Findings Of Fact Petitioner, Raul Romaguera, is a small business party within the meaning of Subsection 57.111(3)(d), Florida Statutes (1985). When the underlying action herein occurred, he was licensed as a medical doctor by respondent, Department of Professional Regulation, Board of Medical Examiners (Board). On October 27, 1986, respondent filed an administrative complaint against Dr. Romaguera alleging that he had violated Subsection 458.331(1)(t), Florida Statutes (1985), by committing gross malpractice or 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. The alleged violation related to Dr. Romaguera's inspection and diagnosis of a patient's tissue in December, 1980 while supervising a pathology department at a Lake Worth hospital. After an evidentiary hearing was conducted on March 24 and 25, 1987, a Recommended Order was entered by the undersigned on May 12, 1987, finding that the charge was unsubstantiated and recommending that the complaint be dismissed. The Recommended Order was adopted by the Board in its entirety by Final Order dated June 19, 1987. A timely petition for attorney's fees and costs was thereafter filed by petitioner on August 18, 1987. The parties have stipulated that, as a result of the Board's Final Order, Dr. Romaguera is a prevailing small business party within the meaning of Section 57.111, Florida Statutes (1985). They have also stipulated that, in order to defend against the agency's action, Dr. Romaguera incurred at least $15,000 in attorney's fees and costs. There is no evidence as to what information, oral or written, the probable cause panel had before it when voting to initiate this action. The agency does stipulate that, at some point in the probable cause phase of the proceeding, the panel requested more information on the matter before taking a vote. This is corroborated by an agency memorandum dated April 8, 1986 and introduced into evidence as petitioner's exhibit 1. At the final hearing on the merits of the administrative complaint, the agency presented a number of expert witnesses who concurred in the Board's assessment that Dr. Romaguera had failed to practice medicine with that level of care, skill and treatment required of a reasonably prudent similar practicing physician in the Lake Worth area. Doctor Romaguera also presented the testimony of an expert who disagreed with this assessment. Hence, the validity of the charges turned on the credibility and weight to be given the various experts by the undersigned.
Findings Of Fact Petitioner is the sole proprietor of an unincorporated business engaged in the practice of psychology. Petitioner's business does not employ more than twenty-five (25) full-time employees and has a net worth not exceeding $2,000,000.00. Petitioner's residence, business domicile and principal office are located in Georgia. Petitioner's residence, business domicile and principal office have been so located since 1982. In DOAH Case No. 89-6811, the Department of Professional Regulation, Board of Psychologists, filed an Administrative Complaint, dated July 20, 1989. An Amended Administrative Complaint was filed on December 8, 1989. The Administrative Complaints alleged that the Petitioner was guilty of sexual misconduct in the practice of psychology. The case was voluntarily dismissed by the Department of Professional Regulation prior to the final hearing. The voluntary dismissal was adopted and incorporated into the Final Order entered by the Board in this matter. The Petition for Attorney's Fees and Costs filed pursuant to Rule 221- 6.035, Florida Administrative Code, and Section 57.111, Florida Statutes, was timely, having been filed within sixty days (60) after the date on which the Petitioner had prevailed. According to the initial Affidavit filed by Petitioner's attorney, Petitioner initially incurred legal fees in the amount of $5,106.50 and costs in the amount of $210.05 in DOAH Case No. 89-6811. However, Petitioner is not entitled to an award of attorney's fees and costs since the evidence clearly demonstrated that Petitioner's business or professional practice is neither domiciled in Florida nor has a principal office located in Florida. See, Section 57.111(1)(d)a., Florida Statutes.
The Issue The issue presented is whether Petitioner is entitled to be reimbursed for his attorney's fees and costs incurred in defending the underlying proceeding.
Findings Of Fact On July 2, 1992, the Department of Professional Regulation filed an Administrative Complaint against Petitioner, alleging that Petitioner had used the letters "D.D.S." following his name on letterhead and had testified as an expert in the field of dentistry in a case involving a Florida licensed dentist. The Administrative Complaint alleged that such conduct by Petitioner constituted the unlicensed practice of dentistry. Petitioner requested a formal hearing regarding those allegations. That cause was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceeding and was assigned DOAH Case No. 92-4570. On January 27, 1993, a Recommended Order was entered in DOAH Case No. 92-4570, holding that Petitioner's use of the letters "D.D.S." did not represent that he was licensed to practice dentistry in the State of Florida, but merely reflected Petitioner's educational background, and that Petitioner was not required by the Florida Evidence Code or any other law to be licensed in the State of Florida in order to testify as an expert in an administrative or judicial proceeding. The Recommended Order concluded that Petitioner should be found not guilty of the allegations in the Administrative Complaint. The Department of Professional Regulation entered a Final Order rejecting findings of fact and conclusions of law in that Recommended Order and found Petitioner guilty of the unauthorized practice of dentistry. Petitioner appealed that Final Order to the District Court of Appeal of Florida, Third District. The appellate court reversed the Department's Final Order and remanded the cause for entry of an order consistent with the Recommended Order. The attorney for the Department who prosecuted the underlying proceeding reviewed the investigative file and then discussed his recommendation with his supervisor. He recommended that Petitioner be prosecuted criminally, not administratively, because he believed that Petitioner was committing a criminal offense and not an administrative violation by holding himself out to be a dentist licensed in the State of Florida. No evidence was offered to show who made the decision to initiate the underlying proceeding on behalf of the Department, and, therefore, no evidence was offered to show what was considered by that person or persons when the decision was made to initiate the underlying proceeding against Petitioner. There is, accordingly, no evidence to show the factual basis for the Department's determination to issue an Administrative Complaint against Petitioner. No evidence was offered to show that anyone on behalf of the Department determined that there was a legal basis for initiating a proceeding against Petitioner for disclosing his educational credentials on letterhead or testifying as an expert witness without being licensed in the state where that testimony was given. In 1990 (the year during which Petitioner testified as an expert witness) and in 1991 (the year during which Petitioner wrote an opinion on the letterhead which concerned the Department), Petitioner performed his services as a legal-dental consultant as a sole proprietor of an unincorporated business, under his own name, although some other services were performed through Dental-Legal Advisors, Inc. Petitioner's principal office was located in Florida, he was domiciled in Florida, he had no employees, and Petitioner's net worth was less than $2,000,000, including both personal and business investments. The Department was not substantially justified in initiating the underlying proceeding against Petitioner. Petitioner qualified as a small business party when the underlying proceeding was brought against him. Petitioner is entitled to recover $15,000 from the Department for his costs and attorney's fees in defending the underlying proceeding.
The Issue The issue presented is whether Petitioner is entitled to recover from Respondent his attorney's fees and costs, pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes.
Findings Of Fact On October 24, 2007, Respondent Department of Business and Professional Regulation, Division of Real Estate, received a complaint against Petitioner Elbert Cecil Wright, III, a certified residential appraiser holding license numbered 219. The complaint was assigned to an investigator, Judy S. Smith, who has some level of training regarding real estate appraisals but no personal experience or licensure in the field. The complaint letter was written by Kathleen Tesi, who lives in Virginia and represents herself to have no expertise in real estate appraisal. At the urging of a personal friend in 2005, she purchased a vacant lot, sight unseen, in Bella Collina West, Montverde, Florida, for $655,900. Tesi understood that she would be buying the lot with her friend with the expectation that they would hold title for some time period and then sell it for a profit. The two of them had done this together in the past. The entire transaction, including the closing, was done by mail, and multiple documents and multiple versions of those documents were exchanged. It appears that Tesi and her friend are both named on the mortgage, although Tesi questions her friend's signature. The mortgage note, however, was executed only by Tesi. The contract for purchase of the lot, however, was in the name of her friend and a third party, whom Tesi does not know, and Tesi is not reflected as a purchaser of the lot. Respondent's investigative file does not contain a copy of the deed to the lot, so it is unknown whether Tesi has an ownership interest in the lot or just the financial obligation to pay for it. Tesi's potential mortgage company, SunTrust Mortgage, Inc., contracted with Petitioner to prepare an appraisal of the property for SunTrust. Petitioner prepared and submitted an appraisal to SunTrust, his client, which reflected that the property was valued at the purchase price. In 2007, when property values fell sharply and Tesi's friend advised her that she would no longer help Tesi with the mortgage payments, Tesi began seeking and gathering copies of the purchase agreement and closing documents from the title company and SunTrust. She then filed a complaint with the Georgia Banking Commission against SunTrust for, essentially, loaning her more money than she could pay back; against the title company for, essentially, inconsistent names throughout the paperwork involved in the closing and transfer of title; and the complaint with Respondent against Petitioner for producing an inferior appraisal. Her complaint regarding Petitioner's appraisal of the property raises three concerns: Petitioner did not use appropriate comparables, Petitioner overvalued her property, and Petitioner misrepresented the size of the lot. In her complaint to the Georgia Banking Commission, she suggests that the incorrect lot size on Petitioner's appraisal should invalidate the appraisal and, therefore, invalidate the loan she obtained from SunTrust. Smith forwarded Tesi's complaint to Petitioner, who responded by letter dated November 30, 2007. He explained that at the time of his appraisal, Lake County had not yet uploaded records on the new subdivision Bella Collina West concerning plats or sales. He, therefore, obtained such information from the on-site sales staff and named the sales manager who advised him that there were not yet any closed sales in the subdivision and who gave Petitioner the dimensions of Tesi's lot. The letter explained in detail why Petitioner chose comparables in the earlier-developed phase of Bella Collina and how he made adjustments in value for those recent closed sales of much- larger lot sizes because they were not on the golf course as was Tesi's lot. Investigator Smith interviewed Petitioner on January 31, 2008. He explained to her again why he chose the comparables that he chose, how he computed the value of the lot in question, and that he obtained the lot dimensions from the on-site sales staff for the subdivision. Smith also interviewed a sales person at the developer's sales office at the subdivision. He explained to her that the lots in the subdivision were in such high demand in 2005 that the developer resorted to a lottery system to determine who would even be able to buy a lot. Smith did not speak to the sales person Petitioner said he had obtained information from when he prepared his appraisal of Tesi's lot. Smith went to Bella Collina West and Bella Collina, an earlier phase of the development. She saw that the comparables utilized by Petitioner were much-larger lots than Tesi's but that Tesi's was on the golf course. She did no further investigation. Specifically, she did nothing to verify the information Petitioner gave her relating to the issues raised by Tesi. For example, she did not verify Petitioner's statements to her that there were 14 sales of vacant lots the same size as Tesi's lot that sold for the same price as Tesi's at the same time. She did not consult with an expert to determine if there were any statutory violations committed by Petitioner regarding that appraisal or if there were professional standards violated. Smith completed her investigative report which, basically, included Tesi's complaint and Petitioner's response. That report was forwarded to the Florida Real Estate Appraisal Board, along with a draft administrative complaint. The report contains no explanation concerning the professional standards or statutes Petitioner allegedly violated. The report simply recites what each of the three individuals Smith interviewed said to her. The Probable Cause Panel of the Board considered the investigative report on April 9, 2008. The Transcript of the meeting reflects the presence of 12 persons, only two of whom were members of the probable cause panel. The remainder of those present were attorneys or staff members for the Board or the Department. Of the two probable cause panel members, Michael Rogers was physically present, and Clay Ketcham attended the meeting by telephone. No evidence was offered in this proceeding as to whether they were licensees of the Board or lay persons, although Respondent's attorney asserted during argument in this proceeding that both gentlemen are state certified general appraisers. The entire consideration of the charges against Petitioner is less than three transcript pages long. First, the prosecutor erroneously described the size of Tesi's vacant lot, the date of the appraisal, and the county in which the lot was located. She then mentioned that the comparables Petitioner used were larger, and he made adjustments for size, location, and view. She then advised that Petitioner had two prior disciplinary actions and recommended the Board approve the draft six-count administrative complaint. Panel member Ketcham asked whether prior disciplinary action could constitute a charge in an administrative complaint. His question was answered, and the two panel members then found probable cause to file the administrative complaint. There was no discussion regarding any of Tesi's allegations, the explanations Petitioner had given, why Petitioner's choice of comparables or the offset he used were incorrect, the alleged statutory violations Petitioner was charged with committing, or the professional standards Petitioner was charged with violating. It is clear that the two panel members simply "rubber-stamped" the prosecutor's recommendation. After the administrative complaint was issued, Petitioner requested an administrative hearing, and the matter was referred to the Division of Administrative Hearings and assigned DOAH Case No. 08-4720PL. The final hearing in that case, the underlying proceeding, was conducted on January 22, 2009. At the final hearing, the Department's only expert to testify agreed with Petitioner that the erroneous lot size Petitioner used in his appraisal had no impact on the value of the lot. Although the Department's expert disagreed with the comparables used and the adjustments in value Petitioner made, there was no suggestion as to what the "correct" appraised value of the lot should have been. On April 1, 2009, the undersigned entered a Recommended Order finding that the Department of Business and Professional Regulation, Division of Real Estate, had failed to prove any of the six counts contained in the administrative complaint and recommending that a final order be entered finding Petitioner not guilty and dismissing the administrative complaint. On September 18, 2009, the Florida Real Estate Appraisal Board entered a Final Order adopting that Recommended Order and dismissing the administrative complaint against Petitioner. On November 16, 2009, Petitioner filed his motion for attorney's fees and costs, seeking to be reimbursed for those amounts expended in defending the underlying action. His motion was assigned DOAH Case No. 09-6338F. That motion seeks an award of attorney's fees in the amount of $9,720.00 and costs in the amount of $1,206.95, for a total of $10,926.95. Petitioner prevailed in the underlying proceeding and is a small business party. His net worth, including both personal and business investments, is less than $2,000,000. Respondent was not substantially justified in initiating the underlying proceeding against Petitioner.
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.
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.
The Issue Whether Petitioner, Dr. Herbert R. Slavin, is entitled to an award of attorney's fees and costs in an amount not exceeding $50,000 pursuant to section 57.111, Florida Statutes (2011).
Findings Of Fact Dr. Slavin, a licensed physician who specializes in internal medicine, has practiced in the state of Florida since 1981. In or around 2008, Dr. Slavin formed, and is the sole shareholder of, "Ageless Medicine Associates," a subchapter S corporation1/ under which he practices medicine. On October 31, 2011, the Department filed an Administrative Complaint that charged Dr. Slavin with two statutory violations, both of which were ultimately dismissed by the Board of Medicine. In connection with that proceeding, Dr. Slavin now seeks an award of attorney's fees and costs pursuant to section 57.111. As explained later in this Final Order, a party seeking fees and costs pursuant to section 57.111 must demonstrate that he or she was a "small business party" at the time the underlying action was initiated by the state——in this instance, October 31, 2011. Section 57.111(3)(d) contemplates that a small business party can take four alternative forms, only two of which require discussion here: a partnership or corporation, including a professional practice, that, during the relevant timeframe, had 25 or fewer full-time employees or a net worth of not more than $2,000,000 (section 57.111(3)(d)1.b.); or an individual whose net worth did not exceed $2,000,000 during the relevant period (section 57.111(3)(d)1.c.). The evidence establishes that, as of October 2011, Ageless Medicine Associates had fewer than 25 employees and a net worth that did not exceed $2,000,000. The problem, though, and as discussed elsewhere in this Order, is that section 57.111(3)(d)1.b. has no application where, as in this case, the underlying complaint was filed against a licensee individually, rather than the partnership or corporation under which the licensee conducts business. As for Dr. Slavin's personal finances, his 2011 tax return reflects income of $171,810, virtually all of which comprises wages and business income derived from Ageless Medicine Associates, and an adjusted gross income of $161,400. The remainder of Dr. Slavin's financial picture (including, for example, any assets on hand that did not generate taxable income) during October 2011 is nebulous, however, for nearly all of his testimony focused incorrectly on his finances at the time of the final hearing: Q. Are you, doctor, currently worth $2,000,000? A. No. * * * Q. Dr. Slavin, do you own a home? A. Yes. Q. How much, if you know, is that home worth? A. Probably around $300,000 to $350,000. Q. And do you have a mortgage on that home? A. Yes. Q. How much is the mortgage; do you know? A. $145,000. Q. And do you have any cash in the bank? A. Yes. Q. How much? A. Around $10,000 . . . . * * * Q. Do you own any boats? A. No. Q. Do you own any vacation homes? A. No. Q. Do you own any interest in any other businesses? A. No. Q. Do you have a lot of stock accounts? A. No. * * * Q. Okay. Is there any other asset that you have that has not been mentioned; your home, your business? Do you own your vehicles? A. No, they're leased. Q. Do you own any other stocks or bonds that provide you with an income or that are worth money, that you know of? A. No. * * * Q. Dr. Slavin, you testified that -- You were asked by counsel whether or not you had a lot of stocks or bonds as assets and you stated no. Do you -- what does a lot mean? A. Well, I have -- I don't have any direct ownership of stocks or bonds. There are some annuities I have that have, I guess, investments and mutual funds or something. You know, I'm not -– * * * Q. Dr. Slavin, have you presented any information or any documentation as to what items are within your home? A. Not that I'm aware of. I have a television, -- Q. Do you have -- A. -- a refrigerator and -- Q. Do you have furniture in your home? A. Yeah. I have furniture, a refrigerator, stove, microwave. I have -- Q. Do you have computer equipment in your home? A. I have laptop computers in the home. Q. Do you have any personal items; jewelry, watches in your home? A. I have -– Yes, I have watches. Final Hearing Transcript, pp. 23; 25-28; 30-31 (emphasis added). Even assuming, arguendo, that Dr. Slavin's testimony had been properly oriented to the relevant time period (which it was not, in nearly all instances), his overall evidentiary presentation was simply too fragmentary to permit the undersigned to independently determine the value of his net worth——a figure derived2/ by subtracting total liabilities from total assets. For example, Dr. Slavin provided: no information concerning his annuities and mutual funds, the value of which could be non- trivial due to the remunerative nature his profession and his length of time in practice; no details regarding the value of his household assets; and no credible evidence regarding the value of his home.3/ In light of these gaping holes in the evidence, which preclude anything more than rank speculation concerning the value of Dr. Slavin's personal net worth, it is determined that status as a small business party has not been proven.4/ Because Dr. Slavin's failure to establish his status as a small business party is fatal to his application for attorney's fees, it is unnecessary to determine whether the underlying proceeding was substantially justified.
Findings Of Fact Bernard M. Tully, M.D. served by mail his Motion to Tax Attorney's Fees and Costs pursuant to Chapter 57, Florida Statutes, on May 19, 1987; same was filed with the Division of Administrative Hearings on May 21, 1987 and was assigned DOAH Case No. 87-2265F. This instant cause is a fee and costs case pursuant to Chapter 57, Florida Statutes, arising out of Department of Professional Regulation, Board of Medical Examiners v. Bernard M. Tully, M.D.; DOAH Case No. 85-3175. The Department of Professional Regulation has moved to dismiss Tully's Motion to Tax Attorney's and Costs, (hereafter, "Fees and Costs Petition") upon allegations that the claim was not filed in a timely manner pursuant to Section 57.111(4)(b)2, Florida Statutes, and upon allegations that the Fees and Costs Petition did not comply with the requirements of Section 57.111(4)(b), Florida Statutes, in that the claimant had not submitted an itemized affidavit of the nature and extent of the services rendered as well as the costs incurred. A Voluntary Dismissal was served by mail by Petitioner Department of Professional Regulation in DOAH Case No. 85-3175 on March 6, 1987, and filed with the Division of Administrative Hearings on March 10, 1987. The Order closing the Division file in that case was entered March 18, 1987, but is largely superfluous since a Voluntary Dismissal by the party bearing the burden of proof dismisses a cause by operation of law as of the date of filing of the Voluntary Dismissal. Tully's Fees and Costs Petition was served (May 19, 1987) and filed (May 21, 1987) well beyond the 60 day timeframe (May 11, 1987) provided in Section 57.111(4)(b)2, Florida Statutes, for the filing of such claims. Tully's Fees and Costs Petition attached schedules itemizing costs incurred and pleadings filed in DOAH Case No. 85-3175. The Petition was not verified and no affidavits are attached. In these respects, the Fees and Costs Petition failed to comply with Section 57.111(4)(b)1, Florida Statutes, and Rule 22I-6.35, Florida Administrative Code. Neither does the Fees and Costs Petition or any accompanying affidavit allege whether or not Tully requests an evidentiary hearing; that he is a small business party; where his domicile and principal office are located; how many employees he has; whether or not he is a sole proprietor of an unincorporated business, and, if so, whether or not his net worth exceeds $2,000,000; whether or not he operates as a partnership or corporation i.e. professional practice, and, if so, whether or not the net worth exceeds $2,000,000; whether the agency's actions were substantially unjustified; and whether or not circumstances exist that would make the award unjust; or whether or not the agency was a nominal party only. There were also no documents upon which the claim was predicated attached to the Fees and Costs Petition. in these respects, the Petition failed to comply with virtually all of Section 57.111(4)(b), Florida Statutes, and Rule 22I-6.035(1)(2), and (3), Florida Administrative Code. Tully timely filed a Response to Order to Show Cause wherein he acknowledged as true and accurate the dates as found in Finding of Fact 4, supra. Moreover, his Response concedes that pursuant to Section 57.111(4)(b)2, Florida Statutes, the application for an award of attorney's fees must be made within 60 days after the date that a small business party becomes a prevailing small business party, but his Response asserts that nothing in the applicable statute provides that an application for costs must be made within 60 days, and therefore at least his application for costs must be deemed timely. The Response further sets out an itemization of costs incurred and is sworn to by Tully's attorney of record. No leave to amend the Petition was granted by the Order to Show Cause.
Findings Of Fact On October 5, 1989, Respondent filed an Order to Show Cause seeking to take disciplinary action against the certification of authority issued to Petitioner, The Administrators Corporation, and the insurance licenses issued to Petitioner, Charles N. Zalis. Petitioners timely requested a formal hearing, and the case was transferred to the Division of Administrative Hearings for the conduct of a formal hearing regarding the allegations contained in that Order to Show Cause. Upon receipt, the matter was assigned DOAH Case No. 89-5981. The final hearing in that disciplinary matter was conducted on May 14, 1990. Thereafter, a Recommended Order was entered on July 9, 1990, recommending to Respondent that a final order be entered finding Petitioners not guilty of the allegations contained in the Order to Show Cause and dismissing the Order to Show Cause filed against them. None of the parties filed exceptions to the Recommended Order. On August 15, 1990, the Treasurer and Insurance Commissioner entered a Final Order adopting in full the Findings of Fact, Conclusions of Law, and Recommendation contained within that Recommended Order; finding the Petitioners not guilty of the allegations contained in the Order to Show Cause filed against them, and dismissing the Order to Show Cause. On September 21, 1990, Petitioners filed with the Division of Administrative Hearings their Petitions for Costs and Fees, pursuant to Section 57.111, Florida Statutes, and Rule 221-6.035, Florida Administrative Code. On September 27, 1990, an Initial Order was entered in each of the above-captioned causes. The Initial Order is a form order automatically prepared by the Clerk's Office and signed by the Director of the Division of Administrative Hearings in every case filed with the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes, except for those proceedings conducted on an expedited basis pursuant to statutory directives. The Initial Order advises the parties as to the name of the Hearing Officer assigned to hear the matter, provides certain procedural information, and solicits specific information from the parties so that the matter can be scheduled for an evidentiary hearing appropriately. On October 8, 1990, Respondent filed a joint Response to Initial Order on behalf of all parties, and on October 10, 1990, Respondent filed a joint Amended Response to Initial Order on behalf of all parties in this proceeding. The Amended Response to Initial Order advised that the parties had agreed that the final hearing should be scheduled for one day during the month of February, 1991, in Tallahassee. Pursuant to the agreement of the parties regarding the scheduling of the evidentiary hearing in this cause, on October 19, 1990, these causes were consolidated sua sponte, and a formal hearing was scheduled in these consolidated causes for February 14, 1991, in Tallahassee, Florida. No response by Respondent to either the Petition for Costs and Fees filed by The Administrators Corporation or the Petition for Costs and Fees filed by Charles N. Zalis has ever been filed in this cause even in the face of the Motion for Summary Final Order based upon Respondent's failure to respond. Accordingly, this matter is decided on the basis of the petitions filed in these consolidated causes, together with the documentation attached to those petitions, Petitioners' Motion for Summary Final Order, together with the documentation attached to that motion, and Respondent's Response to Motion for Summary Final Order. Since the Respondent has failed to controvert or dispute any of the factual allegations contained within those pleadings, there is no factual allegation in dispute in these consolidated causes. Petitioners are small business parties as defined by Section 57.111, Florida Statutes. By virtue of the Final Order entered in DOAH Case No. 89- 5981, Petitioners are prevailing small business parties in an administrative proceeding pursuant to Chapter 120 initiated by a state agency. The actions of Respondent both in initiating and in pursuing the Order to Show Cause filed in DOAH Case No. 89-5981 were substantially unjustified, and no special circumstance exists which would make unjust the award of attorney's fees and costs to Petitioners in these consolidated causes. The itemized affidavits filed in these consolidated causes reveal the nature, extent, and monetary value of the services rendered by Petitioners' attorneys, as well as the costs incurred in the underlying proceeding. Petitioners incurred attorney's fees in the amount of $49,581.25 and costs in the amount of $7,351.72 in the underlying administrative proceeding. The amounts of attorney's fees and costs claimed by Petitioners are reasonable and necessary. The Department of Insurance and Treasurer was not a nominal party only in the underlying administrative proceeding. Petitioners filed their Petitions for Costs and Fees within 60 days after the date that they became prevailing small business parties.
