00-002890F Glenn Ross Caddy, Ph.D. vs. Department Of Health, Board Of Psychology Status: Closed DOAH Final Order on Tuesday, December 19, 2000.

Summary: Petitioner failed to establish that Board rule had been declared invalid pursuant to Section 120.56(3) because no rule challenge was initiated under that section; not entitled to attorneys fees for appeal in which court held rule facially unconstitutional

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLENN ROSS CADDY, Ph.D., )

)

Petitioner, )

)

vs. ) Case No. 00-2890F

)

DEPARTMENT OF HEALTH, )

BOARD OF PSYCHOLOGY, )

)

Respondent. )

________________________________)

FINAL ORDER OF DISMISSAL

A hearing was conducted on November 13, 2000, during which

oral argument was heard on Petitioner's Amended Motion for

Attorney's Fees, Costs, and Litigation Expenses. Counsel for

the parties participated by telephone.

PRELIMINARY STATEMENT

This proceeding was initiated on July 13, 2000, w hen

Glenn R. Caddy filed with the Division of Administrative

Hearings Petitioner's Motion for Attorney's Fees, Costs

(Including Appellate Costs), and Litigation Expenses. In his

motion, Dr. Caddy sought to recover from the Department of

Health, Board of Psychology ("Department"), attorneys' fees,

costs, and litigation expenses incurred in the administrative

proceeding before the Board of Psychology ("Board") styled

Agency for Health Care Administration v. Glenn R. Caddy , DOAH

Case No. 97-1423, in which the Board entered a Final Order

imposing sanctions on Dr. Caddy, and in the appeal of the

Board's final order, reported as Caddy v. State of Florida,

Department of Health, Board of Psychology , 764 So. 2d 625 (Fla.

1st DCA 2000), in which the First District Court of Appeal

reversed the Board's Final Order on the grounds that the rule

relied upon by the Board was facially unconstitutional. As

authority for the requested award of attorneys' fees, costs, and

litigation expenses, Dr. Caddy cited in his motion

Section 120.595(3), Florida Statutes, and Rule 9.400(a), Florida

Rules of Appellate Procedure.

On July 25, 2000, the Department filed Respondent's

Response to Petitioner's Motion for Attorney's Fees and Costs

and Respondent's Motion to Strike Petitioner's Motion for

Attorney's Fees. After consideration of the Petitioner's

motion, of the Department's response in opposition to the

motion, and of the Department's motion to strike, an order

denying the motion with leave to amend was entered on August 23,

2000. With respect to Dr. Caddy's entitlement to an award of

fees and costs pursuant to Section 120.595(3), Florida Statutes

(2000), it was concluded in the order that Dr. Caddy was not

entitled to an award of attorneys' fees and costs pursuant to

Section 120.595( 3), Florida Statutes (2000), 1/ first, because

he had not initiated a proceeding pursuant to Section 120.56(1)

and (3), Florida Statutes, challenging the validity of the

Board's rule as an invalid exercise of delegated legislative

authority, and, second, because the court had not declared the

rule an invalid exercise of delegated legislative authority

pursuant to Section 120.56(3), Florida Statutes. With respect

to Dr. Caddy's entitlement to an award of costs pursuant to

Rule 9.400(a), Florida Rules of A ppellate Procedure, it was

concluded in the order that the Division of Administrative

Hearings was not the "lower tribunal" authorized to award costs

pursuant to Rule 9.400(a), Florida Rules of Appellate Procedure,

because the Board was the entity that entered the final order in

the previous administrative proceeding.

After requesting and being granted an extension of time in

which to file an amended motion, Dr. Caddy filed Petitioner's

Amended Motion for Attorneys' Fees, Costs, and Litigation

Expenses on October 16, 2000. In his amended motion, Dr. Caddy

seeks an award of attorneys' fees, costs, and litigation

expenses incurred in the previous proceedings, citing as

authority Section 120.595(3), Florida Statutes (1999), and an

award of attorneys' fees, costs, and litigation expenses

incurred in determining entitlement to attorneys' fees, costs,

and litigation expenses. Dr. Caddy did not, in his amended

motion, request an award of costs pursuant to Rule 9.400(a),

Florida Rules of Appellate Procedure. On October 26, 2000, the

Department filed Respondent's Response to Petitioner's Amended

Motion for Attorney's Fees, Costs, and Litigation Expenses and

Motion to Dismiss. A telephone hearing was held on November 13,

2000, during which oral argument was presented on the amended

motion and in opposition to the amended motion, as well as on

the Respondent's Motion to Dismiss.

For purposes of considering the amended motion, the

undersigned has taken official recognition of the Administrative

Complaint filed against Dr. Caddy by the Agency for Health Care

Administration ("AHCA") on January 9, 1997, and the Election of

Rights form and Answer and Affirmative Defenses served on AHCA

by Dr. Caddy on February 20, 1997, all of which were part of the

record in Agency for Health Care Administration v. Glenn R.

Caddy , DOAH Case No. 97-1423. 2/

FACTUAL PREDICATE

A two-count Administrative Complaint signed December 31,

1996, formed the basis for the proceedings before the Division

of Administrative Hearings in Agency for Health Care

Administration v. Glenn R. Caddy , DOAH Case No. 97-1423. In the

Administrative Complaint, AHCA alleged that Dr. Caddy was a

psychologist licensed to practice in Florida and requested that

the Board impose a penalty on Dr. Caddy, to include revocat ion

or suspension of his license or imposition of an administrative

fine, based on the violations charged in the complaint. In

Count I of the Administrative Complaint, 3/ AHCA charged that

Dr. Caddy violated Section 490.009(2)(k), Florida Statutes, "by

committing any act upon a patient or client which would

constitute sexual battery or which would constitute sexual

misconduct as defined in Section 490.0111." It was further

alleged in Count I that Section 490.0111, Florida Statutes,

provides that sexual misconduct by any licensee under

Chapter 490, Florida Statutes, is prohibited and that "[s] exual

misconduct shall be defined by rule." AHCA quoted Rule 59AA-

16.003, 4/ Florida Administrative Code, for the definition of

sexual misconduct as it relates to psychologists licensed in

Florida:

(2) It shall constitute sexual misconduct

for a psychologist, who is involved in a

psychologist-client relationship, to engage,

attempt to engage, or offer to engage the

client in sexual intercourse or other sexual

behavior. Sexual behavior includes, but is

not limited to, kissing, or the touching by

either the psychologist or the client of the

other's breasts or genitals.

* * *

(5) A psychologist-client relationship

exists whenever a psychologist has rendered,

or purports to have rendered, psychological

services, including, but not limited to,

psychotherapy, counseling, assessment or

treatment to a person. A formal contractual

relationship, the scheduling of professional

appointments, or payment of a fee for

services are not necessary conditions for

the existence of a psychologist-client

relationship, though each of these may be

evidence that such relationship exists.

(a) For purposes of determining the

existence of sexual misconduct as defined

herein, the psychologist-client relationship

is deemed to continue in perpetuity.

On the Election of Rights form submitted in response to the

Administrative Complaint and dated February 19, 1997, Dr. Caddy

indicated that he disputed the allegations of fact contained in

the Administrative Complaint and that he requested

that this be considered a petition for a

hearing involving disputed issues of

material fact, pursuant to Section 120.569,

Florida Statutes (Supp. 1996), and

Section 120.57(1), Florida Statutes (1995),

before an Administrative Law Judge appointed

by the Division of Administrative Hearings.

For the specific disputed facts, the Petitioner referred to the

Answer that he filed concurrently with the Election of Rights

form.

In the "Answer and Affirmative Defenses" filed with AHCA,

Dr. Caddy denied certain allegations in the Administrative

Complaint. He also alleged several "affirmative defenses" to

the Administrative Complaint:

7. Section 490.0111, Florida Statutes and

any applicable rules promulgated thereunder

are too vague and uncertain to adequately

advise respondent of the standards of

conduct to which he or she must adhere and,

accordingly, cannot consistent with due

process give rise to imposition of

discipline, penal in nature.

8. Section 490.011, Flo rida Statutes

violates respondent's fundamental

associational and privacy rights under the

United States and Florida constitutions.

9. Chapter 59AA-16.003 [now Rule 64B19-

16.003], Florida Administrative Code is an

invalid delegation of legislative power.

10. Chapter 59AA-16.003 [now Rule 64B19-

16.003], Florida Administrative Code is an

invalid exercise of delegated of [sic]

legislative power.

11. The deeming that the psychologist-

client relationship continues "in

perpetuity" in Chapter 59AA-16.003 [now

Rule 64B19-16.003], Florida Administrative

Code creates an irrebutable [sic]

presumption that violated respondent's

constitutionally protected due process

rights.

12. The filing of the Amended

Administrative Complaint was not authorized

by law and was in violation of law, and

particularly, was filed in violation of

[section] 286.011, Florida Statutes.

13. The conduct in which respondent is

alleged to have engaged does not constitute

a violation of Section 490.0111, Florida

Statutes.

The Administrative Complaint, the Election of Rights form,

and the Answer and Affirmative Defenses were forwarded by AHCA

to the Division of Administrative Hearings, with a request that

an administrative law judge be assigned to hear the case. It is

undisputed that the file of the Division of Administrative

Hearings was closed and jurisdiction was relinquished to the

Board without an evidentiary hearing having been conducted on

the allegations in the Administrative Complaint; that the Board

issued a Final Order imposing sanctions on Dr. Caddy; and that,

on appeal, the First District Court of Appeal reversed the

Board's Final Order. It is also undisputed that the First

District Court of Appeal did not award attorneys' fees and costs

to Dr. Caddy, nor did that court rem and the case to the Division

of Administrative Hearings for an award and/or assessment of

attorneys' fees and costs.

ANALYSIS

Section 120.595(3), Florida Statutes (2000), which

authorizes the award of attorneys' fees and costs in certain

circumstances, provides:

(3) CHALLENGES TO EXISTING AGENCY RULES

PURSUANT TO SECTION 120.56(3).--If the court

or administrative law judge declares a rule

or portion of a rule invalid pursuant to

s. 120.56(3), a judgment or order shall be

rendered against the agency for reasonable

costs and reasonable attorney's fees, unless

the agency demonstrates that its actions

were substantially justified or special

circumstances exist which would make the

award unjust. An agency's actions are

"substantially justified" if there was a

reasonable basis in law and fact at the time

the actions were taken by the agency. If

the agency prevails in the proceedings, the

court or administrative law judge shall

award reasonable costs and reasonable

attorney's fees against a party if the court

or administrative law judge determines that

a party participated in the proceedings for

an improper purpose as defined by

paragraph (1)(e). No award of attorney's

fees as provided by this subsection shall

exceed $15,000.

Section 120.56, Florida Statutes (Supp. 1996), 5/

provides in pertinent part:

120.56 Challenges to rules.--

(1) GENERAL PROCEDURES FOR CHALLENGING

THE VALIDITY OF A RULE OR A PROPOSED RULE.--

(a) Any person substantially affected by

a rule or a proposed rule may seek an

administrative determination of the

invalidity of the rule on the ground that

the rule is an invalid exercise of delegated

legislative authority.

(b) The petition seeking an

administrative determination must state with

particularity the provisions alleged to be

invalid with sufficient explanation of the

facts or grounds for the alleged invalidity

and facts sufficient to show that the person

challenging a rule is substantially affected

by it, or that the person challenging a

proposed rule would be substantially

affected by it.

(c) The petition shall be filed with the

division which shall, immediately upon

filing, forward copies to the agency whose

rule is challenged, the Department of State,

and the committee. Within 10 days after

receiving the petition, the division

director shall, if the petition complies

with the requirements of paragraph (b),

assign an administrative law judge who shall

conduct a hearing within 30 days thereafter,

unless the petition is withdrawn or a

continuance is granted by agreement of the

parties or for good cause shown. Evidence

of good cause includes, but is not limited

to, written notice of an agency's decision

to modify or withdraw the proposed rule or a

written notice from the chair of the

committee stating that the committee will

consider an objection to the rule at its

next scheduled meeting. The failure of an

agency to follow the applicable rulemaking

procedures or requirements set forth in this

chapter shall be presumed to be material;

however, the agency may rebut this

presumption by showing that the substantial

interests of the petitioner and the fairness

of the proceedings have not been impaired.

(d) Within 30 days after the hearing, the

administrative law judge shall render a

decision and state the reasons therefor in

writing. The division shall forthwith

transmit copies of the administrative law

judge's decision to the agency, the

Department of State, and the committee.

(e) Hearings held under this section

shall be conducted in the same manner as

provided by ss. 120.569 and 120.57, except

that the administrative law judge's order

shall be final agency action. The

petitioner and the agency whose rule is

challenged shall be adverse parties. Other

substantially affected persons may join the

proceedings as intervenors on appropriate

terms which shall not unduly delay the

proceedings. Failure to proceed under this

section shall not constitute failure to

exhaust administrative remedies.

* * *

(3) CHALLENGING EXISTING RULES; SPECIAL

PROVISIONS.--

(a) A substantially affected person may

seek an administrative determination of the

invalidity of an existing rule at any time

during the existence of the rule.

(b) The administrative law judge may

declare all or part of a rule invalid. The

rule or part thereof declared invalid shall

become void when the time for filing an

appeal expires. The agency whose rule has

been declared invalid in whole or part shall

give notice of the decision in the Florida

Administrative Weekly in the first available

issue after the rule has become void.

It is clear from the provisions of Section 120.56(1) quoted

above that an action challenging the validity of an agency rule

is initiated by filing a petition with the Division of

Administrative Hearings, that the scope of the jurisdiction of

an administrative law judge of the Division of Administrative

Hearings is to determine whether a rule is an invalid exercise

of delegated legislative authority, and that the administrative

law judge hearing the rule challenge issues a final order at the

conclusion of the evidentiary hearing on the matter. The final

order of the administrative law judge is subject to judicial

review. Section 120.68(1) and (9), Florida Statutes

(Supp. 1996).

It is undisputed that Dr. Caddy did not challenge the

validity of Rule 64B19-16.003, Florida Administrative Code, as

an invalid exercise of delegated legislative authority by filing

a petition with the Division of Administrative Hearings pursuant

to the provisions of Section 120.56(1) and (3), Florida

Statutes. Rather, in addition to raising several constitutional

challenges to Section 490.0111, Florida Statutes, and to

"Chapter" 59AA-16.003, now Rule 64B19-16.003, Florida

Administrative Code, 6/ Dr. Caddy stated as an "affirmative

defense" to the Administrative Complaint that "Chapter 59AA-

16.003 [now Rule 69B19-16.003], Florida Administrative Code is

an invalid exercise of delegated of [sic] legislative power."

This statement did not vest jurisdiction in the Division of

Administrative Hearings to determine in a final order the

validity of Rule 64B19-16.003, Florida Administrative Code. The

proceeding Dr. Caddy initiated when he submitted his Election of

Rights form to AHCA was a proceeding conducted pursuant to

Section 120.57(1), Florida Statutes, in which an administ rative

law judge can either relinquish jurisdiction to the referring

agency when it appears that there are not disputed issues of

material fact, Section 120.57(1)( i), Florida Statutes, or submit

a recommended order to the referring agency after an evidentiary

hearing. Section 120.57(1)(k), Florida Statutes. Because no

petition was filed pursuant to Section 120.56(1) and (3),

Florida Statutes, an administrative law judge could not have

entered a final order declaring Rule 64B19-16.003(5)(a), Florida

Administrative Code, "invalid pursuant to s. 120.56(3)."

Nor has any court declared Rule 64B19-16.003(5)(a), Florida

Administrative Code, invalid pursuant to Section 120.56(3),

Florida Statutes. Section 120.68(9), Florida Statutes, relating

to judicial review, provides that

[n]o petition challenging an agency rule as

an invalid exercise of delegated legislative

authority shall be instituted pursuant to

this section, except to review an order

entered pursuant to a proceeding under s.

120.56, unless the sole issue presented by

the petition is the constitutionality of a

rule and there are no disputed issues of

fact.

In its opinion in Caddy v. State of Florida, Department of

Health, Board of Psychology , 764 So. 2d 625, 629-30 (Fla. 1st

DCA 2000), the court determined that, on its face, Rule 64B19-

16.003(5)(a), Florida Administrative Code, was unconstitutional

in that it violated the right to privacy guaranteed by the

Florida Constitution; the court expressly stated that it

declined to reach the constitutional question of whether the

rule was an invalid delegation of legislative authority.

Because no order was entered as a result of a proceeding

initiated under Section 120.56(1) and (3), Florida Statutes, the

appellate court did not "review an order entered pursuant to a

proceeding under s. 120.56(3)," Section 120.68(9), Florida

Statutes, and, therefore, did not hold that the rule was

"invalid pursuant to s.120.56(3)."

Dr. Caddy argues in his amended motion and in the

memorandum in support of the motion that a rule that is facially

unconstitutional is per se invalid as an invalid exercise of

delegated legislative authority, as that term is defined in

Section 120.52(8), Florida Statutes. This may be so, but the

fact remains that Dr. Caddy did not challenge the validity of

Rule 64B19-16.003, Florida Administrative Code, as an invalid

exercise of delegated legislative authority in a proceeding

initiated pursuant to Section 120.56(1) and (3), Florida

Statutes; no administrative law judge declared the rule invalid

pursuant to Section 120.56(3), Florida Statutes; and the First

District Court of Appeal did not review an order entered

pursuant to Section 120.56(3), Florida Statutes. As a result,

no predicate has been laid for the award of attorneys' fees and

costs pursuant to Section 120.595(3), Florida Statutes.

Statutes awarding attorneys' fees must be strictly

construed. See Whitten v. Progressive Casualty Insurance

Company , 410 So. 2d 501 (Fla. 1982); Kittel v. Kittel , 210 So.

2d 1 (Fla. 1967); Oruga Corporation, Inc., v. AT & T Wireless of

Florida, Inc. , 712 So. 2d 1141 (Fla. 3d DCA 1998); Ciaramello v.

D'Ambra , 613 So. 2d 1324 (Fla. 2d DCA 1991); Jory v. Department

of Professional Regulation , 583 So. 2d 1075 (Fla. 1st DCA 1991).

Accordingly, because there has been no proceeding challenging

Rule 64B19-16.003, Florida Administrative Code, as invalid

pursuant to Section 120.56(3), Florida Statutes, Dr. Caddy is

not entitled to an award of attorneys' fees and costs pursuant

to Section 120.595(3), Florida Statutes (2000).

CONCLUSION

Based on the foregoing, the Petitioner's Amended Motion for

Attorneys' Fees, Costs, and Litigation Expenses is dismissed.

DONE AND ORDERED this 19th day of December, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of December, 2000.

ENDNOTES

1. Section 120.595(3), Florida Statutes (2000), provides that,

"[ i]f the court or administrative law judge declares a rule or

portion of a rule invalid pursuant to s. 120.56(3), a judgment

or order shall be rendered against the agency for reasonable

costs and reasonable attorney's fees, unless the agency

demonstrates that its actions were substantially justified or

special circumstances exist which would make the award unjust."

2. Counsel for the parties were advised during the hearing on

November 13, 2000, that the undersigned had officially

recognized these documents, and no objections were raised.

3. AHCA subsequently dismissed Count II, and it is not relevant

to the instant proceeding.

4. This rule has since been transferred and is now found at

64B19-16.003, Florida Administrative Code. All further

references to the rule will be to its new designation.

5. This is the statute in effect at the time Dr. Caddy filed

his Answer and Affirmative Defenses to the Administrative

Complaint served by AHCA.

6. Dr. Caddy asserted violations of his constitutional rights

to due process, to association, and to privacy, as well as the

constitutional violation of invalid delegation of legislative

power. An administrative law judge has no jurisdiction to

determine constitutional challenges to statutes or existing

rules. See State, Department of Administration, Division of

Personnel v. State, Department of Administration, Division of

Administrative Hearings , 326 So. 2d 187 (Fla. 1st DCA).

COPIES FURNISHED:

Ephraim Roy Hess, Esquire

Colleen Kathryn O'Loughlin, Esquire

Hess & O'Loughlin

50 Northeast 26th Avenue, Suite 311

Pompano Beach, Florida 33062

Karen Coolman Amlong, Esquire

Amlong & Amlong

500 Northeast Fourth Street, Second Floor

Fort Lauderdale, Florida 33301-1154

R. Lynn Lovejoy, Esquire

Office of the Attorney General

Administrative Law Section

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Donna Erlich, Esquire

Board of Psychology

Department of Health

2020 Capital Circle, Southeast

Bin C05

Tallahassee, Florida 32399-3255

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 one copy of a notice of appeal with the Clerk of the

Division of Administrative Hearings and a second 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 thirty (30) days of

rendition of the order to be reviewed.