16-006663RX Nicole Yontz, Od And Tammy Johnson, Od vs. Department Of Health, Board Of Optometry Status: Closed DOAH Final Order on Friday, April 14, 2017.

Summary: Petitioners demonstrated that the rule's look-back period for test scores is an invalid exercise of delegated authority in violation of section 120.52(8)(b) and (c).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NICOLE YONTZ, O . D . , AND TAMMY

JOHNSON, O . D . ,

Petitioners,

vs. Case No. 16 - 6663RX

DEPARTMENT OF HEALTH, BOARD OF

OPTOMETRY,

Respondent ,

and

FLORIDA OPTOMETRIC ASSOCIATION,

Intervenor.

______________ _________________/

FINAL ORDER

This cause is before Administrative Law Judge Lisa Shearer

Nelson on Petitioners Ó and Respondent Ó s Joint Motion to Cancel

Hearing and Submit Documentary Evidence and Proposed Orders. At

the ir req uest, this Final Order is being issued based upon

consideration of a stipulated record and the Proposed Final

Orders.

APPEARANCES

For Petitioner s : Mia L. McKown, Esquire

Holland & Knight , LLP

315 South Calhoun Street, S uite 600

Tallahassee, Florida 32301

For Respondent: Lee Ann Gustafson, Esquire

Lawrence D. Harris, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

For Intervenor: Stephen Allen Meck, Esquire

Leonard A. Carson, Esquire

Carson and Adkins

2930 Wellington Circle, Suite 201

Tallahassee, Florida 32309

STATEM ENT OF THE ISSUE

The issue to be determined is whether Florida Administrative

Code Rule 64B13 - 4.001 (the Rule) , adopted by the Florida Board of

Optometry (the Board), is an invalid exercise of delegated

legislative authority .

PRELIMINARY STATEMENT

On Nov ember 14, 2 01 6, Petitioners , Nicole Yontz, O.D., and

Tammy Johnson, O.D., filed a Petition to Invalidate Florida Board

of Optom etry Rule 64B13 - 4.001 , Florida Administrative Code ( the

Petition) , asserting that the Rule is invalid because it violates

section 120.52(8), Florida Statutes (2016) . The P etition

challenges the requirement in the Rule that in order for an

applicant to be eligible for licensure as an optometrist in

Florida , the applicant must have passed the National Board of

Examiners in Optometry Exam ination (NBEO exam) within a seven -

year period immediately preceding the application for licensure.

On November 16, 2016, the case was assigned to

Administrative Law Judge Lynne A. Quimby - Pennock, who promptly

scheduled it for hearing on December 9, 2016. That same day, the

Florida Optometric Association (Intervenor) filed a Motion to

Intervene and asserted that its position is aligned with that of

the Board. On November 17, 2016, Judge Quimby - Pennock granted

the Motion to Intervene and stated that the Intervenor would take

the case as it found it.

On November 21, 2016, Petitioners filed an Unopposed Motion

for Continuance. On November 22, 2016, Petitioner s filed a

Motion to Consolidate, requesting that this case be consolidated

with Tammy Johnson v . Florida Board of Optometry , Case

No. 16 - 5655, and Nicole Yontz v. Florida Board of Optometry and

the Florida Optometric Association , Case No. 16 - 6123, case s in

which Petitioners individually were challenging the Board Ó s

denial of their requests for waiv er of the R ule. After a

telephonic motion hearing conducted on November 22, 2016,

Judge Quimby - Pennock granted the request for continuance , and the

case was rescheduled for February 21, 2017. On November 30,

2016, she entered an Order denying the Motion to Consolidate.

On February 9, 2017, the case was transferred to

Administrative Law Judge Lisa Shearer Nelson , and the parties

were notified of the transfer. On February 17, 2017, Intervenor

filed a unilateral Pre - hearing Statement. Petitioner s and

Respo ndent filed a Joint Pre - hearing Stipulation that contained

stipulated findings of fact for which no additional evidence was

required , and those findings have been incorporated into the

findings below. 1/ T hat same day, Petitioner s and Respondent filed

a Jo int Motion to Cancel Hearing and Submit Documentary Evidence

and Proposed Final Orders. In this motion, Petitioners and the

Board agreed that there are no material facts in dispute which

require proof by live hearing, and that therefore , there is no

need to conduct the hearing as scheduled. They agreed that all

evidence and exhibits, along with proposed final orders, would be

submitted no later than March 10, 2017.

Interv enor did not join in the motion. In its separate Pre -

h earing S tatement, it stated th at it Ð believes that, while there

is no dispute as to the sources of relevant evidence, the

proposed stipulation of fact does not address the universe of

evidence to be derived from the agreed upon documentary sources. Ñ

Intervenor did not identify any wit nesses or exhibits that it was

seeking to introduce that were not already identified as being

witnesses or exhibits presented by Petitioners and the Board.

Accordingly, on February 20, 2017, an Order Granting Joint Motion

to Cancel Hearing and Submit Docu mentary Evidence and Proposed

Final Orders was entered, and the parties were given, as

requested, until March 1 0, 2017, to submit documentary evidence

and their proposed final orders.

The e xhibits for both parties were filed on March 8, 2017,

consisting of Joint Exhibits 1 through 29 , and the depositions of

Ja ck Terry and Terrance Naberhaus . The two depositions were not

pre - numbered, but for the sake of clarity, are considered as

Joint Exhibits 30 and 31, respectively. Proposed Final Orders

were timely fi led on March 10, 2017, with Petitioner s filing a

Corrected Proposed Final Order on March 13, 2017.

On March 16, 2017, Intervenor filed a Motion to Strike and

for Partial Dismissal, contending that those portions of

Petitioners Ó Proposed Final Order referen cing section

120.52(8)(b) should be stricken because no reference to this

particular subsection was included in the Petition. Petitioner s

responded in opposition to the motion, and Intervenor sought

leave to file a reply (to which Petitioner s also respond ed in

opposition). On March 22, 2017, an Order on Pending Motions was

issued denying both the motion to strike and the motion for leave

to file a reply .

All of the Proposed Final Orders have been considered in the

preparation of this Final Order. All ref erences to the Florida

Statutes are to the 2016 codification unless otherwise indicated.

FINDING S OF FACT

1. Petitioner Nicole Yontz, O.D. (Dr. Yontz) , is a graduate

of the I nter - American University of Puerto Rico , School of

Optometry. Dr. Yontz passed a ll parts of the NBEO exam in 2007 ,

and has practiced as an optometrist in Nevada for approximately

eight years.

2. Petitioner Tammy Johnson, O.D. (Dr. Johnson) , graduated

from Indiana University and passed all parts of the NBE O exam in

1998. She practice d in Michigan from 1998 through 2003, and in

Indiana from 2003 through 2016.

3 . The Board is the state agency charged with the

regulation of the practice of optometry in the State of Florida

pursuant to chapter 463, Florida Statutes.

4 . Intervenor, F lorida Optometric Association (FOA) , is a

non - profit organization of approximately 3 , 300 members.

Approximately 1 , 700 Florida - licensed optometrists are members of

FOA, and the parties do not dispute that FOA has standing to

participate in this proceeding.

5 . Petitioners each desire to practice optometry in the

State of Florida. For purposes of this rule challenge,

Petitioners are Ð substantially affected Ñ by the challenged rule,

as required by section 120.56 (1) (a) .

6 . Each of the Petitioners sought a wai ver from the

requirements of the Rule in order to proceed through the

licensure process. The Board considered Dr. Johnson Ó s Petition

for Waiver on February 26 , 2016, and despite its counsel Ó s

recommendation to approve the request for waiver, the Board

den ied the Petition. It issued a Notice of Petition for Waiver

and Variance to that effect on March 14, 2016, stating that

Dr. Johnson had failed to establish that the purpose of the R ule

would be achieved by other means; that application of the R ule

would c ause a substantial hardship; or that requiring adherence

to the R ule would violate the principles of fairness.

7 . The Board considered Dr. Yontz Ó s Petition for Waiver on

August 19, 2016, and denied it as well. A Notice of Petition for

Waiver and Varian ce was filed to that effect on September 16,

2016, citing the same reasons that were included in the Notice

addressing Dr. Johnson Ó s P etition for Waiver , which are the

statutory criteria for consideration of a waiver or variance

pursuant to section 120.542 . The position taken by the Board is

consistent with its resolution of a number of other pe titions for

variance or waiver of the Rule considered by the Board.

8 . In order to be eligible to practice optometry in

Florida, under the terms of the Rule as it now exists, both

Petitioners would be required to retake the NBEO exam .

9 . The rule at issue in this proceeding is Florida

Administrative Code Rule 64B13 - 4.001, quoted below, with the

language that is the subject of the challenge underlined :

(1) The lic ensure examination authorized in

Section 463.006(2), F.S., shall consist of

the following parts:

(a) Part I Î the Applied Basic Science (ABS)

portion of the examination developed by the

National Board of Examiners in Optometry

(NBEO);

(b) Part II Î the Patient Assessment and

Management (PAM) portion of the examination

developed by the NBEO which includes an

embedded Treatment and Management of Ocular

Disease (TMOD) examination. An applicant for

licensure in Florida must obtain a passing

score on the TMO D section of the examination;

(c) Part III Î the Clinical Skills (CSE)

portion of the examination developed by the

NBEO. In addition to an overall passing

score on the CSE portion, an applicant for

licensure in Florida must obtain a score of

75 percent ( 75%) or better on each of the

Biomicroscopy, Binocular Indirect

Ophthalmoscopy, and Dilated Biomicroscopy and

Non - Contact Fundus Lens Evaluation skills

individually; and

(d) Part IV Î a written examination on

applicable Florida laws and rules governing

th e practice of optometry developed yearly by

Florida Board of Optomety approved

consultants in conjunction with NBEO, and

administered by NBEO. The Board shall review

and approve the content of the laws and rules

examination annually.

(2) An applicant for licensure must achieve

a passing score on all four parts of the

licensure examination. For Part III, an

applicant must receive an overall passing

score on the CSE, as well as the required

score of 75 percent (75%) or better on each

of the three (3) indiv idually identified

skills, on the same test attempt. A score of

84 percent (84%) or better must be obtained

in order to achieve a passing score on Part

IV of the licensure examination. Passing

scores for Part I, Part II, and Part III of

the licensure exa mination are established by

the NBEO. Given constant advances in

research, developing knowledge in the area of

basic and clinical science as applied to the

diagnosis, correction, remedy, and relief of

insufficiencies or abnormal conditions of the

human ey es and their appendages, variances

the scope of optometric practice among the

states, and the importance of fundamental

clinical skills to patient health and safety,

passing scores on Part I, Part II, Part III

and Part IV of the licensure examination must

be obtained within the seven (7) year period

immediately preceding licensure application.

(3) Certification Examination. A licensee

applying for certification must obtain a

passing score on either the TMOD examination

embedded in the Patient Assessment a nd

Management portion of the examination

developed by the NBEO or a passing score on

the stand alone TMOD examination developed by

the NBEO.

1 0 . The Rule requires that an applicant for licensure must

achieve passing scores on Part s I, II, III, and IV of the

licensure examination within the seven - year period immediately

preceding licensure application. The seven - year requirement is

referred to as the Ð look - back period. Ñ

1 1 . Petitioners are not challenging the authority of the

Board to require passage of Part IV of the examination. The

challenge is directed to the authority of the Board to require

the look - back period.

1 2 . The Rule has contained a look - back period since at

least 1979. It has been, at various times, eight years, seven

years, and five yea rs.

The Licensure and Examination Process for Optometry in Florida

1 3 . There is no statutory provision in chapter 463 that

authorizes licensure of optometrists who are licensed in other

states to obtain a license in Florida by endorsement.

1 4 . In order f or a person to practice optometry in Florida,

he or she must apply for licensure under the process required by

section 463.006. This provision expressly requires those who

desire to become licensed in Florida Ð shall apply to the

department to take the lic ensure and certification examinations . Ñ

(emphasis added). Applicants must be at least 18 years of age ,

graduate from an accredited school or college of optometry

approved by rule of the Board , be of good moral character , have

completed at least 110 hours of transcript - quality course work

and clinical training in general and ocular pharmacology under

certain delineated requirements , and have completed at least one

year of supervised experience . With respect to the examination,

section 463.006 provides tha t the B oard may b y rule substitute a

national examination, and may by rule offer a practical

examination in addition to the written examination.

Section 463.006(3) provides that Ð [e]ach applicant who

successfully passes the examination and otherwise meets the

requirements of this chapter is entitled t o be licensed as a

practitioner. Ñ

State or National Examination

1 5 . Section 463.006 allows the Board to adopt a rule that

provides for the substitut ion of a national examination as all or

part of the examinat ion. Section 456.017 (1)(c)4. , Florida

Statutes, which is included in the provision that governs the

Department of Health Ó s responsibilities with respect to

examinations, specifies that it is the intent of the Legislature

to reduce the costs associated wit h state examinations and to

encourage the use of national examinations whenever possible.

1 6 . Consistent with this legislative directive, t he

Department of Health has certified a national examination, and no

longer supports a state - developed practical e xamination for

optometry . The Board has designated Parts I, II, and III of the

National Board Examinations offered by the NBEO as three of the

four parts of the Florida licensure examination. Part IV is an

examination on Florida laws and rules and also i s offered by

NBEO, but is only taken by applicants for licensure in Florida.

The Rule was amended , effective February 27, 2014, to establish

this change in examinations.

1 7 . The NBEO was established in 1951 and is an independent,

non - governmental, non - pr ofit organization that administers the

standard N ational B oard E xaminations, which are designed to test

minimum competency of students. S ince August 2011, s tudents

taking the clinical portion of the exam (Part III) take the

examination in a controlled env ironment in North Carolina at

NBEO Ó s testing location, as opposed to various locations across

the country. Students may begin taking the examinations in their

third or fourth year of optometry school. The NBEO national

examinations are not really Ð geared Ñ for individuals who are

already practicing optometry.

1 8 . Parts I, II, and III of the N ational B oard E xaminations

offered by the NBEO are a Ð national examination Ñ as that term is

used in section 456.017(1). Because of the way the NBEO Part III

is admin istered in North Carolina, the Department has , in effect ,

delegated both the development and the administration of the

examination to NBEO.

19 . Although the Board required passage of a Florida -

specific practical examination prior to 2014, neither the Boar d

nor the Department of Health currently offers a State of Florida

specific practical examination.

The Statutory Authority for the Rule

2 0 . The Rule cites as its rulemaking authority sections

456.017(1), 463.005, and 463.006(2).

2 1 . The R ule cites as i ts law implemented sections

456.017(1) and 463.006(2).

2 2 . Section 456.017(1) provides:

(1)(a) The department shall provide,

contract, or approve services for the

development, preparation, administration,

scoring, score reporting, and evaluation of

all examinations , . . . .

(b) For each examination developed by the

department or contracted vendor, to the

extent not otherwise specified by statute,

the board , or the department when there is no

board, shall by rule specify the general

areas of competency to be covered by each

examination, the relative weight to be

assigned in grading each area tested, and the

score necessary to achieve a passing grade .

. . . If a practical examination is deemed

to be necessary, the rules shall specify the

criteria by which examiners are to be

selected, the grading criteria to be used by

the examiner, the relative wei ght to be

assigned in grading each criterion, and the

score necessary to achieve a passing grade.

When a mandatory standardization exercise for

a practical examination is required by law,

the board, or the department when there is no

board, may conduct su ch exercise. . . .

(c) The board, or the department when there

is no board, shall approve by rule the use of

one or more national examinations that the

department has certified as meeting

requirements of national examinations and

generally accepted testing standards pursuant

to department rules .

1. Providers of examinations seeking

certification shall pay the actual costs

incurred by the department in making a

determination regarding the certification.

The name and number of a candidate may be

provided to a national contractor for the

limited purpose of preparing the grade tape

and information to be returned to the board

or department; or, to the extent otherwise

specified by rule, the candidate may apply

directly to the vendor of the national

examination and supply test score i nformation

to the department. The department may

delegate to the board the duty to provide and

administer the examination. Any national

examination approved by a board, or the

department when there is no board, prior to

October 1, 1997, is deemed certifi ed under

this paragraph.

2. Neither the board nor the department may

administer a state - developed written

examination if a national examination has

been certified by the department. The

examination may be administered

electronically if adequate security measures

are used, as determined by rule of the

department.

3. The board, or the department when there

is no board, may administer a state - developed

practical or clinical examination, as

required by the applicable practice act, if

all costs of development , purchase,

validation, administration, review, and

defense are paid by the examination candidate

prior to the administration of the

examination. If a national practical or

clinical examination is available and

certified by the department pursuant to this

section, the board, or the department when

there is no board, may administer the

national examination.

4. It is the intent of the Legislature to

reduce the costs associated with state

examinations and to encourage the use of

national examinations whenever possible.

(d) Each board, or the department when there

is no board, shall adopt rules regarding the

sec urity and monitoring of examinations. The

department shall implement those rules

adopted by the respective boards. In order

to maintain the security of examinations, the

department may employ the procedures set

forth in s. 456.065 to seek fines and

injunctive relief against an examinee who

violates the provisions of s. 456.018 or the

rules adopted pursuant to this

paragraph. . . .

* * *

(f) The department may adopt rules necessary

to administer this subsection.

(emp hasis added).

2 3 . Section 463.005 provides in pertinent part :

( 1) The Board of Optometry has authority to

adopt rules pursuant to ss. 120.536(1) and

120.54 to implement the provisions of this

chapter conferring duties upon it. Such

rules shall include , but not be limited to,

rules relating to:

(a) Standards of practice, including but not

limited to, those provided for in s.

463.0135.

(b) Minimum equipment which a licensed

practitioner shall at all times possess to

engage in the practice of optometry.

(c) Minimum procedures which shall

constitute a visual examination.

(d) Procedures for the safekeeping and

transfer of prescription files or case

records upon the discontinuation of practice.

(e) Supervision of supportive personnel.

(f) Courses and pr ocedures for continuing

education.

(g) Administration and prescription of

ocular pharmaceutical agents.

2 4 . Section 463.006(2) provides:

The examination shall consist of the

appropriate subjects, including applicable

state law and rules and general and ocular

pharmacology with emphasis on the use and

side effects of ocular pharmaceutical

agents. The board may by rule substitute a

national examination as part or all of the

examination and may b y rule offer a

practical examination in addition to the

writ ten examination.

2 5 . There is nothing in any of these statutory provisions

that expressly authorizes the B oard to specify a time frame for

taking the national examination prior to the time an application

for licensure is filed.

2 6 . The R ule cites as a r ationale for requiring the look -

back period: constant advances in research; developing knowledge

in the area of basic and clinical science as applied to the

diagnosis, correction, remedy, and relief of insufficiencies or

abnormal conditions of the human e yes and their appendages;

variances in the scope of optometric practice among the states;

and the importance of fundamental clinical skills to patient

health and safety.

2 7 . In addition to the bases enunciated in the R ule, the

purpose of the R ule is to en sure applicants are minimally

competent to practice optometry with reasonable skill and safety.

When the Board has been faced with petitions for variance and

waiver seeking a waiver of the Rule Ó s look - back provision, Board

members have consistently focuse d on their desire to protect the

health, safety, and welfare of the public by ensuring that

optometrists in Florida are well qualified and up to date in

their skills.

2 8 . Since 2007, the Board has held multiple workshops and

public hearings regarding the Rule, with the most recent

occurring on May 13, 2016. The Rule is currently open for

development, although the Board has not yet proposed any

additional language.

29 . The Rule Ó s adoption history indicates that it has been

amended multiple times over the years , most recently in 1999,

2002, 2004, 2010, 2011, 2012, 2014 , and 2015. During the review

of these amendments , the evidence presented did not indicate that

the Joint Administrative Procedures Committee staff ever

questioned the look - back language. Wh ile this information is

evidence that can be considered in determining the validity of

the look - back period, it is not dispositive. Two different

attorneys serving as Board counsel ha ve , by contrast , advised the

Board that they did not believe that the Bo ard has statutory

authority for the look - back period contained in the Rule.

Moreover, Terrance Nuberhaus, a former Board member now serving

on the Board Ó s probable cause panel , could not identify any

statute expressly providing authority for the Board to limit the

acceptability of NBEO scores to any particular time frame.

Equivalency Standards for the NBEO Exam

3 0 . NBEO exam s have been revised over time. A copy of the

NBEO equivalency statement is identified as Petitioners Ó

Exhibit 17, and Petitioner s an d Respondent agreed that this

statement is considered an Ð adjunct to the deposition of Dr. Jack

Terry. Ñ

3 1 . The NBEO takes into account the revisions when

determining whether a revised examination is equivalent to prior

versions of the NBEO exam s.

3 2 . Th e Board has recognized that the Part I and Part II

N ational B oard E xaminations administered in 1991 are comparable

to the Part I and Part II N ational B oard E xaminations

administered today.

3 3 . The NBEO has developed equivalency statements which

apply to a ny candidate who is attempting to complete the current

three - part sequence of the NBEO exam , but who began the sequence

under an earlier format. The purpose of equivalency is to keep

the examinations equivalent , regardless of when the test was

administere d, and to reduce confusion and create a level of

consistency , so that people can easily interpret and compare the

results.

3 4 . The fact that NBEO has developed equivalency statements

does not mean that the content of the examinations has remained

static over time. Dr. Jack Terry, the Executive Director of

NBEO, also testified that the skills evaluated in Part III of the

test have changed over the years:

Q. As to Part III, basically since 1993, am

I correct that the main thing that has been

added is a s ection dealing with injections?

A. No. Since 1993, there have been many

changes to the skills that have been added

and some that have been taken away. I don Ó t

have a full comprehensive list of those

changes and when they occurred.

For example, bino cular ophthalmoscopy, I

think, was added at some later point. Blood

pressure measurements, I think, were added.

A fundus contact lens evaluation was added.

Punctal plugs and punctal plug insertion

removal was added later on. Injections, as

you indicate d, was added later on. So there

have been Î and the purpose of the Part III

Committee and Council is to look ever y

year at the skills, currently there are

20 different skills, and to make sure that

the Committee, the groups that give the

National Board in put are still comfortable

with the 20 skills. Should it be increased.

Should it be decreased.

A few years ago, visual fields,

confrontational visual fields were added.

Just a small change. A few years ago

saccadic eye movements were added to the

exa m. So there have been changes to the

exam.

It Ó s hard for me to say which one has been

the biggest or the most or most profound. I

think the changes have all been important.

Q. But as far as the changes with additions

or deletions, that has all bee n taken into

account when the NBEO has determined its

equivalency?

* * *

A. Yes, that Ó s all been taken into

consideration in terms of the equivalence.

CONCLUSIONS OF LAW

3 5 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with s ections 120.56, 120.569 , and

120.57(1), Florida Statutes.

Standing

3 6 . Petitioner s and Intervenor have standing to participate

in this case . Section 120.56 allows a person who is

substantially af fected by a rule or agency statement to initiate

a challenge. To establish standing under the Ð substantially

affected Ñ test, generally a party must demonstrate that: 1) the

rule will result in a real and immediate injury in fact, and

2) the alleged inter est is within the zone of interest to be

protected or regulated. Jacoby v. Fl a . Bd . of Med . , 917 So. 2d

358 (Fla. 1st DCA 2005); see also Fl a. Bd. of Med . v. Fl a. Acad .

of Cosmetic Surgery , 808 So. 2d 243, 250 (Fla. 1st DCA 2002),

superseded on other grou nds , Dep Ó t of Health v. Merritt , 919 So.

2d 561 (Fla. 1st DCA 2006) .

3 7 . Petitioners have established that they are both

optometrists who are licensed in other states, but are precluded

from licensure in Florida unless the y take and pass the NBEO exam

a s econd time because their passing scores are more than seven

years old. Petiti oners are , therefore , substantially affected by

the look - back period contained in the Rule.

3 8 . With respect to associational standing, the Supreme

Court of Florida has stated t hat to meet the requirements of

section 120.56(1), an association must demonstrate that a

substantial number of its members, although not necessarily a

majority, are Ð substantially affected Ñ by the challenged rule.

The subject matter of the rule must be w ithin the association Ó s

general scope of interest and activity, and the relief requested

must be of the type appropriate for a trade association to

receive on behalf of its members. NAACP, Inc. v. Bd. of Regents ,

863 So. 2d 294, 298 (Fla. 2003); Fla . Home Builders Ass Ó n v.

Dep Ó t of Labor & Emp. Sec. , 412 So. 2d 351 (Fla. 1982). That

standard has been met here , and the parties do not dispute

Intervenor Ó s standing to participate in this proceeding .

39 . Petitioners are challenging an existing, as opposed to

a proposed, rule. Section 120.56(3) requires Petitioner s to

prove by a preponderance of the evidence that the existing r ule

is an invalid exercise of delegated legislative authority as to

the objections raised.

The Scope of Petitioners Ó Challenge to the Rule

4 0 . As a preliminary matter, it is necessary to determine

the scope of Petitioners Ó challenge to the Rule.

41. Section 120.52(8) defines Ð invalid exercise of

delegated legislative authority. Ñ It provides:

(8) Ð Invalid exercise of delegated

legis lative authority Ñ means action that goes

beyond the powers, functions, and duties

delegated by the Legislature. A proposed or

existing rule is an invalid exercise of

delegated legislative authority if any one of

the following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54 (3)(a)1.;

(c) The rule enlarges, modifie s, or

contravenes the specific provisions of law

implemented, citation to which is required by

s. 120.54 (3)(a)1.;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or

(f) The rule imposes regulatory costs on the

regulated person, c ounty, or city which could

be reduced by the adoption of less costly

alternatives that substantially accomplish

the statutory objectives.

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

the specific 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 purpos e of the

enabling legislation and is not arbitrary and

capricious or is within the agency Ó s class of

powers and duties, nor shall an agency have

the authority to implement statutory

provisions setting forth general legislative

intent or policy. Statutory language

granting rulemaking authority or generally

describing the powers and functions of an

agency shall be construed to extend no

further than implementing or interpreting the

specific powers and duties conferred by the

enabling statute.

42. It is cle ar that Petitioners are challenging the Rule

on the basis of subsections (c), (d), and (e) , as those

subsections are expressly cited in the Petition . What must be

determined from the face of the Petition is whether Petitioners

are also challenging the Rul e on the basis of subsection (b). It

is found that a challenge under subsection (b) is included within

the Petition .

43. The Petition does not expressly cite to subsection (b),

which provides that it is an invalid exercise of delegated

legislative author ity where Ð [t] he agency has exceeded its grant

of rulemaking authority, citation to which is required by

s. 120.54 (3)(a)1. Ñ While the Petition does not expressly cite to

subsection (b), the allegations clearly reflect the language of

the subsection. For example, the heading at page 7 states, Ð The

Board has Exceeded its Rulemaking Authority. Ñ Other portions of

the Petition state , in pertinent part:

20. While the Board has the authority to

substitute a national exam and can offer a

practical exam in addit ion, there is no

authority for the Board to add additional

conditions that the national examination be

taken within any particular time frame . . . .

Importantly, the Florida Legislature did not

give the Board the authority to set those

parameters. . . . A ccordingly, the Rule is

an invalid exercise of delegated legislative

authority.

* * *

25. By enacting a rule that creates a

requirement that the NBEO exam be passed

within seven years immediately preceding the

application for licensure . . . the Boa rd has

exceeded its rulemaking authority because

there is no specific law being implemented

and the Rule does not implement or interpret

any specific power or duties.

26. . . . [n]one of the statutory provisions

identified by the Board grant or authorize

the Board to exclude a passing score on the

NBEO, which is the national examination that

has been accepted as a substitute for the

examination. Again, the absence of a

statutory directive clearly demonstrates that

there is no authority for the Board to ad d

additional conditions that mandate the

national examination be taken within any

particular time frame. . . .

* * *

31. . . . The ultimate facts of which

Petitioners are aware at this time include,

but are not limited to:

a) Whether the Board had rulemaking

authority to enact the Rule.

b) Whether the Rule is an invalid exercise

of delegated legislative authority.

(emphasis added).

44. Petitioners and Respondent also participated in the

preparation of a Joint Pre - hearing Stipulation which iden tifies

the concise statement of the nature of the controversy and the

issues of law to be determined. Intervenor filed a separate Pre -

hearing Statement, notwithstanding that the Order of Pre - hearing

Instructions did not authorize unilateral statements , an d was

served with the Joint Pre - hearing Stipulation prepared by

Petitioners and Respondent . In the Pre - hearing Stipulation filed

by Petitioners and Respondent, the Issues of L aw to be determined

are as follows:

1. Whether the Board has exceeded its

rulem aking authority by enacting the Rule

that creates a requirement that the NBEO exam

be passed within seven years immediately

preceding the application for licensure [to]

the Board.

2. Whether the Rule, which creates a

requirement that the NBEO exam be pass ed

within seven years immediately preceding the

application for licensure [to] the Board,

implements or interprets any specific power

or duties granted to the Board.

3. Whether the Rule gives effect to a

specific law to be implemented.

4. Whether the R ule implements or interprets

specific powers and duties granted to the

agency.

5. Whether Rule 64B13 - 4.001 enlarges,

modifies, or contravenes the specific

provisions of the rulemaking authority or law

implemented.

6. Whether Rule 64B13 - 4.001 is vague, fails

to establish adequate safeguards for agency

decisions, or vests unbridled discretion in

the agency.

7. Whether Rule 64B13 - 4.001 is arbitrary or

capricious.

(emphasis added).

45. Intervenor contends that Petitioners did not allege

that the Rule v iolates section 120.58(2)(b), and that any

assertion in Petitioners Ó Proposed Final Order should be

stricken.

46. Intervenor Ó s argument is premised upon the failure to

specifically cite to section 120.52(8)(b), notwithstanding

repeated references to th e specific language of subsection (b)

noted above . Clearly, an express citation to section

120.53(8)(b) would have simplified matters for all. However,

given the allegations in the Petition and the statement of issues

for consideration contained in Petit ioners Ó and Respondent Ó s Pre -

hearing Stipulation, it cannot be said that any party, including

Intervenor, is embarrassed in its defense to the allegation that

the Board exceeded its rulemaking authority in adopting the look -

back period . Fla . Bd . of Pharma cy v. Levin , 190 So. 2d 768, 770

(Fla. 1966) (reference to statutory section that did not exist

not fatal: technical niceties based upon obvious mistakes and

mis - references that do not mislead or result in manifest

unfairness are not grounds for overturni ng administrative

determinations); Sanabria v. Pennymac Mortg. Invust

Holdings I, LLC , 197 So. 3d 94, 97 (Fla. 2d DCA 2016) (whether

under a general or heightened standard of pleading, Defendants Ó

defense that the signature on a note was not authentic was

adequately pleaded ); Werner v. Dep Ó t of Ins. & Treas . , 689 So. 2d

1211 (Fla. 1st DCA 1997) (where Administrative C omplaint alleged

factual chron ology of transaction at issue, cannot say licensee

was embarrassed in the preparation of her defense); Univ . Cmty.

Hosp. v. Dep Ó t of H ealth & Rehab ilitative Servs. , 610 So. 2d

1342 , 1346 (Fla. 1st DCA 1992) (while failure to plead an issue

usually precludes a ruling on the issue, rules of pleading are

not applied in administrative proceedings as strictly as they are

in court proceedings) ; b ut see , Aloha U tils., Inc. v. P ub. S erv.

C ommÓn , 723 So. 2d 919, 921 (Fla. 1st DCA 1999) (pleading that

failed to identify the specific statements of procedure subject

to challenge was fatal to challenge pursuant to section

120 .56(4)(a)); and Cottril l v. Dep Ó t of Ins. , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996) ( where Administrative Complaint did not

allege any facts to support statutory references, it did not

afford reasonable notice of the facts or conduct at issue).

Here, the allegations clearly included the facts to support a

violation of section 120.52(8)(b), as well as parroting the

language of the subsection itself. The issue is adequately

presented to place all parties on notice that whether the Board

exceeded its statut ory authority is at the heart of Petitioners Ó

challenge.

4 7 . While this Final Order contains analysis with respect

to a violation of section 120.52(8)(b), much of that discussion

applies equally to a violation of section 120.52(8)(c ). Inasmuch

as the co nclusion is the same with respect to both subsections,

an argument that one is pleaded and the other is not makes no

difference in the result reached in this Final Order.

Whether the Rule Exceeds the Board Ó s Rulemaking Authority

4 8 . Petitioners assert th at the Rule is invalid because it

exceeds the Board Ó s grant of rulemaking authority, citation to

which is required by s ection 120.54(3)(a)1., by attempting to

limit the length of time an applicant Ó s scores for the NBEO exam

may be accepted.

49 . The crux of Petitioners Ó argument with respect to

section 120.52(8)(b), is that the grant of rulemaking authority

pursuant to section s 456.017(1), 463.005, and 463.006(2) , is not

sufficient authority to establish the look - back period with

respect to the NBEO exam . Respondent and Intervenor, on the

other hand, insist that there is Ð ample statutory authority Ñ for

the R ule .

5 0 . One of the more recent cases interpreting the standards

related to rulemaking authority is United Faculty of Florida v.

Florida State Board of Education , 157 So. 2d 514, 516 - 517 (Fla.

1st DCA 2015). In that case, the State Board of Education

adopted a rule that established standards and criteria for

continuing contracts with full - time faculty members employed by

Florida College System institu tions. The First District stated:

A rule is invalid under section 120.52(8)(b)

if the agency Ð exceed[s] its grant of

rulemaking authority. Ñ A grant of rulemaking

authority is the Ð statutory language that

explicitly authorizes or requir es an agency

to ado pt [a rule]. Ñ § 120.52(17), Fla. Stat.

The scope of an agency Ó s rulemaking authority

is co n strained by section 120.536(1) and the

so - called Ð flush - left paragraph Ñ in section

120.52(8), which provide that an agency may

only adopt rules to Ð implement or in terpret

the specific powers and duties granted by the

[agency Ó s] enabling statute Ñ ; that an agency

may not adopt rules to Ð implement statutory

provisions setting forth general legislative

intent or policy Ñ or simply because the rule

Ð is reasonably related to the purpose of the

enabling legislation and is not arbitrary o r

capricious or is within the agency Ó s class of

powers and duties Ñ ; and that Ð [s]tatutory

language granting rulemaking authority or

generally describing the powers and functions

of an agency shall be construed to extend no

further than implementing or interpreting the

specific powers and duties conferred by the

enabling statute. Ñ

Section 120.536(1) and the flush - left

paragraph in section 120.52(8) require a

close examination of the statutes c ited by

the agency as authority for the rule at issue

to determine whether those statutes

explicitly grant the agency authority to

adopt the rule. As this court famously

stated in [Southwest Florida Water Management

District v. ] Save the Manatee Club[, In c. ,

the

question is Ð whether the statute contains a

specific grant of legislative authority for

the rule, not whether the grant of authority

is specific enough . Either the enabling

statute authorizes the rule at issue or it

does not. Ñ 773 So. 2d at 599 (emphasis in

original). Accord Bd. of Trs. of the

Internal Improvement Trust Fund v. Day Cruise

Ass Ó n, Inc. , 794 So. 2d 696, 700 (Fla. 1st

DCA 2001) ( Ð [A]gencies have rulemaking

authority only where the legislature has

enacted a specific statute, and authorized

the agency to implement it. . . . Ñ ) ; see also

Fla. Elections Comm Ó n v. Blair , 52 So. 3d 9,

12 - 13 (Fla. 1st DCA 2010) (explaining that

the definition of Ð rulemaking authority Ñ in

section 120.52(17) does not further restrict

agency rulemaking authority beyond what is

contained in the flush - left paragraph in

section 120. 52(8), as construed by this court

in Save the Manatee Club and subsequent

cases.

5 1 . With these principles in mind, the Rule cites to

sections 456. 017(1), 463.005, and 463.006(2) a s its rulemaking

authority, and sections 456.017(1) and 463.006(2) as the law the

Rule seeks to implement. Section 456.017 contains very specific

grants of rulemaking authority to both the Department of Health

and the vari ous boards housed within the Department with respect

to the selection and administration of licensing examinations.

Section 456.017(1)(b) authorizes boards to specify Ð by rule the

general areas of competency to be covered by each examination,

the relative weight to be assigned in grading each area tested,

and the score necessary to achieve a passing grade Ñ in those

instances where an examination is developed by the department or

a contracted vendor. Section 456.017(1)(c) also authorizes the

boards to Ð app rove by rule the use of one or more national

examinations that the department has certified as meeting the

requirements of national examinations and generally accepted

testing standards. Ñ Boards also are authorized in subsection (3)

to develop rules regar ding the security and monitoring of

examinations. However, nothing in section 456.017(1) allows the

Board to adopt a national examination , but provide s for a limited

time frame in which an applicant may take the examination prior

to his or her application .

5 2 . Section 463.005 provides rulemaking authority for the

Board in a variety of areas, including standards of practice,

minimum equipment requirements to practice, minimum procedures

required for a visual examination, procedures for the safekeeping

and transfer of prescription files or case records, supervision

of supportive personnel, courses and procedures for continuing

education, and administration and prescription of ocular

pharmaceutical agents. Nothing in section 463.005 authorizes the

Board to provide for a limited time frame in which an applicant

may take the examination prior to his or her application.

5 3 . Section 463.006(2) provides that with respect to the

examination for licensure, the B oard Ð may by rule substitute a

national examination as part or all of the examination and may by

rule offer a practical examination in addition to the written

examination. Ñ Nothing in section 463.00 6(2) authorizes the Board

to provide for a limited time frame in which an applicant may

take the examination prior to his or her application. Indeed,

nothing in section 463.006 provides authority for the Board to

allow for the acceptance of scores for an examination taken prior

to application for licensure in Florida at all.

5 4 . Petitioners have demonstrated t hat the look - back p eriod

in the Rule exceeds the Board Ó s grant of rulemaking authority, in

violation of section 120.52(8)(b).

Whether the Rule Enlarges, Modifies, or Contravenes the Specific

Provisions of the Law Implemented

5 5 . Petitioners also conten d that the Rule is invalid

pursuant to section 120.52(8)(c), because it enlarges, modifies,

or contravenes the specific provisions of the law implemented.

As noted by the First District in Day Cruise Ass Ó n , while

subsections (b) and (c) are Ð interrelated, two different issues

are involved. Ñ 794 So. 2d at 701.

5 6 . Any determination concerning the validity of the Rule

a s an invalid delegation of legislative authority under this

subsection must consider the interplay between section 463.006,

which specifi cally addresses the licensing of optometrists, and

section 456.017, which addresses the selection and/or development

of examinations for licensure for professions within the

Department of Health . Section 463.006 provides in pertinent

part:

(1) Any person desiring to be a licensed

practitioner pursuant to this chapter shall

apply to the department to take the licensure

and certification examinations. The

department shall examine each applicant who

the board determines has: . . . .

(2) The examination sha ll consist of the

appropriate subjects, including applicable

state laws and rules . . . . The board may

by rule substitute a national examination as

part or all of the examination and may by

rule offer a practical examination in

addition to the written ex amination.

(3) Each applicant who successfully passes

the examination and otherwise meets the

requirements of this chapter is entitled to

be licensed as a practitioner and to be

certified to administer and prescribe ocular

pharmaceutical agents in the dia gnosis and

treatment of ocular conditions.

(emphasis added).

5 7 . The plain language of s ection 463.006 (1) contemplate s

that in every case, the application for licensure would precede

taking the examination. Certification of national examinations

by the D epartment, as authorized and encouraged pursuant to

section 456.017(1)(c), appears to conflict with the requirement

that the Department Ð shall examine Ñ applicants for licensure.

However, when section 456.017 is read in its entirety, it

provides that onc e a national examination is certified, the

D epartment or the applicable board w ould administer the national

examination. See, e.g. , § 456.01 7(1)(c)3. , Fla. Stat. ( Ð If a

national practical or clinical examination is available and

certified by the departmen t pursuant to this section, the board,

or the department when there is no board, may administer the

national examination. Ñ ) .

5 8 . The Rule, both in its current form and in prior

iterations, appears to ignore the language in section 463.006(1)

that the Bo ard is to certify an applicant as eligible prior to

the applicant taking an examination. By the terms of section

463.006, the Board is supposed to be certifying the applicant to

take the examination. In fact, the plain language of section

463.006(1) woul d prohibit the Board from considering any scores

from the NBEO exam taken before an applicant files an application

in Florida. Respondent and Intervenor ha ve noted this statutory

requirement, yet still assert that the look - back period is

necessary to give effect to the statute without having the

Ð unreasonable or ridiculous conclusion Ñ that every applicant

would be required to take the first three parts of the NBEO exam

after application for licensure. Indeed, Intervenor states:

If one attempts to interpre t the statute

literally, the language of the statute

requires that the examinations must be taken

after the application. This interpretation

follows logically from the fact that the

application mentioned in the statute is not

an application for a license , but is an

application for permission to take the exam.

Viewed literally, the statute requires an

applicant to take and pass a current Florida

examination, and to do so only after having

filed the necessary application documents and

having paid the necess ary fees. A strict

literal interpretation of the statute leads

naturally to a conclusion that any

examinations passed before applying in

Florida are not a valid basis for Florida

licensure. So how can a rule that allows

applicants to rely on certain exam s taken

prior to their application to practice in

Florida be valid when the statute facially

requires the exams to be taken after the

application is filed? Because under the

existing facts and circumstances that is the

only reasonable way to achieve the

l egislative intent to require all applicants

to, by examination, demonstrate current

competency, without imposing a very

burdensome, inconvenient, expensive, and

unnecessary requirement that each applicant

retake a series of three national

examinations the y had just recently taken and

passed.

59. The fallacy in Respondent and Intervenor Ó s position is

that, even within the Department of Health, the Legislature has

chosen for some profession al boards to require an examination

after application and for other s to simply require a passing

score on a named examination. See, e.g. , § 457.105 , Fla. Stat.

(acupuncture allows complet ion of a board - approved national

certification process ); § 458.311 (1)(h) , Fla. Stat. ( medicine

allows submission of a passing score fro m identified

examinations); § 459.0055(1)(m) , Fla. Stat. (osteopathic medicine

permits passing scores of a national examination received no more

than five years before making application in Florida) , compared

to § 460.406(1) , Fla. Stat. ( Ð any person desiri ng to be licensed

as a chiropractic physician must apply to the department to take

the licensure examination. Ñ ); § 461 .006(1) , Fla. Stat. (with

respect to podiatrists, same requirement); and § 465.007(1) , Fla.

Stat. ( with respect to pharmacists, same requi rement).

60. Reading statutes in pari materia requires that

Ð statutes relating to the same subject or object be construed

together to harmonize the statutes and give effect to the

Legislature Ó s intent. Ñ Lamar Outdoor Advert. v. Dep Ó t of

Transp. , 17 So. 3 d 799, 803 - 804 (Fla. 1 st DCA 2009) (quoting Fla.

Dep Ó t of State v. Martin , 916 So. 2d 763, 768 (Fla. 2005)); Ortiz

v. Dep Ó t of Health, Bd. of Med. , 882 So. 2d 402, 404 (Fla. 1 st

DCA 2004). The Legislature has clearly intended different

standards for diffe rent professions. As stated by the Supreme

Court of Florida :

W hen the statute is clear and unambiguous,

courts will not look behind the statute Ó s

plain language for legislative intent or

resort to rules of statutory construction to

ascertain intent. In such instance, the

statute Ó s plain and ordinary meaning must

control, unless this leads to an unreasonable

result or a result clearly contrary to

legislative intent. When the statutory

language is clear, Ð courts have no occasion

to resort to rules of cons truction Î they

must read the statute as written, for to do

otherwise would constitute an abrogation of

legislative power. Ñ Nicoll v. Baker , 989 So.

2d 990 - 91 (Fla. 1996).

Daniels v. Fla. Dep Ó t of Health , 898 So. 2d 61, 64 - 65 (Fla. 2005)

(citations omitt ed).

61. The premise underlying rule challenges in general

requires an examination of what the Legislature actually

authorized compared to what the agency charged with implementing

a program has done pursuant to the statutory authority granted to

it. A s section 120.536 and the flush - left language of section

120.52(8) make clear, e verything must flow from the language of

the statute being implemented. Where the statute is unworkable,

the answer is not gained through rulemaking that goes beyond the

reach of the statutory grant . Consistent with the view stated by

the Court in Daniels , the undersigned Ð decline[s] to look beyond

the plain language of the statute, and leave [s] expansion of the

rights conferred under the statute to the Legislature. Ñ 898 So.

2d at 69.

6 2 . Moreover, the issue here is not with the statutory

framework, but with the examination process associated with the

national examination certified by the Department. Even so, as

stipulated by the parties, the look - back period has been in th e

Rule long before the certification of the NBEO for the practic al

examination, having been in the Rule in some form since at least

1979 . Its lengthy tenure means that it was originally adopted at

a time when the standards for rulemaking were vastly diffe rent

than what emerged with the creation of section 120.536 and the

amendments to the rulemaking standards passed by the Legislature

in 1996. While the look - back period might have survived under

the prior standards, it cannot survive under the rulemaking

standards governing rules today.

63. In terms of the look - back period, the Rule does not

give effect to a specific law to be implemented because section

463.006 does not authorize licensure by endorsement, but only

authorizes licensure by examination -- ex amination taken after an

application is filed with the Board.

6 4 . Similarly, the Rule does not implement or interpret a

specific power or duty granted to the agency, because the

Legislature has not granted to the Board the authority to

authorize licensur e by endorsement, but only authorizes licensure

by examination taken after an application has been filed.

6 5 . Section 120.52(8)(c) provides that a rule is an invalid

exercise of delegated authority if the rule Ð enlarges, modifies,

or contravenes the spec ific provisions of law implemented. Ñ

Here, the Rule enlarges the specific statute implemented, not

because it only allows a look - back period for a seven - year period

prior to application, but because it allows a look - back period at

all. H ere, the Board ha s essentially created a limited pathway

of licensure by endorsement when the Legislature has not

authorized one. While the Board Ó s motives may be admirable, the

pathway created by the look - back period is not authorized by

statute and extends the R ule beyo nd the specific powers and

duties conferred by the enabling statutes.

6 6 . If it is assumed, as the Rule does , that scores from

examinations taken prior to application can be considered for

licensure, the Rule then contravenes the provisions of section

46 3.006. In Moreland v. Agency for Persons with Disabilities , 19

So. 3d 1009 (Fla. 1st DCA 2009), the First District examined the

proposed tier rules for Medicaid - waiver services provided to

persons with disabilities. The proposed rules were challenged ,

an d an administrative law judge found them to be vali d. On

appeal, the First District found that the administrative law

judge erred in determining that proposed rule 65G - 4.0024 was

valid because it placed an age limit on eligibility for one of

the tiers in contravention of the statute it was supposed to

implement. Section 393.0661(3)(c), Florida Statutes, which the

rule implemented, contained no age limitation. While the

administrative law judge found that APD had justified its age

limitation, the First Di strict determined that pursuant to

section 120.52(8) , a rule is invalid if it contravenes the

statute which it implements, regardless of whether the agency was

justified in contravening the statute. 19 So. 3d at 1012. The

same can be said here.

6 7 . Pet itioner s ha ve noted that when the Legislature wants

to impose time limitations on the passage of an examination or to

pu t in place other conditions for licensure, it knows how to do

so. Petitioners have identified a number of statutory provisions

where th e Legislature has in fact included time limitations for

licensing requirements. They correctly state, Ð [c]learly, the

Legislature could have provided the Board with the authority to

implement such time limitations as it has done with other

professions, bu t it chose not to do so with optometry. . . .

When interpreted in conjunction with each other, the implemented

statutes allow the Board to use a national examination, which

cover (s) specific topics, whenever possible. However, there is

no grant of author ity or directive related to any particular time

frame that would authorize the Board to exclude a passing score

on the NBEO. Ñ

6 8 . Petitioners are correct that the Rule contravenes the

statute, but their interpretation would require nullification of

the directive that Ð the department shall examine each applicant

who the board certifies Ñ contained in section 463.006 . It is not

within the province of the Board, or this administrative law

judge , to write this language out of the statute. A Ð statute

should be interpreted to give effect to every clause in it, and

to accord meaning and harmony to all of its parts. Ñ Fla. Dep Ó t

of Envtl. Prot. v. ContractPoint Fla. Parks, LLC , 986 So. 2d

1260, 1265 (Fla. 2008) .

6 9 . Petitioners have demonstrated that the lo ok - back

provision in the Rule enlarges, modifies, or contravenes the

statute it seeks to implement, in contravention of section

120.52(8)(c).

Whether the Rule is Vague

70 . Petitioners Ó Proposed Final Order presents no argument

in the Conclusions of Law to support its contention that the Rule

is vague, but conclu des that it violates section 120.52(8)(d).

Section 120.52(8)(d) provides that a rule is an invalid exercise

of delegated legislative authority where the rule is vague, fails

to establish adequate standards for agency decisions, or vests

unbridled discretion in the agency. A rule is considered vague

in violation of section 120.52(8)(d) if it requires performance

of an act in terms that are so vague that people of common

intelligence must guess as to its meaning. State v. Peter R.

Brown Constr., Inc. , 10 8 So. 3d 723, 728 (Fla. 1st DCA 2013);

S.W. Fla. Water Mgmt. Dist. v. Charlotte Cnty. , 774 So. 2d 903,

915 (Fla. 2d DCA 2001).

71 . Petitioners have not demonstrated that the Rule is

in valid for th ese reasons. To the contrary, the Rule is

straightforward and, although defective for other reasons, draws

a Ð bright - line Ñ directive that is easily understood and enforced.

Whether the Rule is Arbitrary and Capricious

7 2 . Section 120.52(8)(e) also decla res that a r ule is an

invalid exercise of delegated legislative authority when it is

arbitrary and capricious. The statute recognizes the long -

standing definitions of the terms, stating that a rule is

arbitrary if it Ð is not supported by logic or the nece ssary

facts . Ñ A rule is capricious Ð if it is adopted without thought

or reason or is irrational. Ñ See Dravo Basic Materials Co. v.

Dep Ó t of Transp. , 602 So. 2d 632, 634 (Fla. 1st DCA 1992).

7 3 . The evidence indicates that the look - back period in the

R ule is a provision that has been in the Rule for many years ,

most likely long before the current members of the Board were

appointed . Its effect has been considered by the Board, not only

in terms of rulemaking, but when considering the many requests

for variance or waiver that the Board has received. From the

Board Ó s perspective, the look - back p eriod is an attempt to

protect the safety of the public and to make sure that

optometrists have received the appropriate and up - to - date

training, given the change s in optome try.

7 4 . The Rule contains at least part of the rationale for

the look - back period on its face. Those reasons are reasonable

and well - intentioned. Petitioners have not demonstrated a

violation based upon section 120.52(8)(e).

7 5 . In summar y, the look - back period in rule 64B13 - 4.001 is

an invalid exercise of delegated legislative authority as defined

in section 120.52(8)(b) and (c), but not as defined in

subsections (e) and (f).

7 6 . The undersigned is aware that adhering to the plain

lang uage of section 463.006 mandates a result clearly not favored

by any party. However, the language of the statute is clear and

unambiguous, and should this result be onerous, the answer is a

legislative change. Daniels , 898 So. 2d at 69. The Board is a

c reature of statute, and can only exercise the powers given to

it, no matter how well - intentioned its actions may be. Agencies

have only those powers that the Legislature has granted to them.

Schindelar v. Fla. Unemplmt. App. Comm Ó n , 31 So. 3d 903, 905

(F la. 1st DCA 2010); State, Dep Ó t of Envtl. Reg. v. Falls Chase

Special Taxing Dist. , 424 So. 2d 787, 793 (Fla. 1st DCA 1982),

rev. denied , 436 So. 2d 98 (Fla. 1983) ( Ð An agency has only such

power as expressly or by necessary implication is granted by

legis lative enactment. An agency may not increase its own

jurisdiction and, as a creature of statute, has no common law

jurisdiction or inherent power such as might reside in, for

example, a court of general jurisdiction. Ñ ).

7 7 . Here, the Board Ó s authority is expressly circumscribed

by the terms of section s 463.006 and 456.017 , and the Board has

provided no authority that would allow it to vary from the

statutorily - mandated process for evaluating licensure

applications and approving candidates to take the lice nsure

examination . While Petitioners were successful in demonstrating

that the Rule is an invalid exercise of delegated legislative

authority, the result of this proceeding is most likely not what

Petitioner s desire. However, to ignore the express terms of

section 463.006 would be to elevate one impermissible extension

of the statute over another . Sections 120.52(8) and 120.536 do

not countenance that alternative.

7 8 . Petitioners have requested attorney Ó s fees and costs

pursuant to section 120.595( 3 ). Inasmuch as this Final Order

determines that the proposed rule is an invalid exercise of

delegated legislative authority as defined in section

120.52(8 ) (b) and (c), Petitioners are entitled to a hearing as to

entitlement and, if entitled, the amount of any reasonable fees

and costs.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that rule 64B13 - 4.001 is an invalid exercise

of delegated legislative authority. Jurisdiction is retained for

the purpose of determining whet her attorney Ó s fees and costs are

warranted and , if so, the amount . Any motion to determine fees

and costs shall be filed within 60 days of the issuance of this

Final Order.

DONE AND ORDERED this 1 4 th day of April , 2017 , in

Tallahassee, Leon County, Flor ida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.f l.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 4 th day of April , 2017 .

ENDNOTE

1/ In its Proposed Final Order, Intervenor joined in the

stipulation with respect to these findings set forth in

paragraphs 1 through 22 from th e Joint Pre - hearing Stipulation ,

along with providing additional proposed findings of fact.

COPIES FURNISHED:

Mia L. McKown, Esquire

Holland & Knight , LLP

315 South Calhoun Street, Suite 600

Tallahassee, Florida 32301

(eServed)

Lee Ann Gusta fson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eServed)

Lawrence D. Harris, Jr., Esquire

Office of Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

(eServed)

Stephen A llen Meck, Esquire

Carson and Adkins

2930 Wellington Circle, Suite 201

Tallahassee, Florida 32309

(eServed)

Leonard A. Carson, Esquire

Carson & Adkins

2930 Wellington Circle , Suite 201

Tallahassee, Florida 32309

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Reddick, Chief

Anya Grosenbaugh

Department of State

R.A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, F lorida 32399 - 1701

(eServed)

Anthony B. Spivey, DBA, Executive Director

Board of Optometry

Department of Health

4052 Bald Cypress Way , Bin C07

Tallahassee, Florida 32399 - 3257

(eServed)

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 administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, a nd a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.