Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $9,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 1 Filed December 26, 2012 3:52 PM Division of Administrative Hearings 3. The six-month survey cycle is imposed and conditional licensure status is imposed beginning on 9/19/2011 and ending on 10/06/2011. ORDERED at Tallahassee, Florida, on this al day of Decente — , 2012.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this sh ay of , 2012. Richard Shoop, Agency k Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit | (Electronic Mail) (Electronic Mail) Tria Lawton-Russell Jonathan S. Grout, Esq. Office of the General Counsel Attorney for Respondent Agency for Health Care Administration Post Office Box 2011 (Electronic Mail) Winter Park, FL 32790 (U.S. Mail) Cathy M. Sellers Administrative Law Judge Division of Administrative Hearings | Electronic Mail)
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Raymond A. Baker, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a supervisor in a unit for developmentally disabled adults at Florida State Hospital (FSH). Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on September 2, 1997, a DCFS committee denied the request. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on September 19, 1993. On that date, Petitioner was arrested for the offense of committing a "battery upon his live-in girlfriend," a misdemeanor under Section 784.03(1)(a), Florida Statutes (1993). Since the victim in that case was a person with whom Petitioner was then residing, the offense constituted domestic violence as it subsequently became defined in 1994 by Section 741.28, Florida Statutes. Petitioner entered a plea of No Contest to the charge of "[b]attery-domestic" on October 12, 1993. Adjudication of guilt was withheld, he was fined $150.00, and he was placed on twelve months probation. In addition, he was required to complete "New Hope & Alcohol Counseling," and he was ordered to have no contact with the victim. Petitioner successfully completed all terms of his probation, including counseling courses in both spousal abuse and substance abuse. In October 1993, Petitioner began working at FSH in an Other Personnel Services position. Eventually, he attained the position of unit treatment rehabilitation senior supervisor I in Unit 4, a position involving supervision of developmentally disabled adults. Due to a change in the law, in 1996, he was required to undergo a background screening. That screening uncovered his 1993 offense, and on July 18, 1997, he was disqualified from working in a position of special trust with developmentally disabled adults. Petitioner then accepted a position of fiscal assistant in the financial services section of FSH, a position having no contact with residents. He has continued working in that position pending the outcome of this case. Because of his desire to return to his former position, he has applied for an exemption from disqualification. Petitioner is a graduate of Florida State University with a degree in government and criminology. He also holds a Doctor of Jurisprudence from Howard University School of Law. He eventually plans to take the Florida Bar examination, and if he passes the examination, the Florida Bar will accept him for membership, notwithstanding his 1993 misdemeanor conviction. This assertion was not contradicted. In interpreting the statutory criteria which govern the granting of exemptions, the DCFS considers the following factors, among others, to be important. First, the applicant should not minimize the seriousness of the offense; he must express some remorse; and he must have insight into the seriousness of the incident and the risks involved. A three-person committee preliminarily denied the request in early September 1997 because at that time it believed that Petitioner minimized the incident, that he expressed little or no remorse, and that he had no insight into the seriousness of his offense. More than four years have elapsed since the criminal incident, a sufficient time for rehabilitation. Since that time, there have been no other blemishes on Petitioner's record. Except for a "bleeding toe," which was caused when the victim either cut it on broken glass or accidentally jammed it against the door, there was no injury to the victim. Petitioner has worked continuously at FSH since the incident, and he was described by former colleagues in Unit 4 as having a good rapport with patients and staff. According to co-workers, he also handled crises in the unit "in the right way." During the years 1995, 1996, and 1997, he received satisfactory evaluations from his supervisor. There is no evidence that Petitioner would present a danger to the residents if the exemption is granted. Petitioner's description of the circumstances surrounding the incident was not altogether accurate. This finding is made after considering the testimony of the victim who reluctantly testified on behalf of DCFS. For example, Petitioner recalled that the altercation ensued after the two had an argument over finances. However, it was established that it was caused when the victim attempted to break off the relationship and to leave the premises. In an effort to keep her from leaving, Petitioner tried to disrobe her. Also, he was extremely argumentative when speaking with the investigating law enforcement officer, and he refused to leave the premises when requested. According to the victim, Petitioner's verbally abusive behavior and his refusal to leave, rather than the altercation itself, ultimately led to his arrest that evening. While Petitioner was somewhat evasive and had no recollection about some of the facts surrounding the incident, this is probably attributable, at least in part, to his being highly intoxicated when the incident occurred. Petitioner expressed regret for his actions on the evening of September 19, 1993. His assertion that he has had no problems with alcohol since that night was not contradicted. Given the lapse of time since the incident, a record of continuous employment with the FSH with good evaluations, the completion of two counseling courses, and an expression of regret, the request for an exemption should be granted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 11th day of February, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315-4289 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949
The Issue Whether petitioner, Anthony Gentele, O.D., is entitled to recover attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes (1985), for his successful defense against the charges contained in Count II of the amended administrative complaint filed against him by respondents Department of Professional Regulation, Board of Optometry, in Department of Professional Regulation, Board of Optometry v. Anthony Gentele, O.D., DOAH Case No. 84-3555.
Findings Of Fact I. The Department initiated an investigation of Petitioner's conduct as a licensed optometrist based on a complaint filed by Mary Lou Santos, one of his patients, alleging improper optometric care resulting in the permanent loss of her vision. After completing its investigation, including a review by two consulting optometrists (Dr. Walter Hathaway and Dr. Charles Pappas), the Department submitted its investigative report and recommendations to a two member Probable Cause Panel of the Board of Optometry. On August 24, 1984, the Panel found probable cause, after which the Department filed an administrative complaint against Petitioner. The complaint sought to suspends revoke or otherwise discipline his license to practice optometry on charges that he violated Rule 210-3.07, Florida Administrative Code and Section 463.016(1)(g), (h) and (n) Florida Statutes, by failing to perform a visual analysis on Mary Lou Santos in accordance with minimum procedures, by failing to adequately meet her vision needs, by failing to practice optometry with reasonable skill and safety and in accordance with generally accepted and prevailing optometric practice, and by failing to make an appropriate referral to a qualified health care provider. Prompted by concern about Petitioner's competence to continue practicing optometry, the Probable Cause Panel also authorized the Department to investigate further to determine whether Petitioner was administering eye examinations in accordance with minimum standards and whether action should be taken against his license on an emergency basis. For this purpose, the Panel asked the Department to obtain his patient records prior and subsequent to January 1983--the month during which Petitioner gave Mary Lou Santos her initial eye examination. After concluding that such patient records could not be obtained without releases from patients, the Department's counsel requested that an investigator be trained by an optometric consultant on the prescribed procedures for vision analysis, and then undergo an eye examination by Petitioner for the purpose of determining his compliance. Alison Smith the investigator selected to be trained and have her eyes examined had been employed as a Department investigator for approximately six months. She had no prior investigative experience in the field of optometry, and no education or formal training in the subject. She had never before investigated the sufficiency of a visual examination given by an optometrist. On September 6, 1984, Dr. Frederick Bergman, O.D., a consulting optometrist, discussed the Minimum Procedures for Vision Analysis in his office with her for approximately one and one-half hours. He demonstrated, but did not actually perform the procedures on her at that time. Although Ms. Smith took notes of her discussion with Dr. Bergman, he never saw those notes nor tested her on her understanding of his explanation. Neither did he teach her how to interpret a patient's analytical record which reflects the results of a visual examination. On September 7, 1984, Ms. Smith, using the alias of Alison Golden, went to Petitioner for an eye examination. She was accompanied by Richard J. Wohl, a Department investigator who was neither trained by Dr. Bergman nor familiar with the minimum procedures for vision analysis. He introduced himself as Ms. Smith's husband and remained during the examination. Neither Ms. Smith nor Mr. Wohl made notes of the procedures used by Petitioner during the eye examination. They did not question him about his findings or the various procedures utilized. After Petitioner completed his examination of Ms. Smith's eyes, she presented him with a medical release and asked for the patient record of her examination. He complied with her request and she left with the record. He neither made nor attempted to make any additions or deletions to her patient record after she identified herself as an investigator. Ms. Smith and Mr. Wohl immediately left to investigate an unrelated case. Several days later, Ms. Smith prepared a supplemental investigative report alleging that Petitioner had failed to comply with the prescribed Minimum Procedures for Vision Analysis by failing to pull down her eyelids to check for infection and by failing to perform the tests for phorias. The patient record prepared during her eye examination reflects that Petitioner performed both procedures. Ms. Smith's investigative report was prepared on or about September 1, 1984 and was based on her memory of the examination. She did not compare her observations with those of investigator Wohl. (Had she done so, she would have found that he distinctly recalled Petitioner pulling down her eyelids to administer eye drops in connection with the glaucoma test. This test was recorded on her patient record.) She did not consult with or have her patient record reviewed by Dr. Bergman prior to preparing her investigative report. Counsel for the Department found a discrepancy in Ms. Smith's supplemental investigative report. By memorandum to the investigator, dated November 20, 1984, he noted that although she stated that Petitioner failed to test her eyes for phorias her patient record indicated that phorias were checked and results reported. He questioned whether this was a mistake by the consultant (or investigator) or whether this was "fraud in the records." He asked her to confer with the consultant and respond in writing by the end of the week. (Respondent's Exhibit 2) Investigator Smith responded by memorandum dated December 3, 1984, and confirmed her prior findings: 2. Phorias were not checked by Dr. Gentele [Petitioner], this is a subjective, not an objective test done with either a refractor or a pherobopter. (Respondent's Exhibit 2) On December 13, 1984, the same Probable Cause Panel of the Board reconvened to consider the supplemental investigative report and where probable cause existed to file additional charges against Petitioner. Dr. Walker, one of the two panel members, noted that although the supplemental report stated that Petitioner failed to test Ms. Smith's eyes for phorias, her patient's record contained phoria findings. For this reason, he explained, I subsequently requested [counsel for the Department] to check to determine whether, in fact, this investigator was reporting that the findings were not taken . . . or whether . . . this was an oversight." (Petitioner's Exhibit 9, p. 2) The response he received was that Petitioner failed to test her eyes for phorias. He went on: This is a subjective and not an objective test done with either a refractor or phorome- ter. Based upon that information, I don't have any questions that probable cause should be found that [Petitioner] did not perform a minimum examination. (Petitioner's Exhibit 9, p. 2) Dr. Pena, the other Panel members concurred. Dr. Pena was critical, however, of investigator Smith's complaint that Petitioner failed to pull her eye lids down to check for irritation. He thought this complaint "was a little weak." (Petitioner's Exhibit 9, p. 3) Dr. Walker agreed: In fact, there's probably some people that I wouldn't pull the lids down unless I suspect- ed some problems. There's no place in the rule that specifies what you do in external examination of the eye. I thought that was weak. If, in fact, he did not perform bio- microscopy . . . [another omission, according to the investigator] if, in fact, he did not do any phorias, then I think that is suffi- cient evidence to find probable cause. (Petitioner's Exhibit 9, p. 3) After the Panel agreed that probable cause existed, counsel for the Department informed them that it was his intent--on a finding of probable cause and directions to issue an administrative complaint--to include the additional charge by filing an amended complaint in the then pending license revocation proceeding. He noted, however, that the additional charge concerned a "separate matter. One [charge] does not hinge on the other, therefore, it was not really part of the [pending] DOAH proceeding." (Petitioner's Exhibit 9, p. 4) Later in the discussions the panel members once again addressed the discrepancy between the findings of the Investigator and the phoria results recorded on her patient records. Counsel for the Department asked them: If I could ask you one other question--you noted from the supplemental investigative report certain discrepancies between what the investigator says happened and what was shown on the medical records. In your minds what does that indicate? (Petitioner's Exhibit 9, p. 5) Dr. Walker responded: In my minds it indicates that he . . . uhhh . . . that the optometrist recorded findings that he did not perform in the matter of phorias. . . . (Petitioner's Exhibit 9, p. 5) Discussion then turned to whether Petitioner should also be charged with false recordkeeping i.e., recording findings without actually performing a test. Dr. Pena then asked counsel for the Board: Mr. Siegendorf, some of this is based upon the investigator's report to us. We are assuming that the investigator is accurate in reporting to us. How . . . how can we be . . . how can be assured the investigator knows that these tests weren't done? (Petitioner's Exhibit 9, p. 6) Mr. Siegendorf replied: It relates to your finding of probable cause . . . you base your decision . . . on the report that the Department provides to you. . . . (Petitioner's Exhibit 9, p. 6) Later in the discussions Dr. Pena observed: There is a possibility that a licensee who is under investigation for not having complied with minimum examinations may be radaring or filling in the blanks, so to speak, and not doing the procedures . . . the minimum required procedures. (Petitioner's Exhibit 9, p. 5) The Probable Cause Panel thus found probable cause for charging Petitioner with failing to perform a visual analysis upon Alison Smith in accordance with the minimum procedures required by Board rules. The Panel's probable cause finding had a reasonable basis in fact and law. The Panel was justified in relying on the observations and findings of a Department investigation who had been trained by a qualified optometrist prior to undergoing a visual analysis by Petitioner. When questioned further, the investigator confirmed and repeated her finding that--contrary to Board Rules-- Petitioner failed to test for phorias or use a biomicroscope. The test for phorias (a subjective test requiring the lining-up of two objects, vertically and horizontally) was recognizable without special training or technical knowledge. The Panel resolved the conflict between the investigator's assertion that no phoria test was administered and the phoria results recorded on her patient records by concluding that Petitioner must have recorded or "radared" findings without actually performing the test. Based on the investigative report before it, the conclusion was a reasonably permissible one. On December 28, 1984, pursuant to the Panel's finding of probable cause, the Department moved to file an amended administrative complaint against Petitioner (in the pending license revocation proceeding) by adding an additional count, alleging that he performed an inadequate visual analysis on Alison Smith. The motion stated that amendment was proper because the "two separate factual situations (underlying existing Count I and proposed Count II) should be combined in one . . . proceeding for purposes of saving all parties and the Division of Administrative Hearings time and money. (Petitioner's Exhibit 1) The motion was granted and Count II was deemed filed. On or about January 18, 1985, subsequent to the filing of Count II, investigator Smith underwent a complete visual examination by Dr. Bergman, O.D. (the consulting optometrist who had earlier trained her) so the results of his examination could be compared with Petitioner's. Dr. Bergman's results did not differ significantly from those of Petitioner. Petitioner contends that once the Department became aware of this, it should have voluntarily dismissed Count II. Although the similarity of Dr. Bergman's and Petitioner's results tends to make investigator Smith's denial (that Petitioner tested her for phorias) less believable, the Department's continued prosecution of Count II was reasonable. It had eyewitness testimony of a trained investigator that Petitioner failed to test for phorias. In combination with other evidence offered at final hearings such testimony could have been found credible and Count II sustained. The fact that a hearing officer ultimately found such testimony insufficient to satisfy the elevated standard of proof applicable to license revocation proceedings does not make the Department's earlier decision to prosecute an unreasonable one. On February 26, 1985, the undersigned hearing officer conducted a formal hearing on the two-count amended administrative complaint. On July 25, 1985, a Recommended Order was submitted to the Board. As to Count I, it was found that in examining Mrs. Santos, Petitioner failed to comply with Board rules and that his negligence in misdiagnosing and treating her eyes was flagrant, glaring, and inexcusable. It was found that if Petitioner had performed the visual analysis examination with reasonably prudent skill and safety, and in accordance with the rules of the Board, he would have discovered a pathology which would have dictated her referral to a qualified medical practitioner for treatment which, if provided, would have resulted in her visual acuity being considerably better than it is today. As to Count II, it was found that the charge that Petitioner performed an inadequate visual examination of Alison Smith was not sustained by the necessary quantum of evidenced and should be dismissed. As penalty for the violations contained in Count I, the order recommended that the Board suspend Petitioner's license to practice optometry pending reeducation with potential reinstatement in a probationary status. On August 22, 1985, the Recommended Order was presented to the entire Board for its final action. By Final Order dated September 14, 1985, the Board approved and adopted the findings of fact and conclusions of law contained in the Recommended Order. Petitioner's license to practice optometry was suspended until he demonstrated his ability to practice with reasonable skill and safety. Conditions to reinstatement included successful completion of a specified number of hours of optometric education (with examinations), to be followed by a monitored probationary period of five years. In addition, a $1,000 administrative fine was imposed. No appeal was taken and the time for appeal has now expired. III. Petitioner has been licensed to practice optometry in Florida since 1981. His principal office is within the state. His professional practice is organized as a corporation, not a sole proprietorship. At the time the Department instituted its action against his license, he had less than 25 full- time employees and a net worth of not more than $2 million.
Conclusions Florida Equal Access to Justice Act Patterned After Federal Prototype The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Sections 57.111, 120.57(1), Fla. Stat. (1985). This case arises under the Florida Equal Access to Justice Act ("FEAJA" or "Florida Act"), Section 57.111, Florida Statutes (1985), which provides in pertinent part: (4)(a) Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust. FEAJA, enacted by the Florida legislature in 1984, is patterned after a federal law on the same subject--the Federal Equal Access to Justice Act ("the Federal Act") 5 U.S.C. Section 504. Section 504 of the Federal Acts enacted in 1981, provides in part: (a)(1) An agency that conducts an adversary adjudication shall awards to a prevailing party other than the United States, fees and expenses incurred by that party in connection with that proceedings unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust. . . . The federal and state statutes use similar language, and the legislative history of the Florida Act shows that legislators were aware of the federal prototype. See, Senate Staff Analysis and Economic Impact Statement, CS/SB 438 (5-2-84), and record of the 5-2-84 meeting of the Senate Governmental Operations Committees, sponsor of the bill. Lambert Attorney's Fees and Costs in Administrative Proceedings, FLORIDA BAR JOURNAL, July/August 1985, at 76. ("Section 57.111 is generally patterned after the federal Equal Access to Justice Act.") Since the Florida Act is patterned after the federal law, it [the Florida Act] will take the same construction in the Florida courts as its prototype has been given in the federal courts insofar as such construction is harmonious with the spirit and policy of the Florida legislation on the subject." Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108, 116 (Fla. 1st DCA 1977). II. Petitioner is a Small Business Party Under the Act Under FEAJA, only "small business parties" are eligible for an award of attorney's fees and costs incurred in defending against agency action. A "small business party" means: A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by a state agency, not more than 25 full-time employees or a net worth of not more than $2 million including both personal and business investments, or A partnership or corporation, including a professional practice, which has its principle office in this state and has at the time the action is initiated by a state agency not more than 25 full-time employees or a net worth of not more than $2 million. Section 57.111(3)(d), Fla. Stat. (1985). The record establishes that Petitioner was a "small business party" within the meaning of FEAJA at the time Count II was initiated against him. He operated a professional optometric practice, organized as a professional optometric corporation, with his principal office in Florida, and without more than 25 full-time employees or a net worth of more than $2 million. The Department contends that Petitioner is not a qualified "small business party" since the license revocation proceeding was initiated against him, not his corporation. This contention is rejected since a construction which leads to a result obviously not intended by the legislature should be avoided. City of St. Petersburg v. Siebold 48 So.2d 291 (Fla. 1950) Most professional licenses are issued to persons who seek to operate a professional practice. Any subsequent license revocation proceedings are constituted against that person's license. The literal construction urged by the Department would make FEAJA inapplicable to persons operating a professional practice under a corporate form of business and conflict with clear legislative intent that the Act apply to all professional practices below a specified size, regardless of organizational form. III. Petitioner is the Prevailing Party on Count II of the Amended Administrative Complaint Under FEAJA, a small business party is a "prevailing party when a final judgment or order has been entered in his favor and such judgment or order has not been reversed on appeal or the time for seeking judicial services has expired." Section 57.111(3)(c)1., Florida Statutes (1985). Here, the Board--by final order--found Petitioner guilty of the charges contained in Count I and dismissed the charges contained in Count II as not substantiated by the evidence. The final order was not appealed and the time for seeking judicial review has expired. The Department argues that the Board's order was obviously not entered in Petitioner's "favor," since it found him guilty of Count I and disciplined his license to practice optometry. See, Annette J. Ruffin v. Department of Professional Regulation, Division of Real Estate, D0AH Case No. 85-4465F, Final Order dated February 7, 1986. In essence, the Department argues that a party is ineligible for an award of fees and costs under FEAJA unless the party is successful in defending against all of the charges brought by an agency. If a person is found guilty of any charged the order is not deemed entered in that person's "favor." This argument is rejected for two reasons. First, it ignores authoritative federal case law to the contrary. The determination of whether a person is a "prevailing party" under the Federal Equal Access to Justice Act is guided by existing case law under the Civil Rights Attorney's Fees Acts 42 U.S.C. Section 1988. Grand Blvd. Improvement Association v. City of Chicago, 553 F. Supp. 1154, 1166 (N.D. Ill. 1982). Under that Act, parties can recover fees even if their victories are less than complete. Id. at 1167. In Hensley v. Eckerhart 461 U.S. 424 (1983), the U.S. Supreme Court set standards for awarding attorney's fees in cases arising under the Civil Rights Attorney's Fees Acts as well as cases arising under all other federal acts authorizing an award of fees to a "prevailing party." The court held that parties may be considered "prevailing" for attorney's fees purposes" if they succeed on any significant issue in litigation which achieves some of the benefits the parties sought in bringing the suit." Id. at 1939. Any fees awarded are adjusted based on the "results obtained," a factor particularly crucial when a party is deemed "prevailing," though succeeding on only some of his or her claims. 2/ Second, the Department's "all or nothing" approach places form over substance and could lead to anomalous results. The award of attorney's fees would hinge on whether multiple charges were consolidated in one proceedings or prosecuted in separate proceedings. 3/ As illustrated in the instant case, charges against a licensee are frequently combined in a single proceeding merely to achieve efficiencies and reduce costs. Pretrial procedural findings based on such legitimated but extraneous considerations, should not dictate whether a party can later obtain relief under FEAJA. Moreover, under the construction urged by the Departments an agency could bring multiple unfounded charges (lacking a reasonable basis in law and fact) yet avoid FEAJA by prevailing on one technical, or trivial charge. 4/ Such a result would frustrate the stated purpose of FEAJA--to diminish the deterrent effect of defending against unreasonable government action. Section 57.111(2), Fla. Stat. (1985). It must therefore be concluded that Petitioner was the "prevailing party" on Count II of the Amended Administrative Complaints a count based on a separate incident and requiring different proof. He successfully defended against the charges in that count and must be deemed to have realized a benefit. By failing to prove Count II, the Department was unable to show that Petitioner repeatedly or routinely administered eye examinations in violation of prescribed standards. A recurring pattern of misconduct would have justified a penalty more severe than that imposed. Moreover, if Petitioner had been found guilty of Count II, he could have been fined an additional $1,000.00. Section 463.016(2)(c) Fla. Stat. (1985). IV. Both Board and Department were Substantially Justified in Finding Probable Cause for, and Prosecuting, Count II FEAJA entitles a prevailing small business party to recover attorney's fees and costs "unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust." Section 57.111(4)(a), Fla. Stat. (1985). A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it was initiated. Section 57.111(3)(e), Fla. Stat. (1985). As interpreted by the staff analyst of the Senate Governmental Operations Committee, committal sponsor of CS/SB 438: "The Act establishes the general rule that attorney's fees and costs are recoverable by a prevailing small business party in any proceeding initiated by a agency unless the action of the state agency was substantially justified." D. Clint Smawley, The Florida Equal Access to Justice Act: A Sword for Small Business in Civil Proceedings Initiated by State Agencies, ADMIN. LAW SECTION NEWSLETTER, FLORIDA BAR, Vol. VII, No. 2, p. 6 (February, 1986). Using almost identical languages the Federal Equal Access to Justice Acts 5 U.S.C. Section 504(a)(1) establishes the general rule that the prevailing party is entitled to an award of fees and expenses unless the hearing officer "finds that the position of the agency was substantially justified or that special circumstances make an award unjust. . . ." Federal courts construing this language have consistently held that the agency has the burden of demonstrating that its actions were substantially justified. Derickson v. National Labor Relations Board 774 F.2d 229, 232 (8th Cir. 1985) ("Unless the agency meets its burden of demonstrating the substantial justification for its position, the denial of attorney fees and expenses by the agency is an abuse of discretion. . . ."); Temp Tech Industries, Inc. v. National Labor Relations Board 756 F.2d 586, 589 (7th Cir. 1985), ("The agency can avoid the imposition of fees and costs only by demonstrating that its position as a party to the proceeding was 'substantially justified,' or that special circumstances exist that would make such an award unjust.") Charter Management Inc. v. National Labor Relations Board 768 F.2d 1299, 1301 (11th Cir. 1985) ("At the administrative level the burden is on the agency to prove that a fee award should not be made under [the Equal Access to Justice Act]."), Ashburn v. United State of America, 740 F.2d 843, 850 (11th Cir. 1984). ("The government bears the burden of showing that its position was substantially justified."), Enerhaul Inc. v. National Labor Relations Board 710 F.2d 748, 750 (11th Cir. 1983). ("The burden of proving that a fee award should not be made [to a prevailing party] rests with the government.") The conclusion that the agency must prove that its actions were substantially justified or that special circumstances exist which would make an award unjust, is buttressed by the plain language of the statute. In mandatory language, Section 57.111(4)(a) declares the general rule--that fees and costs "shall" be awarded to a prevailing small business party. Then, following a comma, the Act creates two exceptions (actions substantially justified or special circumstances make an award unjust) which, if proven, make the general rule inapplicable. The agency is the party best able to know the factual and legal basis of its prior actions, and whether special circumstances exist which would make an award unjust. Hence it is the agency which must affirmatively raise and prove the exception. Contra, Ruffin v. Department of Professional Regulation, Division of Real Estate, DOAH Case No. 85-4465F, (Final Order dated Feb. 7, 1986), Nutt v. Department of Professional Regulation, DOAH Case No. 85- 3499F (Final Order dated Jan. 28, 1986). The Department and Board have established that the filing and prosecution of Count II was "substantially justified" within the meaning of FEAJA. A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it was initiated by the agency. Section 57.111(3)(e) Fla. Stat. (1985). The Panel's finding of probable cause had a reasonable basis in law and fact. The Panel relied on the report of a trained investigator of the Department and acted only after the investigator, on further questioning, confirmed her finding that Petitioner failed to test her eyes for phorias. The Panel conducted a "meaningful" probable cause inquiry, and did not merely "rubber stamp" the recommendation of the Department. Compared Kibler v. Department of Professional Regulations 418 So.2d 1081 (Fla. 4th DCA 1982). The probable cause finding meets the Kibler standards in that the Panel had evidence before it which (if credited at final hearing) would reasonably indicate that the alleged violation had occurred. Id. at 1084. The fact that the agency later failed to prove its charge does not raise a presumption that it was not "substantially justified." Nor does the agency have to prove that its decision to prosecute was based on a "substantial probability of prevailing." Ashburn 740 F.2d at 850. It is sufficient that the Panel had evidence before it which would constitute prima facie proof of a violation if the testimony of the Department investigator had been credited at final hearing. Natchez Coca-Cola bottling Co., Inc. v. National Labor Relations Board 750 F.2d 1350, 1352 (5th Cir. 1985) (finding that agency general counsel had substantial justification to prosecute because he had evidence which would constitute a prima facie case of unlawful conduct if the testimony of his witness had been credited at final hearing was rational reason to affirm administrative law judge's rejection of an employer's application for attorney's fees under the Federal EAJA), Temp Tech Industries, Inc., supra at 590. (We cannot find that the General Counsel's decision to litigate an issue that turned on a credibility assessment was itself unreasonable, the fact that an administrative law judge might make an adverse finding on a credibility issue does not, in and of itself, deprive the General Counsel's position of a basis in fact.") Section 455.225(3), Florida Statutes, requires the Department to follow the directions of a probable cause panel with regard to the filing and prosecution of a formal complaint. In the instant case, since a probable cause panel found probable cause to file and prosecute Count II, the Department's action in doing so was "substantially justified" i.e., had a reasonable basis in fact and law. If FEAJA is construed as placing a continuing duty on state agencies to dismiss charges which no longer have a reasonable basis in fact and law, 5/ the Department's failure to dismiss Count II does not breach such a duty. The testimony of its investigator (even after Dr. Bergman examined her and recorded phoria results similar to Petitioner's) could still have been credited at final hearings and ultimately sustained the charge. Since the Department and Board have demonstrated that the finding of probable cause and the filing and continued prosecution of Count II was "substantially justified" within the meaning of FEAJA, Petitioner's application for an award of attorney's fees and costs must be denied. It is, therefore, unnecessary to reach the issue of the amount and reasonableness of the fees and costs which Petitioner incurred in defending against Count II. Accordingly, it is ORDERED: That Petitioner's application for attorney's fees and costs is DENIED. DONE and ORDERED this 20th day of June, 1986, in Tallahassee, Florida. R.L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of June, 1986.
Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration, (“the Agency”) regarding certificate of need ("CON") application number 10158 filed by North Florida Regional Medical Center, Inc. (“NFRMC”). 1. NFRMC filed a CON application which sought the establishment of a 24-bed comprehensive medical rehabilitation unit within its hospital located in Alachua County, Florida, Service District 3. The Agency denied NFRMC’s CON application 10158. ; 1 Filed November 4, 2013 11:10 AM Division of Administrative Hearings 2. NFRMC filed a petition for formal hearing challenging the Agency’s denial of CON application number 10158. 3. Shands Teaching Hospital and Clinics, Inc. d/b/a Shands Rehab Hospital, filed a petition for formal hearing in support of the Agency’s denial of NFRMC’s CON application 10158. 4. NFERMC has since voluntarily dismissed its petition for formal hearing. 5. Based upon the voluntary dismissal, the Division of Administrative Hearings entered an Order Closing Files and Relinquishing Jurisdiction in the above styled matter. IT IS THEREFORE ORDERED: 6. The denial of NFRMC’s CON application 10158 is UPHELD. ORDERED in Tallahassee, Florida on this DD day of Octet. 2013. cbc Peele Elizabeth Dudek, Secretary Agency for Health Care Administration _NOTICE OF RIGHT TO JUDICIAL REVIEW A party who is adversely affected by this final order is entitled to judicial review. which shall be instituted by filing the original notice of appeal with the agency clerk of AHCA, and a copy along with the filing fee prescribed by law with the district court of appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of the rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail or electronic mail to the persons named below on this f "__ day of Nove~ hes _, 2013. Richard J. Shoop, Agency Cler| Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 Janice Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration (Electronic Mail) Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Stephen A. Ecenia, Esquire R. David Prescott, Esquire Rutledge Ecenia, P.A. 119 South Monroe Street, Suite 202 Tallahassee, Florida 32302 Counsel for NFRMC (U.S. Mail) Lorraine M. Novak, Esquire Assistant General Counsel Agency for Health Care Administration {Electronic Mail), F. Philip Blank, Esquire Blank & Meehan, P.A. 204 South Monroe Strect Tallahassee, Florida 32301 Counsel for Shands Rehab Hospital (U.S. Mail) we
