Barker v. Board of Medical Examiners, Dept. of Professional Regulation

• Decision Date: 09 March 1983
• Docket Number: No. AH-306,AH-306
• Citation: 428 So.2d 720
• Parties: Marshall J. BARKER, Appellant, v. BOARD OF MEDICAL EXAMINERS, DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
• Court: Florida District Court of Appeals

Page 720

428 So.2d 720

Marshall J. BARKER, Appellant, v. BOARD OF MEDICAL EXAMINERS, DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.

No. AH-306.

District Court of Appeal of Florida First District.

March 9, 1983.

Bruce A. McDonald of Emmanuel, Sheppard & Condon, Pensacola, for appellant.

Jim Smith, Atty. Gen., and Chris D. Rolle, Asst. Atty. Gen., for appellee.

ERVIN, Judge.

This is an appeal from an order of the Board of Medical Examiners (Board) which denied appellant's application for licensure under Chapter 458, Medical Practice, Florida Statutes (1979), on the ground that he is not a graduate of a medical school or college approved by an accrediting agency which is recognized by the Department of Education. We affirm.

The issue before us is whether appellant "[i]s a graduate of a medical school or college maintaining a standard and reputation approved by the board pursuant to s. 458.311; ...." Section 458.313(1)(c), Florida Statutes (1979) (pertaining to licensure by endorsement). Section 458.311(1)(b), Florida Statutes (1979), prescribing the requirements for licensure by examination, states that the medical school or college must be one "recognized and approved by an accrediting agency recognized by the United States Office of Education." Appellant is a graduate of the West Virginia School of Osteopathic Medicine, a school approved and accredited by the American Osteopathic Association (AOA), but not accredited by the American Medical Association (AMA). On appeal, the parties stipulated that the AOA is recognized as an accrediting body by the Council on Postsecondary Accreditation and the United States Office of Education (now the Department of Education). The issue then narrows to the question of whether the West Virginia School of Osteopathic Medicine is one approved by an accrediting agency recognized by the United States Office of Education (now the Department of Education) as a school of medicine?

Following our initial examination of the record, consisting of certain exhibits, a transcription of a very brief proceeding before the Board relating to Barker's application for licensure, and a two-page stipulated statement, we determined that the omission of a section 120.57 hearing precluded meaningful appellate review of the issues; accordingly we relinquished jurisdiction to the Board for further consistent proceedings. The Board then requested a hearing officer from the Division of Administrative Hearings to conduct a section 120.57(1) hearing. The evidence before the hearing officer showed, through the testimony of the Board's executive secretary, that despite the nonexistence of any rule on the subject, it is the current policy of the Board to recognize only those medical schools or colleges approved by the Liaison Committee on Medical Education (LCME) of the Council of the American Medical Association. Also introduced into evidence were several exhibits, one revealing that the United States Department of Education recognizes separate accrediting agencies for medicine and osteopathic medicine, another disclosing that the Department of Education recognizes the LCME as the accrediting agency for medicine and the AOA as the accrediting agency for osteopathic medicine. Based upon this evidence, as well as his notice of the separate regulatory acts for the practices of medicine and osteopathic medicine, the hearing officer recommended that the licensing application be denied, which was accepted by the Board.

Appellant argues that the history of certain legislative changes that occurred during the 1979 legislative session, as well as of certain rule changes, ¹ demonstrates that the legislature intended to allow qualified graduates of osteopathic medical colleges to become licensed under Chapter 458. Such legislative intent, he contends, is derived from the unqualified reference to medical school or college in section 458.311(1)(b), as simply being one "approved by an accrediting agency recognized by the United States Office of Education"; or, the fact that the school from which he graduated is approved by the AOA, an accrediting body recognized by the Department of Education, and finally, the failure of the legislature or the Board to reimpose standards requiring that the applicant graduate from a medical school approved by the AMA or other private organization. He concludes that this omission is significant when contrasted with the parallel provisions in the Osteopathy Act, also rewritten in 1979, which refers to the AOA. ²

In denying appellant's applications, the Board obviously interpreted section 458.311(1)(b)'s reference to "medical school" as not encompassing a school of osteopathic medicine. Without expressly so stating, the Board apparently imposed the same criterion upon Barker that was previously required by Rule 21M-1.06: that the applicant graduate from a medical school "maintaining a standard ... as that adopted by the Council on Medical Education and Hospitals of the American Medical Association ...." Once again we are confronted with the question of whether an agency's policy, articulated by means other than by rule adoption, should be approved. It obviously would have been preferable for the Board to have expressed its policy by the adoption of a new rule, see, e.g., Anheuser-Busch, Inc. v. Department of Business, 393 So.2d 1177 (Fla. 1st DCA 1981); Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Moncrief v. State, Commissioner of Insurance, 415 So.2d 785 (Fla. 1st DCA 1982). There was no lack of statutory authorization precluding the Board from defining by rule the term medical school or college simply because Section 458.08(1), Florida Statutes (1977) (permitting the Board to determine those medical schools or colleges which maintain a standard of training sufficient to admit their graduates to medical examinations), had been repealed at the time Barker applied for licensure. Section 458.313(1)(c), Florida Statutes (1979), although worded differently from section 458.08(1), authorizes the Board to approve the reputation and standards of medical colleges whose graduates seek licensure by endorsement within the state.

The fact, however, that no rule was extant at the time Barker applied for licensure does not necessarily mean the Board's action was void. The time has long since passed (if ever it existed) that agency action was mechanically invalidated simply because no rule was in effect. Certain opinions from this court during our early experience with Florida's 1974 Administrative Procedure Act may have so indicated. See Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977); State, Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977), but contrast Mitchell v. School Board of Leon County, 347 So.2d 805 (Fla. 1st DCA 1977); Hill v. School Board of Leon County, 351 So.2d 732 (Fla. 1st DCA 1977), cert. denied, 359 So.2d 1215 (Fla.1978). Our academic endeavors in attempting to label the action either rule or nonrule to determine whether or not it fell within section 120.52(14)'s definition of a rule have now been largely discarded. There are, however, costs exacted upon an agency which avoids the rulemaking procedure provided by section 120.54, chief among those being that the agency may be required repeatedly to defend its nonrule policy decisions in each case. State, Department of Administration v. Harvey, 356 So.2d 323, 326 (Fla. 1st DCA 1977).

Different standards of review are now applied to test the validity of an agency's nonrule action, and they stem largely from our seminal decision in McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). McDonald instructs that in weighing the substantiality of evidence the appellate court should look to the form of the evidence appropriate to the issues before the agency. In so doing, the court first determines whether those issues are susceptible to ordinary methods of proof, i.e., dependent upon the weight and credibility of testimony, documentary evidence, etc. --facts which the agency claims no special insight. Or, are those issues resolvable as "interpretations of law, ... or policy within the agency's exercise of delegated discretion." Section 120.68(7), Florida Statutes (1981). Id. at 579. If the evidence falls within the former category, McDonald counsels that an appellate court should accord greater probative value to the findings of the trier of the facts, rather than to those of the reviewing agency. If, however, it falls into the latter,

a reviewing court will give correspondingly less weight to the hearing officer's findings in determining the substantiality of evidence supporting the agency's substituted findings.

Id. Yet, in those cases in which the agency's nonrule policy is not susceptible to verification by conventional proof, it is absolutely essential that such policy be sufficiently explained for agency review. Id. at 582.

McDonald, thus, more than any other case, established standards for reviewing the competency and persuasiveness of evidence supporting nonrule regulatory orders in an adjudicative setting. It set the stage for future appellate decisions holding that the substantial evidence rule depends primarily upon the nature of the issues involved, and that evidence, substantial within one context, may not be so in another.

The McDonald rule was further refined by our later opinion in Anheuser-Busch, Inc. v. Department of Business. There we were asked to determine the validity of an agency's order which sought, without benefit of a rule, to interpret a statute which imposed licensee discipline "for violation of rather general, morally neutral, and somewhat technical statutory standards ...." Id. 393 So.2d at 1181. Borrowing from the "record foundation" language of Florida Cities Water Co. v. Public Service Commission, 384 So.2d 1280, 1281 (Fla.1980), we held that the nature of the issues involved--whether the...