Cone v. State, Dept. of Health, 1D03-3663.
| Decision Date | 28 October 2004 |
| Docket Number | No. 1D03-3663.,1D03-3663. |
| Parties | Robert Roy CONE, D.O., M.D., Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH, Florida Board of Osteopathic Medicine, Pamela King, Executive Director of Board, and Does 1-100 Should Knowledge of Other Proper Parties Become Apparent to Appellant, Appellees. |
| Court | Florida District Court of Appeals |
Appellant, pro se.
Pamela H. Page, Department of Health, Bureau of Health Care, Tallahassee, for Appellees.
Appellant, Robert Roy Cone, D.O., M.D., appeals pro se the corrected final order of the Board of Osteopathic Medicine, permanently revoking his license to practice osteopathic medicine,1 pursuant to section 456.072(1)(f), Florida Statutes (2003), based on the revocation of his license to practice allopathic medicine2 in the state of California for a violation of that state's laws. He raises the following points on appeal:
We conclude that issues II, III and V are without merit, and summarily affirm as to them. As to issues I and IV, relating to the sufficiency of the allegations of the administrative complaint to charge a violation of section 456.072(1)(f), we reverse the corrected final order and remand the case with directions, in that the order fails to specify how the revocation of appellant's license to practice medicine in the state of California was the result of a violation of law in that state which would also constitute a violation of Florida law.
The administrative complaint filed by appellee Department of Health (DOH), requested that the Board of Osteopathic Medicine discipline appellant's osteopathic license, on the following ground:
Based upon [the revocation of appellant's license to practice medicine in California], the Respondent has violated Section 456.072(1)(f), Florida Statutes (2000), by having a license or the authority to practice any regulated profession revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions, for a violation that would constitute a violation under Florida law. The licensing authority's acceptance of a relinquishment of licensure, stipulation, consent order, or other settlement, offered in response to or in anticipation of the filing of charges against the license, shall be construed as action against the license.
The Board's decision to apply the provisions of Chapter 456, rather than Chapter 459, to institute disciplinary charges against appellant was one of law, and as such it is subject to a de novo review standard. See Parlato v. Secret Oaks Owners Ass'n, 793 So.2d 1158, 1162 (Fla. 1st DCA 2001)
. "The standard of review of an agency decision based upon an issue of law is whether the agency erroneously interpreted the law and, if so, whether a correct interpretation compels a particular action." Florida Hosp. v. Agency for Health Care Admin., 823 So.2d 844, 847 (Fla. 1st DCA 2002).
We begin our analysis with the usual recognition of deference to an agency's interpretation of a statute it is charged to administer. See Ocampo v. Dep't of Health, 806 So.2d 633, 634 (Fla. 1st DCA 2002)
; Florida Dep't of Ins. & Treasurer v. Bankers Ins. Co., 694 So.2d 70 (Fla. 1st DCA 1997). "However, an appellate court can overturn the agency's interpretation of a statute if the interpretation is clearly erroneous." Ocampo, 806 So.2d at 634; Dep't of Natural Res. v. Wingfield Dev. Co., 581 So.2d 193 (Fla. 1st DCA 1991).
Appellant contends the Board of Osteopathic Medicine cannot legally discipline a physician for acts allegedly occurring in the course of a different specialty of medicine in another jurisdiction. A cursory reference to the general provisions of 456.072(1)(f) clearly belies that argument. This statute provides in pertinent part:
456.072 Grounds for discipline; penalties; enforcement. —
(Emphasis added). Not only does the language of the statute empower the Board of Osteopathic Medicine to discipline an osteopathic physician whose license in any regulated profession was revoked by another jurisdiction, but the general provisions of Chapter 456, relating to all health professions and occupations, so indicate as well. For example, the subject matter of chapter 456 broadly refers to "Health Professions and Occupations: General Provisions." Indeed, the chapter sets out the general authority of the DOH to regulate all professionals within the Division of Medical Quality Assurance. See §§ 456.001, 456.002, and 456.004, Fla. Stat. (2003).
Appellant also contends that the Board lacked the authority to seek revocation of his Florida license pursuant to section 456.072(1)(f) without alleging how the violation of California law was tantamount to a violation of Florida law. The Board acknowledges that the statute under which appellant was charged requires, on its face, proof of same as an essential element, but it cites the rule of construction providing that "`statutes which relate to the same or to a closely related subject or object are regarded as in pari materia and should be construed together and compared with each other.'" Smith v. Crawford, 645 So.2d 513, 522 (Fla. 1st DCA 1994) (quoting Ferguson v. State, 377 So.2d 709, 710 (Fla.1979)). In such cases, "the primary rule of statutory interpretation is to harmonize related statutes so that each is given effect." Butler v. State, 838 So.2d 554, 556 (Fla.2003). See also Fla. Dep't of Educ. v. Cooper, 858 So.2d 394, 396 (Fla. 1st DCA 2003)
.
The Board argues that under this rule, it need not specify in its complaint, nor offer proof, what Florida law appellant allegedly violated in committing a violation of California law, because relevant provisions under Chapter 459, regulating the practice of osteopathic medicine, impose no such requirement. Thus, by reading the relevant provisions of chapters 456 and 459 in pari materia, it contends it need allege and prove only, as the basis for its authority to proceed against his license in the state of Florida, that Dr. Cone's license as a health practitioner had been revoked in another jurisdiction. In support of its argument, it refers to section 459.015, Florida Statutes (2003), which states in part:
(Emphasis added.)
It is clear that the above statute confers authority on the Board only to proceed against an osteopathic physician whose license to practice such specialty in another jurisdiction was there acted against. These provisions offer no support to the Board's position because, as stated, the license of appellant, revoked in California, was for a different specialty, i.e., that of medicine. In our judgment, the Board's right to proceed against appellant's Florida license under section 456.072(1)(f) must find support in some other pertinent statutory provision. Among other provisions, it cites section 456.072(2), which states in part:
The Board points out that the "applicable practice act," referenced in section 456.072(2), is chapter 459, pertaining to osteopathic medicine. It continues that the general provisions of section 456.072 authorize suspension or revocation of the practitioner's license for any of the grounds set out in chapter 459, and that section 459.015(1)(pp) allows the Board to bring disciplinary action against a licensee for, among other things, "[v]iolating any provision of this chapter or chapter 456." Finally, it refers to section 459.015(2), which provides:
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).
The Board concludes from its cross reference to the above provisions that it was authorized to institute disciplinary action against Dr. Cone without alleging any...
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