State, Bd. of Optometry v. FLA. SOC. OF OPHTH.State, Bd. of Optometry v. FLA. SOC. OF OPHTH.
This section 120.56 rule challenge proceeding involves a determination of the invalidity of rule 21Q-10.001, Florida Administrative Code, and is the companion case to Florida Society of Ophthalmology v. State of Florida Board of Optometry, 532 So.2d 1279 (Fla. 1st DCA 1988) (hereafter cited as Florida Society of Ophthalmology). The Florida Board of Optometry (Board) adopted this rule to implement the provisions of chapter 86-289, Laws of Florida, now codified as
This proceeding was initiated by the petition described in Florida Society of Ophthalmology, and we refer to that opinion for a more detailed description of the parties and the facts giving rise to this dispute. Appellees challenged the cited rule as an invalid exercise of the Board‘s delegated legislative authority and challenged, as constituting an unpromulgated rule, the validity of the application form the Board used in reviewing applicants for certification. The hearing officer, in a commendably thorough order, filed December 14, 1987 and reported at 10 F.A.L.R. 394, determined that all appellees had standing and held the rule and the form invalid.
In our recent Florida Society of Ophthalmology decision, we held that the petitioners did not have standing to initiate section 120.57 hearings to contest the certification of each optometrist under section 463.0055; however, we noted that the rule challenge issues now before us, including petitioners’ standing to maintain such challenge, were not before the court on that appeal. For the reasons hereafter stated, we reverse the hearing officer‘s decision that petitioners had standing to maintain this rule challenge under section 120.56, but hold that the Department of Professional Regulation does have standing to maintain the rule challenge, and affirm the hearing officer‘s invalidation of the rule and the application form.
PETITIONERS’ STANDING
Appellants have persistently maintained that petitioners lacked standing under the provisions of chapter 120 to maintain this proceeding. In Florida Society of Ophthalmology we held that petitioners failed to allege facts demonstrating that their substantial interests were sufficiently affected to afford them standing to initiate section 120.57 hearings to attack the certification of each applying optometrist. We expressly observed, however, “that standing in a licensing proceeding may well have to be predicated on a somewhat different basis than standing in a rule challenge proceeding” because “there can be ... a difference between the concept of `substantially affected’ under
The hearing officer made explicit findings of fact that ophthalmologists and optometrists “are to a significant extent offering similar health care,” and that “the opportunities provided the certified optometrists coincide with part of the practice available to ophthalmologists.” 10 F.A.L.R. at 419. With respect to each of the petitioners, the hearing officer found that:
75. Petitioner, Florida Society of Ophthalmology, is an organization concerned with, among other things, the educational interests of ophthalmologists and the quality of eye and health care delivered to the patients of ophthalmologists. It is also concerned on behalf of its members about the quality of eye care and health care of Floridians treated with medication by optometrists. Petitioner Florida Medical Association has the same concerns, responsibilities and purposes.
76. Petitioner, Tully C. Patrowicz, M.D., is a physician and ophthalmologist practicing in Mount Dora, Florida, since 1972. Dr. Patrowicz is a Board-certified ophthalmologist since 1974, and is also a past officer and president of Petitioner Florida Society of Ophthalmology. He is currently a member of both Florida Society of Ophthalmology and Florida Medical Association.
77. Petitioner, William J. Broussard, M.D., is a physician and ophthalmologist who has practiced in Melbourne, Florida, since 1967. He is a Board-certified ophthalmologist since 1966. Dr. Broussard is also a member and former office [sic] of Petitioner Florida Society of Ophthalmology.
10 F.A.L.R. at 419-20. The order does not contain any other findings of fact bearing on the issue of petitioners’ standing. The order recites, in the conclusions of law, only that:
6. All parties, with the exception of Baxter H. Byerly, M.D., and Frank A. Broome, O.D., about whom no evidence has been presented, have demonstrated the necessary standing to participate in this action. See Florida Medical Association v. Board of Optometry, 426 So.2d 1112 (Fla. 1st DCA 1983), and
Section 455.217, Florida Statutes .
10 F.A.L.R. at 426.
On this appeal, petitioners characterize appellants’ attack on their standing as incredible, saying, “This court has twice instructed these parties that ophthalmologists and the same two associations present here as Appellees have standing to challenge Board of Optometry rules and non-rule policies when such rules and policies have the effect of infringing on the right to practice medicine,” and citing Board of Optometry v. Florida Medical Association, 463 So.2d 1213 (Fla. 1st DCA), pet. for rev. denied, 475 So.2d 693 (Fla. 1985), (hereafter Board of Optometry), and Florida Medical Association v. Board of Optometry, 426 So.2d 1112 (Fla. 1st DCA 1983) (hereafter Florida Medical Association). (Appellees’ Brief, p. 29.) Petitioners further state, “If the Board was strictly applying the requirements for certification set out in
Appellants argue that petitioners ignore the significant change made by chapter 86-289 in the statutory authority of optometrists to use certain topical ocular drugs. They point out that “as a result of these amendments, the prescription and administration of such drugs by optometrists does not infringe on the practice of medicine” so that petitioners “are not substantially affected by the Board‘s rule and do not have standing to challenge the rule.” (Appellants’ Reply Brief, p. 13.)
We conclude that petitioners and the hearing officer have given an overbroad interpretation to our decisions in Board of Optometry and Florida Medical Association. We agree with appellants that, for the reasons recently set forth in Florida Society of Ophthalmology, the overlapping of the traditional practice of ophthalmology with the optometrists’ newly granted authority to use such drugs, which is the only factual finding upon which the hearing officer predicated petitioners’ standing, is not legally sufficient to sustain petitioners’ standing to maintain this section 120.56 rule challenge.
In Florida Dept. of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA), cert. denied, 359 So.2d 1215 (Fla. 1978), this court compared the more restrictive term “substantially affected,” used in section 120.56, with the broader, more liberal term “affected persons,” used in section 120.54, and concluded that, to have standing under section 120.56, the person challenging the validity of an adopted rule must show a direct injury in fact of “sufficient immediacy and reality” to the petitioner. Finding no evidence of such injury to the petitioner Jerry, the court denied him standing on the ground that any application of the challenged agency rule as to him would be purely speculative and conjectural.
In the instant case, petitioners’ right to administer topical ocular drugs is no longer exclusively reserved to their field of practice regulated by
II.
THE DEPARTMENT‘S STANDING
The secretary of the department shall have standing to challenge any rule or proposed rule of a board pursuant to §§ 120.54 and 120.56. In addition to challenges for any invalid exercise of delegated legislative authority, the hearing officer, upon such a challenge by the secretary, may declare all or part of a rule or proposed rule invalid if it:
(a) Does not protect the public from any significant and discernible harm or damages;
(b) Unreasonably restricts competition or the availability of professional services in the state or in a significant part of the state; or
(c) Unnecessarily increases the cost of professional services without a corresponding or equivalent public benefit.
However, there shall not be created a presumption of the existence of any of the conditions cited in this subsection in the event that the rule or proposed rule is challenged.
This statute explicitly gives the Department standing to challenge the validity of rules promulgated by the Board of Optometry.
In the instant case, however, petitioners rather than the Department initiated this rule challenge proceeding. The Department was initially named as a respondent and supported the respondent Board in upholding the validity of the challenged rule and application form. Only after the close of all evidence at the 120.56 hearing did the Department‘s newly assigned counsel align the Department with petitioners’ views in respect to the invalidity of the rule and application form. Appellees objected to the Department‘s realignment by filing a motion to dismiss the Department as a party, alleging in part that the Department had been privy to their confidential and privileged communications. The Department‘s conduct in this case is unusual, to say the least, for it should have, at the outset, become sufficiently informed about the Board‘s rules to make a timely decision on the rule‘s validity. Nevertheless, we are not called upon at this time to determine whether the Department acted improperly in delaying its realignment until all the evidence was in the record. None of the parties have contested the Department‘s standing on this appeal, and we can perceive no prejudice to any party in upholding that standing. For reasons of judicial economy, we conclude that the issues concerning the validity of the challenged rule and application form were thoroughly presented to and considered by the hearing officer, and that there is no substantial reason for dismissing the entire proceeding and remanding with leave to the Department to initiate another rule challenge proceeding. We uphold the Department‘s standing to maintain this rule challenge so as to permit review of the hearing officer‘s decision on the merits.
III.
INVALIDITY OF THE RULE
(1) Certified optometrists may administer and prescribe topical ocular pharmaceutical agents as provided in this section for the diagnosis and treatment of ocular conditions of the human eye and its appendages without the use of surgery or other invasive techniques... .
(2) The board shall issue certification for the administration and prescription of
topical ocular pharmaceutical agents in the diagnosis and treatment of ocular conditions to licensed practitioners who have completed the appropriate forms as required by the board and who have submitted proof of fulfilling all of the following requirements: (a) Successful completion of at least 110 hours of approved transcript-quality coursework and clinical training in general and ocular pharmacology, as determined by the board. However, no course in pharmacology shall be approved by the board unless the course is conducted by an institution which has facilities for both the didactic and clinical instructions in pharmacology and which is accredited by a regional or professional accrediting organization that is recognized and approved by the Council on Postsecondary Accreditation or the United States Department of Education.
(b) Completion of at least 1 year of supervised experience in differential diagnosis of eye disease or disorders as part of the optometric training or in a clinical setting as part of optometric experience.
(c) Successful completion of an examination approved by the board which tests knowledge of general and ocular pharmacology with particular emphasis on the topical application of pharmaceutical agents for the eye and side effects of such pharmaceutical agents.
(3) The board shall establish by rule an application fee, not to exceed $250, and an examination fee, not to exceed $250, for certification pursuant to this section.
Rule 21Q-10.001 implemented the statutory provisions in the following language:
Application for Certification. To be certified to administer and prescribe topical ocular pharmaceutical agents a licensed practitioner must submit a completed application form provided by the Board, remit the application fee for certification specified in Rule 21Q-6.001(9), and demonstrate compliance with the following requirements:
(1) Successful completion of at least 110 hours of Board approved transcript quality coursework and clinical training in general and ocular pharmacology conducted by an accredited institution which has facilities for both didactic and clinical instruction in pharmacology. The institution must document the applicant‘s successful completion. The Board will accept coursework and clinical training in general and ocular pharmacology received by the applicant during his basic optometric curriculum or at post-graduate courses if this coursework and training was provided by a Board approved school of optometry or equivalent educational entity;
(2) Completion of at least one (1) year of supervised experience in differential diagnosis of eye diseases or disorders. The one year of supervised experience shall be received either during optometric training or in a clinical setting as part of optometric experience. The requisite one year of supervised experience in a clinical setting may be obtained in an academic or non-academic environment. For the purpose of this rule, one year of supervised experience in an academic setting is understood to mean three (3) quarters or two (2) semesters and one (1) year of supervised experience in a non-academic setting is understood to mean a twelve month period.
(3) Successful completion of a Board approved examination testing knowledge of general and ocular pharmacology with particular emphasis on the topical application of pharmaceutical agents. In order to be approved by the Board, the examination must have been administered in a Board approved school of optometry or at the conclusion of a post-graduate course conducted by a Board approved school of optometry, and the examination must be approved by the Board.
Petitioners and the Department argued to the hearing officer that the rule is an invalid exercise of delegated legislative authority because, one, “it is said to allow coursework and clinical training in general or ocular pharmacology received by the optometrist while undergoing basic optometric education as acceptable proof or in
The final order held rule 21Q-10.001 invalid in only one of the several respects argued by petitioners and the Department:
(a) That the language within Rule 21Q-10.001(3), Florida Administrative Code, which states, “in order to be approved by the Board, the examination must have been administered in a board approved school of optometry or at the conclusion of a post-graduate course conducted by a board approved school of optometry, and the examination must be approved by the Board,” is an invalid exercise of delegated legislative authority. The petition and challenge to that rule is otherwise dismissed.
10 F.A.L.R. at 435. Neither the Department nor the petitioners have appealed the failure to hold the rule invalid on any other grounds.
The final order contains extensive findings of fact showing the exhaustive efforts undertaken by the Board to evaluate the academic and clinical training provided at the various approved optometric schools so as to assure conformance with the requirements of the statute and the implementing rule. These efforts included extensive review and evaluation of actual and representative examinations given to the applicants during their academic training in all schools. The Board unquestionably made a good faith effort to comply with the statutory requirements for certification in accordance with its interpretation of the statutory language.
The hearing officer also found as a matter of fact that the legislative history of
The legal precepts governing this issue are well established.
Appellants rely on the precepts stated in Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984):
The well recognized general rule is that agencies are to be accorded wide discretion in the exercise of their lawful rulemaking authority, clearly conferred or fairly implied and consistent with the agencies’ general statutory duties... . An agency‘s construction of the statute it administers is entitled to great weight and is not to be overturned unless clearly erroneous... . Moreover, the agency‘s interpretation of a statute need not be the sole possible interpretation or even the most desirable one; it need only be within the range of possible interpretations... .
455 So.2d at 517. Thus, appellants argue, the Board‘s interpretation of subsection (2)(c) was within the range of possible interpretations of
We recognize that in Durrani we indicated that the court must approve the agency‘s selection of any possible interpretation of the enabling statute. But in so stating, we did not mean that any conceivable construction of a statute must be approved irrespective of how strained or ingeniously reliant on implied authority it might be; rather, as made clear in the cases cited in Durrani in support of the stated proposition, only a permissible construction by the agency that comports with and effectuates discerned legislative intent will be sustained by the court. Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982);2State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981).3See also Public Employees Relations Comm‘n v. Dade County Police Benevolent Ass‘n, 467 So.2d 987, 989 (Fla. 1985) (“a reviewing court must defer to an agency‘s interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported by substantial, competent evidence“). As we made quite plain in Schoettle v. Department of Administration, 513 So.2d 1299, 1301 (Fla. 1st DCA 1987), “statutory construction is ultimately the province of the judiciary.” As we understand the hearing officer‘s statements, he meant only that the construction of
In determining whether the language in
The general rule is that the manifest intent of the Legislature will prevail over the literal import of the words used by it. As recognized by the Florida Supreme Court in Barrington v. State, 145 Fla. 61, 199 So. 320, 323 (1940), quoting from Commonwealth v. Henry, 229 Mass. 19, 118 N.E. 224 (1918), L.R.A. 1918B, 827:
The statute must be read with reference to its manifest intent and spirit and cannot be limited to the literal meaning of a single word. It must be construed as a whole and interpreted according to the sense in which the words are employed, regard being had to the plain intention of the Legislature.
Applying these principles, it is obvious that
We agree with the hearing officer that
We believe it is equally clear that the total statutory scheme contemplates that the examination requirement, unlike the coursework and experience requirements, is to be met by successfully completing a substantially uniform examination administered to all applicants at the time of their application.
As stated in State Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454, 457 (Fla. 1st DCA 1980), “While there is obviously room for some rulemaking and regulation by the Department in connection with each of the alternative subsections, the Department is not authorized to add to or modify those provisions that spell out with particularity the criteria that must be met in order to be eligible for a license.” We hold that the Board in the instant case acted arbitrarily in adding to the statute authority to rely on coursework examinations to satisfy subsection (2)(c), and find no error in the hearing officer‘s invalidation of those provisions of the rule that impermissibly implement the examination requirements in
IV.
INVALIDITY OF THE FORM
We affirm the ruling that the application form constitutes an unpromulgated rule and is therefore invalid. We agree with the hearing officer that the application form constitutes a rule within the definition in
AFFIRMED IN PART AND REVERSED IN PART.
SMITH, C.J., and BARFIELD, J., concur.
ON MOTIONS FOR REHEARING AND MOTION FOR CLARIFICATION
ZEHMER, Judge.
The amended motion for rehearing and motion for rehearing en banc filed by the following appellees, Florida Society of Ophthalmology, Florida Medical Association, William J. Broussard, M.D., Tully C. Patrowicz, M.D., and Baxter H. Byerly, M.D., is denied. Although, contrary to the proscription in Fla.R.App.P. 9.330, the motion merely re-argues the merits of our decision, we have nevertheless considered the motion on the merits and determined that none of the contentions warrants further discussion.
The motion for rehearing and motion for rehearing en banc filed by the appellants, State of Florida, Board of Optometry; Florida Optometric Association; Frank A. Broome, O.D.; and Howard J. Braverman, O.D., is also denied. Appellants contend that because the Department of Professional Regulation did not file an answer brief, this court, after finding that the remaining appellees lacked standing, should not have recognized the Department‘s standing to maintain the rule challenge and thus should have declined to review the merits of the hearing officer‘s decision invalidating the rule. In support of this contention, appellants cite Title and Trust Co. of Florida v. Salameh, 407 So.2d 1035 (Fla. 1st DCA 1981), and argue that we held in that case that an appellee is obligated to file an answer brief, and reversed the lower court‘s decision because the appellee in Salameh failed to file a brief. We do not agree. Although the court‘s opinion did denounce the appellee‘s failure to file an answer brief, that failure was not the basis for the court‘s decision to reverse the summary judgment under review. Rather, the court proceeded to review the case on the merits and reversed because it found a genuine issue of material fact remained in dispute, precluding the entry of summary judgment. The court‘s criticism of the appellee for failing to file a brief was mere dictum, and it has no precedential effect in this case. Furthermore, the appellee‘s failure in Salameh to file an answer brief was particularly burdensome to the court because no other appellee filed a brief presenting a position contrary to the appellant‘s. In the instant case, multiple appellees filed an answer brief presenting extensive arguments for affirming the hearing officer‘s decision.1
The Department clearly is a party to this appeal as an appellee.
We grant appellants’ motion for clarification of our decision in respect to the date the rule shall be deemed void and unenforceable. They urge us to make clear that the rule may be invalidated only on a prospective basis in accordance with
The hearing officer may declare all or part of a rule invalid. The rules or part thereof declared invalid shall become void when the time for filing an appeal expires or at a later date specified in the decision.
It is apparent that the statutory scheme in chapter 120 for invalidating agency rules contemplates that once a rule, or an agency statement or form that constitutes a rule under the definition in
Appellees contend that even if the rule may be voided on a prospective basis only, the application form is not a rule and should be rendered void ab initio. We do not agree. The application form clearly meets the definition of a rule in
SMITH, C.J., and BARFIELD, J., concur.