Sloban v. Florida Board of Pharmacy, 1D07-0346.

• Decision Date: 03 April 2008
• Docket Number: No. 1D07-0346.,1D07-0346.
• Citation: 982 So.2d 26
• Parties: Stuart A. SLOBAN, Appellant, v. FLORIDA BOARD OF PHARMACY, Appellee.
• Court: Florida District Court of Appeals

982 So.2d 26

Stuart A. SLOBAN, Appellant, v. FLORIDA BOARD OF PHARMACY, Appellee.

No. 1D07-0346.

District Court of Appeal of Florida, First District.

April 3, 2008.

Rehearing Denied May 19, 2008.

Katherine E. Giddings, Martin R. Dix and Nancy C. Wallace of Akerman Senterfitt, Tallahassee, for Appellant.

Bill McCollum, Attorney General; Garnett W. Chisenhall and Reginald D. Dixon, Assistant Attorneys General, Tallahassee, for Appellee.

THOMAS, J.

Appellant appeals the Board of Pharmacy's final order denying his petition to initiate rulemaking in which he sought to require the Board to establish reapplication rules for pharmacists whose licenses have previously been revoked. To address whether the Board properly denied Appellant's petition requires us to construe section 456.072(6), Florida Statutes (2006). In doing so, we agree with Appellant that section 456.072(6) is unconstitutional as an unauthorized delegation of legislative authority, in violation of the separation of powers requirement contained in Article II, section 3 of the Florida Constitution. Section 456.072(6) purports to grant the executive branch the authority to make fundamental and primary policy decisions which can only be constitutionally rendered by the legislature, which is elected to perform those tasks. Chiles v. Children A, B, C, D, E & F, 589 So.2d 260, 266 (Fla.1991).

In our opinion, we first summarize the relevant facts and procedural history, then analyze the separation of powers' requirement in our state constitution, along with section 456.072(6) and the relevant cases which compel our decision here.

Facts and Procedural History

Appellant's pharmacy license was permanently revoked by the Board in 1997 following his criminal convictions for federal offenses related to the practice of pharmacy. Appellant was sentenced to six months' imprisonment, which he successfully completed. In 2003, Appellant applied to take the pharmacy examination to become relicensed. The Board denied his application, stating that it had permanently revoked his previous license and had not adopted rules permitting a formerly licensed pharmacist to apply for relicensure.

Appellant then filed a petition to compel the Board to adopt a rule allowing his reapplication for licensure, under section 120.54, Florida Statutes (2006). Appellant acknowledged that section 456.072(6) purports to allow the Board the option to adopt reapplication rules, but he asserted that the legislature cannot delegate this much authority to the Board without providing legislative guidance. Thus, Appellant argued, section 456.072(6) cannot be read permissively, but must be read to require the Board to adopt reapplication rules, or it is unconstitutional as an unauthorized delegation of legislative authority. After a hearing, the Board denied Appellant's petition.

Constitutionality of Section 456.072(6), Florida Statutes (2006)

Article II, section 3 of the Florida Constitution creates three branches of government and prohibits one branch from exercising the powers of the other two branches:

Branches of government.-The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

The Florida Supreme Court has repeatedly held that this constitutional provision requires application of a "`strict separation of powers doctrine ... which `encompasses two fundamental prohibitions.'" Fla. Dep't of State, Div. of Elections v. Martin, 916 So.2d 763, 769 (Fla. 2005) (quoting State v. Cotton, 769 So.2d 345, 353 (Fla.2000), and Chiles, 589 So.2d at 264). The two fundamental prohibitions are that, first, no branch of government may encroach on another branch's power. Chiles, 589 So.2d at 264. The second is that no branch may delegate its constitutionally assigned powers to another branch. Id.

The second of these fundamental prohibitions, known as the nondelegation doctrine, is at issue here because the statute before us purports to grant excessively broad discretion to an entity of the executive branch. As the supreme court has noted, the legislature possesses the constitutional power to transfer subordinate functions to "permit administration of legislative policy by an agency with the expertise and flexibility to deal with complex and fluid conditions." Microtel v. Fla. Pub. Serv. Comm'n, 464 So.2d 1189, 1191 (Fla.1985) (citing State, Dep't of Citrus v. Griffin, 239 So.2d 577 (Fla.1970)). Under the nondelegation doctrine, however, the legislature "may not delegate the power to enact a law or the right to exercise unrestricted discretion in applying the law." Sims v. State, 754 So.2d 657, 668 (2000). Further, the nondelegation doctrine precludes the legislature from delegating its powers "absent ascertainable minimal standards and guidelines." Dep't of Bus. Reg., Div. of Alcoholic Beverages & Tobacco v. Jones, 474 So.2d 359, 361 (Fla. 1st DCA 1985). As the supreme court stated in Martin:

In other words, statutes granting power to the executive branch "must clearly announce adequate standards to guide ... in the execution of the powers delegated. The statute must so clearly define the power delegated that the [executive] is precluded from acting through whim, showing favoritism, or exercising unbridled discretion."

916 So.2d at 770 (quoting Lewis v. Bank of Pasco County, 346 So.2d 53, 55-56 (Fla. 1976)). When a statute lacks adequate guidelines, courts cannot determine if the agency is carrying out the legislative intent. Askew v. Cross Key Waterways, 372 So.2d 913, 918-19 (Fla.1978).

To determine whether a violation of the nondelegation doctrine has occurred, we must evaluate section 456.072(6), Florida Statutes (2006), which states:

If the board ... determines that revocation of a license is the appropriate penalty, the revocation shall be permanent. However, the board may establish by rule requirements for reapplication by applicants whose licenses have been permanently revoked. The requirements may include, but are not limited to, satisfying current requirements for an initial license.

By providing the Board with the discretion to enact reapplication rules, the legislature has impermissibly given an administrative agency the authority to declare what the law shall be, as the Board alone may decide whether an entire group of formerly licensed professionals shall be permitted to reapply. Cf. Sims, 754 So.2d at 669-70 (finding law was not unconstitutional because it clearly fixed the penalty to be imposed, delegating only the details of carrying out the execution to the department). Further, section 456.072(6) provides no standards or guidelines regarding when the Board should exercise its discretion to establish reapplication rules.

Accordingly, section 456.072(6) constitutes an unauthorized delegation of legislative authority. See Martin, 916 So.2d at 771 (declaring a statute unconstitutional because it fails to delineate any standards or guidelines to guide the Department in exercising its discretion granted under the statute). Similar to the statute at issue in Martin, which did not articulate any factors the Department should consider when deciding whether to permit a candidate's withdrawal after the 42nd day, section 456.072(6) fails to articulate any standards regarding whether the Board should institute rulemaking to develop reapplication rules.

We find the Board's reliance on the exceptions to the nondelegation doctrine to be unpersuasive, as section 456.072(6) does not implicate the Board's licensing or disciplinary decision pertaining to an individual applicant, and it does not require a case-by-case review of a fluid and complex subject. See Jones, 474 So.2d at 361; A.A. v. State, 605 So.2d 106, 107 n. 2 (Fla. 1st DCA 1992) (Ervin, J., concurring). Further, while Judge Ervin stated in A.A. that the exceptions have largely swallowed the rule, where, as here, the statute gives an administrative agency the authority to enact the law, the supreme court has not hesitated to declare the law unconstitutional as a violation of the nondelegation doctrine. See Martin, 916 So.2d at 767.

In Jones, we addressed whether a statute authorizing an administrative body to reduce the disciplinary penalty given to a state employee was unconstitutional under the nondelegation doctrine. 474 So.2d at 363. We found that it was not, explaining that the legislature may delegate some discretion in the operation and enforcement of the law, but it cannot delegate the power to say what the law is. Id. Unlike the statute at issue in Jones, section 456.072(6) grants unbridled discretion to the Board to determine the professional fate of a group of persons, not the limited discretion to determine whether an administrative punishment is too severe.

Unlike the situation in Florida League of Cities, Inc. v. Administration Commission, 586 So.2d 397 (Fla. 1st DCA 1991), we cannot agree that the impracticability exception applies, making it impractical for the legislature to provide constitutionally mandated guidance to the Board to determine under what circumstances it should allow a person whose license has been permanently revoked to reapply.

Because none of the exceptions to the nondelegation doctrine apply here, we find that the second and third sentences of section 456.072(6) vesting unbridled discretion in the Board are unconstitutional. Having found this portion of the statute unconstitutional, we must now address whether the valid portion of it can be severed from the invalid portion.

Severability

Although section 456.072(6) contains no severability provision, we must determine whether the constitutionally invalid section, which purports to grant the Board the discretion to develop reapplication rules, is severable from the rest of the statute. See Dade County v. Keyes, 141 So.2d 819, 821 (Fla. 3d DCA 1962) ("When a...