Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint filed by Petitioner on November 20, 1980, be dismissed by final agency order. DONE AND ORDERED this 17th day of February, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of February, 1981. COPIES FURNISHED: William D. Moore, Esquire Ella Jane P. Davis, Esquire 700 Barnett Bank Building Department of Transportation Tallahassee, Florida 32301 Haydon Burns Building, MS 58 Tallahassee, Florida 32301 J. Lawrence Johnston, Esquire Post Office Box 1170 Tallahassee, Florida 32302
The Issue The issues are: (1) whether Petitioner is qualified for a pari-mutuel wagering occupational license; and (2) whether Petitioner is entitled to waiver of his felony conviction in accordance with Chapter 550, Florida Statutes (2006).
Findings Of Fact Petitioner submitted an application for a pari-mutuel wagering occupational license as a racehorse owner on or about March 30, 2005. On his application, Petitioner accurately reported that he had been convicted on one count of Conspiracy to Transport Stolen Property and Evade Taxes, a felony. Due to Petitioner’s felony conviction, his application for a pari-mutuel wagering occupational license was subject to denial. Consequently, Petitioner also requested that a waiver be granted so that he could obtain the license. Petitioner's application and his request for waiver failed to include any information which would establish his rehabilitation or demonstrate that he is of good moral character. In the regular course of the Division's review of Petitioner's application and request for waiver, on or about April 11, 2005, Petitioner was interviewed by Dennis Badillo, an investigator for the Division. During the interview, Mr. Badillo completed a waiver interview form based upon the answers provided by Petitioner. Petitioner was afforded a full and fair opportunity to present information to establish his rehabilitation and to demonstrate his present good moral character, but Petitioner did not provide such information. In light of the information regarding Petitioner’s felony conviction, which is undisputed and admitted by Petitioner on his application form and at the final hearing, Petitioner does not meet the eligibility requirements for the license he seeks. At hearing, Petitioner attempted to minimize his role in the crime of which he was convicted, and expressed the view that he "doesn't have much time" to fulfill his desire to "participate in the racing industry" in Florida, inasmuch as he has passed his 70th birthday. Petitioner failed to present any testimony from friends, relatives, associates, employers, probation officers, or other individuals to establish good conduct and reputation subsequent to the date of his felony conviction. Absent such evidence, the Division has no basis upon which to conclude that Petitioner is rehabilitated or that Petitioner is of present good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order denying Petitioner’s application for a pari-mutuel wagering occupational license and his request for waiver. DONE AND ENTERED this 31st day of January 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2006. COPIES FURNISHED: S. Thomas Peavey Hoffer Department of Business and Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202 Joseph L. Nacca 268 West Walk West Haven, Connecticut 06516 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue in this case is whether discipline should be imposed against Respondent for operating on an expired public lodging establishment license, an offense which is deemed by rule to constitute operation without a license.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Lakeside is an apartment building with 19 units located at 1048 Northeast 18 Avenue, Fort Lauderdale, Florida 33304- 2408. The Division issued Lakeside a license, numbered 16- 10553-H, to operate as a public lodging establishment. According to information in the Division's official database, as reproduced in Petitioner's Exhibit 1, 1/ the "current license expiration date [for Lakeside's license] is December 1, 2000." On July 20, 2000, Division employee Robert Shaw conducted a routine inspection of Lakeside and found the apartment complex to be open and operating. On a Lodging Inspection Report that he prepared on that date, 2/ Mr. Shaw noted two minor violations, neither of which is at issue here. On the same form, Mr. Shaw inscribed the date that Lakeside's license would expire, as shown below, in the blank spaces provided for that purpose in a line that read: REMINDER: Your license expires 12 /01 /00 Petitioner's Exhibit 2. Mr. Shaw testified, however, that at the time of this inspection, he did not know whether or not Lakeside was licensed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order dismissing the Administrative Complaint against Lakeside Apartments. DONE AND ENTERED this 24th day of January, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 2001.
The Issue The issue in this case is whether Petitioner should deny Respondent's application for a yacht salesperson's license on the ground that Respondent failed to furnish proof of his good moral character in violation of Section 326.004(6)(a), Florida Statutes (1999). (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating yacht and ship salespeople and brokers and for administering and enforcing Chapter 326. Respondent is a licensee applying for renewal of a yacht salesperson's license. Respondent applied for and the Division approved Respondent's initial yacht salesperson's license in 1995. Pursuant to Section 326.004(1), yacht salesperson's licenses are valid for a two-year period. In addition, Respondent formerly held a state contractor's license and a real estate broker's license from Petitioner's agency. The Construction Industry Licensing Board ("CILB") is a division of Petitioner. The CILB served Respondent with an administrative complaint regarding his contractor's license in March 1997. In 1998, the Florida Real Estate Commission ("FREC") revoked Petitioner's real estate license. The Division did not become aware of the administrative proceedings against Respondent's construction and real estate licenses until August 1998. By final order issued March 19, 1998, the CILB fined Respondent and suspended his state contractor's license for five years. The CILB found that Respondent violated Section 489.129(1)(h)(2), (k) and (m). Respondent committed mismanagement that caused financial harm to a customer by accepting deposit money but failing to perform on the contract; abandoned the construction project under contract by failing to begin construction for a period of five months; and engaged in deceitful conduct in the practice of contracting. The CILB also found that Respondent violated Section 489.129(1)(n) by committing incompetence and misconduct in the practice of contracting. The victims in Respondent's CILB case received $22,845.00 from the Construction Industries Recovery Fund as compensation for the harm they suffered due to Respondent's violation of Section 489.129(1)(h)(2). Respondent's obligation to pay restitution to the victims was discharged in bankruptcy. Respondent is still paying the fines and interest ordered in the CILB license suspension case involving his construction license. After the CILB suspended Respondent's contractor's license, FREC, another division of Petitioner, issued an administrative complaint seeking to revoke Respondent's real estate broker's license on the ground that the CILB had suspended Respondent's construction license. Respondent voluntarily surrendered his real estate broker's license for revocation. By final order dated August 19, 1998, FREC revoked Respondent's real estate broker's license. Respondent timely applied for, and the Division approved, the renewal of Respondent's yacht salesperson's license in August 1997. On this renewal application, Respondent answered "N" to question number four which asked whether there were any cases pending against the applicant. In August 1999, Respondent timely applied for renewal of his yacht salesperson's license. Petitioner denied the application on the sole ground that Respondent failed to show that he is of good moral character in violation of Section 326.004(6)(a). Petitioner determined that Respondent failed to show good moral character based on the CILB suspension of Respondent's contractor's license, FREC's revocation of Respondent's real estate license, and Petitioner's conclusion that Respondent had answered question four on his 1997 renewal application untruthfully in violation of Section 326.006(2)(f)1. Petitioner relied solely on a review of the documents in its file and did not conduct an independent investigation or interview Respondent. Respondent did not falsely answer "no" to question four on his 1997 renewal application. Question four asked, in relevant part: Has any judgment or decree of court been entered against you or is there now pending any case, in this or any other state, in which you were charged with any fraudulent or dishonest dealing. Question four limited its scope to judgments, decrees, and cases pending in any court in this or another state and did not ask for disclosure of administrative proceedings. Administrative agencies, including DOAH, are not courts. The administrative complaint filed against Respondent in March 1997 was not a case pending in a court in this or another state. As Petitioner noted on its Investigative Report, ". . . a final order of an agency is not a judgment or decree of court." Respondent construed question four on his 1997 renewal application to be limited to courts. Respondent's interpretation was reasonable and valid. It was not intended to deceive Petitioner. In August 1998, an attorney for FREC informed Respondent that he should disclose administrative proceedings in addition to court cases. Respondent immediately informed Petitioner by telephone and letter of the pending administrative proceedings. In the renewal application filed in 1999, Respondent disclosed the suspension of his construction license, the revocation of his real estate license, and answered "yes" to question four on the application. In an effort toward full disclosure, Respondent answered "yes" to question three when Respondent should have answered "no." Question three asked Respondent if he had been convicted of a crime. The only finding from the suspension of Respondent's construction license by the CILB and the revocation of Respondent's real estate license by FREC that is at issue in this case is a finding by ALJ Daniel M. Kilbride that Respondent committed fraud and deceit by adding a provision for a commission at the end of a construction contract entered into on December 23, 1994. By final order entered on March 16, 1998, the CILB adopted the Recommended Order of Judge Kilbride. The judicial doctrine of equitable estoppel, or estoppel by judgment, bars the re-litigation of factual and legal issues common to both the CILB case and this case. Therefore, the finding that Respondent committed fraud and deceit in 1994 cannot be litigated in this case. The good moral character of Respondent was not at issue in the license suspension case decided by Judge Kilbride. Therefore, Respondent is entitled to present evidence of his good moral character in this case including evidence that explains and mitigates the circumstances of the 1994 transaction in an effort to show that Respondent does not now lack good moral character. The sales commission at issue in the 1994 transaction was to be paid out of Respondent's proceeds from the construction contract. It was not an additional expense to be paid by the buyers. It did not increase the construction price of the house. The commission was to be paid by Respondent for services provided by Castle Real Estate on behalf of Respondent. The buyers did not object to the insertion of the commission provision at the end of the contract. The buyers did not object to the commission being paid at closing. The construction lender released the funds for the commission as part of the construction draw Respondent received. The funds were not separately identified, and Respondent had no knowledge that the lender had released the funds as part of the construction draw. Respondent was an active builder in the local real estate market. He had constructed several "spec" homes. When the real estate market declined, Respondent incurred financial problems attributable to subcontractors and was unable to service the debt he owed on the "spec" homes. Respondent declared bankruptcy in 1996. The buyers in the 1994 transaction did not make any request for refund until after Respondent had declared bankruptcy. Respondent could not make preferential payments to creditors after he declared bankruptcy. More than five years have passed since the 1994 transaction. Even if Respondent lacked good moral character in 1994, he now possesses good moral character. Respondent is now in stable financial condition. Respondent has made all payments due under the license suspension order in a timely manner. Respondent is a licensed captain in the Coast Guard Auxiliary. He has served as a commodore of the local boating club and as a former public affairs officer in charge of public education for the local flotilla. Respondent has conducted himself with integrity in all of his yacht sales. Respondent enjoys an excellent reputation in the boating community for honesty and integrity. Respondent's knowledge about yachts is above average. Over a span of 15 years, Respondent has held licenses with the state as a mortgage broker, real estate salesman, and real estate broker. During that time, no complaints have ever been filed against Respondent for his activities under those licenses. The revocation of Respondent's real estate license was based on the suspension of Respondent's construction license by the CILB. The complaint filed against Respondent's construction license involved a single isolated transaction that occurred more than five years ago for which there were significant mitigating circumstances.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Respondent has good moral character, within the meaning of Section 326.004(6)(a), and renewing Respondent's yacht salesperson's license. DONE AND ENTERED this 28th day of June, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2000. COPIES FURNISHED: Ross Fleetwood, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Scott K. Edmonds Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Thomas C. Houck, Esquire 312 South Harbor City Boulevard Melbourne, Florida 32901 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue to be determined is whether Respondent violated section 458.331(1)(b) and (kk), Florida Statutes (2010), and if so, what penalty should be imposed for the violations proven.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of medical doctors pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to the Amended Administrative Complaint, Respondent has been licensed as a medical doctor in the State of Florida, having been issued license number ME94098. During all times relevant to the Amended Administrative Complaint, Respondent also held a license to practice medicine in the State of California. On September 7, 2010, Linda Whitney, the Executive Director of the California Board of Medicine, filed an Ex Parte Petition for Interim Suspension Order (Ex Parte Petition) in Case No. 06-2007-187158, seeking to suspend, pending a full hearing on the merits, Respondent’s physician’s and surgeon’s certificate in the State of California. On September 9, 2010, Administrative Law Judge Samuel Reyes of the California Office of Administrative Hearings entered an Ex Parte Interim Suspension Order, stating that the Ex Parte Petition had come up for hearing, with both the Executive Director (through counsel) and Dr. Fenton appearing and submitting documents and presenting argument. Judge Reyes granted the Ex Parte Petition; suspended Respondent’s California Physician’s and Surgeon’s certificate; scheduled a hearing on September 30, 2010; and set a deadline for submitting additional affidavits and other documents. After the hearing on September 30, 2010, Judge Reyes entered an Interim Suspension Order, containing findings of fact and conclusions of law. The Interim Suspension Order indicates that it was entered pursuant to California Government Code section 11529, which, as stated in the Interim Suspension Order, authorizes licensure suspension and the imposition of other conditions pending a resolution of underlying disciplinary allegations. Subdivision (a) of the statute provides that: “[i]nterim orders may be issued only if the affidavits in support of the petition show that the licensee has engaged in, or is about to engage in, acts or omissions constituting a violation of the Medical Practice Act . . . and that permitting the licensee to continue to engage in the profession for which the license was issued will endanger the public health, safety, or welfare.” Subdivision provides: “[t]he administrative law judge shall grant the interim order where, in the exercise of discretion, the administrative law judge concludes that There is a reasonable probability that the petitioner will prevail in the underlying action. (2) The likelihood of injury to the public in not issuing the order outweighs the likelihood of injury to the licensee in issuing the order.” The Interim Suspension Order granted the Petition and suspended Respondent’s license in accordance with Government Code section 11529. On May 8, 2012, the Medical Board of California adopted a Stipulated Settlement and Disciplinary Order as the Decision and Order of the Medical Board of California (Board Order), effective June 7, 2012. The Stipulated Settlement and Disciplinary Order, which was signed by Dr. Fenton, states in pertinent part: Respondent does not contest that, at an administrative hearing, complainant could establish a prima facie case with respect to the charges and allegations contained in SAA No. 06-2007-187158, and that he has thereby subjected his license to the disciplinary action. Respondent admits the truth of paragraph 31C. in SAA No. 06-2007-187158. SSA No. 06-2007-187158 refers to the Second Amended Accusation, which is the charging document in the underlying California case, akin to an administrative complaint in Florida. The SAA alleges that Respondent is subject to discipline based upon impairment because of physical or mental illness affecting competency in violation of the California Business Code, section 822; conviction of a crime substantially related to the qualifications, functions, and duties of the medical profession in violation of section 2236; and general unprofessional conduct, in violation of section 2234. The Board Order revoked Respondent’s Physician’s and Surgeon’s Certificate. The revocation was stayed, however, and Respondent was placed on probation for a period of seven years, subject to terms and conditions outlined in the Board Order. Those terms and conditions included abstinence from the use of any controlled substances and any drugs requiring a prescription other than those lawfully prescribed by another practitioner; abstinence from alcohol use; biological fluid testing; completion of a professionalism program; submission to a psychiatric evaluation; psychotherapy by a California-licensed, board-certified psychiatrist or licensed psychologist; monitoring of Respondent’s practice while on probation; and a prohibition against supervising physician assistants during the course of probation. Respondent did not report the Interim Suspension Order dated September 9, 2010, to the Florida Board of Medicine within 30 days of the Interim Suspension Order. Respondent also did not update his practitioner profile to include the discipline in the State of California. The Board received notice from the State Federation of Medical Boards that another state had taken action, i.e., that the Interim Suspension Order had been issued by the State of California. There is no allegation, nor was any evidence presented, that Respondent has violated the terms of the Board Order entered in California. No evidence was presented indicating that Respondent has ever been disciplined previously, in Florida or in California. At the time of the hearing, Respondent was not practicing medicine. He testified at hearing that he has enrolled voluntarily in the Florida Physicians’ Resource Network (PRN). However, no contract with PRN was entered into evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order finding that Respondent violated subsections 458.331(1)(b) and (kk), Florida Statutes, as charged in the Amended Administrative Complaint. It is further recommended that Respondent’s license in Florida be suspended until such time as Respondent demonstrates the ability to practice medicine with reasonable skill and safety, followed by probation with such terms as the Board deems appropriate. Respondent’s demonstration of the ability to practice with reasonable skill and safety shall include an evaluation by a board-certified psychiatrist approved by PRN and compliance with any recommendations PRN may make as a result of that evaluation. DONE AND ENTERED this 29th day of July, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2013.
The Issue The issues are as follows: (a) whether a proposed amendment to Florida Administrative Code Rule 64B14-3.001(12) constitutes an invalid exercise of delegated legislative authority in violation of Sections 120.52(8)(b) and/or 120.52(8)(c), Florida Statutes (2005); and (b) whether Petitioners are entitled to attorneys' fees pursuant to Section 120.595(2), Florida Statutes (2005).
Findings Of Fact This matter arises from Respondent's proposed amendment (the proposed rule) to Florida Administrative Code Rule 64B14- 3.001(12), which defines the term "direct supervision" for purposes of Part XIV, Chapter 468, Florida Statutes (the O&P practice act.) Respondent advertised the text of the proposed rule in Volume 31, Number 35, September 2, 2005, of the Florida Administrative Weekly. The proposed rule states as follows in relevant part: (12) Direct Supervision means: supervision while the qualified supervisor is on the premises. The licensed orthotist, prosthetist, orthotist/prosthetist, or pedorthist will provide a physical evaluation of each patient's orthotic and or prosthetic needs and may delegate appropriate duties to support personnel. However, the licensed practitioner shall physically evaluate the effectiveness, appropriateness and fit of all devices within the scope of the licensed practitioner's licensure practice requirements, including those repaired devices in which the repairs affect the fit, physical structure or biomechanical function of the device, on every patient, prior to patient use of the device; For the purpose of replacement of worn or broken components which do not in any way alter the fit, physical structure or biomechanical functioning of the existing device, direct supervision of support personnel providing repairs to orthoses or prostheses means the aforementioned repair must be approved by the appropriately licensed practitioner prior to beginning of repairs. The responsible licensed practitioner must at all times be accessible by two way communication, enabling the supervisor to respond to questions relating to the repair. * * * Specific Authority 468.802, F.S. Law Implemented 468.802, 468.803, 468.807, 468.808, 468.809, F.S. History--New 10-21- 99, Amended 2-19-04, 5-5-04. Respondent conducted a final public hearing regarding the proposed rule on November 18, 2005. Petitioners filed a petition challenging the proposed rule within 10 days after the final public hearing. Petitioners would be substantially affected by the proposed rule. The parties stipulate to the citation of official notices and other matters published in Florida Administrative Weekly.
Findings Of Fact At all times material hereto Respondent was a licensed dentist in Florida holding license number DN 0001025. Respondent graduated from Emory University Dental School in 1945, thereafter served two years apprenticeship with a practicing orthodontist before opening his own office in Coral Gables, Florida, where he practiced orthodontics for some 25 years before selling his practice and moving to the Tampa Bay area. Respondent is eligible for board certification. In November 1981 Respondent was working as an orthodontist at the Sheppard Dental Clinic in Seminole, Florida. On November 23, 1981, Valarie Rosenfeld went to Respondent to discuss orthodontic treatment to correct a deep overbite and severe overjet. At the time of this visit Miss Rosenfeld was 17 years old and had a severe Class II skeletal discrepancy with a 9.5 degree discrepancy between upper and lower jaws and an overjet of 12 mm. Respondent took some seven photographs of Miss Rosenfeld (Exhibit 2) showing generally the condition of her teeth and her facial profile. Be also took a cephalometric x-ray (Exhibit 3) and a panoramic x-ray (Exhibit 4) of Miss Rosenfeld. Respondent advised Miss Rosenfeld that it would be necessary to extract one tooth in her upper jaw and maybe a second tooth in order to improve her appearance. The purpose of this extraction was to make room in which to move the upper teeth to reduce the overjet. Respondent did not discuss surgery with Rosenfeld or fully explain to her the options available and the probable consequences of each of the options she may elect. Miss Rosenfeld has a thin maxillary bone which does not show up very well on the cephalometric x-ray taken due to a burnout in this x-ray at the location this fact could be determined. Absent adequate bone in which to move teeth it becomes very difficult to obtain much movement. In accordance with orders issued by Respondent Miss Rosenfeld's tooth number 12 was extracted by another dentist at a subsequent visit to the clinic. Respondent next saw Rosenfeld on December 16, 1981, when he put separators between her teeth to make room for bonds. Respondent intended first to install light wire braces to better level the teeth before this was replaced by heavier wire which would be tightened from time to time to move the upper teeth back and the lower teeth forward. Although he testified he planned to reduce the malocclusion using intrusion mechanics Respondent did not discuss with Miss Rosenfeld the headgear which she would have to wear at night during this process or fully explain the procedure to her. Following her December 16 visit, Rosenfeld was seen by a Dr. Bryant, an orthodontist who was replacing Respondent at the Sheppard Dental Clinic. Bryant saw Rosenfeld on December 22, 1981, when he fitted and cemented bonds on the teeth and put in the flexwire to level the teeth. She was next seen at the clinic on January 23 when Bryant religated the flexwire. The next visit on February 15, 1981, Bryant again religated the braces. Rosenfeld was last seen by Respondent on March 20, 1982, when he religated upper arch and observed lower arch. Rosenfeld was seen on April 24, 1982, by Bryant who advised her that three additional extractions would be required to correct the malocclusion. Rosenfeld then decided to obtain a second opinion before losing anymore teeth and went to see another orthodontist, John Harrison. When Dr. Harrison examined Rosenfeld he explained the three options available to her to wit: (1) do nothing, (2) attempt some movement of the teeth to reduce the overjet and overbite and (3) surgery. Dr. Harrison took additional x-rays and attempted to obtain the dental records from Sheppard's Dental Clinic but without much success. By this time Respondent no longer worked at Sheppard's and Harrison became quite frustrated by the lack of cooperation he got in attempting to obtain Rosenfeld's records. He received only the panoramic x-ray. Harrison made models of Rosenfeld's mouth, took cephalometric x-rays, made intra and extra-oral photographs and did quite a number of tracings from the cephalometric x-rays to better ascertain the misalignment of the upper and lower jaws. He discussed the various options with Rosenfeld and, at her request, commenced the mechanical intrusion needed to move the upper teeth back and the lower teeth forward. Harrison would not have extracted tooth number 12 because there is insufficient maxillary bone to allow much movement of the upper teeth or to fill the void created by the extraction. Harrison further opined that the orthodontic problem faced by Rosenfeld is wholly in the lower jaw and this can be fully corrected only by risky and expensive surgery. Attempting to correct the problem by retracting the upper teeth is, in his opinion, the wrong approach. He considers the entire problem is in the lower arch and retracting the upper teeth, which are satisfactory, to obtain a better alignment between the upper and lower teeth, simply creates another problem, viz. changing the existing good profile of the upper lip. Furthermore the thin maxillary bone in which the upper teeth are being moved is not adequate to accomplish much movement of the teeth and when the bonds are removed the upper teeth will likely return to their original position or close thereto. The cephalometric x-ray taken by Respondent on November 23, 1981, was overexposed in the part of the x-ray which would best show Rosenfeld's maxillary bone and thereby alert Respondent to the problem of moving the upper teeth. Dr. Harrison formed his opinion that Respondent's diagnosis and treatment of Rosenfeld was below minimum acceptable standards on his initial assumption (from the records he obtained from Sheppard's Dental Clinic) that the diagnosis and course of treatment were made with panoramic x-rays only. When he learned the day before the hearing that Respondent also had the benefit of the cephalometric x-ray, Harrison hedged his opinion and ultimately concluded that Respondent's diagnosis and course of treatment did reach minimal acceptable standards. Petitioner also called Dr. DeDominico, an orthodontist, who, at the request of Petitioner, examined Rosenfeld and her dental records. DeDominico concurred with Harrison that extraction of tooth number 12 was not indicated and it is unlikely the space vacated by the removal of that tooth can be closed by the movement of the other teeth on the upper jaw. DeDominico further opined that and adequate diagnosis could not be made from the x-rays taken by Respondent due to the "burnout" in this critical area of the cephalometric x-ray which concealed the thinness of Rosenfeld's maxillary bone. Failure to retake this x-ray before embarking on a plan of treatment that required an adequate maxillary bone for success, and that included an unnecessary extraction was, in his opinion, below the minimal acceptable standards for the dental profession. Respondent testified that his more than 20 years experience in orthodontics qualified him to properly diagnose Rosenfeld's problem without doing tracings from the cephalometric x-ray, and that he considered the cephalometric x-ray adequate for the diagnosis that was made. Further, extraction of tooth number 12 was necessary to provide space into which the upper could be moved to accomplish the retraction of the upper teeth desired. He did not explain the available options to Rosenfeld and never considered surgery as a viable option for the orthodontic problem presented by Rosenfeld. He also failed to apprise her of the full implications of the treatment he planned, such as headgear, for the mechanical intrusion or of the limited success to be expected from this procedure. Respondent's expert witnesses, whose depositions were received into evidence as Exhibits 9 and 10, both opined that the diagnosis and treatment of Rosenfeld by Respondent met minimum acceptable standards of the dental profession. One of these witness' credibility is somewhat tarnished by his testimony that the mandible can be induced to grow in an adult. Not only was this testimony deemed incredible by other expert witnesses but also even a layman generally understands that the skeletal structure does not continue to grow after maturity.
The Issue Whether Discovery Experimental and Development, Inc. ("Discovery") is entitled to an award of reasonable attorney's fees and costs under the authority of Section 120.595(3), Florida Statutes?
Findings Of Fact In Discovery Experimental and Development, Inc., v. Department of Health, DOAH Case No. 99-0005RX (the "rule challenge"), three existing rules of the Department were challenged by Discovery pursuant to Section 120.56(3), Florida Statutes. At final hearing, challenge to one of the three was dropped because it was no longer in effect. On February 22, 1999, the Final Order was rendered in the case. Discovery prevailed as to one of the two rules still subject to the proceeding. Rule 69F-12.019, Florida Administrative Code (the "invalidated rule"), was determined to constitute an invalid exercise of delegated legislative authority. The determination of invalidity was made because the rule, in an unrestrained manner, purported to allow Department agents to inspect any property, building, or records in determining compliance with certain state drug laws. The statute which the rule attempts to implement circumscribes which property, building, or records may be inspected. The Administrative Procedure Act mandates the following: If the . . . administrative law judge declares a rule or portion of a rule invalid pursuant to Section 120.56(3), Florida Statutes, a[n] . . . order shall be rendered against the agency for reasonable costs and attorney's fees, unless the agency demonstrates that its actions were substantially justified or special circumstances exist which would make the award unjust. Section 120.595(3), Florida Statutes. Substantial Justification or Special Circumstances The Department's witness testified that the rule had been amended into its invalidated form, to make the "rule more understandable and easier to read." (Tr. 58). The amended rule is more expansive than its predecessor with regard to what buildings, property, and records are subject to inspection. Still, the procedures governing the Department's inspectors (outside of those provided by the challenged rule) remained consistent before and after the amendment: to inspect only establishments, commercial or otherwise, that "are involved in the drug, device and cosmetic industry" (Tr. 60), all in relation to compliance with Chapter 499, Florida Statutes. The Department's bureau chief responsible for supervising inspectors and for development of the invalidated rule thought that department inspections would be confined by the challenged rule itself to only those buildings, property, and records as allowed by statute since the rule in subsection (1) announces that "[i]nspections and investigations are conducted to determine compliance with the provisions of Chapter 499, [and] Chapter 893, F.S. . . ." This expectation defies the plain wording of the rule that allows inspectors access to any buildings, property, or records. Reasonable Costs and Attorney's Fees Discovery was represented by its in-house counsel, R. Elliott Dunn, Esquire. As in-house counsel, Mr. Dunn is paid a salary. He does not normally keep records of time spent in matters representing Discovery, nor is he required to do so by his employer/client. He did not keep any contemporaneous records of time actually spent on the rule challenge. DOAH Case No. 99-0005RX was the first proceeding pursuant to Section 120.56, Florida Statutes, in which Mr. Dunn had ever been involved. The challenge involved extensive research into the Fourth Amendment's impact on search and seizure cases in industries historically regulated in a pervasive manner by government. In addition to legal services expended in litigation, Mr. Dunn was required to review the law in relation to both Section 120.56, Florida Statutes, and the Fourth Amendment's relationship to regulatory inspections conducted within the drug and pharmaceutical manufacturing industry. Mr. Dunn spent approximately 104 hours on the case, of which roughly 83 hours (80%) related directly to the invalidated rule. A rate of $175. per hour is a reasonable rate for attorney's fees in a case of this kind. The petition in this case requests that fees be awarded for 52 hours of work at $175 per hour for a total fees award of $9,100. Discovery also claims costs in the amount of $648 for air fare for both Mr. Dunn and Discovery's President, James T. Kimball, to travel to Tallahassee from Wesley Chapel via the Tampa International Airport for the final hearing. (Mr. Kimball appeared pro se in DOAH Case No. 99-0006RX, a case that was consolidated with Case No. 99-0005RX but dismissed for lack of standing.) Additional costs claimed by Discovery are $78 for automobile rental and parking. No receipts for any of the costs claimed were presented by Discovery. The only supporting documentation is an exhibit to an affidavit sworn to by Mr. Dunn and attached to the petition.
