LIVINGSTON B. SHEPPARD, D.D.S., )
vs. ) CASE NO. 79-2019RX
BOARD OF DENTISTRY, an Agency of ) the STATE OF FLORIDA and DEPARTMENT ) OF PROFESSIONAL REGULATION, an )
Respondents. )
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on November 1, 1979, in Tallahassee, Florida.
For Petitioner: Thomas V. Infantino, Esquire
For Respondent: Kenneth G. Oertel, Esquire
The issue presented for consideration concerns the question whether action taken by the Respondent in its efforts to comply with the mandate of Subsection 120.60(5), Florida Statutes (1978), constitutes a rule or rules which has or have not been duly promulgated in accordance with the provisions of Sections 120.53, 120.54 and 120.56, Florida Statutes.
This case is here presented on the Petition of Livingston B. Sheppard, D.D.S., by an action against the Board of Dentistry, an agency of the State of Florida and the Department of Professional Regulation, an agency of the State of Florida, as Respondents. The purpose of this Petition is to have declared invalid certain activities of the Respondents pertaining to their efforts at complying with the provisions of Subsection 120.60(5), Florida Statutes (1978), in promoting license revocation or suspension cases against various dentists licensed to practice in the State of Florida. The Petitioner contends that these activities by the Respondents constitute a rule or rules which fail to comply with requirements of Sections 120.53, 120.54 and 120.56, Florida Statutes.
The Petitioner, Livingston B. Sheppard, D.D.S., is a dentist licensed to practice in the State of Florida and thereby regulated by the Respondents. The Petitioner is also the subject of disciplinary action in Case No. 78-1481 before the State of Florida, Division of Administrative Hearings, and it is the action which was taken against Dr. Sheppard in the course of that prosecution, dealing with the subject of Subsection 120.60(5), Florida Statutes (1978), which the current Petitioner asserts to be an invalid rule or rules.
The language of Subsection 120.60(5), Florida Statutes (1978), states:
(5) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has given reasonable notice by certified mail or actual service to the licensee of facts or conduct which warrant the intended action and the licensee has been
given an opportunity to show that he has complied with all lawful requirements for the retention of the license. If the agency is unable to obtain service by certified mail or by actual service, constructive service may be made in the same manner as is provided in chapter 49.
Having considered the statement found in the above-referenced Subsection 120.60(5), Florida Statutes (1978), counsel for Dr. Sheppard in D.O.A.H Case No. 78-1481 filed a Motion to Dismiss the Administrative Complaint on August 31, 1979, alleging that the agency had failed to comply with the provisions. Oral argument on that motion was scheduled for 2:30 o'clock p.m. on September 17, 1979, and was heard at that time; however, prior to the oral argument, the Board of Dentistry on September 14, 1979, filed a docent in the case, which document attempted compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). The document was entitled "Notice of Intended Action Conference" and by its terms granted Dr. Sheppard an opportunity to appear before H. Fred Varn, Executive Director, Florida State Board of Dentistry, on September 17, 1979, at 10:00 a.m. in Tallahassee, Florida. (A copy of this "Notice of Intended Action Conference" was attached to the Petition in the case sub judice as an exhibit.)
The Board of Dentistry had alerted the Hearing Officer to the action it had contemplated by its "Notice of Intended Action Conference." It did so through the Board prosecutor by correspondence of September 14, 1979, a copy of which may be found as the Petitioner's Exhibit No. 1 admitted into evidence.
Dr. Sheppard filed an objection to the adequacy of the "Notice of Intended Action Conference" and refused to appear at that conference.
After considering the oral arguments of the parties directed to the Motion to Dismiss of August 31, 1978, in D.O.A.H. Case No. 78-1481, the Honorable Delphene C. Strickland, Hearing Officer with the Division of Administrative Hearings, entered her Order dated September 26, 1979. (A copy of that Order has been attached as an exhibit to the current Petition.)
In her Order, the Hearing Officer found the "Notice of Intended Action Conference was insufficient, in that the notice did not grant Sheppard
sufficient time to prepare for the conference to be held on September 17, 1979, to the extent of demonstrating his compliance with the provisions of Chapter 466, Florida Statutes, as contemplated by Sub section 120.60(5), Florida Statutes (1978). The Hearing officer did feel that Dr. Sheppard had been notified of those allegations for which he was called upon to defend against and she granted the Board of Dentistry thirty (30) days from the date of her Order, September 26, 1978, to allow the accused an opportunity to show that he had complied with all lawful requirements for the retention of his license.
There followed the current Petition which was filed on September 28, 1979. That Petition has been the subject of a Motion to Dismiss which challenged the adequacy of the Petition. The Motion to Dismiss was responded to and in the course of that response the Petitioner's counsel attached a copy of a "Notice of Informal Conference" to be held on October 23, 1979, at 9:00 a.m., in Tallahassee, Florida. (The location of that conference was subsequently changed to a place more convenient for Dr. Sheppard, specifically, St. Petersburg, Florida, but the amendment was otherwise the same as the original October 23, 1979, notice.)
When the Motion to Dismiss and response to the motion were considered, the motion was denied by written Order of the undersigned dated October 22, 1979. That Order found in accordance with the Order of Hearing Officer Strickland, in D.O.A.H. Case No. 78-1481, referring to the Order dated September 26, 1979; that the efforts of complying with Subsection 120.60(5), Florida Statutes (1978), made by the Board of Dentistry in its attempted action conference to be held September 17, 1979, were not adequate and the prospective events of an action conference that would have been held on September 17, 1979, were deemed to be moot. Nonetheless, in view of the further action by the Board of Dentistry to conduct an informal conference on October 23, 1979, the present case was allowed to go forward on the basis that the Petitioner would be afforded an opportunity to show how the events leading to the written "Notice of Informal Conference" held on October 23, 1979, the notice itself, and the events at the conference constitute a rule or rules that has or have not been duly promulgated in the manner contemplated by Chapter 120, Florida Statutes. In furtherance of this permission, the Petitioner was and is allowed to make the "Notice of Informal Conference" as attached to the response to the Motion to Dismiss a part of the Petition and that "Notice of Informal Conference" is hereby made a part of the Petition.
In the course of the hearing a number of witnesses were presented and those witnesses included Tom Guilday, a prosecutor for the Board of Dentistry; Liz Cloud, an employee of the State of Florida, Office of the Secretary of State; H. Fred Varn, Executive Director of the Board of Dentistry; Nancy Wittenberg, Secretary, Department of Professional Regulation; and the Petitioner, Livingston B. Sheppard. In addition, the Petitioner offered three items of evidence which were admitted.
The testimony of attorney Guilday established that as prosecutor for the Board of Dentistry in the action against Dr. Sheppard, he spoke with Charles
F. Tunnicliff, Acting General Counsel, Department of Professional Regulation, who instructed Guilday to attempt to comply with the requirements of Subsection 120.60(5), Florida Statutes (1978), and this was in anticipation of the pending Motion to Dismiss to be heard on September 17, 1979. One of the results of that conversation was the letter of September 14, 1979, Petitioner's Exhibit No. 1, addressed to Hearing Officer Strickland and the primary result was that of the September 14, 1979, "Notice of Intended Action Conference." The conference alluded to was to be held at the office of Mr. Varn.
Attorney Guilday did not recall whether the contemplated disposition of September 17, 1979, was one which Tunnicliff indicated would be used in all similar cases pending before the Department of Professional Regulation.
After Hearing Officer Strickland's Order was entered on September 26, 1979, attorney Deberah Miller of the Department of Professional Regulation instructed Guilday to comply with Hearing Officer Strickland's Order of September 26, 1979, on the subject of the dictates of Subsection 120.60(5), Florida Statutes (1978), and this instruction was supported by Memorandum of October 5, 1979, a copy of which may be found as Petitioner's Exhibit No. 2 admitted into evidence.
There ensued the conference of October 23, 1979, which was held in St. Petersburg, Florida. After the conference, pursuant to the instructions of attorneys Miller and Tunnicliff, Guilday prepared a memorandum on the results of that conference. This memorandum did not carry a recommendation as to the disposition of the case.
Throughout this period of time, attorney Guilday was unaware of any general policy within the Department of Professional Regulation or Board of Dentistry which dealt with attempts at compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). None of the discussions which Guilday had with attorneys Tunnicliff and Miller of the Department of Professional Regulation or with other officials of that Department or Board of Dentistry led him to believe that there was any set policy for handling those issues.
Guilday did acknowledge that a member of his law firm, one Michael Huey, had been instructed by Staff Attorney Miller on the technique to be utilized in refiling a prosecution against John Parry, D.D.S., wherein the action against Dr. Parry had been dismissed for lack of compliance of Subsection 120.60(5), Florida Statutes (1978). A copy of that Memorandum dated October 3, 1979, may be found as Petitioner's Exhibit No. 3 and it carries with it an attached form for "Notice of Informal Conference" under the terms of Subsection 120.60(5), Florida Statutes (1970), and that format is similar to the October 23, 1979, "Notice of Informal Conference" in the Sheppard case. Guilday indicated in connection with this Memorandum, Petitioner's Exhibit No. 3, that to his knowledge no discussion on how to comply with the terms of the memorandum was made and no actual compliance with the memorandum has been taken to his knowledge.
It was established through the testimony of Liz Cloud of the Office of the Secretary of State and through other witnesses that no formal rules have been filed with the Secretary of State by either of the Respondents dealing with the subject of compliance with the pie visions of Subsection 120.60(5), Florida Statutes (1978).
Testimony offered by Nancy Wittenberg, Secretary, Department of Professional Regulation, and by H. Fred Varn, Executive Director, Board of Dentistry, established that neither the Department nor the Dental Board has formulated final policies on how to deal with the requirements of Subsection 120.60(5), Florida Statutes (1978), whether the cases pertain to those such as that of Dr. Sheppard in which the agency, although it has not complied with Subsection 120.60(5), Florida Statutes (1978), prior to the filing of the Administrative Complaint, has been granted an opportunity to try to comply or on the occasion where cases are in the investigative stage or the occasion where
the cases have been dismissed for noncompliance with Subsection 120.60(5), Florida Statutes (1978), and are subject to refiling.
It is shown through Secretary Wittenberg's testimony that such compliance with Subsection 120.60(5), Florida Statutes (1978), is still in the formative stages and the Memorandum of October 3, 1979, by Staff Attorney Miller with the format for noticing informal conferences to be held under the provisions of Subsection 120.60(5), Florida Statutes (1978), is but one method under consideration at this time. Moreover, Secretary Wittenberg has not spoken with attorney Guilday about the matters of the Sheppard case that are now in dispute or received reports of conversations between Guilday and Staff Attorneys Tunnicliff and Miller on the subject of the pending Sheppard dispute. Finally, Wittenberg has not instructed any of the support officials within the Department of Professional Regulation, to include departmental attorneys, to formulate policy directed to the implementation of the provisions of Subsection 120.60(5), Florida Statutes (1978), which action would constitute the final statement by the Department on those matters.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this action.
In the course of the hearing, Petitioner offered for admission into evidence its Exhibit No. 3. Upon consideration of the matter, that exhibit is hereby admitted into evidence.
The Petitioner has challenged the action of the Respondents pertaining to their efforts at complying with Subsection 120.60(5), Florida Statutes (1978), in their prosecution of the present Petitioner. Dr. Sheppard claims that these actions constitute a rule or rules within the meaning of Subsection 120.52(14), Florida Statutes, and are subject to challenge under the provisions of Section 120.56, Florida Statutes.
Section 120.56, Florida Statutes, in establishing the rights on a petitioner in a rules determination case, states the following in its initial subsection:
Any person substantially affected by a 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.
To have standing to bring this action, the Petitioner must establish that he is substantially affected by action of the Respondent and that action must be a rule. If the Petitioner has standing and the questioned action constitutes a rule, then the Petitioner must demonstrate that the rule constitutes an invalid exercise of delegated legislative authority either by failing to comply with Section 120.54, Florida Statutes, or by operating beyond the scope of the enabling legislation by which it has been purportedly enacted.
While it is clear that the Petitioner has standing, in the sense of being substantially affected by the action of the Respondents in the companion Administrative Complaint case of Board of Dentistry vs. Livingston B. Sheppard, D.D.S, D.O.A.H. Case No. 78-1481; this rule challenge must fail because those actions taken against Dr. Sheppard in the administrative prosecution do not
constitute a rule or rules either in their format or application. A rule is defined by Subsection 120.52(14), Florida Statutes, as:
'Rule' means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include:
Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum.
legal memoranda or opinions issued to an agency by the Attorney General or agency legal opinions prior to their use in connection with an agency action.
The preparation or modification of:
Agency budgets.
Contractual provisions reached as a result of collective bargaining.
Agricultural marketing orders under chapter 573 or chapter 601.
Curricula by an educational unit.
Agency action which has the effect of altering established hunting or fishing seasons when such action is adequately noticed in the area affected through publishing in a newspaper of general circulation or through notice by broadcasting in an electronic media.
When measured against this definition, the activities of the present Respondents cannot be equated to agency statements of general applicability that implement, interpret or prescribe law or policy or describe the organization, procedure or practice requirements of the agency. Furthermore, the activities do not impose any requirement or solicit any information not specifically required by statute or by an existing rule. The actions taken in the matter of Dr. Sheppard, D.O.A.H. Case No. 78-1481, were taken in anticipation of requirements of the Hearing Officer in that cause or in direct compliance with the Order of that Hearing Officer, by means specifically designed to address the particular needs of that case and as such were not a part of a scheme generally applicable to members of that regulated profession. Moreover, the action taken by the present Respondents in their prosecution of Sheppard were attempts to meet the dictates of Subsection 120.60(5), Florida Statutes (1978), not attempts to enhance those provisions and for that reason the actions did not impose any requirement or solicit any information not specifically required by the provisions of Subsection 120.60(5), Florida Statutes (1978).
In anticipation of oral argument to be heard on the Motion to Dismiss in the case of State of Board of Dentistry vs. Livingston B. Sheppard, D.O.A.H. Case No. 78-1481, the Florida State Board of Dentistry filed a document entitled
"Notice of Intended Action Conference" which attempted to comply with Subsection 120.60(5), Florida Statutes (1978), prior to the motion hearing. This attempt was found deficient for reasons set out in the Findings of Fact section of this Order and this attempt either through the actual form of the "Notice of Intended Action Conference", the activities that led to the "Notice of Intended Action Conference", to include the letter of September 14, 1979, from the attorney for the Dental Board directed to Hearing Officer Strickland (Petitioner's Exhibit No. 1), or activities in furtherance of the action conference do not constitute a rule or rules. See Subsection 120.52(14), Florida Statutes.
By her Order of September 26, 1979, in D.O.A.H. Case No. 78-1481, Hearing Officer Strickland granted an opportunity for the Dental Board to comply with the provisions of Subsection 120.60(5), Florida Statutes (1978). In the Memorandum of October 5, 1979 (Petitioner's Exhibit No. 2), Staff Attorney Deborah J. Miller instructed the prosecutor, Guilday, to comply with the directive of Hearing Officer Strickland on the question of the requirements of Subsection 120.60(5), Florida Statutes (1978). This effort at compliance was unique to the case before Hearing Officer Strickland and was tailored to meet the dictates of Hearing Officer Strickland's Order. The form for "Notice of Informal Conference" and the amendment which changed the place of that informal conference were efforts at adhering to the Order of the Hearing Officer in the administrative prosecution case and those matters leading to the drafting of the "Notice of Informal Conference", the form notice itself and the conference which ensued, were efforts at specific compliance with the instructions of the Hearing Officer and none of those matters constitute a rule or rules within the meaning of Subsection 120.52(14), Florida Statutes.
The Petitioner points to its Exhibit No. 3, the Memorandum from Deborah J. Miller, Staff Attorney, to Michael Huey, attorney and prosecutor in the case of John Parry, D.D.S., as standing for the proposition that there is a rule or rules dealing with the question of the Respondents' compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). This argument is not persuasive. The Memorandum of October 3, 1979, deals with the case of a different dentist. It deals with a technique for refiling cases that have been dismissed for noncompliance with the provisions of Subsection 120.60(5), Florida Statutes (1978), as opposed to a case in which leave by order has been given to comply with the provisions of Subsection 120.60(5), Florida Statutes (1978), and although it states the procedures to be followed in dealing with all matters to include compliance with Subsection 120.60(5), Florida Statutes (1978), the Memorandum was drafted by a staff attorney of the agency and did not constitute the statement of the agency head on the question of compliance with that provision. This conclusion is reached after considering the testimony of the witnesses who appeared at the hearing in this cause, particularly that testimony of Secretary Wittenberg which demonstrates that the efforts at compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978), are still in the formative stage and that a uniform system for complying with the provisions of Subsection 120.60(5), Florida Statutes (1978), has not been settled on by the Department of Professional Regulation or by its various boards to include the Board of Dentistry. The common format found in the attachment to the Memorandum of October 3, 1979, and the "Notice of Informal Conference" for October 23, 1979, in D.O.A.H. Case No. 78-1481 is not significant. Finally, any question about the applicability of the October 3, 1979, Memorandum to Livingston B. Sheppard is answered by examining Petitioner's Exhibit No. 2, the October 5, 1979, Memorandum in the Sheppard case from Staff Attorney Miller to prosecutor Guilday in which the efforts in that situation are directed to satisfaction of the requirements of Hearing Officer Strickland's Order and not to satisfaction
of some uniform scheme to be utilized in compliance with Subsection 120.60(5), Florida Statutes (1978), in new cases or in refiled cases.
It is not necessary to reach the question of whether the action by the Respondent constitutes an invalid exercise of delegated legislative authority either in the steps of promulgation or the scope of the rule or alleged rule, because on this occasion none of the acts of the Respondents constitute a rule or rules. Therefore, the Petitioner's request by its Petition that the actions of Respondents be declared a rule or rules which are invalid as invalid exercises of legislative authority is DENIED. Any challenges which Petitioner Sheppard has to toe questioned actions must be perfected through rights available in D.O.A.H. Case No. 78-1481.
DONE AND ORDERED this 30th day of November, 1979, in Tallahassee, Florida.
CHARLES C. ADAMS,
Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301
The parties to this action have submitted Proposed Findings of Fact, Conclusions of Law and an Order, and to the extent those matters are not inconsistent with this Order, they have been utilized. To the extent that those matters are inconsistent with the Order herein, they are specifically rejected.
Thomas V. Infantino, Esquire Post Office Drawer B
Kenneth G. Oertel, Esquire 646 Lewis State Bank Building Tallahassee, Florida 32301
