01-004323RX Zafar Shah, M.D. vs. Department Of Health, Board Of Medicine Status: Closed DOAH Final Order on Tuesday, March 19, 2002.

Summary: Portion of Rule determined to enlarge the provisions of law implemented, and Board was without specific statutory authority to promulgate rule; other subsection not invalid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZAFAR SHAH, M.D., )

)

Petitioner, )

)

vs. ) Case No. 01 - 4323RX

)

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Respondent. )

)

FINAL ORDER

THIS C AUSE came on before Daniel M. Kilbride,

Administrative Law Judge, the Division of Administrative

Hearings, pursuant to the Petition to Challenge Existing Rule

under Subsection 120.56(3), Florida Statutes, in Tallahassee,

Florida.

APPEARANCES

For Petitioner : Jack D. Hoogewind, Esquire

33283 Cortez Boulevard

Dade City, Florida 33523

For Respondent: Lee Ann Gustafson, Esquire

Office of the Attorney General,

Department o f Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUES

Whether the provisions of Rule Subsections 64B8 - 9.008(1)

and (2), Florida Administrative Code, enlarge, modify , or

contravene the provisions of law implemented, and is arbitrary

and capricious because the rule penalizes harmless conduct, in

violation of Subsections 120.52(8)(c) and (e), Florida Statutes.

Whether the Department of Health had the statutory

authority to promulgate Rule 64B8 - 9.008, Florida Administrative

Code, pursuant to Section 120.536, Florida Statutes.

Whether the Board of Medicine had statutory authority to

promulgate Rule 64B8 - 9.008, Florida Administrative Code,

pursuant to Section 120.536, Flori da Statutes.

PRELIMINARY STATEMENT

On May 4, 2001, the Department of Health (DOH) filed an

Administrative Complaint against Petitioner's medical license.

Petitioner disputed the allegations and requested a formal

hearing. During the course of the formal hearing process,

Petitioner sought to challenge a rule of the Board of Medicine

which had been officially recognized during the formal hearing

process. Permission was granted, and, subsequently, on

November 2, 2001, Petitioner filed a Petition to Challen ge

Existing Rule with the Clerk of the Division of Administrative

Hearings (DOAH). Pursuant to a telephonic hearing, the parties

agreed that there appear to be no disputed facts or need for an

evidentiary hearing. Respondent was given ten days to object to

the Judge's consideration of Exhibits A, B, and C, which were

attached to the Petition to Challenge Existing Rule. No

objection has been forthcoming, and therefore these exhibits are

properly before this tribunal, and the following findings of

fact are based on the exhibits.

Petitioner names DOH and the Board of Medicine (Board), as

Respondents in this action. Petitioner alleges that DOH did not

have authority to adopt Rule 64B8 - 9.008, Florida Administrative

Code. DOH did not promulgate the rule at is sue. It was

promulgated by the Board; therefore, Respondent, DOH, is

dismissed.

The parties submitted their Proposed Final Orders and

Briefs in a timely manner, and each has been given careful

consideration in the preparation of this Final Order.

FINDINGS OF FACT

1. DOH has filed an Administrative Complaint against

Petitioner herein, Dr. Zafar Shah, M.D., seeking disciplinary

sanctions against his medical license. The Complaint alleges

that Petitioner violated Subsections 458.331(1)(j) and (x),

Florida S tatutes (1999). Subsection (j) requires that the

physician exploit the physician - patient relationship to obtain

sex from a patient before he is subject to discipline.

Subsection (x) holds, inter alia , that violating a rule of the

Board or DOH by a physic ian subjects him to discipline. 1

2. The Administrative Complaint alleges that the sexual

relationship between Petitioner and patient, T.R., began in

December of 1996. According to the complaint, Petitioner first

treated T.R. on August 20, 1997, about eig ht months after he

first had sex with her. Petitioner continued to treat T.R.

periodically until on or about January 18, 1999.

3. During the prosecution of the administrative action

against Petitioner, DOH requested that the Administrative Law

Judge take official recognition of Section 458.329, Florida

Statutes, a special section relating to sexual misconduct and

Rule 61B8 - 8.001, Florida Administrative Code, as amended

December 28, 1999, and Rule 64B8 - 9.008, Florida Administrative

Code, as amended May 29, 1997, by the Board of Medicine. An

order was entered granting that request.

4. Section 458.329, Florida Statutes, reads as follows:

Sexual misconduct in the practice of

medicine. –

The physician - patient relationship is

founded on mutual trust. Sex ual misconduct

in the practice of medicine means violation

of the physician - patient relationship

through which the physician uses said

relationship to induce or attempt to induce

the patient to engage, or to engage or

attempt to engage the patient, in sexu al

activity outside the scope of the practice

or the scope of generally accepted

examination or treatment of the patient.

Sexual misconduct in the practice of

medicine is prohibited.

5. Section 458.331, Florida Statutes (1999), reads in

pertinent part, a s follows:

Grounds for disciplinary action; action by

the board and department. – -

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(j) Exercising influence within a

pa tient - physician relationship for purposes

of engaging a patient in sexual activity. A

patient shall be presumed to be incapable of

giving free, full, and informed consent to

sexual activity with his or her physician.

* * *

(v) Practicing or offerin g to practice

beyond the scope permitted by law or

accepting and performing professional

responsibilities which the licensee knows or

has reason to know that he or she is not

competent to perform. The board may

establish by rule standards of practice and

standards of care for particular practice

settings, including, but not limited to,

education and training, equipment and

supplies, medications including anesthetics,

assistance of and delegation to other

personnel, transfer agreements,

sterilization, recor ds, performance of

complex or multiple procedures, informed

consent, and policy and procedure manuals.

* * *

(x) Violating any provision of this

chapter, a rule of the board or department,

or a lawful order of the board or department

previously ente red in a disciplinary hearing

or failing to comply with a lawfully issued

subpoena of the department.

6. Rule 64B8 - 9.008, Florida Administrative Code, reads in

pertinent part, as follows:

64B8 - 9.008 Sexual Misconduct. --

(1) Sexual contact with a p atient is

sexual misconduct and is a violation of

Sections 458.329 and 458.331(1)(j), Florida

Statutes.

(2) For purposes of this rule, sexual

misconduct between a physician and a patient

includes, but it is not limited to:

(a) Sexual behavior or in volvement with a

patient including verbal or physical

behavior which

1. may reasonably be interpreted as

romantic involvement with a patient

regardless of whether such involvement

occurs in the professional setting or

outside of it;

2. may reason ably be interpreted as

intended for the sexual arousal or

gratification of the physician, the patient

or any third party; or

3. may reasonably be interpreted by the

patient as being sexual.

(b) Sexual behavior or involvement with a

patient not act ively receiving treatment

from the physician, including verbal or

physical behavior or involvement which meets

any one or more of the criteria in paragraph

(2)(a) above and which

1. results from the use or exploitation

of trust, knowledge, influence o r emotions

derived from the professional relationship;

2. misuses privileged information or

access to privileged information to meet the

physician's personal or sexual needs; or

3. is an abuse or reasonably appears to

be an abuse of authority or power.

* * *

(4) The determination of when a person is

a patient for purposes of this rule is made

on a case by case basis with consideration

given to the nature, extent, and context of

the professional relationship between the

physician and the per son. The fact that a

person is not actively receiving treatment

or professional services from a physician is

not determinative of this issue. A person

is presumed to remain a patient until the

patient - physician relationship is

terminated.

(5) The mer e passage of time since the

patient's last visit to the physician is not

solely determinative of whether or not the

physician - patient relationship has been

terminated. Some of the factors considered

by the Board in determining whether the

physician - patien t relationship has

terminated include, but are not limited to,

the following:

(a) formal termination procedures;

(b) transfer of the patient's case to

another physician;

(c) the length of time that has passed

since the patient's last visit to t he

physician;

(d) the length of the professional

relationship;

(e) the extent to which the patient has

confided personal or private information to

the physician;

(f) the nature of the patient's medical

problem;

(g) the degree of emotional d ependence

that the patient has on the physician.

(6) Sexual conduct between a physician

and a former patient after termination of

the physician - patient relationship will

constitute a violation of the Medical

Practice Act if the sexual contact is a

resu lt of the exploitation of trust,

knowledge, influence or emotions, derived

from the professional relationship.

(7) A patient's consent to, initiation

of, or participation in sexual behavior or

involvement with a physician does not change

the nature of the conduct nor lift the

statutory prohibition.

* * *

(9) Upon a finding that a physician has

committed unprofessional conduct by engaging

in sexual misconduct, the Board will impose

such discipline as the Board deems necessary

to protect the public . The sanctions

available to the Board are set forth in Rule

64B8 - 8.001, F.A.C., and include restriction

or limitation of the physician's practice,

revocation or suspension of the physician's

license.

7. The challenged portions of the rule consists of: Rule

Subsections 64B8 - 9.008(1) and (2), Florida Administrative Code.

Rule 64B8 - 9.008, Florida Administrative Code, cites as Specific

Authority Section 458.309 and Subsection 458.331(5), Florida

Statutes; as Law Implemented the Rule cites Section 458.329 and

Subsection 458.331(1)(j), Florida Statutes. By technical change

to the Rule filed December 12, 2001, with the Bureau of

Administrative Code, the Rule cites as Specific Authority and

Law Implemented Subsection 458.331(1)(v), Florida Statutes.

Subsecti on 458.331(1)(v), Florida Statutes, authorizes the Board

to establish by rule standards of practice.

8. Subsection 458.309(1), Florida Statutes, provides as

follows:

The board has authority to adopt rules

pursuant to ss. 120.536(1) and 120.54 to

impleme nt the provisions of this chapter

conferring duties upon it.

9. Subsection 458.331(5), Florida Statutes, provides as

follows:

The board shall by rule establish

guidelines for the disposition of

disciplinary cases involving specific types

of violations.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction of this action and the parties pursuant to

Subsections 120.56(1) and (3), Section 120.569, and Subsection

120.57(1), Florida Statutes.

11. Section 120.56, Florida Statutes, reads in pertinent

part, as follows:

Challenges to rules. –

(1) GENERAL PROCEDURES FOR CHALLENGING

THE VALIDITY OF A RULE OR A PROPOSED RULE. –

(a) Any person substantially affected by

a rule or a proposed rule may seek an

administrative determina tion of the

invalidity of the rule on the ground that

the rule is an invalid exercise of delegated

legislative authority.

* * *

(e) Hearings held under this section

shall be conducted in the same manner as

provided by ss. 120.569 and 120.57, except

t hat the administrative law judge's order

shall be final agency action. The

petitioner and the agency whose rule is

challenged shall be adverse parties.

* * *

(3) CHALLENGING EXISTING RULES; SPECIAL

PROVISIONS. –

(a) A substantially affected pers on may

seek an administrative determination of the

invalidity of an existing rule at any time

during the existence of the rule.

(b) The administrative law judge may

declare all or part of a rule invalid. The

rule or part thereof declared invalid shall

become void when the time for filing an

appeal expires. The agency whose rule has

been declared invalid in whole or part shall

give notice of the decision in the Florida

Administrative Weekly in the first available

issue after the rule has become void.

12. Petitioner alleges that the cited portions of Rule

64B8 - 9.008, Florida Administrative Code, violate Subsection

120.52(8), Florida Statutes. Subsections 120.52(8)(c) and (e),

Florida Statutes, provide that a rule is an invalid exercise

delegation of l egislative authority if it enlarges, modifies, or

contravenes the specific provisions of law implemented, or is

arbitrary or capricious.

13. Petitioner alleges that the language of Rule

Subsections 64B8 - 9.008(1) and (2), Florida Administrative Code,

permi ts the Board to find a violation of Section 458.329,

Florida Statutes, when the physician has not violated the

physician - patient relationship or used the physician - patient

relationship to induce or attempt to induce the patient to

engage in sexual activity . The allegations also claim that the

language of the Rule permits the Board to find a violation of

Subsection 458.331(1)(j), Florida Statutes, when the physician

has not exercised influence within a physician - patient

relationship for purposes of engaging a patient in sexual

activity.

14. Section 458.329, Florida Statutes, specifically

defines sexual misconduct in the practice of medicine. Rule

Subsection 64B8 - 9.008(1), Florida Administrative Code, does not

impermissibly enlarge the specific provisions of the law

implemented. Under the Rule, sexual contact with a patient

constitutes sexual misconduct. The Rule then goes on to list

what behavior would be considered sexual in nature when applied

to the definition of sexual misconduct, as set forth in th e

statutes.

15. As explained in 2 Fla. Jur. 2d, Administrative Law

Section 165:

Administrative regulations must be

consistent with the statutes under which

they are promulgated, and they may not

amend, add to, or repeal the statute. An

agency may not pro mulgate regulations which

broaden the scope of a proscription

contained in its enabling legislation, read

into a statute conditions or requirements

not plainly expressed therein, or attempt to

supply essential substantive provisions

which are missing from or are unclear in the

statute.

State v. Florida Department of Business Regulation v. Salvation

Limited, Inc. , 452 So. 2d 65 (Fla. 1st DCA 1984). See Whitener

v. Department of Business and Professional Regulation , 662 So.

2d 1299 (Fla. 4th DCA 1995); Stat e, Department of Health and

Rehabilitative Services v. McTigue , 387 So. 2d 454 (Fla. 1st DCA

1997); Capeletti Builders, Inc. v. Dept. of Transportation , 499

So. 2d 855 (Fla. 1st DCA 1986).

16. Neither Subsection 458.331(1)(j) nor (v), Florida

Statutes, authorized the Board to adopt rules to "redefine" the

term "sexual misconduct" in this section, nor does it

contemplate that the Board needs to establish standards of

practice relating to sexual misconduct. The Legislature

expressly enacted its definition of sexual misconduct in Section

458.329, Florida Statutes, and authorized the Department of

Health to charge a physician with sexual misconduct under

Subsection 458.331(1)(x), Florida Statutes.

17. Rule Subsections 64B8 - 9.008(1) and (2), Florida

Admini strative Code, however, does not eliminate or attempt to

eliminate the elements of the violation set forth in Section

458.329 and Subsection 458.331(1)(j), Florida Statutes. Rule

Subsection 64B8 - 9.008(1), Florida Administrative Code, ties

sexual misconduc t under the Rule to the two statutory provisions

which define it. Rule Subsection 64B8 - 9.008(2)(a), Florida

Administrative Code, defines the behavior that the Board will

consider to be behavior that constitutes sexual activity for the

purposes of Section 458.329 and Subsection 458.331(1)(j),

Florida Statutes. Rule Subsection 64B8 - 9.008(2)(b), Florida

Administrative Code, clarifies that the patient in an

established physician - patient relationship need not be actively

receiving treatment at the time of the sexual activity for a

violation to be found if the behavior results from exploitation,

misuse of privileged information, or an abuse of authority or

power. This subsection provides guidelines regarding two

elements of the violation:

(a) what constitutes use of the physician - patient

relationship or exercising influence within the physician -

patient relationship, e.g. exploitation, misuse of privileged

information, or abuse of authority or power, and

(b) the parameters of the physician - patient relationship,

which does not require current, active treatment for the

relationship to exist.

18. Petitioner also alleges the identified Rule

subsections (Rule Subsections 64B8 - 9.008(1) and (2), Florida

Administrative Code) violate Subsection 120.52(8)(e), Florida

Sta tutes, because the Rule's subsections are arbitrary and

capricious. Petitioner alleges the Rule subsections are

arbitrary and capricious because they "penalize [] harmless

conduct that a physician has a constitutional right to engage

in." Petitioner does not have a constitutional right to engage

in sexual misconduct. Subsections (1) and (2) of the Rule

provide guidelines for licensees in the determination of whether

a physician - patient relationship existed between a licensee and

his or her patient; wheth er prohibited behavior occurred; and

whether a licensee improperly exploited the patient, or used

privileged information inappropriately including sexual

activity; or abused his or her position of trust and authority

to induce a patient to engage in sexual activity.

19. The fact that Petitioner engaged in sexual activity

prior to establishing a physician - patient relationship, if such

a finding is made, is one factor to take into consideration in

determining if Petitioner violated Section 458.239 and

Subsec tion 458.331(1)(j), Florida Statutes. Regardless of the

fact that sexual activity occurred prior to the establishment of

a physician - patient relationship, a determination could be made

that the continuation of sexual activity, under the

circumstances, as a matter of fact, resulted from improper

exploitation or abuse of authority and trust; or conversely, it

could be determined that such exploitation and abuse did not

occur under the facts of the case. The language of the

challenged portions of the Rule do es not pre - determine the

result in the underlying disciplinary action.

20. To the extent that Petitioner challenges the Rule as

arbitrary and capricious because of constitutional implications,

this tribunal does not have the authority to find an existing

rule unconstitutional. "[A] hearing officer [now administrative

law judge] does not have power to adjudicate the

constitutionality of a [promulgated] rule, such power being a

judicial rather than a quasi - judicial power." Department of

Environmental Regul ation v. Leon County , 344 So. 2d 297 (Fla.

1st DCA 1977); see also Department of Administration v. Stevens ,

344 So. 2d 290 (Fla. 1st DCA 1977); and Department of

Administration, Division of Personnel v. Department of

Administration, Division of Administrat ive Hearings , 326 So. 2d

187 (Fla. 1st DCA 1976). But see , Caddy v. Department of

Health , 764 So. 2d 625 (Fla. 1st DCA 2000).

21. The standard for determining whether a rule is

arbitrary and capricious pursuant to Subsection 120.52(8)(e),

Florida Statute s, is whether it is not supported by fact or

logic or is enacted without thought or reason. Conversely, if

an administrative decision is justifiable under any analysis

that a reasonable person would use to reach a decision of

similar importance, it is nei ther arbitrary nor capricious.

Dravo Basic Chemicals Company v. State , 602 So. 2d 632 (Fla. 2d

DCA 1992). This standard was recognized by the Legislature, as

was noted in Florida League of Cities, Inc. v. Department of

Environmental Regulation , 603 So. 2 d 1363, 1367 - 8 (Fla. 1st DCA

1992):

Staff Analysis of the House Committee on

Governmental Operations, "Staff Analysis of

Proposed Amendments to Chapter 120, F.S.,

for House Bill 710 and Senate Bill 608"

(1987) (Florida State Archives), explaining

that Se ction 120.52(8)(e), Florida Statutes

(1987), relating to the term arbitrary or

capricious, "codifies the long established

principle that administrative rules cannot

be arbitrary or capricious, i.e.,

unsupported by logic, despotic or

irrational." In suppor t of this statement

the Staff Analysis refers to the Agrico

Chemical Co. [v. State Department of

Environmental Protection, 365 So. 2d 759

(Fla. 1st DCA 1978)] and the General

Telephone Co. of [v. Florida Public Service

Commission, 446 So. 2d 1063 (Fla. 198 4)]

opinions.

22. Subsections (1) and (2) of the challenged Rule

provisions are not illogical, despotic, or irrational. The Rule

addresses elements of the violation stated in the statutes

(which have not and could not be challenged by Petitioner in

this proceeding.). It is not despotic of the Board to recognize

that a physician can exercise influence in the physician - patient

relationship or use the physician - patient relationship

improperly even though treatment is not being actively provided

at the time . Otherwise, a gynecologist who only sees patients

once a year could avoid the strictures of the law by only

engaging in sexual activity with a patient in - between visits.

Likewise, it is hardly illogical or irrational to define sexual

activity as somethi ng broader than sexual intercourse. The

definitions of what constitutes sexual behavior advise licensed

physicians that verbal comments intended to induce sexual

activity are as inappropriate as physical behavior; the

definitions are intended to protect t he unwilling recipient as

well as the patient who consents through the physician's abuse

of his or her position of trust.

23. Prior to the 1996 Amendments to Chapter 120, Florida

Statutes, an agency had implied rulemaking authority to

implement that agenc y's statutory duties, as long as the rules

were "reasonably related" to the purpose of the enabling

legislation. However, in 1996, Section 120.536, Florida

Statutes, was created, to provide that:

120.536 Rulemaking authority; listed of

rules exceeding authority repeal;

challenge. --

(1) A grant of rulemaking authority is

necessary, but not sufficient to allow an

agency to adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

speci fic powers and duties granted by the

enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose or the

enabling legislation. . . ."

This section repealed the "reasonably related" test previously

relied on by the courts. Department of Professional Regulation

v. Calder Race Course, Inc. , 724 So. 2d 100, 102 (Fla. 1st DCA

1998).

24. The Southwest Florida Water Management District v.

Save the Manatee Club, Inc. , 773 So. 2d 594 (Fla. 1st DCA 2000)

pr ovided the First District an opportunity to address the 1999

amendments to Subsection 120.52(8), Florida Statutes, governing

the required authority of agencies to engage in rulemaking.

Previously, in St. Johns Water Management District v.

Consolidated - Tom oka Land Co. , 717 So. 2d 72 (Fla. 1st DCA 1998),

the court had construed that provision of Chapter 120 to create

a "class of powers" test. Under that test, a rule was valid if

it regulated matters within a class of powers identified by the

Legislature. F ollowing the decision in the Consolidated - Tomoka

case, the Legislature amended Subsection 120.52(8) with the

clear intent to limit agencies' rulemaking authority. The

amended provisions stated that it was not sufficient for a rule

to fall within a class o f powers granted to the agency; rather,

it must "implement or interpret the specific powers or duties

granted by the enabling statute." Subsection 120.52(8), Florida

Statutes.

25. Subsequent to the change in Subsection 120.52(8), the

Save the Manatee Clu b filed a petition with the Division of

Administrative Hearings challenging certain provisions of

Rule 40D - 4.051, Florida Administrative Code, which created

exemption from wetlands permitting for a variety of activities.

The basis for the challenge was t hat the District did not have

specific statutory authority to adopt permitting exemptions.

The ALJ held that the rules were invalid. The court agreed with

the ALJ that no specific authority existed for the rule. The

District argued that Subsection 373.4 14(9), Florida Statutes,

directed the District to adopt implementing rules based

"primarily on the existing rules of the [Department of

Environmental Protection] and the water management districts."

However, the court relied on language in the same statut ory

provision which stated that permit exemptions could only be

adopted where they did not "allow significant adverse impacts."

In construing the 1999 amendment to Subsection 120.52(8), the

court relied upon the dictionary definition of "specific." It

con cluded that the intent of the Legislature was that a rule

must be based on an explicit power or duty set forth in the

statute. In this case, the exemption was based on whether a

project was approved before a certain date, not whether it would

have a signi ficant adverse impact. Thus, the court concluded

that the exemption was not based on a specific power or duty

granted to the District.

26. In dicta , the court noted that rules may still be more

detailed in nature than the underlying statute, stating: "T he

question is whether the statute contains a specific grant of

legislative authority for the rule, not whether the grant of

authority is specific enough." The court recognized that

greater levels of detail are required in enabling statutes than

was the c ase prior to the 1996 and 1999 APA amendments, but

still adhered to the principle that the Legislature will not

"micro - manage" agency business by including all implementing

details in enabling legislation. Id. at 599. The court

declined to formulate an o bjective test or standard for making

the determination. The First District further refused to adopt

a sliding scale analysis, and ruled instead that the issue must

be determined on a case - by - case basis: Id. at 599.

27. Thereafter, in Board of Podiatric Medicine v. Florida

Medical Association , 779 So. 2d 658 (Fla. 1st DCA 2001), the

Florida Medical Association challenged a proposed rule of the

Board which defined "human leg" and "surgical treatment." The

term human leg was defined in the proposed rule to include the

entire leg below the hip. The rule defined surgical treatment

to mean "a distinctly operative kind of treatment." The ALJ

concluded that the definition expanded the legislative scope of

practice of podiatric medicine by covering the leg abov e the

knee. In that case, the Board of Podiatric Medicine promulgated

Rule 64B18 - 23.001, Florida Administrative Code, which provides

definitions pertaining to the standards and scope of podiatric

practice. As specific authority for the Rule, the Board of

Podiatric Medicine cited to Section 461.005, Florida Statutes,

which provides as follows:

The Board of Podiatric Medicine has

authority to adopt rules pursuant to ss.

120.536(1) and 120.54 to implement the

provisions of this chapter conferring duties

up on it.

As law implemented, the Board of Podiatric Medicine cited to

Subsection 461.003(3) [now (5)], Florida Statutes, which

provides as follows:

"Practice of podiatric medicine" means the

diagnosis of medical, surgical, palliative,

and mechanical treat ment of ailments of the

human foot and leg. The surgical treatment

of ailments of the human foot and leg shall

be limited anatomically to that part below

the anterior tibial tubercle. The practice

of podiatric medicine shall include the

amputation of the toes or other parts of the

foot but shall not include the amputation of

the foot or leg in its entirety. A

podiatric physician may prescribe drugs that

relate specifically to the scope of practice

authorized herein.

28. On appeal, the court revers ed. Judge Allen held that

the Board did not enlarge, modify, or contravene the statute.

The statute defined the practice of podiatric medicine to mean

"diagnosis, surgical, palliative, and mechanical treatment of

ailments of the human foot and leg." The court noted that

expert testimony at the hearing supported a conclusion that the

term leg had various meanings, some of which could be limited to

portions of the leg below the knee. Accordingly, it deferred to

the Board's broad discretion in construing t he statute. In its

decision, the First District held that the rulemaking authority

in Section 461.005, Florida Statutes, encompassed the

implementation of provisions by which Chapter 461 conferred

duties upon the Board, and that those duties included matt ers

which required the Board's assessment at to the lawful scope of

podiatric practice. The court cited as an example of the duty

of the Board to assess the lawful scope of practice Subsection

461.013(1)(u), Florida Statutes, the disciplinary provision

ma king it a violation to practice or offer to practice beyond

the scope permitted by law. Therefore, the court found that the

Rule defining the term "human leg" fell within the grant of

rulemaking authority in Section 461.005, Florida Statutes,

"insofar as the rule provides a permissible explication and

definition of the statutory terminology used in Section

461.003." However, the court, in its opinion makes no reference

to the 1996 or 1999 amendments to the APA, nor does it cite the

Save the Manatee case, but only cites cases decided prior to the

1996 changes.

29. Following its decision is Save the Manatee and Board

of Podiatric Medicine , the First District in Board of Trustees

of the Internal Improvement Trust Fund v. Day Cruise

Association, Inc. , 794. So . 2d 696 (Fla. 1st DCA 2001) applied

the 1996 and 1999 amendments to the APA and ruled that the

statute was not sufficient under the amended APA to authorize

the trustees to promulgate the proposed rule.

30. The Day Cruise Association challenged a propose d rule

of the Board of Trustees that would have prohibited the

anchoring or mooring of vessels on sovereignty submerged lands

where the vessels were "used primarily for the purpose of

gambling" and where such vessels were "engaged in 'cruises to

nowhere.'" The ALJ held that the rule was invalid, and the

First District affirmed that decision. In reaching this

decision, Judge Benton in the majority opinion discussed in

detail the recent legislative history of the APA with respect to

agencies rulemaking auth ority. His opinion held that:

Under the 1996 and 1999 amendments to the

APA, it is now clear, agencies have

rulemaking authority only where the

Legislature has enacted a specific statute,

and authorized the agency to implement it,

and only if the (propose d) rule implements

or interprets specific powers or duties, as

opposed to improvising in an area that can

be said to fall only generally within some

class of powers or duties the Legislature

has conferred on the agency.

Id. at 700.

31. The court agreed w ith the ALJ that the proposed rule

violated the provisions of both Subsections 120.52(8)(b) and

120.52(8)(c), Florida Statutes, that the Trustees had exceeded

their rulemaking authority and had enlarged upon the specific

provisions of law being implemented . The Trustees had cited

Subsections 253.03(7)(a) and (b), Florida Statutes, as

rulemaking authority in the notice of proposed rulemaking. The

court concluded that neither of those subsections provided the

necessary authority. Subsection 253.03(7)(a) gr anted the

Trustees very general authority to adopt rules for the overall

"acquisition, management, and disposition of state - owned lands."

The court held that Subsection (a) did not provide any authority

for the proposed regulation as it made no specific r eference to

submerged lands. In contrast, Subsection (b) did address

submerged lands. However, the court concluded that its

rulemaking authority was insufficient to allow for a prohibition

on the docking of gambling vessels. Subsection (b) provides

that the Trustees may adopt rules governing the usage of

sovereignty lands by vessels "limited to regulations for

anchoring, mooring, or otherwise attaching to the bottom; the

establishment of anchorages; and the discharge of sewage,

pumpout requirements, and facilities associated with

anchorages." The court concluded that the statute did not

authorize the Trustees to prohibit an otherwise legal use of a

vessel (gambling) where there was no physical or environmental

threat to the sovereignty submerged lands. In addition, the

court held that the proposed regulation violated the provision

of Subsection (b) that prohibited the Trustees from adopting a

rule that would "interfere with commerce or the transitory

operation of vessels through navigable water." Subsec tion

253.03(7)(b), Florida Statutes.

32. Likewise, the court held that the proposed rule

enlarged upon the statutory provisions being implemented. The

Trustees had cited Article X, Section 11, Florida Constitution,

and Section 253.03 and Section 253.04, Florida Statutes. The

court, after reviewing each of those provisions, found no

specific provision of law being implemented by the Trustees. It

concluded:

In the absence of a specific power or duty

enabling or requiring the Trustees to

regulate cruises t o nowhere or to regulate

gambling or to regulate on the basis of

activities occurring aboard vessels after

they leave sovereignty submerged lands and

adjacent water, the Trustees' proposed rule

exceeds the Trustees' rulemaking authority

and is an invalid e xercise of delegated

legislative authority as defined in Section

120.52(8)(c), Florida Statutes.

Id. at 704.

In reaching this decision, the court noted that the Legislature

had twice considered legislation that would have prohibited

"cruises to nowhere" and failed to adopt such a bill.

33. In a dissenting opinion, Judge Allen disagreed that

the statute must grant specific authority to the Trustees to

regulate gambling vessels, finding the authority to regulate the

anchoring of "vessels, floating homes, o r any other watercraft"

to be sufficiently broad. Subsection 253.03(7)(b), Florida

Statutes. Moreover, he found no basis for limiting the

regulatory authority of the Trustees over sovereignty submerged

lands to "environmental concerns." He concluded tha t impact of

the majority's opinion would be to negate the power of the

Trustees to regulate the use of sovereignty lands by commercial

vessels.

34. In the instant case, Respondent argues that the grant

of rulemaking authority to the Board of Medicine in S ection

458.309, Florida Statutes, is identical to the authority granted

to the Board of Podiatric Medicine in Section 461.005, Florida

Statutes; Rule Subsections 64B8 - 9.008(1) and (2), Florida

Administrative Code, define terms used in the statutes just as

the Board of Podiatric Medicine's rule defined statutory

terminology; and among the duties assigned to the Board of

Medicine is the duty to determine if a physician has committed

sexual misconduct or otherwise violated the standards of

practice. Responden t asserts that the facts of this case are

four - square with the facts in Board of Podiatric Medicine ;

therefore the Rule Subsections 64B8 - 9.008(1) and (2), Florida

Administrative Code, are authorized by the cited statutory

provisions.

35. Although Responde nt is correct on its holding, the

Save the Manatee and Day Cruise cases must be examined closely,

as well, in this case. Under the standards set in those cases,

the Board was only authorized to implement or interpret the

specific powers or duties granted by the enabling statute.

Subsection 458.309(1), Florida Statutes, grants the Board

authority to adopt rules to implement the provisions of this

Chapter [458] conferring duties upon it; Subsection

458.331(1)(v), Florida Statutes, grants the Board authority to

set standards of practice within the profession; and Subsection

458.331(5), Florida Statutes, grants the Board authority to

establish disciplinary guidelines for violations of the statute.

The Legislature has already provided for its own definition of

"sexual misconduct" in enacting Section 458.329, Florida

Statutes, and Subsection 458.331(1)(j), Florida Statutes, which

prohibit a physician from exercising influence in order to

engage a patient in sexual activity. In the instant case, Rule

64B - 9.008, Florida Administrative Code, sets out examples of

what sexual activity is. It does not set forth a new or

different definition of "sexual misconduct," nor does it create

a new ground for "misconduct" under Subsection 458.331(1)(j),

Florida Statutes. Unde r Subsections 458.309(1) and 458.331(5),

Florida Statutes, the Board was given authority specific enough

to adopt rules to establish regulatory standards. Southwest

Florida Water Management District v. Save the Manatee Club,

Inc. , supra. at p 599.

36. The Board was authorized to interpret or clarify the

implementing statutes; it has done so in the challenged Rule.

It has not redefined "sexual misconduct" in a manner that

conflicts with the statutory definition, nor did it enlarge and

expand the conduct proscribed in the statute to the detriment of

Petitioner. Based on the foregoing, Rule Subsections 64B8 -

9.008(1) and (2), Florida Administrative Code, of the Board of

Medicine are not an invalid exercise of delegated legislative

authority, as defined in Subsections 120.58(8)(b),(c) or (e),

Florida Statutes.

FINAL ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the Petition to Challenge Existence of Rule is

denied.

DONE AND ORDERED this 19th day of March, 2 002, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNC OM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of March, 2002.

ENDNOTE

1/ This language in the statute was specifically transferred by

the Legislature in Laws of Florida, Chapter 2001 - 277, Section 21

which created subsection (nn) which reads as follows:

Section 458.331(1)

(nn) Violating any provision of this

chapter or Chapter 456, or any rule adopted

pursuant thereto.

COPIES FURNISHED :

Lee Ann Gustafson , Esquire

Office of the Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Jack D. Hoogewind, Esquire

33283 Cortez Boulevard

Dade City, Florida 33523

William W. Large, General Counsel

Department o f Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

M. Catherine Lannon, Esquire

Office of the Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Tanya Williams, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Carroll Webb

Executive Director and General Co unsel

Joint Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.6 8, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be rev iewed.