The Issue The issue is whether Petitioner, as a prevailing small business party in an administrative action, should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Section 57.111(4)(a), Florida Statutes.1
Findings Of Fact Petitioner is a licensed physician in the State of Florida, having been issued license number ME 0027368. The parties by their response or by stipulation agreed that this matter was filed pursuant to Section 57.111, Florida Statutes, and Rule 60Q-2.031, Florida Administrative Code; that the actions in AHCA Case No. 95-03216 were initiated by the Agency for Health Care Administration, an agent for Department of Health, a state agency; that the Agency is not a nominal party only; that the attorney's fees sought by Petitioner are reasonable in the amount up to $15,000.00 and that the statutory cap of $15,000.00 applies; and that the Petitioner prevailed in the underlying case. Respondent also stipulated that it was aware of no circumstances that exist which would make the award unjust. Petitioner, Adolfo Cardenas Dulay, M.D., is a small business party within the meaning of Section 57.111, Florida Statutes. The Administrative Complaint in DOAH Case No. 97-3103 was filed March 26, 1997, against Petitioner. The Complaint alleged Petitioner's failure to recognize the severity of a patient's condition by directing an ambulance to another facility, failing to keep records regarding the patient's condition, failure to treat a hypertensive emergency and very high heart rate, failing to document an order for Procardia and the decision to transfer a patient, failing to keep written records justifying the course of treatment of a patient, and failing to practice medicine at a level accepted by prudent similar physicians under similar conditions and circumstances. Pursuant to Section 455.225, Florida Statutes, Petitioner was notified of the investigation and invited to submit a response to the allegations. Petitioner and his attorney, submitted a letter from an attorney dated August 8, 1995. This was the only response provided by Respondent to the allegations. Petitioner chose not to present any expert opinions to the Probable Cause Panel. The Probable Cause Panel that considered this matter was composed of two physicians, who were or are, Board of Medicine members and a consumer member of the Board of Medicine, as required by statute. Present at the March 20, 1997, meeting of the Probable Cause Panel were Panel members Robert Katims, M.D., Chairman of the Panel; Becky Cherney; and Louis C. Murray, M.D. Also present at the meeting were Allen R. Grossman, Acting Board Counsel; Randy Collette, Senior Attorney for the Agency; Jim Cooksey of Investigations; and Deborah Marshal, Administrative Assistant, Agency for Health Care Administration. Prior to the Probable Cause meeting of March 20, 1997, the members of the Probable Cause Panel received the entire investigative file, including all medical records and the expert opinion of Dr. Blanchar offered by Respondent. The only expert opinion available to the Probable Cause Panel on March 20, 1997, was that of Dr. Richard W. Blanchar, who admitted that he had not engaged in a similar practice of emergency medicine since 1989, eight years before this matter was considered. However, Dr. Blanchar did have sufficient experience in emergency medicine to qualify as an expert witness. The lack of recent practice goes to the weight given Dr. Blanchar’s opinion. Prior to consideration of the case, Mr. Grossman advised the Panel that any questions concerning interpretation of the law or rules, or what the Panel's duties were, should be directed to him. Mr. Grossman also advised the panel that the responsibility of the attorney for the Agency is to explain the facts of the case, the reason why the Agency is making the recommendation, and to answer any questions concerning those facts in the recommendation or investigation. The Probable Cause Panel members discussed this matter, reached a determination, and voted for a finding of Probable Cause for alleged violations of Sections 458.331(1)(t) and 458.331(1)(m), Florida Statutes. On March 20, 1997, the Probable Cause Panel issued a memorandum stating: This matter was brought before the Probable Cause Panel membership composed of Robert Katims, M.D., Chairperson and Louis C. Murray, M.D. and Becky Cherney on the date set forth above. The Panel, having received the investigative report, having carefully reviewed that report, having reviewed the recommendation of the Agency, and having had the opportunity to inquire of counsel and being otherwise duly advised in the premises thereof, find that: Probable Cause was found on the following statutory and rule grounds, including but not limited to Sections 458.33(1),(t), and (m), Florida Statutes. Moreover, it is clear from the record in the underlying case that the evidence regarding diagnosis and appropriate treatment of the patient were in dispute. Dr. Blanchar was found to have sufficient qualifications as an expert in this matter. Dr. Dulay's experts and their expertise and opinions clearly outweighed those of the Department's expert and the issue was resolved in Dr. Dulay's favor. However, there was a dispute of fact in this case and the Department clearly had sufficient cause to go forward with the underlying action. Therefore, Petitioner is not entitled to an award of attorney's fees and costs.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about June 27, 1985, a probable cause panel of the Board of Veterinary Medicine met to receive and review investigative reports resulting from complaints received from certain individuals concerning Petitioner's treatment of their pets. Previous to the meeting of the probable cause panel, Luke Blanton, D.V.M. (Blanton) reviewed the factual allegations in the investigative reports and opined, that if subsequently proven, they would constitute the negligent or incompetent practice of veterinary medicine. Based on the investigative reports and Blanton's opinion concerning the factual allegations, the panel found probable cause that Petitioner's activities had violated applicable statutory provisions, and subsequently, on or about July 12, 1985, a three-count Administrative Complaint was issued against Petitioner charging him with: (a) making misleading, deceptive, untrue or fraudulent representations in the practice of his profession; (b) violating a lawful order of the Board or Department previously entered in a disciplinary hearing and; (c) being found guilty of fraud, deceit, negligence, incompetence and misconduct in the practice of veterinary medicine. Petitioner disputed the allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was sent to the Division of Administrative Hearings to conduct an evidentiary hearing and to issue an Recommended Order based thereon. The matter was given Division of Administrative Hearings's Case Number 85-2853. On or about August 7, 1985, the attorney for Petitioner discussed possible settlement with Respondent's attorney but no settlement agreement was reached. Petitioner was willing to accept sanctions such as an administrative fine, continuing veterinary education and certain supervisions over his practice but Respondent was seeking revocation or long-term suspension of license which was not acceptable to Petitioner. On or about December 6, 1985, a probable cause panel of the Board of Veterinary Medicine met to receive and review an investigative report concerning the Petitioner's operation of a veterinarian establishment without a premises permit. The panel found probable cause that Petitioner's failure to obtain a premises permit violated the applicable statutory provisions, and subsequently, on or about December 24, 1985 an Administrative Complaint was issued against Petitioner charging him with failure to obtain and possess a premises license. Petitioner disputed the allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57,(1) Florida Statutes. The case was sent to the Division of Administrative Hearings to conduct an evidentiary hearing and to issue a Recommended Order based thereon. The matter was given Division of Administrative Hearings's Case Number 86-0122. By order dated January 23, 1986 Case Number 86-0122 was consolidated with Case Number 85-2853. On or about May 18, 1986, a probable cause panel of the Board of Veterinary Medicine met to receive and review investigation reports resulting from complaints received from certain individuals concerning Petitioner's treatment of their pets. Previous to the meeting of the panel, Blanton reviewed the factual allegations in the investigative reports and opined, that if subsequently proven, they would constitute the negligent and incomplete practice of veterinary medicine. Based on the investigative reports and Blanton's opinion concerning the factual allegations, the panel found probable cause that Petitioner's activities had violated applicable statutory provisions, and subsequently, on or about May 28, 1986, a two-count Administrative Complaint was issued against Petitioner charging him with: (a) being guilty of negligent and incompetency in the practice of veterinary medicine and; (b) being guilty of fraud, negligence, incompetency, or misconduct in the practice of veterinary medicine. Petitioner disputed the allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was sent to the Division of Administrative Hearing to conduct an evidentiary hearing and to issue an Recommended Order based thereon. The matter was given Division of Administrative Hearings' Case No. 86-2305. By order dated September 6, 1986, Case Number 86-2305 was consolidated with Case Numbers 85-2853 and 86-0122. Several months prior to setting up his veterinary practice, Petitioner had requested inspection by Respondent for the issuance of a premises permit. Respondent did not inspect Petitioner's premises before he was ready to open, therefore, Petitioner began his practice without a premises permit. Based on Respondent's failure to comply with Petitioner's timely request the charges in Case No. 86-0122 were dropped and a notice of Voluntary Dismissal was filed and Case No. 86-0122 was closed. On or about October 1, 1986, Respondent filed a Motion to Amend its Administrative Complaint in Case No. 85-2853 which was granted by order dated October 3, 1986. The effect of the amendment was to delete five (5) of the six (6) individual complaints. The reasons for the amendment was the unavailability of certain witnesses and the unwillingness of other witnesses to testify. On or about October 1, 1986, Respondent filed a Motion to Amend the Administrative Complaint in Case No. 86-2305 which was granted by order dated October 3, 1986. The effect of the amendment was that certain facts were deleted or expanded, but the basic charges remained. On or about October 17, 1986, the parties entered into a Pre-Hearing Stipulation which indicated a clear dispute of fact as to the three (3) remaining incidents which were scheduled to go to hearing. Prior to the hearing, the parties entered into a settlement stipulation dismissing all remaining charges and provided, among other things, for: (a) a formal reprimand of Petitioner by the Board; (b) the restriction of Petitioner's veterinary practice for one (1) year, during which time Petitioner shall practice under the supervision of another licensed veterinarian for at least three (3) days per month and; (c) Petitioner to successfully complete the Central Florida Academy of Veterinary Medicine, Inc. seminar series for 1986- 1987. Upon presentation to the Board of Veterinary Medicine certain paragraphs of the settlement stipulation were amended which nonetheless resulted in dismissing all remaining cases and charges. The amended stipulated settlement provided, among other things, for: (a) formal reprimand of Petitioner by the Board; (b) imposition of a $500.00 administrative fine; (c) restriction on Petitioner's veterinary practice with specific supervision of surgical practice and; (d) mandatory attendance of all sessions of the Central Florida Academy of Veterinary Medicine, Inc., seminar series for eighteen (18) months as continuing education. The billing invoice and the time records attached to Petitioner's attorney's affidavit does not detail the amount of time expended on each individual case but shows the total time expended on all three (3) cases and the testimony of Petitioner's attorney did not shed any light in this regard. The evidence is clear and unrebutted that the Petitioner is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes. The evidence is clear that the administrative proceedings material to this proceeding were initiated by the Respondent, a state agency.
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.
Findings Of Fact Petitioner Bobbie G. Scheffer was one of two respondents in Department of Professional Regulation, Division of Real Estate v. Scheffer and Ecoff, No. 89-4699, administrative proceedings respondent Department of Professional Regulation (DPR) initiated by filing an administrative complaint alleging, as summarized in the recommended order: that respondent Scheffer "[a]t all times material . . . licensed and operating as qualifying broker for Rivard Realty, Inc." and respondent Ecoff "a licensed real estate salesman . . . provided a copy of MLS computer print out sheet pertaining to certain residential property . . . to Daniel H. and Dorothy M. Stacy . . . [to verify] that the house was eight years old and on a commercial sewer system", that respondent "Ecoff was the owner of the property and the listing salesman"; that the Stacys "entered into a contract to purchase the property . . . relying upon the representations made by the [r]espondents"; that "Scheffer was the broker who handled the sale while Ralph S. Ecoff was licensed as a salesman in her employ"; that respondents "failed to disclose or point out to the buyers the true age of the house being 14 years or that the house was actually on a septic system"; that "the buyers closed on the house believing the age of the house to be eight years old and having a commercial sewer system"; that respondent "Ecoff admitted knowing that the house was on a septic tank"; and that respondents are therefore both guilty of "misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes" and of "having placed or caused to be placed an advertisement which is false, deceptive or misleading in violation of Rule 21V-10.025," Florida Administrative Code. But the recommended order concluded that "the evidence did not clearly and convincingly show that respondent Scheffer actually knew or had reason to know the listing was inaccurate." At page 7. The final order adopted this conclusion. By stipulation, petitioner qualifies as a prevailing small business party who meets all rule and statutory requirements under the Florida Equal Access to Justice Act and Rule 22I-6.035, Florida Administrative Code. In successfully defending against the administrative complaint, Ms. Scheffer incurred reasonable attorney's fees in the amount of $1,980 and costs in the amount of $219.75, for a total of $2,199.75. She incurred additional reasonable attorney's fees in the amount of $330 in the present proceeding. 1/ The facts proven at hearing are set out in detail in the attached recommended order entered in Case No. 89-4699 and are adopted by reference in their entirety here. No evidence adduced in the present proceeding proved respondent had materially different or additional information when it decided to file the administrative complaint. 2/
Findings Of Fact In July, 1992, the Department of Health and Rehabilitative Services (HRS) published notice soliciting proposals from interested attorneys to provide intrastate and interstate child support legal services HRS District VI. The services were to be provided from October 1, 1992, through June 30, 1993. (Exhibit #4). Within relevant deadlines, protests to the written specifications of the solicitation were filed by Petitioner, Donald W. Belveal, and others. HRS determined that material disputes of fact existed and the protests were referred to the Division of Administrative Hearings (DOAH) where the cases were consolidated and set for final hearing. (Exhibit #5) Hearing Officer, Veronica Donnelly, conducted the hearing and issued a recommended order on December 22, 1993, recommending that the specifications be rejected as flawed and that they be extensively revised. (Exhibit #5). Exceptions were filed, and upon a suggestion of mootness HRS entered a final order on March 17, 1993, dismissing the proceedings and finding further: No Final Order has been issued in this cause which granted any affirmative relief to Petitioners. Therefore, they are not a prevailing party, and are not entitled to attorney fees. The request for a determination of attorney fees is DENIED. The request to dismiss the department's exceptions to the Recommended Order is DENIED. (Exhibit #6) Donald Belveal appealed this final order to the Second District Court of Appeal. The full opinion of the court in Donald W. Belveal v. State of Florida, Department of Health and Rehabilitative Services, case no. 93-01121, dated February 25, 1994, provides: The law firm of Donald Belveal appeals a final agency order entered by the Florida Department of Health and Rehabilitative Services (HRS) which dismisses administrative proceedings and denied Belveal's motion for attorney's fees and costs under section 57.111(4), Florida Statutes (1991) on the ground that Belveal was not a prevailing party. We reverse. Belveal and other lawyers formally protested a bid solicitation package prepared by HRS to procure legal services for its child support program in Hillsborough County. The Department of Administrative Hearings (DOAH) held a formal hearing after which the hearing officer entered a recommended order that the package be revised, citing numerous improprieties. HRS filed excep- tions to the order. In addition, to prevent a lapse in services during the protest proceedings, HRS extended the existing contract for legal services to cover the remainder of the bid proposal period. Arguing that the extension nullified the bid solicitation and rendered the administrative contest moot, Belveal and the others filed a motion to dismiss the exceptions. They also asked that the case be remanded to DOAH for an award of attorney's fees and costs under the Florida Equal Access to Justice Act, section 57.111(4), Florida Statutes (1991). The deputy secretary for human services of HRS entered a "final order" which concluded that Belveal's motion to dismiss/suggestion of mootness was tantamount to a request that the proceedings be discontinued. The department dismissed the proceedings, denied the request to dismiss HRS's exceptions, and denied the request for attorney's fees stating, "[n]o final order has been issued in this cause which granted any affirmative relief to Petitioners. Therefore, they are not a prevailing party, and are not entitled to attorney fees." HRS exceeded its authority in entering this order. First, the dismissal of the action exceeded the scope of the motion to dismiss the exceptions. Second, the determination of whether Belveal was a prevailing party entitled to attorney's fees and costs was solely within the jurisdiction of the DOAH hearing officer. See Dep't. of Health and Rehabilitative Services v. S. G., 613 So. 2d 1380, 1384 n.1 (Fla. 1st DCA 1993). Because HRS denied the motion to dismiss the exceptions yet never ruled on the hearing officer's recommended order, we remand the case to HRS for further proceedings in accordance with section 120.57, Florida Statutes. Reversed; remanded. In addition, the appellate court issued its order granting fees in the appeal, "...provided that appellant is ultimately the prevailing party in the proceeding below." (Exhibit #2) HRS entered its corrected final order on June 22, 1994, finding the case to be moot with the exception of the attorney's fees issue, acknowledging that the agency is without jurisdiction to determine who is the prevailing party and entitled to fees, and dismissing the case. (Exhibit #4) It is undisputed that Donald Belveal is a small business party. (Respondent's proposed final order, paragraph 8). Donald Belveal claims total fees of $21,292.25, incurred in the administrative proceeding, which fees are based on 121.67 hours at an hourly rate of $175. He claims additional fees for the appeal. (Exhibit #3) As stipulated, the claimed fees are reasonable, but the award may not exceed $15,000. (Respondent's proposed final order, paragraph 9.)
The Issue Whether the Petitioner is entitled to fees as a prevailing small business party pursuant to Section 57.111, Florida Statutes.
Findings Of Fact The Respondent is the state agency charged with the authority to oversee and govern the Medicaid Program in Florida. To that end the Agency has established a Medicaid Program Integrity Bureau that seeks to detect and prevent fraud and abuse by Medicaid providers. The Petitioner is a pharmacy provider within the purview of the Florida Medicaid Program. As such, it is accountable to the Agency for its accounting practices and records. At all times material to the underlying case in this matter (DOAH Case No. 00-4708) the Agency employed auditors who routinely review the records of Medicaid providers being reimbursed through the Medicaid Program. In DOAH Case No. 00-4708 such auditors determined that the records maintained by the Petitioner did not accurately reflect information needed to verify and support the billings for which the Medicaid Program had reimbursed the Petitioner. In one instance, the Petitioner did not produce authorizations for a substitution of a prescribed drug. In a separate claim, the Agency maintained that the records indicated an invoice shortage for a prescribed medication. In other words, the provider had allegedly billed for a certain amount of drugs but the acquisition records and invoice records did not establish that quantities in a corresponding amount had been purchased for dispensing. The Agency hired Heritage Information Systems to perform an independent audit of the Petitioner. That audit supported findings unfavorable to the Petitioner in that it identified a substitution problem. The substitution of a more expensive drug for a less expensive prescribed drug is not permissible under the Medicaid Program guidelines without authority from the prescribing physician. As it relates to this case, the prescribing physician was Dr. Sachs. Coincidentally, Dr. Sachs owns the Petitioner. At all times material to the auditing period, the Agency interviewed Dr. Sachs, reviewed all records provided to it at the Petitioner's office, and believed that Dr. Sachs had not authorized the substitution of the more expensive drug for the drug prescribed. Thus, when the records indicated the Petitioner had substituted and billed Medicaid for the more expensive drug, a substitution issue was documented. This claim formed the basis for DOAH Case No. 00-4708. Dr. Sachs appeared before the auditors on more than one occasion and did not indicate that he had authorized any substitution for the prescribed item. At all meetings with Dr. Sachs the Agency believed that the doctor had written prescriptions for IVIg. In fact, Dr. Sachs wrote prescriptions for IVIg, Dr. Sachs did not write prescriptions for CytoGam. As to all prescriptions written for IVIg, the Medicaid Program was billed for a drug known as CytoGam. The substitution of CytoGam for IVIg formed the crux of the auditing dispute. Based upon the substitution issue, the Agency elected to attempt recovery against the Petitioner for the unauthorized substitution of the more expensive drug. Not once during the auditing process did the Petitioner or Dr. Sachs allege that the substitution had been authorized. No records were produced during the audit to support the substitution. Nevertheless, in anticipation of trial and within a short time before hearing on the underlying case, the Petitioner produced documents that supported the Petitioner's claim that Dr. Sachs had authorized the substitution. This assertion was directly opposite of the position formerly held by the doctor. Moreover, given the short time remaining until hearing, the Agency had no opportunity to verify the authenticity of the exculpatory documents. Rather than proceed to hearing on the unauthorized substitution claim, the Agency filed a Motion to Relinquish Jurisdiction based upon its decision to rescind the action against the Petitioner. Such motion was treated as a voluntary dismissal. Subsequently, the hearing was canceled and the Division of Administrative Hearings relinquished jurisdiction to the Agency. A final order was entered by the Agency on July 19, 2001. The Agency has not contested the timeliness of the Petitioner's claim for fees and costs pursuant to Section 57.111, Florida Statutes. The Agency does not dispute that the Petitioner is a small business as defined by Section 57.111, Florida Statutes. The Agency maintains its actions were substantially justified in the underlying case and that the Petitioner is not a prevailing party as a matter of law. The Petitioner argues that had the Agency done its job of auditing more thoroughly the actions against the Petitioner would have been avoided. As such, the Petitioner maintains it is entitled to recover fees and costs in the amount of $15,000. The Agency does not dispute that the Petitioner incurred fees and costs in excess of the statutory cap in defense of the underlying case. One of the complicating factors in the case was the issue of whether CytoGam was a permissible substitution to fill a prescription written for IVIg. The issue of permissible substitution then was clouded by the fact that until preparations for hearing were being finalized the Agency did not know that Dr. Sachs had authorized the substitution. Presumably, had there been no authorizations, the question of permissible substitution of the drugs would have been the focus for trial. Once the exculpatory documents were produced by the Petitioner, the Agency's theory of the case was left questionable. Permissible or not, the doctor had authorized the substitution. Because the Petitioner had dispensed the drug billed to the Medicaid Program, the billing of the substituted more expensive drug would have been authorized. Additionally, had Dr. Sachs written prescriptions for CytoGam, the auditing process would have supported the records initially produced by the Petitioner.
Findings Of Fact Vause is in partnership with his brother and has a principal office at 100 Hamilton Avenue, Panama City, Florida. Vause's business has two full-time employees and has a net worth of less than $100,000.00. In DOAH Case No. 88-5988, Vause applied for a special activity license to use mechanical harvesting devices on his oyster leases. DNR denied the application by "Final Order" dated October 17, 1988, and this "Final Order" provided the clear point of entry. Vause availed himself of this point of entry and requested a formal hearing. After a formal hearing, a Recommended Order was entered on March 13, 1989, wherein it was concluded that the application was valid and adequate and that Vause had met all conditions precedent to be entitled to the permit sought. DNR had denied the permit based on legally insufficient and incorrect grounds and authority. Vause has incurred attorney's fees at the rate of $125.00 per hour. A total of 19.20 hours were expended by Vause's attorney in the underlying proceeding and in this proceeding. The number of hours is reasonable and they were necessary. The hourly rate is reasonable. Hence, Vause has incurred $2400.00 in fees.
Findings Of Fact Based upon the testimony of the witness, and the record in DOAH Case Number 91-5892C, the following findings of fact are made: Petitioner, a non attorney litigant, seeks an award of attorney's fees and costs exceeding $37,000 under Section 57.111, Florida Statutes (1991). Petitioner did not offer evidence that he expended 250 hours performing research and other preparation for the Administrative Hearing in DOAH Case Number 91-5892C, which was not held. Likewise, Petitioner did not offer evidence that $150.00 an hour, the rate which he seeks to be compensated, was a reasonable fee as evidenced by either the time, skill or the complexity of the issues involved in the above- referenced case. Finally, Petitioner did not present evidence which establishes that he is a small business party. While Petitioner referred to the fact that he, at times, does odd jobs for neighbors, there was no showing that he operated a business and, at best, he performed casual labor for neighbors. Petitioner admitted, during the hearing, that there was a criminal prosecution filed against him which was nolle prosequi by the local state attorney's office around May 13, 1992. On June 18, 1992, Respondent filed a Motion To Relinquish Jurisdiction asking that the Division of Administrative Hearings close its case file based on the fact that the abuse report, which was the focus of Case Number 91-5892C was reclassified to "closed without classification". That motion was granted and the Division's case file was closed. Respondent reclassified the report after the criminal charges were dropped due to evidence discovered during the course of the criminal investigation. Specifically, one of the key witnesses during the criminal case recanted the story which formed the basis of the criminal charge and the alleged victim admitted to being a problem child which resulted in strict disciplinary action being taken against him. As a result of the discipline, the alleged abuse victim concocted the abuse allegation. Respondent was substantially justified and had a reasonable factual basis to issue and classify the subject abuse report as proposed confirmed at the time that it was initiated (by Respondent). However, once the factual underpinnings of the criminal case were recanted by the alleged child victim, Respondent immediately took action to reclassify the report which obviated the necessity for holding a formal hearing in DOAH Case Number 91-5892C.
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.
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.
