17-002459PL Department Of Health, Board Of Massage Therapy vs. Nancy Jane Reed, L.M.T. Status: Closed DOAH Final Order on Tuesday, July 17, 2018.

Summary: Prevailing party did not prove entitlement to attorney's fees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

NURSING,

Petitioner,

vs. Case No. 17 - 2458PL

NANCY JANE REED, R.N.,

Respondent.

_______________________________/

DEPARTMENT OF HEALTH, BOARD OF

MASSAG E THERAPY,

Petitioner,

vs. Case No. 17 - 2459PL

NANCY JANE REED, L.M.T.,

Respondent.

______________________________/

FINAL ORDER DENYING ATTORNEY Ó S FEES

In 2017, the Petitioner, the Department of Health (DOH),

filed two administrative complaints against the Respondent. One

was against the Respondent Ó s registered nursing license; the

other was agai nst her massage therapy license . Both complaints

alleged that the Respondent had an opioid use disorder, a

sedative/hypnotic use disorder, a cannabis use disorder, an

alcohol use disorder, chronic pain syndrome, anxiety disorder

and/or chronic insomnia; that she was unable to practice her

licensed profession with reasonable skill and safety by reason of

illness or use of alcohol, drugs, narco tics, or chemicals, or any

other type of material, or as a result of an y mental or physical

condition; and that she should be prohibited or restricted from

practicing her licensed profession , or be otherwise disciplined.

The Respondent disputed the allega tions and asked for a hearing.

The hearing requests were referred to the Division of

Administrative Hearings (DOAH) for assignment to an

Administrative Law Judge. The registered nursing license

complaint was designated DOAH case 17 - 2458PL; the massage the rapy

license complaint was designated DOAH case 17 - 2459PL. The two

cases were consolidated.

On August 9, 2017, the Respondent gave notice that she had

sent DOH a Ð 21 - day letter Ñ as a condition precedent to filing a

motion for sanctions under section 57.1 05(4), Florida Statutes

(2017) . 1 / DOH filed a response in opposition, which pointed out

that it would be premature to rule on the motion prior to the

final order s .

The hearing was held on August 15, 2017, and a Recommended

Order was entered on November 3, 2017. The Recommended Order

found that the charges were not proven b y clear and convincing

evidence; recommended that the charges be dismissed; and reserved

jurisdiction to rule on motion for sanctions under section 57.105

until 30 days after the entry o f final orders.

A Final Order adopting the Recommended Order was entered by

the Board of N ursing on January 2, 2018. On January 4, 2018, the

Respondent updated/renewed her motion for sanctions under section

57.105, and the reservation of jurisdiction wa s extended. On

May 11, 2018, the Board of Massage Therapy entered a Final Order

adopting the Recommended Order.

A telephonic pre - hearing conference was held in these cases

on June 5, 2018, to discuss the need for any evidence and any

additional written or oral argument on the Respondent Ó s

Updated/Renewed Motion for Sanctions, and any other matters to

facilitate its resolution. At the conference, the parties agreed

that no further evidence was required and that any additional

argument on entitlement to a n award of attorney Ó s fees would be

made by filing proposed final orders. (With the parties Ó

agreement, any issue as to the amount of reasonable attorney Ó s

fees was deferred until after the issuance of an order on

entitlement.)

An Order Establishing Pro cedures was entered in accordance

with the matters discussed in the conference. DOH was required

to return the evidentiary record to DOAH , which has been done,

and the parties were given until June 19 to file proposed final

orders on entitlement.

On June 14, the Respondent filed a Motion to Conduct

Discovery from Department of Health Prior to Hearing on

Entitlement of 57.105 Sanctions. T he motion essentially seeks to

vacate the Order Establishing Procedures, initiate discovery, and

schedule an evidentiar y hearin g to present evidence on the actual

case law considered by DOH Ós attorneys and presented to the

probable cause panels before the administrative complai nts in

these cases were filed.

The RespondentÓs motion stated DOH Ós opposition, but DOH did

not f ile a response . Instead , DOH filed a proposed fina l order,

as has the Respondent. Both proposed final orders have been

considered. As explained in the Con clusions of Law, infra , the

evidence the Respondent seeks to discover and present is not

relevant. No discovery or hearing is required.

FINDING S OF FACT

1. As reflected in the final orders, DOH Ó s claims against

the Respondent were s up ported by many material facts.

2. T he material facts supporting DOH Ó s claims against the

Respondent included the op inions of Dr. Lawrence Wilson, a

qualified addiction medicine expert retained by DOH to eval uate

the Respondent. Based on his thorough evaluation, Dr. Wilson

diagnosed: opioid use disorder, moderate severity;

sedative/hypnotic use disorder, moderate seve rity; cannabis use

disorder, moderate severity, in remission; alcohol use disorder,

mild to moderate severity; chronic pain syndrome related to

degenerative joint disease and chronic migraine headaches;

hypertension; anxiety disorder, NOS; and chronic inso mnia, NOS.

Dr. Wilson opined that the Respondent was unable to continue her

practice of nursing and massage therapy with the required skill

and safety due to untreated substance use disorders and risk of

impairment. He recommended that she enter treatmen t for

substance abuse disorders, at a partial hospitalization level, at

an IPN - approved treatment facility, and that she be monitored by

IPN after completion of treatm ent. The Respondent disagreed and

declined . She did not thin k referral to IPN was neces sary .

3. Based on the facts known to DOH, including Dr. Wilson Ó s

opinion and recommendation, probable cause was found, and DOH

filed administrative complaints charging that the Respondent was

unable to practice nursing or massage therapy with reasonable

s kill and safety by reason of illness or use of alcohol, drugs,

narcotics, or chemicals, or any other type of material, or as a

result of a ny mental or physical condition . The Respondent

disputed the charges and asked for a hearing.

4. In addition to th e administrative complaints, DOH

entered emergency orders restricting the Respondent Ó s practice of

nursing and massage therapy pending disposition of the charges in

the administrative complaints. The Respondent did not appeal the

emergency orders and did not ask for a separate hearing to

dispute the facts alleged in support of the emergency orders.

5. The Respondent contends that Dr. Wilson admitted in a

deposition taken in anticipation of the hearing on the

administrative complaints that the Respondent could probably

practice her professions safely. That is not a fair reading of

the deposition testimony. Dr. Wilson testified that anxiety

syndrome alone would not make the Respondent unsafe to practice.

Joint Ex. 7, at p. 81. He also testified that sh e could practice

safely if she was being treated and monitored. Id. at p. 98.

However, he maintained his opinion and recommendation during the

deposition and at the hearing that she was unsafe to practice

without treatment and monitoring .

6. The Respond ent testified at the hearing and disputed

some of the material facts supporting DOH Ó s claims. The

Respondent also retained her own expert, Dr. James Edgar, who

testified to dispute Dr. Wilson Ó s opinions. As reflected in the

final o rder s , Dr. Edgar is a b oard - certified psychiatrist. He is

not board - certified in addiction medicine or addiction

psychiatry; does not complete continuing education or self - study

related to substance use disorders; and does not hold the kinds

of certifications Dr. Wilson has. H owever, he has performed

evaluations of licensed health care providers for PRN and IPN,

which are Florida Ó s programs for impaired physicians and nurses,

and for private attorneys who represented licensees, for over

42 years. Based on his expertise, he wa s allowed to present his

opinion testimony.

7. In light of all the evidence (not only the material

facts supporting DOH Ó s claims against the Respondent, but also

the testimony of the Respondent and her expert), it was found

that Dr. Wilson Ó s ultimate op inions on whether the Respondent was

Ð safe to practice nursing or massage therapy Ñ were based on his

Ð suspicions Ñ and the Ð possibility Ñ or Ð risk Ñ of impairment. I t

also was found that Dr. Wilson Ó s opinions appeared to be

influenced by his honest and genui ne belief as a physician that

the Respondent would benefit from the care and treatment she

could receive as a participant in IPN. It was found that his

belief may well have been correct, and that there may well be a

risk that problems might arise in the f uture. However, the

evidence taken as a whole was not clear and convincing that the

Respondent, at the time of the hearing, was unable to practice

nursing and massage therapy with reasonable skill and safety by

reason of illness or use of alcohol, drugs, narcotics, or

chemicals, or any other type of material, or as a result of any

mental or physical condition .

CONCLUSIONS OF LAW

8. Under section 57.105, if all other statutory

prerequisites are met, the Respondent is entitled to be awarded a

reasonable att orney Ó s fee, including prejudgment interest, if DOH

or its attorneys knew or should have known that DOH Ó s claims

against the Respondent, when initially presented or at any time

before the hearing either : (a) w ere not supported by the

material facts ne cess ary to establish the claims; or (b) would

not be supported by the application of then - existing law to those

material facts. The Respondent has the burden of proof by a

preponderance of the evidence. See § 120.57(1)(j), Fla. Stat.

(2017). See also Fla. D ep Ó t of Transp. v . J.W.C., Co. , 396

So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dep Ó t of HRS , 348

So. 2d 349 (Fla. 1st DCA 1977).

9. The Respondent contends that Barthlow v. Jett , 930

So. 2d 739 (Fla. 1st DCA 2006), supports sanctions based on

c laims made in the emergency restriction orders entered against

her. It does not . Actually, that case does not even address a

motion for sanctions for claims made in emergency restriction

orders. Besides , by the time the Respondent served her motion

for sanctions a nd gave notice under section 57.105 (4) , both the

time for requesting a hearing to dispute facts alleged in the

emergency restriction orders and the time for appealing from

those orders had long since expired. The Respondent did not

prevail against DOH on the emergency restriction orders, only on

the administrative complaints. For these reasons, no sanctions

can be imposed under section 57.105 for claims made in the

emergency restriction orders.

10. The law is clear that, under section 57.105, the

Respon dent does not have to prove that the administrative

complaints were entirely frivolous, or that no justiciable issues

were presented. Sanctions can be imposed if DOH knew or should

have known that any claim made in the administrative complaints,

and not w ithdrawn in response to notice given under the safety -

harbor provision in subsection (4) of the statute, was not

supported by the material facts necessary to establish the claim,

or would not be supported by the application of then - existing law

to those ma terial facts. See Boca Burger, Inc. v. Richard Forum ,

912 So. 2d 561, 570 (Fla. 2005); Albritton v. Ferrera , 913 So. 2d

5, 6 (Fla. 1st DCA 2005).

11 . In addition, it is clear that Wright v. Yurko , 446

So. 2d 1162, 1166 (Fla. 5th DCA 1984)(stating that the standard

for establishing probable cause is extremely low and easily

satisfied), is inapplicable to secti on 57.105, as amended in

1999. DOH now appears to concede as much (not mentioning it in

its proposed order, after citing it in its response in opp osition

to the Respondent Ó s updated/renewed motion for sanctions).

12 . The phrase Ð supported by the material facts Ñ means that

Ð the party possesses admissible evidence sufficient to establish

the fact if accepted by the finder of fact. Ñ Abritton v.

Fer rera , 913 So. 2d at 7 n.1. The test is not whether the losing

party Ó s evidence was more persuasive to the fact finder. Id.

See also Minto PBLH, LC v. 1000 Friends of Fla., Inc. , 228 So. 3d

147 (Fla. 4th DCA 2017) (quoting Kowallek v. Rehm , 189 So. 3d 262 ,

263 Î 64 (Fla. 4th DCA 2016)); Siegel v. Rowe , 71 So. 3d 205, 212

(Fla. 2d DCA 2011); Cullen v. Marsh , 34 So. 3d 235, 242 (Fla. 3d

DCA 2010); Read v. Taylor , 832 So. 2d 219, 222 (Fla. 4th DCA

2002).

13 . According to the final orders i n this case, DOH Ó s

evidence was insufficient, taking in consideration all the other

evidence, to be clear and convincing to the finder of fact.

However, DOH had admissible evidence sufficient to establish the

facts alleged in the administrative complaints, if the evidence

had been accepted.

14 . The Respondent cites Lortz v. Dep artmen t of Health , 700

So. 2d 383, 384 (Fla. 1st DCA 1997), in support of her argument

that DOH never had admissible evidence to prove the Respondent Ó s

Ð true inability Ñ to practice her professions safely. Lortz is

not on point. In that case, a physician was charged with being

Ð unable to practice medicine with reasonable skill and safety. Ñ

Id. The court held that the hearing officer did not find a Ðtrue

inabilityÑ to practice medicine with reason able skill and safety,

but rather only that Ð respondent Ó s personality disorder impairs

his ability to practice medicine with reasonable skill and

safety. Ñ Id. According to the Lortz opinion, the hearing

officer Ó s finding was based on the testimony of a f orensic

psychiatrist who was Ð very concerned Ñ and Ð would not feel

comfortable Ñ with the physician practicing without treatment

( Ð individual psychotherapy, Ñ Ð group therapy, Ñ and Ð educational

rehabilitation Ñ ) needed Ð in order to deal with his anger, in

order to become more in touch with his feelings so that he did

not act out inappropriately. Ñ Id. T he court held that the

evidence was insufficient to support a finding of a Ð true

inability Ñ to practice medicine with reasonable s kill and safety .

In contrast, in this case, ample evidence to support such a

finding was known to and presented by DOH, including Dr. Wilson Ó s

opinion that the Respondent could not practice with reasonable

skill and safety without treatment and monitoring.

1 5 . The RespondentÓs belat ed motion to initiate discovery

and schedule an evidentiary hearing appears to be based on her

faulty reading of the Lortz decision. In any event, t here is no

need to consider the knowledge of individual DOH att orneys as to

the applicable law, or to consi der the specific law presented to

the probable cause panels by these attorneys before the

administrative complaints cases were filed. The relevant

questions under section 57.105(1)(b) are whether the claims

presented by DOH were supported by the applicati on of the then -

existing law, regardless what specific case law was known to

DOH Ó s attorneys or presented to the probable cause panels . Nor

can the Respondent argue that this evidence is relevant under

section 57.105(3)(a) because DOH is not making a good faith

argument for the extension, modification, or reversal of existing

law or the establishment of new law. For these reason s , the

evidence the Respondent seeks to discover and present in a

hearing is not relevant or necessary .

DISPOSITION

Based on t he foregoing Findings of Fact and Conclusions of

Law, the Respondent Ó s updated/renewed motion for sanctions under

section 57.105 is denied.

DONE AND ORDERED this 17th day of July, 2018 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Di vision of Administrative Hearings

this 17th day of July, 2018 .

ENDNOTE

1/ All statutory references are to the 2017 codification of the

Florida Statutes.

COPIES FURNISHED:

Suzanne Suarez Hurley, Esquire

Suzanne Suarez Hurley, P.A.

Post Office Box 1 72474

Tampa, Florida 33672

(eServed)

Susan K. Bodner, Esquire

Florida Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way,

Tallahassee, Florida 32399

(eServed)

Kristen M. Summers, Esquire

Department of Health

Prosecution Servi ces Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Kama Monroe, Executive Director

Board of Massage Therapy

Department of Health

Bin C - 06

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3257

(eServed)

Nichole C. Geary, Gener al Counsel

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

(eServed)

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

Bin C - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3252

(eServed)

J ody Bryant Newman, EdD . , EdS

Board of Nursing

Department of Health

Bin D - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3252

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pu rsuant 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 administrative appeal with the agency clerk of the

Division of Admini strative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its h eadquarters or where a party resides or

as otherwise provided by law.