Florida Society of Ophthalmology v. State, Dept. of Professional Regulation, BS-396

• Decision Date: 06 October 1988
• Docket Number: No. BS-396,BS-396
• Citation: 532 So.2d 1278,13 Fla. L. Weekly 2289
• Parties: 13 Fla. L. Weekly 2289 FLORIDA SOCIETY OF OPHTHALMOLOGY and Florida Medical Association, Appellants, v. STATE of Florida, DEPARTMENT OF PROFESSIONAL REGULATION; State of Florida, Board of Optometry; Van B. Poole, Secretary of the Florida Department of Professional Regulation; Peter D. Liane, O.D., Chairman of the Florida Board of Optometry; Mildred Gardner, Executive Director of the Florida Board of Optometry; and Frank A. Broome, O.D., Appellees.
• Court: Florida District Court of Appeals

Page 1278

532 So.2d 1278

13 Fla. L. Weekly 2289

FLORIDA SOCIETY OF OPHTHALMOLOGY and Florida Medical Association, Appellants, v. STATE of Florida, DEPARTMENT OF PROFESSIONAL REGULATION; State of Florida, Board of Optometry; Van B. Poole, Secretary of the Florida Department of Professional Regulation; Peter D. Liane, O.D., Chairman of the Florida Board of Optometry; Mildred Gardner, Executive Director of the Florida Board of Optometry; and Frank A. Broome, O.D., Appellees.

No. BS-396.

District Court of Appeal of Florida,

First District.

Oct. 6, 1988.

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

Michael William Morell, of Carson & Linn, P.A., Tallahassee, for appellee Frank A. Broome, O.D.

Robert Butterworth, Atty. Gen., and John E. Griffin, Asst. Atty. Gen., Tallahassee, for appellee Florida Bd. of Optometry and Peter D. Liane, O.D.

ZEHMER, Judge.

Florida Society of Ophthalmology and Florida Medical Association appeal from an order dismissing their amended complaint for declaratory judgment with prejudice. The order dismisses the complaint on the ground that it failed to demonstrate a justiciable controversy sufficient to invoke the trial court's jurisdiction under § 86.021, Florida Statutes (1985). ¹ We affirm the dismissal, but remand with directions to permit amendment to state an actual controversy if the plaintiffs can do so.

In 1986, the legislature enacted Chapter 86-289, Laws of Florida, and substantially revised the Optometry Practice Act. Section 6 of Chapter 86-289 created § 463.0055, Florida Statutes (1986 Supp.), which authorizes licensed, certified practitioners of optometry to administer and prescribe certain topical ocular pharmaceutical agents for the diagnosis and treatment of ocular conditions of the human eye and its appendages. Appellants' amended complaint alleges that Chapter 86-289 is unconstitutional because it (1) allows agencies of the executive branch to determine the law relating to optometrists' prescription and use of drugs, (2) invalidly delegates legislative authority to an agency of the executive branch, and (3) deprives or infringes upon appellants' members' property right to practice medicine without due process of law.

The issue appellants raise on appeal is whether appellants have standing to bring this declaratory judgment action on behalf of their members. However, the issue as stated by appellants does not address the legal reason for the trial judge's dismissal of the complaint. The complaint was dismissed because it failed to demonstrate any justiciable controversy between the parties, not because appellants lacked standing. Indeed, the trial court recognized appellants' standing to litigate on behalf of their members.

Unlike an administrative rule challenge, a suit under the declaratory judgment act must allege an actual controversy based on real facts, not assumptions. Bryant v. Gray, 70 So.2d 581 (Fla.1954). The allegations in the dismissed complaint do not refer to any facts showing an actual rather than theoretical dispute. For example, ...