State, Bd. of Optometry v. Florida Soc. of Ophthalmology, 88-142
| Decision Date | 19 December 1988 |
| Docket Number | No. 88-142,88-142 |
| Citation | 538 So.2d 878,13 Fla. L. Weekly 2764 |
| Parties | 13 Fla. L. Weekly 2764, 14 Fla. L. Weekly 403 STATE of Florida, BOARD OF OPTOMETRY; Florida Optometric Association; Frank A. Broome, O.D.; and Howard J. Braverman, O.D., Appellants, v. FLORIDA SOCIETY OF OPHTHALMOLOGY; Florida Medical Association; William J. Broussard, M.D.; Tully C. Patrowicz, M.D.; Baxter H. Byerly, M.D.; and State of Florida, Department of Professional Regulation, Appellees. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., and Allen R. Grossman, Asst. Atty. Gen., Tallahassee, for appellant State of Fla., Bd. of Optometry.
Leonard A. Carson and Lucille E. Turner, Carson & Linn, P.A., Tallahassee, for appellants Florida Optometric Ass'n, Frank A. Broome, O.D., and Howard J. Braverman, O.D.
Kenneth G. Oertel, Segundo J. Fernandez, and M. Christopher Bryant, Oertel & Hoffman, P.A., Tallahassee, for appellees.
This section 120.56 rule challenge proceeding involves a determination of the invalidity of rule 21Q-10.001, Florida Administrative Code, and is the companion case to Florida Society of Ophthalmology v. State of Florida Board of Optometry, 532 So.2d 1279 (Fla. 1st DCA 1988) (). The Florida Board of Optometry (Board) adopted this rule to implement the provisions of chapter 86-289, Laws of Florida, now codified as section 463.0055, Fla.Stat. (1987). This section authorizes optometrists licensed under chapter 463 and duly certified by the Board to administer certain topical ocular drugs in the diagnosis and treatment of the human eye. This practice previously fell within the exclusive domain of allopathic and osteopathic physicians who were licensed under chapters 458 and 459 and practiced ophthalmic medicine. See Florida Society of Ophthalmology, supra. The appellants include the respondent below, the Board of Optometry, and the intervenors below, Florida Optometric Association, Frank A Broome, O.D., and Howard J. Braverman, O.D. The appellees include the petitioners below, Florida Society of Ophthalmology, Florida Medical Association, William J. Broussard, M.D., Tully C. Patrowicz, M.D., and Baxter H. Byerly, M.D. (referred to collectively as petitioners), and the Florida Department of Professional Regulation (the Department), which, although named a respondent in the petition, later aligned itself with the petitioners.
This proceeding was initiated by the petition described in Florida Society of Ophthalmology, and we refer to that opinion for a more detailed description of the parties and the facts giving rise to this dispute. Appellees challenged the cited rule as an invalid exercise of the Board's delegated legislative authority and challenged, as constituting an unpromulgated rule, the validity of the application form the Board used in reviewing applicants for certification. The hearing officer, in a commendably thorough order, filed December 14, 1987 and reported at 10 F.A.L.R. 394, determined that all appellees had standing and held the rule and the form invalid.
In our recent Florida Society of Ophthalmology decision, we held that the petitioners did not have standing to initiate section 120.57 hearings to contest the certification of each optometrist under section 463.0055; however, we noted that the rule challenge issues now before us, including petitioners' standing to maintain such challenge, were not before the court on that appeal. For the reasons hereafter stated, we reverse the hearing officer's decision that petitioners had standing to maintain this rule challenge under section 120.56, but hold that the Department of Professional Regulation does have standing to maintain the rule challenge, and affirm the hearing officer's invalidation of the rule and the application form.
Appellants have persistently maintained that petitioners lacked standing under the provisions of chapter 120 to maintain this proceeding. In Florida Society of Ophthalmology we held that petitioners failed to allege facts demonstrating that their substantial interests were sufficiently affected to afford them standing to initiate section 120.57 hearings to attack the certification of each applying optometrist. We expressly observed, however, "that standing in a licensing proceeding may well have to be predicated on a somewhat different basis than standing in a rule challenge proceeding" because "there can be ... a difference between the concept of 'substantially affected' under section 120.56(1) and 'substantial interests' under section 120.57(1)." 532 So.2d at 1288. The critical question is, therefore, whether the facts the hearing officer found demonstrate that petitioners are "substantially affected" by the enforcement of the subject rule.
The hearing officer made explicit findings of fact that ophthalmologists and optometrists "are to a significant extent offering similar health care," and that "the opportunities provided the certified optometrists coincide with part of the practice available to ophthalmologists." 10 F.A.L.R. at 419. With respect to each of the petitioners, the hearing officer found that:
75. Petitioner, Florida Society of Ophthalmology, is an organization concerned with, among other things, the educational interests of ophthalmologists and the quality of eye and health care delivered to the patients of ophthalmologists. It is also concerned on behalf of its members about the quality of eye care and health care of Floridians treated with medication by optometrists. Petitioner Florida Medical Association has the same concerns, responsibilities and purposes.
76. Petitioner, Tully C. Patrowicz, M.D., is a physician and ophthalmologist practicing in Mount Dora, Florida, since 1972. Dr. Patrowicz is a Board-certified ophthalmologist since 1974, and is also a past officer and president of Petitioner Florida Society of Ophthalmology. He is currently a member of both Florida Society of Ophthalmology and Florida Medical Association.
77. Petitioner, William J. Broussard, M.D., is a physician and ophthalmologist who has practiced in Melbourne, Florida, since 1967. He is a Board-certified ophthalmologist since 1966. Dr. Broussard is also a member and former office [sic] of Petitioner Florida Society of Ophthalmology.
10 F.A.L.R. at 419-20. The order does not contain any other findings of fact bearing on the issue of petitioners' standing. The order recites, in the conclusions of law, only that:
6. All parties, with the exception of Baxter H. Byerly, M.D., and Frank A. Broome, O.D., about whom no evidence has been presented, have demonstrated the necessary standing to participate in this action. See Florida Medical Association v. Board of Optometry, 426 So.2d 1112 (Fla. 1st DCA 1983), and Section 455.217, Florida Statutes.
On this appeal, petitioners characterize appellants' attack on their standing as incredible, saying, "This court has twice instructed these parties that ophthalmologists and the same two associations present here as Appellees have standing to challenge Board of Optometry rules and non-rule policies when such rules and policies have the effect of infringing on the right to practice medicine," and citing Board of Optometry v. Florida Medical Association, 463 So.2d 1213 (Fla. 1st DCA), pet. for rev. denied, 475 So.2d 693 (Fla.1985), (hereafter Board of Optometry ), and Florida Medical Association v. Board of Optometry, 426 So.2d 1112 (Fla. 1st DCA 1983) (hereafter Florida Medical Association ). (Appellees' Brief, p. 29.) Petitioners further state, "If the Board was strictly applying the requirements for certification set out in Section 463.0055, Fla.Stat., and was certifying only those optometrists who met such requirements, then Appellees would not have and could not Appellants argue that petitioners ignore the significant change made by chapter 86-289 in the statutory authority of optometrists to use certain topical ocular drugs. They point out that "as a result of these amendments, the prescription and administration of such drugs by optometrists does not infringe on the practice of medicine" so that petitioners "are not substantially affected by the Board's rule and do not have standing to challenge the rule." (Appellants' Reply Brief, p. 13.)
have successfully brought this challenge." (Id. at 30.) But, they argue, "by relaxing the requirements for certification, the Board has unlawfully certified hundreds of optometrists who do not meet the statutory standards" and that "It is this ultra vires act of the Board which exceeds the limited overlap of the practice of medicine which the legislature approved." (Ibid.) This argument, we observe, seemingly treats petitioners' standing as being dependent upon their ability to prevail on the merits, a proposition with which we do not agree
We conclude that petitioners and the hearing officer have given an overbroad interpretation to our decisions in Board of Optometry and Florida Medical Association. We agree with appellants that, for the reasons recently set forth in Florida Society of Ophthalmology, the overlapping of the traditional practice of ophthalmology with the optometrists' newly granted authority to use such drugs, which is the only factual finding upon which the hearing officer predicated petitioners' standing, is not legally sufficient to sustain petitioners' standing to maintain this section 120.56 rule challenge.
In Florida Dept. of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA), cert. denied, 359 So.2d 1215 (Fla.1978), this court compared the more restrictive term "substantially affected," used in section 120.56, with the broader, more liberal term "affected persons," used in section 120.54, and concluded that, to have standing under section 120.56, the person challenging the validity of an adopted rule must show a...
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