The Issue The issue for determination is whether Respondent was substantially justified, within the meaning of Section 57.111, Florida Statutes (2002), in initiating disciplinary proceedings against Petitioner, a licensed dentist, in Division of Administrative Hearings (DOAH) Case Number 01-3509PL (the underlying case). (All statutory references are to Florida Statutes (2002) unless otherwise stated.)
Findings Of Fact 1. Petitioner is a licensed dentist in the State of Florida pursuant to license number DN9676. Respondent is the state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Chapter 456, and Chapter 466. 2. Several facts are not disputed by the parties. Petitioner filed this proceeding pursuant to Section 57.111. Respondent initiated the underlying case. Respondent is not a nominal party. Petitioner is a "prevailing small business party." The attorney's fees sought by Petitioner are reasonable in an amount up to $15,000.00. The statutory cap of $15,000.00 applies in this case. 3. At the Probable Cause meeting of June 12, 2001, the members of the Probable Cause Panel had probable cause to believe that Petitioner violated applicable law by failing to refer his patient to a specialist for lingual nerve damage suffered by the patient when Petitioner extracted the patient's wisdom teeth. At the Probable Cause meeting, the Panel received the entire investigative file, including all medical records, a statement and expert opinion submitted on the behalf of Petitioner by his attorney, and the expert opinion of Nidal Elias, D.D.S. M.S., submitted by Respondent. 4. Dr. Elias reviewed the medical records and rendered an expert opinion that the medical records submitted by Petitioner did not contain an indication that Petitioner referred his patient to a specialist. The medical records failed to reveal that the Petitioner referred the patient to a specialist. 5S. The medical records did not contain an express notation that Petitioner referred the patient to a specialist and did not contain a referral form. The Probable Cause Panel correctly determined probable cause existed for initiating disciplinary action against Petitioner. 6. The Administrative Complaint filed in the underlying case alleged that Petitioner failed to refer his patient to a specialist. However, counsel for Respondent attempted to prove that Petitioner failed to refer his patient in a timely manner. The ALJ excluded any evidence of the untimely nature of a referral to a specialist because the Administrative Complaint did not allege that Petitioner failed to refer his patient ina timely manner. The ALJ found the evidence to be less than clear and convincing that Petitioner failed to refer his patient to a specialist.
Conclusions For Petitioner: William M. Powell, Esquire Powell & Steinberg, P.A. 3515 Del Prado Boulevard Waterside Plaza, Suite 101 Cape Coral, Florida 33904 For Respondent: Trisha D. Bowles, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with the Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004); Whether Respondent, Florida Commission on Human Relations (FCHR), has inherent authority to reconsider a Final Order it has issued; and Whether FCHR should adopt a rule which would permit the granting of a motion to reconsider a Final Order.
The Issue Whether the Division of Administrative Hearings has jurisdiction to hear this cause, alleging that Respondent Employer has committed an unlawful employment practice against Petitioner.
Findings Of Fact Following a July 28, 2003, "Notice of Determination: No Jurisdiction," by the Florida Commission on Human Relations, Petitioner filed a Petition for Relief as more fully described below. On or about September 3, 2003, the matter was referred to the Division of Administrative Hearings. It appearing on the face of the referral package that Respondent did not regularly employ 15 persons and that therefore Respondent did not qualify as an "employer" under Chapter 760, Florida Statutes, a September 12, 2003, Order was entered scheduling a telephonic hearing for October 1, 2003, and permitting the filing of any documents in support of the parties' respective positions. Respondent's "Submission of Materials in Support of Dismissal of Petition and Supporting Memorandum of Law" was served by United States Mail on September 25, 2003. It contained a prayer for dismissal. Pursuant to Rule 28-106.204, Florida Administrative Code, Petitioner was entitled to respond in writing by October 6, 2003. Petitioner did not respond. Respondent's "Supplemental Motion to Dismiss for Lack of Jurisdiction" was served upon Petitioner by hand-delivery, by United States Mail, and by "e-mail" on September 26, 2003. Per Rule, Petitioner was entitled to file a written response by October 8, 2003. Petitioner did not respond. A Corrected Order entered September 26, 2003, permitted the parties until October 7, 2003, to submit any documents tending to support or refute jurisdiction by the Division of Administrative Hearings over this cause. This Order also rescheduled the telephonic hearing for October 9, 2003. Petitioner filed nothing in response to either the September 12, 2003, Order or the September 26, 2003, Corrected Order. At the October 9, 2003, telephonic conference call, Respondent appeared through counsel. The opening of hearing was delayed five minutes, but Petitioner did not appear. Thereafter, oral argument upon all Motions proceeded without Petitioner. Petitioner still had not called in to the meet-me telephone number after 15 minutes, and the telephonic hearing was concluded. In an abundance of caution, an Order to Show Cause was entered on October 10, 2003, giving Petitioner 10 days in which to show cause, in writing, filed with the Division, why this cause should not be dismissed for lack of jurisdiction. Petitioner has filed nothing. Therefore, Respondent's documentation, including but not limited to: Respondent's accountants’ affidavits and its payroll journals, unemployment tax returns, and a payroll schedule, may be presumed true and accurate. All the documentation supports a finding that Respondent never employed more than 14 people for any one week in the year 2001 and employed 15 or more employees for only one week (December 21-28, 2002) in the year 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing this cause for lack of jurisdiction. DONE AND ENTERED this 30th day of October, 2003, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 30th day of October, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Truman Jeffery Mayfield 902 Phillips Street Jacksonville, Florida 32207 Robert G. Riegel, Jr., Esquire Ryan R. Fuller, Esquire Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203
