STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. ALEXANDER JACOBY, M.D., )

   )

   Petitioner, )

   )

   vs. )

   ) DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

   )

   Respondent. )

   
   

   Case Nos. 04-4398RU

   04-4571RX

   )

   
   

   FINAL ORDER

   
   

   Pursuant to notice, a final hearing was conducted in this case on March 16, 2006, in Tallahassee, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.

   APPEARANCES

   
   

   For Petitioner: A. Alexander Jacoby, M.D.

   63-93 98th Place

   Rego Park, New York 11374

   
   

   For Respondent: Edward A. Tellechea, Esquire

   Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399

   
   

   STATEMENT OF THE ISSUES

   
   

   By means of two consolidated rule challenge petitions, Petitioner seeks determinations that a specified agency policy and practice is an agency statement which is an invalid

   unpromulgated rule and that certain specified existing agency rules are invalid for other reasons. In view of the number of and the nature of the issues in these two cases, it is perhaps easiest to describe the issues in each of these cases in the words chosen by Petitioner. The petition in Case No. 04-4398RU describes the issues as follows:

   1. Whether Florida Board of Medicine's uniform "nod an wink" nonrule policy and practice of uniform licensure denial to anyone on probation is: (i) an "Agency Statement of general applicability that implements, interprets, or prescribes law or policy;" (ii) and "Agency Statement," defined as a "Rule;" (iii) "Rule," unpromulgated by mandatory and compulsory rulemaking procedures; and (iv) an invalid exercise of delegated legislative authority in violation of § 120.54(1)(a), Fla. Stat. (2003), as defined in § 120.52 Fla. Stat. (2003) and within the meaning of § 120.57(1)(e)?

      
      

   2. Whether the Board's failure to provide notice to prospective applicants of its unpromulgated rule policy and practice of uniform licensure denial to anyone on probation is [a] violation of due process requirements of United States and Florida Constitutions and of § 120,57(1)(e)(2)(e), Fla. Stat. (2003)?

      
      

   3. Whether Florida Board of Medicine's final Administrative Order, Order No. DOH- 04-0662-FOF-MQA, dated June 17, 2004, denying Petitioner's Application for Temporary Certificate to practice in Areas of Critical Need -- an Agency action based on an unpromulgated rule -- is null and void, pursuant to §120.56(4)(d), 120.56(4)(e)(5) and 120.57(1)(e), Fla. Stat. (2003)?

      
      

   4. Whether attorney fees and costs [are] to be awarded to the Petitioner pursuant to

§120.595(4), Fla. Stat. (2003)? (Emphasis in original.)

The petition in Case No. 04-4571RX describes the issues as follows:

1. Whether all the relevant provisions of Rule 64B8-8.001 F.A.C. that punish or sanction Applicants in whole or in part -- as promulgated in Rules 64B8-8.001(1); 64B8- 8.001(2); and 64B8-8.001(2)(b) F.A.C. -- are an invalid exercise of delegated legislative authority in violation of § 120.536(1), Fla Stat. (2000), as defined in § 120.52(8), Fla. Stat. (2003)?

   
   

2. Whether the Board's Final Administrative Order, Order No. DOH-04-0662- FOF-MQA, dated June 17, 2004, denying Petitioner's Application for Licensure -- an Agency action based on an invalidated rule -

   - is null and void?

   
   

3. Whether attorney fees and costs [are] to be awarded to the Petitioner pursuant to

§120.595(3), Fla. Stat. (2003)?

PRELIMINARY STATEMENT

An understanding of the matters at issue here will be facilitated by a summary of the historical background of the petitions in these two consolidated cases. In June of 2003, Petitioner submitted an application seeking a temporary certificate to practice medicine in an area of critical need in the State of Florida. During Petitioner's appearance before the Credentials Committee of the Florida Board of Medicine it became

obvious that the committee members were going to vote to deny Petitioner's application. In an effort to avoid the consequences that can follow from the denial of a licensure application, Petitioner asked the committee members to allow him to withdraw his application from further consideration by the Credentials Committee as well as from further consideration by the Board of Medicine. The Credentials Committee denied his request to withdraw his application. Petitioner promptly made a similar written request addressed to the Florida Board of Medicine. When the Florida Board of Medicine met to consider Petitioner's application, the Board voted to deny the request to withdraw the application and also voted to deny the application for certification.

Thereafter, Petitioner requested and received an evidentiary hearing before the Division of Administrative Hearings in a case which was docketed as DOAH Case No. 03-4433. Following the hearing in that case, the undersigned issued a Recommended Order in which it was concluded (a) that the Florida Board of Medicine lacked statutory authority to allow an application for licensure to be withdrawn and (b) that, although the Board had discretion to either grant or deny Petitioner's application, the better choice would be to grant the certificate sought by Petitioner.

In a Final Order filed on June 18, 2004, the Florida Board of Medicine disagreed with both of the conclusions in the Recommended Order. On the first issue, the Board concluded that it had the authority to allow the withdrawal of applications and that it had the discretion to decide which applications could be withdrawn and which could not. Exercising that authority and that discretion, the Board once again concluded that Petitioner could not withdraw his application. The Board also concluded that Petitioner's application should be denied. The Board's reasons for denying Petitioner's application included the following:

In Section 458.301, F.S., Florida's [L]egislature has charged the Board with ensuring that every physician practicing in this state meets minimum requirements for safe practice. Section 458.331(1), F.S., outlines the acts which constitute grounds for denial of a license or disciplinary action against a physician. Specifically, Section 458.331(1)(b), F.S., gives the Board discretion to choose whether or not it will deny an applicant if he has had his medical license disciplined in another state. The Board's disciplinary guidelines in Rule

64B8-8.001, F.A.C., recommend as the minimum penalty for a Section 458.331(1)(b), F.S., violation "denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken, and an administrative fine ranging from $1,000.00 to $5,000.00." In this case, the Board has chosen to deny the application based on several aggravating factors and policy considerations. The action taken against Petitioner's New York medical license stems from him failing to repay his

student loans[,] which clearly demonstrates poor financial judgment. Florida law aims to protect patients from insurance scams, billing fraud, and unscrupulous doctors by requiring physicians to demonstrate financial responsibility pursuant to Section 458.320, F.S. The Board should not give a doctor with financially "poor judgment" and a history of mishandling government money, the opportunity to work with patients who primarily receive government based healthcare funding. Additionally, Petitioner has not satisfied the 3 year probationary requirement the New York Department of Health has imposed against his license. Instead, Petitioner is avoiding the New York discipline of his medical license by trying to work as a physician in Florida. Petitioner did not attempt to repay his student loans for 18 years and only settled with the U.S. government after New York disciplined his license.

On July 15, 2004, Petitioner timely filed a notice of appeal with the First District Court of Appeal, where the appeal was docketed as Case No. 1D04-3166. On April 14, 2005, the appellate court issued a decision in which the Board's Final Order of June 18, 2004, was affirmed without opinion.

In the meantime, on December 13, 2004, Petitioner filed a rule challenge petition seeking to invalidate a specified non- rule policy and practice of the Board of Medicine, and also seeking to invalidate agency action based on that non-rule policy and practice. The petition was titled "PETITION TO INVALIDATE: (I) FLORIDA BOARD OF MEDICINE'S NONRULE POLICY AND PRACTICE OF UNIFORM LICENSURE DENIAL TO ANYONE ON PROBATION; AND

1. AN AGENCY ACTION BASED ON AN UNADOPTED RULE." That petition was docketed with the Division of Administrative Hearings as DOAH Case Number 04-4398RU.

   On December 20, 2004, Petitioner filed a second rule challenge petition seeking to invalidate specified existing rules of the Board of Medicine, and also seeking to invalidate agency action based on the challenged existing rules. The petition was titled "PETITION TO INVALIDATE: (I) RULES 64B8- 8.001(1), 64B8-8.OO1(2), AND 64B8-8.001(2)(b) F.A.C.; AND (II) AN AGENCY ACTION BASED ON AN INVALIDATED RULE." That petition

   was docketed with the Division of Administrative Hearings as DOAH Case Number 04-4571RX

   These two rule challenge petitions were consolidated and scheduled for hearing. Prior to the hearing, Respondent filed a Motion to Dismiss. The motion sought dismissal of both rule challenge petitions on several grounds, including an assertion that Petitioner lacked standing. Petitioner filed a written response to the motion. Shortly thereafter, on January 6, 2005, a Final Order was issued, the effect of which was to grant the motion to dismiss and to dismiss both petitions, because it appeared to the undersigned that Petitioner lacked standing to file either of these rule challenge petitions. Because the standing issue appeared to be dispositive of both petitions, the

   Final Order did not address any of the other issues raised in the motion to dismiss.

   Petitioner filed a timely appeal of the January 6, 2005, Final Order, and on December 29, 2005, The First District Court of Appeal issued an opinion in which the court concluded that Petitioner did have standing to file both of these rule challenge petitions.1 Consistent with that view, the court reversed the Final Order of January 6, 2005, and remanded the case back to the Division of Administrative Hearings for further proceedings on these two consolidated rule challenge cases.2

   Consistent with the December 29, 2005, appellate court opinion, the files of the Division of Administrative Hearings in these two rule challenge cases were reopened and the parties were given an opportunity to suggest dates for a final hearing. Petitioner was also afforded an opportunity to amend his petitions, but chose to rely on the original petitions without amendment. Respondent filed a Renewed Motion to Dismiss in which it requested that these petitions be dismissed on the additional grounds raised in the original motion to dismiss, which grounds were not addressed in the Final Order of

   January 6, 2005. By order dated February 14, 2006, the parties were advised that the issues raised in the Renewed Motion to Dismiss would be addressed in the Final Order after the final hearing. By Notice of Hearing dated February 14, 2006, the

   parties were advised that the final hearing would be held on March 16, 2006.

   On March 15, 2006, Petitioner filed a motion in which he waived his right to attend the final hearing, requested that the final hearing be held and concluded in his absence, and requested that seven exhibits attached to the motion be received in evidence. At the commencement of the final hearing on

   March 16, 2006, Respondent presented argument in opposition to the March 15 motion. The objections to the motion were overruled, the motion was granted, and the seven exhibits attached to the motion were received as Petitioner's Exhibits 1 through 7. There was no other evidence received on behalf of Petitioner. Respondent did not offer any evidence at the final hearing.

   At the conclusion of the final hearing the deadline for filing proposed final orders was established as 10 days following the filing of the transcript of the hearing. The transcript of the final hearing was filed on April 17, 2006. Thereafter, both 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.

   FINDINGS OF FACT

   
   

   Findings incorporated from findings of fact in Case No. 03-4433

   
   

   1. Petitioner is a medical doctor, presently licensed to practice medicine in the State of New York.

   2. Petitioner signed a Florida Department of Health Board of Medicine Application for Temporary Certificate to Practice in an Area of Critical Need on June 19, 2003. Question number 13 on that application form asked, “Have you ever had any Medical/professional license revoked, suspended, placed on probation, received a citation, or other disciplinary action taken in any state territory or country?” Petitioner answered “yes” to question number 13.

   3. The Notice of Intent to Deny issued by the Florida Board of Medicine cited as the only reason for denial “[t]he applicant had action taken against the license by the New York and the Utah Medical Licensing Boards.”

   4. It has since been confirmed that the Utah Division of Occupational & Professional Licensing did not take any action against Petitioner’s medical license in Utah.

   5. The New York Department of Health, Monitoring Unit, Office of Professional Medical Conduct, did take action against Petitioner’s medical license in New York. The New York Department of Health described its action as follows:

      Dr. Jacoby currently holds a valid NYS medical license, and is permitted to practice in this State, however the sanctions imposed by the enclosed Order are still in effect, and have not yet been fully satisfied. The suspension was lifted in January 2003, however the three years probation remains ‘tolled’ at this time, to be imposed when Dr. Jacoby returns to the practice of medicine in this State. (Emphasis added.)

      
      

   6. The underlying reason for Petitioner’s discipline in New York is for failing to repay a student loan guaranteed by the federal government. Petitioner had secured a health education assistance loan guaranteed by the federal government for approximately $51,000.00 between 1982 and 1983. The loan came due nine months after Petitioner graduated from medical school in June or July of 1984. Petitioner did not make any payments toward the loan for approximately 18 years. In September of 2002, Petitioner finally settled his long past-due student loan debt.

   7. Petitioner requested to withdraw his Application for Temporary Certificate to Practice in an Area of Critical Need after the Credentials Committee voted to recommend denial of his application to the full Board of Medicine. Petitioner promptly made a similar written request addressed to the full Board of Medicine.

   8. The full Board of Medicine denied Petitioner’s request to withdraw his application.

   9. The Board of Medicine then considered the merits of Petitioner’s application and voted to deny the application. The Board’s action was memorialized in a Notice of Intent to Deny Licensure by Area of Critical Need, which reads as follows in pertinent part:

      This matter came before the Credentials Committee of the Florida Board of Medicine at a duly-noticed public meeting on September 13, 2003, in Tampa, Florida and the full Board on October 3-4, 2003, in Ft. Lauderdale, Florida. The applicant

      appeared before the Credentials Committee on September 13, 2003, and presented testimony regarding the application file.

      The application file shows:

      The applicant had action taken against the license by the New York and the Utah Medical Licensing Boards. Additionally, the Board considered applicant’s Motion to Withdraw his application during the full Board meeting and voted to deny applicant’s motion.

      The applicant is guilty of violating Section 458.331(1)(b), Florida Statutes, for having a license acted upon by another jurisdiction. Based on the foregoing, the Board may refuse to certify an applicant for licensure, or restrict the practice of the licensee, or impose a penalty, pursuant to Sections 458.331(2) and 456.072(2), Florida Statutes.

      It is therefore ORDERED that the application for licensure by area of critical need be DENIED.

      
      

   10. If a final order is issued denying Petitioner’s license, the denial will be reported to the Federation of State Medical Boards, which is a depository of all disciplinary

       actions and license application denials by state boards in the United States.

   11. In recent years, it has been the consistent practice of the Florida Board of Medicine to deny applications for licenses to practice medicine if the applicant’s medical license is on probation in another state. Such practice is not required by either rule or statute. The Board of Medicine does not make any effort to advise applicants or prospective applicants of its consistent practice of denying applications from physicians who are on probation elsewhere.

   12. At the time he filed the subject application, as well as at the time of his appearance before the Credentials Committee, Petitioner was not aware of the Board of Medicine’s history of not granting applications submitted by physicians on probation elsewhere. Had Petitioner been aware of the Board’s history in that regard, he would not have filed an application.3 Findings based on testimony in Case No. 03-4433

   13. All applications for licensure submitted by physicians licensed in other states are reviewed on their merits by the Florida Board of Medicine. Notwithstanding the Board's long history of denying such applications when the applicant's license in another state is on probation, it is nevertheless possible that the Board might in the future grant an application by a physician whose license is on probation. Because such a

       possibility exists, the Board does not advise prospective applicants that their applications will be denied if their license in another state is on probation.

       Facts about the existing rules

       
       

   14. The existing rule provisions challenged in Case

       
       

       No. 04-4571RX are all portions of Florida Administrative Code Rule 64B8-8.001. That rule contains the disciplinary guidelines regarding physicians regulated under Chapter 458, Florida Statutes. (Unless otherwise noted, all references to the Florida Statutes are to the current version of those statutes.) Subsection (1) and the introductory portion of subsection (2) of that rule read as follows:

       64B8-8.001 Disciplinary Guidelines.

       1. Purpose. Pursuant to Section 456.079, F.S., the Board provides within this rule disciplinary guidelines which shall be imposed upon applicants or licensees whom it regulates under Chapter 458, F.S. The purpose of this rule is to notify applicants and licensees of the ranges of penalties which will routinely be imposed unless the Board finds it necessary to deviate from the guidelines for the stated reasons given within this rule. The ranges of penalties provided below are based upon a single count violation of each provision listed; multiple counts of the violated provisions or a combination of the violations may result in a higher penalty than that for a single, isolated violation. Each range includes the lowest and highest penalty and all penalties falling between. The purposes of the imposition of discipline are to punish the applicants or licensees for violations and to deter them from future violations; to

          offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations.

       2. Violations and Range of Penalties. In imposing discipline upon applicants and licensees, in proceedings pursuant to Sections 120.57(1) and (2), F.S., the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included.

          
          

   15. Following the language quoted immediately above, the subject rule describes all of the statutory violations for which discipline may be imposed and for each such violation describes minimum and maximum recommended penalties. With regard to the violation described as "(b) Action taken against license by another jurisdiction," the subject rule provides the following recommendation for a first offense:

       (b) From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken, and an administrative fine ranging from $1,000.00 to $5,000.00.

       
       

   16. And for a second offense of the same type, the recommended penalty is stated as follows:

       (b) From imposition of discipline comparable to the discipline which would have been imposed if the substantive

       violation had occurred in Florida to revocation or denial of the license, and an administrative fine ranging from $5,000.00 to $10,000.00.

       
       

       Facts about disposition of Petitioner's application

       
       

   17. In the conclusions of law in the Recommended Order in Case No. 03-4433, the undersigned concluded that

       . . . on the facts in this case, the Board of Medicine clearly has the authority and the discretion to deny the application for the specific reasons stated in the Board's notice of intent to deny, to-wit: "The applicant is guilty of violating Section 458.331(1)(b), Florida Statutes, for having a license acted upon by another jurisdiction." But it is equally clear that there is nothing in the applicable rules or statutes that mandates denial of the application. The Board of Medicine can lawfully resolve this matter either way.

       
       

       The ultimate recommendation in that Recommended Order was that "a Final Order be issued . . . granting Petitioner's application for a temporary certificate to practice medicine in communities in Florida where there is a critical need for physicians."

   18. On June 18, 2004, the Board of Medicine filed a Final Order in Case No. 03-4433 in which it disagreed with the recommendation described above and, based on Petitioner's violation of Section 458.331(1)(b), Florida Statutes, and on "several aggravating factors and policy considerations" described in the Final Order, denied the application for a temporary certificate to practice in an area of critical need.

   19. Petitioner sought appellate court review of the Final Order of June 18, 2004. On April 14, 2005, the appellate court issued a decision in which the Board's Final Order of June 18, 2004, was affirmed without opinion. See A. Alexander Jacoby, M.D. v. Florida Board of Medicine, 900 So. 2d 559 (Fla. 1st DCA 2005).

       CONCLUSIONS OF LAW

       
       

   20. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to these consolidated rule challenge proceedings pursuant to Section 120.56, Florida Statutes.

       Petitioner's Standing

       
       

   21. Petitioner's standing to bring both of these rule challenge proceedings has been determined by the appellate court decision reversing the prior Final Order in these cases. The law of the case is that Petitioner "meets both prongs of the 'substantially affected' test and, accordingly, does have standing to assert the rule challenge[s]." No further discussion of the standing issues is necessary.

       The challenge to the existing rules

       
       

   22. Section 458.331(1), Florida Statutes, begins with the words "[t]he following acts constitute grounds for denial of a license or disciplinary action. . . ." The referenced "following acts" include the following:

       (b) Having a license or the authority to practice medicine revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies and subsections.

       
       

   23. Section 458.331(2), Florida Statutes, provides: "The board may enter an order denying licensure or imposing any of the penalties in s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section. "

   24. Section 458.331(5), Florida Statutes, reads as follows:

       (5) The board shall by rule establish guidelines for the disposition of disciplinary cases involving specific types of violations. Such guidelines may include minimum and maximum fines, periods of supervision or probation, or conditions of probation or reissuance of a license. "Gross medical malpractice," "repeated medical malpractice," and "medical malpractice," under paragraph (1)(t) shall each be considered distinct types of violations requiring specific individual guidelines.

       
       

   25. Careful review of the language contained in subsection

       
       

       (1) and in the introductory portion of subsection (2) of Florida Administrative Code Rule 64B8-8.001, reveals that there is nothing in the language of those portions of the rules that is inconsistent with the requirements of the statutory provisions that authorize the subject rules or with the statutory provisions implemented by the subject rule provisions. Rather,

       the language contained in subsection (1) and in the introductory portion of subsection (2) of Florida Administrative Code Rule 64B8-8.001 appears to be in strict compliance with the requirements of the relevant statutes.

   26. Similarly, the portion of the challenged existing rule that describes the recommended disciplinary action to be taken when action is taken against a license by another jurisdiction is in complete accord with the statutory provisions that both authorize and require the adoption of rules containing recommended disciplinary guidelines. That portion of the rule is consistent with the relevant statutes. Such being the case, there is no basis upon which to conclude that the challenged provisions of Florida Administrative Code Rule 64B8-8.001 are invalid. Therefore, the petition in Case No. 04-4571RX should be dismissed and all relief requested in that petition should be denied.

       The challenge to the nonrule policy and practice

       
       

   27. Persons seeking to challenge an agency statement pursuant to Section 120.56(4), Florida Statutes, must not only "meet the [statute's] 'substantially affected' test," they must also plead and establish specific "facts sufficient to show that the [challenged] statement constitutes a rule under s. 120.52 and that the agency has not adopted the statement by the rulemaking procedure provided by s. 120.54."

   28. Not every agency statement is a "rule under s.

       
       

       120.52." Only agency "statements of general applicability, i.e., those 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," constitute "rules," as defined in Section 120.52(15), Florida Statutes. Department of

       Highway Safety and Motor Vehicles v. Schluter, 705 So. 2d 81, 82 (Fla. 1st DCA 1997); and McDonald v. Department of Banking and Finance, 346 So. 2d 569, 581 (Fla. 1st DCA 1977).

   29. The petition in Case No. 04-4398RU does not challenge a specifically identified agency "statement," but, rather, challenges what is described as an unadopted "policy and practice of uniform licensure denial to anyone on probation." There is no persuasive evidence in these cases of any such unadopted policy. To the contrary, it is clear that the Florida Board of Medicine has adopted by rule in its disciplinary guidelines a policy of usually denying licensure to any applicant whose license has been acted against by another licensing jurisdiction "until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken." The Board's Final Order in Case No. 03-4433 was consistent with that rule-based policy. That rule-based policy is neither diminished nor invalidated by the fact that in recent years the Florida Board of Medicine has not deviated from its usual policy

of denying licensure under the described circumstances. Because there is no proof of the unadopted "policy and practice" described in the petition, the petition in Case No. 04-4398RU should be dismissed and all relief requested in that petition should be denied.

CONCLUSION

For all of the foregoing reasons, it is ORDERED that the petitions in both of these consolidated rule challenge cases are hereby dismissed and all relief requested in such petitions is hereby denied.5

DONE AND ORDERED this 10th day of May, 2006, in Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2006.

ENDNOTES

1/ It is interesting to note that the court's basis for finding standing and Petitioner's basis for asserting standing are quite different. In both of his rule challenge petitions Petitioner alleges the following basis for his standing:

Petitioner's substantial interests[,] constitutionally protected and otherwise, are directly, substantially and impermissibly affected by Florida Board of Medicine's Final Administrative Order, Order No. DOH-04-0662-FOF-MQA, dated June 17,

2004, Denying Petitioner's Application for a Temporary Certificate for Practice in Areas of Critical Need.

Petitioner bases his claim to standing on the Board's order denying his licensure application. Neither of Petitioner's rule challenge petitions contains any allegation to the effect that Petitioner expects to file a future application for licensure to practice medicine in Florida. The absence of such allegations notwithstanding, the appellate court opined that Petitioner ". .

. may apply again in the future. Thus, Appellant [Petitioner here] is subject to the licensing rules and policies of the state as a potential applicant. . . ." The facts related to standing in these rule challenge cases are remarkably similar to the facts related to standing in Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978). (In its December 29, 2005, opinion reversing and remanding the Final Order in these cases, the appellate court specifically distinguishes these cases from Jerry, but, with all due respect, the basis for distinction is difficult to follow. If these cases should once again make their way to the First District Court of Appeal, and if that court should continue to be of the view that these cases are distinguishable from Jerry, hopefully the basis for distinction will be clarified.)

2/ During the course of the preparation of this Final Order, the appellate court opinion remanding these cases back to the Division of Administrative Hearings has been treated as the "law of the case" in this matter, and the undersigned has proceeded on the basis that the issue of Petitioner's standing has been resolved with finality in favor of Petitioner. It is nevertheless worth noting, in the event that these cases might again make their way to the First District Court of Appeal, that

the appellate court opinion of December 29, 2005, contains two incorrect statements of fact. The incorrect statements are:

Appellant's appeal of the Board's denial of his application is currently pending before this court. Before appealing the denial of his license, Appellant challenged rules 64B8-8.001(1), (2), and (2)(b), Florida

Administrative Code, relating to licensure restrictions and the Board's non-rule policy of denying a license to anyone with a probationary license in another state. (Emphasis added.)

The correct facts are as follows. Petitioner's appeal of the Board's denial of his application was disposed of on April 14, 2005, some eight months before the appellate court opinion in these rule challenge cases, by a decision affirming, without opinion, the Board's denial of Petitioner's license application. Petitioner filed his two rule challenge petitions on December 13 and on December 20, 2004, some five months after Petitioner's notice of appeal in the license denial case. It cannot at this time be determined whether the appellate court's view of Petitioner's standing would have been the same if the court had been aware of the correct facts.

3/ The findings of fact in paragraphs 1 through 12 are taken verbatim from the findings of fact in the Recommended Order in DOAH Case No. 03-4433. That Recommended Order was received as an exhibit in this case. In the Final Order in Case No. 03- 4433, the Florida Board of Medicine adopted all of the findings of fact in the Recommended Order. In these related cases involving the same parties and similar issues, the parties are both bound by the facts found in the prior case.

4/ The facts in paragraph 13 of this Final Order are based on the testimony of Ms. Chandra Prine, relevant portions of which appear at pages 40 and 56 of the transcript of the final hearing in Case No. 03-4433. That transcript was received as an exhibit in this case.

5/ It is gratuitously noted that even if it had been established that the policies or rules challenged in either or both of the petitions in these cases were invalid, the primary relief sought by Petitioner would still not have been available. Even a successful rule challenge petition cannot be used as a vehicle for a collateral attack on prior agency action taken in

reliance on the rule prior to a determination of the rule's invalidity. See State Board of Optometry v. Florida Society of Ophthalmology, 538 So. 2d 878 (Fla. 1st DCA 1988), on motions for rehearing and motion for clarification, in which the court notes that "chaotic uncertainty . . . 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."

COPIES FURNISHED:

Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Edward A. Tellechea, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399

A. Alexander Jacoby, M.D. 63-93 98th Place

Rego Park, New York 11374

Larry McPherson, Executive Director Board of Medicine

Department of Health 4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Rosanna Catalano, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Timothy M. Cerio, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Dr. M. Rony François, Secretary Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

Scott Boyd

Executive Director and General Counsel Joint 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 the original Notice of Appeal with the agency 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.

Docket for Case No: 04-004571RX

Orders for Case No: 04-004571RX