CopyCited 15 times | Published | Florida 1st District Court of Appeal | 1988 WL 19631
...[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....
...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 3 times | Published | Florida 1st District Court of Appeal
...State of Florida Board of Optometry,
532 So.2d 1279 (Fla. 1st DCA 1988) (hereafter cited as Florida Society of Ophthalmology ). 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....
...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....
...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....
...nding with leave to the Department to initiate another rule challenge proceeding. We uphold the Department's standing to maintain this rule challenge so as to permit review of the hearing officer's decision on the merits. III. INVALIDITY OF THE RULE Section 463.0055, Florida Statutes (1987), provides in pertinent part: (1) Certified optometrists may administer and prescribe topical ocular pharmaceutical agents as provided in this section for the diagnosis and treatment of ocular conditions of th...
...because, one, "it is said to allow coursework and clinical training in general or ocular pharmacology received by the optometrist while undergoing basic optometric education as acceptable proof or in *884 partial compliance with the requirements of Section 463.0055(2)(a)"; two, "it would accept one year of supervised experience in a clinical setting which is academic or non-academic and that the academic setting means three quarters or two semesters and the non-academic setting means a 12 month period," contrary to section 463.0055(2)(b); and three, "it purports to accept the concept of compliance with Section 463.0055(2)(c) ......
...The Board unquestionably made a good faith effort to comply with the statutory requirements for certification in accordance with its interpretation of the statutory language. The hearing officer also found as a matter of fact that the legislative history of section 463.0055(2)(c) was inconclusive and thus not helpful in determining legislative intent, so that the statute's meaning must be determined from the statutory language alone....
...nt of Business Regulation v. Salvation Limited, Inc.,
452 So.2d 65, 66 (Fla. 1st DCA 1984). The critical question raised by this point is, therefore, whether the hearing officer erred in finding that the Board misconstrued the legislative meaning of section
463.0055(2)(c) by relying on examinations passed by applicants in pursuit of approved coursework in lieu of an examination administered contemporaneous *885 with the Board's review of the applications for certification....
...pretation or even the most desirable one; it need only be within the range of possible interpretations... .
455 So.2d at 517. Thus, appellants argue, the Board's interpretation of subsection (2)(c) was within the range of possible interpretations of section
463.0055(2) and therefore must be sustained....
..., or as part of post-graduate experience," and criticize the hearing officer for concluding that "given the use of the term `approved,' that is not a fair construction" or the "correct construction, when taking into account the language set forth in section 463.0055, Florida Statutes (1986 Supp.) and other provisions within that statute." 10 F.A.L.R....
...As we made quite plain in Schoettle v. Department of Administration,
513 So.2d 1299, 1301 (Fla. 1st DCA 1987), "statutory construction is ultimately the province of the judiciary." As we understand the hearing officer's statements, he meant only that the construction of section
463.0055(2)(c) adopted by the Board, while a possible one, was not a permissible one. So construed, nothing in the hearing officer's order is inconsistent with the precepts stated in Durrani. In determining whether the language in section
463.0055(2)(c) directing "successful completion of an examination approved by the board" can be permissibly construed as delegating to the Board the power to authorize compliance with its provisions by *886 resort to an examination "administe...
...ng of a single word. It must be construed as a whole and interpreted according to the sense in which the words are employed, regard being had to the plain intention of the Legislature.
513 So.2d at 1302. Applying these principles, it is obvious that section
463.0055(2) sets forth three requirements for certification to administer ocular drugs, and that each requirement addresses a separate, if not independent, concern....
...Unlike the first two requirements, the Board is directed to set an examination fee to cover the cost of implementing this examination requirement as to each applicant, an indicator that the Board is required to incur some expenses in carrying out the examination function. We agree with the hearing officer that section 463.0055(2)(c) must be construed as contemplating a Board-approved examination that contemporaneously tests the applicant's knowledge of general and ocular pharmacology, with particular emphasis on topical application of pharmaceutical agents related to the eye and the side effects of the implementation of those agents....
...e passed 110 hours of approved transcript-quality coursework and clinical training, which is defined in section
463.002(9) as coursework approved by the Board and requiring a test and passing grade, belies any notion that the examination required in
463.0055(2)(c) may also be satisfied by the very same coursework examination. The subsection (2)(c) examination is obviously a separate requirement that operates independently of the coursework testing required by subsection
463.0055(2)(a); otherwise, *887 it is redundant and without practical meaning....
...We believe it is equally clear that the total statutory scheme contemplates that the examination requirement, unlike the coursework and experience requirements, is to be met by successfully completing a substantially uniform examination administered to all applicants at the time of their application. Section 463.0055 contemplates that the Board will incur expenses to construct and administer, or have others construct and administer, the required examination contemporaneously with the Board's review of the applications....
...stered by or on behalf of the Board, exceeds a reasonable construction of the statutory language because it is inconsistent with the unambiguous requirement that all applicants successfully complete an examination approved by the Board. We note that section 463.0055(4) establishes a formulary committee to assist the Department in identifying topical ocular pharmaceutical agents that may be used by an optometrist certified under that section, yet only by administering a Board-approved uniform examination at the time of certification can an applicant be tested on his knowledge of the approved pharmaceutical agents authorized in the formulary under section 463.0055(4)....
...in adding to the statute authority to rely on coursework examinations to satisfy subsection (2)(c), and find no error in the hearing officer's invalidation of those provisions of the rule that impermissibly implement the examination requirements in section 463.0055(2)(c) by resort to coursework examinations. IV. INVALIDITY OF THE FORM Section 463.0055 authorizes the Board to certify optometrists "who have completed the appropriate forms as required by the board and who have submitted proof of fulfilling all of the following requirements" in subparagraphs (2)(a), (b) and (c)....
...It is within the range of permissible interpretations of the statute... ."
407 So.2d at 241. [4] The hearing officer noted in his finding of facts (10 F.A.L.R. at 410-12) that the Board has not relied on the general licensure examinations under section
463.006 as satisfying section
463.0055(2)(c), and suggested in his conclusions of law (10 F.A.L.R. at 429-30) that the authorization in section
463.0055(3) of a separate fee for the subsection (2)(c) examination indicates that the legislature also contemplated an independent examination administered by the Board separately from the general licensure examination....
