CopyCited 15 times | Published | Florida 1st District Court of Appeal | 1988 WL 19631
...equirements for the certification of licensed optometrists to do so. [2] The Board of Optometry, Department of Professional Regulation (the Board), pursuant *1281 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....
...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....
...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....
...nd 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....
...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....
...n 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 pharmaceutical agents. The Board is required by the directory term "shall" appearing in Section 463.0055(2), F.S., to certify optometrists who meet the requirements of subparagraphs (2)(a)-(c) of 463.0055....
...ght to become a party by intervention in an existing proceeding. These statutory provisions represent legislative recognition of the concept of standing as an essential component of the administrative process. The certification of optometrists under section
463.0055 obviously is a licensing proceeding, and section
120.60 makes such proceedings subject to section
120.57....
...Jerry,
353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied,
359 So.2d 1215. We do not find any provision in chapters 120, 458, 459, or 463 that expressly authorizes persons licensed under chapters 458 and 459 to have standing to participate in the certification process under section
463.0055....
...1st DCA 1982), [9] the standing of both the appellant physicians and appellant associations is necessarily predicated upon a finding that their substantial interests will be injuriously affected by the Board's action. Yet their alleged objections to the certification of optometrists under section 463.0055 fail to show that, other than the potential economic impact on their practice, their substantial interests will be injuriously affected in any manner that differs from the interests of the public generally in seeing that all applicants are certified in accordance with the statutory requirements....
...able statutes. See Boca Raton Mausoleum, Inc. v. State, Department of Banking and Finance,
511 So.2d 1060 (Fla. 1st DCA 1987). The nature of the injury to appellants' economic interests is no longer entitled to protection under chapters 458 and 459. Section
463.0055 entitles each applying optometrist to receive the requested certification upon showing compliance with the statutory requirements....
...When the legislature enacted chapter 86-289 authorizing optometrists to "administer and prescribe topical ocular pharmaceutical agents as provided in this section for the diagnosis and treatment of ocular conditions of the human eye and its appendages without use of surgery or other invasive techniques," § 463.0055(1), Fla....
...Cases currently pending in this court, in addition to this, include: Florida Society of Ophthalmology v. State, Department of Professional Regulation, Case No. BS-396; State, Board of Optometry v. Florida Society of Ophthalmology, Case No. 88-142. [2] Section 463.0055, created by chapter 86-289, provides in part pertinent to this case: (1) Certified optometrists may administer and prescribe topical ocular pharmaceutical agents as provided in this section for the diagnosis and treatment of ocular c...
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...ance with section
120.54, and therefore an invalid exercise of delegated legislative authority; and that the proposed rule is also an invalid exercise of delegated legislative authority. For the reasons hereinafter set forth, we affirm. By virtue of section
463.005, Florida Statutes (1983), the Board of Optometry ......
...ction
463.002, Florida Statutes (1981), already embodied in its 1975 policy statement. Appellants' position is that the Board's interpretation of section
463.002, which defines "optometry," is a permissible one, logically flowing from its duty under section
463.005 to promulgate rules necessary to protect the health, safety and welfare of the public, and supported by the chapter's legislative history and the educational evolution of the practice of optometry....
...afety, and welfare by establishing minimum qualifications to shield the public from "unskilled and incompetent" practitioners. Section
463.001, Florida Statutes (1983). We are of the opinion that the Board's interpretation of sections
463.002(4) and
463.005 to authorize the use of legend drugs by optometrists is an impermissible one, one that substantively amends, or adds to, the statute and materially departs from the stated legislative purpose....
...sses encompassed by those phrases. As the hearing officer observed in his order: The BOARD fails to comprehend the limits of its power. It may only adopt rules consistent with Chapter 463 and for the purpose of carrying out the terms of the statute. § 463.005....
