STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANA CAOS, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 93-0538RU

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was conducted in this case at Tallahassee, Florida, on March 1, 1993, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Robert S. Turk, Esquire

Valdes-Fauli, Cobb, Bischoff & Kriss, P.A. One Biscayne Tower, Suite 3400

Two South Biscayne Boulevard Miami, Florida 33131-1897

For Respondent: Allen Grossman, Esquire

Department of Legal Affairs Office of the Attorney General The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

The basic issue in this case is whether a statement contained in an order issued by the Board of Medicine is a "rule" within the definition at Section 120.52(16), Florida Statutes (1992 Supp.), and, if so, whether rulemaking is feasible and practicable, or whether the statement violates Section 120.535(1), Florida Statutes (1992 Supp.).

PRELIMINARY STATEMENT

At the formal hearing on March 1, 1992, the Petitioner testified on her own behalf and offered two exhibits, both of which were received in evidence. The Respondent presented the testimony of one witness and offered one exhibit, which was received in evidence. At the conclusion of the hearing the parties were allowed ten days from the date of the hearing within which to file their proposed final orders. The time was later extended. Neither party ordered a transcript of the proceedings at hearing. All parties filed timely proposed final orders containing proposed findings of fact and conclusions of law. The

parties' proposals have been carefully considered during the preparation of this Final Order. Specific rulings on all findings of fact proposed by the parties are contained in the appendix hereto. By separate order issued on May 28, 1993, the Hearing Officer has disposed of the parties' post-hearing motions.

FINDINGS OF FACT

1. The Petitioner, Ana Caos, M.D., is a applicant for a restricted license to practice Medicine in the State of Florida pursuant to the provisions of Section 458.311(8), Florida Statutes.

   
   

2. Successful completion of the Florida Board Examination is a prerequisite to licensure under Section 458.311(8), Florida Statutes. In an effort to meet that prerequisite, the Petitioner has already taken the Florida Board Examination six times since October 1, 1966. The Petitioner has passed portions of the licensure examination, but thus far she has not received a passing grade on the Basic Sciences portion of that examination.

   
   

3. The Petitioner seeks to continue taking the licensure examination until she achieves a passing grade on all portions of the examination.

   
   

4. On January 19, 1993, the Board of Medicine filed and served an order regarding the Petitioner's licensure application. The order reads as follows, in pertinent part:

   
   

   1. You are hereby notified pursuant to Section 120.60(3), Florida Statutes, that the Board of Medicine voted to DENY your application for licensure as a physician by examination.

      
      

   2. The Board of Medicine reviewed and considered your application for licensure by examination on November 19, 1992, in a telephone conference call originating in Tallahassee, Florida and has determined that said licensure by examination be denied, stating as grounds therefore:

      
      

      That you have failed to pass the FLEX examination six times since October 1986. Subsection 458.311(2), Florida Statutes, prohibits licensure of any individual who has failed the FLEX examination five times after October 1, 1986. Although the Board previously permitted you to sit for the FLEX examination for a sixth time in 1992, it has since that time determined that this provision applies to all applicants for licensure.

      
      

5. The Board of Medicine has never adopted a rule to the effect that Section 458.311(2), Florida Statutes, applies to applicants for a restricted license under Section 458.311(8), Florida Statutes. The Board of Medicine has an existing rule that interprets several provisions of Section 458.311(8), Florida Statutes (1991). (See Rule 21M-22.020 (1)(a)-(c), Florida Administrative Code.) At the Board meeting on July 11 and 12, 1992, the Board

   of Medicine discussed proposed amendments to the existing rule and voted to initiate rulemaking to amend Rule 21M- 22.020(1), Florida Administrative Code, by adding to it a new subsection (d) reading as follows:

   
   

   (d) The phrase "successfully completes the Florida Board Examination" is interpreted as requiring obtaining a passing score as defined by Rule 21M-29.001(2) within the time frame set forth in Section 458.311(2), Florida Statutes. Specifically, if the applicant has failed the examination five times after October 1, 1986, the applicant is no longer eligible for licensure.

   
   

6. At its meeting on July 11 and 12, 1992, the Board of Medicine instructed its legal counsel to initiate rulemaking to adopt the rule amendment quoted above. For reasons unknown to the Board's Executive Director, the Board's legal counsel had not yet filed the proposed rule amendment for adoption as of the date of the formal hearing in this case.

   
   

7. On March 12, 1993, eleven days after the formal hearing in this case, notice of proposed rulemaking was published in the Florida Administrative Weekly. The proposed rulemaking noticed on March 12, 1993, is the same as, or substantially the same as, the proposed language described in Paragraph 5, above. The proposed rulemaking noticed on March 12, 1993, is presently the subject of a rule challenge petition filed by the Petitioner in this case. See Case No. 93-2166RP. The Petitioner in this case is also the Petitioner in Case No. 93-1801, which involves a petition filed pursuant to section 120.57(1), Florida Statutes, to challenge the proposed denial of the Petitioner's application for a license.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sections 120.535, 120.54, 120.56, and 120.57(1), Florida Statutes.

   
   

9. The Petitioner's substantial interests are affected by the statement of the Board of Medicine which is the subject of this proceeding.

   
   

10. The Petitioner is seeking an administrative determination that the text of the Board's January 19, 1993, order (Quoted in Finding of Fact 4 of this Final Order) is an agency statement that violates subsection (1) of Section 120.535, Florida Statutes, which provides as follows:

    
    

    Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule under s. 120.52(16) shall be adopted by the rulemaking procedure provided by s. 120.54 as soon as feasible and practicable.

    Rulemaking shall be presumed feasible and practicable to the extent provided by this subsection unless one of the factors provided by this subsection is applicable.

    1. Rulemaking shall be presumed feasible unless the agency proves that:

       1. The agency has not had sufficient time to acquire the knowledge and experience reasonably necessary to address a statement by rulemaking; or

       2. Related matters are not sufficiently resolved to enable the agency to address a statement by rulemaking; or

       3. The agency is currently using the rulemaking procedure expeditiously and in good faith to adopt rules which address the statement.

    2. Rulemaking shall be presumed practicable to the extent necessary to provide fair notice to affected persons of relevant agency procedures and applicable principles, criteria, or standards for agency decisions unless the agency proves that:

    1. Detail or precision in the establishment of principles, criteria, or standards for agency decisions is not reasonable under the circumstances; or

    2. The particular questions addressed are of such a narrow scope that more specific resolution of the matter is impractical outside of an adjudication to determine the substantial interests of a party based on individual circumstances.

    
    

11. To prevail in this matter, the Petitioner must establish, as a threshold requirement, that the text of the Board's January 19, 1993, order constitutes a "rule," as defined in Section 120.52(16), Florida Statutes. An almost identical situation was before the Hearing Officer in Citifirst Mortgage Corp. v. Department of Banking and Finance, DOAH Case No. 92-7496RU, Final Order issued April 1, 1993, in which the Hearing Officer concluded:

1. Section 120.52(16), Florida Statutes, defines the term "rule," in pertinent part, as "each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedures, or practice

   requirements of an agency[,] . . . includ[ing] any form which imposes any requirement or solicits any information not specifically required by statute or an existing rule."

2. Statements of "general applicability," as that term is used in Section 120.52(16), Florida Statutes, are "statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law." McDonald v. Department of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977).

3. The text of the Department's October 28, 1992, letter to Petitioner is not such a statement of "general applicability."

4. The letter is directed to Petitioner and Petitioner alone and purports to address only Petitioner's individual circumstances. No other entity or person is affected in any way by anything that is stated in the text of the letter. It therefore cannot be said that the text of the letter is of "general applicability." See Home Builders and Contractors Association of Brevard, Inc. v. Department of Community Affairs, 585 So.2d 965, 969-70 (Fla. 1st DCA 1991); Imperial Industries, Inc. v. Florida Compensation Rating Bureau, 387 So.2d 1030, 1034 (Fla. 1st DCA 1980); Department of Commerce, Division of Labor v. Mathews Corporation, 358 So.2d 256, 258-59 (Fla. 1st DCA 1978).

5. Moreover, even insofar as Petitioner is concerned, the text of the letter does not, by its own effect, create rights, require compliance, or otherwise have the direct and consistent effect of law, because it describes action that the Department merely proposes to take and which Petitioner has the opportunity to challenge pursuant to Section 120.57, Florida Statutes, before it becomes final agency action. For this additional reason, the text of the letter is not a statement of "general applicability." See Florida Public Service Commission v. Indiantown Telephone System, Inc., 435 So.2d 892, 895 (Fla. 1st DCA 1983).

6. Because the text of the letter is not a statement of "general applicability" and therefore not a "rule," as defined in Section 120.52(16), Florida Statutes, it is not subject to challenge pursuant to Section 120.535, Florida Statutes.

1. The conclusions quoted immediately above are equally applicable to the text of the Board's January 19, 1993, order. Because the text of that order is not a statement of "general applicability" and therefore not a "rule," as defined in Section 120.52(16), Florida Statutes, it is not subject to challenge pursuant to Section 120.535, Florida Statutes.

   
   

2. The text of the Board's January 19, 1993, order is also not subject to challenge pursuant to Section 120.535, Florida Statutes, for an additional reason not addressed in the Citifirst Mortgage Corp. case, supra. In St. Francis Hospital, Inc. v. Department of Health and Rehabilitative Services, 553 So.2d 1351 (Fla. 1st DCA 1989), at page 1354, the court stated:

   
   

   We recognize that an agency interpretation of a statute which simply reiterates the legislature's statutory mandate and does not place upon the statute an interpretation that

   is not readily apparent from its literal reading, nor in and of itself purport to create rights, or require compliance, or to otherwise have the direct and consistent effect of the law, is not an unpromulgated rule, and actions based upon such an interpretation are permissible without requiring an agency to go through rulemaking.

   
   

3. The statement which is the subject of this proceeding appears to be nothing more or less than the Board's effort to state what it believes the Legislature has required by enactment of the applicable statutes. The Board does not appear to be asserting or applying any requirement of its own making. To the contrary, the Board appears to be stating to the Respondent the Board's understanding of what the Legislature has required of the Respondent and of others similarly situated. As noted in the St. Francis Hospital case, supra, such a statement by an agency "is not an unpromulgated rule . . ." And because the statement is not an unpromulgated rule, it is not subject to challenge pursuant to Section 120.535, Florida Statutes.

   
   

4. In view of the foregoing conclusions, it is not necessary to address the issue of whether the Board is "using the rulemaking procedure expeditiously and in good faith . . ." Further, all issues regarding the merits of the Board's interpretation of the applicable statutory language can be raised and addressed in one or the other, or both, of the other two related cases; namely, Case Nos. 93-1801 and 93-2166RP.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED that the Petitioner's petition challenging, pursuant to Section 120.535, Florida Statutes, the text of the Board's January 19, 1993, order is dismissed.

DONE AND ORDERED this 10th day of June, 1993, at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1993.

APPENDIX

The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

Paragraphs 1 and 2: Rejected as constituting conclusions of law, rather than proposed findings of fact. These conclusions are essentially correct, but are conclusions nevertheless and are not properly part of the findings of fact.

Paragraph 3: Accepted in substance.

Paragraph 4: Rejected as subordinate and unnecessary details.

Paragraph 5: Rejected as constituting conclusions of law, rather than proposed findings of fact.

Paragraphs 6 and 7: Rejected as subordinate and unnecessary details and as, in any event, irrelevant to the issues in this case. (These historical details may be relevant to the disposition of the Petitioner's other two cases, but they are not relevant to the question of whether the statement at issue is a rule.)

Paragraphs 8 and 9: Accepted in substance.

Paragraphs 10 and 11: Rejected as subordinate and unnecessary details. Paragraphs 12, 13, and 14: Accepted in substance.

Paragraph 15: Rejected as constituting conclusions of law, rather than proposed findings of fact.

Paragraph 16: Rejected as subordinate and unnecessary details. Findings submitted by Respondent:

Paragraph 1 and 2: Accepted in substance with some unnecessary details omitted.

Paragraph 3: Rejected as constituting a conclusion of law, rather than a proposed finding of fact.

Paragraph 4: Rejected as subordinate and unnecessary details and as, in any event, irrelevant to the issues in this case.

Paragraphs 5 and 6: Accepted in substance.

Paragraph 7: First two sentences accepted in substance. Last sentence rejected as constituting argument or editorial comment, rather than proposed finding of fact.

Paragraphs 8, 9, and 10: Accepted in substance.

Paragraph 11: Rejected as constituting legal argument or statement of position, rather than proposed finding of fact.

COPIES FURNISHED:

Robert S. Turk, Esquire Valdes-Fauli, Cobb, Bischoff

& Kriss, P.A.

One Biscayne Tower, Suite 3400 Two South Biscayne Boulevard Miami, Florida 33131-1897

Allen Grossman, Esquire Department of Legal Affairs Office of the Attorney General The Capitol

Tallahassee, Florida 32399-1050

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 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.

Docket for Case No: 93-000538RU

Orders for Case No: 93-000538RU