FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D21-985
_____________________________
ANTOINE SALAMEH, D.C.,
Petitioner,
v.
FLORIDA DEPARTMENT OF
HEALTH,
Respondent.
_____________________________
Petition for Writ of Mandamus—Original Jurisdiction.
September 29, 2021
PER CURIAM.
The petition for writ of mandamus is dismissed in part and
denied in part. Petitioner’s request to require the Florida
Department of Health to withdraw its administrative complaint is
dismissed as moot. The Court denies Petitioner’s alternate request
to require the Department to maintain the administrative
complaint and investigative files as confidential. Based on the
proceedings in this case and by operation of section 456.073(10),
Florida Statutes, those records are no longer confidential and are
not exempt from public disclosure.
ROWE, C.J., and OSTERHAUS, J., concur; MAKAR, J., concurs in
result with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
MAKAR, J., concurring in result.
At issue is an emergency petition and confidentiality motion
filed in this Court seeking to prevent the Florida Department of
Health from publicly posting a one count administrative complaint
against Dr. Antoine Salameh because the Department’s probable
cause panel failed to comply with the statutory mandate that it
consider the exculpatory materials that Dr. Salameh had timely
provided in his response. See § 456.073(10), Fla. Stat. (2021). The
Department concedes an error occurred—a serious one that denied
Dr. Salameh his statutory right to defend himself—but contends
that this Court cannot remedy it by issuing a writ of mandamus;
it goes further and asserts that even the Department itself is
powerless to correct the violation by withdrawing the
administrative complaint or withholding its public release until
Dr. Salameh’s exculpatory information can be considered.
Subsequent developments have rendered part of the relief that Dr.
Salameh seeks as moot and part of the relief that Dr. Salameh
seeks as unavailable; yet the important question of statutory
interpretation remains and merits discussion.
I.
An investigation began in June 2020 after the Department
received a patient complaint against Dr. Salameh. Florida law
creates a statutory right for the subject of an investigation to
submit a response to the complaint that the probable cause panel
is required to consider in making the determination whether
probable cause exists and whether a formal administrative
complaint should be filed against the subject. § 456.073(1), Fla.
Stat. (“The subject may submit a written response to the
information contained in such complaint or document within 20
days after service to the subject of the complaint or document. The
2
subject’s written response shall be considered by the probable cause
panel.” (emphasis added)).
Dr. Salameh’s legal counsel submitted a lengthy and detailed
response in July 2020, but it was not provided to the probable
cause panel. Instead, the probable cause panel met eight months
later on March 23, 2021, issuing its probable cause determination
that same day, based solely on the initial investigation without Dr.
Salameh’s response.
Up until a finding of probable cause, the investigative
proceedings are exempt from public disclosure as are the complaint
and information obtained in the Department’s investigation, which
are deemed confidential. 1 A ten-day period is triggered on the date
probable cause is found (here, March 23, 2021), after which
confidentiality is lost and the administrative complaint and
related information become public, meaning a right of public
access attaches. §§ 456.073(4) & (10), Fla. Stat.
On March 24th, the day after the 10-day clock began running,
the Department mailed the administrative complaint to Dr.
Salameh, which was received five days later on March 30th. Upon
receipt of the administrative complaint, Dr. Salameh’s legal
counsel immediately contacted the Department and first learned
that the probable cause panel was not given the response from Dr.
Salameh that it was statutorily required to consider. He asked the
Department in writing to withdraw the administrative complaint
so that Dr. Salameh’s response could be considered; he also asked
1 Subsection (10) states that the “complaint and all
information obtained pursuant to the investigation by the
department are confidential and exempt from [the public records
laws] until 10 days after probable cause has been found to 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.”
§ 456.073(10), Fla. Stat. Subsection (4) states in part that “[a]ll
proceedings of the panel are exempt from s. 286.011 until 10 days
after probable cause has been found to exist by the panel or until
the subject of the investigation waives his or her privilege of
confidentiality.” Id. § 456.073(4).
3
that the Department not post the administrative complaint on its
website and maintain the confidentiality of the investigative
process until the probable cause panel had reviewed and
considered the response. The Department declined, indicating that
it could not do so.
On Friday, April 2nd, legal counsel for Dr. Salameh filed a
petition with this Court seeking a writ of mandamus to force the
Department to withdraw the administrative complaint to prevent
it from becoming public and causing irreparable harm arising from
the Department’s violation of his right to have his response
considered as section 456.073(1) requires; a motion to maintain
these proceedings as confidential was also filed. The petition was
filed at 5:23:49pm but was not immediately served on the
Department. Nor was the petition filed as an “emergency” or a
“time sensitive” matter, which are both designations available on
the Court’s e-filing portal.
As a result, the petition was not acted upon until the following
Monday, April 5th, when, at 9:37am, the clerk’s office sent out an
acknowledgement letter and a show cause order directed to the
Department soon followed. At that point, however, the
Department had just publicly posted administrative complaints on
its website, including the one against Dr. Salameh.
Two days later, on April 7th, the Department filed its response
to this Court’s order to show cause, admitting that a violation
occurred. It urged, however, that because the probable cause panel
now had Dr. Salameh’s response to be considered at a rehearing
set for Wednesday, April 14th, that judicial intervention was
unnecessary. Issuance of a writ of mandamus was unnecessary,
the Department contended, because the appropriate remedy was
to rehear the matter with the formerly excluded response from Dr.
Salameh. The Department also contended that its public posting
and the public nature of the administrative complaint barred it, as
well as a court, from taking any remedial action; it pointed out that
if no probable cause was found on rehearing, the “Administrative
Complaint will be dismissed and removed from the Petitioner’s
licensure profile.” Dr. Salameh filed an authorized reply, stating
that he was irreparably harmed without judicial action because
the wrongful public disclosure of the administrative complaint
4
arose from a blatant due process violation that courts are
empowered to remedy.
This Court set oral argument for Monday, April 12th, to
explore the important issues in this case as well as what appeared
at the time to be “the disclosure of the administrative complaint at
issue during the pendency of this proceeding.”
Two days after oral argument, the probable cause panel met
to rehear its initial finding of probable cause, this time considering
Dr. Salameh’s response for the first time. According to a status
report filed in this case, the panel on rehearing found insufficient
evidence to support a finding of probable cause against Dr.
Salameh and thereby dismissed the case and removed the formerly
filed administrative complaint from its website; the status report
did not indicate whether the administrative complaint remained a
publicly available record.
In response, this Court issued a show cause order seeking to
determine whether to dismiss this proceeding as moot “in light of
the probable cause panel’s dismissal of the administrative case due
to insufficient evidence to support a finding of probable cause or,
alternatively, whether an exception to mootness exists.” Dr.
Salameh urges that we address the merits because of the collateral
legal consequences of a decision. Specifically, Salameh asks for a
merit determination that compels the Department “to convert the
documents at issue [including audio from the first hearing] from
public record[s] to confidential.” The Department counters that (a)
the disciplinary action has been dismissed; and (b) “there is no
statutory provision that would permit the Department to [prevent
public disclosure of its records as to Salameh).” The Department
also says that the “law clearly provides that once probable cause is
found, the disciplinary proceedings become public record. There is
no part of section 456.073(10) that provides that if the Department
errs in its prosecution and probable cause is improvidently found,
the Department can then reassert confidentiality.”
II.
A.
5
Because of the importance of the legal scope of the
Department’s authority to prevent a serious due process violation,
the merits of the central legal issue presented should be addressed
despite the subsequent hearing absolving Dr. Salameh. Whether a
writ of mandamus should issue and require the Department to
withdraw the administrative complaint and prevent its public
disclosure depends on the nature of Department’s legal duties in
situations where it becomes aware of a due process violation in a
probable cause proceeding. That’s because the writ is a judicial
command that a governmental officer or governmental entity
perform an act that the officer or entity has a duty to perform and
that is ministerial or compulsory in nature. See Conner v. Moran,
278 So. 3d 790, 793 (Fla. 1st DCA 2019) (“The writ of mandamus
is available only to compel a non-discretionary ministerial duty by
a public official where the petitioner has no other legal remedy to
obtain the relief sought.”); Rhea v. Dist. Bd. of Trs. of Santa Fe
Coll.,
109 So. 3d 851, 855 (Fla. 1st DCA 2013) (“Mandamus has
been described as . . . ‘a remedy where public officials or agencies
may be coerced to perform ministerial duties that they have a clear
legal duty to perform.’” (citation omitted)). If the officer or entity
has discretion under the law to not perform the act, the writ may
not issue; if the officer or entity has a duty to act, but has discretion
in how to act, the writ may issue but may not compel the officer or
entity to exercise its discretion in a specific manner. State ex rel.
Allen v. Rose,
167 So. 21, 23 (Fla. 1936) (“Thus, while mandamus
may be invoked to compel the exercise of discretion, it cannot
compel such discretion to be exercised in any particular way. . . .
Where the duty is discretionary, mandamus does not lie.”); see also
Hunter v. Solomon,
75 So. 2d 803, 806 (Fla. 1954) (“Mandamus in
proper cases may be used to compel a public agency to exercise a
discretion vested in it but generally it cannot be used to direct the
public agency to act only in a certain manner.”). The exercise of
discretion must always be within the parameters of the applicable
law. State ex rel. Beacham v. Wynn,
28 So. 2d 253, 254 (Fla. 1946)
(“Discretion, in legal terminology, is not an unbridled prerogative
possessed by either ministerial or judicial officials. It connotes the
exercise of opinion and judgment circumscribed by law. Where the
right is indisputable there is no room for the exercise of discretion
other than in keeping with the law.”).
B.
6
To begin, the Department had a problem when it learned that
the probable cause panel did not have and thereby did not consider
Dr. Salameh’s timely-filed response in its assessment of whether
probable cause existed. Dr. Salameh’s counsel informed the
Department that the probable cause panel acted outside the
statutory framework by failing to consider Dr. Salameh’s response,
a point the Department did not—and does not now—dispute. Thus,
even before Dr. Salameh filed his petition, the Department knew
of the violation, but told Dr. Salameh that it could do nothing to
prevent the pending public disclosure of the administrative
complaint and its potential to irreparably harm his professional
reputation. Sheppard v. Bd. of Dentistry,
385 So. 2d 143, 145 (Fla.
1st DCA 1980) (“The harm resulting to the holder of a professional
license due to the filing of an ill-founded complaint can be
irreparable and far outweigh any inconvenience or time lost by
meeting the pre-filing requirements of the statute.”).
What can the Department or probable cause panel do when a
serious due process problem comes to their attention after a
finding of probable cause but before public release of the
administrative complaint? At oral argument, the Department said
that neither it nor the probable cause panel has any authority or
discretion to stop the release of an administrative complaint once
probable cause has been found, no matter how conspicuously
defective or irreparably harmful it is. For example, the
Department believes it is powerless to stop public disclosure of an
administrative complaint, even if it knows it is against the wrong
person and irreparable reputational harm to that person will
result. In its view, once the ten-day countdown clock starts upon a
technical finding of probable cause, there is no turning back; when
the trolley leaves the station, it can’t be stopped or sidelined even
if it is on a perilous path. 2
2 See Trolley problem, Wikipedia
(https://en.wikipedia.org/wiki/Trolley_problem) (“The trolley
problem is a series of thought experiments in ethics and
psychology, involving stylized ethical dilemmas of whether to
sacrifice one person to save a larger number” attributed to “a 1976
philosophy paper by Judith Jarvis Thomson”); see also Judith
7
The view that the Department and the probable cause panel
have no authority or discretion whatsoever to prevent the public
disclosure of an administrative complaint under the flawed
probable cause process of this case is itself flawed. Modest
alternatives are available to prevent a needless train wreck, such
as withdrawing the administrative complaint or holding it in
abeyance so that the Department can comply with the statutory
mandate that a licensee’s response be considered prior to a
probable cause determination, thereby avoiding a serious due
process violation. It bears repeated emphasis that the statute says
the licensee’s “written response shall be considered by the probable
cause panel,” § 460.073(1), Fla. Stat., making it a crucial and
necessary part of the assessment of whether probable cause is
established at all. Responses must be considered—as the
legislation commands—because they provide “opportunities for the
licensee to demonstrate to the probable cause panel why the
allegations are unfounded and do not support a formal
Administrative Complaint filed against the licensee by the
Department.” Therese A. Savona, Uncharted Waters? An Overview
of Navigating Department of Health Disciplinary Proceedings, 39
No. 2 Trial Advocate (FDLA) 47, 48 (2020).
The Department claims that a rehearing by the probable
cause panel—after public disclosure of the administrative
complaint had already occurred—fulfills its duty that Dr.
Salameh’s response be considered. Premature public disclosure of
an administrative complaint issued via a legally flawed probable
cause proceeding, however, is not what the Florida legislature
envisioned in (a) erecting a strict wall of confidentiality around the
disciplinary process and (b) mandating consideration of a licensee’s
response as a critical part of that process. A finding of probable
cause is premised on statutory compliance, including the mandate
that a licensee’s response be considered in a probable cause
proceeding. See Sheppard,
385 So. 2d at 145 (requirement of notice
to licensee before filing a license revocation complaint “is to allow
a prompt repudiation by the licensee which could reveal, for
example, mistakes in the identification of the licensee,
Jarvis Thomson, The Trolley Problem,
94 Yale L.J. 1395, 1415
(1985) (further refinement of her earlier work).
8
misinformation or fictitious claims, rendering the complaint ill-
founded”). A belated rehearing—after potentially irreparable
harm from public disclosure of a flawed administrative complaint
has occurred—is no substitute for strict compliance with the
mandatory duty that a timely-filed response be considered as a
part of the confidential probable cause proceedings. See id. at 146
(noting that “the belated notice and hearing procedure ordered
below is not a substitute for compliance with [statutory
requirements] and will not defeat the licensee’s right to dismissal
of the complaint if noncompliance is properly and promptly
asserted”). No judicial remedy can undo the harm that might
otherwise result.
The language and structure of the disciplinary statute reflects
a legislative mandate that a licensee’s response be considered
during the probable cause process, which must remain confidential
until statutory pre-requisites are met. To ensure that legislative
intent is achieved, Florida law provides that governmental bodies
have the power to take actions that are “‘necessarily or reasonably
incident to the powers expressly granted.’” Robinson v. Dep’t of
Health,
89 So. 3d 1079, 1082 (Fla. 1st DCA 2012) (quoting Hall v.
Career Serv. Comm’n,
478 So. 2d 1111, 1112 (Fla. 1st DCA 1985)).
The disciplinary statute unequivocally requires a probable
cause panel to consider a timely-filed response from a licensee,
making it reasonable, if not necessary, that an administrative
complaint be withdrawn and a proceeding held in abeyance until
a timely-filed response is made available to and considered by the
probable cause panel. To do otherwise would thwart the central
purpose of the statute, which accords confidentiality and due
process to licensees until the point in time that a proper disposition
of an administrative complaint is made. Just as this Court has held
that an agency has an implied power to dismiss an untimely filed
complaint, it is likewise the case that the Department has the
implied power to withdraw or hold an administrative complaint in
abeyance to ameliorate a due process violation of the type at issue
here. Robinson,
89 So. 3d at 1082 (“Dismissal of a complaint [that
the Florida Commission on Human Relations] believes to be
untimely is a power necessarily incident to the power to review
timely complaints.”).
9
This limited power is necessarily implied from the authority
granted to ensure a confidential and fair probable cause process; it
is not a newfangled power or one that exceeds what the Legislature
granted. Indeed, because a response “shall be considered” during
the probable cause proceedings, it is an extremely modest and
necessarily implied remedial power to put the process on hold to
prevent not only irremediable harm to licensees but to protect the
confidentiality and integrity of the process itself when serious but
correctable errors are discovered prior to public disclosure.
Prudence weighs in favor of the Department pressing the pause
button when this type of serious violation comes to its attention;
the failure to do so has inauspicious results (as this case proves)
and can result in reduced confidence in the disciplinary process
itself, neither of which accord with legislative intent.
Withholding public disclosure of the administrative complaint
until a proper probable cause determination is made under the
circumstances of this case does no harm to the statutory
framework including the public meetings and records laws, both of
which play important roles in Florida. Public disclosure of an
administrative complaint is premised, however, on strict statutory
compliance to safeguard confidentiality and due process concerns.
A finding of probable cause made without consideration of a
timely-filed response is—at its core—an invalid action that
potentially can be remedied if discovered in time. Public disclosure
should not occur if the failure to consider a timely-filed response
compromises the accuracy and integrity of the probable cause
process, which it did in this case. 3
3 In reaching this conclusion, it is unnecessary to address
whether the initial probable cause decision was “substantially
justified” because that question only arises where a licensee seeks
attorneys’ fees under section 57.111(3)(e), Florida Statutes (2020).
See, e.g., Fish v. Dep’t of Health, Bd. of Dentistry,
825 So. 2d 421,
423 (Fla. 4th DCA 2002) (upholding determination that initial
finding of probable cause was substantially justified,
notwithstanding error in failing to consider licensee’s response,
because subsequent dismissal was not based on “any procedural
irregularity” but was due to death of key witnesses; though
probable cause panel should have considered the response, no
10
The Department points out that section 456.073(4) allows it
to not prosecute a case if it finds that “probable cause has been
improvidently found by the panel.” § 456.073(4), Fla. Stat. It then
becomes the board’s responsibility to decide whether to “file a
formal complaint and prosecute the complaint pursuant to chapter
120.” Id. This statutory authority allows the Department to assess
the basis for a probable cause determination and deem it
improvident, which is different in kind from learning that a
licensee’s timely-filed response wasn’t even considered as the
statute mandates, rendering a finding of probable cause
potentially invalid. The former is the Department’s power to
reassess the evidentiary record and decline prosecution; the latter
is a failure to comply with a crucial part of the disciplinary statute
itself, potentially nullifying the probable cause determination. As
such, subsection (4) in no way addresses the current situation; nor
does it foreclose the Department from exercising its implied power
to remedy a serious violation of the type presented that is
discovered prior to public disclosure of an administrative
complaint. Nothing in the disciplinary statute establishes that the
Department’s powers to decline prosecution of an “improvident”
probable cause determination precludes its exercise of authority to
correct a due process violation that comes to its attention after a
probable cause determination but before public release of an
administrative complaint.
C.
Finally, the question of remedy is muddied in this case due to
the administrative complaint having been publicly disclosed
without consideration of Dr. Salameh’s response. As a preliminary
matter, it initially appeared that a misstep may have occurred
because public disclosure of the administrative complaint occurred
after Dr. Salameh’s petition in this Court had been filed, raising
the question of whether the Department should have refrained
other evidence existed that the panel “would have reached a
different result had it considered his response.”).
11
from doing so given the judicial relief sought was to prohibit
disclosure.
As it turns out, the petition—though electronically filed on the
evening of Friday, April 2nd—did not come to the Department’s
attention until after public disclosure of the administrative
complaint had already occurred. The Department was not provided
a copy of the petition at the time of its filing on Friday and only
became aware of it after receiving the electronic acknowledgement
from the clerk’s office on Monday morning. By then, the
Department—which had pre-arranged at the prior week’s end for
the electronic release of administrative complaints on the
following Monday—was unable to prevent release, which had just
occurred.
In addition, the petition was filed without designating it as an
“emergency” or a “time sensitive” matter as the e-filing portal
permits; had it been designated as such, the clerk’s office would
have acted quickly in bringing the matter to the chief judge’s or
panel’s attention to assess whether actions, such as a show cause
order or a stay, were appropriate. 4 Moreover, Dr. Salameh did not
seek a stay. Had he sought and obtained a stay or had this Court
issued one on its own volition (as sometimes occurs when
disclosure of confidential information is at issue), the Department
would have no discretion; public disclosure would be prohibited
pending disposition of proceedings in this Court; and issuance of a
writ of mandamus to require consideration of Dr. Salameh’s
4 Contributing to the harried filing of the petition is that the
Department mailed the administrative complaint to Dr. Salameh,
resulting in a five-day delay that partially impaired the ability of
his counsel to contact and potentially correct the violation with the
Department or seek remedial judicial action. Time was critical
because the Department steadfastly refused to withhold public
release of the administrative complaint, despite the violation,
thereby leaving Dr. Salameh with less than five days to pursue the
sole avenue of available relief: the judiciary. Had he received notice
of a forthcoming administrative complaint on the day probable
cause was found, he would have had almost a week of additional
time to act to protect his reputational interests in the court system.
12
response—as mandated by statute—would have been an available
option.
At this point, because the administrative complaint has been
publicly disclosed and the probable cause panel has subsequently
reconvened and reversed its finding of probable cause based on its
consideration of Dr. Salameh’s response, a writ of mandamus to
require compliance with the mandatory duty to consider the
response as required by the disciplinary statute would serve little
purpose. Harm done by the disclosure of the ill-founded
administrative complaint can’t be judicially repristinated; the bell
once rung can’t be shushed. Dr. Salameh, despite having his
statutory rights violated and his reputation initially cast in doubt,
has now been absolved by the finding of no probable cause for the
alleged incident, thereby nullifying the administrative complaint
against him in this case and restoring his stature vis-à-vis the
allegations made. Better to explain what happened in this
administrative proceeding now rather than allow erroneous public
records to subsist to be dredged up later without rejoinder and full
explanation.
_____________________________
Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy & Ford, P.A.,
Orlando, for Petitioner.
Sarah Young Hodges, Chief Appellate Counsel, Louise R. Wilhite-
St. Laurent, General Counsel, and Kimberly Lauren Marshall,
Assistant General Counsel, Florida Department of Health,
Tallahassee, for Respondent.
13
