STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MONROE C. SCHIFFMAN, )
)
Petitioner, )
vs. ) CASE NO. 89-2130
)
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PHARMACY, )
)
Respondent. )
)
RECOMMENDED ORDER
On December 22, 1989, the parties filed a Joint Stipulation and Agreement in which they stipulated that the Stipulation and Agreement together with the documents attached thereto shall constitute the record in these proceedings.
The parties requested that the undersigned enter a recommended order without a formal evidentiary hearing based solely on the Joint Stipulation and Agreement, the documents attached thereto, and the law pertinent to the issues raised.
APPEARANCES
For Petitioner: Robert Rubinstein, Esquire
Young, Stern & Tannenbaum, P.A. 17071 West Dixie Highway
North Miami Beach, Florida 33160
For Respondent: John J. Rimes, Esquire
Department of Legal Affairs The Capitol
Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES
Whether Petitioner is entitled to sit for the examination necessary for the reinstatement of his licensure to practice pharmacy in the State of Florida.
PRELIMINARY STATEMENT
Petitioner was a pharmacist in the State of Florida whose license to practice pharmacy was revoked by the Florida Board of Pharmacy by Final Order dated February 24, 1977. This Final Order was based on the Recommended Order entered in DOAH Case Number 76-1700. The facts underlying the revocation formed the basis for Petitioner's conviction on May 10, 1977, in the U.S. District Court for the Southern District of Florida for having conspired to possess with intent to distribute various Schedule II controlled substances; for having distributed various Schedule II controlled substances; and for having furnished false and omitted information on required records.
Petitioner's Application for Pharmacist Examination was filed January 12, 1989. This application was rejected by Respondent based on Petitioner's past
record. Respondent takes the position that Petitioner's prior violations were of such a serious nature as to permanently preclude Petitioner from ever being reinstated as a pharmacist in the State of Florida. Respondent contends that he has rehabilitated himself, that he meets the criteria for reinstatement, and that he is entitled to sit for the examination that is required for reinstatement. There is no contention by Petitioner that Respondent did not review his entire file and all information submitted by him in support of his application for reinstatement.
Attached to the Joint Stipulation and Agreement are the following:
Joint Exhibit I, an 89 page composite exhibit, contains Petitioner's complete application to become licensed as a pharmacist in the State of Florida, his Petition for Reinstatement filed January 12, 1989, the attachments thereto, and all materials contained in Petitioner's file relating to the previous revocation.
Petitioner's Exhibit I is a two-page affidavit of Petitioner dated December 15, 1989.
Respondent's Exhibits 1-5 consists of affidavits of Michael Schwartz, Wanda Willis, M. Kenneth Pfeiffer, Monroe C. Mack, and Talmadge Ray Lowe. Mr. Schwartz was the attorney who represented Respondent during the proceedings in 1977 which culminated in the revocation of Petitioner's license to practice pharmacy in Florida. Mr. Mack is a licensed pharmacist who served as the Chairman of the Board of Pharmacy when Petitioner's case was heard in 1977. Mr. Pfeiffer is a licensed pharmacist who served as a member of the Board of Pharmacy when Petitioner's case was heard in 1977. Mr. Lowe is a licensed pharmacist who served as the Chairman of the Board of Pharmacy when Petitioner's applications for reinstatement were rejected in June 1987 and in July 1989.
At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the Joint Stipulation and Agreement. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the filing of the Joint Stipulation and Agreement. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings may be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
In 1976, while working as a licensed pharmacist in the State of Florida and as the owner of two pharmacies in Miami, Florida, Petitioner engaged in a course of conduct which resulted in his selling approximately 300,000 pills of highly addictive controlled substances to a drug dealer. Petitioner attempted to cover-up his criminal activity through his record keeping.
On February 24, 1977, Petitioner's license to practice pharmacy in the State of Florida was revoked by Respondent. The basis for the revocation was Petitioner's failure to properly maintain records for the dispensing of Schedule II and Schedule III controlled substances. The hearing officer described in his recommended order Petitioner's conduct as being "... a gross violation of the provisions of Chapter 893, Florida Statutes ..." The Final Order entered by Respondent on February 24, 1977, adopted the findings of fact, the conclusions of law, and the recommendations of the hearing officer as its Final Order and revoked the license of Petitioner.
On May 10, 1977, Petitioner was convicted in the U.S. District Court for the Southern District of Florida of having violated the, provisions of Title
21 U.S.C., Sections 846, 841(a)(1), and 843(a)(4), by having conspired to possess with intent to distribute various Schedule II controlled substances; by having distributed various Schedule II controlled substances; and by having furnished false and omitted information on required records. Petitioner was sentenced to imprisonment for a period of seven years with a three year special parole term upon his release from prison. On February 11, 1982, Petitioner received an early parole of his seven year sentence. On May 17, 1984, Petitioner began his term of special parole. On June 18, 1986, Petitioner received an early termination of his special parole period, which completed his sentence.
In 1981, Petitioner's license to practice pharmacy in the State of New York was revoked by the New York Commissioner of Education based on his conviction in the U.S. District Court for the Southern District of Florida. In 1984, Petitioner applied for restoration of his right to practice pharmacy in the State of New York. On April 24, 1986, the New York Commissioner of Education modified the prior order of revocation so as to allow Petitioner to commence practicing pharmacy in New York subject to certain terms and conditions. Petitioner has met all of the requirements set forth in the order of the New York Commissioner of Education and is free to practice pharmacy in the State of New York without restriction. Since the restoration of his license in New York, Petitioner has been actively engaged as a pharmacist and has served as a supervising pharmacist for approximately the last two years. Through December 15, 1989, Petitioner has completed thirty (30) hours of continuing education.
Petitioner also applied for the reinstatement of his license to practice pharmacy in the State of Florida in 1981, 1987, and 1989. The 1981 request to appear before Respondent in support of his application for reinstatement was denied with the following entry in the minutes of Respondent's 1981 meeting under the entry "Requests to Appear Before the Board to Petition for Reinstatement of Licenses":
3. Monroe Schiffman - Denied. The Board further instructed that due to the nature of the violations indicated at the time his license was revoked, that if at any time in the future a petition was to be considered by the Board the office must provide the Board Members with copies of the entire file for their review and consideration.
Petitioner was notified by letter that his 1987 application for reinstatement was denied by a letter dated July 27, 1987, to Petitioner's attorney. This letter provided, in pertinent part, as follows:
Your client's Petition for Reinstatement was presented to the Board at the June board meeting for review. Based upon the investigative file and Administrative Complaint filed in the above-referenced case, it was the decision of the Board to deny this request.
Attached to the request for the assignment of a hearing officer filed by Respondent with the Division of Administrative Hearings in this matter, is a letter which is not among the documents attached to the Stipulation and Agreement filed by the parties. This letter provides, in pertinent part, as follows:
At the February 1989 meeting of the Board, the Board Members had an opportunity to review your application to participate in the June 1989 licensure examination.
Because of the disciplinary action taken against your license in the past, the Board has denied your request to sit for Florida's examination to become relicensed in this State.
The Board of Pharmacy intended in 1977 when it revoked Petitioner's license that reinstatement of his license would never be available to him. No conditions were imposed as to reinstatement of Petitioner in the order of revocation entered by Respondent in 1977 because the Board of Pharmacy did not intend for Petitioner to ever be eligible for reinstatement. Respondent has adopted no rules which establish criteria for the reinstatement of previously revoked licenses to practice pharmacy in the State of Florida.
Petitioner relies primarily on his own affidavit, prepared after his application was considered by Respondent, in support of his application for reinstatement. The other documents upon which Petitioner relies were prepared for and relate to the reinstatement proceedings brought in the State of New York, or were prepared for and relate to the 1987 reinstatement proceedings brought in Florida. This evidence fails to establish Petitioner's rehabilitation or his ability to safely practice pharmacy in the State of Florida.
There is no contention by Petitioner that Respondent failed to review all information pertinent to this application and available to it before its determination to deny the application.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes
Petitioner is entitled to seek reinstatement as a pharmacist in the State of Florida. Griffith v. Board of Medical Examiners, 454 So.2d 683 (Fla. 1st DCA 1984). See also, paragraph 4 of the Joint Stipulation and Agreement.
Section 465.002, Florida Statutes, provides as follows:
The Legislature finds that the practice of pharmacy is a learned profession.
The sole legislative purpose for enacting this chapter is to ensure that every pharmacist practicing in this state and every pharmacy meet minimum
requirements for safe practice. It is the legislative intent that pharmacists who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state.
Section 465.016(3), Florida Statutes, provides, in pertinent part, as follows:
The board shall not reinstate the license of a pharmacist, or cause a license to be issued' to a person it has deemed unqualified, until such time as it is satisfied that he has complied with all the terms and conditions set forth in the final order and that such person is capable of safely engaging in the practice of pharmacy.
The parties frame the issues to be decided in this proceeding as follows in their Stipulation and Agreement:
Whether Petitioner is entitled to be reinstated either without conditions or under such terms and conditions as the Hearing Officer and/or the Board of Pharmacy deem appropriate
whether the underlying violation for which Petitioner's license was revoked in 1977 was of such magnitude, per se, as to warrant the Board's position that this Petitioner shall never be reinstated as a pharmacist in the State of Florida.
Great deference is given a regulatory board acting within its statutory authority when it is engaging in its decision-making capacity to determine whether an individual should be permitted to continue to practice his profession in this state. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1978). Such decisions will not be overturned unless the Board has acted in an arbitrary and capricious manner. In view of the very serious offenses committed by Petitioner, it cannot be said that Respondent acted in an arbitrary and capricious manner in denying the Petitioner's application for reinstatement. This is particularly true where the applicant for reinstatement elects to rely on his own affidavit as his primary evidence of his rehabilitation and his ability to safely practice pharmacy in the State of Florida.
Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to the relief he seeks. Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st-DCA 1981). Petitioner has failed to meet that burden.
It is not necessary to reach the second issue as framed by the parties because Petitioner failed to establish that Respondent acted in an arbitrary or capricious manner in denying his application.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Professional Regulation, Board of Pharmacy, enter a final order which denies the application for reinstatement of his licensure as a pharmacist in the State of Florida submitted by Petitioner, Monroe C. Schiffman.
DONE AND ENTERED this 16th day of March, 1990, in Tallahassee, Leon County, Florida.
CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1990.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2130
The following rulings are made on the proposed findings of fact submitted by Petitioner:
The proposed findings of fact in paragraph 1 are rejected as being unnecessary to the conclusions reached. These proposed findings of fact are incorporated as part of the preliminary statement.
The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 2 of the Recommended Order.
The proposed findings of fact in paragraphs 3 and 4 are adopted in material part by paragraph 3 of the Recommended Order.
The proposed findings of fact in paragraphs 5-10 are adopted in material part by paragraph 4 of the Recommended Order.
The proposed findings of fact in paragraph 11 are adopted in part by paragraph 5 of the Recommended Order. The proposed findings of fact in the second sentence of paragraph 11 are rejected as being unsubstantiated by the evidence.
The proposed findings of fact in paragraph 12 are adopted in part by paragraph 5 of the Recommended Order. The proposed findings of fact in the second sentence of paragraph 12 are rejected as being unsubstantiated by the evidence.
The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 8 of the Recommended Order.
The proposed findings of fact in paragraphs 14 and 15 are rejected as being contrary to the conclusions reached.
The proposed findings of fact in paragraph 16 are rejected as being unnecessary to the conclusions reached.
The proposed findings of fact in paragraph 17 are rejected as being unnecessary to the conclusions reached. The contentions of the parties are discussed in the conclusions of law portion of the recommended order.
The proposed findings of fact in paragraph 18 are rejected as being unnecessary to the conclusions reached.
The following rulings are made on the proposed findings of fact submitted by Respondent:
The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 1, 2, and 3 of the Recommended Order.
The proposed findings of fact in the first sentence of paragraph 2 are discussed in the conclusions of law portion of the recommended order but are rejected as findings of fact. The proposed findings of fact in the second sentence of paragraph 2 are rejected as being subordinate to the findings made in paragraph 8 of the Recommended Order.
The proposed findings of fact in paragraph 3 are rejected as being subordinate to the findings made.
The proposed findings of fact in paragraphs 4 and 5 are rejected as being unnecessary to the conclusions reached.
COPIES FURNISHED:
Robert Rubinstein, Esquire Young, Stern & Tannenbaum, P.A. 17071 West Dixie Highway
North Miami Beach, Florida 33160
John J. Rimes, Esquire Department of Legal Affairs The Capitol
Tallahassee, Florida 32399-1050
Kenneth D. Easley, General Counsel Department of Professional
Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Rod Presnell, Executive Director Department of Professional
Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PHARMACY
MONROE C. SCHIFFMAN,
Petitioner,
vs CASE NO. 89-2130
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PHARMACY,
Respondent.
/
FINAL ORDER
THIS CAUSE came on to be heard before the Board of Pharmacy at a regularly schedule meeting held in West Palm Beach, Florida on May 7, 1990, pursuant to a Recommended Order entered by Claude B. Arrington, Hearing Officer on March 16, 1990, and after reviewing the entire record, and being otherwise fully advised in the premises, hereby ACCEPTS the Findings of Fact, Conclusions of Law and Recommendation of the Hearing Officer, and said Recommended Order is hereby declared to be and this order becomes the Final Order of the Board of Pharmacy.
DONE and ORDERED this 24th day of May, 1990.
JOHN TAYLOR, EXECUTIVE DIRECTOR
Copies furnished to: Monroe C. Schiffman
Claude B. Arrington, Hearing Officer Michael Mone', Esquire
Robert Rubinstein, Esquire
================================================================ DISTRICT COURT OPINON
=========================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
MONROE C. SCHIFFMAN, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED.
vs. CASE NO. 90-1838
DOAH CASE NO. 89-2130
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PHARMACY,
Appellee.
/ Opinion filed June 13, 1991.
An Appeal from an order of the Department of Professional Regulation.
Andrew S. Berman, of Young, Stern & Tannenbaum, P.A., North Miami Beach, for Appellant.
Robert A. Butterworth, Attorney General; and John J. Rimes, III, Assistant Attorney General, for Appellee.
ERVIN, J.
Appellant, Monroe C. Schiffman, appeals a final order denying his application for reinstatement of his license to practice pharmacy. We reverse and remand for further proceedings.
Schiffman was first licensed to practice pharmacy in New York in 1956 and in Florida in 1959. In 1976, while working as a licensed pharmacist in two pharmacies he owned in Miami, Schiffman sold substantial amounts of controlled substances (e.g., Dilaudid, Nembutal, Seconal, Quaalude) in violation of federal law. As a consequence appellee, the Board of Pharmacy of the Department of Professional Regulation (the Board), in 1977 revoked Schiffman's Florida license for failure to properly maintain records for dispensing Schedule II and Schedule III controlled substances. On May 10, 1977, Schiffman was convicted in United States District Court for the Southern District of Florida for conspiracy to possess with intent to distribute various Schedule II controlled substances, distribution of various Schedule II substances, and furnishing false and incomplete information on required records. He was sentenced to prison and completed his sentence in June of 1986.
Based upon his conviction, Schiffman's license to practice pharmacy in New York was revoked in 1981. In 1984 he applied in New York for restoration of that license, and on April 24, 1986, the New York Commissioner of Education
modified the prior order of revocation to permit Schiffman to practice pharmacy in New York, subject to certain terms and conditions. Schiffman has since met the requirements of the order and is free to practice pharmacy in New York without restriction.
Schiffman applied for reinstatement of his Florida license in 1981, 1987, and 1989 and was denied each time. With regard to the latter denial, the subject of this appeal, the hearing officer found that when it revoked Schiffman's license in 1977, the Board intended to permanently bar him from holding a pharmacy license, as shown by the fact that the Board did not impose any conditions for reinstatement in the order of revocation. The hearing officer also found that Schiffman's evidence of rehabilitation was insufficient. The hearing officer stated that a regulatory board, acting within its statutory authority to determine whether an individual should be permitted to continue practicing in his or her profession, is given great deference and will not be overturned unless it has acted in an arbitrary and capricious manner, which Schiffman failed to establish. In the final order, the Board summarily accepted and adopted the hearing officer's recommendation without discussion and denied Schiffman's application for reinstatement.
We consider this case to be controlled by hree prior decisions of this court: Katz v. Florida State Board of Medical Examiners, 405 So.2d 465 (Fla. 1st DCA 1981); Griffith v. Board of Medical Examiners, 454 So.2d 683 (Fla. 1st DCA 1984); and Jordan v. Department of Professional Regulation, 522 So.2d 450 (Fla. 1st DCA 1988). From these cases we conclude that the Board's final order is inadequate because it contains no statement of policy to support its refusal to reinstate Schiffman's license. Moreover, we hold that the Board does not have the power under the current regulatory statutes to permanently revoke Schiffman's license.
Section 465.016(4), Florida Statutes (1989), 1/ authorizes the Board of Pharmacy to establish rules containing guidelines for reinstatement of licenses to practice pharmacy. This statute is directory rather than mandatory, cf. Katz
v. Florida State Board of Medical Examiners, 405 So.2d 465, 466 (Fla. 1st DCA 1981), and the Board has chosen not to articulate such guidelines by rule. Nevertheless, an agency exercising discretionary nonrule policy must explain such policy in its final order. Id. (citing McDonald v. Department of Banking and Finance, 346 So.2d 569, 583 (Fla. 1st DCA 1977). In Katz, this court reversed an order in which the Board of Medical Examiners denied a physician's reinstatement, stating both that the order was "totally deficient" because it did not include a statement of policy supporting the denial of the reissuance of Katz's license, and that "[a]n agency which has opted not to establish guidelines for a particular proceeding is required to make specific findings of fact and state the policy reasons supporting the agency action." Katz, 405 So.2d at 466.
Similarly in Griffith v. Board of Medical Examiners, 454 So.2d 683 (Fla. 1st DCA 1984), this court reversed an order denying reinstatement of a medical license pursuant to the analysis advanced in Meat. Griffith, a physician whose license to practice medicine had been revoked, sought reinstatement of his license from the Board of Medical Examiners, although his revocation order, like the revocation order in the case at bar, did not state that he could petition for reinstatement. The Board denied reinstatement several times, indicating that it considered Griffith's request to be "premature." Griffith thereafter filed a petition for declaratory statement asking the Board to articulate the criteria it would use to evaluate a petition for reinstatement and the criteria it would use to determine when such petition could be regarded as "mature." The
Board replied that criteria for reinstatement are found in Section 458.331(3), Florida Statutes (1983), 2/ which provided:
The board shall not reinstate the license of a physician, or cause a license to be issued to a person it gas deemed unqualified, until such time as it is satisfied that he has complied with all the terms and conditions set forth in the final order and that such person is capable of safely engaging in the practice of medicine.
Id. at 685. The Board also ruled that in addition to meeting the requirements of this provision, Griffith must demonstrate that his poor medical judgment, which justified the initial revocation, had improved to the point that the Board could safely conclude that he would not again violate the law or disciplinary rules. This court observed that although these criteria for reinstatement were sufficient, the agency had nevertheless failed to set forth a statement of policy that would enable Griffith to determine when a petition would be ripe for consideration. The court continued that if the agency decided to deny an application for reinstatement on the ground that it was premature, "the agency will have to articulate policy guidelines such that one may reasonably know when he might expect to have the Board consider his petition on the merits. Neither of the appealed orders is sufficient in this respect." Id. at 686.
The order in the case at bar is similarly deficient in that it contains no policy reasons justifying the denial of reinstatement to Schiffman, and it thus fails to place Schiffman on notice of what he must show before he will be eligible for reinstatement. In addition, there are inconsistent findings of fact in the recommended order, approved by the Board, which compound the problem. In finding of fact number eight, the hearing officer found, based upon affidavits of Board members who had initially revoked Schiffman's license, that the Board intended Schiffman's revocation to be permanent. However, in finding of fact number nine and conclusion of law number five, the hearing officer indicated that Schiffman simply did not provide sufficient proof of rehabilitation. These findings constitute the sole bases articulated in the recommended order for denying Schiffman's reinstatement. Finding of fact number nine and conclusion of law number five imply that Schiffman could show rehabilitation but did not provide sufficient evidence; whereas finding of fact number eight indicates that his license had been permanently revoked. It is therefore impossible to determine, in the absence of agency guidelines, whether the Board, in approving the recommended findings, considers that Schiffman can never be considered for reinstatement, or, if he may, what kind of evidence of rehabilitation the Board would consider appropriate as to this issue. Under Katz and Griffith, the final order must therefore be reversed.
In doing so, we also reject the Board's position that Schiffman's license can never be reinstated. We conclude that the pharmacy laws do not authorize the penalty of permanent revocation. Our conclusion in this regard is supported by similarly worded statutes regulating the nursing profession and case law construing such statutes. In Jordan v. Department of Professional Regulation,
522 So.2d 450 (Fla. 1st DCA 1988), nurse Samuel Jordan's license was revoked with no opportunity for reinstatement pursuant to an agency rule which specifically stated, "`No license revoked by the Board of Nursing after July 26, 1985, shall be subject to reinstatement.'" Id. at 452 (quoting Fla. Admin. Code
Rule 21O-10.005(3)). In reversing, this court concluded that neither the rule nor permanent revocation was authorized by the applicable statutes.
In so holding, the court considered the provisions of Section 464.018(2), Florida Statutes (1985), authorizing the Board of Nursing to revoke a license for any of the enumerated violations of the statute, and subsection (3) thereof prohibiting the Board from reinstating a license until such time as "`it is satisfied that such person has complied with all the terms and conditions set forth in the final order and that such person is capable-of safely engaging in the practice of nursing.'" Id. at 452. These provisions are identical to the parallel provisions of section 465.016 relating to the reinstatement of a pharmaceutical license. The only difference is that the nursing statute contained a provision (subsection (4)) that did permit permanent debarment of a nurse who had been found guilty three times by the Board of violations involving drug use. This subsection, however, did not apply to nurse Jordan.
In reaching its decision in Jordan, this court concluded that subsections (3) and (4) disclosed the legislative recognition "that nurses would be given an opportunity for reinstatement of their licenses." Jordan, 522 So.2d at 452 (emphasis added).
Next, the court analyzed the statement of legislative intent in Section 464.002, Florida Statutes (1985), which is nearly identical to the statement of legislative intent in the Florida Pharmacy Act, Section 465.002, Florida Statutes (1989). 3/ Based upon these statutes, this court reached the following conclusion:
In essence, the legislation under consideration is designed to protect the public from nurses who are unqualified to practice their profession for various reasons. This goal is accomplished in part by inflicting disciplinary sanctions on a nurse who violates one or more of the grounds set out in section
464.018. Therefore, when the Board of Nursing revokes the license of an unqualified nurse, it is fulfilling the legislative purpose of protecting the public. However, when the Board denies that same nurse an opportunity for reinstatement of his or her license, it deviates from the legislative goal. It is unskilled, incompetent, and unprofessional nurses, not rehabilitated nurses, who are a threat to the public's safety. We therefore hold that [the rule permitting permanent revocation] is not authorized by section 464.018 and is thus an invalid exercise of delegated authority.
Jordan, 522 So.2d at 453 (emphasis added). 4/
Consistent with this court's decision in Jordan, we conclude that the nearly identical pharmacy laws do not authorize the Board to permanently revoke a pharmacist's license. 5/ An administrative agency has only the authority that the legislature has conferred it by statute. City of Cape Coral v. GAC
Utils., Inc., of Fla., 281 So.2d 493, 495-97 (F1a. 1973) (the powers, duties, and authority of the Public Service Commission are only those expressly or impliedly conferred by statute, and any doubt as to the lawful existence of a particular power exercised by the Commission must be resolved against the exercise thereof); Florida Bridge Co. v. Bevis, 363 So.2d 799, 802 (Fla. 1978) (same). Therefore, the Board may not conclude on remand that Schiffman is permanently barred from reinstatement. 6/
We REVERSE the final order and REMAND in order to permit the Board to articulate clear statements of fact and policy consistent with this opinion, with the additional direction that the Board is prohibited from permanently revoking Schiffman's license under existing statutes. WIGGINTON, J., AND WENTWORTH, SENIOR JUDGE, CONCUR.
So.2d 1337 (Fla. 1987), and the Board analogizes that it has comparable authority. On the contrary, Winter does not involve permanent revocation, but instead involves an attorney who was merely given a public reprimand. The case is therefore inapplicable to the issue at bar.
ENDNOTES
1/ Section 465.016(4) provides:
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.
2/ This provision is virtually identical to Section 465.016(3), Florida Statutes, (1989), relating to reinstatement of pharmacists' licenses, which provides:
The board shall not reinstate the
license of a pharmacist, or cause a license to be issued to a person it has deemed unqualified, until such time as it is satisfied that he has complied with all the terms and conditions set forth in the final order and that such person is capable of safely engaging in the practice of pharmacy.
3/ Section 465.002 provides, in part:
The sole legislative purpose for enacting this chapter is to ensure that every pharmacist practicing in this state and every pharmacy meet minimum requirements for safe practice. It is the legislative intent that pharmacists who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state.
Section 464.002 contained two legislative findings regarding the need for regulation of nurses, and then included a statement of purpose that is identical to the provisions above, but for references to nursing rather than pharmacy.
4/ The nursing statute was amended in 1989 to specifically permit "permanent revocation of a license." 464.018(2)(c), Fla. Stat. (1989).
5/ The Board contends that the existence of section 464.018(4), prohibiting reinstatement of nurses for certain drug offenses, distinguishes Jordan from the case at bar, because the existence of the option to permanently debar in subsection (4) demonstrated that subsection (3) must permit reinstatement. We are not persuaded by this reasoning. The fact remains that section 464.018(3) in the nursing statute and section 465.016(3) in the pharmacy statute are identical, and neither authorizes permanent revocation of a license.
6/ In its answer brief, the Board states that it found a case in which The Florida Bar determined that it had the power to permanently disbar an attorney, The Florida Bar v. Winter, 505
| Issue Date | Proceedings |
|---|---|
| Mar. 16, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 13, 1991 | Opinion | |
| May 24, 1990 | Agency Final Order | |
| Mar. 16, 1990 | Recommended Order | Application for reinstatement of licensure properly rejected where there was insufficient evidence of rehabilitation |
