03-000295RU Mohamed Ibrahim Abdel-Aziz, M.D. vs. Department Of Health, Board Of Medicine Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, November 4, 2003.

Summary: Board of Medicine`s policy to include indirect costs and attorney`s fees in assessment of costs related to the investigation and prosecution was an unpromulgated rule, in violation of Section 120.54(1)(a), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOHAMED IBRAHIM ABDEL - AZIZ, )

M.D., )

)

Petitioner, )

)

vs. ) Case No. 03 - 0295RU

)

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case

on February 28, 2003, by video teleconference in Tallahassee and

Tampa, Florida, before Susan B. Kirkland, a designated

Administrative Law Judge of the Division of Administrative

Heari ngs (DOAH).

APPEARANCES

For Petitioner: Jon M. Pellet, Esquire

Barr, Murman, Tonelli,

Slother and Sleet, P.A.

201 East Kennedy Boulevard

Suite 1700

Tampa, Florida 33602

For Board of Medicine:

Edward A. Tellechea, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Departmen t of Health:

Diane K. Kiesling, Esquire

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 1701

STATEMENT OF THE ISSUE

Whether various statements or policies attributed to the

Department of Health (Department) and the Board of Medicine

(Board) in connection with the assessment of costs related to

the investigation and prosecution of disciplinary cases coming

before the Board are unpromulgated rules in violatio n of Section

120.54(1)(a), Florida Statutes. 1

PRELIMINARY STATEMENT

On January 27, 2003, Petitioner Mohamed Ibrahim Abdel - Aziz

filed a Petition to Determine the Invalidity of Existing Non -

Rule Agency Policy, challenging the validity of 11 agency

statement s concerning the assessment of the costs related to

investigation and prosecution pursuant to Section 456.072(4),

Florida Statutes. On January 29, 2003, Petitioner filed

Petitioner's Motion to Consolidate Case with Division of

Administrative Hearings Case Number 02 - 4429PL. Case No. 02 -

4429PL was a disciplinary action against Petitioner's medical

license, and the final hearing on that case was held on

January 28 and 29, 2003. The motion to consolidate was denied.

On February 27, 2003, Petitioner filed Pe titioner's Motion

to Amend the Petition to Determine the Invalidity of Existing

Non - Rule Agency Policy, requesting that two statements be added

to the petition. The motion was granted at the beginning of the

final hearing.

At the final hearing, Petitioner 's Exhibits 1 through 4, 6,

12 through 15, 17, 19, 21, 22, 27 through 35, 40, 41A, 41B, and

46 through 50 were admitted; portions of Petitioner's Exhibits

5, 7, 16, 18, 20, 37, 44A, 44B, 44C, 44E, and 51 were admitted;

Petitioner's Exhibits 8 through 11, 4 2, and 43 were proffered;

portions of Petitioner's Exhibits 7, 37, 44B, 44F were

proffered; and Petitioner's Exhibit 45 was withdrawn.

Respondent Department's Exhibit 1 was admitted. Respondent

Board submitted no exhibits.

On March 20, 2003, Petitioner f iled Petitioner's Motion to

Reopen the Record and Allow the Late Filing of Petitioner's

Exhibit 52. On April 2, 2003, an Order on Petitioner's

Exhibit 52 was issued allowing Petitioner's Exhibit 52 to be

late - filed. There being no objection to the admiss ion of the

exhibit, Petitioner's Exhibit 52 is admitted.

At the final hearing, Petitioner called the following

witnesses: James D. Hentz, Charlene Willoughby, Diane Orcutt,

Larry G. McPherson, and Ephriam Duran Livingston. No witnesses

were called by eit her the Department or the Board.

The one - volume Transcript of the proceeding was filed on

March 21, 2003. The parties had agreed to file their proposed

final orders within ten days of the filing of the Transcript.

Two extensions of time for filing propos ed final orders were

granted. The parties timely filed their Proposed Final Orders

on April 14, 2003.

FINDINGS OF FACT

1. Petitioner is a Florida licensed physician, who

received his Florida medical license numbered ME 46054 in 1985.

He currently practi ces medicine at 620 Eichenfeld Drive in

Brandon, Florida. Petitioner is currently the subject of a

pending disciplinary action initiated by the Department against

his medical license. The disciplinary case is styled Department

of Health vs. Mohamed I. Ab del - Aziz , Department of Health Case

No. 2000 - 07849, DOAH Case No. 02 - 4429PL.

2. On June 2, 2003, a Recommended Order was issued in DOAH

Case No. 02 - 4429PL, finding that Petitioner violated

Subsection 458.331(1)(t), Florida Statutes. Petitioner is

subje ct to the assessment of the costs related to the

investigation and prosecution of his case pursuant to

Section 456.072(4), Florida Statutes, should the Board adopt the

finding of a violation.

3. Neither the Department nor the Board has promulgated a

rule defining "costs related to the investigation and

prosecution of the case."

4. Petitioner has challenged the validity of the following

statements, which he attributes to Respondents.

a. Complaint Cost Summary.

b. Costs of the investigation and

prosecut ion that are incurred as a part of a

license disciplinary case include the costs

of the time (salary and benefits) spent by

employees of the Department of Health

Prosecution Services Unit.

c. Costs of the investigation and

prosecution that are incurred a s a part of a

license disciplinary case include the

"overhead expense" of the Prosecution

Services Unit.

d. Costs of the investigation and

prosecution that are incurred as a part of a

license disciplinary case include the "OPS

expense" attributable to th e Prosecution

Services Unit.

e. Costs of the investigation and

prosecution that are incurred as a part of a

license disciplinary case include the salary

and benefits paid by the Department of

Health on behalf of employees who have no

time keeping respons ibility with respect to

the time tracking maintenance system of the

Department of Health.

f. Costs of the investigation and

prosecution that are incurred as a part of a

license disciplinary case include the salary

and benefits of the attorneys who have b een

assigned responsibility for and/or who have

provided services in connection [sic] a

license disciplinary case.

g. Costs of the investigation and

prosecution that are incurred as a part of a

license disciplinary case include the

"expense" of the indiv idual components of

the Prosecutions Services Unit.

h. Time Tracking Report.

i. Methodology for Calculating Rate for

Billable Hours (pre - January 13, 2003)

assessed as costs of the investigation and

prosecution.

j. The Department of Health, Board of

M edicine procedure for the assessment of

costs of the investigation and prosecution

of a licenses [sic] found to have violated

the disciplinary provisions of Chapters 456

and 458, Florida Statutes, as set forth in

the Notice of Voluntary Dismissal of

Paragr aph (G) of the Prayer for Relief of

the Administrative Complaint.

k. Methodology for Calculating Rate for

Billable Hours (effective January 24, 2003)

assessed as costs of the investigation and

prosecution.

l. Notice Regarding Assessment of Costs

which stated:

Respondent is placed on notice that

Petitioner has incurred costs related to the

investigation and prosecution of this

matter. Pursuant to Section 456.074(4),

Florida Statutes, the Board shall assess

costs related to the investigation and

prosecu tion of a disciplinary matter, which

may include attorney hours and costs, on the

Respondent in addition to other discipline

imposed.

5. The Department and its predecessor agencies, the Agency

for Health Care Administration and the Department of Business

and Professional Regulation, have been keeping data of direct

and indirect expenses incurred by the Department since at least

1988. Historically, the reason this cost data has been kept is

for use in billing the various boards for the amount spent in

inv estigating and prosecuting each board's cases.

6. Section 456.025(8), Florida Statutes, and its

predecessors Sections 455.220 and 455.587, Florida Statutes,

require that the Department maintain an accounting, by

profession, of the expenses incurred by the Department to

regulate those professions. These expenses are then, to the

maximum extent possible, charged back to the accounts of each

regulated profession. Direct expenses include, but are not

limited to, costs for investigations, examination, and leg al

services. For indirect expenses, the Department is to

proportionally allocate to the boards the expenses incurred by

the Department in the performance of its duties with respect to

the regulation of each of the professions. The Department is

required to maintain sufficient records to support its

allocation of agency expenses and to provide each board an

annual report of revenues and direct and allocated expenses

related to the operation of that profession.

7. The Department or its predecessors have be en keeping

data of the costs related to the investigation and prosecution

of professional license disciplinary cases. The collection of

data includes determining an hourly rate for those persons whose

activities are directly attributable to individual and specific

cases and an hourly overhead rate for administrative costs and

indirect costs. The overhead rate includes salaries plus

benefits of clerical staff, rent, office supplies, OPS expense,

telephone services, utilities, copier maintenance fees, and

o ther similar expenses.

8. From 1994 until January 13, 2003, the methodology for

calculating the overheard hourly rate, called "Methodology for

Calculating Rate for Billable Hours," provided as follows:

1. Determine the number of timekeepers and

non - timek eepers.

2. Determine the rate for non - timekeepers

(annual rate plus benefits [27.5%]) ¸

number of timekeepers ¸ 2080 hours = hourly

rate.

3. Determine the rate for expenses (budget

expenses and OPS) from operating budget ¸

number of timekeepers ¸ 2080 = hourly rate.

4. Add results of steps 2 & 3, for total

hourly rate per timekeeper.

9. All employees of the Department's Medical Quality

Assurance (MQA) Enforcement Program, which consists of the

Consumer Services Unit, the Investigative Services Unit, and the

Prosecution Services Unit, are designated either as timekeepers

or non - timekeepers. Timekeepers are those employees who perform

activities directly related to specific cases. All other

employees are considered to be non - timekeepers, and their sal ary

and benefits are part of the costs that are apportioned within

the overheard rate calculation.

10. The hourly rate for a timekeeper is calculated by

dividing that timekeeper's salary plus benefits by the total

annual hours. Under the pre - January 13 , 2003, methodology, the

total number of hours used was 2080. Benefits were determined

based on 27.5 percent of the timekeeper's annual salary.

11. In October or November 2002, James D. Hentz, the

Financial Manager for the trust fund of the MQA section o f the

Department saw this methodology for the first time. He believed

that the use of 2080 hours in the methodology was flawed because

it included holidays, annual leave, sick leave, and non - billable

administrative time, thereby, precluding any possibilit y of

recovering all the costs.

12. Mr. Hentz believed that using 1720 hours better

represented the number of hours available to be worked and

billed to specific cases, and he proposed that the methodology

be adjusted by using 1720 hours instead of 2080 ho urs. The

adjusted methodology proposed by Mr. Hentz was disseminated to

the enforcement program units of the Department by Charlene G.

Willoughby to be effective January 13, 2003. The methodology,

also entitled "Methodology for Calculating Rate for Billa ble

Hours" provided as follows:

1. Determine the number of timekeepers and

non - timekeepers.

2. There are 1720 billable hours per year

(2080 possible hours worked minus average

annual, sick and holiday leave).

3. Determine the rate for non - timekeepers

(a nnual rate benefits [28%]) ¸ number of

timekeepers ¸ 1720 hours = hourly rate).

4. Determine the rate for expenses (budget

expenses, including OPS) from operating

budget ¸ number of timekeepers ¸ 1720 hours =

hourly rate

5. Add results of steps 3 & 4 f or total

hourly overhead rate per timekeeper.

6. Add overhead rate to hourly salary

benefits of each timekeeper for individual

timekeeper rate.

13. This methodology proposed by Mr. Hentz differed from

the previous methodology by the use of 1720 hours instead of

2080 hours and the use of 28 percent of the annual salary to

calculate benefits rather than 27.5 percent. These changes

resulted in an increase in both the overhead hourly rate and the

timekeepers' hourly rate, thereby, increasing the total hou rly

rate per timekeeper, which is also known as staff rate.

14. The methodology that was disseminated on January 13,

2003, was not implemented by the Investigative Services Unit or

the Prosecution Services Unit at the Department. On January 24,

2003, Mr. Hentz sent out another methodology for use in

computing overhead and timekeepers' hourly rates. He drafted

the methodology in a narrative form, which Ms. Willoughby

converted to a format similar to the previous formulas. The

January 24, 2003, methodolog y provides as follows:

1. Determine the number of timekeepers and

the non - timekeepers.

2. There are 1720 billable hours per year

(2080 possible hours worked minus average

annual, sick and holiday leave).

3. Determine the rate for non - timekeepers

(annual rate benefits [as reflected in the

COPES Report] ¸ number of timekeepers ¸ 1720

hours = hourly rate.

4. Determine the rate for expenses (budget

expenses, including OPS) from operating

budget ¸ number of timekeepers ¸ 1720 hours =

hourly rate.

5. Add r esults of steps 3 & 4 for total

hourly rate per timekeeper.

6. Add overhead rate to hourly salary

benefits of each timekeeper for individual

timekeeper rate.

15. The salary plus benefits associated with each

individual position number for each employe e is reported on the

COPES Report. In calculating the timekeepers' hourly rate and

the overhead hourly rate, the January 24 methodology uses the

actual salary plus benefits from the COPES Report instead of

calculating benefits by using a percentage of sal ary as was done

in previous methodologies.

16. Timekeepers maintain and submit a daily activity

report (DAR) which identifies the cases on which they worked,

the activities they performed, and the amount of time they spent

in six - minute increments. The D ARs are entered into a data

system called the Time Track System, where that data is kept by

timekeeper identification number, case number, activity, and

time spent on each activity. The total hourly rate is also

entered into the Time Track System so that the rate can be

applied to the time spent on a case by each timekeeper. The

total hourly rate is updated at least annually when the new

spending plan or budget is issued. It is also reviewed

quarterly to make adjustments for salary or benefit changes.

17 . The compilations of data from the Time Track System at

issue are the Time Tracking Report and the Complaint Cost

Summary. The Time Tracking Report is a detailed time accounting

report and has two components, the Itemized Cost by Complaint

and the Itemi zed Expense by Complaint. The Itemized Cost by

Complaint itemizes the specific activities that have been

performed on a specific case by activity code and description,

the date of those activities, the timekeeper who performed the

activities, the amount o f time spent on those activities, and a

staff rate for each timekeeper who worked on a specific case.

The Itemized Cost by Complaint contains a column that reports

"Cost," which is the time spent by a timekeeper for a particular

activity multiplied by the staff rate. The Itemized Cost by

Complaint is subtotaled by each unit in the MQA Enforcement

Program and is finally totaled for all the time spent on a

particular case to the date that the report is printed.

18. The Itemized Expense by Complaint itemize s the

expenses directly attributable to the specific case. Typical

direct expenses would include expert witness fees, travel, and

court reporting services. These expenses are ones for which an

invoice has been received and paid for a specific expense on a

specific case.

19. The Complaint Cost Summary is a summary of the

accounting information contained in the Time Tracking Report.

It summarizes the total hours spent on a case, by unit, the cost

per unit, and the expenses. The total reflected in the

Com plaint Cost Summary corresponds to the individual subtotals

by unit, plus the expenses, which are detailed in the Time

Tracking Report.

20. When a specific case goes before the Board for entry

of a Final Order that will impose some discipline, various

pro cedures have been used to bring the data concerning the costs

related to the investigation and prosecution of that case before

the Board. The procedures have varied over time and type of

case. For example, when the Board considers defaults and

informal h earing recommended orders, it may be informed about

the costs in one of several ways, including by written motion,

ore tenus motion, or simple statement of the costs. Consent

agreements may be considered for assessments of costs in other

ways because the amount of the costs would be included in the

consent agreement. In the past, cost summaries have not been

presented to the Board in cases involving recommended orders;

however, more recently cost summaries are being provided to the

Board and may include a dditional materials such as an affidavit

from Ms. Willoughby. In some cases, there have been motions to

assess costs filed and in others there were oral presentations

made to the Board regarding the costs. In the last 13 months,

there has been no consist ent procedure used by the Department to

request the assessment of costs related to the investigation and

prosecution by the Board. However, the Department has

consistently included its direct and indirect expenses,

including an attorney's time in its requ ests for costs.

21. In Petitioner's disciplinary case, the Department

originally requested the assessment of the costs related to the

investigation and prosecution in the prayer for relief in the

Administrative Complaint, Paragraph (G). Prior to the fina l

hearing, the Department filed a Notice of Dismissal of Paragraph

(G) of the Prayer for Relief of the Administrative Complaint,

stating that it was dismissing the request concerning the

assessment of the costs for the investigation and prosecution of

the case. The Department further included the following in the

motion:

Should the Board enter a final order

imposing discipline in this matter, the

[Department] intends to request the Board of

Medicine to assess costs in the following

manner:

a. Upon entry of Recommended Order by

the Division of Administrative Hearing, an

appropriate Motion to Assess Costs shall be

filed with the Board to be considered

immediately following Board consideration of

said Recommended Order. The motion shall

provide [Dr. A bdel - Aziz] an opportunity to

file timely written objections to the amount

of costs incurred by the Petitioner related

to the investigation and prosecution of the

case.

b. If a timely written objection to the

assessment of costs incurred by the

Petition er related to the investigation and

prosecution of the case is filed by [Dr.

Abdel - Aziz], the Department shall request

the Board to conduct a hearing on the

assessment of costs. That hearing shall be

conducted either after consideration of the

Recommended Order and prior to entry of the

Final Order disposing of the case or [sic] a

part of a separate bifurcated proceeding if

it is appropriate to enter a Final Order

before the hearing can be conducted.

c. If a disputed issue of material fact

arises, the n the matter concerning such

dispute shall be forwarded to the Division

of Administrative Hearings for a formal

hearing.

The Department has filed similar notices in at least two other

cases before the Division of Administrative Hearings.

22. The Board has not used a specific procedure in the

manner in which it addresses the issue of costs related to the

investigation and prosecution. It has considered written

motions, oral motions, and has, at least on one occasion, just

asked the Department represent ative at the Board meeting what

the amount of the costs were. The Board has been interpreting

Section 456.072(4), Florida Statutes, to require the inclusion

of the direct and indirect expenses of the Department,

including those costs listed in subsections b, c, d, e, f, and g

of paragraph 4 of this Final Order, when assessing the costs

related to the investigation and prosecution of a case against a

physician, who is before the Board as a result of a recommended

order. In doing so, the Board has implicitl y adopted those

costs appearing in subsections b, c, d, e, f, and g of this

Final Order as the costs it will assess related to the

investigation and prosecution of a case.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction ove r the parties to and the subject matter of this

proceeding. Sections 120.56 and 120.57, Florida Statutes.

24. Section 120.52(15), Florida Statutes, defines a rule

as follows:

(15) "Rule" means each agency statement

of general applicability that imple ments,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

Th e term also includes the amendment or

repeal of a rule. The term does not

include:

(a) Internal management memoranda which

do not effect either the private interests

of any person or any plan or procedure

important to the public and which have no

app lication outside the agency issuing the

memorandum.

25. Petitioner is challenging Respondents' treatment of

the provision of Section 456.072(4), Florida Statutes, which

provides:

In addition to any other discipline

imposed through final order, or cita tion,

entered on or after July 1, 2001, pursuant

to this section or discipline imposed

through final order, or citation, entered on

or after July 1, 2001, for a violation of

any practice act, the board, or the

department when there is no board, shall

asses s costs related to the investigation

and prosecution of the case.

26. In Department of Administration v. Harvey , 356 So. 2d

323, 325 (Fla. 1st DCA 1978), the First District Court of Appeal

discussed the definition of a rule and stated:

Whether an ag ency statement is a rule

turns on the effect of the statement, not on

the agency's characterization of the

statement by some appellation other than

"rule." The breadth of the definition in

Section 120. 52[(15)] indicates that the

legislature intended the term to cover a

great variety of agency statements

regardless of how the agency designates

them. Any agency statement is a rule if it

"purports in and of itself to create certain

rights and adversely affect others,"

Stevens , 344 So. 2d at 296, or serves " by

(its) own effect to create rights, or to

require compliance, or otherwise to have the

direct and consistent effect of law."

McDonald v. Dep't of Banking & Fin. , 346 So.

2d 569, 581 (Fla. 1st DCA 1977). See also

Straughn v. O'Riordan , 338 So. 2d 832 (F la.

1976); Price Wise Buying Group v. Nuzum , 343

So. 2d 115 (Fla. 1st DCA 1977).

27. Section 120.56(4), Florida Statutes, provides that

"[a]ny person substantially affected by an agency statement may

seek an administrative determination that the statemen t violates

s. 120.54(1)(a)." To qualify as a substantially affected

person, Petitioner must show that he will suffer a substantial

and immediate "injury in fact." Florida Board of Medicine v.

Florida Academy of Cosmetic Surgery, Inc. , 808 So. 2d 243, 250

(Fla. 1st DCA 2002). In the disciplinary case against

Dr. Abdel - Aziz, the Board will be assessing the costs related to

the investigation and prosecution, and the Department will be

requesting the imposition of the costs. How the Department

determines th e amount of costs and what charges it includes in

its request for assessment of costs do not substantially affect

Dr. Abdel - Aziz because the Department is merely requesting that

certain expenses be assessed. It is up to the Board to

implement Section 456. 072(4), Florida Statutes, by assessing

what the Board determines to be the costs of investigation and

prosecution, not necessarily what the Department considers to be

within the realm of such costs. It is the assessment not the

request that results in an injury in fact. Therefore,

Petitioner does not have standing to challenge what the

Department contends are costs that will be included in its

request for assessment of costs pursuant to Section 456.072(4),

Florida Statutes.

28. The Complaint Cost Summary and Time Tracking Report

are the formats that the Department uses to collect the data of

direct and indirect costs attributable to each case that goes

to the Board for final disposition. The calculation of costs

by the Department includes the salaries an d benefits of the

timekeepers, including an attorney's time; the overhead

expenses; OPS expenses; and the salaries and benefits of non -

timekeepers. The Department has used different methodologies

in calculating the staff rate or hourly rate per timekeeper .

How the Department calculates the costs of investigation

and prosecution and what the Department includes in its

calculation are not rules because the Department does not

impose the requested costs on the physician and cannot

require the physician to pa y those costs. The Complaint Cost

Summary, the Time Tracking Report, and the methodologies are

internal memoranda, which by definition are not rules. See

Subsection 120.52(15)(a), Florida Statutes.

29. Different procedures have been used by the Departme nt

in bringing the issue of costs of investigation and prosecution

before the Board. There has been no consistent procedure by the

Board in the manner in which the Board may take up the issue of

costs. The procedures used by the Department and the Board in

addressing the issue of costs are not procedures of general

applicability and, therefore, are not rules.

30. Section 456.072(4), Florida Statutes, does not include

a definition of "costs related to the investigation and

prosecution of the case." Secti on 455.227(3), Florida Statutes

(1994 Supp.), was the genesis for the imposition of costs by the

Board and stated:

In addition to any other discipline

imposed pursuant to this section or

discipline imposed for a violation of any

practice act, the board . . . may assess

costs related to the investigation and

prosecution of the case excluding costs

associated with an attorney's time.

31. In 1999, the statute, now numbered Section 455.624(4)

was amended to read as follows:

In addition to any other disc ipline

imposed pursuant to this section or

discipline imposed for a violation of any

practice act, the board . . . may assess

costs related to the investigation and

prosecution of the case.

32. In 2000, the statute was moved to Chapter 456 and

renumbered Section 456.072(4). The wording of the statute

remained the same as the 1999 version. In 2001, the statute was

amended to its current version.

33. The removal of the phrase, "excluding costs associated

with an attorney's time," does not necessarily m ean that the

costs related to the investigation and prosecution of a case

include attorney costs. "The right to recover attorney's fees

as part of the costs of an action did not exist at common law,

and therefore it must be provided for by statute or cont ract."

Dade County v. Strauss , 246 So. 2d 137, 141 (Fla. 3d DCA 1971).

34. In In re Hapner , 737 So. 2d 1075 (Fla. 1999), the

Judicial Qualifications Commission (JQC) was seeking to recover

the costs of investigation and prosecution as provided in

Article V, Section 12(f)(2), Florida Constitution. The JQC was

seeking attorney's fees and travel costs as part of the costs to

be taxed by the Florida Supreme Court. In determining what

costs would be awarded, the Florida Supreme Court stated:

We note that the constitution is silent

as to which costs in particular may be

assessed in a JQC proceeding. By way of

comparison, this Court has held that in

disciplinary proceedings of The Florida Bar

(the Bar) "only those costs specifically

identified in the Rules Regulating the

Florida Bar may be assessed against either a

respondent or the Bar." Florida Bar v.

Chilton , 616 So. 2d 449, 451 (Fla. 1993).

See also Florida Bar v. Bossee , 609 So. 2d

1320 (Fla. 1992). Although the Florida

Judicial Qualifications Commis sion Rules do

not currently include a rule identifying

taxable costs, we conclude that this Court

may nevertheless award limited costs in

light of the specific constitutional

authority to do so.

Id. at 1076. The Court concluded that the constitutional

pr ovision was a "prevailing party" requirement and that the

assessed costs should be kept within strict boundaries. Id.

Attorney's fees and travel costs were not included in that award

of costs, which were limited "to the following charges of the

court rep orter: per diem fees, deposition costs, and costs

associated with the preparation of the transcript and record."

Id. at 1077. The Court went on to direct the Florida Rules of

Judicial Administration Committee of The Florida Bar to draft

rules addressing the assessment of costs in a JQC proceeding.

35. The Board has consistently included costs for

timekeepers, including attorneys, and indirect costs such as

overhead expenses, support staff time, and OPS expenses in its

assessment of costs related to inve stigation and prosecution.

This policy interprets and implements Section 456.072(4),

Florida Statutes, and adversely affects physicians who are found

guilty of a practice act. This policy is a rule and should be

promulgated pursuant to Section 120.54, Fl orida Statutes.

36. Subsection 120.54(1)(a), Florida Statutes, provides

that "[r]ulemaking is not a matter of agency discretion" and

that rules shall be adopted as soon as "feasible and

practicable." Rulemaking is presumed to be feasible and

practicabl e.

37. The Board has the burden to rebut the presumption of

feasibility by proving that there has not been enough time to

gain the knowledge and experience necessary to address the

policy by rulemaking; that the issue of what is included in

costs is not sufficiently resolved for it to be addressed by

rulemaking; or that the Board has started the rulemaking

process.

38. "Rulemaking shall be presumed practicable to the

extent necessary to provide fair notice to affected persons of

relevant agency procedu res and applicable principles, criteria,

or standards for agency decisions." Subsection 120.54(1)(a)2,

Florida Statutes. The Board may rebut this presumption by

demonstrating that it can not reasonably establish the criteria

for assessing costs with deta il or precision or that the issue

of costs is so narrow that the assessment can only be made

through an adjudication on a case - by - case basis.

39. The Board has failed to rebut the presumption that

promulgating rules to establish the criteria for assessmen t of

the costs related to the investigation and prosecution of the

case is neither feasible nor practicable. There has been

sufficient time to determine what is meant by costs related to

the investigation and prosecution of the case since the Board

has ha d the authority to assess such costs since 1994. The

current version of Section 456.072(4), Florida Statutes, has

been codified since 2001.

40. The issue of costs has been resolved sufficiently for

the Board to assess costs. It has been consistently in cluding

the direct and indirect costs in its assessment. The Board has

not begun the rulemaking process to adopt its policy for

assessment of costs.

41. The Board has not rebutted the presumption that

rulemaking is not practicable. There is ample case l aw

available to the Board which can be used as a guide in

determining what types of expenses should be included in costs.

Additionally, the Florida Supreme Court has adopted the

Statewide Uniform Guidelines for Taxation of Costs in Civil

Actions, which ca n also be used as a guideline. If the Florida

Supreme Court can identify guidelines for taxation of costs, the

issue of assessment of costs is not such a narrow issue that the

Board cannot promulgate rules to put physicians on notice as to

what types of e xpenses are included in the phrase "costs related

to the investigation and prosecution of the case."

42. The Board has the authority to promulgate rules

addressing the issue of the assessment of costs. Its general

rulemaking authority appears in Section 458.309(1), Florida

Statutes, which provides that the Board "has authority to adopt

rules pursuant to ss. 120.536(1) and 120.54 to implement the

provisions of this chapter conferring duties upon it."

Subsection 458.307(6), Florida Statutes, states that "[ a]ll

provisions of chapter 456 related to activities of the [B]oard

shall apply." Thus, the Board has the authority to promulgate

rules governing its activities in Chapter 456, Florida Statutes,

including Section 456.072(4), which requires the Board to as sess

the costs relating to the investigation and prosecution of the

case.

43. Section 120.56(4)(d), Florida Statutes, precludes the

Board from relying on the policies set forth in subsections b,

c, d, e, f, and g of paragraph 4 of this Final Order in

asse ssing costs. However, the Board is not precluded from

assessing costs which by case law have traditionally been

defined as costs. See In re Hapner , supra . Such costs may

include court reporter fees, transcript costs, witness fees, and

cost of service of process. See Winn - Dixie Stores, Inc. v.

Vote , 463 So. 2d 459 (Fla. 2d DCA 1985).

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that:

1. The Petition to Determine the Invalidity of Existing

Non - Rule Policy and its a mendment as it relates to the

Department of Health is DISMISSED.

2. The Board's policy as to the assessment of costs as set

forth in subsections b, c, d, e, f, and g of paragraph 4 of this

Final Order are rules which are subject to the rulemaking

provisio ns of Section 120.54, Florida Statutes. The Board shall

immediately discontinue all reliance upon the policies or

similar policies as a basis for agency action.

3. The Petition to Determine the Invalidity of Existing

Non - Rule Policy and its amendment a s it relates to the Board of

Medicine as set forth in subsections a, h, i, j, k, and l of

paragraph 4 of this Final Order is DISMISSED.

4. Jurisdiction is retained to determine the award of

attorney's fees and costs pursuant to Section 120.56(4), Florida

Statutes.

DONE AND ORDERED this 4th day of June, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tall ahassee, 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 4th day of June, 2003.

ENDNOTE

1/ The Petition to Determine the Invalidit y of Existing Non - Rule

Agency Policy states that the petition is being brought pursuant

to Sections 120.56(4) and 120.57(1)(e), Florida Statutes. A

proceeding brought pursuant to Section 120.57(1)(e), Florida

Statutes, must be filed directly with the agen cy and referred by

the agency to DOAH. See Section 120.56(2)(a), Florida Statutes.

This procedure was not followed and DOAH does not have

jurisdiction to hear the Section 120.57(1)(e) case on the issue

of costs.

The underlying disciplinary case aga inst Dr. Abdel - Aziz

before DOAH did not involve the issue of costs because that issue

had been withdrawn by the Department. Thus, a Section

120.57(1)(e) case would not have been appropriate in the

disciplinary case since the Board had not taken any action to

assess costs.

Additionally, the issue of whether the policies determined

to be rules meet the requirements of Section 120.57(1)(e),

Florida Statutes, is moot. The Board has not initiated

rulemaking prior to the issuance of this Final Order and i s

precluded pursuant to Section 120.56(4), Florida Statutes, from

relying on the policies as a basis for agency action.

COPIES FURNISHED :

E. Renee Alsobrook, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

D iane Kiesling, Esquire

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 1701

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Jon M. Pellett, Esquire

Barr, Murman, Tonelli, Slother and Sleet, P.A.

201 East Kennedy Boulevard

Suite 1700

Tampa, Florida 33602

Edward A. Tellechea, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Rosanna Catalano, Esq uire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Carroll Webb, Executive Director

Joint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399 - 1300

NOTICE OF RIGHT TO JUDICIAL RE VIEW

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 Dist rict where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.