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 The issue in this case is whether Petitioner, Conval-Care, Inc., is entitled to the payment of attorney fees and costs pursuant to Section 57.111, Florida Statutes, from the Agency for Health Care Administration, the successor in interest to the Respondent, the Department of Health and Rehabilitative Services.
Findings Of Fact By letter dated November 4, 1991, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), notified Conval-Care, Inc. (hereinafter referred to as "Conval-Care"), that it intended to impose an administrative fine on Conval-Care pursuant to Section 409.913(9)(c), Florida Statutes. Conval-Care contested the proposed fine and requested a formal administrative hearing, including a request that it be awarded attorney fees and costs pursuant to Section 57.111, Florida Statutes. The matter was designated case number 92-0126 and was assigned to the Honorable Judge Robert T. Benton, then Hearing Officer Benton. On June 30, 1993, following a formal hearing held on March 24, 1993, Hearing Officer Benton entered a Recommended Order recommending dismissal of the sanctions letter of November 4, 1991. The findings of fact made by Hearing Officer Benton, in Conval-Care, Inc. v. Department of Health and Rehabilitative Services, DOAH Case No. 92-0126, are hereby adopted to the extent relevant to this proceeding. On September 19, 1993, the Department entered a Final Order. The Department accepted and incorporated into its Final Order the findings of fact made by Hearing Officer Benton. The Department, however, rejected Hearing Officer Benton's conclusions of law to the extent that he not had concluded that Conval-Care lacked authority to reject the demand for its records which was the subject of the proceedings. The Department concluded that, in light of the fact that Conval-Care had acted on the advice of counsel, it would reduce the fine from $25,000.00 to $5,000.00. The Department's decision was appealed by Conval-Care. On December 16, 1994, the District Court of Appeal, First District, filed an opinion reversing the Department's Final Order. Mandate from the First District was entered January 3, 1995. On February 14, 1995, Conval-Care filed a Petition for Attorneys Fees and Costs in this case. Conval-Care requested an award of $15,000.00 as a small business party pursuant to the provisions of Section 57.111, Florida Statutes. Attached to the Petition were the Final Order entered by the Department, the Recommended Order, the First District's Opinion and Mandate, an Attorney's Affidavit stating the nature, extent and monetary value of the services rendered and costs incurred in the proceedings, the Petition for Formal Administrative Hearing filed by Conval-Care in 1991 and the Department's November 4, 1991 sanctions letter. On March 2, 1995, the Agency for Health Care Administration, the successor in interest of the Department (hereinafter referred to as "AHCA"), filed a Response in Opposition to Petition for Attorney's Fees and Costs. 10 In its Response, AHCA admitted all of the allegations contained in paragraphs 1 through 6 and 8 through 9 of the Petition. AHCA denied the allegations of paragraph 7 of the Petition. Paragraph 7 of the Petition alleged the following: 7. The action of DHRS, in filing the admini- strative complaint against CCI, was not sub- stantially justified because there was no reasonable basis in law or fact to support the issuance of its letter seeking to impose an administrative fine upon CCI. Attached to the Response was an Affidavit from John M. Whiddon in support of its position that its actions were substantially justified. The Affidavit does not add any alleged credible justification not presented to Hearing Officer Benton or the First District Court of Appeal. AHCA did not assert in it Response the following: that the costs and attorney's fees claimed in Conval-Care's affidavit were unreasonable; that Conval-Care is not a prevailing small business party; that circumstances exist that would make an award unjust; or that AHCA was a nominal party only. AHCA also did not "either admit to the reasonableness of the fees and costs claimed or file a counter affidavit [specifying each item of costs and fee in dispute] along with its response." Finally, AHCA did not request an evidentiary hearing in its Response. The only issue which AHCA asserted in its Response was at issue in this proceeding is whether AHCA's actions were substantially justified. On April 6, 1995, an Order to Provide Information was entered. Although the parties had not requested an evidentiary hearing, the undersigned entered the Order soliciting input from the parties before the undersigned decided whether a hearing was necessary on the one issue raised by the Department. In the Order, the parties were given an opportunity to provide input concerning the procedures they believed should be followed to resolve this matter. The parties were specifically requested to answer certain specified questions, including the following: 1. Do the parties believe that an [sic] hearing is necessary to resolve any factual disputes and/or for purposes of oral argument before a decision is rendered? * * * 5. Do the parties agree that the documents attached to the Petition and the Response should be considered in rendering a decision in this case? . . ." Conval-Care filed a response to the April 6, 1995 Order indicating that there was no need for a hearing. Conval-Care asserted that a hearing would be improper unless Conval-Care consents to one. Conval-Care also asserted that all of the documents attached to petition should be considered. AHCA filed a response to the April 6, 1995 Order indicating that "[t]he Respondent feels a hearing in this matter is essential." AHCA did not provide any explanation of why it believed a hearing was necessary or any discussion of whether a hearing was authorized under the applicable statutes and rules. AHCA also indicated in its response that it "agrees that the documents attached to the Petition and Response should be considered in this case " On May 19, 1995, an Order Concerning Final Order was entered. Based upon a review of the pleadings and the lack of explanation from either party to justify an evidentiary hearing, it was concluded that no evidentiary hearing was necessary. Therefore, the parties were informed in the May 19, 1995 Order that a hearing would not be held in this case. The parties were also informed that they could file proposed final orders on or before May 30, 1995. Conval-Care filed a proposed order. AHCA did not. Neither Conval-Care nor AHCA timely requested an evidentiary hearing in this case. Both parties agreed that the documentation filed with Conval- Care's Petition and AHCA's Response could be relied upon in reaching a decision in this case. Based upon AHCA's failure to contest most of the relevant issues in this proceeding, the only issue which requires a decision if whether the Department's actions against Conval-Care were substantially justified. The documents, including the Mr. Whiddon's Affidavit filed by AHCA with its Response, sufficiently explain why the Department took the actions it took against Conval-Care which led to this proceeding. No evidentiary hearing was, therefore, necessary. The weight of the evidence failed to prove that the Department's actions in this matter were substantially justified. The Department could have sought the information it wanted by pursuing available discovery. Counsel for Conval-Care even remained the Department of the availability of discovery. The Department, however, rather than pursuing the information which it indicated it needed, elected to pursue a punitive action against Conval-Care rather than obtaining the information through discovery. The Department's reason for pursuing punitive actions against Conval-Care was not convincing to Hearing Officer Benton. Despite this fact, the Department entered a Final Order upholding its actions and imposing a fine of $5,000.00 for refusing to provide it with information which it could have obtained through other means. The First District Court reversed the Department's Final Order opining that the Department "lacked a legitimate investigatory purpose for demanding the records" which gave rise to its action against Conval-Care. Finally, the entire record in this case failed to indicate that there was any basis in law or fact to substantially justify the actions of the Department.
The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code. Petitioner, Dr. Hoover, seeks to recover his attorney's fees and costs incurred in the defense of an action brought against him by the Department of Professional Regulation, Board of Medicine. The issues for determination are whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in DOAH Case No. 92-2202, DPR Case No. 0104601, and whether, in the absence of such substantial justification, Petitioner is entitled to the award of the amount of attorney's fees and costs sought, or whether special circumstances exist which would make an award unjust.
Findings Of Fact The Department of Professional Regulation, a state agency, initiated action against Dr. Hoover by filing an Administrative Complaint on May 16, 1991, in DPR Case No. 0104601 (Hoover I); Dr. Hoover by election of rights requested a formal hearing; the case was referred to the Division of Administrative Hearings (DOAH) and was assigned DOAH #91-4068. (DOAH Case No. 91-4068: Administrative Complaint, Election of Rights form) The case was set for final hearing on November 13-14, 1991. Dr. Hoover requested a continuance on October 16 because he would be unavailable to assist counsel prepare for hearing. Hearing Officer Robert Meale denied his request. (DOAH Case No. 91-4068: Request for Continuance, Order Denying Continuance) The Department moved for a continuance on October 29th because the primary expert witness had gone to Japan and could not return in time for the hearing or depositions by Dr. Hoover. The Hearing Officer also denied this motion. (DOAH Case No. 91-4068: Petitioner's Motion for Continuance, Order Denying Continuance) On November 5, 1991, the Department filed a Notice of Voluntary Dismissal, Without Prejudice. (DOAH Case No. 91-4068: Notice) The Hearing Officer closed the DOAH file on November 13, 1991. (DOAH Case No. 91-4068: Order) Dr. Hoover then filed a Petition for Fees and Costs on November 21, 1991, and the case was assigned DOAH Case No. 91-7526F. (DOAH Case No. 91- 7526F: Petition) After formal hearing the Petition was denied by the Hearing Officer, who on March 31, 1992, ruled that "the Department has met its burden of showing that the filing of the Administrative Complaint was substantially justified." (DOAH Case No. 91-7526: Final Order) Immediately, without returning the case to the Probable Cause Panel, the Department served the same Administrative Complaint in DPR Case #0104601 on Dr. Hoover (Hoover II). By election of right, he again requested a formal hearing. (DOAH Case No. 92-2202) On April 8, 1992 two cases against Dr. Hoover were referred to DOAH, DPR Case #0104601 and #110008. They were assigned DOAH Case #92-2202 and 92- 2201, respectively, and were assigned to Hearing Officer Mary Clark, who consolidated them without objection. (DOAH Case Nos. 92-2201, 92-2202) Dr. Hoover's counsel withdrew and Mr. Brooten became counsel of record on May 4, 1992. (DOAH Case No. 92-2202) On May 14, 1992, Dr. Hoover filed his Motion to Dismiss DOAH Case #92- 2202. After oral argument the motion was granted by the Hearing Officer on September 16, 1992. (Recommended Order of Dismissal, DOAH Case No. 92-2202) The Hearing Officer held in her Conclusions of Law that the Department of Professional Regulation had no jurisdiction to dismiss a complaint, hold it in abeyance, and refile at its convenience without a new probable cause determination. The Hearing Officer also noted that the passage of time might yield changed circumstances and a changed result. (Recommended Order of Dismissal, DOAH Case No. 92-2202) On October 12, 1992, Dr. Hoover filed a Motion for Attorney's Fees and Costs which was denied without prejudice by the Hearing Officer on October 21, 1992, on the grounds that, without a final order, he was not a prevailing small business party. (DOAH Case No. 92-2202) On October 4, 1992, a Probable Cause Panel of the Board of Medicine again found probable cause in DPR Case #0104601. (Memorandum of Finding of Probable Cause, filed by DPR in DOAH Case No. 93-0168F) By Final Order filed on December 30, 1992, the Board of Medicine dismissed DPR Case #0104601 without prejudice. The Board of Medicine in its Conclusions of Law in the Final Order expounded and clarified the Board's intentions and interpretation of the governing statutes. The Board rejected the Hearing Officer's conclusions, but "in the interest of equity" determined that ". . . the disposition recommended by the Hearing Officer be ACCEPTED AND ADOPTED." (DOAH Case No. 92-2202) On February 8, 1993, the Department served the Administrative Complaint in DPR Case #0104601 (Hoover III) on Dr. Hoover. (Motion to Abate, filed 3/8/93 in DOAH Case No. 92-2201). DPR Case #0104601 (Hoover III) is now pending in the Fifth District Court of Appeal, Case #93-455, on a petition for writ of prohibition by Dr. Hoover. DOAH Case #92-2201 (DPR Case #0110008) is in abeyance, at the request of the parties, awaiting determination by the appellate court on the extraordinary writ. (Order of Abeyance dated 3/17/93 in DOAH Case No. 93-2201) It is uncontroverted that DOAH Case #92-2202 was initiated by a state agency, that Dr. Hoover prevailed when the case was dismissed, and that Dr. Hoover is a "small business party" as defined in Section 57.111(3)(d), F.S. The reasonableness of the claimed fees and costs, $10,376.22, total, is likewise uncontroverted.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings: Petitioner, Keith Haynes, M.D., is a resident and licensed physician in Florida. Respondent, Department of Professional Regulation, is the state agency charged with the regulation of the practice of medicine. Petitioner was the subject of a disciplinary action initiated by Respondent, in that he was charged, on August 26, 1987, with violating Sections 458.331(1)(j), (t), (q), (m) and (p), Florida Statutes. Respondent was not a nominal party in these proceedings. Petitioner is a prevailing small business party within the meaning of Section 57.111(3)(c), Florida Statutes, as evidenced by the fact that Respondent took a voluntary dismissal of the action initiated against Petitioner, without prejudice, on March 8, 1988. The Attorney's fees and costs which Petitioner seeks in the amount of $12,315.28 are reasonable. (Petitioner's Exhibit 2: Prehearing Stipulation, B- 4.) In January of 1984, an attorney that had been consulted about filing a civil suit against Petitioner filed a complaint with the Respondent against Petitioner on behalf of one of his patients, M.C. The complaint alleged that Petitioner engaged in homosexual relations with M.C. while he was a minor and who was being treated by Petitioner for psychiatric problems. On May 10, 1984, the case was considered by a probable cause panel of Respondent. The panel found no probable cause because M.C. would not cooperate with the investigation and all other supporting information had been obtained through the complainant. On June 15, 1984, M.C. died a suicide. On the basis of another physician's complaint, a new case against Petitioner (DPR Case No. 0058849) was opened in 1987 referencing the same allegations of sexual conduct as the original (1984) complaint. The investigative report of the 1987 case contained the same material as had been compiled in the other (1984) case, plus additional sworn statements, two depositions from the civil case and medical records from various practitioners. On August 21, 1987, the case was again presented to the probable cause panel of the Board of Medicine. Present on the panel were Dr. Joseph O'Bryan, chairman and Ms. Sylvia Shorstein. Ms. Lannon, an attorney for the Board of Medicine was also present. Four members of Respondent's staff were present, legal counsels Brookmeyer and Lamb, Ms. Lammert, a paralegal specialist and Christy Dietert, an investigator. Prior to the probable cause meeting, the investigative report including exhibits and a proposed document recommending the Department's position, were mailed to Dr. O'Bryan and Ms. Lannon on August 3, 1987 and to Ms. Shorstein on August 6, 1987. Prior to considering the charges filed against Petitioner, Respondent's representatives advised the panel of the procedures for directing inquiries or questions relative to their duties as panel members, interpretations of law or other inquiries concerning the investigation or the recommendation of probable cause to the Respondent. The probable cause panel members received the material in sufficient time to review the investigative report and the supporting documentation prior to consideration. The panel members, in fact, reviewed the materials prior to the panel meeting. After a discussion of the underlying charges, Dr. O'Bryan questioned paragraph 4 of the proposed Administrative Complaint relating to the alleged improper touching and inappropriate sexual contact outside the normal course of the treatment of a patient. Dr. O'Bryan was curious as to how this could be done within the normal and usual course of a physician's professional practice, whereupon Mrs. Brookmeyer explained to him how it would be appropriate in some instances for a physician to place "hands on" the genital area of a patient for certain diagnosis. Following that discussion, the panel members voted and recommended that probable cause be found with the further suggestion that paragraph 4 of the proposed Administrative Complaint be revised in keeping with their discussion. The panel recommended that Petitioner be charged, in a five-count Administrative Complaint, with violating Section 458.331(1)(j), by exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity; violating Section 458.331(1)(t), by failing to practice medicine with an acceptable level of care, skill, and treatment; violating Section 458.331(1)(q), by prescribing, mixing, administering, or otherwise preparing a legend drug or controlled substance, other than in the course of a physician's professional practice; violating Section 458.331(1)(m), by failing to keep written medical records justifying the course of treatment; and violating Section 458.331(1)(p), by performing unauthorized professional services. Additionally, Dr. O'Bryan demonstrated his familiarity with the investigative report by suggesting that another named physician, whose statements were a part of the investigative report, be investigated for not reporting his knowledge of the alleged incidents to the Board for consideration of whether disciplinary action was warranted based on Petitioner's acts and/or conduct. The Administrative Complaint, as revised by the probable cause panel's suggestion, was filed on August 26, 1987. Julie Gallagher, the contract attorney who was assigned to prosecute the case for Respondent, while preparing the case for trial, discovered numerous prosecutorial problems based on her review of the witness statements and the hurdles that she would face getting such statements into evidence since M.C. died a suicide and therefore could not testify. Another witness who was expected to testify concerning Petitioner's incriminating admissions became uncooperative and Ms. Gallagher perceived other impediments that the defense would raise and issues that she would face to successfully prosecute Petitioner based on the Administrative Complaint. Based on this concern, Ms. Gallagher brought those matters to the attention of Ms. Stephanie Daniel, chief medical attorney at the Department of Professional Regulation. Following Ms. Gallagher's delineation of the issues that she had with continued prosecution of DPR Case No. 0058849, Ms. Gallagher advised Ms. Daniel she should carefully review the evidentiary issues presented which she would face as prosecutor. Ms. Gallagher suggested that additional investigation was warranted and/or additional research was necessary respecting the evidentiary issues. Ms. Gallagher cautioned Respondent that that investigation would be better conducted in-house, rather than doing so at her contract rate. However, she left that decision to Ms. Daniel as to how she cared to proceed. Ms. Daniel, after consideration, retrieved the file from Ms. Gallagher. On February 18, 1989, the matter was again, at Ms. Daniel's instruction, presented to the probable cause panel of the Board of Medicine, and after extensive discussion of the evidentiary issues, the panel voted to close the case, citing the evidentiary problems raised by Ms. Gallagher. (Petitioner's Exhibit 14.) On April 17, 1989, Petitioner filed his Petition for Attorney's Fees and Costs.
The Issue The issue is whether Petitioner Michael A. Crane, d/b/a Accent Builders of Florida, Inc., is entitled to an award of attorney's fees against Respondent, Department of Business and Professional Regulation, pursuant to Section 57.111, Florida Statutes.
Findings Of Fact On October 14, 2005, Petitioner filed a Motion for Reimbursement of Attorney's Fees and Costs. Petitioner seeks reimbursement of attorney's fees and costs incurred in DOAH Case No. 04-4040PL, pursuant to Section 57.111, Florida Statutes. Petitioner is the prevailing party in the underlying proceeding, DOAH Case No. 04-4040PL. On September 23, 2005, the Construction Industry Licensing Board entered its Final Order in the underlying case, in which it adopted the Recommended Order entered in the DOAH proceeding, thereby dismissing the charges that Petitioner had violated certain provisions of Chapter 489, Florida Statutes. In the underlying proceeding, Respondent charged Michael A. Crane with violations of Chapter 489, Florida Statutes, in his capacity as a certified general contractor holding Florida license No. CGC8644. Petitioner had entered into the contract which gave rise to the underlying proceeding as Accent Builders of Florida, Inc. (Accent). Respondent's disciplinary action was not directed at Accent Builders of Florida, Inc., but at Petitioner as the qualifying agent for the company. Petitioner is not a sole proprietor of an unincorporated business. Petitioner is neither a partnership nor a corporation. Petitioner does business in Florida as Accent, but at the time the underlying proceeding was initiated, Petitioner had not applied for and been granted a certificate of authority for Accent through himself as the qualifying agent. In September 2004, while the underlying proceeding was pending, Petitioner applied for and was granted a certificate of authority for Accent with Michael A. Crane as the qualifying agent. Despite the fact that Petitioner was granted a certificate of authority for Accent, the underlying proceeding was brought against the certified general contractor, Michael A. Crane, not against Accent as a corporate entity. In order to determine whether the underlying action brought by Respondent against Petitioner was substantially justified at the time it was initiated by the Agency, the information that was before the probable cause panel that directed the filing of the Administrative Complaint must be examined. In the underlying matter giving rise to Petitioner's request for attorney's fees, the Probable Cause Panel had before it a 188-page Investigative Report, as well as three supplemental Investigative Reports related to the alleged defects in the construction performed by Petitioner. The Probable Cause Panel convened on April 27, 2004, at which time it made a finding of probable cause that Petitioner had violated Subsections 489.129(1)(g)1., (i), (k), and (m), Florida Statutes. The panel members reported that they had reviewed the investigative reports and draft complaints, and were advised by a member of the Attorney General's staff regarding their responsibilities in determining whether probable cause existed to file an Administrative Complaint against Petitioner. The consumer complaint accompanying the Investigative Report alleged that the contractor did not properly supervise the project; that the construction has resulted in numerous leaks; that the steam shower was not installed as required by the manufacturer; that the decking was not installed according to the manufacturer's instructions; and that most of the punch list items had been left unaddressed. The Investigative Report also contained Petitioner's response, which stated that Petitioner was precluded from correcting the deficiencies by the consumer, and that, although responsive to the consumer regarding the leaks, Petitioner saw no damage as a result of the leaks. The Investigative Report contained numerous documents describing the efforts of contractors hired by the consumer to remedy the leaks and alleged defects in construction. The report also included documentation of payments made by the consumer to the various contractors called in to eliminate the problems the consumer was experiencing. The Probable Cause Panel's review of the materials before it resulted in a determination that a reasonable investigation had been conducted, and that a reasonable person could conclude that sufficient evidence existed to charge Petitioner with violations of Chapter 489, Florida Statutes. At the time the Probable Cause Panel reviewed the Investigative Report, it appeared that Petitioner's work had resulted in water damage, and that a valid subcontractor's lien had been placed against the consumer's property resulting in financial harm. The Probable Cause Panel's determination to direct Respondent to file an Administrative Complaint had a reasonable basis in law and fact at the time it was made. Respondent was not a "nominal party" to the underlying proceeding according to the meaning of that term in Subsection 57.111(4)(d)1., Florida Statutes.
Findings Of Fact William L. McCallister was the Respondent in Dept. of State, Division of Licensing vs. William L. McCallister, DOAH Case No. 86-1480. The Department of State, Division of Licensing, initiated Case No. 86- 1480. In that action, the Department of State sought to revoke the detection of deception examiner's license of William L. McCallister. It also entered an emergency order of suspension. William L. McCallister was the prevailing party in DOAH Case No. 86- 1480. The total value of reasonable attorney's fees and costs in this proceeding is $15,000. The Department of State was not a nominal party in these proceedings. During 1985, William L. McCallister was the sole owner of McCallister Polygraph Service, Inc. During 1985, he was employed by the Polk County Sheriff's office as a sworn officer serving as Staff Polygraphist. When he conducted the polygraph examinations of the three complaining witnesses in DOAH Case No. 86-1480, he did so in fulfillment of his duties as Staff Polygraphist. McCallister Polygraph Service, Inc. was not a party in DOAH Case No. 86-1480. Prior to initiating proceedings in DOAH Case No. 86-1480, the Department of State conducted an adequate factual investigation of the allegations by Phyllis Langdale, Rose Giannotti, and Joanne Meyer. The evidence presented at final hearing regarding standards applied by the Department to detection of deception examiners in disciplinary proceedings describes the standards in effect at the time the complaint was filed.
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 The issue in this case is whether Petitioner is entitled to attorneys' fees.
Findings Of Fact On June 4, 1992, Respondent transmitted to the Division of Administrative Hearings file materials containing allegations that Petitioner was guilty of child abuse and Petitioner's demand for a hearing. The file was assigned DOAH Case No. 92-3396C. After several continunaces, DOAH Case No. 92-3396C was set for final hearing March 30, 1993, in Tampa. By letter dated March 23, 1993, Respondent, through the District Administrator of District 7, stated to Petitioner: [Respondent], during the trial preparation phase of this case, has voluntarily decided to reclassify your role in the incident in question. As a result of this reclassification, you are no longer identified as having committed abuse or neglect with respect to the alleged incident and the [abuse] report will be changed accordingly. On March 26, 1992, Respondent filed a motion to dismiss the case. On April 15, 1993, an Order Closing File was entered. On May 3, 1993, Petitioner commenced the above-styled proceeding by filing a Motion for Award of Attorney's Fees and Court Costs together with an affidavit of fees and costs. On May 7, 1993, Respondent filed a response demanding that the motion be dismissed. DOAH Case No. 92-3396C was initiated based on the complaints of a minor who charged that Petitioner, her uncle, had sexually abused her for six years on a weekly basis. Respondent's protective investigator spoke with the alleged victim, who repeated these charges, as well as to her parents, who believed her, and to a mental health counsellor, who either said she believed the alleged victim or at least did not say that she did not believe alleged victim. Petitioner steadfastly denied the charges. However, the protective investigator did not contact him prior to closing the case as proposed confirmed. Nor did the protective investigator contact the alleged victim's physician, who would have informed the protective investigator that physical examination of the vagina of the alleged victim disclosed no abnormal findings. The physician would have stated that the alleged victim evidently had not previously engaged in sexual intercourse, which would have contradicted the alleged victim's charges against Petitioner. The record does not disclose that the alleged victim ever recanted. The record contains no direct evidence of an improper purpose on the part of Respondent. In effect, Petitioner urges that such a purpose be inferred from the circumstances. As long as the alleged victim stood by her earlier statements, there remained a genuine issue of fact. Under all of the circumstances, her statement may not have been entitled to much weight. Perhaps evaluating the evidence in like manner, Respondent wisely concluded that its resources could be better directed than litigating DOAH Case No. 92-3396C. But the persistence of the alleged victim in charging Petitioner with sexual abuse undermines the inference that Respondent pursued the prosecution of Petitioner for an improper purpose. In the absence of stronger evidence contradicting the alleged victim's charges, Petitioner fails to show that Respondent maintained the prosecution for an improper purpose.
