STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANA CAOS, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 93-2166RP

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was conducted in this case at Miami, Florida, on July 28, 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: Claire D. Dryfuss, Esquire

Department of Legal Affairs Office of the Attorney General The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent's proposed Rule 21M- 22.020, Florida Administrative Code, is an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

This rule challenge case has a companion case, Case No. 93- 1801, in which the same Petitioner has filed a Petition pursuant to Section 120.57(1), Florida Statutes, seeking to establish her entitlement to continue to seek licensure pursuant to Section 458.311(8), Florida Statutes (1992 Supp.). The formal hearing in both cases was held at the same time on July 28, 1993. A Recommended Order is being issued in Case No. 93-1801 at the same time as the issuance of this Final Order.

At the formal hearing on July 28, 1993, the Petitioner testified on her own behalf and also called one other witness, the Executive Director of the Board of Medicine. The Petitioner also offered nine exhibits, all but one of which were received in evidence. The Respondent recalled the Executive Director as a witness and also offered two exhibits, both of which were received in evidence. At the conclusion of the hearing the parties were allowed until August 27, 1993, within which to file their proposed final orders. A transcript of the proceedings at hearing was filed with the Hearing Officer on August 16, 1993.

Thereafter the Petitioner filed a timely proposed order that addressed the factual and legal issues in both this case and in Case No. 93-1801. The Respondent filed a timely proposed final order. 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.

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. The Florida Board Examination is also known as the FLEX examination. In an effort to meet that prerequisite, the Petitioner has already taken the FLEX 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. The issue of whether Section 458.311(2), Florida Statutes, had the effect of limiting the number of times the Petitioner could take the FLEX exam was first considered by the Board of Medicine in 1992. In response to an earlier application by the Petitioner, by letter dated March 11, 1992, the Petitioner was advised by Board staff that Section 458.311(2), Florida Statutes, appeared to apply to her application and that the matter would be considered by the Board at the next meeting of the Board. Thereafter, by letter dated May 7, 1992, Board staff advised the Petitioner that her application would be considered by the Board's Credentials Committee, and that the Petitioner was required to attend the meeting of that committee on May 27, 1992.

   
   

5. At the May 27, 1992, meeting, the Board's Credentials Committee, following perfunctory advice of counsel, and without discussion by the committee members, voted to recommend that the Petitioner be allowed to take the FLEX exam a sixth time after 1986, even though she had previously failed the exam five times since 1986. The committee recommendation was adopted by a majority of the Board of Medicine, and the Petitioner was allowed to take the FLEX examination for a sixth time since 1986.

   
   

6. The Petitioner failed the FLEX examination for a sixth time since 1986. The Petitioner has reapplied for licensure under Section 458.311(8), Florida Statutes (1992 Supp.), and seeks to take the FLEX exam for a seventh time since 1986.

7. On January 19, 1993, the Board of Medicine filed and served an order regarding the Petitioner's pending 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 examinatiion 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 the FLEX examination for a sixth time in 1992, it has since that time determined that this provision applies to all applicants for licensure.

      
      

8. 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), 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 new subsections specifically addressing the issue of how many times applicants under subsections (8) and (10) of Section 458.311, Florida Statutes, may take the licensure examination. At its meeting on July 11 and 12, 1992, the Board of Medicine instructed its legal counsel to initiate rulemaking to adopt the rule amendments described above. For reasons unknown to the Board's Executive Director, the Board's legal counsel did not file the proposed rule amendment for adoption until March of 1993. The March 12, 1993, issue of the Florida Administrative Weekly contains notice of the Board's intention to adopt the rule amendments described above. The full text of the proposed rule is as follows:

   
   

   21M-22020 Western Hemisphere Exile Requirements.

   
   

   1. For purposes of interpreting Section 458.311, Florida Statutes, as amended by Section 6, Chapter 86-245, Laws of Florida, (codified at Subsection 458.311(8)(9)(a), Florida Statutes (1992 Supp))(1988 Supp), the following shall apply:

      (a) - (c) No change

      (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.

   2. For purposes of interpreting Section 458.311, Florida Statutes, as amended by Chapter 89-266, Chapter 89-541 and Chapter 92-53, Laws of Florida, (codified at Subsection 458.311(10), Florida Statutes (1992 Supp.)(1991)), the following shall apply:

   (a) - (g) No change.

   (h) The phrase "successful completion of the licensure 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.

   
   

9. It is the consistent practice of the Board of Medicine to apply the provisions of Section 458.311(1)(a)-(d), (4), and (5), Florida Statutes, to all applicants seeking licensure under Section 458.311(8), which last-mentioned section is also known as the "Cuban Exile Program."

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The Petitioner's substantial interests would be affected by adoption of the proposed rule amendments described and quoted in the Findings of Fact, above. Accordingly, the Petitioner has standing to challenge the proposed rule amendments. Section 120.54(4), Florida Statutes.

    
    

12. Section 120.52(8), Florida Statutes (1992 Supp.), contains the following definition:

    
    

    1. "Invalid exercise of delegated legislative authority" means action which goes beyond

       the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

       2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

       3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

       4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

       5. The rule is arbitrary or capricious.

    
    

13. The main thrust of the Petitioner's challenge to the subject proposed rules appears to be a contention that the proposed amendment is arbitrary or capricious. The Petitioner's arguments also challenge whether the agency has exceeded its grant of rulemaking authority, as well as whether the rule enlarges, modifies, or contravenes the specific provisions of law implemented. Stated otherwise, the Petitioner's basic position is that the Board of Medicine has simply misinterpreted the applicable statutes and has given to them meanings other than the meanings intended by the Legislature.

    
    

14. The Petitioner argues that she, and all other applicants for licensure under Section 458.311(8), Florida Statutes (1992 Supp,), are exempt from the language of Section 458.311(2), Florida Statutes (1992 Supp.), which reads as follows:

    
    

    (2) Every applicant who is otherwise qualified may take the licensing examination five times after October 1, 1986, notwithstanding the number of times the examination has been previously failed. If an applicant fails the examination taken after October 1, 1986, five times, he shall no longer be eligible for licensure.

    
    

15. The Petitioner's exemption argument is based on the language underscored below from the opening portion of Section 458.311(8), Florida Statutes (1992 Supp.), which reads as follows, in pertinent part:

    
    

    (8) Notwithstanding any of the provisions

    of this section, the department shall issue a restricted license to any applicant who successfully completes the Florida Board Examination and who the board certifies has met the criteria of subparagraph (a)1. or subparagraph (a)2. . . .

    
    

16. Other relevant provisions of Section 458.331(1), (4), and (5), Florida Statutes 1992 Supp.), read as follows:

    
    

    458.311 Licensure by examination; requirements; fees.-

    1. Any person desiring to be licensed as a physician shall apply to the department to take the licensure examination. The department shall examine each applicant whom the board certifies:

       1. Has completed the application form and remitted a nonrefundable application fee not to exceed $500 and an examination fee not to exceed $300 plus the actual per applicant cost to the department for purchase of the examination from the Federation of State Medical Boards of the United States or a similar national organization, which is refundable if the applicant is found to be ineligible to take the examination.

       2. Is at least 21 years of age.

       3. Is of good moral character.

       4. Has not committed any act or offense in this or any other jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331.

    
    

    * * *

    
    

    1. The department and the board shall

       assure that applicants for licensure meet the criteria in subsection (1) through an investigative process. When the investigative process is not completed within the time set out in s. 120.60(2) and the department or board has reason to believe that the applicant does not meet the criteria, the secretary or his designee may issue a 90-day licensure delay which shall be in writing and sufficient to notify the applicant of the reason for the delay. The provisions of this subsection shall control over any conflicting provisions of s.

       120.60(2).

    2. The board may not certify to the department for licensure any applicant who is under investigation in another jurisdiction for an offense which would constitute a violation of this chapter until such investigation is completed. Upon completion of the investigation, the provisions of s.

    458.331 shall apply. Furthermore, the department may not issue an unrestricted license to any individual who has committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331. When the board finds that an individual has committed an act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331, then the board may enter an order imposing one or more of the terms set forth in subsection (9).

17. The policy of the Board of Medicine, as expressed in both the Board's order of January 19, 1993, and in the Board's proposed rule amendments, is to apply the examination requirements of Section 458.311(2), Florida Statutes (1992 Supp.), to applicants for licensure under Section 458.311(8), Florida Statutes (1992 Supp.), the Cuban Exile Program. In making this policy choice, it has been necessary for the Board to construe the applicable statutory provisions and to resolve the unavoidable ambiguities that arise from trying to give meaning to both Section 458.311(2) and Section 458.311(8). In view of the specific language of the subject statutory provisions and the context in which that language appears, reasonable people can honestly and logically be of different opinions as to how the ambiguities should be resolved. Under such circumstances an agency's interpretation should not normally be disturbed. As noted in State Dept. of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d

    238 (Fla. 1st DCA 1981), at page 242:

    
    

    When as here an agency has responded to rulemaking incentives and has allowed affected parties to help shape the rules they know will regulate them in the future, the judiciary must not, and we shall not, overly restrict the range of an agency's interpretive powers. Permissible interpretations of a statute must and will be sustained, though other interpre- tations are possible and may even seem preferable according to some views. If the rule binds too tightly to suit them, the appellee developers have their proper remedy in the representative and politically responsive branches, the legislative or executive, but not in the judiciary, nor in Section 120.56 rule challenge proceedings before a hearing officer.

    
    

18. The courts have recognized on any number of occasions that where agency rulemaking is challenged as being arbitrary and capricious, the challenger bears a heavy burden. More recently, in Dravo Basic Materials Company, Inc., v. State, Dept. of Transportation, 17 FLW D1673 (Fla. 2d DCA July 8, 1992), the court noted:

    
    

    When a proposed rule is challenged before a hearing officer, it is the role of the officer to determine whether the rule is arbitrary or capricious. See Sec. 120.56(1), Fla. Stat. (1989); Sec. 120.52(8)(e), Fla.

    Stat. (1989). This is usually a fact- intensive determination. A proposed rule is "arbitrary" only if it is "not supported by fact or logic." Agrico, 365 So.2d at 763.

    It is "capricious" if it is taken "without thought or reason." Id. The party challenging the rule must prove its invalidity by a preponderance of the evidence. Id.

19. And in a footnote to the foregoing (See footnote 3 at 17 FLW D1674), the Dravo court further explained:

    
    

    Indeed, Agrico even suggests that an administrative decision is not arbitrary unless it is "despotic." 365 So.2d 763. Webster's New World Dictionary suggests that an arbitrary decision is one that is "whimsical." Webster's New World Dictionary (V. Neufeldt 3d College ed. 1988). Likewise, "capricious" is defined in Agrico as "irrational." Such definitions add color and flavor to our traditionally dry legal vocabulary, but do not assist an objective legal analysis. If an administrative decision is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, it would seem that the decision is neither arbitrary nor capricious. Cf. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980)("The trial court's discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification.") (Emphasis supplied.)

    
    

20. Where, as here, proposed rulemaking is challenged as being arbitrary and capricious, the question is not whether the agency has made the best choice, or even whether the agency has made a correct choice, but only whether the agency has made a reasonable choice. The agency's decision in this case meets the reasonableness standards summarized in Dravo, supra.

    
    

21. In Carter v. Dept. of Professional Regulation, Bd. of Medicine, 550 So.2d 494 (Fla. 1st DCA 1989), the court had before it the Board of Medicine's construction of another provision of Chapter 458, Florida Statutes. In Carter the parties were arguing in support of essentially opposite interpretations of Section 458.303(1)(c), Florida Statutes (1987). In affirming the Board's interpretation of the statute, the court said, at page 495:

    
    

    It is a settled principle of law that an administrative agency's construction of a statute it is charged with enforcing is entitled to substantial deference.

    Accordingly, courts will decline to overturn that construction except for the most cogent reasons, or unless clearly erroneous, unreasonable, or in conflict with some provision of the State's Constitution or the plain intent of the statute.

    
    

22. The Board's interpretation of the applicable statutory language, as reflected in the Board's order of January 19, 1993, and in its proposed rulemaking, is neither clearly erroneous nor unreasonable. To the contrary, it is consistent with a number of the rules of statutory construction, not the least of which is the rule that in the interpretation of statutes, absurd results should be avoided. See City of St. Petersburg v. Siebold, 48 So.2d 291

    (Fla. 1950); Tampa-Hillsborough County Expressway Authority v. K. E. Morris Alignment Service, Inc., 444 So.2d 926 (Fla. 1983). Interpretation of the effect of Section 458.311(8), Florida Statutes (1992 Supp.), in the manner urged by the Petitioner would produce an absurd result because the same logic that supports that interpretation would also support an interpretation that excused applicants under Section 458.311(8) from the statutory requirements of Section 458.311(1), Florida Statutes (1992 Supp.), which require applicants to submit an application, to pay an application fee, to be at least 21 years of age, to be of good moral character, and not to have committed certain offenses. It is most unlikely that the Legislature intended to exempt applicants under the Cuban Exile Program from such basic requirements applicable to other applicants for licensure by examination.

    
    

23. The Board's interpretation of the subject statutory language is also consistent with the rule of construction to the effect that a statute should be construed so as to give effect to the legislative intent, ". . . and such intent must be given effect, even though it may appear to contradict the strict letter of the statute." Ervin v. Peninsular Telephone Co., 53 So.2d 647 (Fla. 1951), at 654. To the same effect see Garner v. Ward, 251 So.2d 252 (Fla. 1971). The intent of Section 458.311(8), Florida Statutes (1992 Supp.), appears to be to establish alternative education, training, and experience requirements for certain Cuban graduates. That intent can be, and has been, fulfilled by exempting certain Cuban graduates from the education, training, and experience requirements imposed on other applicants. Fulfillment of that intent does not require that certain Cuban graduates be exempted from all of the other requirements imposed on other applicants for licensure by examination.

    
    

24. The Petitioner also argues that the Respondent's action in this case is arbitrary and capricious because in May of 1992 the Board interpreted the subject statutory provisions otherwise and allowed the Petitioner to take the FLEX examination for a sixth time since 1986. It is not necessarily arbitrary and capricious for an agency to change its mind. Were such to be the case, agencies that made mistakes would never be able to correct their mistakes. The subject statutory provisions present the Board with difficult decisions. The fact that the Board made one choice and then changed it for another is more a manifestation of the difficulty of the choice before the Board than it is a manifestation of any arbitrary or capricious action by the Board. As noted above, reasonable people could differ as to how to best interpret and apply the subject statutory provisions and under such circumstances it cannot be said that the Board's choice is arbitrary or capricious.

For all of the foregoing reasons, it is ORDERED: That the Petition in this case is hereby DISMISSED, and the relief requested by the Petitioner is hereby DENIED.

DONE AND ORDERED this 16th day of September, 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 16th day of September, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2166RP

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted in substance with some subordinate and unnecessary details omitted.

Paragraph 8: Rejected as not fully supported by the evidence of record and as, in any event, subordinate and unnecessary details in view of later Board action.

Paragraphs 9, 10, 11, 12, and 13: Accepted in substance with some subordinate and unnecessary details omitted.

Paragraph 14: Rejected as irrelevant. Findings submitted by Respondent:

Paragraph 1: Covered in Preliminary Statement Paragraphs 2, 3, and 4: Accepted in substance.

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

Claire D. Dryfuss, 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

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: 93-002166RP

Orders for Case No: 93-002166RP