88-004902F William F. Gessler vs. Board Of Medical Examiners Status: Closed DOAH Final Order on Thursday, November 17, 1988.

Summary: Without either a voluntary dismissal by DPR or a final order of board of Medicine at least partly in petitioner's favor he is not "prevailing party"

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM F. GESSLER, M.D. )

)

Petitioner )

)

vs. ) CASE NO. 88-4902F

)

DEPARTMENT OF PROFESSIONAL )

REGULATION )

)

Respondent. )

_____________________________)

FINAL ORDER

This cause came on for consideration upon Petitioner Gessler's "Petition

for Award of Attorney's Fees and Costs," Department of Professional Regulation's

"Motion to Dismiss, Answer, and Affirmative Defenses to Petition for Attorney

Fees and Costs," and Gessler's "Reply to Respondent's Motion to Dismiss," and

"Reply to Affirmative Defenses."

APPEARANCES

The parties are represented as follows:

For Petitioner Charles L. Curtis, Esquire

Gessler: 1177 Southeast Third Avenue

Fort Lauderdale, Florida 33316

For Respondent John R. Alexander, Esquire

DPR: 130 North Monroe Street

Tallahassee, Florida 32399-0750

FINDINGS OF FACT

1. This case involves a Petition under Section 57.111 F.S. and Rule 22I-

6.35 F.A.C.

2. Petitioner herein is William F. Gessler, M.D. Respondent herein is the

Department of Professional Regulation.

3. This cause has been determined upon Gessler's "Petition for Award of

Attorney's Fees and Costs," the Department of Professional Regulation's "Motion

to Dismiss, Answer, and Affirmative Defenses to the Petition for Attorney Fees

and Costs," Gessler's "Reply to Respondent's Motion to Dismiss", Gessler's

"Reply to Affirmative Defenses," and the pleadings and papers of record in DOAH

Case No. 86-3600.

4. Respondent charged Petitioner in a license disciplinary administrative

complaint styled, Department of Professional Regulation, Board of Medical

Examiners v. Gessler. Gessler requested a formal administrative hearing

pursuant to Section 120.57(1) F.S., which request was granted. The formal

administrative proceedings were assigned DOAH Case No. 86-3600.

5. The Department of Professional Regulation filed a Motion to Continue so

as to effect settlement in DOAH Case No. 86-3600 on February 24, 1987. By Order

of February 27, 1987, the undersigned hearing officer cancelled formal hearing

scheduled for April 1-2, 1987, provided for the parties to advise within 90 days

of the status of the matter, and of the need for formal hearing and mutually

agreeable dates for rescheduling formal hearing. That order of February 27,

1987 also provided, in pertinent part,

3. Failure of the parties to file any

documents within 120 days will be deemed

acknowledgment that all disputed issues of

material fact have been resolved between

the parties and that Respondent waives

formal hearing in this cause and will

result in an order of the undersigned

relinquishing jurisdiction to the Board of

Medical Examiners and closing the file of

the Division of Administrative Hearings.

(Emphasis supplied).

6. Neither the Department of Professional Regulation nor Gessler timely

complied with the foregoing February 27, 1987 Order. Indeed, thereafter, no

document or paper of any kind was filed by either party and by Order of July 1,

1987, the undersigned found that, pursuant to the February 27, 1987 order, their

failure to file any paper at all constituted acknowledgment by each party that

all disputed issues of material fact had been resolved between them, and

relinquished jurisdiction to the Board of Medical Examiners, pursuant to Section

120.57(3) F.S., which provides, in pertinent part, as follows:

Unless precluded by law, informal

disposition may be made of any proceeding

by stipulation, agreed settlement, or

consent order.

7. On January 28, 1988, more than seven months later, a Notice of

Appearance by new counsel for the Department of Professional Regulation was

filed with the Division of Administrative Hearings.

8. There were no further filings with the Division of Administrative

Hearings until August 2, 1988 when the new counsel for the Department of

Professional Regulation filed a Motion to Reinstate and Reopen. That motion was

clearly untimely, and, further, was filed at a time when no jurisdiction

remained in the Division of Administrative Hearings for the proceedings or the

relief sought. Since July 1, 1987, jurisdiction of the cause has remained

continuously in the Board of Medicine, formerly the Board of Medical Examiners.

Accordingly, the Motion to Reinstate and Reopen filed by the Department of

Professional Regulation before the Division of Administrative Hearings was

denied by an order entered on August 15, 1988.

9. The record herein shows that the Board of Medicine, which continues to

retain jurisdiction of the charges under the administrative complaint which was

formerly styled DOAH Case No. 86-3600, has entered no final order. Therefore,

Gessler cannot qualify in this instant proceeding, DOAH Case No. 88-4902F, for

an award of attorney's fees and costs as a result of being a "prevailing small

business party" pursuant to Section 57.111(3)(c)(1) F.S. The former case 86-

3600 apparently remains in limbo because the parties' stipulation was never

reduced to a writing, prepared in standard format, and signed by counsel for

both parties for presentation to the Board of Medicine.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this cause pursuant to Sections 57.111 and

120.57(1), F.S. and Rule 22I-6.35 F.A.C.

11. Petitioner Gessler cannot recover herein because he has not

demonstrated that he has prevailed in DOAH Case No. 86-3600.

12. Petitioner is caught in what has come to be known in the common

American idiom as "a Catch-22." The Department of Professional Regulation's

Chief Attorney, Medical Section, now declines to draft a settlement in the terms

Gessler's attorney understood had been agreed upon over a year ago with a former

staff attorney, and so the Board of Medicine has had no opportunity to either

accept or reject any settlement stipulation whatsoever.

13. Gessler argued that by the Department of Professional Regulation's

failure to file with the Division of Administrative Hearings any timely response

to the February 27, 1987 order in DOAH Case No. 86-3600, the Department has

acknowledged that all disputed issues of fact are resolved. That is indeed what

the terms of the Order provided. Such language paves the way for an informal

disposition by the agency pursuant to Section 120.57(2) F.S. in the event the

parties elect to proceed in that manner.

14. However, Gessler misapprehends the nature of both previous Division of

Administrative Hearing Orders in the underlying case. DOAH Case No. 86-3600 was

never dismissed here. The Order entered July 1, 1987 clearly reads:

2. Jurisdiction is hereby relinquished to

the Board of Medicine and the file of the

Division of Administrative Hearings is

hereby closed, pursuant to Section 120.57(3)

F.S.

15. Without either a voluntary dismissal by the Department of Professional

Regulation or a Board of Medicine Final Order which is at least partly in

Gessler's favor, Gessler cannot qualify as a "prevailing party" so as to bring

the instant attorney's fees and costs action in this forum.

16. The Department's inordinate delay in the underlying case is

understandably frustrating to citizen litigants, but it is likewise clear that

Gessler, as a party to the original proceeding, had an equal opportunity with

the Department, also a party, to file something in DOAH Case No. 86-3600 for the

purpose of avoiding the presumed "acknowledgment that all disputed issues of

material fact have been resolved between the parties and that Respondent waives

formal hearing." Such filing could have been accomplished at any time from

February 27, 1987 (date of the first order) until July 1, 1987 (date of the

order relinquishing jurisdiction) [Emphasis supplied from Order of February 27,

1987.] Such a filing by Gessler would have automatically refuted the

presumption and prevented relinquishment of jurisdiction from the Division of

Administrative Hearings to the Board of Medicine. Also, Gessler may even now,

in November, 1988, receive an informal hearing pursuant to Section 120.57(2) or

petition the Board to relinquish jurisdiction of Case No. 86-3600 back to the

Division of Administrative Hearings so that the original underlying charges may

be tried before the Division of Administrative Hearings in a Section 120.57(1)

F.S. evidentiary/fact-finding proceeding, as originally contemplated.

17. What Gessler cannot do is qualify for an attorney's fee and costs

award at this time.

It is, accordingly ORDERED: The Petition for Award of Attorney's Fees and

Costs is hereby DENIED.

DONE and ORDERED this 17th day of November, 1988, at Tallahassee, Florida.

___________________________________

ELLA JANE P. DAVIS, Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of November, 1988.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director

Board of Medicine

Department of Professional Regulation

130 North Monroe Street

Tallahassee, Florida 32301

Charles L. Curtis, Esquire

1177 S.E. Third Avenue

Fort Lauderdale, Florida 33316

John R. Alexander, Esquire

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32399-0750

Lawrence A. Gonzalez, Secretary

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32399-0750

Bruce D. Lamb, Esquire

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.