08-000490RU Francisco Vazquez, M.D. vs. Department Of Health, Board Of Medicine Status: Closed DOAH Final Order on Wednesday, April 9, 2008.

Summary: Petitioner proved that Board`s interpretation of Section 458.331(1)(jj), Florida Statutes, constituted an unpromulgated rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCISCO VAZQUEZ, M.D., )

)

Petitioner, )

)

vs. ) Case No. 08-0490RU

)

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Respondent. )

)

FINAL ORDER

This case came before Larry J. Sartin, an Administrative Law

Judge of the Division of Administrative Hearings, on a factual

record stipulated to by the parties.

APPEARANCES

For Petitioner: Michael P. Gennett, Esquire

Shutts & Bowen, LLP

210 South Biscayne Boulevard, Suite 1500

Miami, Florida 333131

For Respondent: Edward a. Tellechea

Senior Assistant Attorney General

Donna Canzano McNulty

Assistant Attorney General

Garnett W. Chisenhall

Assistant Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in this case is whether an interpretation of

Section 458.331(1)(jj), Florida Statutes, by the Board of

Medicine is an agency statement which violates Section

120.54(1)(a), Florida Statutes (2007), pursuant to Section

120.56(4), Florida Statutes.

PRELIMINARY STATEMENT

On January 25, 2008, Petitioner Francisco Vazquez, M.D.,

filed a Petition for Administrative Determination that Agency

Statement Violates Florida Statutes § 120.54(1) and is an

Invalid Exercise of Delegated Legislative Authority (hereinafter

referred to as the “Petition”).

The Petition was designated DOAH Case No. 08-0490RU and, on

January 28, 2008, was assigned to the undersigned for

proceedings pursuant to Section 120.56(4), Florida Statutes

(2007). By Notice of Hearing by Video Teleconference issued

February 5, 2008, the final hearing of this matter was scheduled

for February 18, 2008, by video conferencing between Miami and

Tallahassee, Florida.

On February 15, 2008, a pre-hearing conference was

conducted by telephone. During the conference, the parties

agreed that, in light of a Joint Stipulation they had entered

into and filed on February 14, 2008, there was no longer a need

for a formal evidentiary hearing. Instead, the parties agreed

that the final hearing should be cancelled; the matter should be

submitted for decision based upon the facts and exhibits the

parties had stipulated to; that the parties should be given an

opportunity to file proposed final orders and responses thereto

pursuant to an agreed briefing schedule; and that this Final

Order should then be entered.

Petitioner also made an ore tenus motion to file an amended

Petition adding the specific agency language challenged in this

proceeding. That motion was granted. On February 20, 2008,

Petitioner filed an Amended Petitioner for Administrative

Determination That Agency Statement Violates Florida Statutes

§ 120.54(1) and is an Invalid Exercise of Delegated Legislative

Authority (hereinafter referred to as the “Amended Petition”).

A second copy of the Stipulation and three stipulated

exhibits were filed on February 15, 2008.

By Order Establishing Schedule for Filing Proposed Final

Orders entered March 10, 2008, the agreed-to briefing schedule

was memorialized. Consistent with that Order, Petitioner filed

Petitioner’s Proposed Final Order on March 13, 2008, and

Respondent filed a Proposed Final Order on March 14, 2008. On

March 28, 2008, Petitioner filed Petitioner’s Response to

Respondent’s Proposed Final Order and Respondent filed Board of

Medicine’s Response to Petitioner’s Proposed Final Order. These

post-hearing submittals have been fully considered.

All references to Florida Statutes in this Final Order are

to the 2007 version, unless otherwise noted.

FINDINGS OF FACT

These findings of fact, with a few changes based upon the

stipulated record in this case, are facts contained in the Joint

Stipulation:

A. The Parties .

1. Petitioner Franciso Vazquez, M.D., is a licensed

medical doctor within the State of Florida, having been issued

license number ME 68742.

2. Respondent Board of Medicine (hereinafter referred to

as the “Board”), is charged with regulating the practice of

medicine pursuant to Section 20.43 and Chapters 456 and 458,

Florida Statutes.

3. Dr. Vazquez’s address of record is 4595 Palm Beach

Boulevard, Fort Myers, Florida 33905.

B. DOAH Case No. 07-0424PL, Dr. Vazquez’s Disciplinary

Case .

4. Dr. Vazquez signed a written opinion in the form of an

Affidavit on September 5, 2003, as required by Section

766.104(1), Florida Statutes (2003), in support of a medical

malpractice action related to the death of C.L.

5. Dr. Vazquez named approximately 40 doctors and one

hospital in the sworn statement.

6. The sworn statement generally stated that each of the

defendants committed medical negligence and a breach of the

prevailing professional standard of care in a multitude of ways,

but did not specify which doctor committed which negligent act

or how any individual doctor breached the prevailing standard of

care.

7. Dr. Vazquez further asserted in this sworn statement

that the negligence and breach of the prevailing professional

standard of care of all the doctors caused injury, damage and

ultimately the death of C.L.

8. That sworn statement ultimately formed the basis for a

civil malpractice action filed on February 2, 2004, in the

Circuit Court of the Sixth Judicial Circuit of Florida, in and

for Pinellas County, Civil Division, Case Number 04-875CI-7.

9. On or about February 22, 2005, circuit court judge

Bruce Boyer of the Circuit Court of the Sixth Judicial Circuit

of Florida, in an for Pinellas County, Civil Division, in case

Number 04-875CI-7, entered an order of dismissal as to two

defendant doctors.

10. In the order of dismissal, Judge Boyer stated that the

Dr. Vazquez was not a gastroenterologist and did not otherwise

appear to be qualified to comment on the defendants’ care and

did not appear to have made any reasonable effort to investigate

and determine what role the [two] defendants played in C.L.’s

care.

11. Dr. Vazquez was not provided with any notice of the

hearing on February 22, 2005, and neither he nor anyone acting

on his behalf was present at the hearing to defend his

interests.

12. The court forwarded its order to the Division of

Medical Quality Assurance as required by Section 766.206(5)(a),

Florida Statutes (2003).

13. On or about May 3, 2006, an Administrative Complaint

was issued against Dr. Vazquez charging him with a one count

violation of Section 458.331(1)(jj), Florida Statutes (2003),

which subjects a physician to license discipline for “being

found by any court in this state to have provided corroborating

written medical expert opinion attached to any statutorily

required notice of claim or intent or to any statutorily

required response rejecting a claim without reasonable

investigation.” The recommended penalties for a violation of

Section 4458.331(1)(jj), Florida Statutes (2003), include

revocation of the physician’s license.

14. Dr. Vazquez is the first and only physician in Florida

who has been formally charged with violating Section

458.331(1)(jj), Florida Statutes (2003).

15. On or about January 22, 2007, the Department of Health

referred Case No. 2005-03579 (DOH v. Francisco Vazquez, M.D.) to

the Division of Administrative Hearings (hereinafter referred to

as the “DOAH”) for a formal evidentiary hearing on the

Administrative Complaint pursuant to Chapter 120, Florida

Statutes. The case was assigned DOAH Case Number 07-0424PL.

The case was assigned to the undersigned.

16. On or about March 1, 2007, Dr. Vazquez filed a Motion

to Relinquish Jurisdiction in the administrative proceeding,

advising the court of his intent to file his constitutional

challenge to Section 458.331(1)(jj), Florida Statutes, in

circuit court and arguing the DOAH should relinquish

jurisdiction until after the Leon County Circuit Court has ruled

on his constitutional challenge.

17. On or about March 5, 2007, Dr. Vazquez filed a

Petition for Declaratory Action and/or Injunctive Relief in the

Second Judicial Circuit Court in and for Leon County, Florida,

alleging that Section 458.331(1)(jj), Florida Statutes, is

unconstitutional under the U.S. and state constitutions, in that

it allows disciplinary action against a physician’s license

based exclusively on the existence of a court order entered in a

proceeding in which the physician, acting as a presuit medical

expert, is not a party and has no right to notice and an

opportunity to be heard. The case was assigned case number

2007-CA-0663.

18. On or about March 19, 2007, an Order Denying Motion to

Relinquish was entered by the undersigned.

19. On or about March 21, 2007, a hearing was held before

the undersigned on Dr. Vazquez’ Motion to Continue Hearing. At

the hearing, counsel for the Department of Health, argued that

Statutes, only requires proof of the existence of a court order

that includes the language mentioned in the statute and that,

once this is proven, there is no opportunity for the physician

to dispute the findings of the court order. The Department of

Health’s argument was accepted by the undersigned.

20. On or about April 17, 2007, after a formal

administrative hearing was conducted but before a recommended

order was issued, the Department of Health filed a Motion to

Reopen the Hearing and Record and Schedule Evidentiary Formal

Hearing. In the motion, the Department of Health urged the

undersigned that a new interpretation of Section 458.331(1)(jj),

Florida Statutes (2003), should be accepted, stating:

It is the [Department of Health’s] position

that Section 458.331(1)(jj), Florida

Statutes, creates a rebuttable presumption.

Under this interpretation, to create a prima

facie case, the Department must prove that

[Dr. Vazquez] was found to have provided a

corroborating written affidavit in support

of a notice of a claim without reasonable

investigation. [Dr. Vazquez] may rebut such

a showing by demonstrating that,

notwithstanding the finding, his

investigation was in fact reasonable.

21. On or about May 8, 2007, the undersigned denied the

Department of Health’s Motion to Reopen, holding that its new

interpretation of Section 458.331(1)(jj), Florida Statutes

(2003), is contrary to any reasonable reading of the statute.

22. On or about July 5, 2007, the Department of Health

filed its Exceptions to the Recommended Order of the undersigned

in DOAH Case No. 07-0424PL, in which it reasserted that the

correct interpretation of Section 458.331(1)(jj), Florida

Statutes (2003), is the one set forth in its Motion to Reopen

Hearing (quoted in paragraph 20, supra ).

23. On or about July 6, 2007, Dr. Vazquez filed his Reply

to Petitioner’s Exceptions urging that, even if Petitioner’s new

interpretation of Section 458.331(1)(jj), Florida Statutes, were

to be adopted and applied to this case, the case should be

dismissed and sent back to the probable cause panel for a

determination made based upon the new interpretation.

24. On or about August 10, 2007, a meeting of the Board

was held in Fort Lauderdale, Florida at which the Board approved

the Department of Health’s Exceptions to the Recommended Order

and entered an Order remanding the case back to the DOAH for a

“de novo hearing so that findings may be entered consistent with

as set forth in this order.”

25. By accepting the Department of Health’s Exceptions,

the Board adopted as its own, the interpretation of Section

458.331(1)(jj), Florida Statutes (2003), asserted by the

Department of Health in its Motion to Reopen the Hearing and

Record and Schedule Evidentiary Formal Hearing and quoted in

paragraph 20, supra .

26. In light of the fact that the Board has the final

authority over its interpretation of the laws it is charged with

applying, the Order of Remand was accepted by Order Accepting

Remand and Reopening File entered September 17, 2007.

27. On or about January 8, 2008, Dr. Vazquez filed his

Motion to Dismiss Administrative Complaint and Remand to Agency

for Probable Cause Determination, again arguing that the

probable cause determination made against him was based on a

reading of the statute which is substantially different than the

reading that the Board adopted in the Order on Remand. The

Department of Health opposed this motion. The motion was denied

by an Order entered by the undersigned on January 18, 2008.

28. The final hearing on remand in DOAH Case No. 07-0424PL

was held on January 29, 2008, pursuant to Section 120.57(1),

Florida Statutes.

29. In his Amended Petition, Dr. Vazquez has challenged

the statement adopted by the Board through its Order of Remand.

That statement, which is quoted in paragraph 20, supra , will

hereinafter be referred to as the “Challenged Agency Statement.”

30. The Challenged Agency Statement has not been adopted a

rule pursuant to Section 120.54(1), Florida Statutes, and the

Board has not initiated any rule-making procedures in this

regard.

31. The Board has not argued or presented evidence to

support a finding that rule-making is not feasible and

practicable under Section 120.54(1)(a), Florida Statutes.

CONCLUSIONS OF LAW

A. Jurisdiction .

32. The DOAH has jurisdiction over the parties and the

subject matter of this proceeding pursuant to Section 120.56(4),

Florida Statutes.

B. Dr. Vazquez’ Challenge .

33. Dr. Vazquez has challenged the Challenged Agency

Statement pursuant to Section 120.56(4)(a), Florida Statutes,

which provides, in part, the following:

Any person substantially affected by an

agency statement may seek an administrative

determination that the statement violates s.

120.54(1)(a). The petition shall include

the text of the statement or a description

of the statement and shall state with

particularity facts sufficient to show that

the statement constitutes a rule under s.

120.52 and that the agency has not adopted

the statement by the rulemaking procedure

provided by s. 120.54.

34. Section 120.56(4)(b), Florida Statutes, goes on to

provide, in part, that “[i]f a hearing is held and the

petitioner proves the allegations of the petition, the agency

shall have the burden of proving that rulemaking is not feasible

and practicable under s. 120.54(1)(a).”

35. Section 120.56(4)(c), Florida Statutes, describes the

determination which may be made by an administrative law judge:

The administrative law judge may determine

whether all or part of a statement violates

s. 120.54(1)(a). The decision of the

administrative law judge shall constitute a

final order. . . .

36. If the administrative law judge finds all or part of

the agency statement in violate of Section 120.54(1)(a), Florida

Statutes, Section 120.56(4)(d), Florida Statutes, provdes that

“the agency shall immediately discontinue all reliance upon the

statement or any substantially similar statement as a basis for

agency action.”

37. Finally, Section 120.56(4)(e), Florida Statutes,

provides procedures to be followed if the agency, before the

final hearing or, after the final hearing, before issuance of

the final order, takes action to adopt the agency statement.

Those procedures are not applicable to this case.

38. Based upon the foregoing, the issues to be resolved in

this case are:

a. Is Dr. Vazquez a “person substantially affected” by an

agency statement;

b. Is the specific language challenged in the Amended

Petition “an agency statement”;

c. Does the agency statement constitute a “rule” under

Section 120.52(15), Florida Statutes; and

d. Was rulemaking feasible and practicable under Section

120.54(1)(a), Florida Statutes.

C. The Burden of Proof .

39. Generally, the burden of proof in a Chapter 120,

Florida Statutes, proceeding, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue in the proceeding. Antel v. Department of Professional

Regulation , 522 So. 2d 1056 (Fla. 5th DCA 1988); Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981); and Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 249 (Fla. 1st DCA 1977). The initial

burden of proof in a challenged brought pursuant to Section

120.56(4), Florida Statutes, is, therefore, on the petitioner.

40. Dr. Vazquez was, therefore, required to prove that he

is a “substantially affected” person; that the Challenged Agency

Statement is an “agency statement”; and that the Challenged

Agency Statement is a “rule” as defined in Section 120.52(15),

Florida Statutes.

41. Pursuant to Section 120.56(4)(c), Florida Statutes, if

Dr. Vazquez meets his burden of proof, the burden of proof then

shifts to the Board to prove that rulemaking was not feasible

and practicable.

D. Substantially Affected Person .

42. Only “substantially affected persons” may challenge

agency statements which come within the definition of a “rule”

but have not been adopted pursuant to Section 120.54(1)(a),

Florida Statutes, pursuant to Section 120.56(4), Florida

Statutes. Dr. Vazquez was, therefore, as a threshold issue,

required to prove he is “substantially affected” by the

Challenged Agency Statement to institute the instant proceeding.

See Department of Professional Regulation, Board of Medical

Examiners v. Durrani , 455 So. 2d 515 (Fla. 1st DCA 1984).

43. In order to prove that he is “substantially affected,”

Dr. Vazquez was required to specifically prove that (a) the

Challenged Agency Statement causes a real and sufficiently

immediate injury in fact; and that (b) his alleged interest is

arguably within the “zone of interest” to be protected or

regulated. See Ward v. Board of Trustees of the Internal

Improvement Trust Fund , 651 So. 2d 1236, 1237 (Fla. 4th DCA

1995).

44. In the Amended Petition, paragraph 14, Dr. Vazquez has

asserted the following factual basis for his standing in this

case:

The Board’s interpretation of Section

458.331(1)(jj) will allow the Board to use a

court order issued in a proceeding for which

Dr. Vazquez had no right to notice and an

opportunity to be heard to establish their

prima facia case rebuttable presumption

against him, and then shift the burden of

proof to Dr. Vazquez to prove his own

innocence. The penalty for a violation of

Section 458.331(1)(jj) is revocation of the

physician’s license. Thus, Petitioner is

substantially affected by the unadopted

rule. Lanou v. Dept. of Highway Safety and

Motro Vehicels , 751 So.2d 44 (Fla. 1st DCA

1999).

These alleged facts have been proven by the facts to which the

parties have stipulated and the record evidence.

45. While the Board correctly concedes that Dr. Vazquez’

interest in this case meets the second prong of the Ward test

for standing, that his interest is within the zone of interests

to be protected pursuant to Section 458.331(1)(jj), Florida

Statutes (2003), the Board questions whether Dr. Vazquez has

proven that the Challenged Agency Statement may cause him a real

and sufficiently immediate injury in fact.

46. The Board concedes that “a cursory review of the case

law should lead to the conclusion that Dr. Vazquez has suffered

a real and sufficiently immediate injury in fact”, in light of

the consistent conclusion of Florida appellate courts that a

petitioner satisfies the “substantially affected” test if rules

or proposed rules regulate the petitioner’s profession or

influence the petitioner’s ability to earn a living. Despite

this concession, the Board goes on to attempt to distinguish

this case from court decisions on standing by arguing that:

if Dr. Vazquez ultimately loses his license,

the Board’s alleged non-rule statement

interpreting Section 458.331(1)(jj), Florida

Statutes, will not be the source of that

injury. In fact, the Board’s revised

interpretation of Section 458.331(1)(jj),

Florida Statutes, substantially decreases

the probability that Dr. Vazquez will suffer

any injury at all. (Emphasis in original).

47. The Board goes on in its Proposed Final Order to

further explain its position as follows:

35. Under the Department of Health’s

original interpretation of Section

458.331(1)(jj), respondents such as Dr.

Vazquez had no opportunity to rebut a

circuit court’s determination that they

provided a corroborating written affidavit

without conducting a reasonable

investigation. The Department of Health’s

subsequent Motion to Reopen Hearing, in

which it revised its interpretation of

Section 458.331(1)(jj), was denied.

36. If the Board had agreed with the

Department’s original interpretation of the

statute, which it did not, then the

undersigned would conclude without

hesitation that Dr. Vazquez had satisfied

the first prong of the “substantially

affected” test.

37. Instead, after a Recommended Order

had been issued in the disciplinary case,

the Board rejected the ALJ’s interpretation

of Section 458.331(1)(jj), Florida Statutes,

and remanded with directions that Dr.

Vazquez have an opportunity to rebut the

circuit court’s determination that he failed

to conduct a reasonable investigation.

38. Because the Board’s interpretation of

Section 458.331(1)(jj), Florida Statutes,

substantially affects Dr. Vazquez in a

positive manner, Dr. Vazquez has not been

injured by that revised interpretation.

Therefore, he has no standing to challenge

the alleged non-rule statement at issue.

(Emphasis in original).

48. The Board’s argument that the application of an

interpretation of a disciplinary provision at issue in this case

which may result in the revocation, suspension, or other

discipline of Dr. Vazquez’ license to practice medicine in

Florida impacts him in a “positive” manner because it may be a

less harsh interpretation of the disciplinary provision is

rejected. The Board’s argument ignores the fact that, under

either interpretation of Section 458.331(1)(jj), Florida

Statutes (2003), which has been advanced by the Department

and/or the Board in this case, Dr. Vazquez is facing a real and

substantial injury in the form of the loss or other discipline

of his license to practice medicine.

49. The fact that Dr. Vazquez may see the Challenged

Agency Statement as presenting him with a somewhat better

opportunity to prevail in the disciplinary proceedings against

him, does nothing to diminish the fact that ultimately, he is

facing disciplinary action by the Board pursuant to the Board’s

application of the Challenged Agency Statement.

50. Dr. Vazquez has proven that he is a “substantially

affected person” as those terms are used in Section

120.56(4)(a), Florida Statutes.

E. The Challenged Agency Statement is an “Agency

Statement”; and It Constitutes a “Rule” .

51. Clearly, the Challenged Agency Statement is an “agency

statement.” The Board does not contest this issue.

52. The primary question to be decided in this case is

whether the Challenged Agency Statement comes within the

definition of a “rule” as that term is defined in Section

120.50(15), Florida Statutes:

"Rule" means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

The term also includes the amendment or

repeal of a rule. The term does not

include:

. . . .

53. Only agency statements of "general applicability,"

i.e., those statements which are intended by their own effect to

create or adversely effect rights, to require compliance, or to

otherwise have the direct and consistent effect of law, fall

within the definition of Section 120.52(15), Florida Statutes.

See Department of Highway Safety and Motor Vehicles v. Schluter ,

705 So. 2d 81, 82 (Fla. 1st DCA 1997); Balsam v. Department of

Health and Rehabilitative Services , 452 So. 2d 976, 977-978 (1st

DCA, 1984); and McDonald v. Department of Banking and Finance ,

346 So. 2d 569, 581 (Fla. 1st DCA 1977).

54. Dr. Vazquez argues that the Challenged Agency

Statement is one of general applicability because it:

. . . is applicable, not only to the

prosecution of Dr. Vazquez, but both as

articulated as a general interpretation of

the statute, and under the doctrine of

administrative stare decisis once it is

applied here, to any and all physicians who

may be prosecuted for a violation of Florida

Statutes § 458.331(1)(jj)(2003) in the

future. It is undisputed that Dr. Vazquez

is the first physician in Florida to be

prosecuted for violating this statutory

subsection, and this case will set precedent

for how §458.331(1)(jj) will be interpreted

and applied in future cases. [Footnote

omitted].

55. Dr. Vazquez argues that the Challenged Agency

Statement is also one that “implements, interprets, or

prescribes law or policy or describes the procedure or practice

requirements of an agency and includes any form which imposes

any requirement or solicits any information not specifically

required by statute or by an existing rule” because the

Challenged Agency Statement “implements and interprets” Section

458.331(1)(jj), Florida Statutes, and that it:

. . . imposes a requirement or solicits

information not specifically required by

Florida Statutes §458.331(1)(jj)(2003), in

that it determines that the statue imposes a

“rebuttable presumption”, and establishes

what will be considered a “prima facie case”

and that the burden of proof supposedly

shifts to the physician to rebut the

presumption. None of these terms are even

mentioned in Florida Statutes

§458.331(1)(jj)(2003), nor does that statue

provide for the physician to “rebut”

anything and none of these aspects of the

Agency Statement were part of the Department

of health’s earlier interpretation of the

statute. In fact, the Agency Statement is

such a radical departure from a plain

reading of Florida Statutes §458.331(1)(jj)

that this ALJ rejected this interpretation

as “contrary to any reasonable reading of

the statute.”

56. The Board argues that the Challenged Agency Statement

is neither an agency statement of “general applicability” nor

one that “implements, interprets, or prescribes law or policy or

describes the procedure or practice requirements of an agency

and includes any form which imposes any requirement or solicits

any information not specifically required by statute or by an

existing rule.” The Board argues essentially that the

Challenged Agency Statement is nothing more that a one-time

application of Section 458.331(1)(jj), Florida Statutes (2003).

57. The Board argues essentially that the Challenged

Agency Statement is merely an interpretation of Section

458.331(1)(jj), Florida Statutes (2003), which arose from a

single disciplinary action and the Board’s

. . . consideration of a specific

recommended order issued by DOAH where,

pursuant to Section 120.57(1)(l), the Board

rejected a conclusion of law and substituted

it with its own. . . .

45. Thus, the Board’s action is

applicable only to this case and is not a

matter of general applicability. Moreover,

the Petitioner has failed to present any

evidence which would indicate otherwise. In

fact, the Petitioner has stipulated to the

fact that he is the first and only physician

that has ever been formally charged with

violating Section 458.331(1)(jj). . . . Any

claims on his part that Section

458.331(1)(jj) will be interpreted in the

same manner in the future are merely pure

speculation.

58. While it is true that this is the first time that the

Board has relied upon the Challenged Agency Statement and it is

doing so in conjunction with the prosecution of a disciplinary

matter against a single physician, the Challenged Agency

Statement is one of general applicability which “implements,

interprets, or prescribes law or policy or describes the

procedure or practice requirements of an agency and includes any

form which imposes any requirement or solicits any information

not specifically required by statute or by an existing rule.”

59. This is not a case where an agency is applying a

statutory provision in a manner which turns on the specific

facts and situation of the disciplinary case in which its

statutory interpretation is being applied; if it were, the

Board’s interpretation of its disciplinary provision would not

be a “rule.” Stated differently, this is not a case where an

agency interpretation of a disciplinary statute is based upon

and, therefore, limited to, the specific facts involved in the

agency’s disciplinary action. In this case, the Board is

applying an interpretation of a disciplinary provision, Section

458.331(1)(jj), Florida Statutes (2003), to Dr. Vazquez that

establishes a procedure or method of proof unrelated and

unaffected by the specific facts involved. At no time has the

Board suggested or argued that its interpretation of Section

458.331(1)(jj), Florida Statutes (2003), as challenged in this

case is based upon or limited to Dr. Vazquez’ circumstances.

60. For the same reasons, the Challenged Agency Statement

cannot be considered, as the Board argues, to be the type of

statutory interpretation which the courts have found to not be

nonrule policy. Both parties have relied upon the following

pertinent language from St. Francis Hospital, Inc. v. Department

of Health and Rehabilitative Services , 553 So. 2d 1351, 1354

(Fla. 1st DCA 1989):

We recognize that an agency interpretation

of a statute which simply reiterates the

legislature’s statutory mandate and does not

place upon the statute an interpretation

that is not readily apparent from its

literal reading, nor in and of itself

purport to create rights, or require

compliance, or to otherwise have the direct

and consistent effect of law, is not an

unpromulgated rule, and actions based upon

such an interpretation are permissible

without requiring an agency to go through

rule making.

61. The Board asserts that the foregoing language supports

its position, because the Challenged Agency Statement

“reiterates the basic mandate set forth in the plain language of

the statute . . . .” Dr. Vazquez argues that the court’s

decision supports his position because the Challenged Agency

Statement “is not readily apparent from [the statute’s] literal

reading . . . .” In the Recommended Order originally entered in

the disciplinary proceeding against Dr. Vazquez, the undersigned

concluded that the Challenged Agency Statement is “contrary to

any reasonable interpretation of the statute.” The Board has

offered nothing new in its argument in this case to convince the

undersigned that this conclusion was incorrect. Therefore,

Dr. Vazquez’ application of the court’s decision in St. Frances

Hospital quoted supra , is accepted.

62. The Challenged Agency Statement is, therefore, one

which by its terms is not limited to the facts of the

disciplinary case against Dr. Vazquez, but is instead one which

the Board apparently believes is required by the general

language of Section 458.331(1)(jj), Florida Statutes. The

Challenged Agency Statement is, therefore, one of general

applicability. The Challenged Agency Statement is also an

interpretation which fails to simply reiterate the legislature’s

statutory mandate. Instead, the Challenged Agency Statement

places upon the statute an interpretation that is not readily

apparent from its literal reading, and in and of itself purports

to create rights.

63. The Challenged Agency Statement is a “rule” as defined

in Section 120.52(15), Florida Statutes, which violates Section

120.54(1)(a), Florida Statutes (2007).

F. The Board Failed to Prove that Rulemaking was not

Feasible or Practicable .

64. The Board, by failing to address the issue in its

Proposed final Order, apparently concedes that rulemaking was

feasible and practicable.

65. The evidence failed to prove that rulemaking was not

feasible or practicable.

G. Attorney’s Fees and Costs .

66. Section 120.595(4)(a), Florida Statutes, provides the

following with regard to an award of attorney’s fees and costs:

Upon entry of a final order that all or

part of an agency statement violates §

120.54(1)(a), the administrative law judge

shall award reasonable costs and reasonable

attorney’s fees to the petitioner, unless

the agency demonstrates that the statement

is required by the Federal Government to

implement or retain a delegated or approved

program or to meet a condition to receipt of

federal funds.

67. Jurisdiction over this matter will be retained to give

the parties an opportunity to address the issue of attorney’s

fees and costs.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the Challenged Agency Statement constitutes a

rule as defined in Section 120.52(15), Florida Statutes, which

has not been adopted pursuant to Section 120.54(10(a), Florida

Statutes.

DONE AND ORDERED this 9th day of April, 2008, in

Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of April, 2008.

COPIES FURNISHED :

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Edward A. Tellechea

Senior Assistant Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Michael P. Gennett, Esquire

Shutts & Bowen, LLP

201 South Biscayne Boulevard, Suite 1500

Miami, Florida 33131

Garnett Chisenhall, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

M. Catherine Lannon, Esquire

Office of the Attorney General

Administrative Law Section

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Dr. Ana M. Viamonte Ros, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Scott Boyd, Executive Director

Joint Administrative Procedures Committee

120 Holland building

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code

The Elliot Building, Room 201

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, 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 reviewed.