florida Statutes), Petitioner was notified of the investigation by Respondent by letter dated November 12, 1999, and invited to submit a response to the allegations. Petitioner, through his attorney, submitted a detailed response to the allegations, denying that he violated the standard of care. The Investigative Report was issued on February 11, 2000. The probable cause panel that considered this matter met on June 8, 2001, and was composed of two physicians, who were or are Board of Medicine members, and a consumer member of the Board of Medicine, as required by statute. However, the consumer member of the Panel was unavailable to attend the Panel meeting that day. Present at the June 8, 2001, meeting of the Panel were Panel members Fued Ashkar, M.D., Chairperson of the Panel, and Gustavo Leon, M.D. Also present at the meeting were Lee Ann Gustafson, Acting Board Counsel, and Randy Collette, Senior Attorney for the Agency. Prior to the probable cause meeting, the members of the Panel received and reviewed what was purported to be the Agency's complete investigative file, including Petitioner's response, and the expert opinion of James Dennis, M.D. The expert opinion available to the Panel was that of James Dennis, M.D., a board-certified vascular surgeon, who performed the procedure at issue in the case. Dr. Dennis opined that Petitioner failed to meet the standard of care in the case. Prior to consideration of the case, Ms. Gustafson advised the Panel that any questions concerning interpretation of the law or rules, or what the Panel's duties were, should be directed to her. Ms. Gustafson also advised the Panel that any questions they had regarding the materials that they received, the recommendations that have been made, or the investigation that has been conducted should be direct to Mr. Collette, as the attorney for the Agency. Mr. Collette then gave a summary of the complaint to the Panel members and recommended that an Administrative Complaint be filed in the case. The Panel voted for a finding of probable cause for alleged violations of Subsection 458.331(1)(t), Florida Statutes. Following the filing of the Administrative Complaint, Petitioner timely filed a request for a formal hearing. After probable cause was found in the underlying case, the matter was referred to the Division of Administrative Hearings, and shortly before the date of the scheduled formal hearing, the attorneys for Petitioner and Respondent discovered that Respondent's expert, Dr. Dennis had been retained by Petitioner's former attorneys, after probable cause had been found, to give an opinion on behalf of Petitioner in the underlying case. This resulted in the disqualification of Dr. Dennis' opinion. The formal hearing was continued, and Respondent retained another expert, Kenneth Begelman, M.D. He opined that Petitioner fell below the standard of care in the case, and his testimony was used at the formal hearing. No reference to the opinion of Dr. Dennis was made or used at the formal hearing. Dr. Begelman's opinion was also not available to the Panel at the time that probable cause was found against Petitioner, nor did Respondent seek to return jurisdiction to the Panel for their reconsideration. Any objection to this procedure was waived by the parties. At the formal hearing, a CT Scan of the patient in question and missing nurses' notes relating to Petitioner's postoperative monitoring were introduced into evidence. Upon review of this new evidence and under cross- examination, Respondent's expert, Dr. Begelman, could not conclusively determine whether Petitioner's surgical and post- surgical treatment of Patient H.H. fell below the standard of care. However, it is clear from the record in the underlying case that the evidence regarding Petitioner's performance of the procedure at issue in the case, as well as his postoperative care of the patient, was in dispute. The expert opinion of Dr. Dennis and Petitioner's response highlight this fact. The events involving Dr. Dennis, which occurred after the finding of probable cause by the Panel, and Respondent's subsequent use of Dr. Begelman at the formal hearing are not relevant to the determination of whether Respondent was substantially justified in finding probable cause against Petitioner in the underlying case. And, while the underlying case was ultimately resolved in Petitioner's favor, there were disputes of fact in this case and the Agency and Respondent clearly were substantially justified to go forward with the underlying action. Therefore, Petitioner is not entitled to an award of attorney's fees and costs, as to DOAH Case No. 02-4844F.
Findings Of Fact Petitioner is seeking attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code. This matter relates to the administrative proceeding in Division of Administrative Hearings Case No. 94-2941. Respondent, a state agency, initiated the underlying cases, ACHA Case Nos. 90-08689 and 90-08804. Respondent was more than a nominal party in these cases. The attorney's fees that Petitioner seeks are reasonable in amount. The statutory cap of $15,000.00 applies. Petitioner did not employ more than 25 full-time employees. His net worth did not exceed $2,000,000 at the time Respondent initiated the underlying action. Respondent initiated state action against Leonard E. Masters, M.D. in his individual capacity. Respondent did not initiate state action against Petitioner's professional corporation, L. E. Masters, M.D., P.A. Therefore, Petitioner is entitled to an award of attorney's fees and cost only if he was employed as a sole proprietor of a professional practice in 1993 when Respondent initiated the underlying action. Petitioner is a licensed physician who has practiced as a sole proprietor of a unincorporated professional association since 1961. For tax year 1993, Petitioner filed a Schedule C, Profit or Loss from Business, with his federal joint income tax return. As reflected in that return, Petitioner earned a substantial portion of his 1993 income as a sole proprietor of a professional practice. L. E. Masters, M.D., P.A., is an active professional corporation organized under the laws of the State of Florida on December 17, 1992. However, there is no evidence that Petitioner earned any income or business profit as an employee of his professional corporation in 1993. The mere existence of this corporation does not preclude Petitioner from practicing medicine as a sole proprietor of an unincorporated professional association. During discovery, Respondent requested that Petitioner furnish the name and address of his alleged sole proprietorship of an unincorporated business from 1990 through the present. Petitioner answered this inquiry as follows: L. E. Masters, M.D., P.A. since 1961 North Beaches Family Practice 100 Royal Palm Drive Atlantic Beach, Florida Petitioner's professional corporation was not created until 1992. This answer is not persuasive evidence that Petitioner worked solely as an employee of his professional corporation in 1993. The greater weight of the evidence indicates that, at all times relevant hereto, Petitioner was a "small business party" as defined in Section 57.111, Florida Statutes. Prior to the Probable Cause Panel meeting of December 7, 1993, Respondent forwarded to the panel members the entire investigative file, including all applicable medical records, and the written opinions of experts Neville Marks, M.D., and Reynold Stein, M.D. Each Panel member received and reviewed the materials prior to the Probable Cause Panel meeting. Present at the December 7, 1993 Probable Cause Panel meeting were panel members Robert Katims, M.D., Chairman of the Panel, and Martin Fenwick, M.D. Also present were Allen Grossman, Assistant Attorney General and counsel for the Board of Medicine's Probable Cause Panel and Fred Whitson, Senior Attorney for the agency. Prior to the consideration of any cases, Mr. Grossman advised the panel members that any questions concerning the interpretation of the law or rules, or what the panel's duties were, should be directed to him. Mr. Grossman also advised the panel that questions about the facts of the case, or the agency's recommendation should be directed to Mr. Whitson. Mr. Whitson proceeded to discuss the specific facts of the case. He reviewed the medical history of the four alleged victims described in the proposed Administrative Complaint. The panel voted unanimously to find that probable cause existed to charge Petitioner with violating Section 458.331(l)(t), Florida Statutes, as set forth in the proposed Administrative Complaint. The panel documented its finding of probable cause in a memorandum signed by the Chairman of the Panel. During the probable cause proceeding, the panel considered the reports of two medical experts which support the allegations in the Administrative Complaint. One of those experts, like Petitioner, was a board certified family practice physician. The other was a psychiatrist. Both had experience in treating chemical dependency in adults. Both of Respondent's medical experts opined that Petitioner's treatment of four patients for chronic pain fell below the applicable standard of care. These opinions concluded that each patient had complicated medical, psychological, and/or chemical dependancy problems. The experts were especially critical of Petitioner's attempt to diagnose, treat, and manage the chronic pain of the patients with narcotic drugs but without the benefit of consultations with a psychiatrist or a chemical dependency specialist (addictionologist). Respondent was substantially justified in relying on the opinions of these experts, the patient's medical records and investigative reports to support the allegations in the Administrative Complaint even though they did not prove to be persuasive at hearing. After the formal hearing in the underlying case, the greater weight of the evidence indicated that Petitioner did not violate the applicable standard of care in his treatment of the four patients. This conclusion was reached after consideration of all the testimony and evidence presented at hearing. It did not mean that Respondent lacked a reasonable basis in law and fact for alleging that Petitioner violated Section 458.331(1)(t), Florida Statutes.
Conclusions Ms. Jackson had a legal duty to yield the right-of-way to Claimant. Because Ms. Jackson was acting in the course and scope of her employment at the time of the crash, the Department shared that duty. Ms. Jackson breached the duty by turning in front of Claimant's vehicle and the breach was the proximate cause of the collision and the injuries to Claimant that resulted from the collision. Whether Ms. Jackson was impaired by drugs at the time of the crash was not an issue presented in the trial court because liability was admitted by the Department. I conclude that whether Ms. Jackson was impaired by prescription or other drugs at the time of the crash is also irrelevant in this claim bill proceeding and, even if it were relevant, the evidence is insufficient to make a finding on that issue. I am persuaded that Claimant was not dishonest in her application for Social Security disability benefits and, therefore, there is no basis to doubt her credibility regarding the injuries she suffered in the crash. However, I believe the jury award is too high in the context of this claim bill, even when Claimant's unique situation with muscular dystrophy is taken into account. Claimant's counsel argued before the trial court that the law in Florida is that a jury verdict should not be disturbed by the court unless "it is so inordinately large as obviously to exceed the maximum reasonable range within which the jury may reasonably operate," citing Kaine v. Government Employees Insurance Company, 735 So. 2d 599 (Fla. 3d DCA 1999). He also emphasized that it was not the role of the judge to "assume the role of the seventh juror." However, that law is applicable to a trial judge's review of a jury award on a defendant's motion to reject or reduce the award. This claim bill process, on the other hand, involves a de novo proceeding in which I am rightfully assuming the role of a new jury. Furthermore, the payment of a claim bill is a matter of legislative grace and the Senate, unlike the trial court judge, is free to deviate from the jury award. It is reasonable for the Senate, in determining whether to pay a claim in excess of the sovereign immunity cap, to consider whether the jury award deviates substantially above or below the usual award for similar injuries. Claimant's attorney presented a number of examples of jury awards in excess of $5 million, but almost all of the cases involved paraplegia or amputation. There might be cases involving severe leg fractures, like the one suffered by Claimant, in which the jury awarded $5 million or more to the plaintiff. However, while no calculation was attempted by the parties or by me to determine the average or median jury award in cases involving severe leg fractures, using the legal reference books that compile and discuss jury verdicts, it appears that the vast majority of jury awards for severe fractures are significantly less than $5 million and closer to $1 million. Claimant made much of her determination before the 1999 crash to not let her muscular dystrophy prevent her from enjoying life fully. If Claimant dedicates herself just as enthusiastically to making the most of her present physical predicament as she did in the past, I believe her future quality of life can be much better than the one she predicted for herself at the claim bill hearing. Although Claimant deserves to be compensated for the injuries she suffered through the negligence of the Department's employee, I think a more reasonable award, taking into account the more common jury awards for severe limb fractures and the special circumstance of Claimant's muscular dystrophy, would be $3,000,000. ATTORNEY’S FEES AND LOBBYIST’S FEES: Claimant's attorneys agree to limit their fees to 25 percent of any amount awarded by the Legislature as required by s. 768.28(8), F.S. They object to the provision of the bill that limits attorney’ fees, lobbying fees, and costs to 25 percent of the award. Claimant’s attorneys report costs of $51,866. They propose a lobbyist's fee that would be an additional 6 percent of the award. The Florida Supreme Court held in Gamble v. Wells, 450 So. 2d 850 (1984) that the Legislature allows compensation pursuant to a claim bill “as a matter of grace” and it can determine the conditions to be placed on the appropriation. The Court specifically held that parties cannot enter into contracts, such as fee agreements, that bind the state in the exercise of its sovereign immunity. LEGISLATIVE HISTORY: Claim bills for Laura Laporte were first filed in the 2003 Session and have been filed in each session thereafter. A hearing was held before a Senate Special Master in 2002, but no report was issued. RECOMMENDATIONS: The claim bill should be amended to reduce the claim to $3,000,000. For the reasons set forth above, I recommend that Senate Bill 34 (2008) be reported FAVORABLY, as amended. Respectfully submitted, cc: Senator Al Lawson Representative Stan Mayfield Faye Blanton, Secretary of the Senate Bram D. E. Canter Senate Special Master House Committee on Constitution and Civil Law Michael Kliner, House Special Master Counsel of Record
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings: Petitioner, Keith Haynes, M.D., is a resident and licensed physician in Florida. Respondent, Department of Professional Regulation, is the state agency charged with the regulation of the practice of medicine. Petitioner was the subject of a disciplinary action initiated by Respondent, in that he was charged, on August 26, 1987, with violating Sections 458.331(1)(j), (t), (q), (m) and (p), Florida Statutes. Respondent was not a nominal party in these proceedings. Petitioner is a prevailing small business party within the meaning of Section 57.111(3)(c), Florida Statutes, as evidenced by the fact that Respondent took a voluntary dismissal of the action initiated against Petitioner, without prejudice, on March 8, 1988. The Attorney's fees and costs which Petitioner seeks in the amount of $12,315.28 are reasonable. (Petitioner's Exhibit 2: Prehearing Stipulation, B- 4.) In January of 1984, an attorney that had been consulted about filing a civil suit against Petitioner filed a complaint with the Respondent against Petitioner on behalf of one of his patients, M.C. The complaint alleged that Petitioner engaged in homosexual relations with M.C. while he was a minor and who was being treated by Petitioner for psychiatric problems. On May 10, 1984, the case was considered by a probable cause panel of Respondent. The panel found no probable cause because M.C. would not cooperate with the investigation and all other supporting information had been obtained through the complainant. On June 15, 1984, M.C. died a suicide. On the basis of another physician's complaint, a new case against Petitioner (DPR Case No. 0058849) was opened in 1987 referencing the same allegations of sexual conduct as the original (1984) complaint. The investigative report of the 1987 case contained the same material as had been compiled in the other (1984) case, plus additional sworn statements, two depositions from the civil case and medical records from various practitioners. On August 21, 1987, the case was again presented to the probable cause panel of the Board of Medicine. Present on the panel were Dr. Joseph O'Bryan, chairman and Ms. Sylvia Shorstein. Ms. Lannon, an attorney for the Board of Medicine was also present. Four members of Respondent's staff were present, legal counsels Brookmeyer and Lamb, Ms. Lammert, a paralegal specialist and Christy Dietert, an investigator. Prior to the probable cause meeting, the investigative report including exhibits and a proposed document recommending the Department's position, were mailed to Dr. O'Bryan and Ms. Lannon on August 3, 1987 and to Ms. Shorstein on August 6, 1987. Prior to considering the charges filed against Petitioner, Respondent's representatives advised the panel of the procedures for directing inquiries or questions relative to their duties as panel members, interpretations of law or other inquiries concerning the investigation or the recommendation of probable cause to the Respondent. The probable cause panel members received the material in sufficient time to review the investigative report and the supporting documentation prior to consideration. The panel members, in fact, reviewed the materials prior to the panel meeting. After a discussion of the underlying charges, Dr. O'Bryan questioned paragraph 4 of the proposed Administrative Complaint relating to the alleged improper touching and inappropriate sexual contact outside the normal course of the treatment of a patient. Dr. O'Bryan was curious as to how this could be done within the normal and usual course of a physician's professional practice, whereupon Mrs. Brookmeyer explained to him how it would be appropriate in some instances for a physician to place "hands on" the genital area of a patient for certain diagnosis. Following that discussion, the panel members voted and recommended that probable cause be found with the further suggestion that paragraph 4 of the proposed Administrative Complaint be revised in keeping with their discussion. The panel recommended that Petitioner be charged, in a five-count Administrative Complaint, with violating Section 458.331(1)(j), by exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity; violating Section 458.331(1)(t), by failing to practice medicine with an acceptable level of care, skill, and treatment; violating Section 458.331(1)(q), by prescribing, mixing, administering, or otherwise preparing a legend drug or controlled substance, other than in the course of a physician's professional practice; violating Section 458.331(1)(m), by failing to keep written medical records justifying the course of treatment; and violating Section 458.331(1)(p), by performing unauthorized professional services. Additionally, Dr. O'Bryan demonstrated his familiarity with the investigative report by suggesting that another named physician, whose statements were a part of the investigative report, be investigated for not reporting his knowledge of the alleged incidents to the Board for consideration of whether disciplinary action was warranted based on Petitioner's acts and/or conduct. The Administrative Complaint, as revised by the probable cause panel's suggestion, was filed on August 26, 1987. Julie Gallagher, the contract attorney who was assigned to prosecute the case for Respondent, while preparing the case for trial, discovered numerous prosecutorial problems based on her review of the witness statements and the hurdles that she would face getting such statements into evidence since M.C. died a suicide and therefore could not testify. Another witness who was expected to testify concerning Petitioner's incriminating admissions became uncooperative and Ms. Gallagher perceived other impediments that the defense would raise and issues that she would face to successfully prosecute Petitioner based on the Administrative Complaint. Based on this concern, Ms. Gallagher brought those matters to the attention of Ms. Stephanie Daniel, chief medical attorney at the Department of Professional Regulation. Following Ms. Gallagher's delineation of the issues that she had with continued prosecution of DPR Case No. 0058849, Ms. Gallagher advised Ms. Daniel she should carefully review the evidentiary issues presented which she would face as prosecutor. Ms. Gallagher suggested that additional investigation was warranted and/or additional research was necessary respecting the evidentiary issues. Ms. Gallagher cautioned Respondent that that investigation would be better conducted in-house, rather than doing so at her contract rate. However, she left that decision to Ms. Daniel as to how she cared to proceed. Ms. Daniel, after consideration, retrieved the file from Ms. Gallagher. On February 18, 1989, the matter was again, at Ms. Daniel's instruction, presented to the probable cause panel of the Board of Medicine, and after extensive discussion of the evidentiary issues, the panel voted to close the case, citing the evidentiary problems raised by Ms. Gallagher. (Petitioner's Exhibit 14.) On April 17, 1989, Petitioner filed his Petition for Attorney's Fees and Costs.
Findings Of Fact Luis Arias, M. D. was, at all times material to this proceeding, a licensed physician in Florida. Similarly, Martin Belle, M. D. was, at all times material to this proceeding, a licensed physician in Florida. Doctors Arias and Belle maintained their practices in Dade County and practiced from the same office, Suite 300, 1444 Biscayne Boulevard, Miami, Florida 33132. The Department of Professional Regulation performs a computerized review of prescriptions written by Florida physicians for Schedule II drugs (this is know as the EPSON survey) to identify physicians who may be engaging in inappropriate practices in prescribing those drugs. If a questionable pattern is detected by the program, it identifies the drug, prescribing physician, the patient, the pharmacy at which the prescription was filled, and the date of the prescription. The survey revealed that patient R. F. had received prescriptions for 400 tablets of Dexedrine and 200 tablets of Seconal written by Dr. Belle during the period from June 13 to August 30, 1985, and one prescription each for 100 tablets of Dexedrine and Seconal written by Dr. Arias during that period. At the time of the investigation R. F. was an eighty-year-old man. Since 1945 he was treated for lack of energy by New York physicians with Dexedrine during the day and Secanol at night to help him sleep. He began to see Dr. Arias in 1970, and Dr. Bell in 1983. R. F. had tried to cut down his use of Dexedrine in 1986, but found he was mentally slow and foggy without it, and unable to perform his work as a marketing director for a large Miami real estate agency. For a man of his age, R. F. was remarkably active. A pharmacy consultant, Lee Pat Strickland, reviewed the EPSON printout and requested further investigation to determine whether Doctors Arias or Belle were inappropriately prescribing excessive quantities of Scheduled II drugs for R. F by filing a complaint with the Department. The information from Mr. Strickland was provided to Medical Quality Assurance Investigator Albert Rourke on March 27, 1986. Upon investigation, Mr. Rourke found another prescription for 100 tablets of Seconal written by Dr. Arias for the patient during the period at issue, June 16 through August 30, 1985. These nine prescriptions provided the patient 500 tablets of Dexedrine and 400 tablets of Seconal within 75 days. Mr. Rourke notified Doctors Arias and Belle of the investigation and interviewed them separately at their offices on April 10, 1986. Both doctors were cooperative during investigation. The patient, R. F., was not interviewed. The Department believes that patients who receive large quantities of drugs often are addicted to them and will not cooperate in an investigation, because it could lead to a cut-off of their source of drugs. While this explains why R. F. was not interviewed, there was no evidence that the patient was, in fact, addicted to either drug. The investigator was merely following a more generalized departmental procedure. The Department thereafter subpoenaed the medical records of patient R. F. This was done without the knowledge or consent of the patient, but by statute such knowledge or consent is unnecessary. After receipt, the medical records were sent to a consulting physician, Dr. John V. Handwerker, who had been used over a long period of time by the Department to review patient records. Dr. Handwerker has a reputation among members of the Bar who defend license disciplinary matters as a tough consultant who commonly made recommendations for the prosecution of physicians under investigation. Dr. Handwerker also had a reputation for being fair, and would not review a case if he felt that he could not be fair. His opinions often were accepted by probable cause panels of the Board of Medicine in determining whether or not to prosecute a physician. Dr. Handwerker received the sealed medical records of R. F. from Investigator Rourke on May 27, 1986. Dr. Handwerker indicated that he knew who Dr. Arias and Belle were, but this would not color his opinion when he reviewed R. F.'s records. The office records for R. F. were contained in a single chart which both Doctors Arias and Belle used at their office. Dr. Handwerker wrote a brief report for the Board of Medicine on June 2, 1986, which consist of three one sentence paragraphs. He determined that the administration of Dexedrine in the quantities prescribed by the doctors were justified but did not explain his reasoning. He gave no opinion as to the appropriateness of prescribing the Seconal, either alone, or in combination with the Dexedrine. Dr. Handwerker did state that he had known Doctors Arias and Belle "personally and professionally for a number of years and their reputations are impeccable." The brief report crosses the line from the tolerably terse to the intolerably mute because it provides a conclusion but no analysis. The Department's investigative files for Doctors Arias and Belle were sent to members of the probable cause panel of the Board of Medicine on July 7, 1986. The files contained the EPSON survey materials, copies of the prescriptions, copies of the medical records for R. F., the statements of Doctors Arias and Belle taken by Investigator Rourke, Dr. Handwerker's opinion, and a recommendation from the Department of Professional Regulation that the matter be dropped. The cases were considered by a probable cause panel of the Board composed of Dr. Emilio Echevarria, the Board chairman, and Mr. Roger Lutz, an attorney, on July 17, 1986. The panel members were assisted by counsel to the panel, Assistant Attorney General Catherine Lannon, and the case was presented by attorneys for the Department, Stephanie Daniel and Bruce Lamb. Department's prosecutors recommended that a closing order be entered and the investigation closed, and they submitted proposed closing order to the panel. Probable cause panels commonly accept a prosecutor's recommendation of no probable cause, and issue closing orders in 80 to 85% of such cases. That did not happen here. Before the discussion on all the cases under consideration that day began, Ms. Lannon cautioned the panel members that any questions concerning applicable laws, rules, or the duties of the panel should be directed to her, and any questions concerning the facts of the case or investigation should be directed to the prosecuting attorneys for the Department, that if any documents were defective copies would be provided, and if clear copies were unavailable the case could be passed until the panel members were provided with everything they needed to consider. She also asked both panel members if they had received the materials in time to review them before the meeting and both Doctor Echevania and Mr. Lutz said that they had. The panel first considered the case of Dr. Arias, and Mr. Lutz stated MR. LUTZ: I tell you what I thought on that one. The consultant says he's a good friend of this guy. It looks like to me we need an independent consultant before we can close it. We'll probably end up closing it, but I don't like closing it based on the guy saying he's my long and personal friend. He's supposed to be a consultant that knows what he's doing, too, we've had him [before?]. I hope you all don't pay him, for God sake, he shouldn't take a job being a consultant on his pal. DR. ECHEVANIA: So what are you suggesting? MR. LUTZ: Get another consultant. I'm sure we're going to close it but it just looks bad. (Joint exhibit 2, page 6.) When the panel later considered the case of Dr. Belle, Mr. Lutz recognized it as a companion case to that of Dr. Arias and requested that a new expert also review that case. There was no evidence from which Mr. Lutz reasonably could have concluded that Dr. Handwerker was a good friend of either Dr. Arias or Dr. Belle. All that the report of Dr. Handwerker suggests is that he had been acquainted with them. As the Hearing Officer found in the underlying case, Doctors Arias and Belle did not know Dr. Handwerker except on a casual basis, they would say hello while passing in the halls of Mercy Hospital where they practiced, but they did not socialize with each other or refer patients to one another. The probable cause panel of the Board did not request that staff inquire of Dr. Handwerker what he meant in his letter when he wrote that he had both personal and professional knowledge of Drs. Arias and Belle. The Department did not independently undertake to make that determination during the nine months intervening before the next meeting of the probable cause panel at which the cases of Doctors Arias and Belle were reconsidered. Ultimately, however, these cases did prompt a change in Department policy, so that the reviewing physician-consultant would be asked, before giving an opinion, whether the consultant was acquainted with the doctor whose conduct was under review, and if so, how well. In fairness and logic that same inquiry should have been made of Dr. Handwerker. Although this is, to some extent, second guessing both the members of the probable cause panel, and the investigative staff of the Department, such an inquiry would have been consistent with the Department policy ultimately adopted. The policy should have been followed in this instance. The transcript of the probable cause panel meeting on July 17, 1986, does not disclose any discussion or analysis of the patient's medical records upon which Dr. Handwerker determined that there was no violation of the Medical Practice Act. The panel members focussed only on Dr. Handwerker's disclosure that he was acquainted with Doctors Arias and Belle. The medical records which had been subpoenaed and all materials reviewed by Dr. Handwerker were then sent to Dr. Laurence Neufeld of Tampa, Florida, on December 3, 1986. Dr. Neufeld is not a specialist, he is engaged in family practice. Dr. Neufeld was never told that the cases had been previously been to a probable cause panel, nor did he know of Dr. Handwerker's opinion. The three page opinion written by Dr. Neufeld on January 25, 1987, is internally inconsistent. It states that the medical records for patient R. F. "support the use of longterm Seconal for sleep in this patient," but also that the prescription of Seconal was inappropriate. (Portions of his report are set out below.) Dr. Neufeld also relied, in his opinion, on the statements which the investigator attributed to Doctors Arias and Belle that the patient "had been treated for severe depression for the prior twenty years and was given Dexedrine to relieve his symptoms." I find that Doctors Arias and Belle never made such a statement to Mr. Rourke. The Investigator must have misunderstood something the doctors said. The patient was never severely depressed. Dr. Neufeld also claims to have found, from the medical records, that the patient "developed hypertension while being treated with Dexedrine." The patient was not hypertensive. The report goes on to state: When [the patient] developed hypertension, the Dexedrine and other stimulants should have been discontinued. The patient should have been referred to a psychiatrist for further evaluation and treatment of his depression. Dexedrine should be used very cautiously in an elderly patient and should not be used in order to control symptoms of fatigue. I do not feel that they adequately tried to use therapeutic doses of antidepressants to control the patient's depression. The patient appeared to be extremely manipulative and the doctors continued to prescribe Dexedrine and Seconal to this patient. It appears that the patient is addicted to Dexedrine and Seconal. The Dexedrine in large doses is more likely to cause fatigue and mental depression. * * * I do not feel that the use of Seconal on a longterm basis is in the best interest of the patient. It is addicting and tolerance rapidly develops to this medication. Both Doctors Belle and Arias prescribed controlled substances to the above patient in excessive and inappropriate amounts. The new probable cause panel met on April 27, 1987, who was made up on Dr. Joseph O'Bryan, Board Chairman, Dr. Armando Santelices and a lay member, Ms. Ernestine Cooper. Also present were counsel for the Board of Medicine, Catherine Lannon, and a new prosecutor for the Department of Professional Regulation, Leslie Brookmeyer. Ms. Lannon again reminded the new panel that questions concerning their legal duties and responsibilities, or the laws and rules that might apply should be directed to her but that questions concerning the facts of the case, or why a certain recommendation was made should be directed to the Department prosecutor. Ms. Lannon also cautioned members to discuss each case in sufficient detail to show that they were exercising independent judgment in reaching their decision on whether to find probable cause to prosecute the case. There was specific discussion of the reasons why the members found probable cause. The panel found Dr. Neufeld's opinion letter persuasive. THE CHAIRMAN: A-2 is two physicians. Dr. Luis Arias, 0068951, and Dr. Arias was allegedly inappropriately prescribing controlled substances, including Dexedrine and Seconal and did not properly refer a patient who was probably depressed. There was some disagreement among the consultants, but I favored the consultant who agreed they (sic) were enough allegations to advise an Admini- strative Complaint and I agree. MS. COOPER: Cooper, and I agree also. I read the report. THE CHAIRMAN: Dr. Santelices? DR. SANTELICES: I just have a question before I say whether I agree or not. Was Dr. Handwerker, Jr.'s letter requested by us? THE CHAIRMAN: Yes, he (sic) one of our experts. MS. BROOKMEYER: He's on of our experts. Yes. You're referring to the fact that there's not a letter requesting his evalua- tion? DR. SANTELICES: Well, the thing is this -- MS. BROOKMEYER: He's basically saying they're friends of mine and I know them. DR. SANTELICES: And it says that they're justified, that the administration is justi- fied. So if it was requested by us we have a consultant who is telling us that it was justified. If it wasn't requested by us it just means the other doctor had a friend write a letter on his behalf. MS. BROOKMEYER: No. I'm pretty sure he was requested by Mr. Wood (phonetic) to write the letter, but the fact that he stated that he had known these people and their reputation is why it was put out to a second expert. We ask our experts in evaluating cases if they know or feel like they have such an intimate relationship with them -- once he identified it then we went on to a second expert. The attorney expert witnesses for Doctors Arias and Belle believed that the probable cause panel should have reviewed the medical records themselves and come to their own conclusions based upon review of the records, which those attorney-experts contend would have confirmed Dr. Handwerker's opinion and caused the panel to disbelieve the report of Dr. Neufeld. That opinion testimony is rejected as unpersuasive. It is not necessary for the probable cause panel to go behind the opinions of consultants hired by the Department, and to make independently their own examination of records, duplicating the evaluation of the consultant. If they must do so, there is little purpose in retaining consultants to review cases and little utility in having lay members of probable cause panels. Neither is it necessary, when a probable cause panel sees there is a disagreement among their consultants, to submit the case to a third expert to act as a sort of arbitrator to resolve the differences among the consultants. Members of a probable cause panel are not required to be skeptical of the conclusions reached by consultants. Were that so, the Board would have had as much reason to question the brief and unenlightening letter from Dr. Handwerker as the discursive report of Dr. Neufeld. The memorandum filed by the probable cause panel on April 27, 1987, against Dr. Arias and the separate memorandum finding probable cause against Dr. Belle had charged both physicians with prescribing schedule II drugs (Dexedrine) for unauthorized reasons, inappropriately prescribing Dexedrine in the presence of hypertension, inappropriately prescribing Seconal, not keeping medical records justifying the use of steroids, and practicing below the applicable standard of care because they did not refer R. F. to a psychiatrist for evaluation and treatment of severe depression. The material submitted to the probable cause panel was sufficient for its members to believe that there was some evidence which, if believed at final hearing, would justify the imposition of discipline against Doctors Arias and Belle. After a full evidentiary presentation the Hearing Officer found that the facts were not as the investigator and Dr. Neufeld supposed them to be. The outcome of the prosecutions ultimately confirmed the opinion of Dr. Handwerker that there was no dereliction on the part of Doctor Arias or Doctor Belle. After the prosecution began, the attorney for the Department sent the matter back to a probable cause panel for additional review on two occasions. The attorney for the Department believed that the evidence would not sustain the allegations of the Administrative Complaint at the requisite level of proof. This was based, in part, on the opinion of an additional expert, Dr. Martin Cohn of the Mt. Sinai Hospital Sleep Disorder Center. Dr. Cohn had given the Department an opinion that the continued prosecution of Doctors Arias and Belle was ill-considered because they had appropriately treated the patient, R. F., for the sleep disorder of narcolepsy.
The Issue The issue is whether Petitioner, as a prevailing small business party in an administrative action, should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Section 57.111(4)(a), Florida Statutes.1
Findings Of Fact Petitioner is a licensed physician in the State of Florida, having been issued license number ME 0027368. The parties by their response or by stipulation agreed that this matter was filed pursuant to Section 57.111, Florida Statutes, and Rule 60Q-2.031, Florida Administrative Code; that the actions in AHCA Case No. 95-03216 were initiated by the Agency for Health Care Administration, an agent for Department of Health, a state agency; that the Agency is not a nominal party only; that the attorney's fees sought by Petitioner are reasonable in the amount up to $15,000.00 and that the statutory cap of $15,000.00 applies; and that the Petitioner prevailed in the underlying case. Respondent also stipulated that it was aware of no circumstances that exist which would make the award unjust. Petitioner, Adolfo Cardenas Dulay, M.D., is a small business party within the meaning of Section 57.111, Florida Statutes. The Administrative Complaint in DOAH Case No. 97-3103 was filed March 26, 1997, against Petitioner. The Complaint alleged Petitioner's failure to recognize the severity of a patient's condition by directing an ambulance to another facility, failing to keep records regarding the patient's condition, failure to treat a hypertensive emergency and very high heart rate, failing to document an order for Procardia and the decision to transfer a patient, failing to keep written records justifying the course of treatment of a patient, and failing to practice medicine at a level accepted by prudent similar physicians under similar conditions and circumstances. Pursuant to Section 455.225, Florida Statutes, Petitioner was notified of the investigation and invited to submit a response to the allegations. Petitioner and his attorney, submitted a letter from an attorney dated August 8, 1995. This was the only response provided by Respondent to the allegations. Petitioner chose not to present any expert opinions to the Probable Cause Panel. The Probable Cause Panel that considered this matter was composed of two physicians, who were or are, Board of Medicine members and a consumer member of the Board of Medicine, as required by statute. Present at the March 20, 1997, meeting of the Probable Cause Panel were Panel members Robert Katims, M.D., Chairman of the Panel; Becky Cherney; and Louis C. Murray, M.D. Also present at the meeting were Allen R. Grossman, Acting Board Counsel; Randy Collette, Senior Attorney for the Agency; Jim Cooksey of Investigations; and Deborah Marshal, Administrative Assistant, Agency for Health Care Administration. Prior to the Probable Cause meeting of March 20, 1997, the members of the Probable Cause Panel received the entire investigative file, including all medical records and the expert opinion of Dr. Blanchar offered by Respondent. The only expert opinion available to the Probable Cause Panel on March 20, 1997, was that of Dr. Richard W. Blanchar, who admitted that he had not engaged in a similar practice of emergency medicine since 1989, eight years before this matter was considered. However, Dr. Blanchar did have sufficient experience in emergency medicine to qualify as an expert witness. The lack of recent practice goes to the weight given Dr. Blanchar’s opinion. Prior to consideration of the case, Mr. Grossman advised the Panel that any questions concerning interpretation of the law or rules, or what the Panel's duties were, should be directed to him. Mr. Grossman also advised the panel that the responsibility of the attorney for the Agency is to explain the facts of the case, the reason why the Agency is making the recommendation, and to answer any questions concerning those facts in the recommendation or investigation. The Probable Cause Panel members discussed this matter, reached a determination, and voted for a finding of Probable Cause for alleged violations of Sections 458.331(1)(t) and 458.331(1)(m), Florida Statutes. On March 20, 1997, the Probable Cause Panel issued a memorandum stating: This matter was brought before the Probable Cause Panel membership composed of Robert Katims, M.D., Chairperson and Louis C. Murray, M.D. and Becky Cherney on the date set forth above. The Panel, having received the investigative report, having carefully reviewed that report, having reviewed the recommendation of the Agency, and having had the opportunity to inquire of counsel and being otherwise duly advised in the premises thereof, find that: Probable Cause was found on the following statutory and rule grounds, including but not limited to Sections 458.33(1),(t), and (m), Florida Statutes. Moreover, it is clear from the record in the underlying case that the evidence regarding diagnosis and appropriate treatment of the patient were in dispute. Dr. Blanchar was found to have sufficient qualifications as an expert in this matter. Dr. Dulay's experts and their expertise and opinions clearly outweighed those of the Department's expert and the issue was resolved in Dr. Dulay's favor. However, there was a dispute of fact in this case and the Department clearly had sufficient cause to go forward with the underlying action. Therefore, Petitioner is not entitled to an award of attorney's fees and costs.
The Issue The issue is whether Petitioners are entitled to an award of attorney’s fees, costs, and/or interest related to the hearing officer’s award of corrective payments on remand after the decision in French v. Department of Children and Families, 920 So. 2d 671 (Fla. 5th DCA 2006).
Findings Of Fact Parties Sarah is almost 23 years old, and she is severely disabled. Her disabilities include quadriplegic cerebral palsy, developmental delay, severe osteoporosis, severe muscle spasms, scoliosis, incontinence, kidney stones, and frequent urinary tract infections. Sarah requires 24-hour assistance with all daily living functions, including bathing, feeding, dressing, brushing her teeth, and changing her diapers. Ms. French is Sarah’s mother. She is approved by the Agency to provide personal care assistance (PCA) services to Sarah under the CDC+ program. The Agency has administered the CDC+ program since October 1, 2004. Prior to that, the program was administered by DCF. Background Sarah applied for the CDC+ program in July 2002, and was enrolled in the program in October 2002. Prior to that, Sarah was enrolled in the Home and Community Based Developmental Services (HCBS) program pursuant to which she received PCA services from outside providers, rather than her mother. Sarah’s initial support plan under the CDC+ program funded only six hours per day of PCA services. The plan was increased to 12 hours per day of PCA services in August 2003 after Sarah successfully appealed her initial support plan to a DCF hearing officer. On October 31, 2003, DCF unilaterally disenrolled Sarah from the CDC+ program based upon its determination that Ms. French had a back condition that prevented her from providing PCA services to Sarah. Thereafter, Sarah was reenrolled in the HCBS program, which required her to hire someone other than her mother to provide her PCA services. Ms. French was paid for the period of November 1-15, 2003, even though Sarah was no longer enrolled in the CDC+ program at the time. For that period, however, Ms. French was paid for only six hours per day of PCA services (at $17.50 per hour) rather than the 12 hours per day required by Sarah’s support plan. Ms. French stopped receiving payment under the CDC+ program on November 16, 2003. She began receiving payment again on April 1, 2005, when, as discussed below, Sarah was reenrolled in the CDC+ program. Ms. French has been paid for 12 hours per day of PCA services (at $17.50 per hour) since April 1, 2005. Sarah timely filed an appeal of DCF’s decision to disenroll her from the CDC+ program, but the appeal was not docketed and referred to a DCF hearing officer until January 2004. The hearing officer held a hearing on the appeal over a period of eight days between March 22 and August 5, 2004. The length of the hearing was attributable, at least in part, to the fact that the hearing officer was not a lawyer, and she allowed both parties to present extensive testimony and evidence on matters seemingly unrelated to the central issue in the appeal, i.e., whether Ms. French had a back condition that prevented her from providing PCA services to Sarah. The hearing officer’s Final Order, dated November 22, 2004, concluded that Sarah should not have been disenrolled from the CDC+ program because DCF failed to prove that Ms. French had a back condition that prevented her from providing PCA services to Sarah. The Final Order did not award retroactive corrective payments to Sarah for the period that she was wrongfully disenrolled from the CDC+ program, and it denied Sarah’s request for an award of attorney’s fees and costs. Sarah appealed the Final Order to the Fifth District Court of Appeal. DCF did not cross-appeal. Sarah was reenrolled in the CDC+ program on April 1, 2005, while the appeal was pending. The record does not reflect why Sarah was reenrolled on that date, which is more than four months after the hearing officer’s Final Order. The appellate court issued its opinion on January 6, 2006, and held that Sarah was entitled to corrective payments from DCF1 retroactive to the date that she was disenrolled from the CDC+ program. The court remanded the case to the DCF hearing officer to determine the amount of corrective payments due to Sarah. The court was clear as to the scope of the remand; it held: In summary, both [federal and state law] require remand for the hearing officer to order corrective payments retroactive to October 31, 2003. We believe the amount of corrective payments can be determined based upon the evidence provided at the original hearing, but the hearing officer may take additional evidence on the issue, if necessary. (Emphasis supplied) The court also awarded attorney’s fees against DCF for the appeal. The court remanded the issue of the amount of appellate fees, and the issue of Sarah’s entitlement to attorney’s fees for the underlying DCF hearing, to DOAH for determination because, according to the court, the hearing officer did not have jurisdiction over those issues since the applicable attorney's fee statute refers only to Administrative Law Judges. DCF filed a motion for rehearing, which was denied by the court on February 10, 2006. The mandate was issued by the court on March 1, 2006. Sarah was the prevailing party in the proceedings that culminated in the appeal. The Agency paid Sarah $129,595 in attorney’s fees and costs related to the proceedings that culminated in the appeal.2 Remand Proceeding On April 7, 2006, over a month after the mandate was issued by the appellate court, the DCF hearing officer entered an Order accepting the remand and directing the parties to advise her if the retroactive payments mandated by the court had been made. The Order required Sarah to provide invoices to the Agency reflecting the monthly timesheets for the “retroactive periods,” and required the Agency to respond to the invoices and identify any disputes. The Order stated that a hearing would be set if necessary to resolve any dispute regarding the amount of the retroactive payment. On April 19, 2006, in compliance with the hearing officer’s Order, Sarah filed monthly invoices and a demand for payment totaling $211,312.50, “exclusive of interest and attorney’s fees.” The invoices sought payment for an additional six hours per day of PCA services from July 2002 (when Sarah applied for the CDC+ program) to November 15, 2003 (when Ms. French stopped receiving payment for six hours per day of services); payment for 12 hours per day of PCA services from November 16, 2003, to March 31, 2005 (the period during which Ms. French received no payment); and payment of half of those hours at the overtime rate of $26.25 per hour instead of the standard rate of $17.50 per hour. The Agency responded to the demand for payment in a status report filed with the DCF hearing officer on May 26, 2006. In the status report, the Agency took the position that, consistent with the appellate court’s decision, the amount of corrective payments owed to Sarah is limited to the period of disenrollment -- October 31, 2003 through March 31, 2005 -- and that the amount should be calculated based upon the approved hourly rate of $17.50 with no overtime pay. The Agency, therefore, requested the DCF hearing officer to “enter an order finding $97,230 as the appropriate amount of compensation due as the corrective action ordered by the Fifth District Court of Appeal.” Sarah filed a reply to the Agency’s filing on June 26, 2006, in which she continued to assert that the corrective payments were not limited to the disenrollment period and that overtime pay was due. The reply also claimed that the Agency “is proving itself to be the scofflaw that the general public believes it to be,” and it requested imposition of attorney’s fees against the Agency because of its “continued delays and its attempts to starve out Ms. French.” The hearing officer set the matter for hearing because the parties were not in agreement regarding the amount of corrective payments owed. The hearing was scheduled for and held on July 17, 2006. The transcript of the July 17, 2006, hearing is not part of the record of this DOAH proceeding. Therefore, the record does not reflect the substance of the testimony presented or the nature of the evidence received at that hearing. The hearing officer entered the Remand Order on September 29, 2006. The Remand Order rejected the argument that Sarah is entitled to corrective payments for periods prior to October 31, 2003; rejected the argument that Ms. French is entitled to overtime pay; implicitly rejected the argument that “prejudgment interest” is to be included as part of the corrective payments to Sarah; concluded that DOAH (and not the DCF hearing officer) has jurisdiction to consider Ms. French’s request for interest based upon “the failure of [DCF] to process payment in a timely manner”; and awarded $105,420 in corrective payments to Sarah. The Remand Order was not appealed by either party. It was not until entry of the Remand Order that the amount of corrective payments due to Sarah was established with certainty. The Agency worked diligently after entry of the Remand Order to process the payment due to Sarah. The payment was made through a check dated November 8, 2006, which is 40 days after the date of the Remand Order. Petitioners did not prevail in the Remand Proceeding because the hearing officer rejected each of the substantive arguments they presented in the Remand Proceeding. The fact that the hearing officer awarded Sarah approximately $8,000 more than the Agency calculated that she was due in its pre-hearing status report does not make Sarah the prevailing party in the Remand Proceeding. The award was approximately half of what Sarah claimed she was due, and the difference in the amount calculated by the Agency ($97,230) and the amount awarded in the Remand Order ($105,420) was not the result of the hearing officer using the calculation methodology advocated by Sarah. Instead, the difference resulted from the hearing officer using the actual number of calendar days that Sarah was disenrolled, rather than calculating the number of days by multiplying the number of months Sarah that was disenrolled by the 28 days of service per month that were approved in Sarah’s support plan. There is no persuasive evidence that the Agency participated in the Remand Proceeding for an improper purpose, as alleged by Petitioners. Indeed, the evidence establishes that the primary reason that it was necessary for an evidentiary hearing to be held in the Remand Proceeding was the excessive and unreasonable demand made by Sarah in her initial response to the hearing officer’s Order accepting the remand from the appellate court. The Agency’s refusal to pay that amount was clearly reasonable and appropriate under the circumstances. To the extent that Petitioners are complaining about having to go through additional proceedings on remand at all when the appellate court observed that the amount of corrective payments could likely be determined based upon the evidence provided at the original hearing, that complaint focuses on the conduct of the DCF hearing officer, not the Agency. It is noted, however, that the appellate court stated that “the hearing officer may take additional evidence on the issue, if necessary.” This DOAH Proceeding Petitioners initiated this proceeding by filing the Petition with the Agency. The Agency referred the Petition to DOAH because according to the referral letter, “the Agency is without authority to determine or award attorney’s fees available under Chapter 120, Florida Statutes.” The Petition requests an award of attorney’s fees and costs, both for the Remand Proceeding and for this DOAH proceeding. The Petition also requests an award of prejudgment interest as part of the corrective payments as well as post- judgment interest on the corrective payments ordered in the Remand Order. The Agency disputes Petitioners’ entitlement to attorney’s fees and costs for this proceeding or the Remand Proceeding. The Agency also disputes Petitioners’ entitlement to interest, either as part of or on the corrective payments. There is no evidence that the Agency participated in this DOAH proceeding for an improper purpose. The Agency had a legitimate basis for its opposition to the Petition giving rise to this proceeding, as shown by the fact that the Agency prevailed in this proceeding. The unreasonable demands made by Petitioners at the outset of the Remand Proceeding (and at the outset of the prior attorney’s fee case, see Endnote 2) did little to bring the litigation between the parties to an just and speedy end and, indeed, likely had the opposite effect. That said, the evidence is not persuasive that Petitioners participated in this DOAH proceeding for an improper purpose.
