STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA SOCIETY OF OPHTHALMOLOGY, ) FLORIDA MEDICAL ASSOCIATION, ) WILLIAM J. BROUSSARD, M.D., TULLY )
PATROWICZ, M.D., and BAXTER H. ) BYERLY, M.D., )
)
Petitioners, )
)
vs. ) CASE NO. 87-1510RX
)
STATE OF FLORIDA, BOARD OF ) OPTOMETRY and STATE OF FLORIDA, ) DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondents, )
and )
) FLORIDA OPTOMETRIC ASSOCIATION, ) FRANK A. BROOME, O.D., and )
HOWARD J. BRAVERNAN, O.D., )
)
Intervenors. )
)
FINAL ORDER
Notice was given and on October 5 and 6, 1987, a formal hearing was held in accordance with Section 120.57(1), Florida Statutes. In particular, the hearing was conducted to entertain challenges as contemplated by Sections 120.54 and 120.56, Florida Statutes, to Rule 21Q-10.001, Florida Administrative Code, and an application form employed by the State of Florida, Board of Optometry in consideration of the licensure of certified optometrists as contemplated by Sections 463.0055(1)-(3), Florida Statutes (1986 Supp.), which the Petitioners consider to be an unpromulgated rule. The parties have presented proposed final orders and associated argument. These matters have been considered in the preparation of the Final Order. In the last analysis, Petitioners and the State of Florida, Department of Professional Regulation (DPR), are allied in their challenge to the rule and form. The State of Florida, Board of Optometry (Board), and the Intervenors have acted in defense of the rule and form. In some instances, the proposals by the parties have been utilized in fashioning the Final Order. Otherwise, an explanation is given for rejecting proposed facts within these suggested final orders through an appendix to the Final Order. In addition, the transcript of proceedings and exhibits have been examined before the Final Order was prepared.
APPEARANCES
For Petitioners: Kenneth G. Oertel, Esquire
Segundo Fernandez, Esquire Christopher Bryant, Esquire OERTEL & HOFFMAN, P.A.
Post Office Box 6507 Tallahassee, Florida 32314-6507
For Respondent: William O'Neil, Esquire State of Chester G. Senf, Esquire
Florida, Department of Professional Regulation Department of 130 North Monroe Street, Room 150 Professional Tallahassee, Florida 32399-0750 Regulation
For Respondent: Allen R. Grossman, Esquire State of Office of Attorney General Florida, Board Room 1601, The Capitol
of Optometry Tallahassee, Florida 32399-1050
For Intervenors: Leonard A. Carson, Esquire
Michael Wm. Morrell, Esquire CARSON & LINN, P.A.
Mahan Station 1711-D Mahan Drive
Tallahassee, Florida 32308 ISSUES
The issues for consideration are those promoted by a petition in challenge to Rule 21Q-10.001, Florida Administrative Code, and to the application form used by the Board in its licensure of certified optometrists. The attack on the rule is announced in Count I to the Petition and the allegations against the form may be found in Count II. Within Count I, it is alleged:
Rule 21Q-10.001, Florida Administrative Code, is an invalid exercise of delegated legislative authority because it indicates that coursework and clinical training in general and ocular pharmacology received by the optometrist applicant during his basis optometric curriculum is acceptable as proof of partial or complete compliance with the requirements of Section 463.0055(2)(a), Florida Statutes (1986 Supp.) The acceptability of coursework from the applicant's basic optometric curriculum is not set forth in the statute, and is contrary to and expansive of both the letter and intent of the authorizing statute.
Rule 21Q-10.001 is also an invalid exercise of delegated legislative authority because it deems as acceptable for the requisite one year of supervising experience in a clinical setting the obtaining of such experience in an academic or non academic
environment. The Rule further indicates that one year of experience in an academic setting is "understood to mean three quarters or two semesters," while one year of supervising experience in a non academic setting is understood to mean a 12 month period. This is contrary to and expansive of the letter and intent of the authorizing statute.
Rule 21Q-10.001 is also an invalid exercise of delegated authority because it purports to accept as satisfaction of the statutory requirement of "successful comple- tion of an examination approved by the Board which tests knowledge of general and ocular pharmacology" an examination received by the optometrist while in optometric school or at the conclusion of a postgraduate course.
This is contrary to and expansive of the letter and intent of the authorizing statute.
In short, the Rule authorizes the mere substitution of optometry school training for all of the additional require- ments which the legislature has indicated must be met for an optometrist to be designated a "certified optometrist." Rule 21Q-10.001 thus alters, lessens the require- ments of, and otherwise amends Section 463.0055, Florida Statutes (1986 Supp.)
As to Count II, it is alleged:
The application form used by the Board to determine whether optometrists are "qualified" to be designated as certified optometrists purports to establish four categories of potential grounds for desig- nation as a certified optometrist. Category one is for those optometrists relying solely on the coursework and clinical training in optometry school, and recognizes as evidence of certificate ability a diploma from a given optometry school in a given year or in a subsequent year. Category two optometrists are those seeking designation based on graduation from certain optometry schools in a given year, combined with completion of continuing education courses since graduation. Category three applicants rely on having completed specific college courses at specific optometry schools either alone or in combination with continuing education courses offered by the Florida Optometric Association following graduation. Category four applicants for certification are those who do not meet the requirements of the prior three categories, but claim certificability based on documented coursework and clinical training.
The application form is sub- stantially more detailed than the Board Rule, and imposes requirements and solicits information not specifically required by the Rule or by Statute. Specifically, neither the statute nor rule require proof of graduation from a designated optometry school in a given year. The result is more lenient requirements for coursework and education than the statute requires. Allowing proof of graduation in a given year as evidence of successful completion of certain optometric coursework is contrary to and greatly expansive of the letter and intent of the authorizing statute. It allows substitution of a diploma for the requirement of completion of 110 hours of approved transcript quality coursework and clinical training in general and ocular pharmacology, which the Florida Legislature has seen fit to require of applications for certification.
The application form being used by DPR staff and the Board in the certification process is an agency statement of general applicability that implements, interprets, or prescribes law or policy. It also imposes requirements and solicits information not specifically required by statute or existing Board rule. The form is therefore a "rule" as defined by Section 120.52(15), Florida Statutes.
The application form has not been adopted as a rule pursuant to Section 120.54, Florida Statutes (1986 Supp.), as required by Chapter 120, Florida Statutes (1986 Supp.). It therefore cannot be used in the certification process as it is presently being so used.
There was also included within this petition document a Count III which by its terms sought the participation by the Petitioners in the process of licensing certified optometrists, through a Section 120.57(1), Florida Statutes, hearing. Petitioners expressed the belief that they were entitled to this relief based upon a consideration of Chapters 120, 458 and 463, Florida Statutes. It was concluded that this form of relief was not available through a Division of Administrative Hearings proceeding and no consideration has been given to those allegations set forth in Count III.
FINDINGS OF FACT
Case History
On April 10, 1987, Petitioners filed a Petition for Formal Administrative Hearing and for Administrative Determination of Invalidity of a Rule as described in the Issues statement to this Order.
On April 20, 1987, Intervenors requested intervention.
On April 20, 1987, Respondent Board moved to dismiss the petition filed by the Petitioners and to stay the proceedings.
On April 27, 1987, oral argument was held on the petition to intervene, the motion to dismiss, and the request to stay proceedings.
On April 29, 1987, an order was entered which granted the intervention, and denied the motions to dismiss and to stay.
The case was originally scheduled to be heard on May 5 and 6, 1987. Upon stipulation and agreement of the parties to waive the requirement set forth in Section 120.56, Florida Statutes, calling for the conduct of the final hearing within 30 days of assignment of this matter to a Hearing Officer, the case was rescheduled for hearing to be held on June 11 and 12, 1987.
The First District Court of Appeal in Dept. of Professional Regulation, et al. v. William J. Broussard, M.D., et al., Case Nos. 87-238/87-260, issued an order staying the conduct of the hearing to be held on June 11 and 12, 1987.
The stay was eventually dissolved as a result of an order entered by the First District Court of Appeal on July 23, 1987, in the aforementioned appellate court cases. The administrative case was then returned to an active status before the Division of Administrative Hearings and scheduled for hearing on dates including October 5 and 6, 1987, the eventual dates for hearing.
Prior to the commencement of the hearing, Intervenors sought action on a motion to dismiss the Florida Medical Association as a petitioner. That motion was denied.
Another preliminary matter related to the September 2, 1987, request for production of documents from the physician petitioners. On October 2, 1987, Petitioners had objected to that request for production. On October 5, 1987, Intervenors had filed a motion to compel physician petitioners to produce certain economic information and financial records related to allegations of standing. Prior to the commencement of the hearing on October 5, 1987, and in the face of remarks by counsel for the Petitioners, it was determined that the physician petitioners did not intend to advance a claim of economic injury in the sense of a change in economic circumstances in their practices with the advent of the licensure of certified optometrists. As a consequence, the requested production became a moot question and the motion to compel was denied.
Enabling Legislation
In 1986, the Florida Legislature reenacted the Optometry Practices Act, as Chapter 86-289, Laws of Florida. Section 6 of that Act set forth the opportunity for practitioners licensed as certified optometrists to administer and prescribe topical ocular pharmaceutical agents for the diagnosis and treatment of ocular conditions of the human eye and its appendages. The specific provisions which establish the requirements for certification are announced in Section 463.0055(2), Florida Statutes (1986 Supp.) as:
The board shall issue certification for the administration and prescription of topical ocular pharmaceutical agents in the diagnosis and treatment of ocular conditions to licensed practitioners who have completed the appropriate forms as required by the
board and who have submitted proof of fulfilling all of the following requirements:
Successful completion of at least 110 hours of approved transcript-quality coursework and clinical training in general and ocular pharmacology, as determined by the board. However, no course in pharmacology shall be approved by the board unless the course is conducted by an institution which has facilities for both the didactic and clinical instructions in pharmacology and which is accredited by a regional or professional accrediting organization that is recognized and approved by the Council on Post-secondary Accreditation or the United States Department of Education.
Completion of at least 1 year of supervised experience in differential diagnosis of eye disease or disorders as part of the optometric training or in a clinical setting as part of optometric experience.
Successful completion of an examination approved by the board which tests knowledge of general and ocular pharmacology with particular emphasis on the topical applica- tion of pharmaceutical agents for the eye and the side effects of such pharmaceutical agents.
A related provision at Section 463.002(9), Florida Statutes (1986 Supp.), describes "transcript-quality" as follows:
(9) "Transcript-quality" means a course which is in conjunction with or sponsored by a school or college of optometry or equivalent educational entity, which course is approved by the board and requires a test and passing grade.
Section 463.0055(3), Florida Statutes (1986 Supp.), pertains to the payment of fees associated with becoming a certified optometrist. It states:
(3) The board shall establish by rule an application fee, not to exceed $250, and an examination fee, not to exceed $250, for certification pursuant to this section.
Section 463.0055(4), Florida Statutes (1986 Supp.), establishes a formulary committee which will assist DPR in identifying those topical ocular pharmaceutical agents that may be utilized by the certified optometrist in his or her practice.
The decision to enact legislation providing for certification of optometrists to use topical ocular pharmaceutical agents for the diagnosis and treatment of ocular conditions in the human eye was passed in a setting in which optometrists within Florida had historically been involved with the administration and prescription of diagnostic and therapeutic drugs. The
overall facts of this case demonstrate that this legislation was designed to specifically set forth the framework for allowing the employment of those pharmaceutical agents or drugs in the future. Adoption of Rule 21Q-10.001, Florida Administrative Code, etc.
In an attempt to effectuate the purposes of Section 463.0055(2), Florida Statutes (1986 Supp.), the Board adopted Rule 21Q-10.001, Florida Administrative Code. The rule was first noticed for adoption in Vol. 12, No. 38 of the Florida Administrative Weekly, published September 19, 1986. The rule was adopted by the Board and filed with the Secretary of State on October 31, 1986. The effective date of Rule 21Q-10.001, Florida Administrative Code, is November 20, 1986.
In the issue of the Florida Administrative Weekly described in the previous paragraph, the Board published amendments to the rule pertaining to fees which is Rule 21Q-6.001, Florida Administrative Code. Those amendments were filed with the Office of the Secretary of State on October 31, 1986. They became effective on November 20, 1986. Within that set of amendments on fees, the Board created a $100 application fee "for certification as a certified optometrist" and a $250 examination fee "for certification as a certified optometrist."
The text of Rule 21Q-10.001, Florida Administrative Code, states: 21Q-10.001 Application for Certification.
To be certified to administer and prescribe topical ocular pharmaceutical agents a licensed practitioner must submit a completed application form provided by the Board, remit the application fee for certification speci- fied in Rule 21Q-6.001(9), and demonstrate compliance with the following requirements:
Successful completion of at least 110 hours of Board approved transcript quality coursework and clinical training in general and ocular pharmacology conducted by an accredited institution which has facilities for both didactic and clinical instruction in pharmacology. The institution must document the applicant's successful completion. The Board will accept coursework and clinical training in general and ocular pharmacology received by the applicant during his basic optometric curriculum or at postgraduate courses if this coursework and training was provided by a Board approved school of optometry or equivalent educational entity;
Completion of at least one (1) year of supervised experience in differential diagnosis of eye diseases or disorders. The one year of supervised experience shall be received either during optometric training or in a clinical setting as part of optometric experience. The requisite one year of supervised experience in a clinical setting may be obtained in an academic or non- academic environment. For the purpose of
this rule, one year of supervised experience in an academic setting is understood to mean three (3) quarters or two (2) semesters and one (1) year of supervised experience in a non-academic setting is understood to mean a twelve month period;
Successful completion of a Board approved examination testing knowledge of general and ocular pharmacology with particular emphasis
on the topical application of pharmaceutical agents. In order to be approved by the Board, the examination must have been administered in a Board approved school of optometry or at the conclusion of a post- graduate course conducted by a Board approved school of optometry, and the examination must be approved by the Board.
Board Activities in Certifying Optometrists
In preparation for implementing the statute, in July 1986 Board Chairman Edward K. Walker, O.D., appointed Jon S. Jacobs, O.D., as an ad hoc committee of one to begin gathering information from the schools and colleges of optometry. Dr. Jacobs' mission was to gather information from the schools and colleges to present to the Board so that it could determine whether the level and quality of the education, curriculum, examinations and supervised clinical experience in differential diagnoses received by optometry graduates of the various schools satisfied the criteria contained in Section 463.0055(2), Florida Statutes (1986 Supp.).
Licensed practitioners of optometry in Florida have been educated at eighteen different schools and colleges of optometry. Dr. Jacobs contacted either the president or dean of each of these institutions in order to obtain information for the Board's consideration. On August 1, 1986, Dr. Jacobs wrote each of the schools and colleges. In his letter Jacobs cited the language of the statute and asked the schools to respond to the different sections of the law by providing the Board with information concerning whether and when graduates of their institution satisfied the statutory criteria. He requested specific information from the schools concerning how many clock hours of coursework in general and ocular pharmacology they required and in what years they required them. He inquired whether or not students had to pass the pharmacology courses in order to graduate. He asked that the schools provide the Board with the pharmacology examinations given to their graduates. Dr. Jacobs also requested that the schools provide the Board with the information which would establish the beginning year in which the institution required of their graduates one year of supervised experience in differential diagnosis of eye disease or disorders. In addition to requesting information concerning the school's basic curricula leading to the O.D. degree, Dr. Jacobs also requested information on postgraduate and continuing education coursework offered by the institutions.
The Board interprets the 110-hour requirement as referring to "clock hours" and not to "credit hours." The Board has determined that the accreditation of a school is evidence of its having facilities for both the didactic and clinical instructions in pharmacology. The optometric schools in question are accredited.
All of the schools responded with information from which the Board could determine if and when the school met the 110 clock hour requirement and the requirement of one year of supervised experience in differential diagnosis.
All of the schools provided information to the Board which indicated that their students were required to pass the pharmacology courses in order to graduate and therefore satisfied the "successful completion of at least 110 hours" criterion.
Follow-up correspondence and telephone conversations with the presidents or deans were necessary to clarify the Board's request and verify the school's response. Many of the schools and colleges expressed concern about the confidentiality of the examinations which the Board had requested. The Board assured the schools that it would not be reviewing the exams for any purpose other than complying with its statutory responsibilities.
The information was submitted to the Board in various forms by the schools and colleges and included catalogs, lists of pharmacology courses, and narrative or individual curriculum descriptions of pharmacology courses offered by the institutions.
All of the schools and colleges submitted examinations to the Board, but not all examinations given in the relevant courses. Some of the schools submitted as many as eight examinations. The exams submitted were administered by the schools at various times. Many of the schools submitted information which indicated that they maintain computerized banks of examination questions from which they draw randomly in constructing examinations. In some instances, the Board received representative examinations because all of the exams the school had ever administered were not available.
With the assistance of the Board's executive director, Dr. Jacobs compiled the information he had gathered from the various schools in chart form and presented it to the Board for its consideration.
The ad hoc committee of one composed of Dr. Jacobs evolved into a three member certification committee. In August of 1986, Peter Liane, O.D., became chairman of the Board and appointed Dr. Jacobs as chairman of the Board's Certification Committee. Dr. Liane also appointed himself and Dr. Walker to the committee. The mission of the certification committee was to determine the minimum requirements of the statute, further organize the information Jacobs had gathered, and recommend to the Board those who were to be certified or not based upon documentation and evidence of what they deemed to be compliance with the statute.
In reviewing the information it had gathered, the Board viewed the statutory criteria as requiring it to answer three questions: (1) Have applicants for certification received the requisite quantity and quality of coursework?; (2) Have applicants obtained the requisite differential diagnosis experience?; and (3) Are applicants safe to prescribe and administer topical ocular pharmaceutical agents based on passage of a Board approved examination which tested their knowledge of pharmacology and the side effects related to topically applied pharmaceutical agents?
The Board reviewed the curriculum and the catalogs and information it received from the schools of optometry. The Board was satisfied about the accuracy of the information it received from the schools and colleges based upon the Board's knowledge of the programs in the schools, including experiences of
four members of the Board who sit on the boards of trustees of various colleges of optometry. The Board relied upon the information, statements, and representations they received from the deans and colleges concerning when their graduates complied with certain statutory criteria.
The Board determined that it would accept education, training, and examinations from the schools and colleges of optometry and other equivalent entities in order to satisfy statutory criteria for certification.
When asked to describe in general terms what the Board was looking for in reviewing the exams to determine if the coursework in pharmacology was in compliance with Section 463.0055(2)(a), Florida Statutes (1986 Supp.), Board members identified that they reviewed examinations to determine whether the course content, as set forth in the exam instrument, was at least 75 percent related to general and ocular pharmacology. The 75 percent standard was chosen by the Board as an arbitrary number which represented "a substantial portion of the test." A number of courses and their exams were not recommended for approval on the basis that the examinations lacked enough questions related to pharmacology to meet this requirement established by the Board.
Although the deans and colleges assured the Board that their school's coursework satisfied the pharmacology criterion, it was the Board's understanding that the Legislature intended for the Board to "approve" the coursework by looking at it to determine the quality and level of that coursework. The Board was of the view that, even though an applicant took a course for the requisite number of hours, unless the Board specifically approved the course and determined that it was of sufficient quality, the course would not satisfy the first statutory criterion. Therefore, the Board reviewed the material each institution submitted on an individual basis, and approved portions of that material as satisfying the criterion for coursework.
The Board believed that the best way to evaluate the quality of a course was to look at the examination which was required in that course. The Board reviewed each of the examinations which they received from the schools or colleges. Although the Board did not review each and every exam administered by all schools, it did review exams from all schools.
Each Board member received copies of the exams. The exams were reviewed and discussed question by question at public meetings. The Board conducted its review based on the expertise of its members who are practicing optometrists with a knowledge of optometric education and professional practice.
The statutory term "successful completion" was determined by the Board to mean successful passage of an examination for the course. The deans of the schools certified to the Board that their graduates were required to have taken
110 hours of coursework in pharmacology and had passed an exam in such coursework.
With regard to the "110 hours," the Board determined that even if an applicant indicated that he or she had received that quantity of coursework, at least 75 percent of the 110 hours (83 hours) would need to be satisfied in a core course. None of the exams which the Board reviewed for the 83 hour core courses were "take home" exams. Some examinations for which partial credit was given were of that type.
In satisfying the statutory criterion of "transcript-quality coursework," the Board determined whether the coursework was given by a school
or college of optometry or equivalent entity, and whether the student had taken and passed an examination on the coursework. The Board also determined that the coursework which was submitted in satisfaction of the 110 hour requirement, in fact, included "clinical training." The Board made this determination by observing that information in the curriculum presented by the various schools and colleges.
As to the specific clinical training criterion for certification, Dr. Jacobs assumed that the schools "automatically would have their clinical training in their curriculum." Also, Dr. Jacobs indicated that, because the schools were accredited, "we could then assume that these were the quality schools and, therefore, would be administering quality coursework and quality testing."
The courses which were approved by the Board as having satisfied the
110 hours of "pharmacology" criterion were courses which dealt with the properties, chemistry, actions and uses of drugs. The courses approved also dealt with the effects of drugs on the body and on the eye, the diagnostic use of drugs, the therapeutic use of drugs, and the side effects of drugs.
The Board also determined that the pharmacology coursework was "conducted by an institution which has facilities for both the didactic and clinical instruction in pharmacology." The Board did not approve courses taught by individuals, but only recognized courses conducted by colleges of optometry with both the physical facilities and faculty expertise in teaching and research necessary to provide didactic and clinical instruction in pharmacology. The Board also determined that each approved course was conducted by an institution accredited by the Council on Post-secondary Accreditation. This information was readily accessible to the Board because of the Board's continuing responsibility to review the accreditation status of various optometry schools in order to enforce the Board's existing requirement that applicants for licensure in Florida be graduates of accredited schools. Accreditation, however, did not mean a school's coursework was automatically accepted as satisfying the statutory criterion. Of the eighteen accredited schools of optometry recognized for licensure purposes in Florida, coursework from only sixteen were approved for certification purposes. Two accredited schools, the University of Montreal and Interamerican University of Puerto Rico, were disqualified because they did not meet the statutory requirements for certification.
However, the Board believes that the statutory and rule requirement that approved coursework must be "conducted by" an accredited institution which has facilities for both didactic and clinical instruction in pharmacology does not require that such courses be taken at that institution or at a location that, in fact, has didactic and clinical instruction facilities.
The Board also reviewed and approved continuing education courses and postgraduate courses which could be used in partial satisfaction of statutory criterion number one. The Board went through the same process with regard to reviewing and approving the examinations for the continuing and postgraduate courses. However, unlike the groups of representative exams which the Board was sent by schools and colleges, the Board reviewed each and every one of the continuing education and postgraduate examinations. Although the Board had previously reviewed and approved the continuing education course exams when the courses were approved for continuing education credit, the Board reviewed the exams a second time to determine if they satisfied the certification criterion concerning appropriate coursework.
The Board has approved approximately forty continuing education, seminar, extension and postgraduate courses. The Pennsylvania College of Optometry continuing education course referred to as "PCO 701" is an example of this type of course approved by the Board. The "PCO 701" course was designed for practicing optometrists. The instructors for the course were Ph.D.s in pharmacology and ophthalmologists from the Jefferson Medical School in Philadelphia. The instructors flew in to several areas of Florida every weekend to conduct the three month continuing education course.
As to the requirement of one year of supervised experience in differential diagnosis, the Board has determined that this may be obtained in either an academic or a non-academic environment.
In order to determine compliance with the "one year of supervised experience" criterion, the Board requested the schools and colleges to provide it with the year in which the institution required at least one year of clinically supervised training in differential diagnosis of their graduates. The catalogs and curricula submitted by the schools to the Board also indicated that clinical training was provided as part of pharmacology coursework.
The third criterion requires an examination approved by the Board. The Board did not prepare or administer an examination in order to determine an applicant's compliance with this criterion.
Concerning the requirement of successful completion of an examination which tests knowledge of general and ocular pharmacology, the rule implements the Board's policy decision to not prepare and administer a separate pharmacology exam for certification purposes. The Board has determined that examinations administered in optometry school or in postgraduate courses suffice.
In order to determine whether applicants satisfied the third criterion, the Board reviewed and approved the examinations which applicants had been required to pass either at the end of their coursework in optometric school or at the end of their postgraduate education.
Since 1972, the Board has tested for the side effects of pharmaceutical agents as required by criterion three on the pharmacology portion in its general licensing examination, to become a "licensed practitioner." The pharmacology portion of the Board's exam is a prerequisite to obtaining licensure in Florida. Part I of the examination tests ocular pathology and pharmacology. Applicants must obtain a score of 70 percent or better in each subject in Part I of the exam in order to obtain a passing grade. Part II of the exam consists of the clinical portion and a pharmacology/ocular disease portion. An applicant must obtain a score of 80 points or better in order to secure a passing grade on the clinical portion of the practical exam.
The National Board of Examiners in Optometry Education also tests ocular pathology, ocular pharmacology, and treatment and management of ocular disease. The NBEO exam tests:
Clinical science which measures a candidate's application of the fundamental knowledge base to the prevention, diagnosis, management, and treatment of clinical conditions within the
scope of optometric practice and consists of the following subject areas: systemic conditions; ocular disease/trauma.
The International Association of Boards of Examiners in Optometry examination on the treatment and management of ocular disease (IAB examination) is an examination which must also be passed by Florida applicants in order to obtain general licensure. The IAB examination is designed to assess the cognitive skills deemed essential in utilizing pharmacologic agents for therapeutic purposes. A passing score is 75. The subject areas tested on the IAB examination include selection of the therapeutic regime; dosage and/or duration; contraindications/side effects; and the follow-up prognosis.
The Board of Optometry approves the Florida examinations for general licensure. This function includes reviewing all of the examinations, working with DPR staff in the design of those examinations, actual selection of examination questions, and determination of the scope of the exam. The Board has approved all of the general licensure examinations which have been administered subsequent to 1972.
Although Board members have been aware that since 1972 applicants for general licensure have been required to pass the Board approved examination in pharmacology which tests for side effects, the Board has never specifically stated or adopted a policy that this examination satisfies the third criterion to become a certified optometrist. While the Board seems satisfied that the post-1972 licensure exam would be sufficient to satisfy that criterion, the Board relied on and approved the exam which the applicant took either in school or at the end of their postgraduate training as the exam which satisfied the third criterion.
Eight hundred seventy three (873) optometrists had been certified in Florida at the point of final hearing. Each of the 873 optometrists who have been certified were existing licensed practitioners in Florida at the time they were certified.
Paradoxically, though the Board did not rely on the general optometric examinations for certification, it did rely on the 1972 and forward examination results in classifying the successful candidates for certification. The Board related that 570 of the 873 certified optometrists took the Florida licensure exam in 1972 or thereafter. Three hundred three (303) took the Florida licensure exam prior to 1972. Two hundred sixty three (263) of the 303 took and passed the PCO 701 course for which the Board reviewed each examination and determined that it satisfied the third criterion because it tested for the use of topical application of pharmaceutical agents and side effects. Of the remainder of the applicants who were examined for general licensure prior to 1972, 37 took the PCO 750-B course which was another course in pharmacology for which the Board had reviewed exams and found that they satisfy the third criterion. Of the remaining three applicants, one took the New England diagnostic pharmacology course and one took the Indiana DBF course in ocular pharmacology. The Board reviewed and approved each of these exams as having satisfied the third criterion. The lone applicant remaining of the 873 was a 1971 graduate from the University of Houston. The Board did not review the actual exam which the University of Houston applicant took, although the Board reviewed a number of representative exams which were sent by the University of Houston. Based on its review of the representative exams provided by the University of Houston, the Board determined that the one applicant for certification who had taken an examination which tested for side effects, but
which actual exam was not approved by the Board, was sufficiently qualified to demonstrate compliance with the third criterion. The Chairman of the Board personally knows the single candidate from the University of Houston and has a personal knowledge of his practice abilities and competence.
The Application/Certification Form
The application form, which is challenged as an unpromulgated rule, sets out an activity section for the benefit of the Board which would indicate if a candidate has been approved for certification, the assigned certification number if approved, and other items related to this review. The application form contains a place where the applicant sets forth his or her name and the mailing address. The application form identifies the fact that $100 fee for application is required. The form asks that the candidate name the school or college of optometry which he or she attended and the year of graduation, and to provide and 8 1/2 X 11 inch photocopy of the diploma received from that school. The application form provides for the applicant's signature which is to be notarized. The application form in its second page gives further instruction and cites the text of Rule 21Q-10.001, Florida Administrative Code, and Rule
21Q-10.002, Florida Administrative Code. The latter rule deals with the administration and prescription of topical pharmaceutical agents.
The application form in its substance, set out in Sections 1 through 4 of the first page, establishes the exact formula for obtaining certification to practice optometry, beyond the payment of fees and other preliminary matters which have been addressed in these factual findings. In effect, there are four alternatives by which a candidate may obtain certification. This has formed the basis for examining the credentials of candidates since the inception of the certified optometrist program within the State of Florida. The only changes that have been made concern the fact that the application form has been expanded upon through the recognition of additional postgraduate courses which could count toward the obtainment of 110 hours of approved coursework in general and ocular pharmacology. The form does not contemplate the idea of independent testing to address the third statutory criterion. The details of the four alternatives are as set forth below:
1. I am applying to become a certified optometrist based on graduation from an approved school or college of optometry which his certified to the Board that graduates received 110 hours of approved coursework in general and ocular pharmacology, including clinical training, and passed a Board approved examination (463.0055(1)(a)(c)). At least
one year of supervised experience in differential diagnosis of eye diseases or disorders was included as part of the optometric training for graduation (463.0055(1)(b)). Optometrists who graduated from the following schools in the year listed below, or in subsequent years, have been approved by the Board as meeting all of the requirements of 463.0055(1)(a)(b)(c) F.S.
PLEASE CHECK THE APPROPRIATE BOX, IF THIS IS YOUR CATEGORY.
Univ. of Alabama | 1973 | Univ. of Houston | 1975 |
U. of CA at Berkley | 1977 | Illinois College | 1976 |
Southern California | 1979 | Indiana Univ. | 1976 |
Ferris State College | 1979 | Univ. of Missouri | 1984 |
Pennsylvania College | 1976 | Southern College | 1976 |
Waterloo, Canada | 1976 | New England College | 1977 |
Northeastern State | 1983 | Ohio State | 1972 |
Pacific University | 1977 | State Univ., New York | 1975 |
I am applying to become a certified optometrist based on graduation from an approved school or college of optometry which has certified to the Board that graduates received 88 or more hours of approved coursework in general and ocular pharmacology, including clinical training, and passed a Board approved examination. At least one year of supervised experience in differential diagnosis of eye disease or disorders which included as part of the optometric training for graduation. I graduated from the school checked below and have attended the following approved courses, as indicated, to meet the 110 hour requirement for certification.
SCHOOLS
Univ. of Houston 1966-74 90 hours
Illinois College 1974-75 102 hours
Waterloo, Canada 1972-76 84 hours
COURSES (attach verification of passing the exam)
FOA/Univ. of AL-2/7-8/87 10 hours FOA/Univ. of AL-10/83 6 hours
FOA/Univ. of AL-10/85 6 hours
FOA/Univ. of AL-10/86 6 hours
FOA/PA College-5/78 6 hours
FOA/PA College-10/84 6 hours
I am applying to become a certified optometrist based on 88 or more hours of approved transcript quality courses in general and ocular pharmacology, which included clinical training and passing a Board-approved examination. At least one year of supervised experience in differential diagnosis of eye diseases or disorders was included as part of my optometric training for graduation. The following courses have been approved by the Board as meeting the criteria above: (Check any courses you attended and attach proof of passing the exam.)
PA College Course 750B 110 hours Illinois College Courses 1986-87 85 hours
PA College Course 701 98 hours
PA College Course 701 105 hours Florida Optometric Assoc/
PA College 1/31/87 110 hours
If applicable to meet the 110 hours, the following approved courses may be included in your documentation for certification:
FOA/Univ. of AL-2/7-8/87 10 hours FOA/Univ. of AL-10/85 6 hours
FOA/PA College-5/78 6 hours
FOA/Univ. of AL-10/85 6 hours
FOA/PA College-10/84 6 hours
FOA/Univ. of AL-10/86 6 hours
I do not fit into any of the above categories. However, my educational coursework and clinical training meet all three (3) requirements of 463.055(2)(a)(b) and (c). I have attached a detailed report and all required documentation as necessary.
Sections 1-4 within the application form are based upon the information gathered by Dr. Jacobs from the schools of optometry and concerning postgraduate coursework. The Certification Committee reviewed the information which Dr. Jacobs had gathered, and made a recommendation to the Board pertaining to how the information should be used. Dr. Jacobs presented a suggested format for the application form to the Board's office based upon the charts he prepared which summarized the information he had gathered. The Board's office modified Dr. Jacobs' suggested format and sent it to the Board members for their approval. After the Board approved both the use of the information gathered and the format of the application, the Board office prepared the application form for printing and distribution.
By including the information concerning the school and year attended by the applicant, the Board was able to avoid having to search through existing Board licensure files which already contain this information and also enabled the Board to refer to the data which the Board had already gathered and analyzed, without the necessity to do it for each applicant.
The Board did not accept the form alone in its decision-making process. The associated documentation was reviewed by the Board prior too approval for certification. Applicants were disqualified if they did not provide proper documentation.
The Certification Committee reviewed all individual applications and made recommendations to the Board. Each application was reviewed individually by two different committee members. If the two committee members disagreed on certifying the applicant, the third member of the committee reviewed the application and cast the deciding vote concerning whether to recommend certification or not to the Board. The Board then voted on the application and decided whether or not to certify the applicant.
The form was designed to act as a facilitator. Nonetheless, it is the substantive standard for review in all instances.
The application form implements the Board's previous decision to accept the substantive information which it had been provided.
Within the form, Section 1 applicants are those optometrists relying solely on their graduation from one of sixteen optometry schools in the United States and Canada on or after the year designated on the form for that school. Section 2 applicants are those optometrists relying on graduation from the University of Houston (1966-1974), Illinois College of Optometry (1974-1975), or University of Waterloo (1972-1976), in conjunction with completion of courses sponsored by the Florida Optometric Association. Section 3 applicants are those optometrists seeking certification based on completion of one post-graduation "core course" of 83 hours or more, and additional continuing education courses necessary to achieve the 110-hour total. Section 4 was created for applicants
who may not fit in any of the three previously-described sections, but who may be able to establish their qualification for certification through other means.
An example of use of the form is that when an applicant checked Section 1 on the form indicating the school and year of graduation, the Board reviewed the diploma to determine whether the graduation date on it coincided with the date of graduation, and the school checked in Section 1. Having previously determined that graduates of that institution subsequent to the year indicated on the form satisfied the statutory criteria, the Board used the form to confirm the applicant's credentials in the request for certification. The determination as to whether or not to certify the applicant was made after the Board examined the application form and verified that the applicant had graduated from that particular school by checking the diploma, signature, and notary certificate.
Section 3 of the form shows eleven courses. As mentioned before, there are other courses that since have been determined by the Board to be acceptable towards the 110 hour total. These courses were not listed on the form because the Board was unaware of them at the time the form was printed. An applicant under Section 3 who wanted to claim credit for courses which were not listed, could write in those courses and send documentation from the school in the form of a letter or transcript which indicated that the applicant had been tested on the course and had passed the exam. The Board would then confirm that the course was given and would review the exam for course quality. With respect to applicant who checked Section 3, the Board also determined satisfaction of the one year of supervised clinical experience requirement by referring back to the information which had been provided previously by the optometry schools.
For Sections 2 and 3 applicants, the continuing education courses relied on to supplement optometric school coursework or post-graduation "core courses" were all sponsored by the Florida Optometric Association in conjunction with optometric schools.
Section 4 of the application form afforded applicants who did not fit categories 1, 2 or 3 an opportunity to demonstrate that they satisfied the statutory criteria. For instance, one applicant who applied under this category was a pharmacist before he was an optometrist. He did not fit into any of the other categories because his coursework was obtained in pharmacy school, and he wished to rely on that training to satisfy requirements for certification.
A review of the minutes of the Board meetings from the amendment of Chapter 463 in June, 1986, through August, 1987, indicates that the certification form was not adopted as a Board rule. Dr. Walker, Board member, in his testimony confirmed that the application form was not adopted as a Board rule.
The certification form-was first used by the Board at the first meeting at which it certified optometrists, April 11, 1987. It certified 455 optometrists at that first meeting; 200 more at its May 9, 1987 meeting; 174 more at its July 6, 1987 meeting; and 45 more at its August 28, 1987 meeting.
Of the continuing education courses for which information is available, the "smaller courses" of 10 hours or less were offered in a "seminar" setting, with faculty from optometry schools, most notably UAB, Pennsylvania, Southern College, New England, Indiana, and Houston. In addition to the Florida Optometric Association, other non-school entities such as the Southern Council of Optometrists, the American Academy of Optometry, the Southwest Florida
Optometric Association, the Northeast Florida Optometric Society, and the Bay Point Anterior Segment Symposium, Inc., sponsored some of these continuing education courses.
Some of the approved continuing education courses described in the form were given at resorts, hotels, or meeting centers.
Legislative Intent
Petitioners' Composite Exhibits Nos. 6 and 7 were offered in an attempt to describe legislative intent related to Senate Bill 3-B, which forms the basis of the amendments to Chapter 463, Florida Statutes, which took place in 1986. This included Section 463.0055, Florida Statutes (1986 Supp.). Having considered those exhibits and the proposed facts of the parties, the intent which the Legislature had in the passage of Section 463.0055, Florida Statutes (1986 Supp.) cannot be gleaned. Therefore, conclusions about the meaning of that legislation must be made based upon a literal reading of its text, together with other provisions within Chapter 463, Florida Statutes.
In a related vein, the Board of Optometry and the Intervenors have suggested facts concerning an April 15, 1987, Senate Committee on Economic, Community and Consumer Affairs request for information from the State of Florida, Department of Professional Regulation, on the topic of the Board of Optometry's implementation of the certification process. In particular, reference is made to that committee's request concerning which schools and coursework satisfied the 110 hour and one year of supervised clinical experience requirements contained within the statute. The committee also wanted documentation of the procedures and standards used in approving examinations which satisfied the requirement for examination set forth in the third criterion. The Secretary of DPR requested the Board of Optometry to prepare the report and it was prepared and delivered to the Senate Committee. That report generally describes the activities of the Board of Optometry in its efforts at certification, as announced in the fact findings herein. Because the Senate Committee did not respond to the report made by the Department of Professional Regulation, the Intervenors and the Board urge that the silence by the Senate Committee somehow recognizes the acceptability of the procedures employed by the Board of Optometry in its certification process. Likewise, the Intervenors and the Board of Optometry seem to take some comfort in the fact that no further legislation was passed in 1987 pertaining to Section 463.0055(2)(c), Florida Statutes (1986 Supp.), which dealt with the need to have the Board prepare an independent examination document as opposed to the technique which has been employed of using other examination instruments to satisfy the terms of that statutory reference. The exact position of the Senate Committee concerning this dispute and the need for independent testing to address the third criterion is not described in this record, nor can its silence or that of the full Legislature in its 1987 Session be seen as creating any inference about the proper construction to be given the language within Section 463.0055, Florida Statutes (1986 Supp.), and especially Section 463.0055(2)(c), Florida Statutes (1986 Supp.).
Standing
Ophthalmologists and optometrists who practice their professions in Florida are to a significant extent offering similar health care. In particular, the opportunities provided the certified optometrist for practice coincide with part of the practice available to ophthalmologists.
Petitioner, Florida Society of Ophthalmology, is an organization concerned with, among other things, the educational interests of ophthalmologists and the quality of eye and health care delivered to the patients of ophthalmologists. It is also concerned on behalf of its members about the quality of eye care and health care of Floridians treated with medication by optometrists. Petitioner Florida Medical Association has the same concerns, responsibilities and purposes.
Petitioner, Tully C. Patrowicz, M.D., is a physician and ophthalmologist practicing in Mount Dora, Florida, since 1972. Dr. Patrowicz is a Board-certified ophthalmologist since 1974, and is also a past officer and president of Petitioner Florida Society of Ophthalmology. He is currently a member of both Florida Society of Ophthalmology and Florida Medical Association.
Petitioner, William J. Broussard, M.D., is a physician and ophthalmologist who has practiced in Melbourne, Florida, since 1967. He is a Board-certified ophthalmologist since 1966. Dr. Broussard is also a member and former office of Petitioner Florida Society of Ophthalmology.
Florida Optometric Association is a not-for-profit organization with membership comprised of licensed optometrists in Florida. The purpose of Florida Optometric Association is to promote and protect the general public in ensuring the availability of high quality optometric services at affordable prices. Approximately 850 of the 1,100 practicing optometrists in Florida are members of Florida Optometric Association. Approximately 650 certified optometrists are members of Florida Optometric Association. Florida Optometric Association participates in administrative proceedings, legislative activities, and court litigation on behalf of optometry. The president of Florida Optometric Association has authorized retention of counsel for those purposes with the permission of the Executive Board and a vote of the membership. Florida Optometric Association members who are certified optometrists are subject to Rule 21Q-10.001, Florida Administrative Code. Florida Optometric Association participated in the legislative activities which resulted in the Optometric Practice Act of 1986.
Dr. Howard J. Braverman, O.D., is President of the Florida Optometric Association and is a certified optometrist engaged in the active practice of optometry in Florida. If the certified optometry rule is invalidated, it will have a significant impact on the practice of certified optometry by Dr. Braverman and by the members of the Florida Optometric Association who are certified optometrists. It would also significantly affect their patients.
Petitioner Baxter H. Byerly, M.D., and Intervenor Frank A. Broome, O.D., did not appear at the hearing and no indication was given concerning the exact nature of their claims as petitioner and intervenor, respectively.
Respondent State of Florida, Board of Optometry, is an agency of the State of Florida within the Department of Professional Regulation with authority to regulate the practice of optometry. Sections 463.001, 463.003, 463.005, Florida Statutes (1986 Supp.). Activities subject to the Board's regulatory and rulemaking authority include standards of practice of optometry, the administration and prescription of topical ocular pharmaceutical agents, and the certification of optometrists to administer and prescribe such drugs in their practice. See Sections 463.005(1)(a) and (g), and 463.0055, Florida Statutes (1986 Supp.).
Respondent State of Florida, Department of Professional Regulation, is an agency of the State of Florida that generally assists the various professional regulatory Boards, such as the Respondent Board of Optometry, in the examination and licensure of professionals. See Section 455.217, Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Sections 120.54, 120.56 and 120.57, Florida Statutes.
Ruling was reserved on the question of admissibility of Petitioner's Exhibit Nos. 6B, 6C, 7B and 7C. Upon consideration of those matters, the exhibits are admitted. See Lloyd v. Farkash, 476 So.2d 305 (Fla. 1st DCA 1985).
Respondent, Board of Optometry, and the Intervenors, post-hearing, moved to dismiss the Respondent State of Florida Department of Professional Regulation as a party. This motion was offered because Respondent, State of Florida, Department of Professional Regulation, had changed its position, post- hearing, from being allied with the Board of Optometry and the Intervenors to that of associating itself with the Petitioners. It is argued that the Department of Professional Regulation is not a proper party to the proceeding, should be estopped from maintaining inconsistent positions, and that the Department of Professional Regulation has failed to adduce the necessary proof to establish the claims of Petitioners in challenge to Rule 21Q-10.001, Florida Administrative Code, and the form.
Petitioners and the Department of Professional Regulation have offered a written reply to the motion to dismiss. They argue that the motion is untimely, that the Department of Professional Regulation, even at this late date, may side with the Petitioners, that the Department of Professional Regulation has standing and that the Department of Professional Regulation should not be estopped from participation.
Had the Department of Professional Regulation attempted in some fashion to reconvene the hearing, to offer additional evidence post-hearing, or to take any action which made some substantive changes to the record, Respondent Board of Optometry and the Intervenors might be persuasive in their argument calling for dismissal. However, none of these outcomes have been promoted by the Department of Professional Regulation's change in position and the proposed final order, referred to as a Joint Proposed Final Order by Petitioners and the State of Florida, Department of Professional Regulation, having been the product of the counsel to Petitioners, with only the signature being offered by the Department's counsel as affiliation with that point of view, the motion to dismiss is denied.
Respondent, Board of Optometry, and the Intervenors have moved to strike the following: (1) paragraphs 20 and 21 of the proposed findings of fact offered by the Petitioners and Respondent Department of Professional Regulation in the November 13, 1987 and the November 17, 1987, submissions as proposed final orders, (2) the entire proposed final orders filed by the Petitioners and Respondent Department of Professional Regulation on those aforementioned dates,
the Petitioners' final argument filed on November 13, 1987, and (4) correspondence dated November 17, 1987, from counsel for the Department of
Professional Regulation to counsel for Respondent, Board of Optometry, and counsel to the Intervenors. The Respondent, Department of Professional Regulation, and Petitioners have replied to the motion and stated opposition to it.
Paragraphs 20 and 21 within the proposed facts are facts offered from Petitioner's Exhibit Nos. 13 and 14 which were denied admission, and for that reason are stricken. The suggestion by the Department of Professional Regulation and the Petitioners that they had inadvertently failed to argue in favor of the admission of Petitioners' Exhibit Nos. 13 and 14 in a memorandum of law and argument or in their joint submissions is unavailing. No opportunity was contemplated for post-hearing argument on the admissibility of Petitioner's Exhibit Nos. 13 and 14 beyond the ruling made at hearing. Therefore, any argument that is advanced in the course of responses to the motion to strike, upon the suggestion that it had been left out of previous post-hearing submissions and argument, is unacceptable.
The proposed final orders filed on November 13 and 17, 1987, are identical. They total 44 pages respectively. In addition, Petitioners, on November 13, 1987, submitted a nine-page document entitled "Petitioners' Final Argument." Respondent Board of Optometry and the Intervenors have asked that written argument including the proposed final orders and the document described as "Petitioner's Final Argument" be struck because they exceed the 40-page limitation set out in Rule 22I-6.031(3), Florida Administrative Code, limiting the number of pages to 40 pages without permission of the Hearing Officer to expand that number of pages. Having considered the argument of counsel, the motion to strike is denied.
Finally, the Board of Optometry and the Intervenors would have the November 17, 1987, correspondence from counsel for Respondent, Department of Professional Regulation, to counsel for the Board of Optometry and the Intervenors, struck. The only contribution or value which that correspondence has from the point of view of the Hearing Officer concerns the fact that it serves as a transmittal of the proposed final order offered by the Respondent, Department of Professional Regulation. In all other particulars, it is not deemed to be appropriate argument or persuasive in any fashion. Thus, the question of a motion to strike is moot, and the motion is denied.
The following constitute rulings on objections and other matters expressed within certain depositions offered by the Petitioners and received subject to ruling on those objections:
Petitioner's Exhibit No. 3, deposition of Jon Jacobs, O.D. Objections at:
page 34, lines 1 and 11 and 19 and 20 - overruled
page 50, lines 23 and 24 - overruled
page 53, lines 12-17 - overruled
page 55, lines 7-16 - overruled
page 55, line 25- page 56 line 5 - overruled
page 66, line 24 - sustained
page 67, line 5 - sustained
Petitioner's Exhibit No. 4, deposition of Thomas Zimmerman, M.D., Ph.D. Objections at:
Pages 7 and 8 - Dr. Zimmerman is accepted as an expert in teaching, limited to those types of students that he is involved with as an educator.
page 18, line 9 - sustained
page 23, lines 2-9 - sustained, and disallow the answer page 24, line 25 - page 25, line 3 sustained, and disallow answer
page 25, lines 7-14 - overruled
page 27, line 25 - page 28, line 4 - sustained, and grant the motion to strike the answer at page 26, line 16 - page 27, line 22
page 28, lines 16-19 - sustained
page 29, lines 20-23 - sustained page 31, lines 6-10 - sustained, and grant
the motion to strike answer at page 30, line
23 to page 31, line 4
Petitioner's Exhibit No. 5, deposition of Dr. William J. Broussard. Objections at:
page 7, lines 7-15 - overruled
page 13, lines 14-17 - overruled
page 15, lines 4-7 - sustained
page 16, line 6 - sustained
page 16, line 7 - sustained
page 17, line 20 - overruled
page 17, line 21 - overruled
page 18, lines 1-4 - overruled, and deny the motion to strike
page 18, lines 23-24 - sustained
page 18, line 25 - sustained; strike the portions of the answer pertaining to ;those last two objections which deals with the patients being advised by a third party page 19, line 9 - sustained
page 19, line 15 - overruled
page 20, line 11 - overruled
page 20, line 16 - overruled
page 21, line 22 - overruled
page 23, line 21 - overruled
page 23, line 22 - overruled
page 24, line 25 - overruled
page 25, line 1 - overruled
page 26, line 5-7 - sustained
page 26, line 8 - sustained
page 26, line 23 - sustained
page 26, line 24 - sustained
page 27, line 5 - sustained
page | 28, | lines 14-15 - sustained |
page | 28, | line 16 - sustained |
page | 29, | lines 10-11 - sustained |
page | 29, | line 12 - sustained |
page | 29, | lines 21-23 - sustained |
page | 29, | line 24 - sustained |
page | 31, | lines 22-23 - overruled |
page 32, lines 23-24 - overruled
page 33, lines 13-14 - overruled
page 34, lines 3-5 - sustained
page 35, lines 20-23 - sustained
page 35, lines 24-25 - sustained
page 38, lines 1-2 - overruled
page 38, line 3 - overruled
page 62, lines 4-5 - sustained
page 63, lines 2-3 - overruled
page 64, line 1 - overruled
page 66, lines 7-9 - sustained
page 67, line 19 - overruled
page 67, lines 23-25 - overruled
page 72, lines 19-22 - sustained
page 88, lines 16-18 - overruled
page 89, lines 3-4 - overruled
page 89, lines 14-16 - overruled
page 89, line 25 - page 40, line 2 - overruled
page 91, lines 3-4 - overruled
All parties, with the exception of Baxter H. Byerly, M.D., and Frank
A. Broome, O.D., about whom no evidence has been presented, have demonstrated the necessary standing to participate in this action. See Florida Medical Association v. Board of Optometry, 426 So.2d 1112 (Fla. 1st DCA 1983), and Section 455.217, Florida Statutes.
Concerning the validity of Rule 21Q-10.001, Florida Administrative Code, when examined pursuant to Section 120.56, Florida Statutes, the Board of Optometry may only act in furtherance of the authority set forth in the enabling legislation. That authority is stated in the rule as being Section 463.005(1), Florida Statutes (1986 Supp.), which is the general statement of authority for the Board of Optometry to make rules not inconsistent with that chapter, and as would be necessary to carry out the duties and authority which has been conferred upon the Board by the statute. Included within those activities contemplated by that statutory reference would be standards of practice for the optometric profession. The specific authority for the enactment of the rule is stated as being Section 463.0055, Florida Statutes (1986 Supp.), which is the section dealing with the certification of optometrists. Basically, the Board being a creature of legislative enactment, it is limited in the exercise of its powers to those granted or conferred by the statute as referenced. See State v. Fallschase Special Taxing District, 421 So.2d 787 (Fla. 1st DCA 1983), and State ex rel Greenberg v. Florida State Board of Dentistry, 297 So.2d 628 (Fla. 1st DCA 1974).
In measuring the language of Rule 21Q-10.001, Florida Administrative Code, against the statement of authority found within Chapter 463, Florida Statutes, the action of the Board of Optometry will be sustained if it is reasonably related to the purposes of that enabling legislation and is not arbitrary or capricious. See Grove Isle, Ltd. v. State, Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984), and Agrico Chemical Company v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979) cert. denied, 376 So.2d 74 (Fla. 1979).
Petitioners and Respondent, State of Florida, Department of Professional Regulation, attack Rule 21Q-10.001, Florida Administrative Code, because it is said to allow coursework and clinical training in general or
ocular pharmacology received by the optometrist while undergoing basic optometric education as acceptable proof or in partial compliance with the requirements of Section 463.0055(2)(a), Florida Statutes (1986 Supp.). The language set forth in Rule 21Q-10.001(1), Florida Administrative Code, is not found to be in contravention of Section 463.0055(2)(a), Florida Statutes (1986 Supp.).
The challengers further state that the subject rule is an invalid exercise of delegated legislative authority because it would accept one year of supervised experience in a clinical setting which is academic or non-academic and that the academic setting means three quarters or two semesters and the non- academic setting means a 12 month period. This is deemed by the challengers to be contrary and outside the letter and intent of the authorizing statute. This refers to the authorization as announced in Section 463.0055(2)(b), Florida Statutes (1986 Supp.). Rule 21Q-10.001(2), Florida Administrative Code, which contains the text which the challengers are concerned about in the clinical training criterion, is not contrary to the purposes set forth in the enabling legislation.
The challengers next reference 21Q-10.001(3), Florida Administrative Code, which they find to be an invalid exercise of delegated legislative authority because it purports to accept the concept of compliance with Section 463.0055(2)(c), Florida Statutes (1986 Supp.), when the examination contemplated by that statutory reference has been given in an optometric school or following the conclusion of a postgraduate course. In this instance, the challengers are correct in their assertion.
The lead-in language at Rule 21Q-10.001(3), Florida Administrative Code, which states "successful completion of a board approved examination testing knowledge of general and ocular pharmacology with particular emphasis on topical application of pharmaceutical agents" is a paraphrase of the language set forth in Section 463.0055(2)(c), Florida Statutes (1986 Supp.), and is acceptable. However, the remaining language which states, "in order to be approved by the Board, the examination must have been administered in a board approved school of optometry or at the conclusion of a postgraduate course conducted by a board approved school of optometry, and the examination must be approved by the Board" contemplates an arrangement other than a Board approved examination which is designed to contemporaneously test the knowledge of general and ocular pharmacology, having particular emphasis on topical application of pharmaceutical agents related to the eye and the side effects of the implementation of those pharmaceutical agents. The board may construct the examination instrument or it may look to some other source for an appropriate test device. However, it may not operate on the assumption that prior experience by the applicant for certification in which the applicant was examined on these subjects would suffice. While it is recognized that the statutory language may give rise to a possible construction which allows the Board of Optometry to consider examinations offered in the course of study while in optometric school, or as part of postgraduate experience, given the use of the term "approved," that is not a fair construction. It is not the correct construction, when taking into account the language set forth in Section 463.0055, Florida Statutes (1986 Supp.), and other provisions within that statute.
Section 463.0055, Florida Statutes (1986 Supp.), identifies the certified optometrist as a distinct licensee who is given special recognition and who is expected to perform in a manner which demonstrates a higher competence than the optometrist who has been afforded a general license to practice optometry.
Within Section 463.0555(1), Florida Statutes (1986 Supp.), it is recognized that the certified optometrist is to administer and prescribe the topical ocular pharmaceutical agents contemplated and that licensed practitioners who are not certified pursuant to this section may only employ topically applied anesthetics in conducting glaucoma examinations.
The examination which is given to a person seeking the basic license to practice optometry in the State of Florida is announced in Section 463.006, Florida Statutes (1986 Supp.). It carries with it the requirement for the payment of an examination fee which is separate and apart from the examination fee contemplated for certified optometrists. In addition, the general license examination calls for the Board of Optometry to prepare an examination instrument which includes appropriate subjects and allows the opportunity for the substitution of a national examination as part or all of its consideration of the credentials of those persons who wish to have a general license to practice optometry in Florida. The fact that the general licensing provision may touch upon the same subject areas as are considered in the examination process for certified optometrists announced in Section 463.0055, Florida Statutes (1986 Supp.), does not allow this general examination experience to stand in substitution for the examination requirements set out in Section 463.0055(2)(c), Florida Statutes (1986 Supp.).
Section 463.0055(2)(a), Florida Statutes (1986 Supp.), calls for the achievement of 110 hours of approved transcript-quality coursework and clinical training in general and ocular pharmacology. Again, transcript-quality coursework is defined in Section 463.002(9), Florida Statutes (1986 Supp.), as being:
"Transcript-quality" means a course which is in conjunction with or sponsored by a school or college of optometry or equivalent educational entity, which course is approved by the board and requires a test and passing grade.
This means that in order to meet the criterion set forth in Section 463.0055(2)(a), Florida Statutes (1986 Supp.), the candidate for certification must have stood examination(s) related to his or her coursework in general and ocular pharmacology. The expectation is that if the Legislature had in mind that compliance with Section 463.0055(2)(a), Florida Statutes (1986 Supp.), to include the testing, would also have been sufficient to meet the requirements of Section 463.0055(2)(c), Florida Statutes (1986 Supp.), calling for successful completion of an examination, it would have said as much. This alternative to compliance with the requirement for standing an examination is not stated, and may not be inferred. The first criterion for certification deals with successful completion of coursework and the third criterion is a separate criterion dealing with the need to successfully complete an examination. They are separate requirements and Section 463.0055, Florida Statutes (1986 Supp.), mandates that all requirements must be met to gain certification.
In a related sense, the third criterion cannot be seen to contemplate the ability for some candidates to satisfy the terms of that requirement by reference to their coursework taken in association with the first criterion, while another candidate is required to successfully complete an independent examination prepared by the Board of Optometry to test that latter candidate's credentials for certification. The arrangement is not countenanced by the statutory language. All candidates must stand the independent examination called for in the third criterion. In addition, this interpretation offers further assurance that those persons who may have concluded the necessary coursework announced in the first criterion in the distant past can demonstrate present competence through successful completion of an examination prior to certification. This contemporary measurement of understanding protects the public by advancing quality care.
Further evidence which supports the concept of independent examination under the third criterion is found within Section 463.0055(3), Florida Statutes (1986 Supp.), wherein the Board is called upon to establish an application fee not to exceed $250 and an examination fee not to exceed $250 related to certification. Had the Legislature not contemplated that an independent examination would be given, it is difficult to imagine why they would have included the requirement for establishing a rule that identifies an examination fee. In fact, the Board of Optometry, in Rule 21Q-6.001, Florida Administrative Code, not only has established a $100 application fee for certification, but has established an examination fee of $250. If satisfactory participation in coursework set forth in the first criterion may substitute for independent testing under the third criterion, Sections 463.0055(2)(c) and 463.0055(3), Florida Statutes (1986 Supp.), are rendered meaningless.
The definitional sections set out in Sections 463.002(3) and (4), Florida Statutes (1986 Supp.), point out the distinction between a "licensed practitioner" and a "certified optometrist" wherein it is stated:
"Licensed practitioner" means a person who is a primary health care provider licensed to engage in the practice of optometry under the authority of this chapter. A licensed practitioner who is not a certified optometrist shall be required to display at his place of business a sign which states, "I am a Licensed Practitioner, not a Certified Optometrist, and I am not able to prescribe topical ocular pharmaceutical agents."
"Certified optometrist" means a licensed practitioner authorized by the board to administer and prescribe topical ocular pharmaceutical agents.
This also is an indication of the legal differences related to certified optometrists and those general licensed practitioners who offer optometric services in Florida, and points to a recognition that the certified optometrist must demonstrate greater competence than the licensed practitioner. That competence is demonstrated in an examination designed to measure competence of "certified optometrists" separate and apart from the measurement of the necessary competence to practice optometry as a "licensed practitioner."
The challengers have attacked the form, which is found as Petitioner's Exhibit No. 2, as constituting an unpromulgated rule. The essence of the petition is to the effect that the form constitutes a rule within the meaning of Section 120.52(15), Florida Statutes, not duly promulgated pursuant to Section 120.54, Florida Statutes (1986 Supp.). A rule is defined at Section 120.52(15), Florida Statutes, as being:
(15) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include:
Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum.
Legal memoranda or opinions issued to an agency by the Attorney General or agency
legal opinions prior to their use in connection with an agency action.
The preparation or modification of:
Agency budgets.
Contractual provisions reached as a result of collective bargaining.
Agricultural marketing orders under chapter 573 or chapter 601.
Curricula by an educational unit.
Agency action which has the effect of altering established hunting or fishing seasons when such action is adequately noticed in the area affected through publishing in a newspaper of general circulation or through notice by broadcasting in an electronic media.
Any tests, test scoring criteria, or testing procedures relating to student assessment which are developed or administered by the Department of Education pursuant to s. 229.57, s. 232.245, s. 232.246, or s. 232.247 or any other statewide educational tests required by law.
Law enforcement policies and procedures of the Department of Law Enforcement which relate to:
The collection, management and dissemination of active criminal intelligence information and active criminal investigative information; management of criminal investigations; and management of undercover investigations and the selection, assignment,
and fictitious identity of undercover personnel.
The recruitment, management, identity, and remuneration of confidential informants or sources.
Surveillance techniques, the selection of surveillance personnel, and electronic surveillance including court-ordered and consensual interceptions of a communication conducted pursuant to chapter 934.
The safety and release of hostages.
The provision of security and protection to public figures.
The protection of witnesses.
The enlistment, organization, administration, equipment, maintenance, training , and discipline of the militia, National Guard, Organized Militia, and unorganized militia, as provided in s. 2, Art. X of the State Constitution.
This form is a rule by definition. While Respondent Board of Optometry and the Intervenors would see it as being a facilitator in the efforts at reviewing the credentials of applicants for certification, it is an agency statement of general applicability, a statement of the Board of Optometry that substantively implements and interprets Section 463.0055(2), Florida Statutes (1986 Supp.), and prescribes policy. It is more than a mere form. It announces in one place the consistent policy of this agency in considering the question of certification. The fact that the agency has supplemented its choices concerning continuing education courses which may serve as a basis for satisfaction of the first criterion related to mandatory education for the certified optometrist does not change the character of this agency action. It has universal applicability and it creates rights and opportunities for the certification process. There are aspects to the form, those which have to do with the statement of name and address of the applicant, the rendering of an application fee, and a provision of a copy of the diploma received in optometric school, that further statutory intent for certification and are not traditionally regarded as being a rule. By contrast, the four alternatives to certification set forth in the form indicate in what way the candidate may be recognized for certification. They completely prescribe what one must do to gain certification. Hence, those provisions in Sections 1 through 4 constitute a rule by definition. See State ex rel Dept. of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977); McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); and Dept. of Administration v. Stevens, 344 So.2d
291 (Fla. 1st DCA 1977). This decision to establish the substantive requirements for certification has not undergone the rigors of rule enactment envisioned by Section 120.54, Florida Statutes (1986 Supp.). For that reason, those aspects of the form are invalid for failure to comply with the procedural requirements for rule enactment. They are also contrary to the statute as they set forth the requirements for certification because they fail to require an examination as mandated in Section 463.0055(2)(c), Florida Statutes (1986 Supp.).
Petitioners and the Respondent, Department of Professional Regulation, in argument set forth in the proposed final orders, and in Petitioners' final argument, have attempted to attack the rule and the form as they are applied. This was not the thrust of the petition and challenge, nor is
it seen to be the appropriate function for this forum in considering rule challenge cases brought pursuant to Sections 120.54 and 120.56, Florida Statutes. Petitioners and the Respondent, Department of Professional Regulation, limited the inquiry by the terms of their petition to a consideration of the consistency of the language within Rule 21Q-10.001, Florida Administrative Code, when compared to the enabling legislation and the question of whether the form is a rule by definition which has not been promulgated.
That framed the issues and that limits the inquiry.
Having considered the facts found and the conclusions of law reached, it is ORDERED:
That language within Rule 21Q-10.001(3), Florida Administrative Code, which states, "in order to be approved by the Board, the examination must have been administered in a board approved school of optometry or at the conclusion of a postgraduate course conducted by a board approved school of optometry, and the examination must be approved by the Board," is an invalid exercise of delegated legislative authority. The petition and challenge to that rule is otherwise dismissed.
The form which is found as Petitioner's Exhibit No. 2 in the four sections which lead to certification without examination constitutes a rule by definition which was not duly promulgated, and which is inconsistent with legislative intent by failure to contemplate an independent examination prior to certification and is declared invalid in those particulars.
DONE AND ORDERED this 14th day of December, 1987, in Tallahassee, Leon County, Florida.
CHARLES C. ADAMS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1987.
APPENDIX TO FINAL ORDER, CASE NO. 87-1501R
The following constitute specific rulings on those fact proposals offered by the parties in their proposed final orders, wherein the facts have not been completely incorporated in the facts set forth in the Final Order.
Petitioners and DPR
Paragraphs 2, 4, 5, and 6 are subordinate to facts found. Paragraph 7, with the exception of the second sentence, is subordinate to facts found. The second sentence is not necessary to the resolution of the dispute.
Paragraph 8 is subordinate to the facts found, with the exception of the second sentence, which is not necessary to the resolution of the dispute.
Paragraphs 9, 10, 11, 12, 13, 14 and 15 are subordinate to facts found.
Paragraphs 16, 17, 18 and 19 are rejected in that they do not clearly describe the legislative intent.
Paragraphs 20 and 21 are not based upon evidence of record.
Paragraph 24 and all of paragraph 25, with the exception of the third sentence, are subordinate to facts found. The third sentence of paragraph 25 is not necessary to the resolution of the dispute.
Paragraphs 26, 27, and all sentences except the last sentence within paragraph 28, are subordinate to facts found. The last sentence in paragraph 28 is a conclusion of law.
Paragraphs 29, 30, 31, 32, 33 and 34 are subordinate to facts found. Paragraphs 35-52 are not necessary to the resolution of the dispute. Paragraphs 53, 54, 55 and 56 are subordinate to facts found.
Paragraph 57 is not necessary to the resolution of the dispute.
Paragraphs 58 and 59 are subordinate to facts found. The first sentence of paragraph 60 is subordinate to facts found. The balance of that paragraph is not necessary to the resolution of the dispute, nor are paragraphs 61, 62 and 63.
The Board and Intervenors
Paragraphs 5, 7, 8 and 9 are subordinate to facts found. The first and fifth sentences of paragraph 10 are not necessary to the resolution of the dispute. The remaining sentences of that paragraph are subordinate to facts found.
Paragraph 11, and the first sentence within paragraph 12, are subordinate to facts found. The remaining sentences within paragraph 12 are not necessary to the resolution of the dispute. The first sentence of paragraph 13 is subordinate to facts found. The second sentence is not necessary to the resolution of the dispute.
Paragraphs 14, 15, 16 and 17, and the first three sentences within paragraph 18, are subordinate to facts found. The remaining sentence in paragraph 18 is not necessary to the resolution of the dispute.
Paragraphs 19 and 20 are subordinate to facts found. The first sentence of paragraph 21 is subordinate to facts found. The second sentence is not necessary to the resolution of the dispute. The third sentence is subordinate to facts found. All of the fourth sentence, with the exception of that portion which says "... and reviewed a majority of the exams administered by the schools" is subordinate to facts found. That quoted language is rejected as contrary to the evidence. All sentences within paragraph 22, excepting the second sentence, are subordinate to facts found. The second sentence is not necessary to the resolution of the dispute.
Paragraphs 23, 24, 25, 26, 27 and 28 are subordinate to facts found.
Paragraph 29 is subordinate to facts found, with the exception of the last sentence, which is not necessary to the resolution of the dispute.
Paragraph 30 is subordinate to facts found.
Paragraph 31 is not necessary to the resolution of the dispute. Paragraph 32 is subordinate to facts found.
Paragraphs 33 and 34 are not necessary to the resolution of the dispute.
Paragraph 35 is subordinate to facts found, with the exception of the second sentence, which is contrary to facts found.
Paragraph 37 is subordinate to facts found.
Paragraph 41 is subordinate to facts found, with the exception of the last sentence, which is not necessary to the resolution of the dispute.
Paragraphs 42 and 43 are subordinate to facts found. Paragraph 44 is contrary to facts found.
Paragraphs 45, 46, 47, 48 and 49 are subordinate to facts found. The first sentence of paragraph 50 is contrary to facts found. The remaining sentences within that paragraph are contrary to facts found.
Paragraph 51 is subordinate to facts found.
Paragraph 52 is not necessary to the resolution of the dispute.
Paragraphs 53, 54, 55 and 56, with the exception of the last sentence within paragraph 56, are subordinate to facts found. The last sentence within paragraph 56 is contrary to facts found. The first phrase within the first sentence of paragraph 57, which states, "Although the Senate Committee was not favorably disposed to the legislation when it was taken up during the 1986 legislative sesion, ..." is not supported by facts within the record. The remaining portion of paragraph 57 is subordinate to facts found.
Paragraphs 58 and 59 are subordinate to facts found.
COPIES FURNISHED:
Kenneth G. Oertel, Esquire Segundo Fernandez, Esquire Christopher Bryant, Esquire OERTEL & HOFFMAN, P.A.
Post Office Box 6507 Tallahassee, Florida 32314-6507
William O'Neil, Esquire Chester G. Senf, Esquire Department of Professional
Regulation
130 North Monroe Street Room 150
Tallahassee, Florida 32399-0750
Allen R. Grossman, Esquire Office of Attorney General Room 1601, The Capitol
Tallahassee, Florida 32399-1050
Leonard A. Carson, Esquire Michael William Morrell, Esquire CARSON & LINN, P.A.
Mahan Station 1711-D Mahan Drive
Tallahassee, Florida 32308
Ms. Mildred Gardner Executive Director Board of Optometry
130 North Monroe Street Tallahassee, Florida 32399-0750
Liz Cloud, Chief
Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32399-0250
Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32399-1300
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
================================================================= DISTRICT COURT OPINION
=================================================================
STATE OF FLORIDA, BOARD OF IN THE DISTRICT COURT OF APPEAL OPTOMETRY, FLORIDA OPTOMETRIC FIRST DISTRICT, STATE OF FLORIDA ASSOCIATION, FRANK A. BROOME,
O.D., and HOWARD J. BRAVERMAN, NOT FINAL UNTIL TIME EXPIRES O.D., TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellants,
CASE NO. 88-142
vs. DOAH CASE NO. 87-1510RX
FLORIDA SOCIETY OF OPHTHALMOLOGY, FLORIDA MEDICAL ASSOCIATION, WILLIAM J. BROUSSARD, M.D.,
TULLY C. PATROWICZ, M.D., BAXTER
H. BYERLY, M.D., and STATE OF FLORIDA, DEPARTMENT OF PROFESSIONAL REGULATION,
Appellee.
/ Opinion filed December 19, 1988.
An appeal from the Division of Administrative Hearings, State of Florida.
Robert A. Butterworth, Attorney General, and Allen R. Grossman, Assistant Attorney General, Tallahassee, for Appellant State of Florida, Board of Optometry.
Leonard A. Carson and Lucille E. Turner, Carson & Linn, P.A. Tallahassee, for Appellants Florida Optometric Association, Frank A. Broome, O.D., and Howard J. Braverman, O.D.
Kenneth G. Oertel, Segundo J. Fernandez, and M. Christopher Bryant, Oertel & Hoffman, P.A., Tallahassee, for Appellees.
ZEHMER, J.
This section 120.56 rule challenge proceeding involves a determination of the invalidity of rule 21Q-0.001, Florida Administrative Code, and is the companion case to Florida Society of Ophthalmology v. State of Florida Board of Optometry, 13 F.L.W. 2284 (Fla. 1st DCA Oct. 1, 1988) (hereafter cited as Florida Society of Ophthalmology). The Florida Board of Optometry (Board) adopted this rule to implement the provisions of chapter 86-289, Laws of Florida, now codified as section 463.0055, Fla. Stat. (1987). This section authorizes optometrists licensed under chapter 463 and duly certified by the Board to administer certain topical ocular drugs in the diagnosis and treatment of the human eye. This practice previously fell within the exclusive domain of allopathic and osteopathic physicians who were licensed under chapters 458 and
459 and practiced ophthalmic medicine. See Florida Society of Ophthalmology, supra. The appellants include the respondent below, the Board of Optometry, and the intervenors below, Florida Optometric Association, Frank A Broome, O.D., and Howard J. Braverman, O.D. The appellees include the petitioners below, Florida Society of Ophthalmology, Florida Medical Association, William J. Broussard, M.D., Tully C. Patrowicz, M.D., and Baxter H. Byerly, M.D. (referred to collectively as petitioners), and the Florida Department of Professional Regulation (the Department), which, although named a respondent in the petition, later aligned itself with the petitioners.
This proceeding was initiated by the petition described in Florida Society of Ophthalmology, and we refer to that opinion for a more detailed description of the parties and the facts giving rise to this dispute. Appellees challenged the cited rule as an invalid exercise of the Board's delegated legislative authority and challenged, as constituting an unpromulgated rule, the validity of the application form the Board used in reviewing applicants for certification.
The hearing officer, in a commendably thorough order, filed December 14, 1987 and reported at 10 F.A.L.R. 394, determined that all appellees had standing and held the rule and the form invalid.
In our recent Florida Society of Ophthalmology decision, we held that the petitioners did not have standing to initiate section 120.57 hearings to contest the certification of each optometrist under section 463.0055; however, we noted that the rule challenge issues now before us, including petitioners' standing to maintain such challenge, were not before the court on that appeal. For the reasons hereafter stated, we reverse the hearing officer's decision that petitioners had standing to maintain this rule challenge under section 120.56, but hold that the Department of Professional Regulation does have standing to maintain the rule challenge, and affirm the hearing officer's invalidation of the rule and the application form.
I. PETITIONERS' STANDING
Appellants have persistently maintained that petitioners lacked standing under the provisions of chapter 120 to maintain this proceeding. In Florida Society of Ophthalmology we held that petitioners failed to allege facts demonstrating that their substantial interests were sufficiently affected to afford them standing to initiate section 120.57 hearings to attack the certification of each applying optometrist. We expressly observed however, "that standing in a licensing proceeding may well have to be predicated on a somewhat different basis than standing in a rule challenge proceeding" because "there can be a difference between the concept of substantially affected under section 120.56(1) and substantial interests under section 120.57(1)." 13 F.L.W. at 2288. The critical question is, therefore, whether the facts the hearing officer found demonstrate that petitioners are "substantially affected" by the enforcement of the subject rule.
The hearing officer made explicit findings of fact that ophthalmologists and optometrists "are to a significant extent offering similar health care," and that "the opportunities provided the certified optometrists coincide with part of the practice available to ophthalmologists." 10 F.A.L.R. at 419. With respect to each of the petitioners, the hearing officer found that:
Petitioner, Florida Society of Ophthalmology, is an organization concerned with, among other things, the educational interests of ophthalmologists and the quality of eye and health care delivered to the patients of opthalmologists. It is also concerned on behalf of its members about the quality of eye care and health care of Floridians treated with medication
by optometrists. Petition Florida Medical Association has the same concerns, respon- sibilities and purposes.
Petitioner, Tully C. Patrowicz, M.D., is a physician and ophthalmologist practicing in Mount Dora, Florida, since 1972.
Dr. Patrowicz is a Board-certified ophthalmologist since 1974, and is also a past officer and president of Petitioner Florida Society of Ophthalmology.
He is currently a member of both Florida Society of Ophthalmology and Florida Medical Association.
Petitioner, William J. Broussard, M.D., is a physician and ophthalmologist who has practiced in Melbourne, Florida, since 1967. He is a Board-certified ophthalmologist since 1966. Dr. Broussard is also a member and former office (sic) of Petitioner Florida Society of Ophthalmology.
10 F.A.L.R. at 419-20. The order does not contain any other findings of fact bearing on the issue of petitioners' standing. The order recites, in the conclusions of law, only that:
6. All parties, with the exception of Baxter
H. Byerly, M.D., and Frank A. Broome, O.D., about whom no evidence has been presented, have demonstrated the necessary standing to participate in this action. See Florida Medical Association v. Board of Optometry,
426 So.2d 1112 (Fla. 1st DCA 1983), and Section 455.217, Florida Statutes.
10 F.A.L.R. at 426.
On this appeal, petitioners characterize appellants' attack on their standing as incredible, saying, "This court has twice instructed these parties that ophthalmologists and the same two associations present here as Appellees have standing to challenge Board of Optometry rules and non-rule policies when such rules and policies have the effect of infringing on the right to practice medicine," and citing Board of Optometry v. Florida Medical Association, 463 So.2d 1213 (Fla. 1st DCA), pet. for rev. denied, 475 So.2d 693 (Fla. 1985), (hereafter Board of Optometry), and Florida Medical Association v. Board of Optometry, 426 So.2d 1112 (Fla. 1st DCA 1983) (hereafter Florida Medical Association). (Appellees' Brief, p. 29.) Petitioners further state, "If the Board was strictly applying the requirements for certification set out in Section 463.0055, Fla. Stat., and was certifying only those optometrists who met such requirements, then Appellees would not have and could not have successfully brought this challenge." (Id. at 30.) But, they argue, "by relaxing the requirements for certification, the Board has unlawfully certified hundreds of optometrists who do not meet the statutory standards" and that "It is this ultra vires act of the Board which exceeds the limited overlap of the practice of medicine which the legislature approved." (Ibid.) This argument, we observe, seemingly treats petitioners' standing as being dependent upon their ability to prevail on the merits, a proposition with which we do not agree.
Appellants argue that petitioners ignore the significant change made by chapter 86-289 in the statutory authority of optometrists to use certain topical ocular drugs. They point out that as a result of these amendments, the prescription and administration of such drugs by optometrists does not infringe on the practice of medicine so that petitioners "are not substantially affected by the Board's rule and do not have standing to challenge the rule." (Appellants' Reply Brief, p. 13.)
We conclude that petitioners and the hearing officer have given an overbroad interpretation to our decisions in Board of Optometry and Florida Medical Association. We agree with appellants that, for the reasons recently set forth in Florida Society of Ophthalmology, the overlapping of the traditional practice of ophthalmology with the optometrists' newly granted authority to use such drugs, which is the only factual finding upon which the hearing officer predicated petitioners' standing, is not legally sufficient to sustain petitioners' standing to maintain this section 120.56 rule challenge.
In Florida Dept. of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA), cert. denied, 359 So.2d 1215 (Fla. 1978), this court compared the more restrictive term "substantially affected," used in section 120.56, with the broader, more liberal term "affected persons," used in section 120.54, and
concluded that, to have standing under section 120.56, the person challenging the validity of an adopted rule must show a direct injury in fact of "sufficient immediacy and reality" to the petitioner. Finding no evidence of such injury to the petitioner Jerry, the court denied him standing on the ground that any application of the challenged agency rule as to him would be purely speculative and conjectural.
In the instant case, petitioners' right to administer topical ocular drugs is no longer exclusive reserved to their field of practice regulated by chapter
458 and 459, Florida Statutes, and they no longer are in a position, as they were in Board of Optometry and Florida Medical Association, to assert a protected economic right that has been impaired by the subject rule. Consequently, petitioners' continuing general interest in the quality of eye care being provided to the public is not predicated upon a legally recognized right of sufficient immediacy and reality to support their standing to challenge the validity of the adopted rule. Cf., School Board of Orange County v. Blackford, 369 So.2d 689 (Fla. 1st DCA 1979). Petitioners, representing or being physicians licensed under chapters 458 and 459, are not subject to regulation or control under chapter 463, are not subject to regulation or control by the rule, and cannot predicate standing on the notion that the application of the challenged rule will prevent or obstruct their practicing ophthalmic medicine. Cf., Professional Firefighters of Florida, Inc. v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981). Whether application of the challenged rule will cause the petitioning physicians, or any physicians represented by the petitioning associations, an injury of sufficient immediacy and reality under the criteria set forth in Jerry is purely a matter of speculation and conjecture. Under the facts found by the hearing officer there is no significant difference between the concepts of petitioners' "substantial interests" under section 120.57, as adjudicated in Florida Society of Ophthalmology, and petitioners' being "substantially affected" persons under section 120.56. See Farmworker Rights Organization, Inc. v. Department of Health and Rehabilitative Services, 417 So.2d 753, 754 (Fla. 1st DCA 1982).
For these reasons, we hold that petitioners lack standing to maintain this proceeding and reverse the hearing officer's ruling to the contrary.
II.
THE DEPARTMENT'S STANDING
Section 455.217, Florida Statutes (1987), cited in the final order as authority for the Department's standing, provides:
The secretary of the department shall have standing to challenge any rule or proposed rule of a board pursuant to 120.54 and 120.56. In addition to challenges for any invalid exercise of delegated legislative authority, the hearing officer, upon such a challenge
by the secretary, may declare all or part of a rule or proposed rule invalid if it:
Does not protect the public from any significant and discernible harm or damages;
Unreasonably restricts competition or the availability of professional services in the state or in a significant part of the state;
or
Unnecessarily increases the cost of professional services without a corre- sponding or equivalent public benefit.
However, there shall not be created a pre- sumption of the existence of any of the conditions cited in this subsection in the event that the rule or proposed rule is challenged.
This statute explicitly gives the Department standing to challenge the validity of rules promulgated by the Board of Optometry.
In the instant case, however petitioners rather than the Department initiated this rule challenge proceeding. The Department was initially named as a respondent and supported the respondent Board in upholding the validity of the challenged rule and application form. Only after the close of all evidence at the 120.56 hearing did the Department's newly assigned counsel align the Department with petitioners' views in respect to the invalidity of the rule and application form. Appellees objected to the Department's realignment by filing a motion to dismiss the Department as a party, alleging in part that the Department had been privy to their confidential and privileged communications.
The Department's conduct in this case is unusual, to say the least, for it should have, at the outset, become sufficiently informed about the Board's rules to make a timely decision on the rule's validity. Nevertheless, we are not called upon at this time to determine whether the Department acted improperly in delaying its realignment until all the evidence was in the record. None of the parties have contested the Department's standing on this appeal, and we can perceive no prejudice to any party in upholding that standing. For reasons of judicial economy, we conclude that the issues concerning the validity of the challenged rule and application form were thoroughly presented to and considered by the hearing officer, and that there is no substantial reason for dismissing the entire proceeding and remanding with leave to the Department to initiate another rule challenge proceeding. We uphold the Department's standing to maintain this rule challenge so as to permit review of the hearing officer's decision on the merits.
III. INVALIDITY OF THE RULE
Section 463.0055, Florida Statutes (1987), provides in pertinent part:
Certified optometrists may administer and prescribe topical ocular pharmaceutical agents as provided in this section for the diagnosis and treatment of ocular conditions of the human eye and its appendages without the use of surgery or other invasive techniques.
The board shall issue certification for the administration and prescription of top- ical ocular pharmaceutical agents in the diagnosis and treatment of ocular conditions to licensed practitioners who
have completed the appropriate forms as required by the board and who have submitted proof of fulfilling all of the following requirements:
Successful, completion of at least 110 hours of approved transcript-quality course- work and clinical training in general and ocular Pharmacology, as determined by the board. However, no course in pharmacology shall be approved by the board unless the course is conducted by an institution which has facilities for both the didactic and clinical instructions in pharmacology and which is accredited by a regional or profess- ional accrediting organization
that is recognized and approved by the Coun- cil on Postsecondary Accreditation or the United States Department of Education.
Completion of at least 1 year of super- vised experience in differential diagnosis of eye disease or disorders as part of the optometric training or in a clinical setting as part of optometric experience.
Successful completion of an examination approved by the board which tests knowledge of general and ocular pharmacology with part- icular emphasis on the topical application
of pharmaceutical agents for the eye and side effects of such pharmaceutical agents.
The board shall establish by rule an application fee, not to exceed $250, and an examination fee, not to exceed $250, for certification pursuant to this section.
Rule 21Q-10.001 implemented the statutory provisions in the following language:
Application for Certification. To be cert- ified to administer and prescribe topical ocular pharmaceutical agents a licensed practitioner must submit a completed application form provided by the Board, remit the application fee for certification specified in Rule
21Q-6.001(9), and demonstrate compliance with the following requirements:
Successful completion of at least 110 hours of Board approved transcript quality coursework and clinical training in general and ocular pharmacology conducted by an accredited institution which has
facilities for both didactic and clinical
instruction in pharmacology. The institution must document the applicant's successful completion. The Board will accept coursework and clinical training in general and ocular pharmacology received by the applicant during his basic optometric curriculum or at post- graduate courses if this coursework and training was provided by a Board approved school of optometry or equivalent educational entity;
Completion of at least one (1) year of supervised experience in differential diagnosis of eye diseases or disorders. The one year of supervised experience shall be received either during optometric training or in a clinical setting as part of opto-
metric experience. The requisite one year of supervised experience in a clinical setting may be obtained in an academic or non-academic environment. For the purpose of this rule, one year of supervised experience in an academic setting is understood to mean three
quarters or two (2) semesters and one
(1) year of supervised experience a non- academic setting is understood to mean a twelve month period.
Successful completion of a Board approved examination testing knowledge of general and ocular pharmacology with particular emphasis on the topical application of pharmaceutical agents. In order to be approved by the Board, the examination must have been administered in a Board approved school of optometry or at the conclusion of a post- graduate course conducted by a Board approved school of optometry, and the examination
must be approved by the Board.
Petitioners and the Department argued to the hearing officer that the rule is an invalid exercise of delegated legislative authority because, one, "it is said to allow coursework and clinical training in general or ocular pharmacology received by the optometrist while undergoing basic optometric education as acceptable proof or in partial compliance with the requirements of Section 463.0055(2)(a)"; two, "it would accept one year of supervised experience in a clinical setting which is academic or non-academic and that the academic setting means three quarters or two semesters and the non-academic setting means a 12 month period," contrary to section 463.0055(2)(b); and three, "it purports to accept the concept of compliance with Section 463.0055(2)(c)... when the examination contemplated by that statutory reference has been given in an optometric school or following the conclusion of a post-graduate course." 10 F.A.L.R.
The final order held rule 21Q-10.001 invalid in only one of the several respects argued by petitioners and the Department:
That the language within (21Q-10.001(3), Florida Administrative Code, states, "in order to be approved by the Board, the examination must have been administered in a board approved school of optometry or at the conclusion of a post-graduate course
conducted by a board approved school of optometry, and the examination must be app- roved by the Board," is an invalid exercise of delegated legislative authority. The petition and challenge to that rule is otherwise dismissed.
10 F.A.L.R. at 435. Neither the Department nor the petitioners have appealed the failure to hold the rule invalid on any other grounds.
The final order contains extensive findings of fact showing the exhaustive efforts undertaken by the Board to evaluate the academic and clinical training provided at the various approved optometric schools so as to assure conformance with the requirements of the statute and the implementing rule. These efforts included extensive review and evaluation of actual and representative examinations given to the applicants during their academic training in all schools. The Board unquestionably made a good faith effort to comply with the statutory requirements for certification in accordance with its interpretation of the statutory language.
The hearing officer also found as a matter of fact that the legislative history of section 463.0055)2)(c) was inconclusive and thus not helpful in determining legislative intent, so that the statute's meaning must be determined from the statutory language alone. The hearing officer concluded that the Board's construction of subsection (2)(c) bias erroneous because it was based upon an impermissible construction of the statutory language, which left without statutory support the provisions in subparagraph (3) permitting the statutorily required examination to be satisfied by successfully passing an examination administered incident to certain coursework in a Board-approved school or post- graduate course.
The legal precepts governing this issue are well established. Section
120.56 explicitly permits an administrative determination of the invalidity of an agency rule "on the ground that the rule is an invalid exercise of delegated legislative authority." The challenging party bears a heavy burden of showing "that the agency adopting the rule has exceeded its authority, that the requirements of the rule are not appropriate to the ends specified in the legislative act, and that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation but are arbitrary or capricious"; however, an agency rule that is found to exceed the agency's statutory authority is invalid. Grove Isle, Ltd. v. State Department of Environmental Regulation, 454 So.2d 571, 573, 575 (Fla. 1st DCA 1984). It is "axiomatic that an administrative rule cannot enlarge, modify or contravene the provisions of a statute" and that "a rule which purports to do so constitutes an invalid exercise of delegated legislative authority." State Department of Business Regulation v. Salvation Limited, Inc., 452 So.2d 65, 66 (Fla. 1st DCA 1984). The critical question raised by this point is therefore, whether the hearing officer erred in finding that the Board misconstrued the legislative
meaning of section 463.0055(2)(c) by re on examinations passed by applicants in pursuit of approved coursework in lieu of an examination administered contemporaneous with the Board's review of the applications for certification.
Appellants rely on the precepts stated in Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984):
The well recognized general rule is that agencies are to be accorded wide discretion in the exercise of their lawful rulemaking authority, clearly conferred or fairly implied and consistent with the agencies' general statutory duties...An agency's construction of the statute it administers is entitled to great weight and is not to be overturned unless clearly erroneous...
Moreover, the agency's interpretation of a statute need not be the sole possible inter- pretation or even the most desirable one;
it need only be within the range of possible interpretations....
455 So.2d at 517. Thus, appellants argue, the Board's interpretation of subsection (2)(c) was within the range of possible interpretations of section 463.(1055(2) and therefore must be sustained. They point out that even the hearing officer "recognized that the statutory language may give rise to a possible construction which allows the Board of Optometry to consider examinations offered in the course of study while in optometric school, or as part of post-graduate experience," and criticize the hearing officer for concluding that "given the use of the term approved, that is not a fair construction" or the "correct construction, when taking into account the language set forth in section 463.0055, Florida Statutes (1986 Supp. ) and other provisions within that statute." 1O F.A.L.R. at 429. Appellants further argue that the hearing officer has erroneously construed the statute by adding to its plain language a requirement not clearly stated in subsection (2)(c), i.e., that the examination referred to not only be approved by the Board but also be administered by the Board.
We recognize that in Durrani we indicated that the court must approve the agency's selection of any possible interpretation of the enabling statute. But in so stating, we did not mean that any conceivable construction of a statute must be approved irrespective of how strained or ingeniously reliant on implied authority it might be; rather, as made clear in the cases cited in Durrani in support of the stated proposition, only a permissible construction by the agency that comports with and effectuates discerned legislative intent will be sustained by the court. Department of Administration v. Nelson 424 So.2d 852 (Fla. 1st DCA 1982); State Department or Health and Rehabilitative Services v.
Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981). See also Public Employees Relations Comm'n v. Dade County Police Benevolent Ass'n, 467 So.2d 987, 989 (Fla. 1985)("a reviewing court must defer to an agency's interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported by substantial, competent evidence"). As we made quite plain in Sehoettle v. Department of Administration, 513 So.2d 1299, 1301 (Fla. 1st DCA 1987), "statutory construction is ultimately the province of the judiciary." As we understand the hearing officer's statements, he meant only that the construction of section 463.0055(2)(e) adopted by the Board, while
a possible one, was not a permissible one. So construed, nothing in the hearing officer's order is inconsistent with the precepts stated in Durrani.
In determining whether the language in section 463.0055(2)(c) directing "successful completion of an examination approved by the board" can be permissibly construed as delegating to the Board the power to authorize compliance with its provisions by resort to an examination "administered in a Board approved school of optometry or at the conclusion of a post- graduate course conducted by a Board approved school of optometry" as rule 21Q-10.001(3) states, we believe the statute should be construed in accordance with 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." Freedman v. State Board of Accountancy, 370 So. 2b 11.68, 11.69 (Fla. 4th DCA 1979). To perform this Function does not require any particular agency expertise, a fact that substantially mitigates the application of the rule calling for great deference to the agency's interpretation of the statute. Schoettle v. Department of Administration, 513 So.2d at 1301. In Sehoettle we stated:
The general rule is that the manifest intent of the Legislature will prevail over the literal import of the words used by it.
As recognized by the Florida Supreme Court in Barrington v. State, 145 Fla. 61,199 So.
320, 323 (1940), quoting from Commonwealth v.
Henry, 229 Mass. 19, 118 N.E. 224, L.R.A.
1918B, 827:
The statute must be read with reference to its manifest intent and spirit and cannot be limited to the literal meaning of a single word. It must be construed as a whole and interpreted according to the sense in which the words are employed, regard being had to the plain intention of the legislature.
513 So.2d at 1302.
Applying these principles it is obvious that section 463.0055(2) sets forth three requirements for certification to administer ocular drugs, and that each requirement addresses a separate, if not independent, concern. First, the statute requires that applicants must have completed a minimum amount of coursework in Board-approved courses. This requirement contemplates consideration of the applicant's formal academic schooling, either in the immediate or remote past, but does not contemplate that the Board expend any significant expenditure of funds to provide the applicant with such schooling.
Second, the statute requires a minimum amount of supervised experience using ocular drugs. Again, this contemplates consideration of the applicant's practical experience, whether in the immediate or remote past, and does not contemplate any expenditure of Board funds to assist the applicant in acquiring such experience. Third, the statute requires the successful completion of a Board- approved examination that tests the applicant's knowledge of the ocular drugs to be administered after certification. Unlike the first two requirements, the Board is directed to set an examination fee to cover the cost of implementing this examination requirement as to each applicant, an indicator that the Board is required to incur some expenses in carrying out the examination function.
We agree with the hearing officer that section 463.0055(2)(c) must be construed as contemplating a Board- approved examination that contemporaneously tests the applicant's knowledge of general and ocular pharmacology, with particular emphasis on topical application of pharmaceutical agents related to the eye and the side effects of the implementation of those agents. We recognize that the Board or some other source may construct and administer the examination. The statutory language requiring that the Board approve the examination may not reasonably be interpreted to allow the Board to accept examinations taken incident to optometric school or post-graduate coursework as satisfying this statutory requirement. The requirement in subsection (2)(a) that each applicant for certification must have passed 110 hours of approved transcript quality coursework and clinical training, which is defined in section 463.002(9) as coursework approved by the Board and requiring a test and passing grade, belies any notion that the examination required in 463.0055(2)(c) may also be satisfied by the very same coursework examination. The subsection (2)(c) examination is obviously a separate requirement that operates independently of the eoursework testing required by subsection 463.0055(2)(a); otherwise, it is redundant and without practical meaning.
We believe it is equally clear that the total statutory scheme contemplates that the examination requirement, unlike the coursework and experience requirements, is to be met by successfully completing a substantially uniform examination administered to all applicants at the time of their application.
Section 463.0055 contemplates that the Board will incur expenses to construct and administer, or have others construct and administer, the required examination contemporaneously with the Board's review of the applications.
Otherwise, there is no discernible reason for the statutory scheme directing the Board to charge one fee for the application, which necessarily includes review of the applicant's listed coursework and experience as specified in subsections (2)(a) and (b), and a separate fee for the examination specified in (2)(c).
Moreover, reliance on coursework examinations taken long ago is patently inconsistent with the obvious legislative purpose that applicants be tested by a substantially uniform examination on their knowledge and competence at the time of their certification. As the hearing officer observed, to permit some applicants to rely on diverse examinations taken years ago in various schools in satisfaction of subsection (2)(a) requirements, while requiring other applicants to successfully complete an examination administered by or on behalf of the Board, exceeds a reasonable construction of the statutory language because it is inconsistent with the unambiguous requirement that all applicants successfully complete an examination approved by the Board. We note that section.
463.0055(4) establishes a formulary committee to assist the Department in identifying topical ocular pharmaceutical agents that may be used by an optometrist certified under that section, yet only by administering a Board- approved uniform examination at the time of certification can an applicant be tested on his knowledge of the approved pharmaceutical agents authorized in the formulary under section 463.0055(4). As the hearing officer stated, "This contemporary measurement of understanding protects the public by advancing quality care." 10 F.A.L.R. at 431.
As stated in State Department of Health and Rehabilitative Services v.
McTique, 387 So.2d 454, 457 (Fla. 1st DCA 1980), "While there is obviously room for some rulemaking and regulation by the Department in connection with each of the alternative subsections, the Department is not authorized to add to or modify those provisions that spell out with particularity the criteria that must be met in order to be eligible for a license. We hold that the Board in the instant case acted arbitrarily in adding to the statute authority to rely on coursework examinations to satisfy subsection (2)(c), and find no error in the
hearing officer's invalidation of those provisions of the rule that impermissibly implement the examination requirements in section 463.0055(2)(e) by resort to coursework examinations.
IV. INVALIDITY OF THE FORM
Section 463.0055 authorizes the Board to certify optometrists "who have completed the appropriate forms as required by the board and who have submitted proof of fulfilling all of the following requirements" in subparagraphs (2)(a), and (c). The Board implemented this statutory directive by creating the application form challenged in this case. The final order finds that the form, although "designed to act as a facilitator," is nevertheless "the substantive standard for review in all instances" as it implements the Board's previous decision to accept the substantive information which it had been provided." 10
F.A.L.R. at 415. This finding is supported by competent, substantial evidence. The Board did not subject the application form to the section 120.54 rulemaking process.
We affirm the ruling that the application form constitutes an unpromulgated rule and is therefore invalid. We agree with the hearing officer that the application form constitutes a rule within the definition in section 120.52(15) covering "any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule." Appellants "concede that if the Rule is determined to be invalid, then the form is also invalid." (Appellants' Reply, p. 12). But it should be made clear that the type of information solicited by this application form, even if the subject rule were upheld in all respects, would nevertheless include "information not specifically required by statute or by an existing rule" and thus would have to be subjected to the rulemaking process under section 120.54.
AFFIRMED IN PART AND REVERSED IN PART. SMITH, C.J., and BARFIELD, J., CONCUR.
ENDNOTES
1/ We intimate no opinion on the standing of petitioners to participate in a section 120.54 rulemaking proceeding as an "affected person." The record does not indicate that petitioners attempted to participate in a section 120.54 rulemaking proceeding in respect to the challenged rule.
2/ [W]e have repeatedly held that when the agency committed with statutory authority to implement a statute has construed the statute in a permissible way under APA disciplines, that interpretation will be sustained though another interpretation may be possible." 424 So.2d at 858.
3/ "Whether the Department's interpretation of section 381.272(7) is the only possible interpretation of the statute, or the most desirable one, we need not say. It is within the range of permissible interpretations of the statute..."
407 So.2d at 241.
4/ The hearing officer noted in his finding of facts (10 F.A.L.R. at 410-12) that the Board has not relied on the general licensure examinations under
section 463.006 as satisfying section 463.0055(2)(c), and suggested in his conclusions of law (10 F.A.L.R. at 429-30) that the authorization in section 463.0055(3) of a separate fee for the subsection (2)(c) examination indicates that the legislature also contemplated an independent examination administered by the Board separately from the general licensure examination. The issues before the hearing officer and before us at this time do not encompass whether the Board may administer a subsection (2)(c) examination simultaneously with, but as a separate part of, the general licensure examination given pursuant to section 463.006, and we do not intimate any opinion an that issue.
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT
To the Honorable Charles C. Adams, Hearing Officer WHEREAS, in that certain cause filed in this Court styled:
FLORIDA SOCIETY OF OPHTHALMOLOGY, FLORIDA MEDICAL ASSOCIATION, WILLIAM J. BROUSSARD, M.D., TULLY
C. PATRQWICZ, M.D., and BAXTER H. BYERLY, M.D.
vs. Case No. 88-142
Your Case No. 87-1510RX
STATE OF FLORIDA, BOARD OF OPTOMETRY and STATE OF FLORIDA, DEPARTMlENT OF PROFESSIONAL REGULATION and
FLORIDA OPTOMETRIC ASSOCIATION, FRANK A. BROOME, O.D., and HOWARD J. BRAVERMAN, O.D.
The attached opinion was rendered on December 19, 1988 & February 10, 1989.
YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.
WITNESS the Honorable Douglass B. Shivers
Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 5th day of July 1989
Clerk, District Court of Appeal of Florida, First District
================================================================= SECOND DISTRICT COURT OPINION
ON MOTIONS FOR REHEARING AND MOTION FOR CLARIFICATION
=================================================================
STATE OF FLORIDA, BOARD OF IN THE DISTRICT COURT OF APPEAL OPTOMETRY, FLORIDA OPTOMETRIC FIRST DISTRICT, STATE OF FLORIDA ASSOCIATION, FRANK A. BROOME,
O.D., and HOWARD J. BRAVERMAN, CASE NO. 88-142
O.D., DOAH CASE NO 87-1510RX
Appellants,
v.
FLORIDA SOCIETY OF OPHTHALMOLOGY, FLORIDA MEDICAL ASSOCIATION, WILLIAM J. BROUSSARD, M.D.,
TULLY C. PATROWICZ, M.D., BAXTER
H. BYERLY, M.D., and STATE OF FLORIDA, DEPARTMENT OF PROFESSIONAL REGULATION,
Appellees.
/ Opinion Filed February 10, 1989.
An appeal from the Division of Administrative Hearings, State of Florida.
Robert A. Butterworth, Attorney General, and Allen R. Grossman, Assistant Attorney General, Tallahassee, for Appellant State of Florida, Board of Optometry.
Leonard A. Carson and Lucille E. Turner, Carson & Linn, P.A. Tallahassee, for Appellants Florida Optometric Association, Frank A. Broome, O.D., and Howard J. Braverman, O.D.
Kenneth G. Oertel, Segundo J. Fernandez, and M. Christopher Bryant, Oertel & Hoffman, P.A, Tallahassee, for Appellees.
ON MOTIONS FOR REHEARING AND MOTION FOR CLARIFICATION ZEHMER, J.
The amended motion for rehearing and motion for rehearing en banc filed by the following appellees, Florida Society of Ophthalmology, Florida Medical Association, William J. Broussard, M.D., Tully C. Patrowicz, M.D., and Baxter H. Byerly, M.D., is denied. Although, contrary to the proscription in Fla. R. App.
P. 9.330, the motion merely re-argues the merits of our decision, we have nevertheless considered the motion on the merits and determined that none of the contentions warrants further discussion.
The motion for rehearing and motion for rehearing en banc filed by the appellants, State of Florida, Board of Optometry; Florida Optometric Association; Frank A. Broome, O.D.; and Howard J. Braverman, O.D., is also denied. Appellants contend that because the Department of Professional Regulation did not file an answer brief, this court, after finding that the remaining appellees lacked standing, should not have recognized the Department's standing to maintain the rule challenge and thus should have declined to review the merits of the hearing officer's decision invalidating the rule. In support of this contention, appellants cite Title and Trust Co. of Florida v. Salameh,
407 So.2d 1035 (Fla. 1st DCA 1981), and argue that we held in that case that an appellee is obligated to file an answer brief, and reversed the lower court's decision because the appellee in Salameh failed to file a brief. We do not agree. Although the court's opinion did denounce the appellee's failure to file an answer brief, that failure was not the basis for the court's decision to reverse the summary judgment under review. Rather, the court proceeded to review the case on the merits and reversed because it found a genuine issue of material fact remained in dispute, precluding the entry of summary judgment.
The court's criticism of the appellee for failing to file a brief was mere dictum, and it has no precedential effect in this case. Furthermore, the appellee's failure in Salameh to file an answer brief was particularly burdensome to the court because no other appellee filed a brief presenting a position contrary to the appellant's. In the instant case, multiple appellees filed an answer brief presenting extensive arguments for affirming the hearing officer's decision.
The Department clearly is a party to this appeal as an appellee. Fla. R. App. P. 9.020(f)(2) defines "appellee" as "every party in the proceeding in the lower tribunal other than an appellant." Fla. R. App. P. 9.210, which governs briefs in appellate proceedings, does not require an appellee to file an answer brief, it simply permits such a brief to be filed. Of course it is important for all parties to apprise the court of their position regarding the issues on appeal, but we will assume, as we did in this case, that a party having taken a position in the tribunal below will continue to adhere to that position until the court is notified to the contrary. Our clarification of this point should not be construed as approval of the Department's silence in this case. The filing of a notice to the court of the Department's joinder in or reliance on the positions and arguments taken in the answer brief of the remaining appellees would have been helpful. Nevertheless, the Department's failure to file such a notice or brief does not invalidate its participation as a party to the rule challenge proceeding before the hearing officer. Since the Department necessarily is a party appellee to this proceeding under the appellate rule, we had no basis in law to decline review of the appealed order on its merits.
We grant appellants' motion for clarification of our decision in respect to the date the rule shall be deemed void and unenforceable. They urge us to make clear that the rule may be invalidated only on a prospective basis in accordance with section 120.56(3), Florida Statutes (1987), which states:
The hearing officer may declare all or part of a rule invalid. The rules or part thereof declared invalid shall become void when the time for filing an appeal expires or at a later date specified in the decision.
It is apparent that the statutory scheme in chapter 120 for invalidating agency rules contemplates that once a rule, or an agency statement or form that
constitutes a rule under the definition in section 120.52(16), Florida Statutes (1987), has been issued and acted or relied upon by the agency or members of the public in conducting the business of the agency, the rule will be treated as presumptively valid, or merely voidable, and must be given legal effect until invalidated in a section 120.56 rule challenge proceeding. The rule may be invalidated before becoming effective only by filing a rule challenge proceeding under section 120.54(4), Florida Statutes (1987), or initiating a drawout proceeding authorized in section 120.54(17), Florida Statutes (1987). The statutory scheme is obviously intended to avoid the chaotic uncertainty that would necessarily flow from retroactively invalidating agency action taken in reliance on the presumed validity of its rule prior to a proper rule challenge proceeding holding the rule invalid. Appying the theory underlying section 120.56(3) to this case, we hold that rule 21Q- 10.001, which was held invalid by the hearing officer and our opinion, will become void and ineffective as of the date the decision of this court becomes final.
Appellees contend that even if the rule may be voided on a prospective basis only, the application form is not a rule and should be rendered void ab initio. We do not agree. The application form clearly meets the definition of a rule in section 120.52(16) and, as held in the hearing officer's order and in our opinion, is invalid because the agency failed to follow the proper rule promulgation procedure under section 120.54. It is, therefore, subject to the same provisions in section 120.56(3) as the invalid rule 21Q-10.001. To hold otherwise would be inconsistent with the manifest theory underlying the statutory scheme and would create extensive uncertainty regarding the actions of the Board taken in good faith reliance on the presumed validity of the rule and the application form. We can see no legal basis for injecting such chaotic uncertainty into otherwise final actions of the Board. As herein clarified, we adhere to our opinion and decision heretofore filed in this case.
SMITH, C.J., and BARFIELD, J., CONCUR.
ENDNOTES
1/ Had the Department also filed an answer brief, it should not have repeated the arguments in the answer brief already filed. Parties litigating before this court must keep in mind that our heavy workload does not afford time to read several briefs presenting repetitious arguments, and that they should coordinate their briefing. See Glendale Federal Savings and Loan Association v. State, Department of Insurance, Case No. 88-2266, Fla. 1st DCA, opinion filed Jan. 27, 1989.
2/ An appellant is a party who seeks to invoke the appeal jurisdiction of a court. Rule 9.020(f)(1) , Fla. R. App. P.
| Issue Date | Proceedings |
|---|---|
| Dec. 14, 1987 | Final Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 19, 1988 | Opinion | |
| Dec. 14, 1987 | DOAH Final Order | The order struck down 21Q-10.001(3) because it allowed the substitution of exams in course work in school to substitute for an exam by the Board of Optometry. |
