Department of Professional Regulation, Florida State Bd. of Medicine v. Marrero, 87-1285

• Decision Date: 18 November 1988
• Docket Number: No. 87-1285,87-1285
• Citation: 13 Fla. L. Weekly 2163,536 So.2d 1094
• Parties: 13 Fla. L. Weekly 2163, 13 Fla. L. Weekly 2536 DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA STATE BOARD OF MEDICINE, Appellant, v. Roger MARRERO, M.D., Appellee.
• Court: Florida District Court of Appeals

Page 1094

536 So.2d 1094

13 Fla. L. Weekly 2163, 13 Fla. L. Weekly 2536

DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA STATE BOARD OF MEDICINE, Appellant, v. Roger MARRERO, M.D., Appellee.

No. 87-1285.

District Court of Appeal of Florida,

First District.

Nov. 18, 1988.

Robert A. Butterworth, Atty. Gen. and M. Catherine Lannon, Asst. Atty. Gen., Tallahassee, for appellant.

Michael I. Schwartz, Tallahassee, for appellee.

ERVIN, Judge.

Appellant, Department of Professional Regulation, Florida State Board of Medicine (Board), appeals from a final order of the Leon County Circuit Court, permanently enjoining the Board from proceeding further on the application of appellee, Dr. Roger Marrero, seeking licensure, and from disallowing Dr. Marrero to withdraw his application. We reverse the circuit court's order on the ground that Dr. Marrero had an adequate and available administrative remedy, and remand with directions that the complaint be dismissed.

Dr. Roger Marrero applied to the Board for licensing as a medical doctor. At his appearance before the Board on August 3, 1986, certain questions were raised relating to evaluations that were both favorable and unfavorable, as well as questions regarding personality problems that had appeared on the evaluations. Dr. Marrero informed the Board that he was currently on leave from a residency program at Jackson Memorial Hospital because of family problems, but denied suffering from any medical or psychiatric conditions. The Board suggested that Dr. Marrero supply psychiatric evaluations and asked him to make a second appearance at its next scheduled meeting in October. Before that meeting, he accepted employment in Pennsylvania, where he was already licensed to practice medicine; consequently he did not attend the October meeting, and the matter was continued to the Board's December meeting. Before the December meeting, however, Marrero's attorney informed the Board by letter that because of his client's employment responsibilities, he would be unable to attend the scheduled meeting and requested the Board to delay consideration of the application until February. The Board responded that if Marrero failed to attend the February meeting, his application would be denied.

Shortly before the February conference, Dr. Marrero informed the Board by letter that he was withdrawing his application, stating that his current obligations would not allow him to attend the meeting, and that he intended to reapply in the future when he had fewer time constraints. Dr. Marrero's attorney thereafter requested, because his client had voluntarily withdrawn his application, that the matter be removed from the February agenda. The Board declined to do so and voted to deny his application, but retained jurisdiction to consider the application at its next meeting, when the denial would become final unless Dr. Marrero then chose to appear in person.

Rather than appear before the Board in compliance with its directions, or request an administrative hearing, Dr. Marrero instead filed a complaint in circuit court, seeking to enjoin the Board from taking further action on his application. The Board moved to dismiss the complaint, on the theory that the physician had failed to exhaust his administrative remedies. The court denied the motion and entered an order permanently enjoining the Board from taking any action on Dr. Marrero's application for licensure, on the grounds that the Board had neither been conferred any explicit powers to so act, nor was any such power reasonably implied from those granted. It is from this order that the Board appeals.

Our court has committed itself to the following test for determining whether an administrative forum may be bypassed once an issue has been raised challenging an agency's jurisdiction to take certain action:

When an agency acts without colorable statutory authority that is clearly in excess of its delegated powers, a party is not required to exhaust administrative remedies before seeking judicial relief. A finding of lack of colorable statutory authority provides the necessary limitation on this exception to the requirement of exhaustion of administrative remedies. A jurisdictional claim which has apparent merit, or one which depends upon factual determination in most instances requires exhaustion of administrative remedies before resort to judicial forum.

State of Florida, Dep't of Envtl. Regulation v. Falls Chase Special Taxing Dist., 424 So.2d 787, 796-97 (Fla. 1st DCA 1982), rev. denied, 436 So.2d 98 (1983) (emphasis in original) (footnotes omitted). In formulating the above rule, we drew upon the comments of various administrative law scholars and opinions of federal and out-of-state cases. See, e.g., 3 K. Davis, Administrative Law Treatise 69 (1958); B. Schwartz, Administrative Law 510, 511 (1976); 2 F. Cooper, State Administrative Law 577 (1965); McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 1663, 23 L.Ed.2d 194, 203 (1969) ("The courts ordinarily should not interfere with an agency until it has completed its action, or else has clearly exceeded its jurisdiction."); Lone Star Cement Corp. v. Fed. Trade Comm'n, 339 F.2d 505, 511 (9th Cir.1964) (exhaustion required where jurisdictional issue "not free from doubt"); In re Cadillac Brewing Co., 102 F.2d 369, 370 (6th Cir.1939) (colorable claim for the purpose of invoking jurisdiction is one which preliminarily shows that it is not "so unsubstantial and obviously insufficient, either in fact or law, as to be plainly without color or merit and a mere pretense").

Applying the Falls Chase test to resolve the issue at bar, we cannot say, from the record before us, that the Board acted without colorable statutory authority which was clearly in excess of its implicitly or reasonably delegated powers. We therefore conclude that the agency should be allowed to make the initial decision regarding the merits of the jurisdictional issue. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 49-50, 58 S.Ct. 459, 462-463, 82 L.Ed. 638, 643 (1938); Jacksonville Maritime Ass'n, Inc. v. City of Jacksonville, 551 F.Supp. 1130, 1137 (M.D.Fla.1982); Blue Ribbon Quality Meats, Inc. v. Fed. Trade Comm'n, 434 F.Supp. 159, 163 (W.D.Mo.1976), aff'd., 560 F.2d 874 (8th Cir.1977). In fact, the Fifth District Court of Appeal, in Lambert v. Rogers, 454 So.2d 672 (Fla. 5th DCA 1984), followed the above rule in requiring compliance with the exhaustion doctrine, thereby allowing a school board--rather than a court--to make the initial determination of the length of a school principal's contract.

Dr. Marrero argues, however, that once he advised the Board that he was withdrawing his application for licensure, such action had the effect of voluntarily dismissing the application; accordingly, he contends, the Board was thereafter without jurisdiction to act further on the application. There is a body of case law supporting appellant's contention. See, e.g., Middlebrooks v. St. Johns River Water Management Dist., 529 So.2d 1167 (Fla. 5th DCA 1988); RHPC, Inc. v. Dep't of Health and Rehabilitative Services, 509 So.2d 1267 (Fla. 1st DCA 1987); Humana of Florida, Inc. v. Dep't of Health and Rehabilitative Services, 500 So.2d 186 (Fla. 1st DCA 1986), rev. denied, 506 So.2d 1041 (1987). These cases, however, are not controlling as applied to the instant case and must be considered in the context of their own particular facts. Florida Rule of Civil Procedure 1.420, relating to the procedure for voluntarily dismissing a civil claim, is not made expressly applicable to administrative proceedings by Chapter 120, Florida Statutes, nor has any rule of the Board been cited which so provides. It is well recognized that the powers of all administrative agencies are measured and limited by the statutes or acts expressly granting the agencies their powers, or by those powers implicitly conferred. See Florida Dep't of Corrections v. Provin, 515 So.2d 302 (Fla. 1st DCA 1987); Hall v. Career Serv. Comm'n, 478 So.2d 1111 (Fla. 1st DCA 1985).

In Middlebrooks, the particular power of the agency, the St. Johns River Water Management District, to apply Rule 1.420 to its own administrative proceedings was reasonably implied from the agency's rule, Florida Administrative Code Rule 40C-1.081(7), making the Florida Rules of Civil Procedure applicable to administrative proceedings to the extent that they were not inconsistent with Chapter 120, Florida Statutes. Again, in RHPC, Inc. and Humana of Florida, Inc., the Department of Health and Rehabilitative Services determined, following its examination of Section 381.494(8), Florida Statutes (1985), outlining the agency's duties and responsibilities in considering applications for certificates of need, that its powers did not extend to consider further such applications once they were withdrawn, and that following their withdrawal, any proceeding on such application is absolutely terminated.

The distinction between the facts in the above cases and those at bar is obvious: There the decisions regarding the scope of the agencies' powers were made in an...