Florida/Georgia Personal Injury & Workers Compensation

...arter v. Dep’t of Prof'l Regulation, 633 So.2d 3, 6 (Fla.1994) (finding that if Legislature had intended penalty for a violation of a time limit to be dismissal of the administrative complaint, it would have expressly included that sanction within section 455.225, Florida Statutes (Supp.1986))....

...§ 466.019. When the DPR receives a legally sufficient complaint against a dentist, the Board is required to assemble a “probable cause panel” of its members to determine whether a formal complaint should be lodged against the practitioner. Fla.Stat. § 455.225(3). If formal charges are brought, the Board as a whole (excluding those members who sat on the probable cause panel) then decides whether disciplinary action shall be taken and issues a final order. Fla.Stat. § 455.225(5)....

...sing dentists (Count I), damages for selective enforcement of laws (Count II), damages for conspiracy to selectively enforce the laws *1554 (Count III), injunctive relief to prevent the further use of letters of guidance pursuant to Florida Statutes § 455.225(3) (1983) (Count IV), damages for the improper use of letters of guidance (Count V), and declaratory and injunctive relief against the appellees’ interpretation of Florida Statutes § 455.225(9) (1983) (Count VI)....

...Because it is “severely circumscribed to constitutional challenges posing ‘special circumstances,’ ... [Pullman abstention] is therefore the exception rather than the rule.” High Ol’ Times, 621 F.2d at 139 (quoting Zwickler v. Koota, 389 U.S. 241, 248 , 88 S.Ct. 391, 395 , 19 L.Ed.2d 444 (1967)). Section 455.225(4) provides in pertinent part: If the probable cause panel finds that probable cause exists, it shall direct the [DPR] to send the licensee a letter of guidance or to file a formal complaint against the licensee.......

...1510 . The district court found that Rindley’s claims directly presented unsettled issues of state law. In reaching this conclusion, the district court addressed its entire discussion of Pullman abstention to the lack of judicial interpretation of section 455.225(4) and other sections relating to issuance of letters of guidance, possible “avoiding constructions,” and available state court means to obtain a judicial interpretation of the section....

...the Florida Supreme Court. In regard to Counts IV and V which seek declaratory and injunctive relief concerning the state’s alleged improper use of letters of guidance, the district court determined that federal constitutional questions concerning section 455.225(4) could be avoided depending on state court construction of that section in relation with (1) section 455.-208, Florida Statutes (1988), and (2) the Administrative Procedure Act, Florida Statutes, chapter 120 (1988)....

...terial. 4 The second avoiding construction advanced by the district court involves the issue of whether a notice and hearing are required before a letter of guidance is issued or publicized. The district court suggested that although the language of section 455.225(4) suggests that letters of guidance are not subject to the notice and hearing due process safeguards found in chapter 120, a Florida court might find that Rindley is entitled to notice and hearing before the letters of guidance are i...

...Merrill, 469 So.2d 893 (Fla. 1st DCA 1985), the court noted that the right to notice and hearing under chapter 120 arises only after the filing of a formal complaint. Model Rule 28-5.110, Florida Administrative Code (1990). Under the plain language of section 455.225(4), letters of guidance are issued at a point prior to, and as an alternative to, the filing of administrative complaints....

...CONCLUSION Because we determine that the district court should not have dismissed Rindley’s claims based upon the theories of abstention relied upon, we reverse and remand for proceedings consistent with this opinion. 6 REVERSED AND REMANDED. 1 . The 1989 amendment to section 455.225 renumbered former subsections (3) through (11) as subsections (4) through (12). Fla.Stat.Ann. § 455.225 historical note (West Supp.1990)....

...3 .Decisions of the former Fifth Circuit Court of Appeals filed before October 1, 1981, constitute binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981). 4 . The issuance of a letter of guidance becomes part of the public record pursuant to section 455.225(9), which has at all times material to this action provided that: the complaint and all information obtained pursuant to the department's investigation shall be exempt from [public disclosure under] s.l 19.07 until ten days after prob...

...In fact, Kibler specifically recognizes that in order "[t]o sustain a probable cause determination there must be some evidence considered by the panel that would reasonably indicate that the violations alleged had indeed occurred." Kibler, 418 So.2d at 1084 (emphasis added). Indeed, the procedure set forth under Section 455.225, Florida Statutes (1987), relating to disciplinary proceedings initiated by a regulatory agency, clearly suggests that an investigative report may be the most substantial and relevant evidence necessary to assist the panel in renderin...

...ipt by it of the final investigative report. Clearly, there was some evidence before the panel in the form of the investigative report on which it based its decision to file the administrative complaint against the licensees. From our examination of section 455.225, it appears that a panel's decision of whether to initiate a disciplinary action against a licensee is not subject to the requirements of section 120.57, in that a probable cause determination may be made without the licensee present. Moreover, section 455.225(3) specifically states that the strictures of chapter 120 are applicable only after the complaint has been filed and the investigation completed. Therefore, we conclude, by reference to the statutory procedure outlined under section 455.225, that although a review of the entire transcript of the proceedings before the panel might be helpful in deciding whether the panel's initiation of prosecution was substantially justified, it is nonetheless not essential to a resolution of such issue....

...But Rule 21V-20.09 of the Florida Administrative Code, containing the operating rules of the Board, declares: "The probable cause panel shall be composed of not less than two members of the Board, one of which shall be a lay member of the Board." And Section 455.225(3), Florida Statutes (1981), describing discipline of professions and occupations, provides, "The [probable cause] panel ......

...Dep't of Prof'l Regulation, Bd. of Optometry, 633 So.2d 3, 6 (Fla.1994) (finding that if legislature had intended the penalty for a violation of a time limit to be dismissal of the administrative complaint, it would have expressly *1258 included that sanction within Section 455.225, and applying the harmless error rule)....

...1st DCA 2008) (citing Twins D & D, Inc. v. Dep't of Bus. & Prof'l Regulation, 722 So.2d 234 (Fla. 2d DCA 1998); Shady Oaks Mobile Modular Estates, Inc. v. Fla. Pub. Serv. Comm'n, 654 So.2d 678 (Fla. 1st DCA 1995)). In Goodson, this court interpreted section 455.225(5), Florida Statutes, which requires that "[i]f any party raises an issue of disputed fact during an informal hearing, the hearing shall be terminated and a formal hearing pursuant to chapter 120 shall be held." Id....

...NOTES [1] It is significant to note that a portion of the delay was occasioned by a change in the procedure by which professions are regulated. Ch. 455, Fla. Stat. (1979). Effective July 1, 1979, Ch. 79-36, Laws of Fla. created the Department of Professional Regulation. See § 455.225, Fla....

...tified DPR pursuant to Section 458.337(1)(a), Florida Statutes (1983), that Mercy Hospital had recently suspended the hospital staff privileges of these two physicians; the ensuing investigation of these physicians by DPR was, in turn, authorized by Section 455.225(1), Florida Statutes (1983)....

...Dentistry to prevent the use of "letters of guidance" against the plaintiff; Count V seeks damages against various defendants for their use of letters of guidance; and Count VI seeks declaratory relief regarding the interpretation of Florida Statute Section 455.225(3)....

...mpermissible end of suppressing constitutionally protected commercial speech. Defendants next contention is that Count IV of the Amended Complaint is now moot due to significant statutory revisions. Essentially, Count IV alleges that Florida Statute Section 455.225(3) [5] is unconstitutional under the Fifth and Fourteenth Amendments because it authorizes the issuance of letters of guidance without due process of law, i.e., notice and an opportunity to be heard....

...Plaintiff contends that because the letters of guidance are issued only upon a finding of probable cause and because the letters are subsequently published in a professional newsletter that the letters could damage his professional and business reputation. [6] Defendants argue that under a revised version of Section 455.225(4), letters of guidance would be issued in lieu of a finding of probable causes and would not be published. [7] This version of Section 455.225(4), however, has lapsed and been replaced with a version that is similar in all material aspects to the one of which Plaintiff complains. Under the latest version of Florida Statute Section 455.225(4), a letter of guidance represents a finding of probable cause and can be published. [8] Therefore, Count IV is not mooted by the temporary legislative amendment of 455.225(4)....

...In Count VI, Plaintiff sought injunctive relief against the Secretary for requiring subjects of investigations to waive confidentiality in order to ascertain from the defendant the source and substance of the complaints filed against them. Pursuant to statutory changes, however, Florida Statute Section 455.225(1) (1991) now requires the DPR to furnish the person under investigation with a copy of the complaint and the documents which resulted in the initiation of the investigation....

...The Florida Bar, 889 F.2d 1010, 1013 (11th Cir. 1989). The party seeking fees must show that the defendant has acted in response to Plaintiff's lawsuit. Here, the Plaintiff has made no showing, nor alleged any facts, to demonstrate that the Florida legislature, when it revised Section 455.225(1), was acting in response to his litigation filed against the Secretary of the DPR....

...rassment or intimidation." Horwitz, 822 F.2d at 1515. Factor number three also favors a finding of absolute immunity because sufficient safeguards exist to protect a dentist's constitutional rights. For example, pursuant to Florida Statutes Sections 455.225(5) and 120.57, a dentist may request and receive a formal evidentiary hearing when a panel determines that probable cause exists to find that the licensee has committed a statutory violation and issues a letter of guidance....

...a finding of probable cause on that particular count. (Am.Comp.P. 138). The undersigned concludes that the issuance of letters of guidance by a DPR attorney is a quasi-judicial function and absolute immunity is therefore appropriate. Florida Statute Section 455.225(3) (now 455.225(4)) provides "If the probable cause panel finds that probable cause exists, it shall direct the department to send the licensee a letter of guidance or to file a formal complaint against the licensee....

...There is, of course, no statutory mandate that a prosecutor make statements solely for the edification of the news media. [12] Additionally, the fact that Gallagher may have issued letters of guidance after the official close of a particular case does not abrogate her entitlement to absolute immunity. Florida Statute 455.225(4) (see Am....

...[5] In 1989, a new subsection (3) was inserted, thereby moving each existing subsection up one number. What was complained of in subsection (3) is now the body of subsection (4), and will be referred to as such throughout the remainder of this Report and Recommendation. See, Florida Statute § 455.225, Historical and Statutory Notes. [6] "If the probable cause panel finds that probable cause exists, it shall direct the department to send the licensee a letter of guidance or to file a formal complaint against the licensee." Florida Statute § 455.225(4) ( Text of subsection (4) as renumbered in Laws 1989, c....

...rtment when there is no board, may issue a letter of guidance to the subject. If the probable cause panel finds that probable cause exists, it shall direct department to file a formal complaint against the licensee." (emphasis added) Florida Statute § 455.225(4) ( Text of subsection (4) as amended by Laws 1992, c....

...92-149, § 21, effective October 1, 1992 ). [8] "If the probable cause panel finds that probable cause exists, it shall direct the department or the agency to send the licensee a letter of guidance or to file a formal complaint against the licensee." Florida Statute § 455.225(4) ( Text of subsection (4) as amended by Laws 1992, c....

...deviation from the prevailing or acceptable standard of nursing practice of another person licensed to practice in this state, or any other violation of chapter 455 or 464, Florida Statutes, or the rules promulgated thereto." Pursuant to subsections 455.225(3) and (9), Florida Statutes (1981), all proceedings and records made during an investigation prior to a determination of probable cause to file a formal complaint are exempt from the provisions of sections 286.011 and 119.07 dealing with public meetings and public inspection of official records....

...Further, the initial investigative proceedings are confidential until the department determines that probable cause exists or until confidentiality is waived by the person who is subject to the investigation. A privilege *898 against civil liability is granted by section 455.225(10) "to any complainant or any witness" regarding information furnished with respect to an investigation or proceeding pursuant to this act "unless the complainant or witness acted in bad faith or with malice in providing such informa...

...Cope's complaint could have led to a chapter 120 formal hearing placing Ms. Merrill's professional license at risk and that the resulting investigation is necessarily quasi-judicial in character, much like the making of a complaint to prosecuting authorities in a criminal case. Moreover, appellee urges, section 455.225(10) expressly recognizes a willful and intentional tort action against a complaining party who furnishes information "in bad faith and with malice." We are persuaded that the investigation in this case was not a quasi-judicial proceeding....

...Merrill had no absolute right to notice and hearing incident to the confidential investigation before the department made a probable cause determination. Such absolute right arose only upon the filing of a formal complaint after the probable cause determination. §§ 120.57 and 455.225, Fla....

...First Bank of Marianna, 457 So.2d 582 (Fla. 1st DCA 1984). Unlike the ordinary malicious prosecution case arising out of an original civil or criminal judicial proceeding, however, here the defendants were protected from civil liability for furnishing information to the department by section 455.225(10) unless they furnished information "in bad faith and with malice." [4] We agree with appellants that this statutory provision requires proof of actual or express malice similar to that required in defamation cases where the alleged...

...meet minimum requirements for safe practice. It is the legislative intent that nurses who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state. [3] But for the provisions of section 455.225(10) creating a qualified privilege from civil liability as hereinafter discussed, we would be inclined to recognize an absolute privilege against liability for making confidential complaints with the department for the same reasons that complaints about lawyers are absolutely privileged....

...[4] Appellee's complaint contained a count for "libel and defamation of character" (R. 4), but this count was voluntarily dismissed by appellee shortly after the jury trial began. We do not, therefore, find it necessary to consider what legal effect section 455.225(10) might have with respect to a defamation action predicated on statements made during the investigative phase, including whether such statements are absolutely privileged the same as if given in a judicial proceeding.

...orial authority in disciplinary proceedings. The Department is given explicit statutory authority to overrule the various professional boards under its umbrella only in determining whether probable cause supports prosecution of disciplinary charges. Section 455.225(3), Fla....

...Importantly, such proof of compliance was received more than six months after FREC had issued Walker's renewal license. As a result of these irregularities in Walker's application process, FREC initiated an investigation. The matter was referred to a probable cause panel pursuant to section 455.225, Florida Statutes (1995)....

...THE DECISION IN DEPARTMENT OF BUSINESS REGULATION V. HYMAN, 417 So.2d 671 (FLA. 1982), SHOULD BE APPLIED WHEN A LICENSEE MOVES TO DISMISS AN ADMINISTRATIVE COMPLAINT BECAUSE THE DEPARTMENT OR A BOARD HAS FAILED TO COMPLY WITH THE TIME LIMITATIONS OF SECTION 455.225, FLORIDA STATUTES....

...In response to the administrative complaint, Carter requested a formal hearing pursuant to section 120.57, Florida Statutes (1987). He also filed a motion to dismiss the complaint on the grounds that the Department and the Board of Optometry (the Board) failed to comply with the time limits contained in section 455.225, Florida Statutes (Supp. 1986). Specifically, Carter claimed that the Department, which completed its investigation in ten months, did not "expeditiously investigate" the patient complaint in accordance with section 455.225(2). Carter also contended that the Department and the Board's probable cause panel violated section 455.225(3), [1] by failing to make requests for *5 additional investigative information within fifteen days of receiving the investigative report, failing to make a probable cause determination within thirty days of receiving the report, and failing to refer the administrative complaint to the Board within a year. The hearing officer ruled that the time limits set out in section 455.225 were designed merely to assure adequate reporting between the administrative bodies and that unless Carter could demonstrate that he was prejudiced by the delays he was not entitled to dismissal....

...The hearing officer also found that Carter had not shown that he was prejudiced by the delays. The Board entered its final order approving and adopting the hearing officer's findings of fact and conclusions of law, but reduced the recommended penalty and fine. Carter appealed the final order, claiming that the section 455.225 violations deprived him of due process because he was forced to defend against a stale claim. The district court rejected the contention that the time limits in section 455.225 were only intended to ensure adequate communication and reporting among the various administrative bodies....

...the matters giving rise to the complaint and provide protection against the potential prejudice that flows from unreasonable delays, such as loss of documents, unavailability of witnesses, and fading memories. Id. at 80-81. Despite the fact that the section 455.225 time limits accord significant rights to the licensee, the district court held that the failure to comply with the time limits did not require dismissal of the complaint as a matter of law. Following our decision in Department of Business Regulation v. Hyman, 417 So.2d 671 (Fla. 1982), the court concluded that to obtain dismissal a licensee must show (1) a violation of the time limits in section 455.225, and (2) that the resulting delay may have impaired the fairness of the proceedings or the correctness of the action and may have prejudiced the licensee....

...ad not proven that the delay prejudiced him in any way. Thus, the district court held that Carter was not entitled to dismissal. 613 So.2d at 81. For the reasons set forth below we agree that Hyman provides the appropriate standard for reviewing the section 455.225 time violations that occurred in this case....

...e necessary language in the statute. We agree with the district court that "[t]he policy reasons for the holding in Hyman *6 apply with equal force in the case at bar." 613 So.2d at 81. Like the section 120.59(1)(a) time limit violated in Hyman, the section 455.225 time requirements at issue in this case are not accompanied by any sanctions for noncompliance. Consistent with our reasoning in Hyman, we believe that if the Legislature had intended the dismissal of administrative complaints in actions in which the Department or Board acted outside the time limits of section 455.225, the Legislature would have expressly included a sanction of dismissal within the statute....

...Section 120.68(8) also has been applied to review noncompliance with procedures prescribed by chapter 455. Carrow v. Department of Professional Regulation, 453 So.2d 842 (Fla. 1st DCA 1984) (agency's failure to inform doctor of nature of complaint against him pursuant to section 455.225(1) was subject to harmless error rule); Beckum v....

...Department of Professional Regulation, 427 So.2d 276 (Fla. 1st DCA 1983) (probable cause panel's failure to record its proceedings as required by section 455.203(7) was subject to review pursuant to section 120.68(8)). Carter contends that because section 455.225 contains implicit sanctions Hyman should not apply....

...International Co., 89 So.2d 488 (Fla. 1956) (Hotel and Restaurant Commission lacked jurisdiction to initiate disciplinary proceeding because it did not do so within statutory time limit). We, however, cannot agree with Carter's contention that time limits such as those of section 455.225 that shift responsibility throughout the disciplinary process also are jurisdictional....

...s the necessary jurisdiction. Application of the harmless error rule to violations of procedural requirements such as the time limits contained in chapter 455 provides more rational results. See Carrow, 453 So.2d 842 (agency's failure to comply with section 455.225(1) was not a jurisdictional error, but was subject to harmless error rule); Beckum, 427 So.2d 276 (probable cause panel's failure to comply with section 455.203(7) was not a jurisdictional error, but was subject to review pursuant to section 120.68(8)). In addition to the case law, there is language in the statute itself that demonstrates the section 120.68(8) harmless error rule should be applied in this case. Section 455.225 indicates that judicial review of agency action taken pursuant to the statute is to be conducted in accordance with the provisions of section 120.68. Specifically, section 455.225(6), Florida Statutes (Supp....

...require the Department to prove the negative. We believe the burden is properly placed on the licensee because it is the licensee who is best equipped to identify the harm caused by the delay. Accordingly, we approve the decision below and hold that section 455.225, which does not provide specific sanctions for noncompliance with its time requirements, falls within the purview of the section 120.68(8) harmless error rule. [4] It is so ordered. BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES and HARDING, JJ., concur. NOTES [1] Section 455.225(3), Florida Statutes (Supp. 1986), recodified as section 455.225(4), Florida Statutes (1991), provides in pertinent part: A request for additional investigative information shall be made within 15 days from the date of receipt by the probable cause panel of the investigative report of the department....

...[2] Section 120.68(8) provides in part: The court shall remand the case for further agency action if it finds that either the fairness of the proceeding or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure. [3] Currently section 455.225(7), Florida Statutes (1993). [4] We recognize that the Department and the Board clearly violated the section 455.225 time limits and that no adequate justification for the violations was provided. Therefore, we suggest that the Legislature may wish to consider amending the statute to include express sanctions for noncompliance. Such sanctions would encourage future compliance with section 455.225 and, thereby, avoid disciplinary proceedings that may appear unfair to the licensee.

...Wrongful Death Act); see also Carter v. Dep’t of Prof’l Regulation, 633 So. 2d 3, 6 (Fla.1994) (finding that if Legislature had intended penalty for a violation of a time limit to be dismissal of the administrative complaint, it would have expressly included that sanction within section 455.225, Florida Statutes (Supp....

...Here, the department could only revest jurisdiction in the board without a recommended order from the hearing officer by obtaining a favorable ruling on its rule 22I-6.033 motion. When the motion was opposed and denied, the department was bound to proceed to formal hearing or discontinue prosecution pursuant to section 455.225(2), Florida Statutes (1991)....

...an informal proceeding. Accordingly, the petition for writ of prohibition is granted. MINER, WOLF and WEBSTER, JJ., concur. NOTES [1] If the probable cause panel of the board had wished to continue the prosecution, it could have done so pursuant to § 455.225(4), Fla....

...Department of Professional Regulation, Board of Medicine, 517 So.2d 113 (Fla. 3d *1239 DCA 1987) (physician's alleged lack of candor in his testimony on administrative charges would not justify Board of Medicine's increase of penalty), approved, 531 So.2d 967 (Fla. 1988). Section 455.225(5), Florida Statutes (1991), provides for a formal hearing before a hearing officer if there are any disputed issues of fact and "[i]f any party raises an issue of disputed fact during an informal hearing, the hearing shall be termina...

...120 shall be held." We conclude this provision applies to the penalty phase of an informal hearing as well as to questions of guilt. Having determined there were disputed issues of fact during the penalty phase of the informal hearing, we interpret section 455.225(5), Florida Statutes (1991), to entitle Klein to a formal hearing on the penalty issue....

...) it considered matters not charged in the complaint, and (2) it failed to terminate the informal hearing when it was apparent there were disputed issues of fact. In reversing and remanding for reconsideration of the penalty, the court asserted that section 455.225(5) applied to both the guilt and penalty phases of an informal hearing and, as disputed issues of fact arose during the penalty phase of the informal hearing, Klein was entitled to a formal hearing....

...The Panel determined that "probable cause exists to believe that [Dr. Brown] violated Chapter 490, Florida Statutes" and directed the Department to issue a "letter of guidance" to Dr. Brown in lieu of further administrative action. On March 14, 1991, pursuant to section 455.225(4), Florida Statutes (1990 Supp.), the Department issued the letter of guidance to Dr....

...an be used as such against him in the future. Because these actions affect his substantial interests, Dr. Brown argues, he is entitled to an evidentiary hearing pursuant to section 120.57(1). The Department stated in the appealed order that while subsection 455.225(4), Florida Statutes (1989), provides for commencement of proceedings pursuant to chapter 120, Florida Statutes (1989), the subsection provides for such proceedings only upon the filing of a formal complaint....

...aring officer is required to consider evidence contained in the Department's investigative file that supported the Department's probable cause determination. In reaching a decision on this issue, we noted that the disciplinary procedure set forth in section 455.225(3), Florida Statutes (1987), clearly suggests that an investigative report may be the most substantial and relevant evidence in determining that probable cause exists to issue a formal complaint. The court further stated: From our examination of section 455.225, it appears that a panel's decision of whether to initiate a disciplinary action against a licensee is not subject to the requirements of section 120.57, in that a probable cause determination may be made without the licensee present. Moreover, section 455.225(3) specifically states that the strictures of chapter 120 are applicable only after the complaint has been filed and the investigation completed. 549 So.2d at 719. Based on this analysis of section 455.225, we held that, although review of the entire transcript of the proceedings before the panel might have been helpful in determining whether the panel's initiation of the prosecution was substantially justified, such review was not essential to resolution of that issue. 549 So.2d at 719. Toledo Realty is not dispositive of the issue now before us for at least two reasons. First, the scope of the applicability of section 120.57 to disciplinary proceedings instituted under section 455.225 was not an issue squarely before the court. *1340 Hence, our discussion of the application of section 120.57 to proceedings pursuant to section 455.225 in circumstances not then before the court was nonbinding dicta. See Adams v. Aetna Ins. Co., 574 So.2d 1142, 1150-1154 (Fla. 1st DCA), rev. dismissed, 581 So.2d 1307 (Fla. 1991). More importantly, we did not expressly interpret section 455.225(3), Florida Statutes (1987) (renumbered § 455.225(4) in 1989), to mean that a licensee is not entitled to a section 120.57 hearing after a panel determination of probable cause and issuance of a letter of guidance rather than a formal complaint. Turning now to the express language of the statutes involved, subsection 455.225(4) expressly provides that if the Department files a formal complaint, such complaint shall be prosecuted pursuant to the provisions of chapter 120....

...This subsection does not, however, preclude a hearing pursuant to chapter 120 in the event the Probable Cause Panel decides, upon a finding of probable cause, to direct the Department to issue a letter of guidance rather than file a formal complaint. Moreover, subsection 455.225(5) states: A formal hearing before a hearing officer from the Division of Administrative Hearings of the Department of Administration shall be held pursuant to chapter 120 unless all parties, including the Department of Professional Regulation, agree in writing that there is no disputed issue of material fact....

...The doctrine of collateral estoppel is applicable to administrative orders and decisions. See Walley v. Florida Game & Fresh Water Fish Commission, 501 So.2d 671 (Fla. 1st DCA 1987). See also 1 Fla.Jur.2d Administrative Law 92 (1977). The Department initiated the 1990 "informal" complaint against Dr. Brown pursuant to subsection 455.225(1), Florida Statutes (1989), which states in part: Unless a complaint has been filed with the department or the department has been specifically authorized by statute, the department may not initiate an investigation unless it has rea...

...Appellant argues that the Department's administrative complaint did not contain sufficient factual allegations to support the charged infractions. We affirm this issue without comment. Appellant also argues that the Department failed to comply with section 455.225(5), Florida Statutes, because it did not terminate the informal hearing Appellant elected to have once disputed issues of fact arose....

...He did not, however, request that the informal hearing be terminated in lieu of a formal hearing or otherwise object to the continuation of the proceedings before the Commission. Appellant argues on appeal that, despite his silence on the issue, the Commission was required by operation of section 455.225(5), Florida Statutes, to terminate the hearing and refer the matter to the Division of Administrative Hearings once disputed issues of fact arose. We disagree. Section 455.225(5) provides, in relevant part, "If any party raises an issue of disputed fact during an informal hearing, the hearing shall be terminated and a formal hearing pursuant to chapter 120 shall be held." Despite the mandatory language of t...

...He further urges error with respect to the Board's refusal to consider certain evidence in mitigation of the hearing officer's recommended penalty. Finally, appellant argues that the decision of the Board should be reversed because the Board failed to follow the dictates of section 455.225(5), Florida Statutes (1987)....

...See § 120.68(1), Florida Statutes (1982). Beckum's petition complains of the February 2, 1983 order of hearing officer Benton, denying in part Beckum's motion to dismiss disciplinary proceedings against him by the Department of Professional Regulation pursuant to section 455.225, Florida Statutes (1981)....

...Appellant contends that the informal hearing he requested, pursuant to section 120.57(2), Florida Statutes (1979), concerning the complaint filed against him by appellee, should have been terminated and a formal hearing conducted because issues of fact were disputed during the hearing. We disagree. Section 455.225(4), Florida Statutes (1979) states: A formal hearing before a hearing officer from the Division of Administrative hearings of the Department of Administration shall be held pursuant to chapter 120 unless all parties, including the Dep...

...REVERSED and REMANDED. GRIFFIN and EVANDER, JJ., concur. NOTES [1] The Florida Real Estate Appraisal Board is the administrative body charged with the regulation and licensure of real estate appraisers pursuant to Chapter 475, Part II, Florida Statutes. [2] Section 455.225(5), Florida Statutes (2006), provides in relevant part, "If any party raises an issue of disputed fact during an informal hearing, the hearing shall be terminated and a formal hearing pursuant to chapter 120 shall be held." The record...

...The Department, on the other hand, contends that Iazzo's request for a formal hearing was not sufficiently specific and did not meet the legal requirements of Florida Administrative Code Rule 28-5.201. We agree with Iazzo, and reverse. Nothing in sections 120.57(1) or 455.225(4), or Florida Administrative Code Rule 28-5.201 imposes a requirement that a party must specifically identify and separately dispute each factual allegation for it to be considered a disputed factual issue entitling that party to a formal hearing. Section 455.225(4), Florida Statutes (Supp....

...In his petition, Carrow complains that the forced production of the records sought would violate his privilege against self-incrimination guaranteed by the United States and Florida Constitutions. Further, he contends that the Department has failed to comply with the requirements of Section 455.225, Florida Statutes (1983), governing the initiation of disciplinary investigations against licensees and thus he is excused from further compliance with Department directives. In particular, he urges that the Department is conducting an invalid investigation since it has failed to inform him of the nature of the complaint against him contrary to Subsection (1) of Section 455.225, which provides that "When an investigation of any person is undertaken, the department shall notify him of the investigation and inform him of the substance of any complaint filed against him." Carrow relies on this court's decision in Sheppard v....

...to subpoena a non-licensed, non-party witness, who could refuse to comply only under pain of being adjudged in contempt of court under a statute then existing. We have also noted Carrow's argument that since the Department has failed to comply with Section 455.225(1), he should be excused from compliance with the subpoena. As an extension of this argument, Carrow urges this court to order that this present investigation be terminated because the Department has not proceeded in accordance with Section 455.225(1). We have determined that even if Carrow's allegation concerning failure to comply with Section 455.225(1) is true, this error cannot be considered jurisdictional in any sense and Carrow has not demonstrated a need for immediate non-final review at this time....

...In the meantime, should this investigation lead to a finding of probable cause by a probable cause panel of the Board of Medical Examiners, and an administrative hearing be requested, Carrow may urge to the appointed hearing officer that the administrative complaint should be dismissed for failure to comply with Section 455.225(1)....

...But the board decided that if no new hearing was to be conducted, it was required to accept the hearing officer's recommended order and dismiss the complaint against the appellee. Accordingly, a final order to that effect was entered by the board. Pursuant to its authority under Section 455.225(7), Florida Statutes, the department has appealed that order to this court....

...aring. The Board did not err in failing to provide counsel of its own initiative. Thompson next alleges that he raised issues of disputed fact requiring termination of the informal hearing and a formal hearing pursuant to chapter 120, as provided in Section 455.225(4), Florida Statutes (1983)....

...in Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982), the Department chose to disregard the statutory mandate requiring a meaningful probable cause determination before proceeding further toward license revocation. § 455.225(3), Fla.Stat....

...ent. He pleaded guilty to certain counts, was convicted, and sentenced to a federal prison in 1986. He did not notify the appellee of any of these events. On January 23, 1990, a complaint was filed with the Department of Professional Regulation, per Section 455.225(1), Florida Statutes (1989)....

...viation from the prevailing or acceptable standard of nursing practice of another person licensed to practice in this state, or any other violation of chapter 455 or 464, Florida Statutes, or the rules promulgated thereto.” Pursuant to subsections 455.225(3) and (9), Florida Statutes (1981), all proceedings and records made during an investigation prior to a determination of probable cause to file a formal complaint are exempt from the provisions of sections 286.011 and 119.-07 dealing with public meetings and public inspection of official records....

...Further, the initial investigative proceedings are confidential until the department determines that probable cause exists or until confidentiality is waived by the person who is subject to the investigation. A privilege *898 against civil liability is granted by section 455.225(10) “to any complainant or any witness” regarding information furnished with respect to an investigation or proceeding pursuant to this act “unless the complainant or witness acted in bad faith or with malice in providing such i...

...Cope’s complaint could have led to a chapter 120 formal hearing placing Ms. Merrill’s professional license at risk and that the resulting investigation is necessarily quasi-judicial in character, much like the making of a complaint to prosecuting authorities in a criminal case. Moreover, ap-pellee urges, section 455.225(10) expressly recognizes a willful and intentional tort action against a complaining party who furnishes information “in bad faith and with malice.” We are persuaded that the investigation in this case was not a quasi-judicial proceeding....

...Merrill had no absolute right to notice and hearing incident to the confidential investigation before the department made a probable cause determination. Such absolute right arose only upon the filing of a formal complaint after the probable cause determination. §§ 120.-57 and 455.225, Fla.Stat....

...te meet minimum requirements for safe practice. It is the legislative intent that nurses who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state. . But for the provisions of section 455.225(10) creating a qualified privilege from civil liability, as hereinafter discussed, we would be inclined to recognize an absolute privilege against liability for making confidential complaints with the department for the same reasons that complaints about lawyers are absolutely privileged....

...Appellee’s complaint contained a count for "libel and defamation of character” (R. 4), but this count was voluntarily dismissed by appellee shortly after the jury trial began. We do not, therefore, find it necessary to consider what legal effect section 455.225(10) might have with respect to a defamation action predicated on statements made during the investigative phase, including whether such statements are absolutely privileged the same as if given in a judicial proceeding.

interested party for purposes of § 120.54(5).” Section 455.225, in discussing disciplinary proceedings, gives

...Upon further consideration, we sua sponte withdraw that order and grant the motions to dismiss and the petition for writ of mandamus. Contrary to AHCA’s arguments, we find no statutory authority for its appeal of the Board’s final licensing order. While section 455.225(7), when taken out of context, appears to support AHCA’s opinion, a reading of the relevant parts of chapter 455 in pari materia indicates that this subsection per *532 tains only to final orders arising out of disciplinary proceedings....

...Department of Professional Regulation , 633 So. 2d 3 (Fla. 1994); Department of Business Regulation v. Hyman , 417 So. 2d 671 (Fla. 1982); Littleford v. Department of Highway Safety and Motor Vehicles , 814 So. 2d 1258 (Fla. 5th DCA 2002). 17 For purposes of comparison, section 455.225 (4), Fla....

...for personal inspection. 1 Only those records which are "provided by law to be confidential or which are prohibited from being inspected by the public, whether by general or special law," are exempt from the disclosure provisions of Ch. 119 , F.S. 2 Section 455.225 (9), F.S....

...(e.s.) Information exempted from disclosure pursuant to this statute, therefore, may be released to law enforcement or other regulatory agencies. The confidentiality of patient records received by the Department of Professional Regulation during an investigation, however, is not established by s. 455.225 (9), F.S....

...ther documents identifying the patient by name are sealed and may only be used by the department or the appropriate regulatory board in its investigation, prosecution, and appeal of disciplinary proceedings. These provisions operate independently of s. 455.225 , F.S. (1988 Supp.), and, unlike those of s. 455.225 , F.S....

...gencies. Moreover, s. 455.241(2) and (3), F.S. (1988 Supp.), providing for the confidentiality of a particular type of record obtained by the department, is more specific and would prevail to the extent of any conflict over the more general terms of s. 455.225 (9), F.S....

...itation in section 120.52(11) does not apply when a person's status as a prisoner is unconnected or irrelevant to the administrative proceeding involved. Otherwise, the amended definition would have the effect of stripping Yolman of his rights under section 455.225 [2] and section 120.60 [3] to a hearing as a licensee....

...te Archives). The recited intent of the amendment was to preclude litigation on parole matters. We consider this legislative history only in the context permitted in Ellsworth v. Insurance Co. of North America, 508 So.2d 395 (Fla. 1st DCA 1987). [2] Section 455.225(4) addresses the regulation of professions and occupations, and states that in disciplinary proceedings "a formal hearing before a hearing officer from the Division of Administrative Hearings of the Department of Administration shall...

...laurado was paid; and the bid referred to a roofing contractor’s license of another individual. In these circumstances, we see no error in the Department resolving this case in an informal proceeding to reach the result under review. See § 455.225(5), Fla....

...Carter’s arguments include contentions (1) that the fine imposed is erroneous as a matter of law, and (2) that the hearing officer and the board erred in denying his motion to dismiss on grounds that the Department of Professional Regulation (the department) and the board had disregarded the time limits in section 455.225, Florida Statutes (Supp.1986)....

...Based upon the department’s concession that the provisions of the relevant statute require the reduction of the fine to an amount not exceeding $1,000, we reverse the fine and remand for reconsideration. We conclude that Carter’s motion to dismiss was properly denied because he failed to show that violations of the section 455.225 time limitations may have impaired the fairness of the proceedings or the correctness of the action and that he may have been prejudiced thereby....

...mologist for emergency treatment. Carter requested a formal hearing pursuant to section 120.57, Florida Statutes, and also filed a motion to dismiss the complaint on grounds that the department and the board had violated the time limits contained in section 455.225, Florida Statutes (Supp. 1986), in several respects. Following a hearing on Carter’s motion, the hearing officer denied the motion, ruling that the time limits set out in 455.225(2) and (3) were designed to assure adequate reporting between the department, the board, and the board’s probable cause panel, and that any failure to comply with the time limitations was “not jurisdictional,” absent a showing of prejudice....

...gist himself that evening and, if the ophthalmologist was not in the office, it would have been appropriate to leave a message explaining the emergency nature of the circumstances.” Regarding Carter’s motion to dismiss the complaint based on the section 455.225 time limits violations, the order recited that, “Although the record reveals that [the department] has not always timely complied with time limits set out in Section 455.225(2) and (3), Florida Statutes, there has been no showing by [Carter] that he was prejudiced by the delays.” The board entered its final order approving and adopting the findings of fact and conclusions of law in the hearing officer�...

...ng patient’s ability to recall various events. As a result, Carter argues, the delay in hearing the charges deprived him of a fair hearing. Responding to these arguments, the department contends that Carter misunderstands the purpose and intent of section 455.225. Subsections 455.225(2) and (3), the department argues, were only intended to provide for adequate reporting between the department, the board, and the probable cause panel....

...d not immediately refer the patient to an ophthalmologist the night that he saw him. The department also points out that Carter did not claim any inability to recall the details of the incident. We agree with Carter that the time limits set forth in section 455.225, Florida Statutes (Supp.1986), have far more significance in according rights to a licensee such as Carter than has been attributed by the hearing officer, the department, and the board....

...estigate complaints” is not an idle recitation, but a directive to act promptly for the protection of the public as well as to assure timely due process to the licensee. And we must assume that the legislature used the words “time limit” in subsection 455.225(3) advisedly to communicate clear legislative intent that complaints against licensed professionals regulated by the department and its boards should be expeditiously processed without unjustifiable delay....

...complaint and provide protection against the potential prejudice that flows from unreasonable delays, such as loss of documents, unavailability of witnesses, and fading memories. Thus, we decline to treat violations of the time limits in subsections 455.225(2) and (3) as mere technicalities having no significance on the affected licensee....

...However, mandamus is not the exclusive remedy for such violations, and failure to seek mandamus does not necessarily constitute a conclusive waiver of violations of these time limits. An aggrieved licensee may resort to other appropriate means in challenging the violation of the time limits in section 455.225 by the department or a board....

...State, Department of Business Regulation, 362 So.2d 951 (Fla. 1st DCA 1978), appeal dismissed, 372 So.2d 468 (Fla.1979). Carter’s timely filed motion to dismiss in response to the department’s administrative complaint was an appropriate method to challenge violations of the section 455.225 time limits in this case. We decline, however, to treat violations of section 455.225 time limits as requiring dismissal of the complaint or voiding of the order as a matter of law. Rather, we hold that the licensee, as the moving party, has the burden to establish a basis for dismissal by showing (1) that the board or department has violated the time limits in section 455.225, and (2) that the consequent delays may have impaired the fairness of the proceedings or the correctness of the action and may have prejudiced the licensee....

...to follow prescribed procedure, Section 120.68(8) requires a finding that such failure may have impaired “either the fairness of the proceedings or the correctness of the action.” Carter established that the department and the board violated the section 455.225 time limitations....

...Petitioners now seek certiorari review of that ruling. Although the interrogatories address complaints filed with the' Florida Department of Professional Regulation, that entity is the former department that had disciplinary authority over licensed physicians pursuant to section 455.225, Florida Statutes (1995), through the Agency for Health Care Administration. Since 1997, the Department of Health has been responsible for disciplinary matters in the medical profession pursuant to section 455.621, Florida Statutes (1999). See § 455.225 note 1, Fla.Stat....

...t the trial court’s order, as it currently stands, runs afoul of the confidentiality afforded certain complaints filed with the Department and certain information obtained pursuant to investigations by the Department under sections 455.621(10) and 455.225(10)....

...119.07(1) until 10 days after probable cause has been found to *1066 exist by the probable cause panel or by the department, or until the regulated professional or subject of the investigation waives his or her privilege of confidentiality, whichever occurs first.... Section 455.225(10), which applies to the Department of Health, is also entitled “Disciplinary Proceedings,” and contains an identical provision. The intent behind sections 455.621(10) and 455.225(10), as they relate to this proceeding, is to protect physicians from the public’s discovery of unfounded complaints, or complaints without probable cause, that might do irreparable damage to the physician’s professional reputation....

...and the ultimate disposition. In allowing this discovery, the trial court’s order fails to distinguish between complaints filed with the Department that resulted in a finding of probable cause and those that did not. Under sections 455.621(10) and 455.225(10), any complaints filed against petitioners with the Department that did not result in a finding of probable cause, and any information obtained pursuant to an investigation by the Department in connection with such complaints, are exempt f...

...Petition granted in part and denied in part. BLUE, J., and CAMPBELL, MONTEREY, (Senior) Judge, concur. PATTERSON, C.J., dissents with opinion. . Section 455.08, Florida Statutes (1977), and section 455.013, Florida Statutes (1979), no longer ex-i^t. However, they have evolved into section 455.225, Florida Statutes (1997), and section 455.621, Florida Statutes (1999). In 1979, section 455.08 was repealed and section 455.013 was transferred to section 455.225. Section 455.225 is the section under which disciplinary proceedings against physicians used to be brought by the Department of Professional Regulation....

whom are lay persons pursuant s. 475.02, F.S. Section 455.225(3), F.S., as amended by s. 33, ch. 81-302,

...1st DCA 1995); Tucker v. Resha, 634 So.2d 756 (Fla. 1st DCA 1994); Northwest Florida Home Health Agency v. Merrill, 469 So.2d 893 (Fla. 1st DCA 1985); Huszar v. Gross, 468 So.2d 512 (Fla. 1st DCA 1985); Belcher v. Schilling, 349 So.2d 185 (Fla. 3d DCA 1977); § 455.225(11), Fla....

...Public Records, 493 So.2d 480 (Fla. 2d DCA 1986), review denied sub nom., Gillum v. Tribune Company, 503 So.2d 327 (Fla. 1987). And see, Lorei v. Smith, 464 So.2d 1330 (Fla. 2d DCA 1985), review denied, 475 So.2d 695 (Fla. 1985). 5 Section 641.515 (3), Florida Statutes. 6 Section 455.225 (10), Fla. Stat. (1993). And see, s. 455.225 (2), Fla....

...because the memorandum recommended the dismissal of the case against Dr. Fannon at a meeting of the probable cause panel, which was not an adversarial administrative proceeding. The probable cause panel’s decision whether to initiate a disciplinary action under section 455.225, Florida Statutes, is not subject to the requirements of section 120.57, Florida Statutes—which governs adversarial administrative proceedings—because a probable cause determination may be made without the licensee’s presence. Dep’t of Prof’l Regulation, Div. of Real Estate v. Toledo Realty, Inc., 549 So. 2d 715, 719 (Fla. 1st DCA 1989). However, section 120.57 does apply to disciplinary proceedings instituted under section 455.225 once the probable cause panel makes a determination of probable cause and directs the Department to file a complaint or issue a letter of guidance in lieu of a complaint....

...s relating to the discipline of Fannon. To the extent Henderson recommended that the case against Fannon be dismissed, this did not negate the adversarial nature of the administrative proceedings because the probable cause panel was authorized under section 455.225(2) to continue the prosecution regardless of Henderson’s recommendation. B. The section 119.071(1)(d)1....

..."to claim absolute immunity with respect to such acts.” Butz v. Economou, 438 U.S. 478, 515 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978). Here, the Defendants contend that they are entitled to prosecutorial immunity. This Court agrees. Florida Statute § 455.225(4) (2012) describes the Defendants’ prosecutorial role at the Department of Business and Professional Regulation State of Florida....

...ition date; however, the decision to move forward with proceedings against the Debtor was within the discretion of the Defendants. See id. This Court finds that both Defendants were performing their duties mandated by Florida statute. See Fla. Stat. § 455.225 (4)(2012)....

...Regarding the first prong of the Pullman test, the statute must be "fairly subject" to alternate interpretations. To satisfy the second prong, the alternate interpretation must be an "avoiding construction," one that avoids the constitutional problems. Duke, 713 F.2d at 1510. The challenged statute, F.S.A. § 455.225(3) (1983), states in pertinent part: If the probable cause panel finds that probable cause exists, it shall direct the [DPR] to send the licensee a letter of guidance or to file a formal complaint against the licensee....

...at complaint pursuant to the provisions of chapter 120. The Court takes notice of the dearth of Florida authority, Supreme Court or otherwise, construing this or other relevant statutes. The parties agree that the Florida courts have not interpreted § 455.225(3); the Court would be navigating uncharted waters if it adjudicated this case. Notwithstanding this paucity of authority, the Magistrate and Plaintiff noted that Defendants had not come forth with any "fairly subject avoiding construction." [6] However, a review of the applicable statutes indicates that § 455.225 is "fairly subject" to "avoiding constructions." For example, § 455.225(3) states that the letter of guidance shall be sent to the licensee....

...eriodically, through the publication of a newsletter, about information that the department or the board determines is of interest to the industry." Whether Defendants have the authority to publicize the letters of guidance in their newsletter under § 455.225 or § 455.208 is a fair question of law, which may moot the federal constitutional questions....

...Plaintiff's due process might not be violated if the "letters of guidance" were not publicized. Another "fairly subject" construction involves the issue of whether notice and hearing should be required before a letter of guidance is issued or publicized. The language of § 455.225(3) suggests that letters of guidance are not subject to the notice and hearing due process safeguards of Chapter 120....

...to decide problems and issues which arise. F.S.A. Ch. 455. Furthermore, review by federal courts in this area could have a disruptive effect. In our case, it will be necessary to construe several sections, including but not necessarily limited to §§ 455.225(3), 120.57, 120.68, and 455.208....

disclosure pursuant to section 455.225(10), Florida Statutes? In sum: Pursuant to section 455.225(10), Florida

...rd’s deliberations, where a finding was made that probable cause existed to discipline R.W. for “excessively or inappropriately” prescribing a controlled pharmaceutical product. We affirm both rulings for the following reasons. First, although section 455.225, Florida Statutes (1989), requires prior notice to a physician of the substance of an informal complaint filed against him and notice of the commencement of an investigation based on the complaint, there is no prohibition against serv...

...Complaints concerning professionals licensed through the Department of Professional Regulation are submitted to the department, which investigates the facts of the complaint. When the investigation is complete, the department submits its investigative findings to the appropriate board, in this case the Board of Real Estate. § 455.225(2), Fla.Stat....

...Its recommendation is submitted to the department. If the board has found probable cause, the department may choose to file a formal complaint. If the board finds no probable cause, the department has a limited right to file, notwithstanding the board’s finding. § 455.225(3), Fla.Stat....

...ounded complaints.” . The department’s argument is that the first time it is required to notify the licensee of proceedings to suspend or revoke his license is immediately before the formal complaint is filed. This would result in an anomaly, as § 455.225(8) requires the department to periodically notify the complainant of the status of the proceedings, through adjudication and appeal....