06-001940FC Anthony Glenn Rogers, M.D. vs. Department Of Health, Board Of Medicine Status: Closed DOAH Final Order on Wednesday, November 29, 2006.

Summary: On remand from an order of the First District Court of Appeal, Petitioner shall be awarded $67,832.50 in attorneys` fees and $4,467.05 in costs for the administrative proceeding in Case No. 02-0080PL and the appellate proceeding in Case No. 04-1153.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY GLENN ROGERS, M.D., )

)

Petitioner, )

)

vs. ) Case No. 06 - 1940FC

)

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Respondent. )

_________________________________)

FINAL ORDER

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

on August 21, 2006, in Tallahassee, Florida, before Patricia M.

Hart, a duly - designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: C. William Berger, Esquire

One Boca Place, Suite 337W

2255 Glades Road

Boca Raton, Florida 33486

For Respondent: John E. Terrel, Esquire

Michael D. Milnes, Esquire

Department of He alth

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

STATEMENT OF THE ISSUE

Pursuant to the order of the First District Court of Appeal

dated October 18, 2005, the issue before the Division of

Administrative Hearings is a determination of the amount of

attorneys' fees and costs to be awarded for the administrative

proceeding in Department of Health v. Anthony Glenn Rogers ,

M.D. , DOAH Case No. 02 - 0080PL, and for the appellate proceeding

styled An thony Glenn Rogers, M.D. v. Department of Health , Case

No. 1D04 - 1153 (Fla. 1st DCA Oct. 18, 2005).

PRELIMINARY STATEMENT

On October 18, 2005, the District Court of Appeal for the

First District of Florida issued an opinion in the case of

Anthony Glenn Roge rs, M.D. v. Department of Health , Case

No. 1D04 - 1153 (Fla. 1st DCA Oct. 18, 2005), in which it reversed

in part the Final Order of the Department of Health

("Department") and remanded the matter to the Department of

Health for entry of a final order consis tent with the court's

opinion. The First District Court of Appeal also entered an

order on October 18, 2005, that provided :

Appellant's motion for attorney's fees is

granted on the authority of

section 120.595(5), Florida Statutes, and

the cause is remand ed to the Division of

Administrative Hearings for a determination

of the amount to be awarded for the

administrative proceeding and the appellate

proceeding.

Anthony Glenn Rogers filed his Petition to Set Attorney's Fees

and Costs Amount with the Division of Administrative Hearings on

May 30, 2006, together with his own affidavit and the affidavits

of his attorneys, Lisa Shearer Nelson and C. William Berger.

Pursuant to notice, the hearing on the amount of attorney's fees

and costs was held on August 21, 2006.

At the hearing, Mr. Berger, Dr. Rogers' counsel , requested

permission t o submit amended affidavits for himself and Lisa

Shearer Nelson to correct the amounts of attorneys' fees and

costs identified in the original affidavits and to amend the

Petition to Set Attorney's Fees and Costs Amount to reflect the

corrected amounts . The Department objected to the amendment of

Ms. Nelson's affidavit, in which an additional 17.3 hours were

claimed for May and an additional 1.9 hours were claimed for

June 2006. After hearing argument from counsel, Dr. Rogers was

granted leave to file an amendment to his petition and to file

an amended affidavit for Mr. Berger , in which he decreas ed the

number of hours claimed , and an amended affidavit for

Ms. Nelson , together wi th supporting documentation . Dr. Rogers

was given 10 days from the date of the hearing to file these

documents or to request an extensio n of time to file the

documents, and the Department indicated that it would not

contest the number of hours claimed in Ms. Nelson's amended

affidavit .

Dr. Rogers filed Mr. Berger’s amended affidavit and the

amendments to paragraphs 10 and 11 of the petition on August 24,

2006, followed by a correction to the amended paragra ph 10,

which was filed August 28, 2006. Dr. Roger s file d Ms. Nelson's

Supplemental Affidavit of Lisa Shearer Nelson Regarding

Attorneys' Fees and Costs on September 5, 2006, outside the 10 -

day period within which he was to file the amend ed . The total

number of hours claimed by Ms. Nelson in the Suppleme ntal

Affidavit is the same as the number of hours reflected in the

statements provided to the Department on August 17, 2006, and in

Mr. Berger's representations at the hearing. In its Proposed

Final Order, the Department objected to Ms. Nelson's

Supplemen tal A ffidavit being considered because it was filed

untimely. The Department having shown no prejudice because of

the late - filing, Ms. Nelson's S upplemental A ffidavit dated

August 29, 2006 , is accepted.

At the hearing, Dr. Rogers testified in his own beha lf and

presented the testimony of Mr. Berger. Petitioner's Exhibits 1

through 6 were offered and received into evidence; Petitioner's

Exhibit 6 was Mr. Berger's amended affidavit. The Department

did not present the testimony of any witnesses, but Respond ent's

Exhibits 1 through 5 were offered and received into evidence.

At the Department's request, official recognition was taken of

Sections 57.071 and 120.595, Florida Statutes ( 2006) , 1 and of

Florida Administrative Code Rule 64B8 - 8.001 (effective

May 199 8).

The one - volume transcript of the proceedings was filed with

the Division of Administrative Hearings on September 6, 2006.

The parties had agreed to file their proposed findings of fact

and conclusions of law no later than September 20, 2006. On

Septe mber 15, 2006, Dr. Rogers filed a Motion for Enlargement of

Time for Filing Declaration of Albert J. Garcia and for Filing

Petitioner's PRO. 2 The time for filing proposed orders was

extended to September 29, 2006; the Department timely filed its

proposed order, and Dr. Rogers filed his proposed order on

October 2, 2006. Both proposed orders have been carefully

considered in the preparation of this Final Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department is the state agency charged with

regulating the practice of medicine, and the Board of Medicine

("Board") within the Department is the entity responsible f or

entering final orders imposing disciplinary action for

violations of the laws regulating the practice of medicine. See

§§ 455.225 and 458.331(2), Fla. Stat.

2 . On January 4, 2002, the Department of Health filed an

Administrative Complaint charging Dr. Rogers with violations of

Section 458.331(1)(m), (q), and (t), Florida Statutes (1998) . 3

The matter was referred to the Division of Administrative

Hearings, which assigned the matter DOAH Case No. 02 - 0080PL.

The case was heard on May 7, 2002, by Adminis trative Law Judge

Michael J. Parrish. Judge Parrish entered his Recommended Order

on February 21, 2003, in which he found that the Department had

failed to prove violations of Section 458.331(1)(q) and (t),

Florida Statutes (1998) , and recommended dismiss al of those

charges. Judge Parrish found that the Department had proven a

violation of Section 458.331(1)(m), Florida Statutes (1998) ,

failing to keep medical records as required by rule, and he

recommended that Dr. Rogers be required to pay a $1,000.00

a dministrative fine and attend a Florida Medical Association

record - keeping course as the penalty for the violation.

3 . The Board entered its Final Order on February 17, 2004,

in which it adopted its own findings of fact and conclusions of

law; found Dr. R ogers guilty of all three charges in the

Administrative Complaint; and imposed a penalty on Dr. Rogers

consisting of a $10,000 administrative fine, completing of a

drug course sponsored by the University of South Florida,

completion of a Florida Medical As sociation record - keeping

course, and two years' probation , during which he was not

permitted to practice medicine unless his practice was monitored

quarterly by a physician approved by the Board.

4 . Dr. Rogers appealed the Board's Final Order to the

First District Court of Appeal , challenging the Board's

determination that Dr. Rogers had violated Section 458. 331(1)(q)

and (t) , Florida Statutes (1998) . Dr. Rogers filed a motion for

attorneys' fees and costs based on Section 120.595(5), Florida

Statutes.

5 . In addition, Dr. Rogers filed a Motion for Stay of

Final Order, which the Board opposed. The district court denied

the motion for stay in an order entered April 2, 2004, and

Dr. Rogers proceeded to comply with the terms of the two - year

probationary peri od imposed by the Board, as well as fulfilling

the other requirements set forth in the Board's Final Order of

February 17, 2004.

6 . In an opinion issued on October 18 , 2005, the First

District Court of Appeal reversed the Board's Final Order with

respect to its determination that Dr. Rogers had violat ed

Section 458.331(1)(q) and (t), Florida Statutes (1998) , and

remanded the matter to the Board for entry of a Final Order

consistent with its opinion. The district court held in its

opinion that the Board ha d erroneously re - weighed the evidence

and had rejected findings of fact in the administrative law

judge's Recommended Order that were supported by competent

substantial evidence. The district court also entered on

October 18, 2005, the order granting Dr. Rogers's motion for

attorneys' fees and costs that is the subject of this

proceeding.

7 . The district court's mandate issued on February 23,

2006, and, o n April 21, 2006, the Board entered a Final Order on

Remand adopting the findings of fact and conclusi ons of law in

Judge Parrish's Recommended Order , finding that Dr. Rogers had

violated Section 458.331(1)(m), Florida Statutes (1998) , and

imposing a $1,000.00 administrative fine on Dr. Rogers and

requiring him to attend a medical record - keeping course .

8 . Based on the Amended Affidavit of C. William Berger

filed August 24, 2006, the total number of hours Mr. Berger

spent in representing Dr. Rogers in the administrative

proceeding in DOAH Case No. 02 - 0080PL is 79.75, a total that the

Department does not ch allenge. Mr. Berger's billing rate was

$300.00 per hour, a rate that the Department accepts as

reasonable. The total amount of attorney's fees paid to

Mr. Berger for his representation of Dr. Rogers through the

administrative proceedings before the Divis ion of Administrative

Hearings was , therefore, $23,925.00.

9 . Dr. Rogers was ultimately found to have violated one

count of the three - count Administrative Complaint filed against

him by the Department, th e count in which the Department alleg ed

that Dr. Ro gers had violated Section 458.331(1)(m), Florida

Statutes (1998) , by failing to keep adequate medical records

related to the patient that was the subject of the charges

against him. Mr. Berger did not record in his billing

statements the amount of time he spent researching this charge,

preparing for hearing on this charge, or addressing this charge

in the Proposed Recommended Order he filed in 02 - 0080PL.

10 . It is reasonable that Mr. Berger spent 10 percent of

the hours included in his billing statements preparing

Dr. Rogers's defense to the charge that he failed to keep

adequate medical records . 4 Accordingly, Mr. Berger's attorney's

fees will be reduced by 10 percent, or by $2,392.50, for a total

of $21,532.50.

11 . In reaching the percentage by which Mr . Berger's fees

should be reduced, consideration has been given to the amount of

the fees in relationship to the failure to prevail o n the

medical - records violation , to the seriousness of the alleged

violations on which Dr. Rogers prevailed before both the

administrative law judge and on appeal , 5 and the penalty ranges

that the Board could impose for the violations with which

Dr. Rogers was charged . 6

12 . Based on the Supplemental Affidavit of Lisa Shearer

Nelson Regarding Attorneys' Fees and Costs filed Se ptember 5,

2006, Ms. Nelson claimed that she spent a total of 187.1 hours

"from the issuance of the final order of the Board of Medicine

through the appeal and remand and initial preparation of the

petition for attorney's fees and costs." Ms. Nelson's bil ling

statements reflect that she represented Dr. Rogers during the

appellate proceedings before the First District Court of Appeal

in Case No. 1D04 - 1153 and before the Board on remand from the

district court. Ms. Nelson's billing rate was $ 250. 00 per hour ,

a rate that the Department accepts as reasonable. The total

amount of attorney's fees paid by Dr. Rogers to Ms. Nelson for

her representation was , therefore, $ 46,775.00 .

13 . A review of the billing statements attached to

Ms. Nelson's supplemental affid avit reveals that the final

billing statement, dated June 9, 2006 , was for "preparation of

petition for fees and costs; preparation of affidavit re same."

Dr. Rogers was billed for 1.9 hours in this billing statement,

for a total of $475.00. Because the work done by Ms. Nelson

reflected in this billing statement did not involve the

appellate proceeding arising out of the Board's Final Order of

February 17, 2004 , the hours claimed by Ms. Nelson are reduced

by 1.9 hours, for a total of 185.2 hours . Accordi ngly,

Ms. Nelson's attorney's fees for her representation of

Dr. Rogers on appeal total $46,300.00.

14 . The total costs identified in Mr. Berger's Amended

Affidavit and in the billing statements attached to the Amended

Affidavit is $4 ,462.55 . This amount is reduced by $1,000.00

attributable to a retainer paid to a Dr. Spanos, who was

initially retained as an expert witness but who ultimately did

not testify on Dr. Rogers' s behalf. The total allowable costs

for the administrative proceeding, therefore, ar e $3,462.55.

15 . The total costs identified by Ms. Nelson in her

Supplemental Affidavit and in the billing statements attached to

the Supplemental Affidavit is $1,005.01 . The total costs for

both the administrative and the appellate proceedings are,

ther efore, $4,467.56.

16 . Dr. Rogers submitted an affidavit in which he claimed

that he expended total costs of $154,807.23 in fulfilling the

terms of the penalty assessed against him in the Board's Final

Order of February 17, 2004, which was reversed by the district

court.

CONCLUSIONS OF LAW

17 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the part ies thereto pursuant to Section 120.5 95, Florida

Statutes, and the order of October 18, 2005, in Ant hony Glenn

Rogers, M.D. v. Department of Health , Case No. 1D04 - 1153 (Fla.

1st DCA Oct. 18, 2005), awarding Dr. Rogers attorneys ’ fees and

cost pursuant to Section 120.595(5), Florida Statutes.

18 . Section 120.595(5), Florida Statutes, provides in

pertinen t part :

APPEALS. . . . Upon review of agency action

that precipitates an appeal, if the court

finds that the agency improperly rejected or

modified findings of fact in a recommended

order, the court shall award reasonable

attorney's fees and reasonable cos ts to a

prevailing appellant for the administrative

proceeding and the appellate proceeding.

Attorneys' fees

19 . The method for determining reasonable attorneys ’ fees,

which is founded on the federal "lodestar approach," is well

established in Florida. In Florida Patient's Compensation Fund

v. Rowe , 472 So. 2d 1145, 1151 - 1152 (Fla. 1985), the Florida

Supreme Court summarized the steps to be followed in computing

attorney's fees:

In summary, in computing an attorney fee, the

trial judge should (1) determ ine the number of

hours reasonably expended on the litigation; (2)

determine the reasonable hourly rate for this

type of litigation; (3) multiply the result of

(1) and (2); and, when appropriate, (4) adjust

the fee on the basis of the contingent nature of

the litigation or the failure to prevail on a

claim or claims . [Emphasis added].

20 . Based on the findings of fact herein and the procedure

for calculating the lodestar figure set forth in Rowe ,

Ms. Nelson's attorney's fees totalled $46,300.00. Ms. Nel son's

fees should not be adjusted since she did not pursue an appeal

of the Board's determination that Dr. Rogers had violated

Section 458.331(1)(m), Florida Statutes (1998).

21 . The Department argued that the attorney's fees charged

by Mr. Berger for his representation of Dr. Rogers during the

administrative proceedings should be reduced because Dr. Rogers

did not challenge on appeal the Board's conclusion that

Dr. Rogers had violated Section 458.331(1)(m), Florida Statutes,

and because the Board ultimate ly prevailed on this issue.

22 . In Rowe , the Court stated the following concerning the

need to reduce the lodestar figure based upon the "results

obtained":

The "results obtained" may provide an

independent basis for reducing the fee when the

party p revails on a claim or claims for relief,

but is unsuccessful on other unrelated claims.

When a party prevails on only a portion of the

claims made in the litigation, the tri a l judge

must evaluate the relationship between the

successful and unsuccessful cl aims and determine

whether the investigation and prosecution of the

successful claims can be separated from the

unsuccessful claims. In adjusting the fee based

upon the success of the litigation, the court

should indicate that it has considered the

relati onship between the amount of the fee

awarded and the extent of success.

472 So. 2d at 1151.

23 . Based on the findings of fact herein and on

consideration of the factors set forth in Rowe , the "lodestar"

figure for Mr. Berger's attorney's fees , $23,925.0 0, should be

reduced by 10 percent, for a total of $21,532.50.

Costs

24 . Based on the findings of fact herein, Dr. Rogers has

established that the costs of pursuing the administrative

proceeding disputing the violations alleged against him and the

appeal of the Board's February 17, 2004, Final Order totalled

$4 , 467.56.

25 . Dr. Rogers also argues that he is entitled to recover

as "costs" pursuant to Section 120.595(5), Florida Statutes, the

amounts he expended in fulfilling the terms of the penalties

impo sed upon him by the Board in the Final Order that was

reversed as to the violations of Section 458.331(1)(q) and (t),

Florida Statutes. The cases cited by Dr. Rogers, Lone Star

Industries, Inc. v. Liberty Mutual Insurance Co. , 688 So. 2d

950, 952 ( Fla. 3d DCA 1997), Certain Lands v. City of Alachua ,

518 So. 2d 386, 389 (Florida 1st DCA 1987), Centennial Mortgage,

Inc. v. SG/SC Ltd. , 864 So. 2d 1258, 1261 (Fla. 1st DCA 2004),

and Gordon International Advertising, Inc. v. Charlotte County

Land and Title Co. , 170 So. 2d 59 (Fla. 2d DCA 1965), do not

support Dr. Rogers's right to recover these costs.

26 . The costs referenced in Section 120.595(5), Florida

Statutes, and in the cases cited , are the expenses arising out

of litigating a claim or defense . Such cos ts are governed by

Florida Rule of Appellate Procedure 9.400(a), which provides

that "taxable costs shall include ' (1) fees for filing and

service of process; (2) charges for preparation of the record;

(3) bond premiums; and (4) other costs permitted by la w. ' "

Centennial Mortgage, Inc. , 864 So. 2d at 1260 - 61.

27 . Dr. Rogers has cited no legal basis for recovering as

costs the expenses he incurred as a result of the Board's

erroneous Final Order . R ecovery of such expenses would also be

contrary to the exp ress terms of Section 120.595(5), Florida

Statutes, which limits the award of attorneys ' fees and costs

related to, as here, an agency's improperly rejecting findings

of fact in an administrative law judge's r ecommended o rder to

costs "for the administrati ve proceeding and the appellate

proceeding."

28 . This limitation on the award of attorneys' fees and

costs in Section 120.595(5), Florida Statutes, to "the

administrative proceeding and the appellate proceeding" also

prohibits Dr. Rogers from recover ing a ttorneys fees incurred by

Mr. Berger and Ms. Nelson in this proceeding to determin e the

amount of attorneys' fees and costs that should be awarded in

accordance with the district court's October 18, 2005, order.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Anthony Glenn Rogers, M.D., is awarded

(1) reasonable attorneys' fees for the administrative proceeding

in DOAH Case No. 02 - 0080PL and for the appellate proceeding in

Case No. 1D04 - 1153 in the amount of $6 7,832.50, and

(2) reasonable costs for the administrative proceeding in DOAH

Case No. 02 - 0080PL and for the appellate proceeding in

Case No. 1D04 - 1153 in the amount of $4,467.56. These sums are

to be paid to Dr. Rogers by the Department of Health, with

in terest accruing at the statutory rate from October 18, 2005.

DONE AND ORDERED this 29th day of November , 200 6 , in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA M . HART

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Fi led with the Clerk of the

Division of Administrative Hearings

this 29th day of November , 200 6 .

ENDNOTES

1 / All references to the Florida Statutes herein are to the 2006

edition unless otherwise noted.

2 / During the hearing, Mr. Berger requested leave to file the

affidavit of Albert J. Garcia, a California attorney

representing Dr. Rogers in administrative proceedings against

his license initiated by the State of California, setting out

his fees and co sts related to the California proceeding.

Mr. Berger sought to include these fees as part of the costs

incurred by Dr. Rogers as a result of the Final Order of the

Board of Medicine that was overturned by the District Court of

Appeals. Without ruling on whether these fees and costs could

be recovered in this proceeding, leave was granted to file the

affidavit and supporting documentation, so long as Mr. Garcia

was made available to the Department for deposition. Mr. Berger

was directed to file Mr. Garcia 's affidavit and supporting

documentation within 10 days after the date or the hearing or to

file a request for an extension of time within 10 days after the

hearing. Dr. Rogers did not file the affidavit and

documentation within the 10 - day period, and th e request for an

extension was also filed outside the 10 - day period. As a

result, the request for an extension for filing Mr. Garcia's

affidavit was denied in an order entered September 21, 2006.

3 / Neither party asked that official recognition be taken of the

record of the Division of Administrative Hearings or of the

Board of Medicine in DOAH Case No. 02 - 0080PL or of the record of

the First District Court of Appeal in Case No. 1D04 - 1153. It is

not possible, however, to address the issues raised herein

without reference to documents in those records, and it does not

appear that either party will be prejudiced by reference to the

necessary documents. Dr. Rogers included most of the documents

that will be referred to herein as attachments to his Petition

to Set Attorney's Fees and Costs, and the contents of the

remaining documents referred to herein are part of the record of

either the Division of Administrative Hearings or of the

district court and were referenced by the Department in its

proposed order.

4 / This percentage is based on Mr. Berger's testimony at the

hearing; the number of questions regarding the sufficiency of

Dr. Rogers's medical records that Mr. Berger asked Dr. Brookoff,

Dr. Rogers's expert witness, during his deposition; the

discussio n of the adequacy of Dr. Rogers's medical records in

the proposed findings of fact and conclusions of law in the

Proposed Recommended Order Mr. Berger submitted on behalf of

Dr. Rogers; and a review of Mr. Berger's billing statements.

5 / The Department c harged Dr. Rogers with violating

Section 458.331(1)(m), (q), and (t), Florida Statutes (1998),

which provides that the Board can impose discipline on a

physician for:

(m) Failing to keep legible, as defined by

department rule in consultation with the

boa rd, medical records that identify the

licensed physician or the physician extender

and supervising physician by name and

professional title who is or are responsible

for rendering, ordering, supervising, or

billing for each diagnostic or treatment

procedur e and that justify the course of

treatment of the patient, including, but not

limited to, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or administered; and

reports of cons ultations and

hospitalizations.

* * *

(q) Prescribing, dispensing,

administering, mixing, or otherwise

preparing a legend drug, including any

controlled substance, other than in the

course of the physician's professional

practice. For the purposes of this

paragraph, it shall be legally p resumed that

prescribing, dispensing, administering,

mixing, or otherwise preparing legend drugs,

including all controlled substances,

inappropriately or in excessive or

inappropriate quantities is not in the best

interest of the patient and is not in the

course of the physician's professional

practice, without regard to his or her

intent.

* * *

(t) Gross or repeated malpractice or the

failure to practice medicine with that level

of care, skill, and treatment which is

recognized by a reasonably prudent s imilar

physician as being acceptable under similar

conditions and circumstances. The board

shall give great weight to the provisions of

s. 766.102 when enforcing this paragraph.

As used in this paragraph, " repeated

malpractice " includes, but is not limit ed

to, three or more claims for medical

malpractice within the previous 5 - year

period resulting in indemnities being paid

in excess of $25,000 each to the claimant in

a judgment or settlement and which incidents

involved negligent conduct by the physician.

As used in this paragraph, " gross

malpractice " or " the failure to practice

medicine with that level of care, skill, and

treatment which is recognized by a

reasonably prudent similar physician as

being acceptable under similar conditions

and circumstances , " shall not be construed

so as to require more than one instance,

event, or act. Nothing in this paragraph

shall be construed to require that a

physician be incompetent to practice

medicine in order to be disciplined pursuant

to this paragraph .

6 / Flor ida Administrative Code Rule 64B8 - 8.001(1)(m), in effect

in 1998, provided that the penalty for a violation of

Section 458.331(m), Florida Statutes, ranged from "a reprimand

to denial or two (2) years suspension followed by probation, and

an administrative fine from $250.00 to $5,000.00." Florida

Administrative Code Rule 64B8 - 8.001(1)(q), in effect in 1998,

provided that the penalty for a violation of Section 458.331(q),

Florida Statutes, ranged from "one (1) year probation to

revocation or denial, and an administrative fine from $250.00 to

$5,000.00." Florida Administrative Code Rule 64B8 - 8.001(1)(t),

in effect in 1998, provided that the penalty for a violation of

Section 458.331(t), Florida Statutes, ranged from "two (2) years

probation to revocation or denial, and an administrative fine

from $250.00 to $5,000.00."

COPIES FURNISHED:

C. William Berger, Esquire

One Boca Place, Suite 337W

2255 Glades Road

Boca Raton, Florida 33486

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

John E. Terrel, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 32 65

Dr. M. Rony Francois, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

Larry McPherson, Executive Director

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Edward A. Tellechea, Esquire

Office of Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Rosanna Catalano, Esquire

Office of Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

NOTICE OF RIGHT TO JUDICIAL REVIEW

A pa rty 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 origi nal Notice of Appeal with the agency 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 Distric t where the party resides. The notice of

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

be reviewed.