Soc'y for Clinical & Med. Hair Removal, Inc. v. Dep't of Health

• Decision Date: 31 December 2015
• Docket Number: No. 1D14–5234.,1D14–5234.
• Citation: 183 So.3d 1138
• Parties: SOCIETY FOR CLINICAL AND MEDICAL HAIR REMOVAL, INC. (SCMHR), Appellant, v. DEPARTMENT OF HEALTH, Board of Medicine, Appellee.
• Court: Florida District Court of Appeals

183 So.3d 1138

SOCIETY FOR CLINICAL AND MEDICAL HAIR REMOVAL, INC. (SCMHR), Appellant,

v.DEPARTMENT OF HEALTH, Board of Medicine, Appellee.

No. 1D14–5234.

District Court of Appeal of Florida, First District.

Dec. 31, 2015.

Jon M. Pellett of Barr, Murman & Tonelli, P.A., Tampa; Dinah S. Stein of

Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Appellant.

Pamela Jo Bondi, Attorney General, and Marlene K. Stern, Assistant Attorney General, Tallahassee, for Appellee.

WETHERELL, J.

In this administrative appeal, Society for Clinical and Medical Hair Removal, Inc. (SCMHR), seeks review of a declaratory statement issued by the Board of Medicine. SCMHR argues that we should reverse the declaratory statement because it (1) misinterprets the applicable statutes and rules to require only one-time certification of electrologists who use lasers or light-based devices for hair removal, and (2) exceeds the proper scope of a declaratory statement in that it announces a broad new policy that constitutes an unadopted rule. We find no merit in either claim. Accordingly, we affirm the declaratory statement.

FACTUAL AND PROCEDURAL BACKGROUND

SCMHR is a national trade association of electrologists.¹ It also offers the only Board-approved certification program for electrologists in Florida. The program includes a Certified Clinical Electrologist (CCE) certification for electrologists using epilators

(a needle-based device) and a Certified Medical Electrologist (CME) certification for electrologists using lasers or light-based devices. SCMHR advises electrologists that the CCE and CME certifications are valid for five years, after which the electrologist must be re-certified, either by examination or by proof of continuing education.

In April 2014, SCMHR filed a petition with the Board seeking a declaratory statement as to whether "its members must obtain and maintain [CME] certification in the use of laser and light-based devices to continue utilizing [such] devices for hair removal or reduction." The petition alleged that SCMHR's members were in doubt as to whether the Board's rules require electrologists to have "current CME certification" or whether the rules only require them to have initial certification without the need for re-certification every five years. The petition further alleged that the uncertainty on this issue put SCMHR members "in jeopardy for license discipline for any non-compliance with the Board's rules."

The Board referred the petition to the Electrolysis Council² for a recommendation as to the appropriate action to be taken. See Fla. Admin. Code R. 64B8–50.003(2) ("Rulemaking proposals, petitions for declaratory statement ^{[3 ]} and petitions to adopt, amend or repeal rules, which relate to the practice of electrology shall first be presented to the Council. The Council shall consider the matter and make recommendations to the Board as to the appropriate action to be taken."). After a hearing, the Council recommended that the Board issue a declaratory statement explaining that its rules only require a one-time CME certification of electrologists who use lasers and light-based devices for hair removal.

In August 2014, after receiving the Council's recommendation, the Board held a hearing on the petition. At the conclusion of the hearing, the Board voted to issue a declaratory statement consistent with the Council's recommendation. The Board also voted to initiate rulemaking "[t]o go ahead and clarify in the rule that continual certification is not required in order to do laser hair removal."⁴

A few days after the Board's vote, SCMHR filed a request to withdraw its petition for declaratory statement. In support of the request, SCMHR argued that a declaratory statement was no longer needed based on the Board's stated intent to initiate rulemaking. It also asserted that the draft declaratory statement proposed by staff amounted to an "un-promulgated rule." The attorney for the Council argued against the request, pointing out that it was not made until after the Board voted to approve the declaratory statement and noting that the statement would "put to rest an issue that has been controversial for a very long time"⁵ and maintain the "status quo" pending the rulemaking process. The Board denied SCMHR's request to withdraw its petition⁶ and then voted to approve the staff-proposed declaratory statement.

In October 2014, the Board formally issued the declaratory statement, which provides in pertinent part:

The Board first notes that no rule or statute expressly requires that the CME credential be continually updated. The cited rules and statutes can only be harmonized if the CME certification is obtained once, after the electrologist has taken the laser training course required by Rule 64B8–52.004(2), and before he or she begins to offer laser hair removal to the public.

Rule 64B8–56.002(2)(b), Florida Administrative Code, is the provision that actually sets the requirement to obtain CME certification, and that rule uses the past tense ^[7]("[h]ave been certified"), indicating a CME credential does not have to be continually updated. The rule governing inspection of electrology facilities where lasers are used (64B8–51.006), and the citation rule (64B8–55.002), each require proof of certification to be present in the facility at all times, thus the present tense is used. The requirement to obtain a CME certification and the requirement to have proof of having obtained CME certification are two different things. Thus, the past tense is used in Rule 64B8–56.002(2)(b) for the one-time certification requirement to obtain the CME certification, and the present tense is used in Rules 64B8–51.006 and 64B8–55.002 for the ongoing requirement to show proof of having obtained CME certification.

This interpretation comports with another important aspect of the regulation of electrologists, specifically the requirement for continuing education.

Section 476.50(4)(a), Florida Statutes, establishes a 20 hour continuing education ... requirement for license renewal each biennium, whether the practitioner uses laser or epilator

equipment....

[SCMHR] states that the CME tests for advanced knowledge and skill. See Petition at ¶ 5. If licensed electrologists pass the CME certification test, then the continuing education requirement in Chapter 476 is sufficient to and intended to enable electrologists to maintain their skills in and knowledge of laser usage.

For all of the foregoing reasons, electrologists who wish to use laser or light-based equipment are required to obtain the CME certification one time and have proof of having obtained that certification present at all times.

This appeal followed.

ANALYSIS

We begin our analysis with the second issue raised by SCMHR in its brief because that issue involves the threshold question of whether the Board should have issued a declaratory statement. If SCMHR prevailed on that issue, we would not need to address the first issue raised in the brief regarding the merits of the declaratory statement. However, because we find that the Board properly issued the declaratory statement, we conclude our analysis with an assessment of the merits of the declaratory statement.

Board's Authority to Issue the Declaratory Statement

SCMHR's argument that the declaratory statement exceeds the proper scope of a declaratory statement because it announces a broad new policy that amounts to an unadopted rule presents a pure question of law, which we review de novo. See Lennar Homes, Inc. v. Dep't of Bus. & Prof'l Reg., 888 So.2d 50, 53–54 (Fla. 1st DCA 2004).

"The purpose of a declaratory statement is to resolve a controversy or answer questions concerning the applicability of statutes, rules, or orders which an administrative agency enforces, adopts or enters." Citizens of the State ex rel. Office of Pub. Counsel v. Fla. Pub. Serv. Comm'n, 164 So.3d 58, 59 (Fla. 1st DCA 2015) ; see also Patricia A. Dore, Access to Florida Administrative Proceedings, 13 Fla. St. U.L.Rev. 965, 1052 (1986) (explaining that the declaratory statement procedure "enable[s] members of the public to definitively resolve ambiguities of law arising in the conduct of their daily affairs or in the planning of their future affairs and ... enable[s] the public to secure definitive binding advice as to the applicability of agency-enforced law to a particular set of facts") (internal quotations and footnotes omitted).

Prior to 1996, the authority of an agency to issue a declaratory statement was limited to issues that applied only to the party seeking the declaration because section 120.565, Florida Statutes (Supp.1978–1995), provided that the declaratory statement shall set out the agency's opinion as to the applicability of a statute or rule "to the petitioner in his or her particular set of circumstances only. " (emphasis added). The cases construing the pre–1996 version of the statute recognized this limitation on agency authority to issue declaratory statements. See, e.g., Regal Kitchens, Inc. v. Fla. Dep't of Rev., 641 So.2d 158, 161–62 (Fla. 1st DCA 1994) ("[Section 120.565, Florida Statutes (1989) ] limits the use of a declaratory statement to an expression of the agency's position on an issue raised by an individual petitioner in a particular set of facts."); Fla. Optometric Ass'n v. Dep't of Prof'l Reg., 567 So.2d 928, 937 (Fla. 1st DCA 1990) (stating in dicta that "[d]eclaratory statements should only be granted where the petition has clearly set forth specific facts and circumstances which show that the question presented relates only to the petitioner and his particular set of circumstances").

In 1996, the word "only" was deleted from section 120.565, see ch. 96–159, § 17, Laws of Fla., and in Chiles v. Department of State, 711 So.2d 151, 154 (Fla. 1st DCA 1998), we construed this change to mean that "a petition for declaratory statement need not raise an issue that is unique" and that "there is no longer a requirement that the issue apply only to the...