vs. )
Respondent. )
Case No. 01-4323RX
THIS CAUSE came on before Daniel M. Kilbride, Administrative Law Judge, the Division of Administrative Hearings, pursuant to the Petition to Challenge Existing Rule under Subsection 120.56(3), Florida Statutes, in Tallahassee, Florida.
For Petitioner: Jack D. Hoogewind, Esquire
Office of the Attorney General, Department of Legal Affairs The Capitol, Plaza Level 01
Whether the provisions of Rule Subsections 64B8-9.008(1) and (2), Florida Administrative Code, enlarge, modify, or
contravene the provisions of law implemented, and is arbitrary and capricious because the rule penalizes harmless conduct, in violation of Subsections 120.52(8)(c) and (e), Florida Statutes.
Whether the Department of Health had the statutory authority to promulgate Rule 64B8-9.008, Florida Administrative Code, pursuant to Section 120.536, Florida Statutes.
Whether the Board of Medicine had statutory authority to promulgate Rule 64B8-9.008, Florida Administrative Code, pursuant to Section 120.536, Florida Statutes.
On May 4, 2001, the Department of Health (DOH) filed an Administrative Complaint against Petitioner's medical license. Petitioner disputed the allegations and requested a formal hearing. During the course of the formal hearing process, Petitioner sought to challenge a rule of the Board of Medicine which had been officially recognized during the formal hearing process. Permission was granted, and, subsequently, on November 2, 2001, Petitioner filed a Petition to Challenge Existing Rule with the Clerk of the Division of Administrative Hearings (DOAH). Pursuant to a telephonic hearing, the parties agreed that there appear to be no disputed facts or need for an evidentiary hearing. Respondent was given ten days to object to the Judge's consideration of Exhibits A, B, and C, which were attached to the Petition to Challenge Existing Rule. No
objection has been forthcoming, and therefore these exhibits are properly before this tribunal, and the following findings of fact are based on the exhibits.
Petitioner names DOH and the Board of Medicine (Board), as Respondents in this action. Petitioner alleges that DOH did not have authority to adopt Rule 64B8-9.008, Florida Administrative Code. DOH did not promulgate the rule at issue. It was promulgated by the Board; therefore, Respondent, DOH, is dismissed.
The parties submitted their Proposed Final Orders and Briefs in a timely manner, and each has been given careful consideration in the preparation of this Final Order.
DOH has filed an Administrative Complaint against Petitioner herein, Dr. Zafar Shah, M.D., seeking disciplinary sanctions against his medical license. The Complaint alleges that Petitioner violated Subsections 458.331(1)(j) and (x), Florida Statutes (1999). Subsection (j) requires that the physician exploit the physician-patient relationship to obtain sex from a patient before he is subject to discipline. Subsection (x) holds, inter alia, that violating a rule of the Board or DOH by a physician subjects him to discipline.1
The Administrative Complaint alleges that the sexual relationship between Petitioner and patient, T.R., began in
December of 1996. According to the complaint, Petitioner first treated T.R. on August 20, 1997, about eight months after he first had sex with her. Petitioner continued to treat T.R. periodically until on or about January 18, 1999.
During the prosecution of the administrative action against Petitioner, DOH requested that the Administrative Law Judge take official recognition of Section 458.329, Florida Statutes, a special section relating to sexual misconduct and Rule 61B8-8.001, Florida Administrative Code, as amended December 28, 1999, and Rule 64B8-9.008, Florida Administrative Code, as amended May 29, 1997, by the Board of Medicine. An order was entered granting that request.
Section 458.329, Florida Statutes, reads as follows:
Sexual misconduct in the practice of medicine.–
The physician-patient relationship is founded on mutual trust. Sexual misconduct in the practice of medicine means violation of the physician-patient relationship through which the physician uses said relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient.
Sexual misconduct in the practice of medicine is prohibited.
Section 458.331, Florida Statutes (1999), reads in pertinent part, as follows:
Grounds for disciplinary action; action by the board and department.–-
The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
* * *
(j) Exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity. A patient shall be presumed to be incapable of giving free, full, and informed consent to sexual activity with his or her physician.
* * *
(v) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he or she is not competent to perform. The board may establish by rule standards of practice and standards of care for particular practice settings, including, but not limited to, education and training, equipment and supplies, medications including anesthetics, assistance of and delegation to other personnel, transfer agreements, sterilization, records, performance of complex or multiple procedures, informed consent, and policy and procedure manuals.
* * *
(x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.
Rule 64B8-9.008, Florida Administrative Code, reads in pertinent part, as follows:
64B8-9.008 Sexual Misconduct.--
Sexual contact with a patient is sexual misconduct and is a violation of Sections 458.329 and 458.331(1)(j), Florida Statutes.
For purposes of this rule, sexual misconduct between a physician and a patient includes, but it is not limited to:
Sexual behavior or involvement with a patient including verbal or physical behavior which
may reasonably be interpreted as romantic involvement with a patient regardless of whether such involvement occurs in the professional setting or outside of it;
may reasonably be interpreted as intended for the sexual arousal or gratification of the physician, the patient or any third party; or
may reasonably be interpreted by the patient as being sexual.
Sexual behavior or involvement with a patient not actively receiving treatment from the physician, including verbal or physical behavior or involvement which meets any one or more of the criteria in paragraph (2)(a) above and which
results from the use or exploitation of trust, knowledge, influence or emotions derived from the professional relationship;
misuses privileged information or access to privileged information to meet the physician's personal or sexual needs; or
is an abuse or reasonably appears to be an abuse of authority or power.
* * *
The determination of when a person is a patient for purposes of this rule is made on a case by case basis with consideration given to the nature, extent, and context of the professional relationship between the physician and the person. The fact that a person is not actively receiving treatment or professional services from a physician is not determinative of this issue. A person is presumed to remain a patient until the patient-physician relationship is terminated.
The mere passage of time since the patient's last visit to the physician is not solely determinative of whether or not the physician-patient relationship has been terminated. Some of the factors considered by the Board in determining whether the physician-patient relationship has terminated include, but are not limited to, the following:
formal termination procedures;
transfer of the patient's case to another physician;
the length of time that has passed since the patient's last visit to the physician;
the length of the professional relationship;
the extent to which the patient has confided personal or private information to the physician;
the nature of the patient's medical problem;
the degree of emotional dependence that the patient has on the physician.
Sexual conduct between a physician and a former patient after termination of the physician-patient relationship will constitute a violation of the Medical Practice Act if the sexual contact is a result of the exploitation of trust, knowledge, influence or emotions, derived from the professional relationship.
A patient's consent to, initiation of, or participation in sexual behavior or involvement with a physician does not change the nature of the conduct nor lift the statutory prohibition.
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(9) Upon a finding that a physician has committed unprofessional conduct by engaging in sexual misconduct, the Board will impose such discipline as the Board deems necessary to protect the public. The sanctions available to the Board are set forth in Rule 64B8-8.001, F.A.C., and include restriction or limitation of the physician's practice, revocation or suspension of the physician's license.
The challenged portions of the rule consists of: Rule Subsections 64B8-9.008(1) and (2), Florida Administrative Code. Rule 64B8-9.008, Florida Administrative Code, cites as Specific Authority Section 458.309 and Subsection 458.331(5), Florida Statutes; as Law Implemented the Rule cites Section 458.329 and Subsection 458.331(1)(j), Florida Statutes. By technical change to the Rule filed December 12, 2001, with the Bureau of Administrative Code, the Rule cites as Specific Authority and Law Implemented Subsection 458.331(1)(v), Florida Statutes.
Subsection 458.331(1)(v), Florida Statutes, authorizes the Board to establish by rule standards of practice.
Subsection 458.309(1), Florida Statutes, provides as follows:
The board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it.
Subsection 458.331(5), Florida Statutes, provides as follows:
The board shall by rule establish guidelines for the disposition of disciplinary cases involving specific types of violations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of this action and the parties pursuant to Subsections 120.56(1) and (3), Section 120.569, and Subsection 120.57(1), Florida Statutes.
Section 120.56, Florida Statutes, reads in pertinent part, as follows:
Challenges to rules.–
GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A RULE OR A PROPOSED RULE.–
Any person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.
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(e) Hearings held under this section shall be conducted in the same manner as provided by ss. 120.569 and 120.57, except that the administrative law judge's order shall be final agency action. The petitioner and the agency whose rule is challenged shall be adverse parties.
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CHALLENGING EXISTING RULES; SPECIAL PROVISIONS.–
A substantially affected person may seek an administrative determination of the invalidity of an existing rule at any time during the existence of the rule.
The administrative law judge may declare all or part of a rule invalid. The rule or part thereof declared invalid shall become void when the time for filing an appeal expires. The agency whose rule has been declared invalid in whole or part shall give notice of the decision in the Florida Administrative Weekly in the first available issue after the rule has become void.
Petitioner alleges that the cited portions of Rule 64B8-9.008, Florida Administrative Code, violate Subsection 120.52(8), Florida Statutes. Subsections 120.52(8)(c) and (e), Florida Statutes, provide that a rule is an invalid exercise delegation of legislative authority if it enlarges, modifies, or contravenes the specific provisions of law implemented, or is arbitrary or capricious.
Petitioner alleges that the language of Rule Subsections 64B8-9.008(1) and (2), Florida Administrative Code,
permits the Board to find a violation of Section 458.329, Florida Statutes, when the physician has not violated the physician-patient relationship or used the physician-patient relationship to induce or attempt to induce the patient to engage in sexual activity. The allegations also claim that the language of the Rule permits the Board to find a violation of Subsection 458.331(1)(j), Florida Statutes, when the physician has not exercised influence within a physician-patient relationship for purposes of engaging a patient in sexual activity.
Section 458.329, Florida Statutes, specifically defines sexual misconduct in the practice of medicine. Rule Subsection 64B8-9.008(1), Florida Administrative Code, does not impermissibly enlarge the specific provisions of the law implemented. Under the Rule, sexual contact with a patient constitutes sexual misconduct. The Rule then goes on to list what behavior would be considered sexual in nature when applied to the definition of sexual misconduct, as set forth in the statutes.
As explained in 2 Fla. Jur. 2d, Administrative Law Section 165:
Administrative regulations must be consistent with the statutes under which they are promulgated, and they may not amend, add to, or repeal the statute. An agency may not promulgate regulations which
broaden the scope of a proscription contained in its enabling legislation, read into a statute conditions or requirements not plainly expressed therein, or attempt to supply essential substantive provisions which are missing from or are unclear in the statute.
State v. Florida Department of Business Regulation v. Salvation Limited, Inc., 452 So. 2d 65 (Fla. 1st DCA 1984). See Whitener
v. Department of Business and Professional Regulation, 662 So. 2d 1299 (Fla. 4th DCA 1995); State, Department of Health and Rehabilitative Services v. McTigue, 387 So. 2d 454 (Fla. 1st DCA 1997); Capeletti Builders, Inc. v. Dept. of Transportation, 499 So. 2d 855 (Fla. 1st DCA 1986).
Neither Subsection 458.331(1)(j) nor (v), Florida Statutes, authorized the Board to adopt rules to "redefine" the term "sexual misconduct" in this section, nor does it contemplate that the Board needs to establish standards of practice relating to sexual misconduct. The Legislature expressly enacted its definition of sexual misconduct in Section 458.329, Florida Statutes, and authorized the Department of Health to charge a physician with sexual misconduct under Subsection 458.331(1)(x), Florida Statutes.
Rule Subsections 64B8-9.008(1) and (2), Florida Administrative Code, however, does not eliminate or attempt to eliminate the elements of the violation set forth in Section
458.329 and Subsection 458.331(1)(j), Florida Statutes. Rule
Subsection 64B8-9.008(1), Florida Administrative Code, ties sexual misconduct under the Rule to the two statutory provisions which define it. Rule Subsection 64B8-9.008(2)(a), Florida Administrative Code, defines the behavior that the Board will consider to be behavior that constitutes sexual activity for the purposes of Section 458.329 and Subsection 458.331(1)(j), Florida Statutes. Rule Subsection 64B8-9.008(2)(b), Florida Administrative Code, clarifies that the patient in an established physician-patient relationship need not be actively receiving treatment at the time of the sexual activity for a violation to be found if the behavior results from exploitation, misuse of privileged information, or an abuse of authority or power. This subsection provides guidelines regarding two elements of the violation:
what constitutes use of the physician-patient relationship or exercising influence within the physician- patient relationship, e.g. exploitation, misuse of privileged information, or abuse of authority or power, and
the parameters of the physician-patient relationship, which does not require current, active treatment for the relationship to exist.
Petitioner also alleges the identified Rule subsections (Rule Subsections 64B8-9.008(1) and (2), Florida Administrative Code) violate Subsection 120.52(8)(e), Florida
Statutes, because the Rule's subsections are arbitrary and capricious. Petitioner alleges the Rule subsections are arbitrary and capricious because they "penalize [] harmless conduct that a physician has a constitutional right to engage in." Petitioner does not have a constitutional right to engage in sexual misconduct. Subsections (1) and (2) of the Rule provide guidelines for licensees in the determination of whether a physician-patient relationship existed between a licensee and his or her patient; whether prohibited behavior occurred; and whether a licensee improperly exploited the patient, or used privileged information inappropriately including sexual activity; or abused his or her position of trust and authority to induce a patient to engage in sexual activity.
The fact that Petitioner engaged in sexual activity prior to establishing a physician-patient relationship, if such a finding is made, is one factor to take into consideration in determining if Petitioner violated Section 458.239 and Subsection 458.331(1)(j), Florida Statutes. Regardless of the fact that sexual activity occurred prior to the establishment of a physician-patient relationship, a determination could be made that the continuation of sexual activity, under the circumstances, as a matter of fact, resulted from improper exploitation or abuse of authority and trust; or conversely, it could be determined that such exploitation and abuse did not
occur under the facts of the case. The language of the challenged portions of the Rule does not pre-determine the result in the underlying disciplinary action.
To the extent that Petitioner challenges the Rule as arbitrary and capricious because of constitutional implications, this tribunal does not have the authority to find an existing rule unconstitutional. "[A] hearing officer [now administrative law judge] does not have power to adjudicate the constitutionality of a [promulgated] rule, such power being a judicial rather than a quasi-judicial power." Department of
Environmental Regulation v. Leon County, 344 So. 2d 297 (Fla. 1st DCA 1977); see also Department of Administration v. Stevens,
344 So. 2d 290 (Fla. 1st DCA 1977); and Department of Administration, Division of Personnel v. Department of
Administration, Division of Administrative Hearings, 326 So. 2d
187 (Fla. 1st DCA 1976). But see, Caddy v. Department of Health, 764 So. 2d 625 (Fla. 1st DCA 2000).
The standard for determining whether a rule is arbitrary and capricious pursuant to Subsection 120.52(8)(e), Florida Statutes, is whether it is not supported by fact or logic or is enacted without thought or reason. Conversely, if an administrative decision is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, it is neither arbitrary nor capricious.
Dravo Basic Chemicals Company v. State, 602 So. 2d 632 (Fla. 2d DCA 1992). This standard was recognized by the Legislature, as was noted in Florida League of Cities, Inc. v. Department of Environmental Regulation, 603 So. 2d 1363, 1367-8 (Fla. 1st DCA 1992):
Staff Analysis of the House Committee on Governmental Operations, "Staff Analysis of Proposed Amendments to Chapter 120, F.S., for House Bill 710 and Senate Bill 608" (1987) (Florida State Archives), explaining that Section 120.52(8)(e), Florida Statutes (1987), relating to the term arbitrary or capricious, "codifies the long established principle that administrative rules cannot be arbitrary or capricious, i.e., unsupported by logic, despotic or irrational." In support of this statement the Staff Analysis refers to the Agrico Chemical Co. [v. State Department of Environmental Protection, 365 So. 2d 759 (Fla. 1st DCA 1978)] and the General Telephone Co. of [v. Florida Public Service Commission, 446 So. 2d 1063 (Fla. 1984)] opinions.
Subsections (1) and (2) of the challenged Rule provisions are not illogical, despotic, or irrational. The Rule addresses elements of the violation stated in the statutes (which have not and could not be challenged by Petitioner in this proceeding.). It is not despotic of the Board to recognize that a physician can exercise influence in the physician-patient relationship or use the physician-patient relationship improperly even though treatment is not being actively provided at the time. Otherwise, a gynecologist who only sees patients
once a year could avoid the strictures of the law by only engaging in sexual activity with a patient in-between visits. Likewise, it is hardly illogical or irrational to define sexual activity as something broader than sexual intercourse. The definitions of what constitutes sexual behavior advise licensed physicians that verbal comments intended to induce sexual activity are as inappropriate as physical behavior; the definitions are intended to protect the unwilling recipient as well as the patient who consents through the physician's abuse of his or her position of trust.
Prior to the 1996 Amendments to Chapter 120, Florida Statutes, an agency had implied rulemaking authority to implement that agency's statutory duties, as long as the rules were "reasonably related" to the purpose of the enabling legislation. However, in 1996, Section 120.536, Florida Statutes, was created, to provide that:
120.536 Rulemaking authority; listed of rules exceeding authority repeal; challenge.--
(1) A grant of rulemaking authority is necessary, but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose or the enabling legislation. "
This section repealed the "reasonably related" test previously relied on by the courts. Department of Professional Regulation
v. Calder Race Course, Inc., 724 So. 2d 100, 102 (Fla. 1st DCA 1998).
The Southwest Florida Water Management District v.
Save the Manatee Club, Inc., 773 So. 2d 594 (Fla. 1st DCA 2000) provided the First District an opportunity to address the 1999 amendments to Subsection 120.52(8), Florida Statutes, governing the required authority of agencies to engage in rulemaking.
Previously, in St. Johns Water Management District v.
Consolidated-Tomoka Land Co., 717 So. 2d 72 (Fla. 1st DCA 1998), the court had construed that provision of Chapter 120 to create a "class of powers" test. Under that test, a rule was valid if it regulated matters within a class of powers identified by the Legislature. Following the decision in the Consolidated-Tomoka case, the Legislature amended Subsection 120.52(8) with the clear intent to limit agencies' rulemaking authority. The amended provisions stated that it was not sufficient for a rule to fall within a class of powers granted to the agency; rather, it must "implement or interpret the specific powers or duties granted by the enabling statute." Subsection 120.52(8), Florida Statutes.
Subsequent to the change in Subsection 120.52(8), the Save the Manatee Club filed a petition with the Division of Administrative Hearings challenging certain provisions of
Rule 40D-4.051, Florida Administrative Code, which created exemption from wetlands permitting for a variety of activities. The basis for the challenge was that the District did not have specific statutory authority to adopt permitting exemptions.
The ALJ held that the rules were invalid. The court agreed with the ALJ that no specific authority existed for the rule. The District argued that Subsection 373.414(9), Florida Statutes, directed the District to adopt implementing rules based "primarily on the existing rules of the [Department of Environmental Protection] and the water management districts." However, the court relied on language in the same statutory provision which stated that permit exemptions could only be adopted where they did not "allow significant adverse impacts." In construing the 1999 amendment to Subsection 120.52(8), the court relied upon the dictionary definition of "specific." It concluded that the intent of the Legislature was that a rule must be based on an explicit power or duty set forth in the statute. In this case, the exemption was based on whether a project was approved before a certain date, not whether it would have a significant adverse impact. Thus, the court concluded
that the exemption was not based on a specific power or duty granted to the District.
In dicta, the court noted that rules may still be more detailed in nature than the underlying statute, stating: "The question is whether the statute contains a specific grant of legislative authority for the rule, not whether the grant of authority is specific enough." The court recognized that greater levels of detail are required in enabling statutes than was the case prior to the 1996 and 1999 APA amendments, but still adhered to the principle that the Legislature will not "micro-manage" agency business by including all implementing details in enabling legislation. Id. at 599. The court declined to formulate an objective test or standard for making the determination. The First District further refused to adopt a sliding scale analysis, and ruled instead that the issue must be determined on a case-by-case basis: Id. at 599.
Thereafter, in Board of Podiatric Medicine v. Florida Medical Association, 779 So. 2d 658 (Fla. 1st DCA 2001), the Florida Medical Association challenged a proposed rule of the Board which defined "human leg" and "surgical treatment." The term human leg was defined in the proposed rule to include the entire leg below the hip. The rule defined surgical treatment to mean "a distinctly operative kind of treatment." The ALJ concluded that the definition expanded the legislative scope of
practice of podiatric medicine by covering the leg above the knee. In that case, the Board of Podiatric Medicine promulgated Rule 64B18-23.001, Florida Administrative Code, which provides definitions pertaining to the standards and scope of podiatric practice. As specific authority for the Rule, the Board of Podiatric Medicine cited to Section 461.005, Florida Statutes, which provides as follows:
The Board of Podiatric Medicine has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it.
As law implemented, the Board of Podiatric Medicine cited to Subsection 461.003(3) [now (5)], Florida Statutes, which provides as follows:
"Practice of podiatric medicine" means the diagnosis of medical, surgical, palliative, and mechanical treatment of ailments of the human foot and leg. The surgical treatment of ailments of the human foot and leg shall be limited anatomically to that part below the anterior tibial tubercle. The practice of podiatric medicine shall include the amputation of the toes or other parts of the foot but shall not include the amputation of the foot or leg in its entirety. A podiatric physician may prescribe drugs that relate specifically to the scope of practice authorized herein.
On appeal, the court reversed. Judge Allen held that the Board did not enlarge, modify, or contravene the statute. The statute defined the practice of podiatric medicine to mean
"diagnosis, surgical, palliative, and mechanical treatment of ailments of the human foot and leg." The court noted that expert testimony at the hearing supported a conclusion that the term leg had various meanings, some of which could be limited to portions of the leg below the knee. Accordingly, it deferred to the Board's broad discretion in construing the statute. In its decision, the First District held that the rulemaking authority in Section 461.005, Florida Statutes, encompassed the implementation of provisions by which Chapter 461 conferred duties upon the Board, and that those duties included matters which required the Board's assessment at to the lawful scope of podiatric practice. The court cited as an example of the duty of the Board to assess the lawful scope of practice Subsection 461.013(1)(u), Florida Statutes, the disciplinary provision making it a violation to practice or offer to practice beyond the scope permitted by law. Therefore, the court found that the Rule defining the term "human leg" fell within the grant of rulemaking authority in Section 461.005, Florida Statutes, "insofar as the rule provides a permissible explication and definition of the statutory terminology used in Section 461.003." However, the court, in its opinion makes no reference to the 1996 or 1999 amendments to the APA, nor does it cite the Save the Manatee case, but only cites cases decided prior to the 1996 changes.
Following its decision is Save the Manatee and Board of Podiatric Medicine, the First District in Board of Trustees
of the Internal Improvement Trust Fund v. Day Cruise Association, Inc., 794. So. 2d 696 (Fla. 1st DCA 2001) applied the 1996 and 1999 amendments to the APA and ruled that the statute was not sufficient under the amended APA to authorize the trustees to promulgate the proposed rule.
The Day Cruise Association challenged a proposed rule of the Board of Trustees that would have prohibited the anchoring or mooring of vessels on sovereignty submerged lands where the vessels were "used primarily for the purpose of gambling" and where such vessels were "engaged in 'cruises to nowhere.'" The ALJ held that the rule was invalid, and the First District affirmed that decision. In reaching this decision, Judge Benton in the majority opinion discussed in detail the recent legislative history of the APA with respect to agencies rulemaking authority. His opinion held that:
Under the 1996 and 1999 amendments to the APA, it is now clear, agencies have rulemaking authority only where the Legislature has enacted a specific statute, and authorized the agency to implement it, and only if the (proposed) rule implements or interprets specific powers or duties, as opposed to improvising in an area that can be said to fall only generally within some class of powers or duties the Legislature has conferred on the agency.
Id. at 700.
The court agreed with the ALJ that the proposed rule violated the provisions of both Subsections 120.52(8)(b) and 120.52(8)(c), Florida Statutes, that the Trustees had exceeded their rulemaking authority and had enlarged upon the specific provisions of law being implemented. The Trustees had cited Subsections 253.03(7)(a) and (b), Florida Statutes, as rulemaking authority in the notice of proposed rulemaking. The court concluded that neither of those subsections provided the necessary authority. Subsection 253.03(7)(a) granted the Trustees very general authority to adopt rules for the overall "acquisition, management, and disposition of state-owned lands." The court held that Subsection (a) did not provide any authority for the proposed regulation as it made no specific reference to submerged lands. In contrast, Subsection (b) did address submerged lands. However, the court concluded that its rulemaking authority was insufficient to allow for a prohibition on the docking of gambling vessels. Subsection (b) provides that the Trustees may adopt rules governing the usage of sovereignty lands by vessels "limited to regulations for anchoring, mooring, or otherwise attaching to the bottom; the establishment of anchorages; and the discharge of sewage, pumpout requirements, and facilities associated with anchorages." The court concluded that the statute did not authorize the Trustees to prohibit an otherwise legal use of a
vessel (gambling) where there was no physical or environmental threat to the sovereignty submerged lands. In addition, the court held that the proposed regulation violated the provision of Subsection (b) that prohibited the Trustees from adopting a rule that would "interfere with commerce or the transitory operation of vessels through navigable water." Subsection 253.03(7)(b), Florida Statutes.
Likewise, the court held that the proposed rule enlarged upon the statutory provisions being implemented. The Trustees had cited Article X, Section 11, Florida Constitution, and Section 253.03 and Section 253.04, Florida Statutes. The court, after reviewing each of those provisions, found no specific provision of law being implemented by the Trustees. It concluded:
In the absence of a specific power or duty enabling or requiring the Trustees to regulate cruises to nowhere or to regulate gambling or to regulate on the basis of activities occurring aboard vessels after they leave sovereignty submerged lands and adjacent water, the Trustees' proposed rule exceeds the Trustees' rulemaking authority and is an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(c), Florida Statutes.
Id. at 704.
In reaching this decision, the court noted that the Legislature had twice considered legislation that would have prohibited "cruises to nowhere" and failed to adopt such a bill.
In a dissenting opinion, Judge Allen disagreed that the statute must grant specific authority to the Trustees to regulate gambling vessels, finding the authority to regulate the anchoring of "vessels, floating homes, or any other watercraft" to be sufficiently broad. Subsection 253.03(7)(b), Florida Statutes. Moreover, he found no basis for limiting the regulatory authority of the Trustees over sovereignty submerged lands to "environmental concerns." He concluded that impact of the majority's opinion would be to negate the power of the Trustees to regulate the use of sovereignty lands by commercial vessels.
In the instant case, Respondent argues that the grant of rulemaking authority to the Board of Medicine in Section 458.309, Florida Statutes, is identical to the authority granted to the Board of Podiatric Medicine in Section 461.005, Florida Statutes; Rule Subsections 64B8-9.008(1) and (2), Florida Administrative Code, define terms used in the statutes just as the Board of Podiatric Medicine's rule defined statutory terminology; and among the duties assigned to the Board of Medicine is the duty to determine if a physician has committed sexual misconduct or otherwise violated the standards of practice. Respondent asserts that the facts of this case are four-square with the facts in Board of Podiatric Medicine; therefore the Rule Subsections 64B8-9.008(1) and (2), Florida
Administrative Code, are authorized by the cited statutory provisions.
Although Respondent is correct on its holding, the Save the Manatee and Day Cruise cases must be examined closely, as well, in this case. Under the standards set in those cases, the Board was only authorized to implement or interpret the specific powers or duties granted by the enabling statute. Subsection 458.309(1), Florida Statutes, grants the Board authority to adopt rules to implement the provisions of this Chapter [458] conferring duties upon it; Subsection 458.331(1)(v), Florida Statutes, grants the Board authority to set standards of practice within the profession; and Subsection 458.331(5), Florida Statutes, grants the Board authority to establish disciplinary guidelines for violations of the statute. The Legislature has already provided for its own definition of "sexual misconduct" in enacting Section 458.329, Florida Statutes, and Subsection 458.331(1)(j), Florida Statutes, which prohibit a physician from exercising influence in order to engage a patient in sexual activity. In the instant case, Rule 64B-9.008, Florida Administrative Code, sets out examples of what sexual activity is. It does not set forth a new or different definition of "sexual misconduct," nor does it create a new ground for "misconduct" under Subsection 458.331(1)(j), Florida Statutes. Under Subsections 458.309(1) and 458.331(5),
Florida Statutes, the Board was given authority specific enough to adopt rules to establish regulatory standards. Southwest
Florida Water Management District v. Save the Manatee Club, Inc., supra. at p 599.
The Board was authorized to interpret or clarify the implementing statutes; it has done so in the challenged Rule. It has not redefined "sexual misconduct" in a manner that conflicts with the statutory definition, nor did it enlarge and expand the conduct proscribed in the statute to the detriment of Petitioner. Based on the foregoing, Rule Subsections 64B8- 9.008(1) and (2), Florida Administrative Code, of the Board of Medicine are not an invalid exercise of delegated legislative authority, as defined in Subsections 120.58(8)(b),(c) or (e), Florida Statutes.
ORDERED that the Petition to Challenge Existence of Rule is denied.
DONE AND ORDERED this 19th day of March, 2002, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2002.
1/ This language in the statute was specifically transferred by the Legislature in Laws of Florida, Chapter 2001-277, Section 21 which created subsection (nn) which reads as follows:
(nn) Violating any provision of this chapter or Chapter 456, or any rule adopted pursuant thereto.
Lee Ann Gustafson, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01
Jack D. Hoogewind, Esquire 33283 Cortez Boulevard Dade City, Florida 33523
William W. Large, General Counsel Department of Health
R. S. Power, Agency Clerk Department of Health
M. Catherine Lannon, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01
Executive Director and General Counsel Joint Administrative Procedures Committee Holland Building, Room 120
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 the original notice of appeal with the Clerk of the Division of Administrative Hearings and a 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.
