Florida Soc. of Ophthalmology v. State Bd. of Optometry

• Decision Date: 06 October 1988
• Docket Number: No. BT-79,BT-79
• Citation: 13 Fla. L. Weekly 2284,532 So.2d 1279
• Parties: 13 Fla. L. Weekly 2284 FLORIDA SOCIETY OF OPHTHALMOLOGY; Florida Medical Association; William J. Broussard, M.D.; Tully C. Patrowicz, M.D., and Baxter H. Byerly, M.D., Appellants, v. STATE of Florida BOARD OF OPTOMETRY and State of Florida Department of Professional Regulation, Appellees.
• Court: Florida District Court of Appeals

Page 1279

532 So.2d 1279

13 Fla. L. Weekly 2284

FLORIDA SOCIETY OF OPHTHALMOLOGY; Florida Medical Association; William J. Broussard, M.D.; Tully C. Patrowicz, M.D., and Baxter H. Byerly, M.D., Appellants, v. STATE of Florida BOARD OF OPTOMETRY and State of Florida Department of Professional Regulation, Appellees.

No. BT-79.

District Court of Appeal of Florida First District.

Oct. 6, 1988.

Rehearing Denied Nov. 18, 1988.

Kenneth G. Oertel, Segundo J. Fernandez, and M. Christopher Bryant, of Oertel & Hoffman, Tallahassee, for appellants.

Robert A. Butterworth, Atty. Gen., and John E. Griffin, Asst. Atty. Gen., Tallahassee, for appellee State of Fla. Bd. of Optometry.

Leonard A. Carson and Michael Wm. Morell, of Carson & Linn, P.A., Tallahassee, for amici curiae, Florida Optometric Ass'n, Howard J. Braverman, O.D., and Frank A. Broome, O.D.

ZEHMER, Judge.

This is one of several cases arising out of the ongoing dispute between medical and osteopathic physicians who practice ophthalmic medicine and optometrists concerning the authority of optometrists to administer and prescribe certain topical drugs for the diagnosis and treatment of the human eye. ¹ The dispute involves enforcement of the 1986 amendment to chapter 463, chapter 86-289, Laws of Florida, which authorizes optometrists to administer and prescribe topical ocular pharmaceutical agents and establishes requirements for the certification of licensed optometrists to do so. ² The Board of Optometry, Department of Professional Regulation (the Board), pursuant to its statutory authority to administer chapter 463 and enact rules for that purpose, § 463.005, Fla.Stat. (1987), adopted rule 21Q-10.001, Florida Administrative Code, to implement the certification procedure authorized by section 463.0055, Florida Statutes. ³ Appellants filed a petition with the Board challenging the validity of rule 21Q-10.001 and the validity of the application form the Board prescribed for use in certification proceedings. The petition also requested a section 120.57(1) hearing in respect to each and every optometrist's application for certification. Ruling on the petition, the Board entered a final order stating that petitioners lacked standing to initiate a section 120.57(1) formal hearing to challenge the validity of each such application. ⁴ The Board ruled that the alleged economic injury to licensed physicians practicing ophthalmic medicine, the alleged loss of public respect for the medical profession, and the alleged decline in the quality of eye care and health care available to the public, do not show that petitioners' substantial interests will be affected and determined by the Board in the challenged certification proceedings; thus, according to the final order, the petition was legally insufficient to establish that petitioners were entitled under chapter 120 to party status in such certification proceedings. Finding no error in the Board's ruling, we affirm.

I.

The detailed facts are set forth in the petition, and we take them to be true for purposes of this appeal. Each of the petitioners either is an organization that represents physicians practicing ophthalmic medicine or is such a physician. The Florida Society of Ophthalmology (FSO) "is a Florida not-for-profit incorporated association of ophthalmologists, who are allopathic and osteopathic physicians (M.D.'s and D.O.'s) specializing in the medical diagnosis of eye diseases, anomalies and disorders, and treatment with medication, surgery, and corrective lenses and prisms." The Society is organized and acts to further "the educational, professional, and economic interests of Florida ophthalmologists." The Society "routinely represents and serves its members" in governmental affairs, including legislative matters and litigation, and it "is committed to protecting, maintaining and improving the quality of eye care which is available to the public." The Florida Medical Association (FMA) is a Florida not-for-profit incorporated association of physicians (M.D.'s), and is organized and acts for its member physicians in a manner similar to FSO concerning legislative affairs and litigation. Petitioners William J. Broussard, Tully C. Patrowicz, and Baxter H. Byerly are physicians licensed by the State of Florida under chapter 458, Florida Statutes, who specialize in the field of ophthalmic medicine or ophthalmology. Many of their patients see optometrists for some of their vision care. They file this petition "on behalf of themselves and all other persons similarly situated; i.e., licensed Florida physicians practicing ophthalmic medicine in the State of Florida," and "on behalf of their patients, who are consumers of eye care and vision care services in the state of Florida." ⁵

The Board is the agency in charge of regulating the practice of optometry and is authorized to make rules relating to standards of practice for optometrists. §§ 463.003, 463.005. It promulgated and filed rule 21Q-10.001 with the Secretary of State, effective November 20, 1986.

The petition attacks the validity of the rule and application form, alleging that the "application form for certification" to be filled out by each applicant has not been adopted by rule but nevertheless amounts to a rule, and that a committee of the Board reviewed completed applications on April 8 and 9, 1987, so that these applications could be acted upon by the Board at its meeting on April 10 and 11. The petition further alleges that petitioners and physicians represented by petitioners "are substantially affected by the Board's proposed certification of any optometrist as a certified optometrist" because: (1) "certification of optometrists, and the concomitant authorization of such certified optometrists to use and prescribe medications in their practice of optometry encroaches on the right of physicians licensed to practice medicine pursuant to chapter 458, a valuable property right subject to constitutional protection" and that petitioners "have been denied due process in regard to the impending infringement on or diminution in value of their property rights"; (2) "the quality of eye care and health care available to the public will decline as optometrists are certified to use and prescribe medicine in the practice of optometry" and therefore the certification of optometrists "presents a danger to the public, including but not limited to Petitioners' patients"; and (3) "the general public is uninformed as to the distinction between optometrists and ophthalmologists, when in fact significant differences exist in education, training, ability, experience, and scope of practice," and the "designation of some optometrists as 'certified optometrist' further adds to that confusion and will result in the treatment by optometrists of patients who should be treated by physicians," which in turn will cause physicians such as are represented by petitioners to suffer economic "injury to their practices, loss of public respect for their profession, and damage to the health and welfare of Petitioners' patients and the patients of other similarly situated physicians." The petition then alleges the existence of numerous factual disputes.

The petition incorporates these allegations in each of three counts. Two counts based on section 120.56 contend that both rule 21Q-10.001 and the application form as an unadopted rule are an invalid exercise of delegated legislative authority. The third count, which is the subject of this appeal, requests a 120.57(1) formal hearing in respect to the "entitlement to certification of each and every optometrist which the Board proposes to certify" pursuant to section 463.0055 and rule 21Q-10.001, noting that no testing of such optometrists has been made public. As grounds for their right to be accorded such hearing, petitioners rely on the foregoing allegations of the effects on their substantial interests and demand that the Board refrain from taking final action on any of the proposed certifications.

The petition may be generally characterized as a broad attack, not only on the manner in which the Board is going about implementing certification under section 463.0055, but also on the validity of the underlying policy decision to permit optometrists to be certified to perform medical services using prescription drugs in the first place. The principal purpose of the petition is to delay any certification of optometrists until the Board has heard and determined petitioners' rule challenges.

Although the Board granted petitioners' request for a hearing in respect to the rule challenges in counts one and two, ⁶ it denied the 120.57(1) hearing requested in count three. The final order denying that hearing notes the enactment of chapter 86-289, Laws of Florida, and the implementation of section 463.0055 through the Board's adoption of rule 21Q-10.001, and concludes that petitioners "lack standing under Section 120.57, F.S., to contest applications for certification." The Board's order relies on Shared Services, Inc. v. State, Department of Health and Rehabilitative Services, 426 So.2d 56 (Fla. 1st DCA 1983), and explains:

The rationale of Shared Services, Inc., supra, is applicable to the instant petition. Although raising the issue of patient care, the thrust of Petitioners' assertion of standing is economic loss from competition or loss of public respect. Absent clear authority for the inclusion of competitive economic considerations into the certification process, the First District in Shared Services, Inc., makes clear that competitive economic considerations are not to be considered in licensing and cannot provide a foundation for a competitor to participate in the licensing process. A review of the certification provisions of Section 463.0055, F.S., discloses no intent on the part of the Legislature that competitive economic considerations be considered in the certification of optometrists to prescribe and administer topical ocular...