STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL J. HASON, )

)

Petitioner, )

)

vs. ) Case No. 02-1612RX

)

BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Lauderdale, Florida, on July 25, 2002.

APPEARANCES

For Petitioner: Michael J. Hason, pro se

1710 Northwest 87th Avenue Plantation, Florida 33322

For Respondent: Lee Ann Gustafson

Senior Assistant Attorney General Department of Legal Affairs

The Capitol, Plaza Level--01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue is whether Rule 64B8-4.022(1), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority, in violation of Section 120.52(8)(b) and (c), Florida Statutes.

PRELIMINARY STATEMENT

By Petition Challenging the Validity of Rule 64B8-4.022, Florida Administrative Code, Petitioner alleged that the rule precludes medical licensure in Florida if the applicant or licensee has an encumbered license in another jurisdiction. The petition alleges that California issued a medical license to Petitioner, but placed it on probation. The petition alleges that Petitioner requested a waiver from the rule, but Respondent denied the request.

The petition alleges that the rule exceeds the legislative restrictions upon medical licensure. Sections 456.003(1) and 458.301, Florida Statutes, allegedly provide that public policy in Florida is to allow qualified professionals to practice their professions. Section 456.003(2) and (4), Florida Statutes, allegedly authorizes the imposition of professional restrictions only when the health, safety, and welfare issues outweigh the anticompetitive effects of regulation.

The petition alleges that Rule 64B8-4.022, Florida Administrative Code, instead precludes individual evaluation of physicians seeking licensure in Florida, even if highly qualified, when the applicants have problems with boards of medicine in other states. The petition alleges that, even if reasonable, the rule is invalid because the Legislature has not granted Respondent the authority to promulgate a rule that

denies licensure in all cases when an applicant has committed an offense in another state.

At the hearing, Petitioner called one witness and offered into evidence one exhibit: Petitioner Exhibit 1. The exhibit was admitted. Respondent called no witnesses and offered into evidence no exhibits.

The parties did not order a transcript. They filed proposed final orders on August 5, 2002.

FINDINGS OF FACT

1. Petitioner obtained a bachelor's degree from Yale University in 1970. He obtained a Juris Doctor degree from

   St. John's University in 1980 and practiced law in New York City for five years. Petitioner then completed coursework at Columbia University in preparation for medical school. He obtained a medical degree from New York Medical College in 1990.

2. Petitioner obtained a license to practice medicine in New York in 1993. However, problems with depression interfered with Petitioner's completion of post-graduate work in medicine.

3. In 1995, Petitioner applied for a physician's license in California. This application was initially denied in 1998, but it was granted in January 2002 with a condition of probation for five years with some sort of psychiatric monitoring during and possibly after the termination of the probationary period. In the interim between the two actions on Petitioner's

   application for a California license, New York revoked Petitioner's license to practice medicine, although it later reduced the sanction to a suspension of the latter of one year or a showing of safeness to practice.

4. In May 1997, Petitioner relocated to Florida and, the following year, after having completed additional rehabilitative therapy, applied for a license to practice medicine in Florida. Respondent has denied the application in reliance upon Rule 64B8-4.022(1), Florida Administrative Code. (All references to Rules are to the Florida Administrative Code.)

5. Rule 64B8-4.022 states in its entirety:

   
   

   In most cases the Board evaluates applicants on a case-by-case basis; however, in the following circumstances the Board, as a matter of policy, shall deny the application for licensure in Florida:

   
   

   1. When the applicant has had action taken against a medical license or the authority to practice medicine by the licensing authority of another jurisdiction and the applicant does not demonstrate that the applicant has a license in the jurisdiction which took action and that license is in good standing and unencumbered.

      
      

   2. When the applicant has been convicted of, been found guilty of, or entered a plea of nolo contendere to a crime and the applicant does not demonstrate that all criminal sanctions imposed by the court have been satisfied.

      
      

6. Petitioner challenges Rule 64B8-4.022(1) on the grounds that it requires in all cases that Respondent deny applications

   when, for any reason, the applicant has had action taken against his or her medical license in another jurisdiction or the applicant's application has been denied in another jurisdiction, unless, in either case, the applicant presently has an unencumbered license in that jurisdiction. Petitioner contends that this categoric denial of licensure under these circumstances exceeds the underlying statutory authority for denial of licensure.

7. The rule implements three statutes. Section 458.311, Florida Statutes, governs licensure by examination. (All references to Sections are to Florida Statutes.) Section

   458.313 governs licensure by endorsement. And Section 458.331 provides grounds for the denial of an application or discipline of an existing license.

8. As is relevant to this case, Section 458.311 provides:

   
   

   1. The board may not certify to the [Department of Health] for licensure any applicant who is under investigation in another jurisdiction for an offense which would constitute a violation of this chapter until such investigation is completed. Upon completion of the investigation, the provisions of s. 458.331 shall apply. Furthermore, the department may not issue an unrestricted license to any individual who has committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331. When the board finds that an individual has committed an act or offense in any jurisdiction which would constitute the basis for disciplining a physician

      pursuant to s. 458.331, then the board may enter an order imposing one or more of the terms set forth in subsection (8).

      
      

   2. Each applicant who meets the requirements of this chapter shall be licensed as a physician, with rights as defined by law.

      
      

   3. Upon certification by the board, the department shall impose conditions, limitations, or restrictions on a license if the applicant is on probation in another jurisdiction for an act which would constitute a violation of this chapter.

      
      

   4. When the board determines that any applicant for licensure has failed to meet, to the board's satisfaction, each of the appropriate requirements set forth in this section, it may enter an order requiring one or more of the following terms:

      1. Refusal to certify to the department an application for licensure, certification, or registration;

      2. Certification to the department of an application for licensure, certification, or registration with restrictions on the scope of practice of the licensee; or

      3. Certification to the department of an application for licensure, certification, or registration with placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, attend continuing education courses, submit to reexamination, or work under the supervision of another physician.

   
   

9. As is relevant to this case, Section 458.313 provides:

   
   

   1. Upon certification by the board, the department shall impose conditions, limitations, or restrictions on a license by endorsement if the applicant is on probation in another jurisdiction for an act which

      would constitute a violation of this chapter.

      
      

   2. The department shall not issue a license by endorsement to any applicant who is under investigation in any jurisdiction for an act or offense which would constitute a violation of this chapter until such time as the investigation is complete, at which time the provisions of s. 458.331 shall apply. Furthermore, the department may not issue an unrestricted license to any individual who has committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331. When the board finds that an individual has committed an act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331, the board may enter an order imposing one or more of the terms set forth in subsection (7).

      
      

   3. When the board determines that any applicant for licensure by endorsement has failed to meet, to the board's satisfaction, each of the appropriate requirements set forth in this section, it may enter an order requiring one or more of the following terms:

      1. Refusal to certify to the department an application for licensure, certification, or registration;

      2. Certification to the department of an application for licensure, certification, or registration with restrictions on the scope of practice of the licensee; or

      3. Certification to the department of an application for licensure, certification, or registration with placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, attend continuing education

   courses, submit to reexamination, or work under the supervision of another physician.

   
   

10. As is relevant to this case, Section 458.331 provides:

    
    

    1. The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

       * * *

       (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 or subdivisions. The licensing authority's acceptance of a physician's relinquishment of a license, stipulation, consent order, or other settlement, offered in response to or in anticipation of the filing of administrative charges against the physician's license, shall be construed as action against the physician's license.

       * * *

    2. 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 or who is found guilty of violating any provision of s. 456.072(1).

       In determining what action is appropriate, the board must first consider what sanctions are necessary to protect the public or to compensate the patient. Only after those sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the physician. All costs associated with compliance with orders issued under this subsection are the obligation of the physician.

       CONCLUSIONS OF LAW

       
       

11. The Division of Administrative Hearings has jurisdiction over the subject matter. Sections 120.56(1) and 120.57(1).

12. Section 120.56(1)(a) authorizes a substantially affected person to seek an administrative determination of the invalidity of a rule as an invalid exercise of delegated legislative authority. Petitioner clearly has standing to challenge Rule 64B8-4.022(1).

13. As is relevant to this case, Section 120.52(8)(c) provides that a rule is an "invalid exercise of delegated legislative authority" if it "enlarges, modifies, or contravenes the specific provisions of law implemented "

14. Rule 64B8-4.022(1) enlarges, modifies, or contravenes the legislation that it purportedly implements in two respects. First, the legislation carefully predicates adverse regulatory action in Florida upon adverse regulatory action in another jurisdiction, but only if the basis for the adverse regulatory action in another jurisdiction is also the basis for adverse regulatory action in Florida. Hypothetically, if a physician licensed in Michigan and Florida were to violate a recently passed law in Michigan requiring him to join or pay dues to a union, and suffered discipline in Michigan due to this offense,

he would not be liable to discipline on this basis alone in Florida, a right-to-work state.

15. Sections 458.311(5) and (7) and 458.313(5) and (6) clearly predicate adverse regulatory action in Florida upon adverse regulatory action in another jurisdiction that is based on an act or omission that is a basis for adverse regulatory action in Florida. Section 458.331(1)(b) omits this limitation, but, if interpreted in pari materia with Sections 458.311(5) and

(7) and 458.313(5) and (6), the same result would obtain, as the Legislature has clearly manifested its intent to limit adverse regulatory action based on adverse regulatory action in other jurisdictions to those acts or omissions that are unlawful or prohibited in Florida.

16. Second, even if Section 458.331(1)(b) were to override the other statutes and allow Respondent to deny a license for an act or omission in another jurisdiction that would not justify adverse regulatory action in Florida, the legislature clearly requires Respondent to take a case-by-case approach in considering applications. The requirement of a case-by-case approach applies even to an applicant whose act or omission that led to adverse regulatory action in another jurisdiction also constitutes a basis for adverse regulatory action in Florida.

17. Sections 458.311(5) and (7) and 458.313(6) do not prohibit the Department of Health from issuing a license to an

applicant who has committed an offense in another jurisdiction that would constitute a basis for adverse regulatory action in Florida; these statutes only prohibit the Department of Health from issuing an unrestricted license. Similarly, the last sentences of Sections 458.311(5) and 458.313(6) authorize Respondent to deny or grant with restrictions when considering the application of a person who has committed an offense in another jurisdiction that would constitute a basis for adverse regulatory action in Florida.

1. Sections 458.311 and 458.313 address only the situation in which an individual has committed an offense in another jurisdiction, and Rule 64B8-4.022(1) addresses the arguably distinct situation in which another jurisdiction has taken adverse regulatory action against an individual. The distinction between these factual scenarios is much more theoretical than practical, as evidenced by the rule's claim to be implementing these two statutes.

2. However, Section 458.331(2) applies explicitly to the situation in which another jurisdiction has taken adverse regulatory action against an individual. Even though the rule forgives what the statute does not--past violations as long as the nonFlorida license is now "unencumbered"--the rule's categoric approach finds no support in Section 458.331(2), which

   provides that Respondent "may"--not "shall"--deny an application for adverse regulatory action in another jurisdiction.

3. Perhaps these statutes do not prevent Respondent from transforming "may" to "shall" by denying each and every application in which the applicant's license is presently encumbered because of adverse regulatory action in another jurisdiction for an act or omission that constitutes an offense in Florida. But these statutes do prevent Respondent from transforming "may" to "shall" by this rule. Pursuant to the statutes purportedly implemented by this rule, applicants are entitled to individual consideration for offenses outside of Florida.

4. These statutes do not mandate a probably unintended effect of this rule: as long as California imposes a restriction upon Petitioner's license, such as a lifelong requirement of annual psychiatric reports, this encumbrance precludes Respondent from even considering the possibility of issuing Petitioner a license with a similar restriction. The anomalous result of Rule 64B8-4.022(1) is that California, which actively investigated, prosecuted, and litigated a case, and then obtained an informed resolution, has eventually allowed Respondent to practice, although with a slightly encumbered license. But Florida, which merely coat-tailed the California regulatory action, persists in denying Respondent an opportunity

   to practice, even subject to restrictions--due to Rule 64B8-4.022(1).

5. When interpreted in conjunction with each other, the implemented statutes limit adverse regulatory action to acts or omissions in other jurisdictions that are offenses under Florida law and require Respondent to consider, on a case-by-case basis, the imposition of restrictions upon a license granted to a person whose nonFlorida license is encumbered because of adverse regulatory action in another jurisdiction. Rule 64B8-4.022(1) enlarges, modifies, or contravenes these statutory provisions.

ORDER

It is

ORDERED that Rule 64B8-4.022(1) is invalid in its entirety as an invalid exercise of delegated legislative authority.

DONE AND ENTERED this 8th day of August, 2002, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 8th day of August, 2002.

COPIES FURNISHED:

Tanya Williams, Executive Director Board of Medicine

Department of Health 4052 Bald Cypress Way,

Tallahassee, Florida 32399-1701

M. Catherine Lannon

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

William W. Large, General Counsel Department of Health

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

Michael J. Hason

1710 Northwest 87th Avenue Plantation, Florida 33322

Lee Ann Gustafson

Senior Assistant Attorney General Department of Legal Affairs

The Capitol, Plaza Level--01 Tallahassee, Florida 32399-1050

Carroll Webb, Executive Director

Jt. Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code The Elliott Building, Room 201 Tallahassee, Florida 32399-0250

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 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: 02-001612RX

Orders for Case No: 02-001612RX