STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LORI C. ABEL, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0248RX

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

Pursuant to notice, a hearing in the above-styled matter was held on February 10, 1992, by telephone conference call before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Lori C. Abel, O.D., pro se

14100 North 46th Street, #201-F Tampa, Florida 33613

For Respondent: Daniel J. Bosanko

Assistant Attorney General Department of Legal Affairs Office of the Attorney General Suite 1602, The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

The central issue in this case is whether the Petitioner's document filed with the Division of Administrative Hearings on January 8, 1992, which was initially construed to be a petition challenging an existing rule, and which was assigned to the undersigned on January 16, 1992, should be dismissed as argued in the motion to dismiss filed by the Respondent on January 28, 1992.

PRELIMINARY STATEMENT

This case began on January 8, 1992, when the Petitioner, Lori C. Abel, filed a document seeking to challenge an existing rule promulgated by the Department of Professional Regulation, Board of Optometry (Department).

Thereafter, the Department filed a motion to dismiss and argued, in summary, that the letter/petition failed to allege that an existing rule was an invalid exercise of legislative authority; failed to meet the requirements of Section 120.56(2), Florida Statutes, in that the petition did not set forth facts sufficient to show how Petitioner is substantially affected by any particular existing rule; and failed to allege which rule Petitioner seeks to invalidate.

Originally, the case had been scheduled for hearing on February 10, 1992. Upon review of the motion to dismiss, an order was entered on January 29, 1992 that cancelled the February 10, 1992, hearing in Tallahassee, and scheduled a telephone conference hearing for the same date on the Department's motion to dismiss. The Petitioner was granted leave until February 7, 1992 to file a written response to the motion. A written response was not filed. Both parties were afforded oral argument on the motion on February 10, 1992. For purposes of this order, the allegations of fact contained in Petitioner's letter/petition have been deemed accurate.

PRESUMED FINDINGS OF FACT

1. Petitioner is a second year medical student currently enrolled at the University of South Florida, College of Medicine, in Tampa, Florida.

   
   

2. Petitioner is a licensed optometrist in the State of Florida and graduated valedictorian from the University of Houston, College of Optometry in May, 1990.

   
   

3. In Florida, the Board of Optometry (Board) retains licensed optometrists who write the questions for the licensing examination administered by the Board. In some instances, the same examination drafters are retained by the Board to administer the practical portions of the examination. Thus, the drafter of the questions may proctor the examination given to examinees.

   
   

4. Further, in some instances, the examination drafters have working in their employ unlicensed optometrists or optometry students who receive training from such employer. When that occurs, the unlicensed employee may receive assistance from the employer not available to others who would seek licensure by examination. This appearance of assistance or potential assistance is created because the drafter of the examination is also the grader and employer of the unlicensed person who must be tested for licensure.

   
   

5. It is the Petitioner's position that licensed optometrists who provide both the content of the written test and administer the practical portions of the examination for licensure should not also serve as mentor or employer of those seeking licensure by the same examination.

   
   

6. Petitioner has not cited an existing rule that regulates the activities described.

   
   

7. Rule 21Q-4.006, Florida Administrative Code, adopts by reference Rule 21-11.014, Florida Administrative Code, as the rule governing examination security and monitoring for the Board. That rule provides, in pertinent part:

   
   

   1. Any individual found by the Department or any board within the Department to have engaged in conduct which subverts or attempts to subvert the examination process may have his or her scores on the examination withheld and/or declared invalid, be disqualified from the practice of the profession, and/or be subject to the imposition of other appropriate sanctions by the Department or, if administered by a board within the Department, by the applicable board.

   2. Conduct which subverts or attempts to subvert the examination process includes:

      1. Conduct which violates the security of the examination materials. . .

         
         

8. Petitioner has not alleged that anyone violated the foregoing rule. Rather, Petitioner maintains that allowing the activities described above to continue gives the appearance of impropriety or increases the potential for impropriety.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

   
   

2. Section 120.56, Florida Statutes, provides, in part:

   
   

   1. 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.

   2. The petition seeking an administrative determination under this section shall be in writing and shall state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the invalidity of the rule. * * *

1. Section 120.52(8), Florida Statutes, provides:

   
   

   1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

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

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

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

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

      5. The rule is arbitrary or capricious.

2. Section 120.54(5), Florida Statutes, provides, in part:

   
   

   (5) Any person regulated by an agency or having a substantial interest in an agency rule may petition an agency to adopt, amend, or repeal a rule * * * The petition shall specify the proposed rule and action requested. Not later than 30 calendar days after the date of filing a petition, the agency shall initiate rulemaking proceedings under this act, otherwise comply with the requested action, or deny the petition with a written statement of its reasons for the denial.

   
   

3. In this case Petitioner has not challenged an existing rule. Petitioner seeks to prohibit a practice which allows an employing optometrist to participate in the formulation of questions and/or monitoring of testing for license examinees. Such practice is not mandated nor prohibited by an existing rule of the Department/Board.

   
   

4. Additionally, Petitioner has not stated sufficient facts to establish that an existing rule constitutes an invalid exercise of delegated legislative authority.

   
   

5. The thrust of Petitioner's complaint is that the Board should have a rule prohibiting the activities described above. To that end, Section 120.54(5), Florida Statutes, offers Petitioner with an opportunity to present such request to the Board. This forum does not have jurisdiction to entertain such a request.

ORDER

Based on the foregoing, it is ORDERED:

That the document filed by the Petitioner on January 8, 1992, is hereby dismissed.

DONE and ENTERED this 27th day of February, 1992, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this day 27th of February, 1992.

COPIES FURNISHED TO:

Lori C. Abel, O.D.

14100 N. 46 Street, #201-F

Tampa, FL 33613

Daniel J. Bosanko Asst. Attorney General Dept. of Legal Affairs

Office of the Attorney General The Capitol, Suite 1602 Tallahassee, FL 32399-1050

Carroll Webb, Exec. Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, FL 32399-1300

Diane Orcutt, Exec. Director DPR-Board of Optometry

1940 N. Monroe St., Ste. 60

Tallahassee, FL 32399

Jack McRay, General Counsel DPR

1940 N. Monroe St., Ste. 60

Tallahassee, FL 32399

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 92-000248RX

Orders for Case No: 92-000248RX