Florida Medical Ass'n v. Department of Professional Regulation

• Decision Date: 02 February 1983
• Docket Number: No. AP-451,AP-451
• Citation: 426 So.2d 1112
• Parties: FLORIDA MEDICAL ASSOCIATION, INC.; Florida Society of Ophthalmology; Edward W. Dougherty, Jr.; William J. Broussard; and George Browning, Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION, Board of Optometry, Florida Optometric Association; James A. Stephens, O.D.; and Donnie D. Dance, O.D., Appellees.
• Court: Florida District Court of Appeals

Page 1112

426 So.2d 1112

FLORIDA MEDICAL ASSOCIATION, INC.; Florida Society of Ophthalmology; Edward W. Dougherty, Jr.; William J. Broussard; and George Browning, Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION, Board of Optometry, Florida Optometric Association; James A. Stephens, O.D.; and Donnie D. Dance, O.D., Appellees.

No. AP-451.

District Court of Appeal of Florida First District.

Feb. 2, 1983.

Kenneth G. Oertel of Oertel & Hoffman, P.A., Perkins & Collins, Tallahassee, and John E. Thrasher, Jacksonville, for appellants.

Jim Smith, Atty. Gen., Patricia R. Gleason, Asst. Atty. Gen., Tallahassee; for appellees Dept. of Professional Regulation and Bd. of Optometry.

Leonard A. Carson and James W. Linn, Seyfarth, Shaw, Fairweather & Geraldson, Tallahassee, for appellees Florida Optometric Ass'n, James A. Stephens, O.D., and Donnie D. Dance, O.D.

LARRY G. SMITH, Judge.

Appellants seek review of a final order of the Division of Administrative Hearings, Department of Administration, dismissing their rule challenge petition for lack of standing. At issue is the validity of Rule 21Q-3.10 of the Board of Optometry, purporting to set standards for the prescribing of certain drugs by optometrists, and providing guidelines for the determination of the competence of optometrists to use and prescribe drugs in their practice. ¹ Our review convinces us that the petition sufficiently alleges facts to establish standing with respect to the Florida Medical Association, Inc., Florida Society of Ophthalmology, and William J. Broussard, M.D., a licensed Florida physician specializing in ophthalmology. We find, however, no adequate basis for standing on the part of George B. Browning, a licensed Florida pharmacist, or Edward J. Dougherty, Jr., who claims standing on the basis of his status as a past and continuing patient of optometrists. Reversed in part and affirmed in part.

Preliminarily, without going into the exact phraseology used in the lengthy rule challenge petition, we observe that it adequately alleges that the rule would cause prospective economic injury to physicians (particularly ophthalmologists) licensed under Chapter 458, Florida Statutes, by allowing optometrists to provide treatment, involving the use and prescription of "legend drugs," ² to patients who otherwise would be required to obtain such treatment from physicians. ³ Although these allegations apparently met the "injury in fact" test to the satisfaction of the hearing officer, he nevertheless concluded that the physicians and the medical associations had no standing, and concluded as well, for additional reasons, that neither the optometrist patient or the pharmacist had standing. ⁴

As to standing of the physicians, the hearing officer concluded that although their allegations of economic injury met the "injury in fact" requirement of standing, the petitioners failed to meet the second of the bi-partite standing requirements of Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), that of showing that the "zone of interest" they asserted was within the "zone of interests" protected by the statute being implemented by the rule. ⁵

We conclude that the hearing officer erred in the interpretation and application of the "zone of interest" requirement in the light of the allegations made by the petition. It must be borne in mind that petitioners challenged the validity of the proposed rule, under Section 120.54(4)(a), ⁶ alleging that the proposed rule was an invalid exercise of delegated legislative authority. This distinguishes the case from Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 1st DCA 1981), relied upon by the hearing officer, for in that case there was no contention of unlawful exercise of authority, only opposition (by competitors of Agrico) to DER's granting of a permit under the environmental laws, based solely on claims by the competitors of Agrico that their economic interests would be affected. The absence of a claim of illegality of the proposed agency action, among other differences, also distinguishes Grove Isle, Ltd. v. Bayshore Homeowners, et al., 418 So.2d 1046 (Fla. 1st DCA 1982), Greene v. State Department of Natural Resources, 414 So.2d 251 (Fla. 1st DCA 1982), and School Board of Orange County v. Blackford, 369 So.2d 689 (Fla. 1st DCA 1979), all of which denied relief because of lack of standing. See also, Shared Services, Inc. v. State, Department of Health And Rehabilitative Services, 426 So.2d 56 (Fla. 1st DCA 1983), 8 FLW ---, in which the court relied upon the Agrico rationale in denying, for lack of standing, the request of Shared Services for a formal hearing on the application of Shands Teaching Hospital for licensure to operate an air ambulance service under Chapter 401, Florida Statutes, since Shared Services essentially alleged only potential competitive economic injury as the basis for their objections to Shands' application for license and certification.

While we readily accept the premise that physicians, ophthalmologists in particular, have "no legally recognized interest in being free from competition ...," ASI, Inc. v. Florida Public Service Commission, 334 So.2d 594, 596 (Fla.1976), it by no means follows that the assertion of interest economic in nature can never furnish the basis for standing to challenge proposed or adopted agency rules. In State, Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA 1979), footnote 2, this court recognized a physician as having satisfied the "substantially affected" requirement of Section 120.54(4) by showing that the Department's cut-off of funds for elective non-theraputic abortions decreased the number of patients served by the abortion clinic of which he was the director. Further, in Professional Firefighters of Florida, Inc. v. Department of Health And Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981), allegations that the Department's proposed rules governing the licensing and certification of paramedics affected the "continued employment" of members of the Association, and would injure individual members "monetarily," were held sufficient to confer standing upon individual members of the Association. ⁷

The U.S. Supreme Court, in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), acknowledged that its prior decisions in Data Processing Service v. Camp, supra, and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970), introduced broader standing requirements under § 10 of the APA than previously existed, by permitting standing where a party alleges "that the challenged action has caused them 'injury in fact,' and where the alleged injury was to an interest 'arguably within the zone of interests to be protected or regulated' by the statutes that the agencies were claimed to have violated." ⁸ Sierra Club, 405 U.S. at 733, 92 S.Ct. at 1365. Then, pointing out that the nature of the injuries alleged in both Data Processing and Barlow was economic injury, the court stated: "These palpable economic injuries have long been recognized as sufficient to lay the basis for standing, with or without a specific statutory provision for judicial review." Id. at 733, 734, 92 S.Ct. at 1365, 1366.

The court also held that the first prong of the Data Processing bi-partite test was met by physicians, in Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), who alleged "injury in fact" as a consequence of a Missouri statute which excluded certain abortions (which they had and would continue to perform) from Medicaid benefits which otherwise would have been available for payment to them. Although the court referred to Data Processing, it did not use the "zone of interest" phraseology, but couched the second prong in terms of "whether, as a prudential matter, the plaintiff-respondents are proper proponents of the particular rights on which they base their suit." Singleton, 428 U.S. at 112, 96 S.Ct. at 2873. ⁹ The implications of the opinion are that "zone of interest," if still viable, is satisfied when a party asserts that a particular statute encroaches upon constitutional rights. ¹⁰ See footnote 9, supra. See, further, Golden v. Biscayne Bay Yacht Club, 521 F.2d 344, 348 (5th Cir.1975): "... [I]t is unquestionable that standing may be based upon an interest created by the Constitution or a statute."

Despite the fact that the Second District, in Rush v. City of St. Petersburg, 205 So.2d 11, 15 (Fla. 2nd DCA 1967), appeared to have some doubt on the question, it is now well settled in Florida that the right to practice medicine is a valuable property right protected by the due process clause. In State Board of Medical Examiners v. Rogers, 387 So.2d 937 (Fla.1980), the court held that an order of the State Board of Medical Examiners unreasonably curtailed the exercise of physicians' professional judgment in administering certain treatment to their patients. Mr. Justice Alderman, writing for the court, stated (at page 939):

... Although the State has the power to regulate the practice of medicine for the benefit of the public health and welfare, this power is not unrestricted. The regulations imposed must be reasonably related to the public health and welfare and must not amount to an arbitrary or unreasonable interference with the right to practice one's profession which is a valuable property right protected by the due process clause. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (1889). (emphasis supplied)

Florida courts of earlier days have also unhesitatingly declared the law on this point:

... We cannot overlook the fact that the right to practice medicine is a valuable property right and must be protected under the constitution and laws of Florida.

State ex rel. Sbordy v. Rowlett, 138 Fla. 330, ...