Florida Optometric Ass'n v. Department of Professional Regulation, Bd. of Opticianry

• Decision Date: 05 September 1990
• Docket Number: No. 89-2375,89-2375
• Citation: 567 So.2d 928
• Parties: 15 Fla. L. Weekly D2250 FLORIDA OPTOMETRIC ASSOCIATION and Alan P. Fisher, O.D., Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTICIANRY, Professional Opticians of Florida, Inc., and Charles Arnold, Appellees.
• Court: Florida District Court of Appeals

Page 928

567 So.2d 928

15 Fla. L. Weekly D2250

FLORIDA OPTOMETRIC ASSOCIATION and Alan P. Fisher, O.D., Appellants, v.DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTICIANRY, Professional Opticians of Florida, Inc., and Charles Arnold, Appellees.

No. 89-2375.

District Court of Appeal of Florida First District.

Sept. 5, 1990.

Leonard A. Carson, John D.C. Newton, II, and Kimberly L. King of Carson & Linn, P.A., Tallahassee, for appellants.

Robert A. Butterworth, Atty. Gen., and Theresa M. Bender, Asst. Atty. Gen., Tallahassee, for appelleeDepartment of Professional Regulation, Bd. of Opticianry.

Wilson Jerry Foster, Tallahassee, for appelleesProfessional Opticians of Florida, Inc., and Charles Arnold.

ALLEN, Judge.

This is an appeal by the Florida Optometric Association and Allen P. Fisher, an optometrist licensed under Chapter 463, Florida Statutes(optometrists) from a declaratory statement ¹ issued by the Board of Opticianry(Board).The optometrists argue (1) that the Board erred in finding that they lacked standing to participate in the proceedings; (2) that the Board erred in finding that their petition to intervene in the proceedings was untimely; and (3) that the declaratory statement addressed a question of general applicability and, therefore, should have been addressed by rule, rather than by declaratory statement.Because our agreement with the optometrists' first two arguments requires us to set aside the declaratory statement, we do not decide the third issue presented.

On March 30, 1989, appellees, Professional Opticians of Florida, Inc., and Charles Arnold, an optician licensed under Chapter 484, Florida Statutes, filed a petition for declaratory statement with the Board.The petition first acknowledged that Chapter 484, Florida Statutes, defines "opticianry,"² and provides that "[i]t is unlawful for any optician to engage in the diagnosis of the human eyes, attempt to determine the refractive powers of the human eyes, or, in any manner, attempt to prescribe for or treat diseases or ailments of human beings[,]"³ and then offered the following question:

Is an optician permitted to use vision screening equipment such as a Titmus Vision Tester to check a consumer's visual acuity (both far and near), with or without a correction?

The Titmus Vision Tester is an ophthalmic instrument designed for rapid and precise measurement of visual performance.It can be used to test near, intermediate and distance vision, for each eye alone or for both working together; muscle balance; color perception; depth perception; and peripheral vision.

In accordance with the directive of Section 120.565, Florida Statutes, the Board provided public notice of the petition in the April 21, 1989 edition of the Florida Administrative Weekly.The notice provided,

NOTICE IS HEREBY GIVEN that the Board of Opticianry has received a Petition for Declaratory Statement from the Professional Opticians of Florida, Inc. and Charles Arnold, in which the petition asks whether an optician is permitted to use vision screening equipment to check a consumer's visual acuity, with or without a correction.The Petition has been assigned the number 89-DS-1.Copies of the Petition may be obtained from LouElla Cook, Executive Director, 130 North Monroe Street, Tallahassee, Florida 32301.

15 Fla.Admin. Weekly 1699 (April 21, 1989).

One week earlier, in the April 14, 1989 edition of the Florida Administrative Weekly, a notice of a May 5, 1989 meeting of the Board had been published.It provided:

The Florida State Board of Opticianry will hold the following meeting to which all persons are invited:

DATE AND TIME: Friday May 5, 1989, commencing at 9:00 A.M.

PLACE: Department of Professional Regulation, Conference Room, 130 North Monroe Street, Tallahassee, Florida 32399-0750

PURPOSE: To conduct Regular Board Business.If a person decides to appeal any decision made by the Board with respect to any matter considered at this meeting or hearing, he will need a record of the proceedings, and for such purpose, he may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence from which the appeal is to be based.

A copy of any item on the agenda may be obtained by writing to: Ms. LouElla Cook, Executive Director, Board of Opticianry, 130 North Monroe Street, Tallahassee, Florida 32399-0750.You will be charged $.17 per page for the number of copies desired.

15 Fla.Admin. Weekly 1599 (April 14, 1989).

The agenda for the May 5, 1989, meeting listed several matters as being set for "hearings" and "final order action," but agenda item IV, which was the only reference to the petition for declaratory statement, merely provided,

IV.PETITION FOR DECLARATORY STATEMENT 89 DS-1

A.PROFESSIONAL OPTICIANS OF FLORIDA & CHARLES ARNOLD.

Further, the agency file for 89 DS-1 gave no indication as to what action, if any, was to be taken on the petition at the May 5 meeting.

On May 2, 1989, the optometrists filed a petition to intervene in the declaratory statement proceedings and requested a formal hearing under Section 120.57(1), Florida Statutes.In their petition, the optometrists asserted that their substantial interests would be determined by an affirmative answer to the question presented in the petition for declaratory statement.Specifically they asserted that the Titmus Eye Tester can be used to determine the refractive power of the human eyes, and that, while such determinations are made by optometrists as part of their practice, opticians are expressly prohibited from making such determinations.The optometrists' petition contended, therefore, that an affirmative answer to the question presented in the petition for declaratory statement would permit licensed opticians to engage in the practice of optometry, contrary to the provisions of Chapters 463 and 484, Florida Statutes.

At the meeting of the Board on May 5, 1989, counsel for the Board indicated that the Board would be conducting a hearing on the petition for declaratory statement.Counsel for the optometrists was present and made a brief argument in support of the petition to intervene and for a formal hearing under Section 120.57, Florida Statutes.The Board took the optometrists' petition under advisement, but did not allow them to participate as parties in the hearing.The hearing consisted of presentation of testimony by Charles Arnold and argument by counsel for Arnold and the Professional Opticians of Florida, Inc.

At the August 4, 1989 meeting of the Board, the Board voted to deny the optometrists' petition for two reasons: because it was untimely and because the optometrists lacked standing to participate.⁴As to the petition for declaratory statement, the Board voted to approve the following response,

ORDERED AND ADJUDGED that use of the Titmus Vision Tester and similar vision screening equipment is not prohibited to licensed opticians to determine the visual acuity of consumers (both far and near) so long as the optician does not engage in the diagnosis of the human eye, does not attempt to determine the refractive powers of the human eyes and does not attempt to prescribe for or treat diseases or ailments of human beings.

The Board action was incorporated into a final order dated October 17, 1989.This appeal is from that final order.

The optometrists first contend that the Board erred by concluding in its final order that the optometrists had "failed to allege a substantial interest in [the declaratory statement proceedings] sufficient to warrant their intervention and [did] not have standing to participate."We agree with the optometrists' contentions.

A two-part test is applied in evaluating whether a person has alleged a "substantial interest" sufficient to entitle such person to initiate a 120.57 proceeding or intervene in proceedings already pending.⁵The person must allege:

(1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and (2) that his substantial injury is of a type or nature which the proceeding is designed to protect.

Agrico Chemical Co. v. Department of Envtl. Regulation, 406 So.2d 478, 482(Fla. 2d DCA1981), review denied, 415 So.2d 1359(Fla.1982).

In Florida Medical Ass'n v. Department of Professional Regulation, 426 So.2d 1112(Fla. 1st DCA1983), we applied the Agrico Chemical test to a case closely analogous to the present case.There, we held that an association of medical doctors had standing to challenge a proposed rule of the Board of Optometry that would have authorized optometrists to prescribe certain legend drugs.We held that the first prong of the Agrico Chemical test, "injury-in-fact," was satisfied by the association's allegations of threatened injury; i.e., that absent the proposed rule, patients would have to seek the services of a physician for treatment involving use and prescription of the legend drugs.We then held that the second prong of the test, the "zone of interest" requirement, was satisfied by the association's allegation that the prescribing of the legend drugs was delineated by statute as being exclusively within the authority of physicians under Chapter 458, Florida Statutes, and not within the authority of optometrists under Chapter 463, Florida Statutes.On this point, we said:

It necessarily follows that an agency's determination of what forms of treatment are permissible or prohibited within each health care profession is within the "zone of interest" protected by the statutes.The rule at issue here, according to petitioners, allows optometrists to provide a form of treatment for which they are not qualified, and which has not been authorized by the legislature under Chapter 463.They allege further that the activities permitted by the rule are encompassed within the "practice of medicine," which the legislature has declared to be the exclusive domain of physicians licensed under ...