19-004829F Claudia Patricia Orozco-Fandino, E.O. vs. Department Of Health, Board Of Medicine Status: Closed DOAH Final Order on Wednesday, February 26, 2020.

Summary: Petitioner was a prevailing small business party, but Respondent established that the disciplinary proceeding was substantially justified at the time it was initiated.

S TATEMENT OF T HE I SSUE

The issue is whether Respondent, Department of Health, Board of

Medicine (“Department”), was “substantially justified” under section

57.111(3)(e), Florida Statutes, in initiating the underlying action against the electrolysis license of Petitioner, Claudia Patricia Orozco - Fandino, E.O.

(“Petitioner” or “Ms. Orozco”).

P RELIMINARY S TATEMENT

On April 20, 2018, the Departmen t filed a two - count Administrative

Complaint against Ms. Orozco. Count I alleged that Ms. Orozco violated section 478.52(1)(m) , Florida Statutes, by performing cosmetic procedures

such as liposuction, Brazilian butt lifts, fat transfers or fat grafting, va mpire

facials, plasma injections, and/or other invasive/surgical medical procedures, on one or more patients. Count II alleged that Ms. Orozco violated section

456.072(1)(a), Florida Statutes, by making misleading, deceptive, or

fraudulent representations in or related to the practice of her profession, electrology.

On May 18, 2018, Ms. Orozco filed an Election of Rights in which she

contested the factual allegations of the Administrative Complaint and

requested a formal administrative hearing pursuant to sections 120.569 and

120.57(1), Florida Statutes. On July 26, 2018, the Department forwarded the

case to DOAH for assignment of an Administrative Law Judge (“ALJ”) and the conduct of a formal administrative hearing. The case was assigned Case

No. 18 - 3899PL .

On October 24, 2018, the Department filed a notice of dismissal in which

it dismissed Count II of the Administrative Complaint and stated its intention to pursue only Count I of the Administrative Complaint.

The final hearing was held on Novemb er 6 a nd 7, 2018, before ALJ

R. Bruce McKibben. On November 7, 2018, ALJ McKibben entered an Order

Placing Case in Abeyance, based on the parties’ representation that they had

entered into a settlement agreement that required the approval of the Board

of Medicin e at its meeting in February 2019. The parties understood that

ALJ McKibben was retiring from DOAH as of December 31, 2018. ALJ

McKibben made certain the parties understood that if the settlement

agreement did not become final, then the recommended order i n this case

would be written by another ALJ. As events transpired, the settlement

agreement was not finalized. The undersigned was assigned to review the

complete record of the case and write the Recommended Order.

The Recommended Order in Case No. 18 - 389 9PL was entered on April 18,

2019, and recommended that the Department enter a Final Order dismissing

Count I of the Administrative Complaint against Ms. Orozco. In making the

recommendation, the undersigned examined the extensive medical records and weigh ed the testimony of the three testifying patients against that of the

two physicians who testified that they performed the co smetic procedures in

question. The undersigned found that the Department had not proven by

clear and convincing evidence that Ms. O rozco had performed any

invasive/surgical medical procedures on the patients. By Final Order dated

July 11, 2019, the Department adopted the Recommended Order in full.

On September 12, 2019, Ms. Orozco timely filed her Motion for Attorneys’

Fees at DOAH, seeking an award of her attorneys’ fees and costs incurred in

Case No. 18 - 3899PL. The fees case was assigned Case No. 19 - 4829F and was

scheduled for hearing on December 16 and 17, 2019. The hearing was

convened and completed on December 16, 2019.

On Dece mber 10, 2019, the Department filed a Motion in Limine that

sought to limit the record in this case to a consideration of the evidence and

testimony provided to , and reviewed by , the Board of Medicine’s probable

cause panel at the time it decided to charge Ms. Orozco with the violations

alleged in the Administrative Complaint. The undersigned denied the motion,

finding that Ms. Orozco should be allowed to offer exculpatory information

that the Department had in its possession but chose not to place before t he

probable cause panel. The ruling on the Motion in Limine was without

prejudice to the Department’s ability to argue in its Proposed Final Order

that certain evidentiary items should not have been admitted at the hearing.

At the final hearing, Ms. Orozc o testified on her own behalf and presented

the testimony of Cynthia Demetrovich, a Medical Quality Assurance

Inv estigator with the Department. Petitioner’s Exhibits 1, 4, 5, and 11 were

accepted into evidence. Petitioner also offered , without objection ,

R espondent’s Composite Exhibit 1, the document package considered by the

probable cause panel, whi ch was accepted into evidence. The Depa rtment

presented no witnesses. Respondent’s Exhibits 2 through 4 were admitted

into evidence.

The one - volume Transcript of the hearing was fil ed at DOAH on

January 8, 2020. At the conclusion of the hearing, the parties agreed that

their p roposed f inal o rders would be filed within 20 days of the fil ing of the

Transcript at DOAH. Both parties timely filed their Proposed Fina l Orders

on January 28, 2020.

All references are to Florida Statutes (2019), unless otherwise noted.

F INDINGS OF F ACT

1. Case No. 18 - 3899PL was initiated by the Department, a “state agency”

for purposes of section 57.111(3)(f).

2. Ms. Orozco qualifies as a “small business party” as defined in section

57.111(3)(d). Because the Final Order in Case No. 18 - 3899PL was entered in

her favor, Ms. Orozco is a “prevailing small business party” under section

57.111(3)(c)1.

3. The Department has stipulated that the $55,185.50 in attorneys’ fees

and $2,226.53 in costs claimed by Ms. Orozco are reasonable.

4. The only issue remaining at hearing was whether the Department was

substantially justified in bringing the initial action against Petitioner’s electrolysis licen se.

5. Section 57.111(3)(e) states that a proceeding is “substantially justified”

if “it had a reasonable basis in law and fact at the time it was initiated by a state agency.”

6. Starting in or around 2003, Ms. Orozco owned and operated Orozco

Medical Cen ter (“OMC”), a facility that is no longer in operation. OMC

provided a range of cosmetic surgical procedures, including

liposuction,

Brazilian butt lifts, fat transfers or fat grafting, and vampire facials.

7. Since 2013, Ms. Orozco has been the president of Orozco Surgical

Center (“OSC”), which remained in operation as of the hearing date. OSC

currently provides only facials and acupuncture services. 1

8. The Board of Medicine’s probable cause panel decides whether there is

a sufficient legal and factual b asis for the Department to move forward with

formal charges in license discipline cases. In Ms. Orozco’s case, Department

Case No. 2017 - 13921, the information presented to the probable cause panel

included an investigative report prepared by the Department ’s investigator,

1 Ms. Orozco is a licensed electrologist, acupuncturist, facial specialist, and body wrapper.

Cynthia Demetrovich. This 743 - page report served as the basis for the

probable cause determination made by the probable cause panel on April 20,

2018.

9. As described in the investigative report, the investigation in

Department Case No. 2017 - 13921 began on August 9, 2017, and was

triggered by Ms. Orozco’s arrest by officers of the Hillsborough County

Sheriff’s Office . She had been charged with four felony counts of aggravated

battery, four felony counts of practicing medicine without a li cense, and four

felony counts of fraud. 2

10. Between August 24, 2017, and October 16, 2017, Ms. Demetrovich and

Christopher Heuerman, another Department investigator, interviewed

15 OMC patients.

11. Patients K.H., S.H., L.H., C.W., A.M., D.A., C.P., and M .A. underwent

a surgical procedure known as a “Brazilian butt lift” (“BBL”) at OMC. A BBL

is a specialized fat transfer procedure that augments the size and shape of

the buttocks without implants. Excess fat is removed from the hips, abdomen,

lower back, o r thighs with liposuction, and a portion of this fat is then

strategically injected into the buttocks.

12. All eight of the patients stated that they witnessed Ms. Orozco

perform their BBL procedures. Patients K.H., S.H., L.H., C.W., and A.M. expressed the ir willingness to testify in court about their experiences at

OMC.

13. Patients K.H., S.H., W.P., C.W., O.H., A.M., and C.P. stated that

Ms. Orozco represented herself as a doctor when they met with her at OMC.

14. Patient P.J. stated that Ms. Orozco treat ed her for weight loss by

injecting her with HCG and vitamin B12 at OMC. HCG, or human chorionic

2 The criminal cas e against Ms. Orozco was resolved by a Pre - trial Intervention Agreement .

gonadotropin, is a hormone produced during pregnancy that is sometimes

used as a weight loss medication.

15. Patients T.M. and L.H. stated that Ms. Orozco ga ve them phentermine

as an appetite suppressant at OMC. Phentermine is a prescription drug.

16. Patient K.O. stated that she was treated by Ms. Orozco at OMC for

weight loss. Ms. Orozco administered HCG injections and personally gave an

appetite suppressant to Patient K.O., who could not recall the name of the

suppressant.

17. Patient O.H. stated that Ms. Orozco injected dermal fillers into her

face at OMC.

18. Patients N.M. and K.B. stated that Ms. Orozco administered vampire

facials to them at OMC. A “vamp ire facial , ” or “platelet - rich plasma facial , ” is

a procedure in which blood is drawn from a patient’s a rm and placed in a

centrifuge. The resulting platelet - rich plasma is then injected into the

patient’s face.

19. “Electrolysis or electrology” is defined by section 478.42(5) as “the

permanent removal of hair by destroying the hair - producing cells of the skin

and vascular system” using equipment and protocols approved by the Board

of Medicine. An electrologist is not competent to perform surgical procedure s

such as BBLs; to treat a patient for weight loss; to prescribe or administer

weight loss drugs; to inject dermal fillers; or to perform vampire facials.

20. On August 10, 2017, the Department mailed a letter to Ms. Orozco

advising her that a case had bee n opened against her and that she had

20 days from receipt of the letter to submit a response or schedule an

interview.

21. Ms. Orozco’s counsel responded by letter dated August 28, 2017,

addressed to Ms. Demetrovich. The letter enclosed a copy of Ms. Oroz co’s

curriculum vitae and stated that she intended to “vigorously defend the criminal allegations which we re the subject of her arrest.” Counsel noted that

formal charges had yet to be filed against Ms. Orozco and concluded by

requesting the Department “to refer to my correspondence in the related

Department of Health Investigation No. 2016 - 16104.”

22. The referenced correspondence included two letters from Ms. Orozco’s

attorneys. Both letters were addressed to Ms. Demetrovich and addressed an

earlier Dep artment investigation of Ms. Orozco. The first letter, dated July 7,

2016, included a three - page chart identifying the names of patients, their

dates of surgery, and the names of the physicians who performed the

surgeries. The chart listed 46 patients whos e procedures were stated to have

been performed by Mark Kantzler, D.O., and 12 patients whose procedures

were stated to have been performed by Amina Edathodu, M.D.

23. The second letter, dated August 26, 2016, asserted that Ms. Orozco

was a “certified Surg ical First Assistant , ” and set forth the job description

and duties of a surgical assistant as defined by the American Board of

Surgical Assistants and the Association of Surgical Assistants. The letter stated that all surgical procedures at OMC were perfo rmed by licensed

physicians with assistance from certified surgical assistants, including Ms. Orozco.

24. The August 28, 2017, letter from Ms. Orozco’s counsel was included in

Ms. Demet rovich’s investigative report. However, the referenced letters of

July 7, 2016 , and August 26, 2016, were not included in the investigative

report and therefore were not placed before the probable cause panel.

25. Ms. Demetrovich testified that she is not allowed to “share cases,” i.e.,

to mix materials from separate inve stig ations into a single file. Because the

letters dated July 7, 2016, and August 26, 2016, were in reference to Department Case No. 2016 - 16104, Ms. Demetrovich did not include them in

her investigative report for Department Case No 2017 - 13921.

26. The investi gative report included the complete medical records,

including before and after photographs, received from OMC for Patients K.H., S.H., C.W., O.H., N.M., K.B., T.M., A.M., D.A., A.B., K.O., P.J., C.P., and

M.A.

27. The investigative report also included th e Hillsborough County

Sheriff’s Office criminal report affidavit and arrest report for Ms. Orozco. The

criminal report affidavit named four additional patients who told detectives

that Ms. Orozco performed their BBL or liposuction procedures at OMC.

28. All four patients named in the criminal r eport affidavit stated that

Ms. Orozco led them to believe she was a medical doctor who could perform

the surgical procedures offered by OMC. The patients variously stated that

Ms. Orozco referred to herself as “do ctor , ” conduct ed the pre operative

consultations, or showed them pictures of previous surgeries she had

performed.

29. Patient N.M. stated that another non - physician, Marlon Barcelo,

performed the fat removal in her procedure. Mr. Barcelo was a surgical

a ssistant employed by Ms. Orozco. Patient N.M. stated th at Ms. Orozco

performed the fat injection portion of the procedure.

30. Patients U.L., A.B., and H.P. stated that their liposuction procedures

were performed entirely by Ms. Orozco.

31. The criminal re port affidavit stated that on April 22, 2016, a

Hillsborough County Sheriff’s detective interviewed Dr. Edathodu, who

stated that she had worked at OMC. Dr. Edathodu referred to Ms. Orozco as

a “doctor” and stated that Ms. Orozco had performed fat removal and

injection procedures at OMC.

32. Dr. Edathodu reviewed the medical records for Patient N.M., which

indicated that Dr. Eda thodu performed her procedure. Dr. Edathodu denied

to the detective that the signatures and handwriting on N.M.’s medical

records were hers.

33. The criminal report affidavit stated that on May 5, 2017, a

Hillsborough County Sheriff’s detective interviewed Dr. Kantzler, who stated that he would be present in the OMC facility while liposuction procedures

were performed , but that the s urgical assistants performed them.

34. The criminal report affidavit stated that Patient A.B. reported that

about two weeks before she met with the detective, she received a text

message from Ms. Orozco. The text message stated that if Patient A.B. got a

phone call from anyone, she should tell them that Dr. Kantzler had

performed her surgery.

35. On December 27, 2017, counsel for the Department provided

Ms. Orozco’s counsel with a CD copy of the Department’s complete

investigative file for Departm ent Case No. 2017 - 13921. In the accompanying

letter, counsel for the Department reminded Ms. Orozco’s counsel that he had

20 days in which to file a written response to the information contained in the

investigative file, pursuant to section 456.073(10).

36. On Apr il 20, 2018, the Department’s probable cause panel met to

review and discuss the investigative report. The panel found probable cause

for both counts of the Administrative Complaint.

37. At the hearing in the instant fee case, Ms. Orozco contended that the

probable cause panel’s determination was based on an incomplete record. She

argued that the Department’s investigative report omitted exculpatory material and that Ms. Demetrovich failed to make inquiries that might have led the probable cause panel to a different decision.

38. Ms. Orozco noted that Ms. Demetrovich began investigating OMC in

2016, well before the investigative report in Department Case No. 2017 -

13921 was prepared.

39. Ms. Orozco testified that Ms. Demetrovich visited the offices of OMC

o n August 11, 2016, in the guise of accompanying a Department disp ensing

practitioner inspector. While at OMC, Ms. Demetrovich interviewed

Ms. Orozco directly and took photographs of every room in the building. She

photographed the surgical suite and the eq uipment therein.

40. Ms. Demetrovich testified that she did not interview Ms. Orozco on

August 11, 2016. She testified that if any photographs were taken during the

visit, they were taken by the other inspector.

41. Ms. Orozco contended that at the time sh e submitted her investigative

report, Ms. Demetrovich was aware that the OMC surgical suite contained a

drape between the patient’s head and the surgical field that wholly

obstructed the patient’s view of who wa s performing their surgery.

Ms. Orozco conten ded that if this information had been provided to the

probable cause panel, the panel would have discounted the numerous patient

statements attesting that Ms. Orozco performed their surgeries.

42. Ms. Orozco also questioned why Ms. Demetrovich did not ask the

patients how they could possibly know Ms. Orozco was performing their

procedures when they could not see the surgical field.

43. Ms. Orozco noted that the 2016 investigation prompted her counsel to

submit the July 7, 2016, and August 26, 2016, le tters referenced above.

Ms. Orozco questioned why the contents of those letters were not included in

the investigative report.

44. Ms. Orozco pointed out that the medical records that were included in

the investigative report were replete with indications that t he surgeries were

performed by Dr. Edathodu and Dr. Kantzler, including the consent forms in

which the patients expressly acknowledged the name of the physician who would perform the procedure. Ms. Orozco contends that Ms. Demetrovich was

obliged to confro nt the patients with this evidence and ask them to reconcile

it with their statements that Ms. Orozco performed their procedures.

45. Ms. Orozco argued that Ms. Demetrov ich should have interviewed

Dr. Edathodu, Dr. Kantzler, and other members of the OMC st aff before

completing her investigative report.

46. Ms. Demetrovich testified that Dr. Edathodu evaded seve ral attempts

to interview her. Ms. Demetrovich stated that she interviewed Dr. Kantzler in another case , but did not include a summary of that interv iew in the

investigative report of this case.

47. Ms. Demetrovich testified that neither Dr. Edathodu nor Dr. Kantzler

submitted affidavits in relation to this case.

48. Ms. Demetrovich testified that her r ole in the investigation of

Ms. Orozco and OMC did not include evaluating records obtained from the

subjects of the investigation , or their attorneys, apart from checking for

completeness. She testified that the determination as to whether to pursue

disciplinary action based on the investigation rested wi th the Department’s

attorneys. Ms. Demetrovich’s testimony as to the limits of her job responsibilities is credited.

49. The investigative report included an identification key with the full

names of the patients. Ms. Demetrovich acknowledged that she negl ected to

include the full names of Patients W.P. and L.H. in the identification key.

50. It is found that the information before the probable cause panel was

sufficient to support the panel’s decision to pursue an Administrative

Complaint against Ms. Orozc o.

51. The investigative report included interviews with eight OMC patients

who stated to the Department’s investigators that Ms. Oroz co had performed

BBLs on them. All eight patients stated that they witnessed Ms. Orozco

perform the procedure. Five of the eight stated their willingness to testify

against Ms. Orozco in any future court proceeding.

52. Seven patients stated that Ms. Orozco had presented herself to them

as a physician.

53. Four other patients interviewed by the Department’s investigators

stat ed that Ms. Orozco had provided them with injections of medications.

Two patients stated that Ms. Orozco had performed vampire facials on them.

One patient stated that Ms. Orozco administered dermal fillers to her.

54. Four patients interviewed by detecti ves from the Hillsborough County

Sheriff’s Office stated that Ms. Orozco presented herself as a medical doctor.

Three of the four stated that Ms. Orozco performed their liposuction procedures.

55. The patient statements alone justified a finding of probabl e cause.

56. Ms. Orozco pointed to contrary evidence in the investigative report,

such as the patient consent forms that clearly indicated the surgeries were

performed by Dr. Edathodu and Dr. Kantzler. Such documentation might

weigh against the patient statements, but is insufficient to support a finding

that the probable cause panel should have disregarded the word of

19 patients that Ms. Orozco performed procedures on them that exceeded the

scope of her professional licensure.

57. Further, the probabl e cause panel would have been justified in

discounting the patient consent forms in light of the statements the two

physicians gave to the Hillsborough County Sheriff’s detectives that surgical

procedures were in fact performed by Ms. Orozco and/or Mr. Bar celo.

58. None of the items that Ms. Orozco claims were omitted from the

investigative report would change this finding. The July 7, 2016, letter from

her counsel naming the patients and their respective physicians was of no

more significance than the sign ed consent forms that were included in the

report.

59. The August 26, 2017, letter setting forth the definitions of “surgical

assistant” and stating that licensed physicians performed all surgeries at

OMC merely contradicted the patients’ statements. It d id not disprove or

invalidate the patients’ statements in such a way as to justify their disregard by the probable cause panel.

60. Finally, it was a matter of dispute whether Ms. Demetrovich had in

her possession photos of the OMC surgical suite that she declined to include in the investigative report. Nothing prevented Ms. Orozco from submitting

such photos on her own if she believed they would help her case. Such photos

might raise questions , but again would not disprove or invalidate the

statements of 19 patients to the degree that the probable cause panel could

reasonably disregard the patients’ statements to the investigators and

detectives. 3

C ONCLUSIONS OF L AW

61. The Division of Administrative Hearings has jurisdiction over the

parties and the sub ject matter of this proceeding pursuant to

Sections 120.569, 120.57(1), and 57.111(4), Florida Statutes.

62. Section 57.111 , the Florida Equal Access to Justice Act, provides, in

pertinent part, as follows:

( 4)(a) Unless otherwise provided by law, an award

of attorney's fees and costs shall be made to a

prevailing small business party in any adjudicatory

proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would

make the award unjust.

63. In proceedings to establish entitlement to an award of attorney's fees

and costs pursuant to section 57.111, the initial burden of proof is on the

party requesting the award to establis h by a preponderance of the evidence

that it prevailed in the underlying disciplinary action and that it was a small

business party at the time the disciplinary action was initiated. Once the

party requesting the award has met this burden, the burden of pr oof shifts to the agency to establish that it was substantially justified in initiating the disciplinary action. See Helmy v. Dep’t of Bus. & Prof’l Reg. , 707 So. 2d 366,

368 (Fla. 1st DCA 1998); Dep’t of Prof’l Reg., Div. of Real Estate v. Toledo Realty, Inc. and Ramiro Alfert , 549 So. 2d 715, 717 (Fla. 1st DCA 1989).

3 Even if the probable cause panel found that the draping procedure in the surgical suite

completely discredited the statements of the patients who received BBLs and other

liposuction procedures, there would remain the patients who allegedly received vampire

facials, injections, and prescription drugs from Ms. Orozco. Even taking the view most

favorable to Ms. Orozco, one cannot find that the probable cause panel should have dismissed the case entirely.

64. Ms. Orozco prevailed in the underlying proceeding. § 57.111(3)(c)1.,

Fla. Stat.

65. Ms. Orozco is a “small business party” as contemplated by section

57.111(3)(d).

66. The sole issue in this proceeding is whether the Department's actions

were “ substantially justified. ” S ection 57.111(3)(e) provides that a proceeding

is "substantially justified" if it had a “ reasonable basis in law and fact at the

time it was initiated by a state agency . ” (Emphasis added) . The “ substantially

justified ” standard falls somewhere between the “ no justiciable issue ”

standard of section 57.105, and an automatic award of fees to a prevailing

party. Helmy , 707 So. 2d at 368.

67. In Dep artment of Health v. Cralle , 8 52 So. 2d 930, 932 (Fla. 1st DCA

2003), the court set forth the following temporal limitation on the required

analysis, quoting from Fish v. Dep artment of Health , 825 So. 2d 421, 423 (Fla.

4th DCA 2002):

In resolving whether there was substantial

justifica tion or a reasonable basis in law and fact

for filing an administrative complaint, “ one need

only examine the information before the probable cause panel at the time it found probable cause and directed the filing of an administrative complaint. ”

See also Ag. for Health Care Admin. v. Gonzalez , 657 So. 2d 56 (Fla. 1st DCA

1995)(proper inquiry is whether evidence before a probable cause panel was

sufficient for institution of disciplinary action).

68. In Fish , the Department of Health commenced an investiga tion

against Dr. Fish pursuant to a complaint filed by a fellow dentist. After the

investigation was completed, the Department forwarded the investigative file

to the probable cause panel. Dr. Fish had disputed the allegations and filed a

timely written re sponse, but the Department chose not to forward his

response to the probable cause panel. See Fish 825 So. 2d at 422. The panel

found probable cause and forwarded the matter to the Division of

Administrative Hearings. The Department subsequently dismissed the case,

and Dr. Fish petitioned for attorney's fees pursuant to section 57.111.

69. One of the grounds asserted by Dr. Fish was that the Department

denied him due process by failing to forward his response to the probable

cause panel. In affirming the Administrative Law Judge's conclusion that the

Department was substantially justified in proceeding against Dr. Fish, the

court reasoned as follows:

Notwithstanding the existence of a procedural due

process error due to the Probable Cause Panel ’ s

failure t o review appellant's timely response, we

nevertheless conclude that there existed competent substantial evidence to support the ALJ ’ s finding of

substantial justification. Although the charges

brought against appellant were subsequently

withdrawn and the D OAH action dismissed, a

review of the record and investigative file reveals that the Department was substantially justified at the time it init iated its disciplinary action. The

DOAH action against appellant was dismissed, not

because of any procedural irr egularity, as espoused by appellant, but because two of the Department's key witnesses died and one witness had a disciplinary history with the Florida Bar. Thus, the

Department strategically decided to forego any

further prosecution against appellant.

Th e record supports the conclusion that the

Probable Cause Panel had the complete investigative file before it prior to its cons ideration

of appellant's case. And, while the Probable Cause Panel should have considered appellant's response prior to its determ ination to proceed with an

administrative complaint, there is no evidence to conclude that the Probable Cause Panel would have reached a different result had it considered his response. Appellant's response to the investigative file disputed the allegation s against him, but did

not disprove or conclusively rebut those allegations.

In fact, appellant's response highlighted the fact

that there were disputed issues of fact as to the charges against him.

Id . at 423.

70. In Fish , as in the instant case, the i nformation before the probable

cause panel substantially justified the panel's determination, and the

question was whether the panel's decision was skewed because it did not

have all of the relevant information before it. The Fish court found that the

agen cy's failure to place the petitioner's response to the allegations before the

probable cause panel constituted a procedural due process error. However,

the court went on to hold that such a procedural error was insufficient to

overturn the finding that the agency ’ s actions were substantially justified,

unless that procedural error compromised the accuracy and integrity of the

probable cause process.

71. In the instant case, it is questionable whether there w as a due process

error at all. The due process err or in Fish consisted of the Department ’ s

conscious decision to withhold Dr. Fish's response from the probable cause

panel . In the instant case, the Department did not withhold Ms. Orozco’s

written response to the charges in D epartment Case No. 2017 - 13921. The

materials allegedly withheld were wri tten materials submitted by

Ms. Orozco’s counsel in a previous case and referenced in her response to

Department Case No. 2017 - 13921. These materials did no more than

reiterate Ms. Orozco’s position that she acted o nly as an assistant to the

physicians who performed the procedures. The record evidence was

insufficient to establish that these materials would have changed the result reached by the probable cause panel in light of the 19 witness statements contained in the investigative report.

72. Ms. Orozco also complained that the investigation was insufficiently

thorough. The statements of the OMC patients were taken at face value. The

patients were not questioned about the layout of the surgical suite or about

the c onsent forms that appeared to be signed by attending physicians.

73. Ms. Demetrovich persuasively testified that her role as a Department

investigator is to gather the evidence to be placed before the Department’s

attorneys and the probable cause panel. He r role is not to cross - examine

potential witnesses or discredit their statements.

74. The consent forms were part of the investigative report. The probable

cause panel was capable of giving them due consideration and weighing them

against the witness stat ements of the patients. “[A] decision to prosecute that

turns on a credibility assessment has a reasonable basis in fact and law.”

Dep’t of Health v. Thomas , 890 So. 2d 400, 401 (Fla. 1 st DCA 2004).

75. The evidence was conflicting regarding the Departmen t’s knowledge of

the surgical suite. Even if the probable cause panel accepted that the patients

were draped in such a way that they could not actually watch their

procedures, the panel did not necessarily have to disregard the patient

statements. As found above, photos of the surgical suite might raise questions

but would not disprove or invalidate the statements of all of the surgical

patients to the degree that the probable cause panel could reasonably

disregard the patients’ statements to the investigat ors and detectives.

Further, discrediting the statements of the surgical patients would have no effect on the statements of the non - surgical patients.

76. In summary, Ms. Orozco was the prevailing small business party in

the underlying proceeding. However, the Department established that its

actions were substantially justified, in that it had a reasonable basis in law

and fact at the time probable cause was found.

O RDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that th e Motion for Attorneys’ Fees filed by Claudia Patricia

Orozco - Fandino, E.O. , is denied.

D ONE A ND O RDERED this 2 6 th day of February , 2020 , in Tallahassee, Leon

County, Florida.

L AWRENCE P. S TEVENSON

Administrative Law J udge

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

Division of Administrative Hearings

this 2 6 th da y of February , 2020 .

C OPIES F URNISHED :

Barbara L. Davis, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

(eServed)

Christopher R. Dierlam, Esquire

Office of the Attorney General

Plaza Level - 01, The Capitol

Ta llahassee, Florida 32399 - 1050

(eServed)

Cynthia Elizabeth Nash - Early, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Dale R. Sisco, Esquire

Sisco - Law

1110 North Florida Avenue

Tampa, Florida 33 602

(eServed)

Allison M. Dudley, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Claudia Kemp, JD, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way , Bin C03

Tallahassee, Florida 32399 - 3253

(eServed)

Edward A. Tellechea, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Louise Wilhite - St. Laurent, General Counsel

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399

(eServed)

Scott Rivkees, M.D.

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

(eServed)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

A party who i s 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 administrative appeal with the agency clerk of the Division of Administrative 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 d istrict c o urt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.