14-004511RU Shelley Kay Hill, R.N. vs. Department Of Health, Board Of Nursing
 Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Tuesday, August 18, 2015.


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Summary: A Board of Nursing statement that the injection of Botox is outside the scope of practice for registered nurses and does not constitute the administration of medication constitutes an unadopted rule in violation of section 120.54(1)(a), Florida Statutes.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8SHELLEY KAY HILL, R.N.,

12Petitioner,

13vs. Case No. 14 - 4511RU

19DEPARTMENT OF HEALTH, BOARD OF

24NURSING,

25Respondent.

26_______________________________/

27FINAL ORDER

29Pursuant to notice, a hearing was conducted in this case on

40January 27, 2015, by video teleconference at sites in Orlando

50and Tallahassee, Florida, b efore Administrative Law Judge

58F. Scott Boyd of the Division of Administrative Hearings (DOAH) .

69APPEARANCES

70For Petitioner: George F. Indest III, E squire

78Carole C. Schriefer, Esquire

82Joanne Kenna, Esquire

85The Health Law Firm

891101 Douglas Avenue

92Altamonte Springs, Florida 32714

96For Respondent : Lee Ann Gustafson , Esquire

103Rachel W. Clark, Esquire

107Department of Legal Affairs

111The Capitol, Plaza Level 01

116Tallahassee, Florida 32399

119STATEMENT OF THE ISSU E

124Whether the statement that " T he injection of Botox is not

135within the scope of practice for registered nurses and does not

146constitute the administration of med i cation , " ( " the Boto x

157statement " ) constitutes an unadopted rule in violation of

166section 120.54(1), Florida Statutes ( 2014 ) . 1/

175PRELIMINARY STATEMENT

177Petitioner , Shelley Kay Hill , a licensed r egistered n urse ,

187filed t his unadopted rule challenge on September 24, 2014 .

198Respondent , the Department of Health, Board of Nursing, filed a

208Motion for Summary Final Order on October 7, 2014, which was

219denied. The case was set for hearing on October 15, 2014.

230Petitioner filed eight requests for official recognition,

237which were not timely opposed by Respondent. All requests were

247granted, with the exception of the fifth request, which was

257granted in part and denied in part; and the seventh and eighth

269requests, w hich were denied.

274Petitioner served Respondent with 12 Requests for Admission

282on October 17, 2014. A dditional and amended r equests were filed

294on October 20, 2014, bringing the total to 23 Requests for

305A dmission. Respondent timely provided r esponse s to th e original

31712 requests on November 6, 2014. Respondent did not timely

327respond to the additional amended r equests.

334After continuance, the hearing was conducted on January 27,

3432015. At hearing, the parties stipulated to several facts,

352which were accepted and have been incorporated into the Findings

362of Fact below. Petitioner offered 15 exhibits at hearing, but

37214 of these were not accepted, as they were the cases and

384materials already official ly recogni zed . 2/ A copy of the

396Administrative Complaint was ac cepted into evidence as Exhibit

405P- 8. Notwithstanding Respondent ' s failure to respond to

415Petitioner ' s Amended Requests for Admission, Respondent disputed

424some of these admissions at hearing. In the interest of hearing

435the case on the merits, and because Petitioner failed to show

446any prejudice, Respondent was permitted to withdraw the default

455admissions and to deny some of the Amended Requests for

465Admission at hearing. Respondent also moved for reconsideration

473of the Orders granting official recognition be cause Respondent

482did not receive timely notice under section 90.203(1) , Florida

491Statutes . The motion was denied, as further discussed below.

501Respondent offered no exhibits. Neither party offered any

509witnesses.

510T he one - volume T ranscript was filed on Febr uary 25 , 2015.

524Proposed final orders were timely submitted by both parties and

534were carefully considered.

537FINDINGS OF FACT

540The following facts are found, as stipulated, admitted, or

549officially recognized (duplicates have been set forth only

557once):

558Stipulated Facts

5601 . Ms. Shelley Kay Hill is a registered nurse in the s tate

574of Florida, license number RN 9317251.

5802 . The D epartment of Health (DOH) is a state agency

592charged with regulating the practice of nursing pursuant to

601section 20.43, chapter 456, and chapter 464, Florida Statutes.

6103 . Section 464.018(1)(h) provides that unprofessional

617conduct as defined by Board of Nursing rule constitutes gro unds

628for disciplinary action.

6314 . Florida Administrative Code Rule 64B9 - 8.005(13)

640provides that unprofessional conduct includes practicing beyond

647the scope of the licensee ' s license, educational preparation or

658nursing experience.

6605 . Ms. Hill is licensed p ursuant to c hapter 464 and is a

675health care practitioner as defined in section 456.001(4).

6836. Botox is a medication.

6887 . It is within the scope of practice for registered

699nurses in the s tate of Florida to administer medication.

7098 . As of October 17, 2014, the Florida Board of Nursing

721website located at http://floridasnursing.gov/general - faqs

727states that a practical or registered nurse may not inject Botox

738as it is not within the scope of practice for practical or

750registered nurses.

7529. As of October 17, 20 14, the Florida Board of Nursing

764website located at http://floridasnursing.gov/general - faqs

770states that Botox injection does not constitute the

778administration of medication.

78110 . Petitioner ' s Request s for Admission served on

792Respondent DOH on October 17, 2 014, in this case include an

804Exhibit " A " which is a printout of the " General FAQs " from the

816Board of Nursing ' s website on October 17, 2014.

82611 . The scope of practice for a registered nurse licensed

837in the s tate of Florida includes the administration of

847me dications.

84912 . Injection is a form of administration of medication.

85913 . Registered nurses are allowed to inject medications

868within the scope of nursing practice in the state of Florida.

8791 4 . As of October 17, 2014, the Florida Board of Nursing

892website (located at http://floridasnursing.gov/general - faqs),

898under the s ection " General FAQs, " states:

905Can a practical or registered

910nurse inject Botox?

913The injection of Botox is not within the

921s cop e of practice for practical or

929registered nurses and does not constitute

935the administration of medication.

9391 5 . Petitioner ' s Amended Request s for Admission include

951Exhibit RFA - 1 , served on Respondent DOH on October 20, 2014 ,

963which is an accurate copy of a printout from the Florida Board

975of Nursing ' s website ( h ttp://floridasnursing.gov/general - faqs)

985under the Section " General FAQs, " as it existed on October 17,

9962014.

9971 6 . Proposed Exhibit P - 5, a copy of the proposed exhibit

1011attached to Petitioner ' s Amended Request s for Admission as " RFA -

10241 " that was served on Respondent DOH on October 20, 2014 , is

1036authentic.

10371 7 . Proposed Exhibit P - 5, the exhibit attached to the

1050Petitioner ' s Amended Request s for Admission as " RFA - 1 " that was

1064served on Respondent DOH on October 20, 2014 , is admissible.

10741 8 . Injection is one of the methods of administration of a

1087medication.

108819 . There has been no Florida Law Weekly notice regarding

1099rulemaking as it relates to the injection of Botox by nurses.

11102 0 . The definition of " registered nurse, " as stated in

1121section 4 64.003(22), is as follows: "' Registered nurse ' means

1132any person licensed in this state to practice professional

1141nursing. "

11422 1 . Botox is a drug.

11492 2 . The Florida Department of Health and the Florida Board

1161of Nursing have disciplined registered nurses for administering

1169Botox by injection, as indicated in Final Order No. DOH 12 - 2134 -

1183S - MQA in Department of Health vs. Debra Ann Leckron, R.N. , DOH

1196Case No. 2012 - 01979, filed October 11, 2012 . (Order entered

1208Nov. 20, 2014).

12112 3 . The Florida Department of Health and the Florida Board

1223of Nursing have disciplined registered nurses for administering

1231Botox by injection, as indicated in Final Order No. DOH 14 - 0617 -

1245S - MQA in Department of Health vs. Maritza Novas, R.N. , DOH Case

1258Nos. 2013 - 05848 and 2013 - 06561, filed April 18, 2014. (Order

1271entered Nov. 20, 2014).

127524 . The Board of Nursing ' s statements regarding the

1286injection of Botox by nurses are statements of general

1295applicability to nurses.

1298Admissions

12992 5 . There is no Florida Administrative Code r ule that

1311specifically prohibits the administration of Botox.

13172 6 . The Florida Board of Nursing has made no declaratory

1329statements regarding the administration of Botox by nurses.

1337Official ly Recognized Facts

13412 7 . On October 24, 2014, t he official website of the

1354Florida Board of Nursing, on its " General FAQs " (Frequently

1363Asked Questions) web page, contain ed the following question and

1373answer:

1374Can a practical or registered nurse

1380inject Botox?

1382The injection of B otox is not within the

1391scope of practice for practical or

1397registered nurses and does not constitute

1403the administration of medication.

14072 8 . On October 24, 2014, t he official website of the

1420Florida Board of Nursing, on its Search Results web page, when

1431the term " Botox " was searched, yield ed the following results:

1441Can a practical or registered nurse

1447inject Botox?

1449The injection of Botox is not within the

1457scope of practice for practical or

1463registered nurses and does not constitute

1469the administration of medication.

147329 . On October 28, 2014, t he official website of the

1485Florida Board of Nursing, in its " Help Center " web page,

1495contain ed the following question and answer:

1502Help Center/Can a practical or registered

1508nurse inject Botox?

1511The injection of Botox is not within the

1519scope of practice for practical or

1525registered nurses and does not constitute

1531the administration of medication.

15353 0 . Botox is a pproved by the U.S. Food and Drug

1548Administration (FDA).

1550Ultimate Facts

155231 . The Botox statement constitutes a rule within the

1562definition of section 120.52(16).

156632 . The Botox statement, or a substantially similar

1575statement , ha s not been adopted as a rule under chapter 120

1587procedur es .

159033 . The Board of Nursing did not show that it is not

1603practicable or feasible to adopt the Botox statement as a rule.

1614CONCLUSIONS OF LAW

1617Standin g and Jurisdiction

16213 4 . In administrative proceedings, standing is a matter of

1632subject matter jurisdiction. Abbott Labs. v. Mylan Pharms.,

1640Inc. , 15 So. 3d 642, 651 n.2 (Fla. 1st DCA 2009). Section

1652120.56(4) provides that " [a]ny person substantially affected by

1660an agency stat ement may seek an administrative determination

1669that the statement violates s. 120.54(1)(a). "

16753 5 . In order to establish standing, a challenger must show

1687an immediate " injury in fact " within the protected " zone of

1697interest . " See, e.g. , Fla. Medical Ass ' n, Inc. v. Dep ' t of

1712Prof ' l Reg. , 426 So. 2d 1112, 1114 (Fla. 1st DCA 1983).

17253 6 . Respondent d id not contest Petitioner ' s standing to

1738challenge the Botox statement. Petitioner is a registered nurse

1747and so is bound by the scope of practice established for

1758registered nurses . The Botox statement declares that certain

1767activity is not within the scope of practice of a registered

1778nurse. Petitioner has standing to challenge the Botox statement

1787as an unadopted rule . See Ward v. Bd. of Trs. of the Int. Imp.

1802Trus t Fund , 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995)(standing

1814is recognized where rule directly regulates the challenger ' s

1824occupational field).

18263 7 . Respondent argues, however, based on United Wisconsin

1836Life Insurance Co. v. Department of Insurance , 831 So. 2d 239

1847(Fla. 1st DCA 2002), that because an Administrative Complaint

1856ha s been filed against Petitioner, s he has a remedy through h er

1870defenses in th at case , and the unadopted rule challenge here is

1882an impermissible collateral attack .

18873 8 . Respondent reads United Wisconsin too broadly. While

1897the unadopted rule challenge in that case was brought against a

1908statement of charges in an administrative complaint , the basis

1917for the court ' s opinion was more narrow . Specifically, the

1929United Wisconsin court first fou nd no showing that th e charges --

1942directed only to United Wisconsin and alleging facial violation

1951of statutory provisions -- were in any way statements of " general

1962applicability. " The court specifically noted that the issues

1970raised by the administrative complaint arose for the first and

1980only time as a result of United Wisconsin ' s actions. The court

1993then went on to state that , " on the present facts , " the

2004unadopted rule challenge also constituted a collateral

2011challenge.

201239 . While Petitioner here does challenge the Botox

2021statement appearing in the Administrative Complaint against her ,

2029she also challenges the same and similar statement s as they

2040appear on Respondent ' s website . The Botox statement by its own

2053terms is applicable to both practical and registe red nurses. In

2064fact, the parties stipulated that the Botox statement was a

2074statement of general applicability to nurses. Were United

2082Wisconsin to be read so broadly as to preclude an unadopted rule

2094challenge to such generally applicable statements just because

2102administrative charges have also been filed, th e provisions of

2112section 120.56(4) would be eviscerated , and the unique

2120legislative policy goals 3 / of that statutory section would n ot be

2133achieved . Petitioner has standing and her unadopted rule

2142challenge should not be dismissed under the doctrine of United

2152Wisconsin .

21544 0 . The Division of Administrative Hearings has

2163jurisdiction over the parties and subject matter of this

2172proceeding. § 120.56(4) , Fla. Stat.

2177Burden and Standard of Proof

21824 1 . The burden is on Petitioner to show that the

2194Botox statement constitutes a rule within the meaning of

2203section 120.52 (16) and that Respondent has not adopted it under

2214applicable rulemaking procedure s . § 120.56(4)(a) , Fla. Stat .

2224If Petitioner succeeds , the burden then shift s to Respondent to

2235prove that rulemaking is not feasible or practicable.

2243§ 120.56(4)(b) , Fla. Stat.

22474 2 . The standard of proof is by a preponderance of the

2260evidence. § 120.56(1)(e) , Fla. Stat .

2266Official Recognition

22684 3 . Although Respondent did not timely respond to any of

2280Petitioner ' s several r equests for o fficial r ecognition,

2291Respondent belatedly asserted at hearing that these requests did

2300not technically comply with section 90.203(1), Florida Statutes,

2308because timely written not ice was not given to Respondent and

2319filed in this proceeding .

23244 4 . A technical failure to comply with section 90.203(1)

2335notice provisions is not fatal to a motion to take judicial

2346notice, as long as there has been reasonable notice and an

2357opportunity to be heard. Scripps Research Inst., Inc. v.

2366Scripps Research Inst. , 916 So. 2d 988, 990 (Fla. 4th DCA

23772005)(court may take judicial notice of a matter on its own

2388motion or may excuse the failure of a party requesting judicial

2399notice to comply with written n otice provisions).

24074 5 . In Rogers v. State , 413 So. 2d 1270, 1271 (Fla. 1st

2421DCA 1982), it was held that a criminal defendant was not

2432prejudiced by lack of sufficient notice even though the

2441administrative rule he was charged with violating had been

2450judicially noticed only three days before his trial, because the

2460court found he had been furnished the text of the rule by the

2473information three months earlier. Similarly i n this rule

2482challenge case, the text of the statements on Respondent ' s

2493website were set forth in the original Petition filed by

2503Petitioner on September 24, 2014, and a printout of the website

2514page was attached as an exhibit.

25204 6 . In any event , Respondent c an hardly claim to need an

2534extended period of time to verify whether or not information

2544appears on its own website. The only other item officially

2554recognized in this proceeding that was not also a matter of

2565stipulation was the fact that Botox has been ap proved by the

2577U.S. Food and Drug Administration . 4 / Respondent was given seven

2589days to respond to each of th ese requests for official

2600recognition . This was ample time to determine the accuracy of

2611all of these statements .

26164 7 . At hearing, when asked what prejudice Respondent had

2627suffered by the granting of official recognition, none was

2636alleged, other than that " the rules of evidence are not being

2647followed. " Respondent demonstrated no prejudice. Official

2653recognition was app ropriate.

2657Definition of " Rule "

26604 8 . Section 120.52(16), in relevant part, defines the term

" 2671rule " as follows:

" 2674Rule " means each agency statement of

2680general applicability that implements,

2684interprets, or prescribes law or policy or

2691describes the procedure or practice

2696requirements of an agency and includes any

2703form which imposes any requirement or

2709solicits any informatio n not specifically

2715required by statute or by an existing rule.

2723This definition contains several overlapping elements.

2729Agency Statement

273149 . A petition challenging a statement as an unadopted

2741rule must include the text of the statement or a description of

2753it. A statement may be in any form, and does not need to be in

2768writing. Dep ' t of H igh . Saf. & Motor Veh. v. Schluter , 705 So.

27842d 81, 84 (Fla. 1st DCA 1997). Petitioner sufficiently

2793identified the text of the Botox statement in her petition.

28035 0 . T he statement must be shown to be an " agency "

2816statement , that is, an expression of the agency as an

2826institution , not merely the position of an e mployee acting on

2837h er own . It must be properly attributable to the agency head or

2851some duly - authorized delegate. Id. at 87 (Benton, J.,

2861concurring and dissenting) . T he parties stipulated that the

2871Botox statement appears in several places on the Board of

2881Nursing website . There has been no contention that it is not

2893attributable to the Board.

28975 1 . Respondent notes that an agency statement explaining

2907how an existing rule of general applicability will be applied in

2918a particular set of facts is not itself a r ule. Respondent

2930correctly asserts that it has a duty to enforce the statutory

2941scope of nursing practice and that a n agency is not forced to

2954adopt a rule for " every possible variation on a theme. "

2964Respondent notes that t his level of detail is left for the

2976adjudication process , citing E nvironmental Trust v. Department

2984of Environmental Protection , 714 So. 2d 493, 498 (Fla. 1 st DCA

29961998).

29975 2 . However, the evidence and argument in this case has

3009not identified any statute or existing rule of general

3018applicability that could be enforce d to prohibit the injection

3028of Botox. In fact, t he " practice of professional nursing " is

3039defined in section 464.003(20) as:

3044The performance of those acts requiring

3050substantial specialized knowledge, judgment,

3054and nursing skill based upon applied

3060principles of psychological, biological,

3064physical, and social s ciences which shall

3071include, but not be limited to:

3077(a) The observation, assessment, nursing

3082diagnosis, planning, intervention, and

3086evaluation of care; health teaching and

3092counseling of the ill, injured, or infirm;

3099and the promotion of wellness, maintenance

3105of health, and prevention of illness of

3112others.

3113(b) The administration of medications and

3119treatments as prescribed or authorized by a

3126duly licensed practitioner authori zed by the

3133laws of this state to prescribe such

3140medications and treatments.

3143(c) The supervision and teaching of other

3150personnel in the theory and performance of

3157any of the acts described in this

3164subsection.

3165A professional nurse is responsible and

3171accoun table for making decisions that are

3178based upon the individual ' s educational

3185preparation and experience in nursing.

3190(Emphasis added.)

31925 3 . The parties stipulated that Botox is a medication,

3203that injection is one of the methods of administration of a

3214medica tion, and that registered nurses are allowed to inject

3224medications within the scope of nursing practice in the state of

3235Florida. T hus , the Botox statement is not just a simple

3246application of statutory language to a particular set of facts.

3256In fact, the b lanket statement prohibiting the injection of

3266Botox, at least superficially , 5/ seems to be completely contrary

3276to the expressed statutory policy. Cf. St. Francis Hosp., Inc.

3286v. Dep ' t of HRS , 553 So. 2d 1351 , 1354 (Fla. 1st DCA

33001989) (statement which expands upon statutory policy or gives it

3310an interpretation not readily apparent from its literal reading

3319re presents agency policy .) The Botox statement is , therefore , a

3330statement of Board policy.

3334General Applicability

33365 4 . The requirement that a statement must be one of

3348general applicability has several facets. It involves first the

3357field of operation of the statement. Dep ' t of Com merce v.

3370Matthews Corp. , 358 So. 2d 256 (Fla. 1st DCA 1978)(w age rate s

3383applicable to public works contracts held not to be rules

3393because they applied only to the construction of a particular

3403public building and did not establish wages elsewhere in the

3413state into the future ) . The Botox statement by its own terms is

3427applicabl e to all practical and registered nurses in the state ,

3438now and into the future for an indefinite period.

34475 5 . The concept of general applicability also involves the

3458force and effect of the statement itself . An agency statement

3469that requires compliance, creates or adversely affects rights,

3477or otherwise has the direct and consistent effect of law is a

3489rule. State Bd. of Admin. v. Huberty , 46 So. 3d 1144, 1147

3501(Fla. 1st DCA 2010). The Botox statement requires compliance by

3511nurses, expressly restricts the ability of nurses to perform

3520certain tasks, and has the direct effect of law. The evidence

3531showed no other provision of the Florida Statutes or Florida

3541Administrative Code which has the effect of prohibiting the

3550injection of Botox. It was stipulated that nurses have been

3560disciplined for actions inconsistent with the Botox statement.

35685 6 . An agency statement must also be consistently

3578applicable. In Department of Highway Safety and Motor Vehicles

3587v. Schluter , 705 So. 2d 81, 82 (Fla. 1st DCA 1997), the cour t

3601found three of the challenged policies not to be generally

3611applicable because an employee ' s supervisor was not required to

3622apply them, and therefore they could not be considered to have

3633the " direct and consistent effect of law. " See also Coventry

3643First, LLC, v. Office of Ins . Reg . , 38 So. 3d 200, 20 5 (Fla. 1st

3660DCA 2010) (examination manual provided to examiners of the Office

3670of Insurance Regulation not generally applicable because

3677examiners had discretion not to follow it). Practical and

3686registered nurses do not have the discretion to choose t o follow

3698or not follow the Botox statement .

3705I mplements, I nterprets, or P rescribes

37125 7 . The Botox statement goes beyond the general statutory

3723provisions of chapter 464 to establish an express blanket

3732prohibition against the injection of Botox. It prescribes

3740policy. The Botox statement meets the definition of a rule

3750under section 120.52(16).

3753Rule Not Adopted

37565 8 . As stipulated, there is no rule in the Florida

3768Administrative Code that specifically prohibits the

3774administration of Botox. The Botox statement specifically does

3782so. The Botox statement has not been adopted under the

3792procedures of section 120.54. Petitioner alleged that Florida

3800Administrative Code Rule 64B9 - 8.005 was the specific rule that

3811should have been amended, though she was not required to

3821identify any specific rule. In response, Respondent contend s

3830that it c annot adopt the Botox statement as p art of rule

384364B9 - 8.005, because it has no authority to define nursing scope

3855of practice. This argument is discussed as an " affirmative

3864defense " that rulemaking is not feasible or practicable.

3872Feasible and Practicable

387559 . R ulemaking is not a matter of agency discretion .

3887Section 120.54(1)(a) requires that statements meeting the

3894definition of a rule be formally adopted as soon as feasible and

3906practicable. The burden is upon Respondent to show that

3915rulemaking is not feasible or practicable under secti on

3924120.54(1)(a) .

39266 0 . The scope of nursing practice set forth in section

3938464.003(2) was quoted above. Section 456.003(6 ) provides:

3946Unless expressly and specifically granted in

3952statute, the duties conferred on the boards

3959do not include the enlargement,

3964modification, or contravention of the lawful

3970scope of practice of the profession

3976regulated by the boards. This subsection

3982shall not pr ohibit the boards, or the

3990department when there is no board, from

3997taking disciplinary action or issuing a

4003declaratory statement.

40056 1 . Respondent notes that, based upon these statutes, it

4016has been determined in Florida Medical Association, Inc. v.

4025Department of Health, Board of Nursing , Case No. 12 - 1545RP (Fla.

4037DOAH Nov. 2, 2012), aff ' d 132 So. 3d 225 (Fla. 1 st DCA 2014),

4053that the Board of Nursing has no authority to promulgate

4063standards or scope of practice.

40686 2 . Contrary to Respondent ' s argument , however, it does

4080not follow that because the Board of Nursing cannot adopt a rule

4092establishing scope of practice, it is therefore free to craft

4102and apply an unadopted rule which has the same effect .

41136 3 . Rulemaking is a delegated legislative function , no t an

4125inherent executive one . Whiley v. Scott , 79 So. 3d 702, 710

4137(Fla. 2011)(agency promulgating a rule acts in place of the

4147legislature; rulemaking is a legislative function). A n agency

4156without a statutory grant of power to issue rules cannot

4166dispense with that fundamental requirement by the simple

4174expedient of avoiding the rulemaking procedures of section

4182120.54. The definition of a rule under section 120.52(16) is a

4193broad, functional one, which includes not only rules that have

4203been adopted following prescribed statutory procedures , but

4210rules that have not been, which are thus defined as " unadopted

4221rules " in section 120.52(20) . The Board of Nursing , without

4231statutory rulemaking authority to establish the scope of nursing

4240practice, cannot issue a rule of either variety . T he

4251Administrative Procedure Act does not restrict any organic

4259agency authority to adopt rules, rather, it and other statutes

4269grant agencies legislative authority to adopt them .

42776 4 . Lack of authority to adopt a rule does not render it

" 4291not feasib le " or " not practicab le " to adopt the rule as these

4304terms are defined in section 120.54(1)(a). Respondent has not

4313met the burden of show ing that rulemaking is not feasible or

4325practica b l e .

43306 5 . The Botox statement violat es section 120.54(1)(a).

4340Attorneys ' Fees

43436 6 . Petitioner requested attorneys ' fees and costs.

4353Section 120.595(4)(a) provides that if an administrative law

4361judge determines that all or part of any agency statement

4371violates section 120.54(1)(a), a n order shal l be entered against

4382the agency for reasonable costs and reasonable attorney ' s fees,

4393unless the agency demonstrates that the statement is required by

4403the Federal Government to implement or retain a delegated or

4413approved program or to meet a condition to re ceipt of federal

4425funds.

4426FINAL ORDER

4428Upon consideration of the above Findings of F act and

4438Conclusions of L aw, it is

4444ORDERED that :

44471. The statement that " [t] he injection of Botox is not

4458within the scope of practice for registered nurses and does not

4469constitute the administration of medication , " meets the

4476definition of a rule . It has not been adopted pursuant to

4488rulemaking procedures, in violation of section 120.54(1)(a),

4495Florida Statutes . Sec tion 120.56(4)(d) provides that the

4504Department of Health, Board of Nursing, must immediately

4512discontinue all reliance upon that statement , or any

4520substantially - similar statement , as a basis for agency action.

45302 . Jurisdiction is retained for the purpose of

4539considering the award of attorneys ' fees and costs to

4549Petitioner for h er successful challenge under section

4557120.56(4). If the parties are unable to resolve the issue , a

4568written request for hearing on attorneys ' fees and costs shall

4579be file d with the Division of Administrative Hearings. Any

4589such request for hearing must be filed no later than 60 days

4601after the date of this Final Order.

4608DONE AND ORDERED this 10th day of March, 2015, in

4618Tallahassee, Leon County, Florida.

4622S

4623F. SCOTT BOYD

4626Administrative Law Judge

4629Division of Administrative Hearings

4633The DeSoto Building

46361230 Apalachee Parkway

4639Tallahassee, Florida 32399 - 3060

4644(850) 488 - 9675

4648Fax Filing (850) 921 - 6847

4654www.doah.state.fl.us

4655Filed with the Clerk of the

4661Division of Administrative Hearings

4665this 10th day of March, 2015.

4671ENDNOTES

46721/ All references to statutes and rules are to the versions in

4684effect at the time of the challenge, except as otherwise

4694indicated.

46952/ See Amos v. Moseley , 74 Fla. 555, 564, 77 So. 619, 622

4708(1917)(things of which a court takes judicial notice require no

4718proof).

47193/ Unadopted rule challenges serve to enforce the rulemaking

4728requirements of chapter 120, an important public interest

4736distinct from that of a single respondent charged in an

4746administrative complaint. As stated in McDonald v. Department

4754of Banking and Finance , 346 So. 2d 569, 580 (Fla. 1st DCA 1977):

4767The APA does not in terms require agencies

4775to make rules of their policy statements of

4783general applicability, nor does it

4788explicitly invalidate action taken to

4793effectuate policy statements of that

4798character which have not been legitimated by

4805the rulemaking process. But that is the

4812necessary effect of the APA if the

4819prescribed rulemaking pro cedures are not to

4826be atrophied by nonuse.

4830The requirement to adopt rules was subsequently codified.

4838§ 120.535, Fla. Stat. (1991). The attorneys ' fees provisions of

4849section 120.595(4) encourage affected parties to undertake this

" 4857private attorney general " function, and so encourage agencies

4865to engage in rulemaking when appropriate.

48714/ The fact that Botox has been given FDA approval was

4882ultimately not found relevant to this case.

48895/ The issue of whether or not the Botox statement substantively

4900contravenes a statutory provision is not at issue in this

4910120.56(4) proceeding, and its apparent contravention of the

4918statutory language is considered solely for purposes of

4926determining whether the statement constitutes a " rule. "

4933COPIES FURNISHED:

4935Lee Ann Gu stafson, Esquire

4940Rachel W. Clark, Esquire

4944Office of the Attorney General

4949Administrative Law Bureau

4952The Capitol, Plaza Level 01

4957Tallahassee, Florida 32399

4960(eServed)

4961George F. Indest, III, Esquire

4966Carole C. Schriefer, Esquire

4970Joanne Kenna, Esquire

4973The Health Law Firm

49771101 Douglas Avenue

4980Altamonte Springs, Florida 32714

4984(eServed)

4985John H. Armstrong, M.D., F.A.C.S.

4990State Surgeon General

4993Department of Health

49964052 Bald Cypress Way, Bin A00

5002Tallahassee, Florida 32399 - 1701

5007(eServed)

5008Jennifer A. Tschetter , General Counsel

5013Department of Health

50164052 Bald Cypress Way, Bin A00

5022Tallahassee, Florida 32399 - 1701

5027(eServed)

5028Joe Baker, Jr., Executive Director

5033Department of Health

5036Board of Nursing

50394052 Bald Cypress Way , Bin C02

5045Tallahassee, Florida 32399

5048(eServed)

5049Ann - Lynn Denker, Ph.D, ARNP Chair

5056Department of Health

5059Board of Nursing

50624052 Bald Cypress Way

5066Tallahassee, Florida 32399

5069Ernest Reddick, Chief

5072Alexandra Nam

5074Department of State

5077R.A. Gray Building

5080500 South Bronough Street

5084Tallahassee, Florida 32399 - 0250

5089(eServed)

5090Ken Plante, Coordinator

5093Joint Administrative Procedures Committee

5097Room 680, Pepper Building

5101111 West Madison Street

5105Tallahassee, Florida 32399 - 1400

5110(eServed)

5111NOTICE OF RIGHT TO JUDICIAL REVIEW

5117A party who is adversely affected b y this Final Order is

5129entitled to judicial review pursuant to section 120.68, Florida

5138Statutes. Review proceedings are governed by the Florida Rules

5147of Appellate Procedure. Such proceedings are commenced by

5155filing the original notice of administrative ap peal with the

5165agency clerk of the Division of Administrative Hearings within

517430 days of rendition of the order to be reviewed, and a copy of

5188the notice, accompanied by any filing fees prescribed by law,

5198with the clerk of the District Court of Appeal in the appellate

5210district where the agency maintains its headquarters or where a

5220party resides or as otherwise provided by law.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/09/2016
Proceedings: Transmittal letter from Claudia Llado forwarding records to the agency.
PDF:
Date: 03/08/2016
Proceedings: Transmittal letter from Claudia Llado forwarding records to the agency.
PDF:
Date: 08/18/2015
Proceedings: Order Closing File. CASE CLOSED.
PDF:
Date: 08/17/2015
Proceedings: Petitioner's Agreed Motion to Withdraw and Dismiss Petition for Attorney's Fees and Costs filed.
PDF:
Date: 07/07/2015
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for August 31, 2015; 9:00 a.m.; Orlando, FL).
PDF:
Date: 07/01/2015
Proceedings: Petitioner's Motion to Reschedule Hearing on Attorneys' Fees by Video Teleconference filed.
PDF:
Date: 06/30/2015
Proceedings: Order Re-scheduling Hearing on Attorneys' Fees by Video Teleconference (hearing set for July 31, 2015; 9:00 a.m.; Orlando, FL).
PDF:
Date: 06/02/2015
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/02/2015
Proceedings: Notice of Hearing on Attorneys' Fees by Video Teleconference (hearing set for August 4, 2015; 9:00 a.m.; Orlando and Tallahassee, FL).
PDF:
Date: 05/26/2015
Proceedings: Order Denying Respondent`s Motion to Dismiss Petition for Attorney`s Fees and Scheduling.
PDF:
Date: 05/14/2015
Proceedings: Petitioner's Notice of Filing Affidavit of Sandra Ambrose, Esquire, Regarding Reasonableness of Attorney's Fees filed.
PDF:
Date: 05/14/2015
Proceedings: Petitioner's Memorandum of Law in Opposition to Respondent's Motion to Dismiss Petition for Attorney's Fees filed.
PDF:
Date: 05/14/2015
Proceedings: (Respondent's) Motion to Dismiss Petition for Attorney's Fees filed.
PDF:
Date: 05/11/2015
Proceedings: Motion/Petition for Attorney's Fees and Costs and Request for Attorney's Fees and Costs Hearing filed.
PDF:
Date: 04/13/2015
Proceedings: Letter to Judge McArthur from George F. Indest III, enclosing a copy of Final Order filed.
PDF:
Date: 03/10/2015
Proceedings: DOAH Final Order
PDF:
Date: 03/10/2015
Proceedings: Final Order (hearing held January 27, 2015). CASE CLOSED.
PDF:
Date: 03/02/2015
Proceedings: Respondent's Proposed Final Order filed.
PDF:
Date: 02/27/2015
Proceedings: Petitioner's Proposed Final Order filed.
Date: 02/25/2015
Proceedings: Transcript (not available for viewing) filed.
Date: 01/27/2015
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 01/26/2015
Proceedings: Notice of Correction of Typographical Error in Petitioner Hill's Unilateral Pre-hearing Stipulation filed.
PDF:
Date: 01/26/2015
Proceedings: Petitioner's Agreed Motion to Allow Witnesses to Appear Telephonically filed.
PDF:
Date: 01/05/2015
Proceedings: Order Denying Petitioner`s Seventh and Eighth Requests for Official Recognition.
PDF:
Date: 12/18/2014
Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for January 27, 2015; 9:00 a.m.; Orlando, FL).
PDF:
Date: 12/18/2014
Proceedings: Joint Case Status Report filed.
PDF:
Date: 12/16/2014
Proceedings: Order Granting Continuance (parties to advise status by December 19, 2014).
Date: 12/16/2014
Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 12/16/2014
Proceedings: Respondent's Unopposed Motion to Continue filed.
PDF:
Date: 12/16/2014
Proceedings: Petitioner Hill's Unilateral Pre-hearing Stipulation filed.
PDF:
Date: 12/15/2014
Proceedings: (Petitioner's) Notice of Substitution of Counsel (George F. Indest, III) filed.
PDF:
Date: 12/15/2014
Proceedings: Notice of Appearance (Carole Schriefer) filed.
PDF:
Date: 12/15/2014
Proceedings: Notice of Filing Petitioner's Proposed Exhibit List filed.
PDF:
Date: 12/15/2014
Proceedings: Petitioner Hill's Eighth Request for Judicial Notice/Official Recognition and Notice of Filing filed.
PDF:
Date: 12/08/2014
Proceedings: Petitioner Hills Seventh Request for Judicial Notice/Official Recognition and Notice of Filing-Docs-6 filed.
PDF:
Date: 12/08/2014
Proceedings: Petitioner Hills Seventh Request for Judicial Notice/Official Recognition and Notice of Filing-Docs-5 filed.
PDF:
Date: 12/08/2014
Proceedings: Petitioner Hills Seventh Request for Judicial Notice/Official Recognition and Notice of Filing-Docs-4 filed.
PDF:
Date: 12/08/2014
Proceedings: Petitioner Hills Seventh Request for Judicial Notice/Official Recognition and Notice of Filing-Docs-3 filed.
PDF:
Date: 12/08/2014
Proceedings: Petitioner Hills Seventh Request for Judicial Notice/Official Recognition and Notice of Filing-Docs-2 filed.
PDF:
Date: 12/08/2014
Proceedings: Petitioner Hills Seventh Request for Judicial Notice/Official Recognition and Notice of Filing-Docs-1 filed.
PDF:
Date: 12/08/2014
Proceedings: Petitioner Hill's Seventh Request for Judicial Notice/Official Recognition and Notice of Filing filed.
PDF:
Date: 12/05/2014
Proceedings: Order Granting Petitioner`s Sixth Request for Official Recognition.
PDF:
Date: 12/05/2014
Proceedings: Order Granting in Part and Denying in Part Petitioner`s Fifth Request for Official Recognition.
PDF:
Date: 11/25/2014
Proceedings: Petitioner Hill's Sixth Request for Judicial Notice/Official Recognition and Notice of Filing filed.
PDF:
Date: 11/24/2014
Proceedings: Petitioner Hill's Fifth Request for Judicial Notice/Official Recognition and Notice of Filing filed.
PDF:
Date: 11/20/2014
Proceedings: Order Granting Petitioner`s Fourth Request for Official Recognition.
PDF:
Date: 11/12/2014
Proceedings: Notice of Service of Petitioner's First Set of Interrogatories to Respondent filed.
PDF:
Date: 11/12/2014
Proceedings: Petitioner Hill's Fourth Request for Judicial Notice/Official Recognition and Notice of Filing filed.
PDF:
Date: 11/06/2014
Proceedings: Respondent's Response to Petitioner's First Request for Production filed.
PDF:
Date: 11/06/2014
Proceedings: Respondent's Response to Petitioner's First Request for Admissions filed.
PDF:
Date: 11/05/2014
Proceedings: Order Granting Petitioner`s Third Request for Official Recognition.
PDF:
Date: 11/03/2014
Proceedings: Order Granting Petitioner`s Second Request for Official Recognition.
PDF:
Date: 10/31/2014
Proceedings: Order Granting Petitioner`s First Request for Official Recognition.
PDF:
Date: 10/28/2014
Proceedings: Petitioner Hills Third Request for Judicial Notice/Official Recognition filed.
PDF:
Date: 10/24/2014
Proceedings: Petitioner Hill's Second Request for Judicial Notice/Official Recognition filed.
PDF:
Date: 10/23/2014
Proceedings: Petitioner Hill's Corrected First Request for Judicial Notice/Official Recognition filed.
PDF:
Date: 10/23/2014
Proceedings: Petitioner Hill's First Request for Judicial Notice/Official Recognition (not signed) filed.
PDF:
Date: 10/20/2014
Proceedings: Petitioner Hill's Amended First Request for Admissions filed.
PDF:
Date: 10/20/2014
Proceedings: Order Denying Motion for Summary Final Order.
PDF:
Date: 10/17/2014
Proceedings: Petitioner's Opposition to Respondent's Motion for Summary Final Order filed.
PDF:
Date: 10/17/2014
Proceedings: Petitioner Hill's First Request for Production filed.
PDF:
Date: 10/17/2014
Proceedings: Petitioner Hill's First Request for Admissions filed.
PDF:
Date: 10/16/2014
Proceedings: Order Granting Second Extension of Time.
PDF:
Date: 10/15/2014
Proceedings: Petitioner Hill's Unopposed Motion for Extension of Time to Respond to Respondent Board of Nursing's Motion for Summary Final Order filed.
PDF:
Date: 10/14/2014
Proceedings: Order Granting Extension of Time.
PDF:
Date: 10/13/2014
Proceedings: Petitioner Hill's Unopposed Motion for Extension of Time to Respond to Respondent Board of Nursing's Motion for Summary Final Order filed.
PDF:
Date: 10/07/2014
Proceedings: (Respondent's) Motion for Summary Final Order filed.
PDF:
Date: 10/07/2014
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for December 17, 2014; 9:00 a.m.; Orlando, FL).
PDF:
Date: 10/06/2014
Proceedings: Petitioner Hill's Notice of Mutually Agreeable Dates for Rescheduling of Final Hearing filed.
PDF:
Date: 10/03/2014
Proceedings: Petitioner Hill's Unopposed Motion for Continuance filed.
PDF:
Date: 09/26/2014
Proceedings: Notice of Appearance (Lee Ann Gustafson) filed.
PDF:
Date: 09/26/2014
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 09/26/2014
Proceedings: Notice of Hearing by Video Teleconference (hearing set for October 15, 2014; 9:00 a.m.; Orlando and Tallahassee, FL).
PDF:
Date: 09/26/2014
Proceedings: Notice of Transfer.
PDF:
Date: 09/25/2014
Proceedings: Notice of Appearance (Rachel Clark) filed.
PDF:
Date: 09/25/2014
Proceedings: Order of Assignment.
PDF:
Date: 09/25/2014
Proceedings: Rule Challenge transmittal letter to Liz Cloud from Claudia Llado copying Ken Plante and the Agency General Counsel.
PDF:
Date: 09/25/2014
Proceedings: Petition to Determine the Invalidity of Existing "Non-Rule" Agency Policy filed.

Case Information

Judge:
F. SCOTT BOYD
Date Filed:
09/25/2014
Date Assignment:
09/25/2014
Last Docket Entry:
03/09/2016
Location:
Orlando, Florida
District:
Middle
Agency:
Department of Health
Suffix:
RU
 

Counsels

Related Florida Statute(s) (10):