The Issue Whether Petitioner's Petition Seeking an Administrative Determination of the Invalidity of an Existing Rule (Petition) should be dismissed on the ground that the "challenged rule in this proceeding has been effectively repealed by the Florida Legislature by Section 626.854(11), Florida Statutes, effective October 1, 2008," as requested by Respondent.
The Issue The issue presented for consideration concerns the question whether action taken by the Respondent in its efforts to comply with the mandate of Subsection 120.60(5), Florida Statutes (1978), constitutes a rule or rules which has or have not been duly promulgated in accordance with the provisions of Sections 120.53, 120.54 and 120.56, Florida Statutes.
Findings Of Fact This case is here presented on the Petition of Livingston B. Sheppard, D.D.S., by an action against the Board of Dentistry, an agency of the State of Florida and the Department of Professional Regulation, an agency of the State of Florida, as Respondents. The purpose of this Petition is to have declared invalid certain activities of the Respondents pertaining to their efforts at complying with the provisions of Subsection 120.60(5), Florida Statutes (1978), in promoting license revocation or suspension cases against various dentists licensed to practice in the State of Florida. The Petitioner contends that these activities by the Respondents constitute a rule or rules which fail to comply with requirements of Sections 120.53, 120.54 and 120.56, Florida Statutes. The Petitioner, Livingston B. Sheppard, D.D.S., is a dentist licensed to practice in the State of Florida and thereby regulated by the Respondents. The Petitioner is also the subject of disciplinary action in Case No. 78-1481 before the State of Florida, Division of Administrative Hearings, and it is the action which was taken against Dr. Sheppard in the course of that prosecution, dealing with the subject of Subsection 120.60(5), Florida Statutes (1978), which the current Petitioner asserts to be an invalid rule or rules. The language of Subsection 120.60(5), Florida Statutes (1978), states: (5) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has given reasonable notice by certified mail or actual service to the licensee of facts or conduct which warrant the intended action and the licensee has been given an opportunity to show that he has complied with all lawful requirements for the retention of the license. If the agency is unable to obtain service by certified mail or by actual service, constructive service may be made in the same manner as is provided in chapter 49. Having considered the statement found in the above-referenced Subsection 120.60(5), Florida Statutes (1978), counsel for Dr. Sheppard in D.O.A.H Case No. 78-1481 filed a Motion to Dismiss the Administrative Complaint on August 31, 1979, alleging that the agency had failed to comply with the provisions. Oral argument on that motion was scheduled for 2:30 o'clock p.m. on September 17, 1979, and was heard at that time; however, prior to the oral argument, the Board of Dentistry on September 14, 1979, filed a docent in the case, which document attempted compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). The document was entitled "Notice of Intended Action Conference" and by its terms granted Dr. Sheppard an opportunity to appear before H. Fred Varn, Executive Director, Florida State Board of Dentistry, on September 17, 1979, at 10:00 a.m. in Tallahassee, Florida. (A copy of this "Notice of Intended Action Conference" was attached to the Petition in the case sub judice as an exhibit.) The Board of Dentistry had alerted the Hearing Officer to the action it had contemplated by its "Notice of Intended Action Conference." It did so through the Board prosecutor by correspondence of September 14, 1979, a copy of which may be found as the Petitioner's Exhibit No. 1 admitted into evidence. Dr. Sheppard filed an objection to the adequacy of the "Notice of Intended Action Conference" and refused to appear at that conference. After considering the oral arguments of the parties directed to the Motion to Dismiss of August 31, 1978, in D.O.A.H. Case No. 78-1481, the Honorable Delphene C. Strickland, Hearing Officer with the Division of Administrative Hearings, entered her Order dated September 26, 1979. (A copy of that Order has been attached as an exhibit to the current Petition.) In her Order, the Hearing Officer found the "Notice of Intended Action Conference was insufficient, in that the notice did not grant Sheppard sufficient time to prepare for the conference to be held on September 17, 1979, to the extent of demonstrating his compliance with the provisions of Chapter 466, Florida Statutes, as contemplated by Sub section 120.60(5), Florida Statutes (1978). The Hearing officer did feel that Dr. Sheppard had been notified of those allegations for which he was called upon to defend against and she granted the Board of Dentistry thirty (30) days from the date of her Order, September 26, 1978, to allow the accused an opportunity to show that he had complied with all lawful requirements for the retention of his license. There followed the current Petition which was filed on September 28, 1979. That Petition has been the subject of a Motion to Dismiss which challenged the adequacy of the Petition. The Motion to Dismiss was responded to and in the course of that response the Petitioner's counsel attached a copy of a "Notice of Informal Conference" to be held on October 23, 1979, at 9:00 a.m., in Tallahassee, Florida. (The location of that conference was subsequently changed to a place more convenient for Dr. Sheppard, specifically, St. Petersburg, Florida, but the amendment was otherwise the same as the original October 23, 1979, notice.) When the Motion to Dismiss and response to the motion were considered, the motion was denied by written Order of the undersigned dated October 22, 1979. That Order found in accordance with the Order of Hearing Officer Strickland, in D.O.A.H. Case No. 78-1481, referring to the Order dated September 26, 1979; that the efforts of complying with Subsection 120.60(5), Florida Statutes (1978), made by the Board of Dentistry in its attempted action conference to be held September 17, 1979, were not adequate and the prospective events of an action conference that would have been held on September 17, 1979, were deemed to be moot. Nonetheless, in view of the further action by the Board of Dentistry to conduct an informal conference on October 23, 1979, the present case was allowed to go forward on the basis that the Petitioner would be afforded an opportunity to show how the events leading to the written "Notice of Informal Conference" held on October 23, 1979, the notice itself, and the events at the conference constitute a rule or rules that has or have not been duly promulgated in the manner contemplated by Chapter 120, Florida Statutes. In furtherance of this permission, the Petitioner was and is allowed to make the "Notice of Informal Conference" as attached to the response to the Motion to Dismiss a part of the Petition and that "Notice of Informal Conference" is hereby made a part of the Petition. In the course of the hearing a number of witnesses were presented and those witnesses included Tom Guilday, a prosecutor for the Board of Dentistry; Liz Cloud, an employee of the State of Florida, Office of the Secretary of State; H. Fred Varn, Executive Director of the Board of Dentistry; Nancy Wittenberg, Secretary, Department of Professional Regulation; and the Petitioner, Livingston B. Sheppard. In addition, the Petitioner offered three items of evidence which were admitted. The testimony of attorney Guilday established that as prosecutor for the Board of Dentistry in the action against Dr. Sheppard, he spoke with Charles F. Tunnicliff, Acting General Counsel, Department of Professional Regulation, who instructed Guilday to attempt to comply with the requirements of Subsection 120.60(5), Florida Statutes (1978), and this was in anticipation of the pending Motion to Dismiss to be heard on September 17, 1979. One of the results of that conversation was the letter of September 14, 1979, Petitioner's Exhibit No. 1, addressed to Hearing Officer Strickland and the primary result was that of the September 14, 1979, "Notice of Intended Action Conference." The conference alluded to was to be held at the office of Mr. Varn. Attorney Guilday did not recall whether the contemplated disposition of September 17, 1979, was one which Tunnicliff indicated would be used in all similar cases pending before the Department of Professional Regulation. After Hearing Officer Strickland's Order was entered on September 26, 1979, attorney Deberah Miller of the Department of Professional Regulation instructed Guilday to comply with Hearing Officer Strickland's Order of September 26, 1979, on the subject of the dictates of Subsection 120.60(5), Florida Statutes (1978), and this instruction was supported by Memorandum of October 5, 1979, a copy of which may be found as Petitioner's Exhibit No. 2 admitted into evidence. There ensued the conference of October 23, 1979, which was held in St. Petersburg, Florida. After the conference, pursuant to the instructions of attorneys Miller and Tunnicliff, Guilday prepared a memorandum on the results of that conference. This memorandum did not carry a recommendation as to the disposition of the case. Throughout this period of time, attorney Guilday was unaware of any general policy within the Department of Professional Regulation or Board of Dentistry which dealt with attempts at compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). None of the discussions which Guilday had with attorneys Tunnicliff and Miller of the Department of Professional Regulation or with other officials of that Department or Board of Dentistry led him to believe that there was any set policy for handling those issues. Guilday did acknowledge that a member of his law firm, one Michael Huey, had been instructed by Staff Attorney Miller on the technique to be utilized in refiling a prosecution against John Parry, D.D.S., wherein the action against Dr. Parry had been dismissed for lack of compliance of Subsection 120.60(5), Florida Statutes (1978). A copy of that Memorandum dated October 3, 1979, may be found as Petitioner's Exhibit No. 3 and it carries with it an attached form for "Notice of Informal Conference" under the terms of Subsection 120.60(5), Florida Statutes (1970), and that format is similar to the October 23, 1979, "Notice of Informal Conference" in the Sheppard case. Guilday indicated in connection with this Memorandum, Petitioner's Exhibit No. 3, that to his knowledge no discussion on how to comply with the terms of the memorandum was made and no actual compliance with the memorandum has been taken to his knowledge. It was established through the testimony of Liz Cloud of the Office of the Secretary of State and through other witnesses that no formal rules have been filed with the Secretary of State by either of the Respondents dealing with the subject of compliance with the pie visions of Subsection 120.60(5), Florida Statutes (1978). Testimony offered by Nancy Wittenberg, Secretary, Department of Professional Regulation, and by H. Fred Varn, Executive Director, Board of Dentistry, established that neither the Department nor the Dental Board has formulated final policies on how to deal with the requirements of Subsection 120.60(5), Florida Statutes (1978), whether the cases pertain to those such as that of Dr. Sheppard in which the agency, although it has not complied with Subsection 120.60(5), Florida Statutes (1978), prior to the filing of the Administrative Complaint, has been granted an opportunity to try to comply or on the occasion where cases are in the investigative stage or the occasion where the cases have been dismissed for noncompliance with Subsection 120.60(5), Florida Statutes (1978), and are subject to refiling. It is shown through Secretary Wittenberg's testimony that such compliance with Subsection 120.60(5), Florida Statutes (1978), is still in the formative stages and the Memorandum of October 3, 1979, by Staff Attorney Miller with the format for noticing informal conferences to be held under the provisions of Subsection 120.60(5), Florida Statutes (1978), is but one method under consideration at this time. Moreover, Secretary Wittenberg has not spoken with attorney Guilday about the matters of the Sheppard case that are now in dispute or received reports of conversations between Guilday and Staff Attorneys Tunnicliff and Miller on the subject of the pending Sheppard dispute. Finally, Wittenberg has not instructed any of the support officials within the Department of Professional Regulation, to include departmental attorneys, to formulate policy directed to the implementation of the provisions of Subsection 120.60(5), Florida Statutes (1978), which action would constitute the final statement by the Department on those matters.
Findings Of Fact By agreement with the prosecution Dr. Brown had sought to delay consideration of his procedural motion to dismiss DPR Case No. 91-06883/DOAH Case No. 92-1076, pertaining to the patients J.C., D.R., T.E. and K.J. The parties to that action anticipated considering the motion at the final hearing as part of the case on the merits. The hearing officer was persuaded that the procedural motion to dismiss had to be examined separate and apart from the consideration of the case on the merits as to those four patients. Consequently the motion to dismiss was entertained concerning its evidential and legal basis prior to a hearing on the merits. This led to the decision on June 9, 1992, to dismiss the action pertaining to treatment of the patients J.C., D.R., and T.E., with leave to refile at some future date. The decision to dismiss was based upon the pertinent facts and law when examined in accordance with Section 455.255(1), Florida Statutes. The motion to dismiss the action concerning treatment of the patient K.J. was denied. The reason for the dismissal was announced in the record on June 9, 1992, and memorialized in the transcript of the proceedings. It was concluded that there was not an adequate basis to institute an investigation concerning the patients J.C., D.R., and T.E.; that the Department of Professional Regulation, now the Department of Business and Professional Regulation, did not furnish Dr. Brown or his attorney with a copy of the complaint or the document that resulted in the initiation of the investigation pertaining to the three patients; and, that Dr. Brown did not have the statutorily mandated opportunity to respond to the accusations made against him related to the care that he provided those three patients. Therefore, the procedural requirements under Section 455.225(1), Florida Statutes, had not been met and the case as it pertained to the three patients was dismissed with leave to refile. The procedural requirements related to the patient K.J. had been met and it was appropriate to present the K.J. case to the Probable Cause Panel for its deliberation, unlike the circumstance with the other three patients. It was determined that the quality of consideration by the Probable Cause Panel when voting to prosecute Dr. Brown for his treatment of K.J. was adequate. Based upon the ruling directed to the treatment of patients J.C., D.R., and T.E. the Department of Professional Regulation was not allowed to proceed against Dr. Brown for the care rendered those patients. A subsequent recommended order addressed in substance the prosecutions associated with DPR Case No. 91-06883/DOAH Case No. 92-1076 pertaining to the patient K.J.; DPR Case Nos. 011343 and 011344/DOAH Case No. 91-5325 and DPR Case Nos. 8901804, 0111385 and 0111353/DOAH Case No. 91-6358, traced the history of those cases in the preliminary statement to the recommended order and identified the prior ruling dismissing the actions pertaining to the patients J.C., D.R., and T.E. That recommended order was not an invitation to the Board of Medicine to respond to a recommendation of dismissal. The recommended order in the cases pertaining to patients other than J.C., D.R., and T.E. was entered on December 30, 1992, based upon the formal hearing conducted pursuant to Section 120.57(1), Florida Statutes, on various dates in June and July, 1992, and concluded on July 10, 1992, before the present hearing officer. On February 26, 1993, the Board entered its final order in the above- referenced cases and commented to the effect that it had approved the recommended dismissal by the hearing officer concerning the patients J.C., D.R., and T.E. with leave to refile. Neither party appealed the hearing officer's decision dismissing those counts within DPR Case No. 91-06883/DOAH Case No. 92-1076 directed to the patients J.C., D.R., and T.E. On March 8, 1993, Dr. Brown took an appeal from the final order of the Board of Medicine entered on February 26, 1993, which included the comment approving the actions by the hearing officer in dismissing the counts pertaining to the patients J.C., D.R., and T.E., but without prejudice to bring those actions again following compliance with Section 455.225, Florida Statutes. Robert C. Brown, Jr., M.D., is a licensed physician practicing in the state of Florida. He has held a license entitling him to practice in that state at all times relevant to the inquiry. At relevant times Dr. Brown has practiced medicine at 4519 Brentwood Avenue, Jacksonville, Florida, 32206. He is the sole medical practitioner of an incorporated professional practice. He has had less than 25 employees and his net worth has been not more than 2 million dollars. Dr. Brown is the only share holder in his incorporated professional association. No one else has ownership interest in the incorporated professional association. At times Dr. Brown has drawn a salary from the professional association as an employee of the professional association. His request for attorney's fees and costs are directed to the actions of the Department of Professional Regulation for its procedural noncompliance with Section 455.225, Florida Statutes, and the subsequent decision of the Board of Medicine to find probable cause and to have the Department of Professional Regulation proceed against Dr. Brown for care rendered the patients J.C., D.R., and T.E. The action to recover attorney's fees and costs not to exceed $15,000 was filed on April 27, 1993. The petition for attorney's fees and costs of April 27, 1993, was amended on July 15, 1993. Dr. Brown retained the law firm of Stowell, Anton and Kraemer to represent him in the aforementioned cases pertaining to the administrative prosecutions. His present attorney, Julie Gallagher, was principal counsel in those cases. No issue has been taken with the notion that $165.00 is a reasonable hourly rate for her services in defending Dr. Brown in the administrative prosecutions. Dr. Brown has paid all fees and costs charged by his lawyer in preparation for and participating in the proceedings related to the administrative prosecutions. To challenge the alleged procedural infirmities associated with the right to investigate, notice to the accused, opportunity for the accused to respond to the accusations and deliberations by the Probable Cause Panel contemplated by Section 455.225, Florida Statutes, it was not necessary for Dr. Brown to fully develop his defense on the merits of the accusations pertaining to patients J.C., D.R., and T.E. Dr. Brown's counsel in the exhibit associated with claims for attorney's fees and costs has highlighted the exhibit through color-codes in an attempt to assist the hearing officer in understanding the meaning of that exhibit. This color-code system attempts to identify those instances in which Dr. Brown claims that the work done on his behalf is associated only with patients with J.C., D.R. and T.E. and other occasions where a percentage is set forth in relation to work done in the entire DPR Case No. 91-06883/DOAH Case No. 92-1076, to include K.J. and in the other cases referenced before. The code is described in the August 16, 1993 cover letter from counsel for Dr. Brown. No attempt is made through the coding system to differentiate between those actions taken in moving to dismiss DPR Case No. 91-06883/DOAH Case No. 92-1076 pertaining to the patients J.C., D.R. and T.E. from other activities related to defending the accusations about those patients on the merits. The right to recover, if at all, is limited to those attorney's fees and costs associated with the motion to dismiss counts pertaining to the patients J.C., D.R., and T.E., together with the attorney's fees and costs associated with the present case. No other efforts by Dr. Brown's attorneys may be the proper subject for recovery. Not only was it not necessary to know information concerning the merits of the administrative complaint pertaining to patients J.C., D.R., and T.E. to pursue the motion to dismiss on procedural grounds, the decision that was made did not resolve the merits set forth in the administrative complaints directed to Dr. Brown's treatment of J.C., D.R., and T.E. The possibility exists that Dr. Brown could be called upon to defend against similar accusations to those set forth in the DPR Case No. 91-06883/DOAH Case No. 92-1076 at which time he could prepare himself to defend the merits and if successful that would be the appropriate moment to seek attorney's fees and costs for that aspect of the case. The arrangement by stipulation between the parties in the prior prosecution to delay consideration of the motion to dismiss until the place at which prosecution of the cases involving J.C., D.R., and T.E. were being examined on their merits was not appropriate. Consequently, Dr. Brown may not assert that he was required to prepare his motion to dismiss on procedural grounds simultaneously with his defense on the merits of the administrative complaint directed to the patients J.C., D.R., and T.E. Within this context, taking into account a lack of opposition to the $165.00 hourly rate charged by Dr. Brown's counsel, the following amounts are found to be associated with the pursuit of the motion to dismiss those counts related to patients J.C., D.R., and T.E. and claims under Section 57.111, Florida Statutes, to recover attorney's fees and costs: 3/11/92-$165.00; 3/14/92-$165.00; 3/16/92-$125.00; 3/31/92-$100.00; 4/2/92-$247.50; 4/6/92- $62.50; 4/6/92-$198.00; 4/10/92-$50.00; 4/16/92-$10.00; 4/17/92-$50.00; related to the motion to dismiss and 4/27/93-$165.00; 5/3/93-$33.00; 5/12/93-$15.00; 5/17/93-$82.50; 6/14/93-$165.00; related to the prosecution of the petition for attorney's fees and costs. No proof was offered concerning any special circumstances that point to any injustice in awarding attorney's fees and costs in the amount identified.
Findings Of Fact On December 30, 1993, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding." The pleadings and papers transmitted by FCHR show that Petitioner filed a complaint with FCHR on March 10, 1993, charging an unlawful employment practice by Respondent in connection with a denial of a raise in salary. On August 24, 1993, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice has occurred. Notice of that determination was served on Petitioner and Respondent on August 24, 1993 by regular mail. The Notice of Determination of No Cause served on Petitioner included the following statement: The parties are advised that the Complainant may request that a formal, post-investigative proceeding be conducted. The Request for Hearing/Petition for Relief must be filed within 30 days of the date of mailing of this Notice and should be in compliance with the provisions of Rule 60Y-5.008 and Chapter 60Y-4, Florida Administrative Code. A Petition for Relief form is enclosed. If you elect to file a Petition for Relief, it may be beneficial to seek legal counsel prior to filing the petition. Petitioner received the Notice of Determination. Petitioner understood that, under the FCHR rules cited in the Notice, the requirement for the petition to be "filed" meant that the petition had to actually be received by the FCHR. On September 30, 1993, 37 days after the Notice was served, the FCHR Executive Director issued a Notice of Dismissal, for the reason that no Petition for Relief had been filed. On October 13, 1993, Petitioner transmitted to the FCHR her Petition for Relief, requesting an administrative hearing. The petition was submitted on the form provided by the FCHR, and was accompanied by a transmittal letter from the Petitioner on her letterhead stationery that identified the enclosures. It was filed with the FCHR on October 18, 1993. After receiving the October transmittal, on November 18, 1993, the FCHR issued an Order to Show Cause, directing the Petitioner to provide reasons why the late-filed petition should not be dismissed. Petitioner responded to the show cause order by transmitting a package to the FCHR on November 30, 1993. It contained her response to the show cause order, a copy of the petition transmitted in October, and another original petition on a second form that Petitioner said was provided to her by the FCHR. This transmittal was also accompanied by a transmittal letter on Petitioner's letterhead stationery, describing the contents. The FCHR did not rule on the sufficiency of Petitioner's response, but rather transmitted the pleadings (including the show cause order and response) to DOAH for further proceedings. At the same time of the transmittal to DOAH, FCHR also issued a notice of the petition to Respondent advising it of the requirement to file an answer to the Petition for Relief. CFRH timely filed its answer with affirmative defenses, including the first affirmative defense that "the Petition for Relief is untimely." The Petitioner made two mailings of petitions: one mailing was made to transmit one form petition that she had completed in October, 1993, and a second mailing was made in November with a copy of the first form plus another original form filled out by Petitioner. Petitioner also testified that she mailed another petition, without a transmittal letter, on September 20, 1993. There was no evidence presented that a Petition was received by FCHR in September 1993 or that the document was returned to Petitioner as undelivered mail.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in DOAH Case No. 94-0070 and FCHR Case No. 93-3143, for failure to timely file the Petition. DONE AND ENTERED this 27th day of July, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1994.
Findings Of Fact At all times material hereto Petitioner was an inmate incarcerated at Union Correctional Institution within the custody and control of the State of Florida, Department of Corrections. Respondent stipulated at final hearing that Petitioner has "standing" to maintain the rule challenge proceeding. The parties also stipulated that the rule under challenge in this proceeding is a rule adopted by Respondent in accordance with the settlement reached in a previous administrative rule challenge proceeding in which Petitioner was a party. The parties further stipulated that ". . . inmates within the Respondent's care enjoy meaningful access to the courts." There are presently approximately 2,500 inmates incarcerated at Union Correctional Institution. There is one Xerox machine located in the law library at Union Correctional Institution, and the librarian has two inmate clerks assigned to assist in the operation of the library. There is insufficient money in the library budget to fund either additional copying machines or additional personnel to assist in copying materials other than those authorized under Respondent's rule.
Findings Of Fact Herein, Ibanez seeks recovery of attorney's fees and costs she claims to have incurred in DOAH Case No. 91-3336R styled Silvia S. Ibanez et al. v. State of Florida, Department of Professional Regulation, Board of Accountancy et al. In that case, Ibanez challenged the validity of Board of Accountancy Rule 21A-20.012 F.A.C. (the "holding out rule"). Ibanez unsuccessfully tried to initiate that case by filing a petition on May 10, 1991 with the Department of Professional Regulation. Ibanez successfully initiated the rule challenge on May 30, 1991, by filing with DOAH a Petition for Formal Administrative Hearing under Section 120.56 F.S. This type of action is commonly referred to as a "challenge to an existing agency rule." In such a case, the Petitioner is fully the initiator, challenger, or sword-wielder in the proceeding and bears both the duty to go forward and the burden of proof. Ibanez initiated the rule challenge in her capacity as a licensed certified public accountant (CPA). She is a sole practitioner and an employee of a law firm called "Silvia S. Ibanez, P.A.," but the law firm "Silvia S. Ibanez, P.A.," was not a party and did not participate in the rule challenge, except as one of several legal representatives for Silvia S. Ibanez, the individual. The Board participated in the rule challenge case to defend the holding out rule. The Florida Institute of Certified Public Accountants (FICPA) intervened in the rule challenge in support of the position of the Board that the holding out rule was valid. While Ibanez' petition in the rule challenge contained a prayer for "other appropriate relief, including award of costs as appropriate," her petition therein did not request an award of attorney's fees. Ibanez' Proposed Findings of Fact and Conclusions of Law and her accompanying Memorandum of Law submitted after formal hearing for that case, both of which pleadings were dated October 11, 1991, did not contain proposed findings of fact or proposed conclusions of law addressing the issue of attorney's fees and costs. Neither of Ibanez' post- hearing filings contained a request for attorney's fees or costs or a request to reserve jurisdiction in that case for such an award. The undersigned hearing officer rendered a final order declaring invalid the holding out rule on January 15, 1992. That final order did not award attorney's fees and costs, nor did it reserve jurisdiction to decide attorney's fees and costs at another time. Neither Ibanez nor any of her corporate entities nor any of her supporting intervenors filed any motion requesting a reservation of jurisdiction or requesting reconsideration. The Board and FICPA each appealed the final order in the rule challenge to the First District Court of Appeal in February 1992, but dismissed those appeals on May 6, 1992, by filing a Joint Notice of Voluntary Dismissal. The First District Court of Appeal issued an order acknowledging the Joint Dismissal on May 14, 1992. The Joint Dismissal and First District Court of Appeal Order were both attached to the material filed by the parties in this instant case. For purposes of deciding the pending motions to dismiss herein, the undersigned has considered the Joint Dismissal, the First District Court of Appeal Order, and the record in the rule challenge case, DOAH Case No. 91-3336R. Due to the unique arguments advanced in Ibanez' fees and costs motion (sic) herein, it also has been necessary and appropriate to consider the record in DOAH Case No. 91-4100. On May 22, 1991, a probable cause panel of the Board held a probable cause hearing involving Ibanez. As a result of that hearing, the Board initiated a disciplinary proceeding styled State of Florida, Department of Professional Regulation, Board of Accountancy v. Silvia S. Ibanez, DOAH Case No. 91-4100, by filing an administrative complaint on June 13, 1992. That case was a disciplinary action arising under Section 120.57(1) F.S. which was prosecuted by the Department of Professional Regulation on behalf of the Board against Ibanez. At one time, the disciplinary case was consolidated with the rule challenge case. The two cases were bifurcated prior to formal hearing of the merits of either case. FICPA never intervened in the disciplinary case, nor had they any standing to do so. The undersigned hearing officer conducted a 120.57(1) F.S. hearing in the disciplinary case on August 27, 1991, and issued a recommended order to the Board on January 15, 1992. The Board issued its final order in the disciplinary case on April 23, 1992. Therein, contrary to the recommended order, the Board held that Ibanez had violated Sections 473.323(1)(a), (f), (g), and (h) F.S. and Rule 21A-24.001 F.A.C. The Board accordingly issued a reprimand to Ibanez, which reprimand was stayed by the Board pending appeal. Ibanez has appealed the Board's final order in the disciplinary case to the First District Court of Appeal, which appeal is still pending. Ibanez served on July 9, 1992 her Motion for Attorney's Fees which is here under consideration. In doing so, Ibanez elected to use the style of the underlying rule challenge case, DOAH 91-3336R, the style of which still included intervenors James R. Brewster and American Association of Attorney Certified Public Accountants. Those intervenors have never attempted to appear in the instant fees and costs case and apparently seek no relief via Ibanez' pending fees and costs motion. The rule challenge case was final for all purposes before DOAH as of January 15, 1992 and before the District Court of Appeal on May 14, 1992. The DOAH case file for DOAH Case No. 91-3336R has been closed for several months. Ibanez' Motion for Attorney's Fees was received and deemed filed by DOAH on July 13, 1992. It was filed with DOAH sixty-eight (68) days after the rule challenge appeals were voluntarily dismissed by FICPA and the Board and sixty (60) days after the First District Court of Appeals entered its order ratifying the voluntary dismissal. Because petitions brought solely under Section 57.111 F.S. result in final orders, it is DOAH's standard operating procedure to open new files for all fees and costs cases arising under Section 57.111 F.S. Upon receipt of Ibanez' motion, DOAH's Clerk assigned Ibanez' motion the instant new case number (DOAH 92-4271F), primarily on the basis that the motion prayed for relief upon grounds of Section 57.111 F.S., among other statutes. The other statutory grounds cited in the motion were Sections 120.57(1)(b)5 and 120.59(6) F.S.
The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code. Petitioner, Dr. Hoover, seeks to recover his attorney's fees and costs incurred in the defense of an action brought against him by the Department of Professional Regulation, Board of Medicine. The issues for determination are whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in DOAH Case No. 92-2202, DPR Case No. 0104601, and whether, in the absence of such substantial justification, Petitioner is entitled to the award of the amount of attorney's fees and costs sought, or whether special circumstances exist which would make an award unjust.
Findings Of Fact The Department of Professional Regulation, a state agency, initiated action against Dr. Hoover by filing an Administrative Complaint on May 16, 1991, in DPR Case No. 0104601 (Hoover I); Dr. Hoover by election of rights requested a formal hearing; the case was referred to the Division of Administrative Hearings (DOAH) and was assigned DOAH #91-4068. (DOAH Case No. 91-4068: Administrative Complaint, Election of Rights form) The case was set for final hearing on November 13-14, 1991. Dr. Hoover requested a continuance on October 16 because he would be unavailable to assist counsel prepare for hearing. Hearing Officer Robert Meale denied his request. (DOAH Case No. 91-4068: Request for Continuance, Order Denying Continuance) The Department moved for a continuance on October 29th because the primary expert witness had gone to Japan and could not return in time for the hearing or depositions by Dr. Hoover. The Hearing Officer also denied this motion. (DOAH Case No. 91-4068: Petitioner's Motion for Continuance, Order Denying Continuance) On November 5, 1991, the Department filed a Notice of Voluntary Dismissal, Without Prejudice. (DOAH Case No. 91-4068: Notice) The Hearing Officer closed the DOAH file on November 13, 1991. (DOAH Case No. 91-4068: Order) Dr. Hoover then filed a Petition for Fees and Costs on November 21, 1991, and the case was assigned DOAH Case No. 91-7526F. (DOAH Case No. 91- 7526F: Petition) After formal hearing the Petition was denied by the Hearing Officer, who on March 31, 1992, ruled that "the Department has met its burden of showing that the filing of the Administrative Complaint was substantially justified." (DOAH Case No. 91-7526: Final Order) Immediately, without returning the case to the Probable Cause Panel, the Department served the same Administrative Complaint in DPR Case #0104601 on Dr. Hoover (Hoover II). By election of right, he again requested a formal hearing. (DOAH Case No. 92-2202) On April 8, 1992 two cases against Dr. Hoover were referred to DOAH, DPR Case #0104601 and #110008. They were assigned DOAH Case #92-2202 and 92- 2201, respectively, and were assigned to Hearing Officer Mary Clark, who consolidated them without objection. (DOAH Case Nos. 92-2201, 92-2202) Dr. Hoover's counsel withdrew and Mr. Brooten became counsel of record on May 4, 1992. (DOAH Case No. 92-2202) On May 14, 1992, Dr. Hoover filed his Motion to Dismiss DOAH Case #92- 2202. After oral argument the motion was granted by the Hearing Officer on September 16, 1992. (Recommended Order of Dismissal, DOAH Case No. 92-2202) The Hearing Officer held in her Conclusions of Law that the Department of Professional Regulation had no jurisdiction to dismiss a complaint, hold it in abeyance, and refile at its convenience without a new probable cause determination. The Hearing Officer also noted that the passage of time might yield changed circumstances and a changed result. (Recommended Order of Dismissal, DOAH Case No. 92-2202) On October 12, 1992, Dr. Hoover filed a Motion for Attorney's Fees and Costs which was denied without prejudice by the Hearing Officer on October 21, 1992, on the grounds that, without a final order, he was not a prevailing small business party. (DOAH Case No. 92-2202) On October 4, 1992, a Probable Cause Panel of the Board of Medicine again found probable cause in DPR Case #0104601. (Memorandum of Finding of Probable Cause, filed by DPR in DOAH Case No. 93-0168F) By Final Order filed on December 30, 1992, the Board of Medicine dismissed DPR Case #0104601 without prejudice. The Board of Medicine in its Conclusions of Law in the Final Order expounded and clarified the Board's intentions and interpretation of the governing statutes. The Board rejected the Hearing Officer's conclusions, but "in the interest of equity" determined that ". . . the disposition recommended by the Hearing Officer be ACCEPTED AND ADOPTED." (DOAH Case No. 92-2202) On February 8, 1993, the Department served the Administrative Complaint in DPR Case #0104601 (Hoover III) on Dr. Hoover. (Motion to Abate, filed 3/8/93 in DOAH Case No. 92-2201). DPR Case #0104601 (Hoover III) is now pending in the Fifth District Court of Appeal, Case #93-455, on a petition for writ of prohibition by Dr. Hoover. DOAH Case #92-2201 (DPR Case #0110008) is in abeyance, at the request of the parties, awaiting determination by the appellate court on the extraordinary writ. (Order of Abeyance dated 3/17/93 in DOAH Case No. 93-2201) It is uncontroverted that DOAH Case #92-2202 was initiated by a state agency, that Dr. Hoover prevailed when the case was dismissed, and that Dr. Hoover is a "small business party" as defined in Section 57.111(3)(d), F.S. The reasonableness of the claimed fees and costs, $10,376.22, total, is likewise uncontroverted.
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).
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.
