The Issue Is Petitioner entitled to attorney's fees and costs pursuant to Section 57.111, Florida Statutes, The Florida Equal Access to Justice Act, and Rule 22I- 6.035, Florida Administrative Code?
Findings Of Fact Petitioner herein, Jules G. Minkes was the Respondent in a license disciplinary proceeding styled Department of Professional Regulation, Board of Osteopathic Medical Examiners, DOAH Case No. 88-3749. That underlying case was resolved by a Notice of Voluntary Dismissal served by the Department of Professional Regulation attorney on December 9, 1988. It was filed with the Division of Administrative Hearings on the same date. On December 16, 1988, the undersigned entered an Order providing in pertinent part, "This cause came on for consideration upon Petitioner's Notice of Voluntary Dismissal, which, by operation of law, dismisses this cause and the file of the Division of Administrative Hearings is accordingly CLOSED." On February 13, 1989 the Petition and Affidavit for attorney's fees, together with supporting documents and a Memorandum in support of the petition were filed with the Division of Administrative Hearings. The Petition was served by mail on February 10, 1989. It does not specifically request an evidentiary hearing. This fees and cost cause was subsequently styled as Minkes v. Department of Professional Regulation, Board of Medical Examiners, DOAH Case No. 89-0792F. On February 28, 1989, Respondent filed an Answer which was "sworn and subscribed" by the DPR attorney. The Answer constitutes a general denial of all allegations and demands "strict proof" of the attorney's fees and costs set forth by Petitioner's pleadings, but contains no itemized counter-affidavit challenging the reasonableness of the attorney's fees and costs claimed by Petitioner as contemplated by Rule 22I-6.035(4) and (5)(a), Florida Administrative Code. The answer also alleges substantial justification for the underlying action and "special circumstances" which would render unjust any award of fees and costs. These latter two allegations are made without any particularity as to what constitutes the "justification" or the "special circumstances." The Answer makes no specific request for evidentiary hearing beyond the demand for "strict proof" of "whether and/or to what extent" fees and costs were incurred by Petitioner. No counter-affidavit or request for evidentiary hearing has been filed to date. See, Rule 22I-6.035(4), (5) Florida Administrative Code.
Findings Of Fact On January 16, 1987, Department of Health and Rehabilitative Services notified J. S. By letter that it had received a report of neglect regarding him and advised him of his right to request the report be amended or expunged. J. S. did so but on February 26, 1987, the Department advised him his request for expungement had been denied. Thereafter, J. S. requested a formal hearing which was held by the undersigned on October 27, 1987. After a full, formal hearing on the merits, at which both testimony and documentary exhibits were presented by both parties, the undersigned, on December 1, 1987, entered a Recommended Order in which it was found, as a matter of fact, that while the alleged victim of the neglect was incapable of totally caring for himself, the evidence presented was insufficient to establish that the relationship between the victim and J. S. was a care-giving one or that J. S. had the responsibility to look out for the victim so as to bring him within the purview of the statute. The Department thereafter entered a Final Order consistent with the Recommended Order, amending the classification of the report to "unfounded" and expunging it from the Department records. Evidence introduced at the original formal hearing held herein established that J. S. was an employee, (resident manager) at the Royal Palm Retirement Home in Ft. Myers, Florida. He was not the owner of the facility nor was any evidence introduced to indicate he had any financial interest, other than as an employee, in the facility. Further, he was not engaging in the professional practice of a licensed profession. His relationship with the alleged victim was found to be no more than that of landlord-tenant. The Department's investigation of the alleged neglect, while not completely comprehensive, nonetheless was sufficiently thorough to meet the test of reasonableness.
Findings Of Fact The petition herein is brought in the name of "Silvia S. Ibanez." It prays that attorneys fees and costs be awarded pursuant to Section 57.111 F.S. to "Petitioner Ibanez . . . as the small business prevailing party in this disciplinary action and any other relief deemed appropriate," in the amounts of $11,252.73 for the services of the Holland & Knight law firm, $13,822.50 for the services of the Moore, Hill and Westmoreland law firm, and $8,563.50 for the services of Robert Shapiro, Esquire. Herein, Ms. Ibanez seeks recovery of attorney's fees and costs incurred in DOAH Case No. 91-4100, styled, Department of Professional Regulation, Board of Accountancy v. Silvia Ibanez. That case involved a recommended order in Ms. Ibanez' favor, a final order against her, a direct appeal to the Florida First District Court of Appeal, a writ of certiorari from the United States Supreme Court, and subsequent remand activity. That disciplinary proceeding was initiated by the agency against Ms. Ibanez, a licensed certified public accountant (CPA), alleging violation of certain Board rules, most prominently the rules which have come to be known as the "holding out" and "fraudulent advertising" rules. Ms. Ibanez was the only respondent named in the July 30, 1991 amended administrative (disciplinary) complaint, the only initiating document provided. The January 15, 1992 recommended order therein shows that Silvia Ibanez was individually charged with disciplinary violations of the certified public accountancy statute and rules for (Count I) practicing public accounting in an unlicensed firm by various personal acts; (Count II) by appending certain designations to her name; and (Count III) by practicing public accounting by holding herself out as a CPA and appending the CPA designation after her name in advertising so as to imply she abided by Chapter 473 F.S. The closest that case came to dealing with any business entity other than Silvia Ibanez individually was an inarticulate phrase drafted into paragraph eleven of Count I of the amended administrative complaint, the thrust of which complaint was to define a violation of the advertising rule. That inarticulate paragraph eleven seemed to charge Ms. Ibanez individually for failing to license her law firm, "Silvia S. Ibanez, P.A.", as a CPA firm. From the Order of Reconsideration dated August 22, 1991, it appears that inarticulate and convoluted paragraph eleven allegation against Ms. Ibanez individually was only intended to address Count I as already framed and was withdrawn to avoid confusing, instead of clarifying, the issues in dispute. The recommended order contains the following findings of fact and conclusions of law which are significant to this fees and costs case: Finding of Fact 9: Neither the CFP nor CPA credential is part of the firm name, "Silvia S.Ibanez, P.A.-Law Offices," which also appears on Ibanez' business card. Ibanez' telephone directory listings and card at issue show the CPA and CFP credentials strictly appended to Respondent's individual name. Findings of Fact 16: Ibanez testified credibly that her intent in appending CPA and CFP credentials solely to her own name is to indicate that she is, in her own right, individually licensed as a CPA and CFP. Conclusion of Law 9: 3/ DPR asserted that Ibanez is engaged in "practicing public accounting" as set forth in one or both of the definitions of that term contained in subparagraphs (a) and (b) of Section 473.302(4) F.S. Ibanez countered to the effect that she was exempt from those statutory definitions on the basis of one or more of the three exclusions to the term "public accounting," which are set forth in Sections (1), (2) and (3) of Rule 21A- 20.011 F.A.C., and therefore, she could not be held to have violated any portion of Chapter 473 F.S. More specifically, Ibanez urged that because she is working as an attorney within a P.A. (which she asserted is an employer not required to be licensed under Chapter 473 F.S.), she falls under exception 21A-20.011(1) F.A.C. The April 23, 1992 final order of the Board and the appellate court orders in the disciplinary case did not alter the foregoing findings of fact or specifically address the foregoing conclusion of law, which does little more than recite a legal position posited by Ms. Ibanez before DOAH in the disciplinary case. At the time of the recommended order in the disciplinary case, Rule 21A-20.011(1) F.A.C. provided: "Practice of, or practicing public accountancy" as defined by Section 473.302(4) F.S., shall exclude any of the following: Services rendered by a licensee as an employee of a governmental unit or an employee rendering accounting services only to his employer as long as that employer is not required to be licensed under F.S. 473,... Ms. Ibanez' law firm was never licensed as a CPA firm, and she did not purport to be the qualifying licensee for a CPA firm. Concurrent with most of the duration of the disciplinary action, Ms. Ibanez was also pursuing a Section 120.56 F.S. rule challenge to another rule, the "holding out" rule, Rule 21A-20.012 F.A.C. She had initiated that challenge in her capacity as a licensed CPA. As Petitioner in that rule challenge, Ibanez et al v. Board of Accountancy et al, DOAH Case No. 3336R, Ms. Ibanez posited herself as a sole practitioner and an employee of the law firm, "Silvia S. Ibanez, P.A.", but the law firm was not a party to, and did not participate in, the rule challenge. "Silvia S. Ibanez, Esquire" appears on the copies list of the final order in the rule challenge. That final order declared the "holding out" rule invalid on January 15, 1992. The agency et al appealed that final order to the First District Court of Appeal, but dismissed the appeal on May 6, 1992. Any fees and costs associated with the rule challenge were disposed of in a November 23, 1992 Final Order of Dismissal entered in Silvia S. Ibanez v. Board of Accountancy DOAH Case No. 92-0427F and may not be recouped in the instant proceeding. Based on all the available evidence, 4/ the law firm of "Silvia S. Ibanez, P.A." also did not participate in the disciplinary case even as a legal representative of Ms. Ibanez, the individual, until after the recommended order was entered. The rule challenge case, DOAH Case No. 91-3336R, was heard on August 1-2, 1991. The disciplinary case, DOAH Case No. 91-4100, was heard on August 27, 1991. Pursuant to a stipulation during the formal hearing of the disciplinary case on August 27, 1991, on September 20, 1991, the parties designated items to be adopted into the record of the disciplinary case from the rule challenge case. For convenience, these items were copied and filed in the disciplinary case. 5/ Because the "holding out" rule had been held invalid, the disciplinary case was considered by the hearing officer to be a case of first impression. Because the "holding out" rule had been held invalid, only the statute utilizing the term, "holding out", was applied to one count of the disciplinary case. However, the other existing rules could still be applied as plead. The January 15, 1992 recommended order in DOAH (disciplinary) Case No. 91-4100 recommended finding Ms. Ibanez was not "holding herself out as a certified public accountant", finding her not guilty of all charges alleged under Counts I through III, and dismissing all counts. Contrary to the conclusions reached in the recommended order in the disciplinary case, the Board of Accountancy's final order found and concluded that Ms. Ibanez was guilty on all three counts and should be disciplined with a reprimand. Ms. Ibanez, in her individual name, appealed that final order to the Florida First District Court of Appeal, which per curiam affirmed the Board's final order by its judgment entered June 9, 1993. The United States Supreme Court granted a writ of certiorari and, after oral argument, issued its opinion in Ms. Ibanez' favor. That appellate case was also styled in her name, individually. By a June 13, 1994 order, the Supreme Court mandated the Florida First District Court of Appeal to act in conformity with the Supreme Court opinion. The First District Court of Appeal issued its own mandate to the Board on October 5, 1994. The Board issued its final order on remand on January 31, 1995. 6/ It is undisputed that Ms. Ibanez is the prevailing party in the underlying disciplinary case, DOAH Case No. 91-4100. Her petition which initiated the present fees and cost case was filed with DOAH on February 13, 1995 and is timely under Section 57.111 F.S. and Rule 60Q-2.035 F.A.C. It did not request an evidentiary hearing. The agency's February 28, 1995 response herein was timely. It disputes whether the Petitioner is a small business party; disputes the amount, rate, and reasonableness of the attorneys' fees claimed; and asserts that the agency's actions were substantially justified at the time the underlying disciplinary case was initiated. It does not specifically request an evidentiary hearing. 7/ By the failure of both parties to request an evidentiary hearing and to respond to the notice and order to show cause entered herein on June 28, 1995, they are deemed to have waived an evidentiary hearing in this cause. Without any supporting documentation, the petition asserts standing upon the following bare allegation: 12. Ibanez meets the prevailing party provisions of F.S. Section 57.111 and is a "small business" party, with her principal place of business in Orlando Florida. Ibanez has no employees other than herself. As of the date the state agency initiated this proceeding, Ibanez was the sole shareholder of her law firm professional association ("P.A.") and the P.A.'s net worth did not exceed $2,000,000.00. The petition alleges in conclusionary terms that the agency's actions were substantially unjustified and that no circumstances exist that would make an award of attorney's fees unjust, but no reason or argument is advanced in support of the allegation. The petition claims the following amounts as fees and costs: Petitioner incurred substantial legal fees and costs at the administrative and appellate levels, as explained below: Fees & Costs Holland & Knight $11,252.73 [Exhibit "H"] Moore, Hill & Westmoreland $13,822.50 [Exhibit "I"] Robert Shapiro, Esq. $ 8,563.50 [Exhibit "J"] Even after considering financial assistance to keep the case alive, Petitioner incurred in excess of $15,000 in attorney fees and costs. (Emphasis supplied) The language just emphasized does not provide any information as to which portions of the fees and costs, if any, constituted "financial assistance to keep the case alive." 8/ Ms. Ibanez' affidavit to the effect that the participation of co- counsel was required is attached to her petition, but her affidavit does not address the reasonableness of the fees claimed by each of the named law firms. Therefore, her affidavit does not meet the requirements of Rule 60Q-2.035(3) F.A.C. "Exhibit H" of the petition addresses the $11,252.73 claimed by Ms. Ibanez on behalf of Holland and Knight. That exhibit does not include the affidavit required by Rule 60Q-2.035 (3) F.A.C. Petitioner also filed an unauthorized "Supplement to Exhibit H" on February 28, 1995. See the Preliminary Statement, above. Although such "supplements" are not authorized by statute or rule and no order permitted it, the Supplement has been considered because it was filed within the 60 days provided by statute and rule for the filing of the original petition and Respondent has not objected to it or moved to strike. Unfortunately, the Supplement also does not include an affidavit executed by any attorney with Holland and Knight. 9/ "Exhibit I" of the petition addresses the $13,822.50 claimed by Petitioner on behalf of Moore, Hill and Westmoreland. It contains an affidavit of J. Lofton Westmoreland on behalf of "Westmoreland, Hook and Bolton, P.A," which substantially complies with Rule 60Q-2.035(3) F.A.C. While it is no small matter that there is a discrepancy in the firm names cited by Petitioner and Mr. Westmoreland, Respondent agency also has not raised this as an issue. Accordingly, the undersigned, being cognizant of the frequent shift and drift of law firm names, infers that regardless of which firm Mr. Westmoreland is now associated with, his affidavit applies to this case. 10/ Therefore, Mr. Westmoreland's affidavit has been considered and found sufficient on its face. This finding does not, however, validate all of the claimed fees and costs. 11/ "Exhibit J" of the petition addresses the $8,563.50 claimed by Petitioner on behalf of Robert Shapiro, Esquire. There is nothing signed by Mr. Shapiro, let alone an affidavit that meets the requirements of the applicable statute and rule. The breakdown provided shows Mr. Shapiro's fees are based on appellate work on the disciplinary case at the United States Supreme Court level, and that he has been paid portions thereof so that the balance owed is $2,300.00. The only cost listed is $28.50 in Federal Express charges. 12/ All the fees and costs claimed herein apply to the period after the recommended order in the disciplinary case and almost all apply after the commencement of the appeal process from the final order altering that recommended order. The courts have already ordered the Department of Business and Professional Regulation, Board of Accountancy to pay Ms. Ibanez $5,028.55 for the printing of the record and $300.00 as clerk's costs. These amounts do not seem to be broken out of the petition's supporting exhibits and none of the documentation provided with the petition discusses whether or not the appellate fees and costs claimed herein could have been requested before the courts and were not requested, were requested and denied, or were not available from the courts. There is an indication that some fees and costs were requested on appeal and denied by the courts, but there is no detail as to which fees and costs were claimed at the appellate level and there is nothing to show the legal reason for denial. Consequently, it is impossible to assess from the documentation provided which fees and costs are still to be decided on remand. 13/ Because the foregoing facts are dispositive of the petition, it is unnecessary to make further findings of fact on the issue of substantial justification vel non of the agency at the time the disciplinary action was initiated.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is ORDERED: The Petition for attorney's fees and costs is denied and dismissed. DONE AND ORDERED this 29th day of August, 1995, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1995.
The Issue Is Petitioner entitled under Section 57.111(4), Florida Statutes, to attorney's fees and costs incurred in DOAH Case No. 97-5194?
Findings Of Fact Outcome of Prior Administrative Proceeding Thomas A. Birkhead, d/b/a Century Center ("Birkhead," "Mr. Birkhead, or the "business") is a business in the form of a sole proprietorship. On August 4, 1997, the Division of Hotels and Restaurants (the "Division") served the business with a Notice to Show Cause. Seven weeks or so earlier, on June 13, 1997, the business had been served with an Emergency Order of Suspension. The Emergency Order suspended the business's license to operate a public lodging establishment in Cocoa Beach, Florida, as a nontransient rooming house. The license, bearing number 15-04001 H, had been issued to Mr. Birkhead by the Division. Mr. Birkhead requested a hearing on both the Emergency Order and the Notice to Show Cause. The request was referred to DOAH and assigned Case No. 97-5184. Unlike this case for fees and costs in which Mr. Severs has appeared in behalf of Mr. Birkhead, at no time during the pendency of DOAH Case No. 97-5184 did any attorney, including Mr. Severs, file a notice of appearance or appear in any capacity on behalf of Mr. Birkhead. The hearing held in April and June of 1998 (at which Mr. Birkhead appeared pro se) culminated in a Recommended Order issued October 1, 1998. The order recommended that the Notice to Show Cause be dismissed but that the Emergency Order be sustained. On May 14, 1998, the Division issued a Final Order. The Order makes no mention of Mr. Birkhead having been represented in any capacity other than pro se in post-recommended order proceedings. In acceptance of the advice of the Recommended Order, the Division dismissed the Notice to Show Cause. As for the recommendation with regard to the Emergency Order the final order stated: The Emergency Order of Suspension was a final order of the Division and subject to judicial review pursuant to section 120.60(6) and 120.68, Florida Statutes, not administrative review. Thus, the part of Birkhead's request for formal administrative review that pertained to the issuance of the Emergency Order of Suspension should have been dismissed for lack of jurisdiction. Final Order, page 9, Paragraph 16. Accordingly, the Division ordered that "Birkhead's Motion to Dismiss is hereby granted and the request for formal administrative review of the Emergency Order of Suspension is hereby dismissed." Final Order, page 10. Attorney's Fees and Costs When Case No. 97-5184 was initiated, Mr. Severs had long represented Mr. Birkhead as an attorney in various matters. His normal billing rate during the life of the case was $175 per hour. Although Mr. Severs did not appear as attorney of record in the administrative case, from the time the Emergency Order of Suspension was issued in June of 1997, through the issuance of the Final Order by the Department in Case No. 97-5184, Mr. Severs provided legal services to Mr. Birkhead. Some of the services were related to the administrative case; some were related to other matters. The fees for these services, related or unrelated, totaled $14,929.95, according to the petition filed in this case. An affidavit by Mr. Severs, attached to the petition, showed that only $4,860 of that amount was related to the administrative case. The related services were performed on at least fifteen occasions. Principally these included review and/or drafting of documents and consultation with regard to the reviewed or drafted documents. Mr. Severs' records demonstrate that at least 32.4 hours were expended in the performance of legal services related to Case No. 97-5184. (There were many telephone consultations not included in these hours because Mr. Severs moved from one firm, to his own firm, to the Titusville City Hall, where he is now the full-time City Attorney for the City of Titusville. Because of these transitions, phone records became unavailable.) At an hourly rate of $150 (the rate requested by Petitioner for this case, $25 below Mr. Severs' normal rate), total attorney's fees for 32.4 hours come to $4,860.00. These fees are reasonable. Court reporter costs in defending this action incurred by Mr. Birkhead totaled $478.50. He paid an expert witness fee in the amount of $200 to an engineer who testified in the proceeding. In addition, there were subpoenas for documents of $42; publications, such as the Fire Safety Manual 101, necessary to purchase in order to defend the case, in the amount of $49.35; photocopies of $48.10; office supplies of $56.12; postage and postage stamps of $173.52; and copier maintenance of $605.13. These costs total: $1,655.72. Mr. Birkhead also claimed additional costs of more than $10,000 used to maintain and operate the closed Century Center as an office for the duration of the administrative case. Mr. Birkhead explained this claim at hearing: The building that I was in there using as an office [Century Center] was shut down by the Division, so I could do nothing with it, except just work out of there myself to prepare this case, to work on the case. So, what I have given here is the direct charges of -- you know, that were during the time period for electricity and so forth. (Tr. 25). In addition to electricity, this sum includes charges for telephone, sanitation, pest control, water and sewer and fire extinguisher maintenance. Small Business Party The business's claim for attorney's fees and costs is filed under the authority of Section 57.111, Florida Statutes, a provision of the Florida Equal Access To Justice Act (the "Act.") Section 57.111(3)(d), Florida Statutes, of the Act defines the term "small business party," in pertinent part as: A sole proprietor of an unincorporated business . . . whose principal office is in this state, who is domiciled in this state, and whose business . . . has, at the time the action is initiated by a state agency, not more than 25 full-time employees or a net worth of not more than $2 million including both personal and business investments. . . Mr. Birkhead is the sole proprietor of the business, Thomas A. Birkhead, d/b/a Century Center. The business is unincorporated. Its principal office is in Florida. Mr. Birkhead is domiciled in Florida and his business has less than 25 full-time employees. The only criterion left in order for Thomas A. Birkhead, d/b/a Century Center to qualify as a small business party is net worth. Is Mr. Birkhead's net worth "not more than $2 million including both personal and business investments . . ."? Net Worth Mr. Birkhead's undocumented testimony that his personal net worth and that of the business was less than two million dollars was not rebutted by any evidence offered by the Division. Cross examination revealed that Birkhead's net worth in June of 1997 was certainly in excess of $1.5 million. How much in excess could not be determined because his calculation of net worth was anything but precise as shown from Mr. Birkhead's testimony: Q What is the value of the hotel located across the street from the Century Center? A The value of the hotel at that time, I believe was one and a half million dollars . . . Q What portion of the hotel did you own? A Um? Q What portion of the hotel did you own? A Two thirds. Two thirds of the stock. * * * Q . . . And what was the Century Center worth [in June of 97]? * * * A Well, I had a mortgage against it for two hundred and some thousand dollars. I gave, I believe, five hundred something. So, five hundred and something minus two, whatever it was, forty or fifty thousand, two hundred and thirty five or forty thousand. It would leave three hundred thousand dollars. Q . . . Your testimony is that you've had an equity in the Century Center of three hundred thousand dollars? A That was my intention, to say that. Yes. I subtracted out in my mind the mortgage that I had against the property, versus what I had paid for it. Q And when did you purchase it? A I purchased it . . .in 1990. Q But you don't . . . know what the value was in 1997? A Not at the Century Center. * * * Q . . . What other properties did you own, besides the Century Center, the hotel and the condo in Cape Canaveral? A I own my house. Q How much is it worth? A Well I paid sixty five thousand for it, I believe. It's probably worth a little bit more than that now. * * * JUDGE: When did you buy it? * * * WITNESS: When did I buy it? I bought it in -- let's see. Twenty five years ago or more. * * * Q Was there any other property that we didn't cover so far that you owned at that time? A Let me think a little bit. Yeah. I've got one in Cape Canaveral. It's an empty lot up there. I think I paid very little for it. I bought it because it was cheap. It's the only reason I've still got the thing. I think I gave eighteen hundred dollars for it or something like that. It think it would be worth more than that now. I don't know exactly what it would be worth. Try to sell it. These lots go up, you know, they might be worth fifteen to twenty thousand dollars. I can't -- I can't give you an exact figure on that. JUDGE: When did you buy it? * * * A . . . April of 1967, I believe. * * * JUDGE: . . . What Mr. Biggins is getting at is he wants to know about all our your personal and business investments and what their . . . net worth is. And you said you made a list and you went through and you figured this out. WITNESS: Say what? JUDGE: You said that you figured this out before you filed this motion for attorney's fees . . . WITNESS: Yeah. I called and got the figures as to what I had in June of '97. And I looked at, you know, statements that I had, and this that and the other thing, and added it all up. . . Some of the things, like I say, are joint with my wife. JUDGE: Yes, sir. But what were those things? That's what I want to know. You say you did this calculation. You got together all this information. Now, what information was it and what did the information show? WITNESS: Well, it showed the value of the things that I had in June of '97. JUDGE: And what were those things? What information did you obtain? WITNESS: Well, bank accounts, stock brokers, whatever I could, you know, had money in. JUDGE: . . . What was the value of the bank accounts? WITNESS: Not a whole lot. I don't think I probably had over -- I'm guessing a little bit now. You know, three or four thousand dollars. JUDGE: How about stock? WITNESS: Um? JUDGE: Stock? WITNESS: Stock, what? JUDGE: Equities. WITNESS: Um? JUDGE: Equities? New York Stock Exchange? WITNESS: Well, my stock is largely in a joint account with my wife. And . . . JUDGE: . . . You have control of it? WITNESS: Um? JUDGE: You have control of it? WITNESS: Well, either one of us could be called in control. It's joint . . . with right of survivorship. JUDGE: . . . Did you include the value of that stock in this calculation you did? WITNESS: I believe I did. Yes sir. JUDGE: . . . And what was the value of that stock? WITNESS: I can't recall, Your Honor, exactly what it was. JUDGE: Well, we've been . . . dealing with approximations here. So, do your best. WITNESS: Well, it's a joint account. JUDGE: And what's the value of the account? WITNESS: . . . I think it's somewhere in the neighborhood of probably seventy five or a hundred thousand dollars. JUDGE: And you can't do any better than that? WITNESS: Um? JUDGE: You can't pinpoint it any more than that, a twenty five thousand dollar swing? WITNESS: I can't to be honest with you, Your Honor . . . (Tr. 38-50). Mr. Birkhead's testimony also revealed that he owned two "low priced condos in Cape Canaveral" (Tr. 36) held as rental property. At the time he purchased them, Mr. Birkhead "gave twenty four thousand and change for them." Id. Asked when they were purchased, Mr. Birkhead replied, "I'm not sure. Before 1997." When asked to approximate when they were purchased, Mr. Birkhead testified, "Five, ten years. I don't know." Id.
The Issue Whether the Respondent committed the violation alleged in the Order of Probable Cause entered November 18, 2010, and, if so, the penalty that should be imposed.
Findings Of Fact Because Mr. Horan failed to respond to the Petitioner's First Request for Admissions, the matters of which admissions were requested are deemed conclusively established for purposes of this administrative proceeding. See Fla. R. Civ. P. 1.370. The Petitioner's First Request for Admissions is attached to this Final Order, and the matters of which admissions were requested are adopted herein as findings of fact.
The Issue The issue in this case is whether Petitioner is entitled to an award of attorneys' fees and costs pursuant to Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code.
Findings Of Fact Based upon the oral and documentary evidence presented at the final hearing and the entire record in this proceeding, the following findings of fact are made. Respondent is the state agency charged with regulating the practice of dentistry pursuant to Section 20.30 (subsequently amended to Section 20.165) and Chapters 455 and 466, Florida Statutes (1987). At all times pertinent to this proceeding, Petitioner was a Florida licensed dentist having been issued license number DN-0004795. At all times pertinent to this proceeding, Petitioner maintained a professional dental practice in the State of Florida. At all times pertinent to this proceeding, Petitioner maintained his primary residence within the State of Florida. At all times pertinent to this proceeding, Petitioner employed no more than 25 full time employees. Petitioner has never employed more than 25 full time employees. Petitioner has a net worth of less than two million dollars, including both personal and business investments, and he has not had a new worth of more than two million dollars since the time the underlying action was initiated against his license to practice dentistry. Petitioner is the sole shareholder of a corporation known as IRN, Inc., d/b/a North Dade Dental Offices. At the time the Underlying Proceeding was initiated, Petitioner operated his incorporated business out of two separate locations. The corporation was not named as a Respondent in the Amended Administrative Complaint filed by Respondent. As noted in the Recommended Order entered in the Underlying Proceeding, there have been a number of disputes between Petitioner (then Respondent) and the Department and/or the Board relating to complaints with the Department filed regarding Respondent and investigations conducted by the Department. During the hearing in the Underlying Proceeding, Petitioner testified vociferously regarding what he believes has been selective prosecution by the Department. Petitioner contends that the Department and/or the Board have been deliberately harassing him because he is an "advertising dentist." Petitioner has filed a lawsuit in federal court naming as defendants most, if not all the Board members during the period from approximately 1980-1987 and several Department employees and attorneys based on these contentions. That lawsuit (the "Federal Lawsuit") was originally filed at some point prior to the initiation of the investigation in the Underlying Proceeding. While the developments in and status of the Federal Lawsuit are not clear, the case was apparently still pending at the time of the hearing in this matter. Respondent has submitted some exhibits in this case which set forth the complaints received by and investigations conducted by the Department regarding Petitioner. The merits of those other complaints and the results and reasons for the Department's investigations in those cases are beyond the scope of this proceeding. No persuasive evidence was presented in this case to establish that the Administrative Complaint or Amended Administrative Complaint filed in the Underlying Proceeding were initiated for improper purposes or as part of a conspiracy against Petitioner because he is an "advertising dentist." The Underlying Proceeding began on or about February 22, 1988, when E. B. (the "Patient") filed a written complaint with the Department regarding the care and treatment he had received from Dr. Rindley. There is no evidence that B.'s complaint was solicited or prompted in any way. In his written complaint, the Patient stated that: I went to Dr. Rindley to have teeth pulled and have a lower plate made. The teeth were pulled and the lower plate was made, however I am unable to wear the plate as it hurts and I can not eat with it. I have to wear my old plate. I went back to Dr. Rindley and was told I now needed my upper plate relined. I told him I can eat fine with my old plate and to remake a new plate. He refused. I must go to another dentist and have a new plate made . . . Also, He was to pull a broken tooth and fill the cavities in the one crown left for the anchor of the plate, which he has not done, when asked when he kept saying next time. The Patient also wrote a letter to MasterCard disputing his payment to Petitioner and advising MasterCard that he was filing a complaint with the Department. Petitioner argues that this action by the Patient demonstrates that the Patient and Petitioner were involved in a fee dispute over which the Department had no authority. However, the mere fact that a complaintant seeks a refund from a professional against whom he has filed a complaint does not preclude the Department from investigating the validity of the complaint. In response to the complaint, the Department began an investigation which was assigned DPR Case Number 00-95307. The Department's investigator interviewed the Patient on March 4, 1988. E. B. told the Department's investigator that he was dissatisfied with the treatment provided by the Petitioner. He gave no indication that he had refused any recommended treatment or diagnostic test. Petitioner was notified of the Patient's complaint during an interview conducted by the Department's investigator, Alison Lichtenstein, on March 10, 1988. Ms. Lichtenstein was accompanied by Jeffrey Matthews who sat in on the interview. During the interview, Petitioner provided the Department with the Patient's records and had his staff meet with the investigators. As part of its investigation, the Department sought to interview a dentist who the Patient had identified as providing subsequent treatment. That dentist had no record of having provided any treatment to E. B. On June 16, 1988, the Patient's records received from the Petitioner at the March 10, 1988 interview and the compiled investigative report were forwarded to Jerry Zimmerman, D.D.S., a Department consultant, for an expert opinion. Dr. Zimmerman met with the Patient and examined the Patient's old partial denture, the lower partial manufactured by the Petitioner and a new partial that was made by a subsequent dentist. Dr. Zimmerman asked the Patient if any x-rays had been taken before his teeth were extracted and the Patient said no. On August 5, 1988, Dr. Zimmerman wrote to the Department's attorney and noted that, in reviewing the file provided by Dr. Rindley, ". . . there [was] an unusual absence of portions of the dental records" and requested that the Department obtain a complete set of records from the Petitioner. On August 24, 1988, Dr. Zimmerman issued a written opinion based on his review of the compiled investigative report, the Patient's records provided by the Petitioner, and the results of his own examination and interview of the Patient. Dr. Zimmerman noted: Upon an interview, in my office, patient EB sought dental care from Dr. Steven Rindley of North Miami Beach. Three teeth were to be extracted, and a lower denture fabricated. Upon receipt of the immediate partial, the patient immediately complained that the teeth wobbled, and he could not eat. . . During the examination of the patient EB, it was revealed that a new partial denture had been fabricated, after the work done by Dr. Rindley. EB showed this dentist that the appliance did not rock, nor did the first partial that he wore before Dr. Rindley's work was initiated. This reviewer tried in the partial fabricated by the attending Dr. Rindley, and indeed the partial did rock from side to side upon applying downward pressure, on the occluding surfaces of the lower teeth of the partial. It was evident that the lower teeth as fabricated on the lower partial were not placed over the ridge. This condition establishes a tipping motion considering the bony ridge as the fulcrum. The action of this fabrication, or the absence of knowledge that this condition would constitute a rocking appliance, thus endangering the teeth and supporting alveolar structure constitutes negligence. This act is a violation of Rule 21-G, Chapter 466.028(1)(Y)(GG). 3/ Dr. Zimmerman's opinion noted that the records contained an ambiguous, unsigned medical history. In Dr. Zimmerman's opinion, Petitioner's extraction of teeth without the benefit of an x-ray "in conjunction with an unsigned medical record constitutes negligence and malpractice under . . .[Sections] 466.028(1)(I), (M), (Y), (GG), [Florida Statutes] . . ." On August 29, 1988, Petitioner's attorney submitted an affidavit executed by Petitioner for consideration by the Department's consultant and probable cause panel. That affidavit described E. B. as a very difficult patient who refused to follow the Petitioner's instructions and eventually walked out in the middle of his treatment. The letter was forwarded to Dr. Zimmerman. On September 29, 1988, the Department received a letter from Petitioner's attorney purporting to transmit ". . . all of the medical and corollary reports/documents/notes, relating [the case]." With the exception of a few recent entries regarding the investigation, the records provided were the same as those received from Petitioner at the March 10, 1988 interview. The records did not indicate any prior treatment by the Petitioner or indicate that the Petitioner had prior x-rays from which to determine a course of treatment for the Patient. Petitioner's records did reflect that the Patient complained of problems with the partial manufactured by Petitioner and that adjustments were performed as early as January 30, 1988. Petitioner's records also indicated that further adjustments were necessary on February 1 and 4, 1988. On February 9, 1988, Petitioner noted that the upper partial was too loose and needed a reline. The Department provided Dr. Zimmerman with all the information received from Petitioner, including the "complete" Patient records from Petitioner's attorney and the Petitioner's affidavit as well as correspondence received from Petitioner's attorney, and an internal memo issued to the investigator. In a letter dated October 11, 1988, Dr. Zimmerman indicted that he did not think it was appropriate for a consultant to consider anything other than the "dental records, radiographs, histories and testimony from the complainant." Dr. Zimmerman's letter reaffirmed his prior opinion and also noted that any problems encountered by Dr. Rindley should have been recorded in his patient records. No such problems were documented by Dr. Rindley. On October 13, 1988, E. B. forwarded the lower partial manufactured by the Petitioner to the Department. It appears that, by the time it reached the Department, the partial had been damaged. A Memorandum from a Department legal clerk to the investigator dated October 13, 1988, refers to Petitioner's Affidavit and states "Dr. Rindley is trying to establish a defense that the complainant prevented the completion of the treatment with his uncooperative behavior." The memo further requests the investigator to conduct a supplemental report accounting for "facts as remembered by the employees who were present at the dental office, patients who were scheduled for treatment at the time and the complainant himself and any witnesses who may have accompanied him to his dental appointments." It is not clear whether a supplemental investigation was undertaken. The investigative file does not contain any additional information from the Patient. On October 14, 1988, the Department's legal clerk wrote to Dr. Zimmerman stating: Furthermore, you were requested not to conduct any interviews with the witnesses as requested by the subject. These witnesses will be interviewed by the investigator. Should further probing be necessary, Ms. Snurkowski will make the decision if and when probable cause is found. On November 10, 1988, a memo was generated by a Department employee reflecting the status of the investigation. It noted that Dr. Zimmerman's opinion had not changed as a result of the information provided by Petitioner's attorney and that Dr. Zimmerman felt Petitioner had violated the Dental Practice Act with respect to the Patient as a result of his extraction of teeth without radiographs and because of the fabrication of an inadequate a lower partial. The memo further noted that Dr. Zimmerman believed there was "probable cause for further investigation and action." Ms. Snurkowski, the prosecuting attorney for the Department, prepared a draft administrative complaint on or about November 17, 1988. The draft administrative complaint did not charge Petitioner with any deficiency in his records for E. B. On December 12, 1988, the Probable Cause Panel for the Board of Dentistry met to consider the Department's compiled investigative report, including the Patient records, Dr. Zimmerman's opinion, the Department's recommendations, and Petitioner's response to the complaint. The Panel was composed of Edward F. Baines, D.D.S., and Thomas C. Kraemer. Like virtually all the other Board of Dentistry members since 1980, both of these individuals were named in the amended complaint filed in the Federal Lawsuit in June of 1988. The exact status of the Federal Lawsuit at the time of the Probable Cause Panel Meeting is not clear. The Probable Cause Panel transcript does not reflect any discussion of the Federal Lawsuit and there is no evidence that the existence of the lawsuit impacted upon the Probable Cause Panel's evaluation of the case against Petitioner. There is no evidence that these Panel members were even aware of the Federal Lawsuit. There is also no evidence that Dr. Baines or Mr. Kraemer were aware of or involved in any prior disciplinary matters regarding Petitioner and/or that they knew Dr. Rindley was an "advertising dentist." Petitioner argues that there is no competent evidence of the materials provided to the Panel. However, it was established that the usual and customary practice of the prosecuting attorney, Ms. Snurkowski, was to provide the Panel members with copies of the Department's entire file and its recommendation in advance of the Probable Cause Panel meeting. There is no evidence to indicate that she failed to conform to her usual and customary practice in this case. At the outset of the Probable Cause Panel meeting, the Panel members indicated on the record that they had received copies of the Department's materials, and that they had an opportunity to review the materials and to familiarize themselves with the materials. The Department's investigative file was attached to the transcript of the proceeding to reflect the materials reviewed by the Panel in accordance with the Department's standard procedure. Dr. Baines testified that it was customary for him to receive materials related to cases to be considered by the Probable Cause Panel at least thirty days in advance of the meeting and that those materials always included the patient records, witness interviews, consultant's reports, and the Department's investigative file. By the time of the December 12, 1988 Probable Cause meeting, Dr. Baines had made an independent evaluation of the case after reviewing all the material presented to him. At the Probable Cause Panel meeting, Ms. Snurkowski had in her possession the Department's original file in case the members had any questions or problems with the materials previously provided to them. No problems with the materials were noted by the members. During the meeting, Dr. Baines briefly described the case and noted that the factual allegations underlying the one count violation alleged in the draft administrative complaint were very serious, particularly the failure to take an x-ray. Dr. Baines asked if there was any additional discussion. When no questions were raised, he entertained a motion for a determination of probable cause of a violation of Section 466.028(1)(y), Florida Statutes, as alleged in the draft administrative complaint. The Panel determined that there was probable cause of a violation and directed the Department to file an Administrative Complaint against the Petitioner's license. The Department filed an Administrative Complaint against the Petitioner on December 23, 1988, alleging that Petitioner had violated Section 466.028(1)(y), Florida Statutes. Paragraph 5 of the Administrative Complaint stated: 5. The treatment rendered by [Dr. Rindley] to failed to meet the minimum standards of diagnosis and treatment as evidenced by, but not limited to, the following: failure to take radiographs; the partial denture rocked from side to side upon applying downward pressure; the lower teeth, as fabricated, were not placed over the ridge; the rocking partial endangered the teeth and the supporting alveolar structure. extracting teeth without the benefit of a radiographic examination. The Administrative Complaint did not include any allegations of a record-keeping violation by Dr. Rindley. No allegation of such a violation was contained in the draft administrative complaint or discussed by the Probable Cause Panel. In his response to the Administrative Complaint, Petitioner's counsel made specific reference to Petitioner's pending lawsuit against the Board and the Department's previous efforts to discipline Petitioner as well as purported investigations by the Federal Trade Commission on the allegations made by Petitioner in the Federal Lawsuit. The Department retained a private law firm on a contract basis to handle the prosecution of the case. On June 7, 1989, the contract attorney for the Department wrote to Nancy Snurkowski about a conversation he had with Dr. Zimmerman and noted that: [Zimmerman] did not think this case was particularly strong. However, Zimmerman stated that he was able to find probable cause for DPR based on the fact that Rindley did not take x-rays before surgery. Zimmerman further stated that: because this case involved only a partial plate, he is afraid the hearing office [sic] might throw it out because it is so small. Zimmerman stated that the hearing officer might not rule in our favor because the patient could have gone back to Rindley for additional treatment in order to have his partial plate fitted correctly. However, Zimmerman will still testify that x-rays were not taken before surgery, which he feels is in violation of Florida Statutes. After he learned that the Administrative Complaint filed against Petitioner did not include a count charging Petitioner with failing to properly document his treatment plan for the Patient, Dr. Zimmerman wrote to Nancy Snurkowski on July 5, 1989 stating that he was withdrawing from the case and would not testify because the prosecution had "been so poorly executed" and that he felt "most strongly that my efforts have been totally ignored, . . ." Dr. Zimmerman testified in the hearing in this case that, while he was disturbed by the way the prosecution was being handled, he felt at the time and still feels that, based on the evidence he reviewed, there was probable cause to find that Petitioner violated the provisions of law set forth in his August 24, 1988 letter. The contract attorney wrote to Ms. Snurkowski on July 11, 1989, regarding Dr. Zimmerman's concerns. That letter provided as follows: As we discussed in our telephone conversation on July 7, 1989, we are having some problems with our expert, Dr. Jerry Zimmerman. Dr. Zimmerman apparently is of the opinion that this case involves poor record keeping, rather than negligence or incompetence. In fact, he has gone so far as to say that unless we amend our Administrative Complaint to reflect a charge for poor record keeping, he will no longer be our expert in this case. . . . You and I both agree that Dr. Zimmerman has 'missed the boat' on his opinion because this is a case of negligence or incompetence, and not poor record keeping. Dr. Zimmerman believes that the Respondent's failure to take x-rays is evidence of poor record keeping. You and I agree that it would have only been poor record keeping if he had taken the x-rays and then discarded or lost them. [Dr. Rindley's] failure to take the x-rays at all is evidence of incompetence or gross negligence. I also advised you that Dr. Zimmerman felt that our case was weak anyway. The parties proceeded with discovery and preparations for a formal hearing. In a letter dated September 18, 1989, the contract attorney advised the Department that a good argument could be made in defense of the Administrative Complaint that the Patient did not give the Petitioner "ample opportunity to adjust the lower plate to fit properly or permit the [Petitioner] to make a new upper plate." Counsel also expressed his opinion that the Patient was a "terrible witness" who was easily roused to anger and emotional outbursts." The attorney pointed out that the Patient had obtained a new upper and lower plate from a subsequent dentist. These factors led the contract attorney to conclude that chances of success at formal hearing were remote. With the consent of both parties, the hearing in the Underlying Proceeding was continued at least twice. On January 30, 1990, the contract attorney wrote to Ms. Snurkowski confirming a discussion they had regarding the weakness of the case "based upon the nature of our complainant's testimony and demeanor combined with the problems we have with our expert witness, Dr. Jerry Zimmerman." The letter also confirms that Ms. Snurkowski authorized the contract attorney to propose a settlement pursuant to which Respondent would dismiss the Administrative Complaint filed in the Underlying Proceeding in exchange for Petitioner's agreement to waive any rights to seek fees or costs against Respondent and "not to endeavor to utilize this particular prosecution in connection with any unrelated allegations [Dr. Rindley] has or will be bringing against the DPR." This reference to the unrelated allegations was apparently an allusion to Petitioner's Federal Lawsuit. The letter indicates that Petitioner's counsel refused the settlement offer unless two other pending disciplinary cases against Petitioner were included. The contract attorney stated that if an agreement could not be reached along the lines proposed by Petitioner's attorney, it would be necessary to either dismiss the case unilaterally or "immediately retain a new expert witness, in hopes that his opinion, as in the case of our prior expert, is a favorable one." The Department's contract attorney sought input from two additional expert consultants. He obtained the opinion of John Jordan, Jr., D.M.D., on April 9, 1990, and the opinion of Peter A. Keller, D.D.S., on March 5, 1990. Both Dr. Jordan and Dr. Keller felt that the failure to take an x-ray before extracting teeth was below community standards. Dr. Jordan was unable to comment on the lower partial manufactured by Petitioner and Dr. Keller found that, under the circumstances of the case and as revealed by the evidence, Petitioner's manufacture of the partial was not below community standards. On May 31, 1990, the deposition of the Patient, E. B., was taken. At some point during that day, the Patient spoke off the record with the attorneys. As a result of those discussions, the Patient signed a written statement dated May 31, 1990, which was drafted with the assistance of Petitioner's counsel. That statement provided as follows: To whom it may concern: . . . as I have stated now on numerous occasions to various people associated with the Department of Professional Regulations and the various attorneys assigned to this matter, I do not want to prosecute or pursue this matter. As was stated both throughout my prior deposition and at several conversations after the deposition . . . I wanted only certain work performed and he indicated [sic] needed only what I requested, but other work. I was only going to be in town for a short period of time and I wanted what I wanted done quickly. Dr. Rindley had, in the past, done work for me in a timely and satisfactory manner and I got angry with him and he got angry with me. I left his office without allowing him to complete and/or adjust the work done. It is not clear from the evidence presented in this case whether Petitioner refunded the Patient's money or otherwise made any accommodation to him in return for the Patient's execution of this statement. Because (a) Dr. Zimmerman had withdrawn from the case, (b) the Patient no longer wanted to cooperate and (c) the lower partial made by Petitioner had apparently been damaged, there was very little evidence to support paragraphs 5(b), 5(c), and 5(d) of the original Administrative Complaint regarding the alleged improper fabrication of the partial. After seeking and obtaining the necessary approval from the Hearing Officer, an Amended Administrative Complaint was filed by the Department on July 6, 1990. The Amended Administrative Complaint dropped the charges regarding the fabrication of the partial denture and narrowed the issues in the case to whether Petitioner's alleged failure to obtain x-rays violated Section 466.028(1)(y), Florida Statutes. At the time, after probable cause had been found, the Department could only close a file by taking the case back to a Probable Cause Panel or to the entire Board. On July 27, 1990, the Department's attorney took the case back to the Probable Cause Panel with a recommendation to terminate the prosecution because of what she felt was a lack of clear and convincing evidence of a violation This second Probable Cause Panel was composed of Robert T. Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. Dr. Ferris and Dr. Cadle were named defendants in Petitioner's Federal Lawsuit. Mr. Hudson was apparently not named as a defendant. The transcript reflects that both Drs. Ferris and Cadle were aware during the Probable Cause Panel hearing that they were defendants in the federal case. Ms. Snurkowski advised the panel that: The second [reason for dropping the case], in all candor, references Dr. Rindley and his past disciplinary history with the Department and his federal action and whatnot. . . . I just felt that it was not worth getting into additional potential federal litigation or potentially try to go to hearing and lose the case, and then looking at attorney's fees and costs imposed upon the Board . . . It wasn't worth at that point trying to litigate the case, albeit a remaining issue is still viable. As noted above, it was Ms. Snurkowski's usual and customary procedure to provide the panel members with a complete copy of the Department's investigative file in advance of the Probable Cause Panel meeting. When a case was re-presented to the Probable Cause Panel after it had been in litigation, the Probable Cause Panel would not necessarily receive the entire litigation file. Petitioner argues that there were extensive depositions taken during discovery in the Underlying Proceeding which were not provided to the Second Probable Cause Panel for consideration. Many of those depositions had not been transcribed. In any event, Petitioner has not shown that there was any information that was known to the Department at the time that was not presented to the Second Probable Cause Panel and would likely have changed the conclusions reached by the Second Probable Cause Panel. The transcript of the Second Probable Cause Panel hearing does not include any attachments to confirm what information the Panel considered. Each of the panel members indicated on the record that they had received the Department's investigative report and had reviewed it prior to the meeting. Ms. Snurkowski admittedly had only a "bare bones file" with her at the time of the Second Probable Cause Panel. The opinions of the two experts retained in anticipation of the formal hearing by the contract attorney were only provided to the Second Probable Cause Panel in summary or verbal form. At the Second Probable Cause Panel meeting on July 27, 1990, Ms. Snurkowski recommended against pursuing the Amended Administrative Complaint. At least one member of the Panel recognized that Petitioner claimed the Patient refused to have x-rays taken. After considering the investigative report, Dr. Zimmerman's opinion, the response of the Petitioner, the Patient records, and the feelings of the Department regarding the credibility of the witnesses and the strength of the case, the Second Probable Cause Panel directed that prosecution of the case should continue with the proviso that the Department should review Dr. Keller's opinion regarding paragraphs 5(b), 5(c), and 5(d) of the original Administrative Complaint and proceed only on paragraphs 5(a) and 5(e) if Dr. Keller's opinion supported that decision. The evidence did not establish that the decision of the second Probable Cause Panel was motivated by the Federal Lawsuit or any prejudice against Petitioner because he was an "advertising dentist." Instead, the more persuasive evidence established that the members of that panel, like Drs. Zimmerman, Keller and Jordan, were very concerned about Petitioner's extraction of teeth without the benefits of x-rays. A formal hearing was conducted on April 16, 1991, on the Amended Administrative Complaint. At that hearing, the Department presented no live witnesses and only submitted the deposition testimony of Dr. Jordan and Dr. Keller. Neither of these depositions addressed the community standards expected of a dentist when a patient refuses x-rays. E. B.'s patient records were not introduced into evidence. Petitioner testified on his own behalf and presented deposition testimony from two experts in the field of dentistry. During the hearing, Petitioner testified that the Patient refused to let him take x-rays during the treatment rendered in 1987 and 1988. Petitioner contended that he utilized x-rays taken of the Patient during treatment rendered in 1981 to assist him in his diagnosis and treatment in 1987-1988. Although those radiographs were outdated, Petitioner contends that they provided some useful information regarding tooth morphology and other matters. Based upon this information and his clinical observations that the teeth that were being extracted were extremely distressed, the Petitioner proceeded with the extractions without new x-rays. Petitioner's experts testified that, under the circumstances, Petitioner's care of the Patient did not fall below community standards. This testimony of Petitioner and his experts at the April 16, 1991 hearing was not successfully rebutted or impeached. The deposition testimony of the Department's witnesses did not address the unique circumstances asserted by Petitioner at the April 16, 1991 hearing. In his prior statements to the Department's investigators and in the correspondence received from his attorney, Petitioner had never previously conveyed to the Department that he had used x-rays from his previous treatment of the Patient. Moreover, based upon this information and his clinical observations that the teeth that were being extracted were extremely distressed, the Petitioner proceeded with the extractions without new x-rays. The Patient's records provided by Petitioner to the Department did not contain the x-rays purportedly used by Petitioner in treating the Patient nor did the records contain any notation regarding the allegedly extremely distressed condition of the teeth and the Patient's refusal to permit new x-rays. Consequently, these issues were not addressed in the depositions submitted by Respondent. A Recommended Order was entered on July 18, 1991 recommending that the Amended Administrative Complaint be dismissed. Because the Amended Administrative Complaint did not include a count charging Respondent with failure to keep appropriate records, the Recommended Order did not address the adequacy of the Petitioner's records with respect to his course of treatment for the Patient. The Board of Dentistry adopted the Recommended Order and dismissed the Amended Administrative Complaint by Final Order issued December 12, 1991. It is clear that the professional members of both the first and second Probable Cause Panels felt strongly that the extraction of teeth without the benefit of x-rays was a very serious matter. While the Board of Dentistry has not adopted any rules specifically requiring x-rays before extracting teeth, the evidence presented in the Underlying Proceeding and in this case established that it is below community standards to extract teeth without current x-rays except, possibly, in very unique circumstances. No such circumstances were evident from Petitioner's records. If the Department had anticipated the defense advanced by Petitioner during the hearing in the Underlying Proceeding, it is likely that a charge for deficient record keeping would have been included in the Amended Administrative Complaint. Indeed, such a charge had been recommended by the Department's expert from the time he first received the case.
The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, in which the parties have stipulated 1/ that the only disputed issues to be resolved by the Hearing Officer are: Whether the Petitioner qualifies as a small business party as defined by Section 57.111, Florida Statutes. Whether the agency's actions were substantially justified. Whether special circumstances exist that would make an award of attorney's fees unjust.
Findings Of Fact The Petitioner, Stephen S. Spector, M.D., has at all times material to this proceeding been licensed in the State of Florida as a physician. At all times material to this proceeding the Petitioner has engaged in the practice of medicine specializing in ophthalmology and ophthalmic surgery. In connection with his medical practice, the Petitioner also owns and operates, directly or indirectly, at least one outpatient surgery center where he performs most of his surgical procedures. In the normal course of events, when the Petitioner performs surgery at the outpatient surgery center he owns, the patient, or the patient's insurance carrier, is billed separately for the Petitioner's professional services as surgeon and for the use of the outpatient facility. 3/ In the course of his professional practice as a physician/surgeon and the operation of his outpatient surgery center, the Petitioner does business under a variety of business names or business entities, including the following: 4/ Steve S. Spector, M.D., P.A.; Presidential SurgiCenter, Inc.; Presidential Optical, Inc.; and Presidential Eye Center, P.A. At all times material, the Petitioner owned 100 percent of the stock in each of the four corporate entities listed immediately above. At all times material, the Petitioner was employed by Presidential Eye Center, P.A., as a physician/surgeon specializing in ophthalmology, and has been so employed for a period of approximately fourteen or fifteen years. In recent years, the Petitioner's estimated monthly income from his employment by Presidential Eye Center, P.A., was $10,000.00 per month. In some recent years, his income from his employment by Presidential Eye Center, P.A., was somewhat higher. 5/ The Petitioner also receives monthly rental payments from Presidential Eye Center, P.A., Presidential SurgiCenter, Inc., and Presidential Optical, Inc., of approximately $9,500.00. As of the date on which the Administrative Complaint was filed, the Petitioner's net worth was approximately $691,000.00. The evidence in the case does not reveal the number of Petitioner's employees or the number of people employed by the corporate entities through which the Petitioner does business. 6/ The evidence in this case does not clearly reveal which professional and/or business activities are engaged in by the Petitioner in his individual capacity and which are engaged in through each of the four corporate entities of which he is the 100 percent owner. 7/ The Case of Department of Professional Regulation, Board of Medicine v. Stephen S. Spector, M.D., DOAH Case No. 93-1307, DPR Case No. 92-0666, had its genesis in a September 17, 1991 letter from Marc Freeman, M.D., Medical Director of the Family Medical Centers, to the Department of Professional Regulation 8/ (Department) alleging that the Petitioner had made false representations related to billing practices regarding five cataract surgeries and that the Petitioner also made a practice of submitting bills for services and facilities that were allegedly covered by a capitation contract. The case was assigned to DPR Investigator Robert Herron, who notified Petitioner of the complaint and investigation by letter of February 6, 1992. Investigator Herron obtained copies of the medical records for four of the patients indicated in Dr. Freeman's complaint letter, which included records from Humana Hospital and Presidential SurgiCenter, Petitioner's surgical center. Investigator Herron interviewed Dr. Freeman, interviewed the Petitioner through his attorney, and interviewed the attorney representing Humana Health Care Plan. The Petitioner, through counsel, represented that any overbilling to Humana occurred due to errors in bookkeeping and accounting, and not through any fraud on the part of the Petitioner. Other documents obtained as part of this investigation included, but were not limited to, capitation agreements between Petitioner and Humana Medical Plan, Inc., and related court documents from civil litigation which transpired as a result of Petitioner's alleged breach of contract and unjust enrichment. Investigator Herron did not interview the employees of the Petitioner who handled the Petitioner's billing for professional services and for use of facilities. Humana's civil complaint against Petitioner, Case No. CL 90-8421 A B, alleged that Petitioner breached his contract with Humana and profited unfairly as a result, by performing surgeries and billing for same contrary to the provision of capitation agreements between the Petitioner and Humana. Humana claimed that the overbilling by the Petitioner totaled almost $400,000.00. On or about May 21, 1992, Investigator Herron compiled a report which was reviewed and approved by his supervisor on the same date. Settlement of the case between Humana and Petitioner was reached, and an Order of Dismissal was filed in that cause on September 23, 1991. The settlement called for Petitioner to pay Humana Medical Plan, Inc., a total sum of $210,000.00 over an approximate four-year period of time. This settlement was also to include a letter by Humana indicating that this case involved a contractual dispute based upon accounting procedures, and was not based upon allegations of fraud. 9/ Prior to the Probable Cause Panel meeting of July 29, 1992, the Department forwarded to the panel members copies of the complete investigative file regarding the Petitioner, along with a copy of the Department's recommendation in the form of a draft Administrative Complaint. Each panel member received and reviewed the materials related to this case prior to the Probable Cause Panel meeting. DPR Case No. 92-0666 was forwarded to the Probable Cause Panel with a recommendation that probable cause be found for an Administrative Complaint. Present at the July 29, 1992, Probable Cause Panel meeting were panel members Richard McEven, Chairman; Gerard Kaiser, M.D.; and Edward Dauer, M.D. Also present were M. Catherine Lannon, Esquire, from the Attorney General's office, Carlos J. Ramos, attorney for the Department of Professional Regulation, and Teresa Corley, also from the Department. Probable cause was found to exist unanimously by the Panel members, with Dr. Dauer noting that the proposed Administrative Complaint accurately represented "the facts of law at issue." Probable cause was found to exist that Petitioner violated the following statutory provisions: Section 458.331(1)(h), (k) and (n), Florida Statutes. On or about August 7, 1992, the Department initiated action against the Petitioner's license to practice medicine as directed by the Probable Cause Panel of the Board in DPR Case No. 92-0666, later DOAH Case No. 93-1307, through the filing of an Administrative Complaint. The Administrative Complaint filed on August 7, 1992, charged Petitioner with the following violations: filing false reports which the licensee knew to be false in that Petitioner billed patients' insurance carriers for use of his private surgical facility when, in fact, he did not use the facility to perform the surgeries and had agreed to provide services under a capitation agreement; by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine in that Petitioner billed patients' insurance carriers for use of his private surgical facility when, in fact, he did not use the facility to perform the surgeries and had agreed to provide service under a capitation agreement; and exercising influence on a patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party in that Petitioner billed patients' insurance carriers for use of his private surgical facility when, in fact, he did not use the facility to perform the surgeries and had agreed to provide services under a capitation agreement. At the time of the four surgeries that form the basis for the underlying Administrative Complaint, there was no capitation agreement between the Petitioner and Humana, because Humana had terminated the agreement. The materials presented to the original Probable Cause Panel included several documents, all apparently overlooked, which showed that the capitation agreement had been terminated and that the effective date of the termination was prior to the date of the four surgeries at issue in the Administrative Complaint. At the time of the four surgeries at issue in the underlying Administrative Complaint, an employee of Petitioner, Jeanne Gold, had the responsibility of billing for Petitioner's services and for the Presidential SurgiCenter facility fee. For each patient listed in the Administrative Complaint, Ms. Gold billed Humana a surgical facility fee for surgeries purportedly rendered by Petitioner at the Presidential SurgiCenter, even though the surgeries were actually performed at Humana Hospital. There were logical explanations for how the errors occurred, which explanations are set forth in affidavits from Jeanne Gold, Brenda Gruber, and Stephen Cohen. These affidavits which explain how the errors in billing occurred were not part of the materials reviewed by the original Probable Cause Panel, but the information contained in these affidavits could have been obtained prior to the original Probable Cause Panel meeting if the case has been adequately investigated. When the Petitioner was told that Humana believed he had incorrectly billed for the four surgeries at issue, he instructed his staff to inquire into the matter and take any necessary corrective action. The Petitioner subsequently made appropriate reimbursements to correct the subject billing errors. On or about September 14, 1993, Department legal counsel presented DPR Case No. 92-0666 to the Probable Cause Panel for reconsideration based upon information which indicated that Petitioner did not have a capitation agreement with Humana at the time of the subject surgeries and that the incorrect billing was simply an error, not an intentional or fraudulent act. Based upon the recommendation of Department legal counsel, the second Probable Cause Panel dismissed all charges against the Petitioner. The evidence presented to the original Probable Cause Panel was an insufficient basis upon which to find probable cause for the violations asserted in the Administrative Complaint. That evidence failed to contain evidence that would reasonably support a belief that the Respondent acted intentionally or fraudulently, and the evidence also affirmatively showed that some of the facts asserted in the Administrative Complaint were incorrect. Adequate investigation would have revealed that all of the incorrect billing alleged in the Administrative Complaint resulted from unintentional error, for which there was a logical explanation.
The Issue Whether or not Petitioner, James P. Appleman, "willfully" violated Subsections 106.021(3), 106.07(5), and Section 106.1405, Florida Statutes, as alleged by Respondent, Florida Elections Commission, in its Order of Probable Cause; and whether or not Petitioner, James P. Appleman, "knowingly and willfully" violated Subsections 106.19(1)(c) and (d), Florida Statutes, as alleged by Respondent, Florida Elections Commission, in its Order of Probable Cause.
Findings Of Fact Based on the testimony and demeanor of the witnesses, documentary evidence, record of proceedings, and the facts agreed to by the parties in the Joint Pre-hearing Stipulation, the following Findings of Fact are made: In 2000, Petitioner was reelected to the office of State Attorney, Fourteenth Judicial Circuit. Prior to his reelection in 2000, Petitioner had been elected to the same office in 1980, 1984, 1988, 1992, and 1996. Petitioner, on February 1, 1999, signed a Statement of Candidate indicating that he had received, read, and understood Chapter 106, Florida Statutes. During the 2000 campaign, Petitioner made the following purchases using his personal funds in the form of cash, check or charge upon his personal credit card: a. Purchase 1: 7/12/99 Down payment/purchase of vehicle- $525.00 b. Purchase 2: 7/12/99 Purchase of vehicle/tax and title-$602.85 c. Purchase 3: 1/07/00 Bay Pointe Properties-$100.35 d. Purchase 4: 1/13/00 Delchamps Liquors-$58.50 e. Purchase 5: 1/22/00 Delchamps Liquors-$135.10 f. Purchase 6: 1/22/00 Cafe? Thirty A-$144.11 g. Purchase 7: 1/30/00 Pineapple Willy's-$17.45 h. Purchase 8: 5/05/00 Skirt/Jones of New York-$104.00- blouse/Jones of New York-$63.00 i. Purchase 9: 5/09/00 Tie/Dillards-$30.00-tie/Dillards- $40.00-misc. Big & Tall/Dillards- $8.75 j. Purchase 10: 5/23/00 Blazer/Polo Store-$199.99-short sleeve shirt/Polo Store-$39.99- short sleeve shirt/Polo Store- $39.99-short sleeve shirt/Polo Store-$39.99-shorts/Polo Store- $29.99 k. Purchase 11: 5/05/00 Casual bottoms/Brooks Brothers- $34.90-casual bottoms/Brooks Brothers-$34.90 casual bottoms/Brooks Brothers-$34.90 l. Purchase 12: 5/05/00 Shorts/Geoffrey Beene-$24.99- shorts/Geoffrey Beene-$24.99 m. Purchase 13: 5/05/00 Sport coat/Dillards-$195.00 n. Purchase 14: Telephone expense-$23.49 o. Purchase 15: 8/11/00 Tie down/Wal-Mart-$19.96-security chain/Wal-Mart-$19.26 p. Purchase 16: 8/11/00 Trailer hitch ball-$16.99 q. Purchase 17: 8/12/00 Event admission-$60.00 r. Purchase 18: 8/23/00 Liquor purchase/Delchamps-$37.41 s. Purchase 19: 8/30/00 Gas purchase/Shop a Snack-$20.00 t. Purchase 20: 8/30/00 Event admission-$40.00 u. Purchase 21: 8/30/00 Event admission/DEC-$15.00 v. Purchase 22: 8/26/00 Sign charge-$20.64 w. Purchase 23: 8/30/00 Auto insurance charge-$100.00 x. Purchase 24: 9/02/00 Gas purchase/Happy Stores-$34.00 y. Purchase 25: 9/02/00 Campaign staff/meal/food-$140.00 z. Purchase 26: 9/04/00 Ice purchase/Winn Dixie-$6.36 aa. Purchase 27: 9/05/00 Gas purchase/Swifty Store-$25.00 bb. Purchase 28: 9/06/00 Meal purchase/ St. Andrews Seafood House-$27.52 cc. Purchase 29: 9/08/00 Posthole digger-$42.90 dd. Purchase 30: 9/08/00 Lunch for sign crew-$20.14 None of these purchases were individually listed on Petitioner's Campaign Treasurer's Reports. Petitioner was reimbursed for each of the above- referenced expenditures by a check written on the campaign account, which was listed as an expenditure on Petitioner's Campaign Treasurer's Reports filed with the Division of Elections as follows: Date Name and Address of Person Receiving Reimbursement Purpose Amount 07-17-99 Appleman, Jim PO Box 28116 Panama City, FL 32411 02-11-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 Reimb. Cmpgn. Vehicle Expenses Reimb. Cmpgn. Expenses $1,127.85 $830.81 06-10-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 08-07-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 Reimb. Cmpgn. Expenses Reimburse vehicle & Phone exp. $1,000.00 $400.00 08-30-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 09-08-00 Appleman, Jim PO Box 28116 Panama City, FL 32411 Reimbursement/ Campaign Expense Reimbursement Camp. Expense $670.51 $295.92 On July 18, 2000, a campaign check for $140.99 was written to Winn Dixie. This check was reported on Petitioner's Campaign Treasurer's Report with the purpose listed as being "Campaign Social Supplies." The Winn Dixie purchase included the following items: A cat pan liner. 4 cans of cat food. A box of dryer sheets. A package of kitty litter. f. A jug of laundry detergent. The total cost of these items was $33.88. Petitioner signed all of his Campaign Treasurer's Reports, certifying as to their accuracy. The July 18, 2000, purchases at Winn Dixie were made by Mrs. Appleman, Petitioner's wife, and were a result of an inadvertent error. Immediately realizing that she had purchased personal items with campaign funds, she brought the matter to Petitioner's attention. Petitioner took possession of the Winn Dixie cash register receipt for the purchases; on the receipt he circled the inappropriate purchases with a pen, noted the total amount of inappropriate purchases on the receipt adding his initials, submitted the cash register receipt to his campaign treasurer, and several days later wrote a check reimbursing the campaign for the inappropriate purchases. During the campaign, Petitioner made 30 purchases listed in paragraph 3, supra, with personal funds, i.e., cash, personal check, or personal credit card, for which he provided receipts, and sought and received reimbursement from campaign funds by campaign check. These 30 purchases were not individually reported as expenditures on Campaign Treasurer's Reports during the reporting periods during which the purchases were made, but were reported as reimbursements as reflected in paragraph 4, supra. No evidence was presented that suggested that Purchases 3-7, Purchase 14, Purchases 17-22, or Purchases 24-30 listed in paragraph 3, supra, were not for campaign-related purposes. During the April 1 through June 30, 2000, campaign reporting period, Petitioner purchased 16 items of clothing (listed in paragraph 3, supra, as Purchases 8-13) for which he received reimbursement from campaign funds by campaign check. Petitioner and his wife testified that these items of clothing were used exclusively for campaign functions and purposes. Admittedly, each of the items of clothing could be used for non- campaign functions and purposes. However, the Campaign Treasurer's Reports reflect that in excess of $1,100 of "campaign shirts" were purchased during the campaign, supporting Petitioner's contention that he, his wife and campaign workers were all attired, while campaigning, in a color-coordinated "uniform of the day": red shirts, and tan/khaki trousers or walking shorts. This is further supported by photographs admitted into evidence. I find credible and accept the testimony of Petitioner and his wife that the items of clothing in the questioned purchases were used exclusively for campaign functions and purposes and not to "defray normal living expenses." During the August 12 through August 31, 2000, campaign reporting period, Petitioner purchased the following items for which he received reimbursement from campaign funds by campaign check: trailer hitch ball, trailer security chain, and sign tie-downs (listed in paragraph 3, supra, as Purchases 15 and 16). These three items were clearly used for campaign purposes and not to "defray normal living expenses." On August 30, 2001, Petitioner received a campaign check from the campaign treasurer reimbursing him for several campaign expenses he had paid. Among these campaign expenses, Petitioner sought reimbursement for $100 for "auto insurance" (listed in paragraph 3, supra, as Purchase 23). From the onset of his campaign, Petitioner had consistently either paid his automobile liability insurer, United Services Automobile Association, directly with a campaign check or sought reimbursement for payments he personally made for liability insurance on his personal vehicle or the "campaign Jeep" for automobile liability insurance cost attributable to the use of the motor vehicles in the campaign. Automobile liability insurance expense is a legitimate campaign expense and can reasonably be considered an actual transportation expense exempt from the statutory prohibition against payments made to "defray normal living expenses." On July 12, 1999, Petitioner purchased a 1997 Jeep to be used as a campaign vehicle (the down payment, tax and tag are listed in paragraph 3, supra, as Purchases 1 and 2); thereafter, loan payments to Tyndall Federal Credit Union and automobile liability insurance payments to United Services Automobile Association for the campaign vehicle were paid by the campaign treasury. On December 7, 1999, the 1997 Jeep was sold/traded to a third party for a 1999 Honda which was not used as a campaign vehicle. The Tyndall Federal Credit Union lien was transferred to the 1999 Honda. After December 7, 1999, the 1999 Honda was driven by Petitioner's adult stepdaughter. At the time of the transfer of the vehicles, Petitioner and his wife agreed that she would reimburse the campaign $800 which was determined to be the value lost by the campaign when the 1997 Jeep was traded. Petitioner later determined that he should reimburse the campaign an additional $525, the amount of the down payment paid when the 1997 Jeep was purchased in July 1999. On June 2, 2000, Petitioner's wife tendered a personal check drawn on her personal account to the campaign account for $800, which was reported under an entry date of June 5, 2000, on the Campaign Treasurer's Report for the period ending June 30, 2000, as a "REF" made by Petitioner. On March 14, 2001, Petitioner tendered a personal check to the campaign account for $617. This included $525 for the 1999 Jeep down payment reimbursement and an automobile liability insurance refund. Prior to the June 5, 2000, "REF" entry on the Campaign Treasurer's Report, there had been no report reflecting the sale of the campaign vehicle. The sale of the 1999 Jeep should have been reported on the Campaign Treasurer's Report for the period ending December 31, 1999; it was not. Petitioner certified that he had examined the subject Campaign Treasurer's Report and that it was "true, correct and complete" when, in fact, it was not as it did not reflect the sale of the campaign vehicle or the failure of Petitioner to pay the campaign treasury either $800 or $1,325, the amount Petitioner ultimately determined the campaign treasury should have been reimbursed as reflected by his late reimbursements.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Petitioner, James P. Appleman, violated Subsection 106.07(5), Florida Statutes, on one occasion and Subsection 106.19(1)(c), Florida Statutes, on one occasion and assess a civil penalty of $1,000 for the violation of Subsection 106.07(5), Florida Statutes, and a civil penalty of $2,400 for violation of Subsection 106.19(1)(c), Florida Statutes; and dismissing the remaining alleged violations of Chapter 106, Florida Statutes, against him as asserted in the Order of Probable Cause. DONE AND ENTERED this 15th day of April, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 15th day of April, 2002. COPIES FURNISHED: David F. Chester, Esquire Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Mark Herron, Esquire Messer, Caparello and Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050
