STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZIA DURRANI, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3441RX

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

MEDICAL EXAMINERS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on December 6, 1983, in Tallahassee, Florida.

APPEARANCES

For Petitioner: William M. Barley, Esquire

Suite 315, Lewis State Bank Building Tallahassee, Florida 32301

For Respondent: John E. Griffin, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

Petitioner, Zia Durrani ("Petitioner"), challenges the validity of Rule 21M-29.01(2), Florida Administrative Code, contending that the rule is invalid because it alters the plain meaning of statutory language contained in Section 458.313(b), Florida Statutes, by imposing additional requirements to be met by an applicant for licensure by endorsement as a medical doctor. Further, Petitioner maintains that the economic impact statement submitted in support of the challenged rule does not comply with the requirements of Section

120.54(2)(a), Florida Statutes, in that it fails to include a detailed statement of the data or methodology relied upon in preparing the statement, and further fails to address the impact of the challenged rule on the open market.

Respondent, Board of Medical Examiners ("Respondent" or "Board") essentially denies Petitioner's contentions.

Final hearing in this cause was scheduled for December 6, 1983, by Notice of Hearing dated November 15, 1983. At the final hearing, neither party called live witnesses' however, Petitioner offered Petitioner's Exhibits 1 through 4, which were received into evidence.

Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that these proposed

findings of fact are not contained in this order, they have been rejected as being either irrelevant to the issues presented for determination, or as not having been supported by the evidence of record.

FINDINGS OF FACT

1. In June, 1982, a rules workshop was held by the Board. At that time the adoption of a rule was proposed which would define certain statutory phrases included in Section 458.313(1)(d), Florida Statutes, which provides:

   
   

   Has been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX) or is certified by the National Board of Medical Examiners as having completed its examination...

   
   

2. Following the June, 1982, rules workshop, public notice of the proposed adoption of Section 21M-29.01(2), Florida Administrative Code, was published in the July 23, 1982, Florida Administrative Weekly.

   
   

3. In support of Rule 21M-29.01(2), Florida Administrative Code, the Board adopted an economic impact statement which was prepared by the Board's attorney. In its entirety, the economic impact statement provides as follows:

   
   

   1. An estimate of the cost to the agency of the implementation of the proposed action:

      The only cost to the agency by this proposed rule will be the cost of notic- ing and printing.

   2. An estimate of the cost or the economic benefit to all persons directly affected:

      No additional cost or benefits are anticipated.

   3. An estimate of the impact of

      the proposed action on competition and the open market for emoloyment:

      No significant impact on competition or the open market for employment is anticipated.

   4. A detailed statement of the data and method used in making each of the above estimates:

      As this proposed rule merely provides a clearer understanding of what certain phrases mean, no new data or methodology is needed to reach the foregoing con- clusions. (Emphasis added.)

      
      

4. Since the effective date of Rule 21M-29.01(2), Florida administrative Code, approximately two thousand applications- cations for licensure by endorsement have been filed with the Board. Approximately fifteen, or three- fourths of one percent of these applications, have been denied for failure to

   obtain a FLEX-weighted average of 75 percent from one complete- sitting on the examination.

   
   

5. On August 7, 1983, the Board adopted Rule 21M-29.01(2), Florida Administrative Code, which provides as follows:

   
   

   The phrase has been certified by licensure examination of the

   Federation of State Medical Boards of the United States, Inc.' (FLEX)

   or as certified by the National Board of Medical Examiners as having com- pleted its examination as used in Section 458.313(1)(d), F.S., shall mean the following:

   
   

   A FLEX-weighted average of seventy-

   five percent (75.0 percent) from one complete sitting on the FLEX, or an average

   score of seventy-five percent (75.0 percent) on the National Board.

   
   

6. On November 10, 1983, the foregoing rule became effective and thereafter governed the application of Section 458.313, Florida Statutes.

   
   

7. Prior to 1979, the Board had required a 75 percent FLEX weighted average to be obtained from one sitting of the FLEX, the same requirement contained in the challenged rule after its adoption. In 1979, however, legal counsel for the Board advised the Board that it lacked authority to require that an applicant for licensure by endorsement obtain a 75 percent score from only one sitting of the FLEX. Therefore, after 1979, and up to the promulgation of the challenged rule, the Board considered the highest grade obtained for a section of the FLEX examination when a candidate for licensure by endorsement had taken that section more than one time within the time frame required by Section 458.313, Florida Statutes.

   
   

8. On December 21, 1982, Petitioner submitted by mail an application for licensure by endorsement to the Board. The application was received by the Board on December 28, 1982. Sometime between December 28, 1982, and January 19, 1983, the Board requested additional information from Petitioner relating to his professional activities during the period from June, 1967, to June, 1968. Petitioner responded to this inquiry by letter dated January 19, 1983, and therewith provided the Board the requested information. This letter was received by the Board on January 24, 1983. By use of a form dated February 23, 1983, the Board made another request for information from Petitioner relating to two omissions in his application. Petitioner responded to this inquiry by letter dated March 15, 1983, providing the requested information. This letter was received by the Board on March 21, 1983.

   
   

9. Petitioner's application for licensure by endorsement is based upon his previously obtained FLEX certification. Petitioner took the FLEX, a three-part examination, incidental to applying for medical licensure by examination in the State of Illinois. Petitioner sat for the FLEX examination in Illinois on June 13, 14, and 15, 1972 and again on December 6 and 7, 1972. Following conclusion of each examination, Petitioner's responses to the examination questions were forwarded to the National Board of Medical Examiners for evaluation and scoring. On or about January 17, 1973, the National Board of Medical Examiners completed

   its evaluation and scoring of Petitioner's responses to the December, 1972, examination, and on or about January 19, 1973, the scores achieved by Petitioner were forwarded to the State of Illinois. On February 7, 1973, Petitioner was licensed by the State of Illinois, based upon the scores obtained by Petitioner on the June and December, 1972, FLEX examinations.

   
   

10. The weighted average of the scores achieved by Petitioner on which licensure as granted by the State of Illinois was 75 percent. This weighted average was computed by assigning a one-sixth weight to the basic science portion of the FLEX examination taken by Petitioner on June 13, 1972; a two- sixth weight to the clinical science portion of the FLEX examination taken by Petitioner on December 6, 1972; and a three-sixth weight to the clinical competence portion of the FLEX examination taken by Petitioner on December 7, 1972.

    
    

11. By letter dated March 1, 1983, a representative of the Board notified Petitioner that approval of Petitioner's application could not be recommended to the Board since Petitioner had not obtained a score of 75 percent or above at one sitting of the complete FLEX examination. The same letter informed petitioner that his application would be presented to the Board for consideration at its April 9-10, 1983, meeting, and that Petitioner would be notified of the Board's final decision within proximately fifteen days from the date of that meeting.

    
    

12. On April 10, 1983, the Board at a regularly noticed public meeting considered Petitioners application Petitioner's attorney appeared before the Board and addressed the Board on behalf of Petitioner. After considering the information, argument, and legal authority presented by Petitioner's attorney, and the advice and information presented by its staff, the Board, through its chairman declared Petitioner's application was not filed within the ten-year period required by Section 458.313(d), Florida Statutes. The Board also determined that Petitioner had failed to comply with the requirements of Rule 21M-29.01(2), Florida Administrative Code, because he had not scored a FLEX- weighted average of 75 percent or better during only one complete sitting of the FLEX examination.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding. Section 120.56, Florida Statutes.

    
    

14. Section 120.54(14), Florida Statutes, provides, in part, that "[n]o agency has inherent rulemaking authority...." Instead, agencies are limited in the exercise of their powers to those areas authorized by statute. In construing a statute to determine the scope of agency rulemaking authority, the basic rule of statutory construction that words of common usage when used in an enactment should be used in their plain and ordinary sense obtains. See, Freedman v. State Board of Accountancy, 370 so.2d 1168 (Fla. 4th DCA 1979). Further, it is well settled that ". . . an administrative agency may not adopt a rule which conflicts with or modifies an existing statute." Department of Transportation v. Pan American Construction Company, 338 So.2d 1291, 1293 (Fla. 1st DCA 1976). Neither may an agency by rule add a requirement not authorized by statute. Department of Health and Rehabilitative Services v. Petty-Eifert, Case no. AT-113 (Fla. 1st DCA, December 20, 1983). Here, the Board has modified the requirement in Section 458.313(1)(d) Florida Statutes, that an applicant be ". . . certified by licensure examination . . of [FLEX]" by

    impermissibly adding substantive requirements that the applicant also obtain a

    75 percent weighted average on that examination, as well as complete successful passage of the examination in one sitting. The Board's argument that the rule is authorized by the more general rulemaking provisions of Sections 455.217(1), 458.309, and 458.313(4), Florida Statutes, is without merit. As pointed out by the court in Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454, 456 (Fla. 1st DCA 1980):

    
    

    [W]here there is in the same statute a specific provision, and also a general one that in its most

    comprehensive sense would include the matters embraced in the former, the particular provisions will neverthe- less prevail and the general provision must be taken to effect only such cases as are not within the terms of the particular provision.

    
    

15. Petitioner has also asserted the ground for the challenged rule's invalidity certain improprieties in the accompanying economic impact statement. It is concluded, as a matter of law, that Petitioner has failed to demonstrate that any deficiencies in the Board's economic impact statement have impaired the fairness of the proceeding. See, School Board of Broward County v. Gramith, 375 So.2d 340 (Fla. 1st DCA 1979); Plantation Residents Association v. School Board of Broward County, 424 So.2d 879, 881 (Fla. 1st DCA 1982).

    
    

16. Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law, it is determined that Rule 21M-29.01(2), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority by virtue of its having impermissibly modified the terms of Section 458.313(1)(d) Florida Statutes.

DONE AND ORDERED this 3rd day of February, 1984, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1984.

COPIES FURNISHED:

William M. Barley, Esquire Suite 315, Lewis State

National Bank Building Tallahassee, Florida 32301

John E. Griffin, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary

Department of Profesional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code Department of State

Suite 1802, The Capital Tallahassee, Florida 32301

Carroll Webb, Exec. Director Joint Administrative

Prcedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 83-003441RX

Orders for Case No: 83-003441RX