87-003604F Board Of Medicine vs. Raul Romaguera Status: Closed DOAH Final Order on Monday, January 4, 1988.

Summary: Where no evidence that probable cause panel considered investigative file, award for fees and costs justified.

n

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAUL ROMAGUERA, M.D. , )

)

Petitioner , )

)

vs. ) CASE NO. 87-3604F

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF MEDICAL )

EXAMINERS , )

)

Respondent. )

_________________________________)

FINAL ORDER

Pursuant to notice, a formal hearing in the above matter was

held before the Division of Administrative Hearings by its duly

designated Hearing Officer, Donald R. Alexander, on December 1,

1987, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Charles C. Powers, Esquire

Michael S. Smith, Esquire

Post Office Box 15021

West Palm Beach, Florida 33409

For Respondent : Stephanie A. Daniel, Esquire

130 North Monroe Street

Tallahassee, Florida 32399-0750

BACKGROUND

By petition filed on August 18, 1987, petitioner, Raul

Romaguera, M.D., seeks an award of attorney's fees and costs

pursuant to Section 57.111, Florida Statutes (1985). The

petition was filed after respondent, Department of Professional

Regulation, Board of Medical Examiners, entered a Final Order on

June 19, 1987 in Case No. 86-4887 dismissing with prejudice an

administrative complaint filed against petitioner for allegedly

violating Chapter 458, Florida Statutes.

By agreement of the parties, a final hearing on the petition

was held on December 1, 1987 in West Palm Beach, Florida. At

hearing, petitioner presented the testimony of Michael S. Smith

and offered petitioner's exhibit 1 which was received in

evidence. Respondent offered respondent's exhibit 1 which was

received in evidence. That exhibit is the record of DOAH Case

No. 86-4887.

The transcript of hearing was filed on December 14, 1987.

Proposed findings of fact and conclusions of law were filed by

petitioner on December 24, 1987. None were filed by respondent.

A ruling on each proposed finding of fact is made in the Appendix

attached to this Final Order.

At hearing, the parties stipulated that petitioner is a

prevailing small business party within the meaning of Subsection

57.111(3), Florida Statutes (1985), and that petitioner has

incurred costs and fees of at least $10,000 in defending this

action. The only issue, then, is whether the actions of

respondent were substantially justified in initiating its

complaint, or whether other special circumstances exist which

would make an award of fees and costs unjust.

Based upon all of the evidence, and the stipulation of

counsel, the following findings of fact are deermined:

FINDINGS OF FACT

1. Petitioner, Raul Romaguera, is a small business party

within the meaning of Subsection 57.111(3)(d), Florida Statutes

(1985). When the underlying action herein occurred, he was

licensed as a medical doctor by respondent, Department of

Professional Regulation, Board of Medical Examiners (Board).

2. On October 27, 1986, respondent filed an administrative

complaint against Dr. Romaguera alleging that he had violated

Subsection 458.331(1)(t), Florida Statutes (1985), by committing

gross malpractice or failing 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. The alleged violation related to

Dr. Romaguera's inspection and diagnosis of a patient's tissue in

December, 1980 while supervising a pathology department at a Lake

Worth hospital. After an evidentiary hearing was conducted on

March 24 and 25, 1987, a Recommended Order was entered by the

undersigned on May 12, 1987, finding that the charge was

unsubstantiated and recommending that the complaint be dismissed.

The Recommended Order was adopted by the Board in its entirety by

Final Order dated June 19, 1987. A timely petition for

attorney's fees and costs was thereafter filed by petitioner on

August 18, 1987.

3. The parties have stipulated that, as a result of the

Board's Final Order, Dr. Romaguera is a prevailing small business

party within the meaning of Section 57.111, Florida Statutes

(1985). They have also stipulated that, in order to defend

against the agency's action, Dr. Romaguera incurred at least

$15,000 in attorney's fees and costs.

4. There is no evidence as to what information, oral or

written, the probable cause panel had before it when voting to

initiate this action. The agency does stipulate that, at some

point in the probable cause phase of the proceeding, the panel

requested more information on the matter before taking a vote.

This is corroborated by an agency memorandum dated April 8, 1986

and introduced into evidence as petitioner's exhibit 1.

5. At the final hearing on the merits of the administrative

complaint, the agency presented a number of expert witnesses who

concurred in the Board's assessment that Dr. Romaguera had failed

to practice medicine with that level of care, skill and treatment

required of a reasonably prudent similar practicing physician in

the Lake Worth area. Doctor Romaguera also presented the

testimony of an expert who disagreed with this assessment.

Hence, the validity of the charges turned on the credibility and

weight to be given the various experts by the undersigned.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

of the subject matter and the parties thereto pursuant to

Subsection 120.57(1), Florida Statutes (Supp. 1986).

7. Initially, some comment is necessary with respect to the

burden of proof in this type of proceeding. As the petitioner,

Dr. Romaguera bears the burden of proving that he is a small

business party and that he prevailed in the action. Once this

showing is made, the burden shifts to the agency to demonstrate

that its actions were substantially justified or that special

circumstances exist which would make an award unjust. As

succinctly stated in Gentele v. Department of Professional

Regulation, Board of Optometry, 9 FALR 310, 327 (DOAH June 20,

1986)

The conclusion that the agency must prove its

actions were substantially justified, or that

special circumstances exist which would make

an award unjust, is buttressed by the plain

language of the statute. In mandatory

language, Section 57.111(4)(a) declares the

general rule -- that fees and costs "shall"

be awarded to a prevailing small business

party. Then, following a comma, the Act

creates two exceptions (actions substantially

justified or special circumstances make an

award unjust) which, if proven, make the

general rule inapplicable. The agency is the

best party to know the factual and legal

basis of its prior actions, and whether

special circumstances exist which would make

an award unjust. Hence, it is the agency

which must affirmatively raise and prove the

exception.

This allocation of proof is consistent with federal decisions

interpreting an almost identical provision in Section 504(a)(1)

of the Federal Equal Access to Justice Act (5 U.S.C., s. 504 et

seq.), upon which the state law is patterned. 1/ Therefore, if

petitioner establishes he is a prevailing small business party,

the agency must then prove the exception.

8. The parties have stipulated that Dr. Romaguera is a

prevailing small business party and that he incurred at least

$15,000 in attorney's fees and costs in defending this action.

This being so, it is concluded petitioner has established a prima

facie case for entitlement to an award of fees and costs.

9. The parties disagree on the required showing to

demonstrate that a proceeding is substantially justified. By way

of argument at hearing, the Board takes the position that the

entire record, as defined in Subsection 120.57(1)(b)6., Florida

Statutes (Supp. 1986), must be reviewed in order to fairly assess

the legitimacy of the proceeding. Conversely, Dr. Romaguera

contends the inquiry is limited to the probable cause phase of

the proceeding, a matter not normally a part of the above record

unless produced by the agency pursuant to a request of the

licensee.

10. As an instructive aid in determining whether an action

was substantially justified, Subsection 57.111(3)(c) provides

that "(a) proceeding is 'substantially justified' if it had a

reasonable basis in fact and law at the time it was initiated by

a state agency." (Emphasis added) In clear terms, then, the

legislature has directed the trier of fact to determine what data

or advice the agency relied upon when it initiated a proceeding

against a licensee, and whether this determination constituted a

reasonable basis in fact and law for initiating an action. Under

the existing statutory scheme An Section 455.225, Florida

Statutes (Supp. 1986), and as codified in Rule 21N-18.006,

Florida Administrative Code (1987), a probable cause panel, made

up of three members of the Board, has the statutory duty of

examining complaints brought to its attention and determining

whether they warrant a finding of probable cause against a

licensee. 2/ Therefore, it is this phase of a Board proceeding,

and not the final hearing on the merits, that Subsection

57.111(3)(c) mandates be reviewed in order to adjudicate a claim

for attorney's fees and costs. In construing the statute in this

manner, the undersigned has given primary consideration to the

plain meaning of the statutory language itself and avoided an

interpretation that would lead to an absurd result. 3/

11. The evidence does not disclose whether the panel had a

reasonable basis in fact or law to find probable cause. Indeed,

the record is void as to what information, if any, the panel

considered in reaching its decision. Likewise, in the present

state of the record, the undersigned cannot determine if a

"meaningful" probable cause inquiry was conducted by the panel as

required by law. See, for example, Kibler v. Department of

Professional Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982).

Given this lack of evidence, it cannot be said that respondent

has sustained its burden of proving that the action was

"substantially justified." Neither has respondent shown the

existence of other "special circumstances" that would make an

award of fees and costs unjust. This being so, Dr. Romaguera's

petition should be granted. 4/

12. In reaching the above conclusion, the undersigned has

considered the agency's submission of petitioner's exhibit 1,

which is the record in Case No. 86-4887 after it was initiated by

the Board. It is true, as the exhibit suggests, that the merits

of the charges in Case No. 86-4887 turned on a credibility

assessment by the undersigned of various expert witnesses

tendered by the respective parties at final hearing. However,

the fact that, after the proceeding was initiated, the agency was

able to procure expert witnesses to support its position does not

sanitize its failure here to document the probable cause phase

(initiation) of the proceeding. 5/ Therefore, the case of

Gentele v. Department of Professional Regulation, Board of

Optometry, 513 So.2d 672 (Fla. 1st DCA 1987), is distinguishable

since in Gentele the agency's initiation of an action was founded

on a credibility assessment by the probable cause panel (and not

a hearing officer), and as such, had a reasonable basis in fact

and law. Here there is no evidence upon which to make a similar

determination.

Based on the foregoing findings of fact and conclusions of

law, it is

ORDERED that Dr. Romaguera's petition for attorney's fees

and costs be GRANTED and that the Board of Medical Examiners pay

petitioner $15,000 in attorney's fees and costs within thirty

days from date of this order as required by Subsection 57.111(5),

Florida Statutes (1985).

DONE AND ORDERED this 4th day of January, 1988, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of January, 1988.

ENDNOTES

1/ See, for example, Derickson v. National Labor Relations

Board, 774 F.2d 229 (8th Cir. 1985); Temp Tech Industries, Inc.

v. National Labor Relations Board, 756 F.2d 586 (7th Cir. 1985);

Charter Management, Inc. v. National Labor Relations Board, 768

F.2d 1299 (11th Cir. 1985); Ashburn v. United States of America,

740 P.2d 843 (11th Cir. 1984); Enerhaul, Inc. v. National Labor

Relations Board, 710 F.2d 748 (11th Cir. 1983).

2/ It is noted that if the panel makes a finding of probable

cause, DPR must follow this determination since Subsection

455.225(3), Florida Statutes (Supp. 1986), provides that, after

such a finding is made, DPR "shall file a formal complaint"

against the licensee. (Emphasis added)

3/ If the agency's position was adopted, the Board could justify

the initiation of any action by merely producing a witness at

final hearing who supported the allegations in the complaint.

4/ At hearing respondent suggested that petitioner had waived

his right to challenge any aspect of the probable cause phase of

the proceeding since he had not timely done so in Case No. 86-

4887. This contention is rejected since (a) it is the

respondent, and not petitioner, that must affirmatively raise and

prove the exception, and (b) there is nothing in Section 57.111

that bars a party from utilizing its provisions unless it

previously sought a dismissal of the administrative complaint on

the ground the agency had not satisfied all procedural

requirements in Section 455.225.

5/ This proposition works both ways. If, for whatever reason,

the agency produced little or no evidence at final hearing on the

merits of the complaint, but could show the probable cause panel

was substantially justified in its decision to initiate the

matter, the Board would be statutorily insulated against a claim

for fees and costs.

APPENDIX TO FINAL ORDER, CASE NO. 87-3604

Petitioner:

1. Covered in finding of fact 1.

2. Covered in finding of fact 3.

3. Covered in finding of fact 3.

4. Partially covered in finding of fact 4. The remainder

is irrelevant.

5. Rejected as being irrelevant.

6. Rejected as being irrelevant.

7. Covered in finding of fact 4.

8. Covered in finding of fact 4.

COPIES FURNISHED:

Charles C. Powers, Esquire

Michael S. Smith, Esquire

Post Office Box 15021

west Palm Beach, Florida 33409

Stephanie A. Daniel, Esquire

130 North Monroe Street

Tallahassee, Florida 32399-0750

William O'Neil, III, Esquire

General Counsel

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32399-0750

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED

TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES.

REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE

PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A

NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF

ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING

FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST

DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE

DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE

FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.