Society for Clinical and Medical Hair etc. v. Department of Health, Board of Medicine

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
SOCIETY FOR CLINICAL AND NOT FINAL UNTIL TIME EXPIRES TO
MEDICAL HAIR REMOVAL, FILE MOTION FOR REHEARING AND
INC. (SCMHR), DISPOSITION THEREOF IF FILED
Appellant, CASE NO. 1D14-5234
v.
DEPARTMENT OF HEALTH,
BOARD OF MEDICINE,
Appellee.
_____________________________/
Opinion filed December 31, 2015.
An appeal from the Department of Health.
Jon M. Pellett of Barr, Murman & Tonelli, P.A., Tampa; Dinah S. Stein of Hicks,
Porter, Ebenfeld & Stein, P.A., Miami, for Appellant.
Pamela Jo Bondi, Attorney General, and Marlene K. Stern, Assistant Attorney
General, Tallahassee, for Appellee.
WETHERELL, J.
In this administrative appeal, Society for Clinical and Medical Hair Removal,
Inc. (SCMHR), seeks review of a declaratory statement issued by the Board of
Medicine. SCMHR argues that we should reverse the declaratory statement because
it (1) misinterprets the applicable statutes and rules to require only one-time
certification of electrologists who use lasers or light-based devices for hair removal,
and (2) exceeds the proper scope of a declaratory statement in that it announces a
broad new policy that constitutes an unadopted rule. We find no merit in either
claim. Accordingly, we affirm the declaratory statement.
FACTUAL AND PROCEDURAL BACKGROUND
SCMHR is a national trade association of electrologists. 1 It also offers the
only Board-approved certification program for electrologists in Florida. The
program includes a Certified Clinical Electrologist (CCE) certification for
electrologists using epilators (a needle-based device) and a Certified Medical
Electrologist (CME) certification for electrologists using lasers or light-based
devices. SCMHR advises electrologists that the CCE and CME certifications are
valid for five years, after which the electrologist must be re-certified, either by
examination or by proof of continuing education.
In April 2014, SCMHR filed a petition with the Board seeking a declaratory
statement as to whether “its members must obtain and maintain [CME] certification
in the use of laser and light-based devices to continue utilizing [such] devices for
1
An electrologist is “a person who engages in the practice of electrolysis.” §
478.42(4), Fla. Stat. (2014). Electrolysis is the permanent removal of hair by
destroying the hair-producing cells of the skin and vascular system through the use
of a laser or other approved device. § 478.42(5), Fla. Stat. (2014).
2
hair removal or reduction.” The petition alleged that SCMHR’s members were in
doubt as to whether the Board’s rules require electrologists to have “current CME
certification” or whether the rules only require them to have initial certification
without the need for re-certification every five years. The petition further alleged
that the uncertainty on this issue put SCMHR members “in jeopardy for license
discipline for any non-compliance with the Board’s rules.”
The Board referred the petition to the Electrolysis Council 2 for a
recommendation as to the appropriate action to be taken. See Fla. Admin. Code R.
64B8-50.003(2) (“Rulemaking proposals, petitions for declaratory statement[3] and
petitions to adopt, amend or repeal rules, which relate to the practice of electrology
shall first be presented to the Council. The Council shall consider the matter and
make recommendations to the Board as to the appropriate action to be taken.”).
After a hearing, the Council recommended that the Board issue a declaratory
statement explaining that its rules only require a one-time CME certification of
electrologists who use lasers and light-based devices for hair removal.
In August 2014, after receiving the Council’s recommendation, the Board
2
The Council is “under the supervision of the [B]oard” and is comprised of five
members – three licensed electrologists and two consumers – appointed by the
Board. See § 478.44(1)-(2), Fla. Stat. (2014).
3
The portion of the rule requiring petitions for declaratory statement to be first
presented to the Council was invalidated by an Administrative Law Judge in May
2015 based on a rule challenge petition filed by SCMHR. The Board’s appeal of
that ruling is pending in case number 1D15-2308.
3
held a hearing on the petition. At the conclusion of the hearing, the Board voted to
issue a declaratory statement consistent with the Council’s recommendation. The
Board also voted to initiate rulemaking “[t]o go ahead and clarify in the rule that
continual certification is not required in order to do laser hair removal.” 4
A few days after the Board’s vote, SCMHR filed a request to withdraw its
petition for declaratory statement. In support of the request, SCHMR argued that a
declaratory statement was no longer needed based on the Board’s stated intent to
initiate rulemaking. It also asserted that the draft declaratory statement proposed by
staff amounted to an “un-promulgated rule.” The attorney for the Council argued
against the request, pointing out that it was not made until after the Board voted to
approve the declaratory statement and noting that the statement would “put to rest
an issue that has been controversial for a very long time” 5 and maintain the “status
quo” pending the rulemaking process. The Board denied SCMHR’s request to
4
The record does not reflect the status of the rulemaking process, but it appears
from notices published in the Florida Administrative Register that the process has
commenced. See 40 Fla. Admin. Reg. 5010 (Nov. 14, 2014) (notice of workshop
concerning “[r]evisions to training, practice and safety requirements for use of laser
equipment and epilators”); 41 Fla. Admin. Reg. 383-84 (Jan. 21, 2015) (notice of
workshop concerning “[r]evisions to rules on: training, practice and safety
requirements for use of laser equipment and epilators; and, requirement for
certification by [SCMHR] and any other entity”).
5
The record reflects that this issue has been percolating since at least December
2011 when the Council voted not to recommend an amendment to Florida
Administrative Code Rule 64B8-56.002(2)(b) that would have expressly prohibited
electrologists from using laser or light-based devices for hair removal “unless they
are currently certified in the use of [such] devices.” (emphasis added).
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withdraw its petition 6 and then voted to approve the staff-proposed declaratory
statement.
In October 2014, the Board formally issued the declaratory statement, which
provides in pertinent part:
The Board first notes that no rule or statute expressly
requires that the CME credential be continually updated.
The cited rules and statutes can only be harmonized if the
CME certification is obtained once, after the electrologist
has taken the laser training course required by Rule 64B8-
52.004(2), and before he or she begins to offer laser hair
removal to the public.
Rule 64B8-56.002(2)(b), Florida Administrative Code, is
the provision that actually sets the requirement to obtain
CME certification, and that rule uses the past tense[7]
(“[h]ave been certified”), indicating a CME credential
does not have to be continually updated. The rule
governing inspection of electrology facilities where lasers
are used (64B8-51.006), and the citation rule (64B8-
55.002), each require proof of certification to be present in
the facility at all times, thus the present tense is used. The
requirement to obtain a CME certification and the
requirement to have proof of having obtained CME
certification are two different things. Thus, the past tense
is used in Rule 64B8-56.002(2)(b) for the one-time
certification requirement to obtain the CME certification,
and the present tense is used in Rules 64B8-51.006 and
64B8-55.002 for the ongoing requirement to show proof
of having obtained CME certification.
* * *
6
SCMHR does not challenge this ruling on appeal.
7
Actually, the rule uses the passive form of the present perfect tense. See William
A. Sabin, The Gregg Reference Manual ¶ 1033, at 272 (10th ed. 2005) (explaining
that the present perfect tense consists of the verb “have” plus a past participle).
5
This interpretation comports with another important
aspect of the regulation of electrologists, specifically the
requirement for continuing education.
Section 476.50(4)(a), Florida Statutes, establishes a 20
hour continuing education . . . requirement for license
renewal each biennium, whether the practitioner uses laser
or epilator equipment. . . .
[SCMHR] states that the CME tests for advanced
knowledge and skill. See Petition at ¶ 5. If licensed
electrologists pass the CME certification test, then the
continuing education requirement in Chapter 476 is
sufficient to and intended to enable electrologists to
maintain their skills in and knowledge of laser usage.
For all of the foregoing reasons, electrologists who wish
to use laser or light-based equipment are required to obtain
the CME certification one time and have proof of having
obtained that certification present at all times.
This appeal followed.
ANALYSIS
We begin our analysis with the second issue raised by SCMHR in its brief
because that issue involves the threshold question of whether the Board should have
issued a declaratory statement. If SCMHR prevailed on that issue, we would not
need to address the first issue raised in the brief regarding the merits of the
declaratory statement. However, because we find that the Board properly issued the
declaratory statement, we conclude our analysis with an assessment of the merits of
the declaratory statement.
6
Board’s Authority to Issue the Declaratory Statement
SCMHR’s argument that the declaratory statement exceeds the proper scope
of a declaratory statement because it announces a broad new policy that amounts to
an unadopted rule presents a pure question of law, which we review de
novo. See Lennar Homes, Inc. v. Dep’t of Bus. & Prof’l Reg., 888 So. 2d 50, 53-54
(Fla. 1st DCA 2004).
“The purpose of a declaratory statement is to resolve a controversy or answer
questions concerning the applicability of statutes, rules, or orders which an
administrative agency enforces, adopts or enters.” Citizens of the State ex rel. Office
of Pub. Counsel v. Fla. Pub. Serv. Comm’n, 164 So. 3d 58, 59 (Fla. 1st DCA
2015); see also Patricia A. Dore, Access to Florida Administrative Proceedings, 13
Fla. St. U.L. Rev. 965, 1052 (1986) (explaining that the declaratory statement
procedure “enable[s] members of the public to definitively resolve ambiguities of
law arising in the conduct of their daily affairs or in the planning of their future
affairs and . . . enable[s] the public to secure definitive binding advice as to the
applicability of agency-enforced law to a particular set of facts”) (internal quotations
and footnotes omitted).
Prior to 1996, the authority of an agency to issue a declaratory statement was
limited to issues that applied only to the party seeking the declaration because section
120.565, Florida Statutes (Supp. 1978-1995), provided that the declaratory statement
7
shall set out the agency’s opinion as to the applicability of a statute or rule “to the
petitioner in his or her particular set of circumstances only.” (emphasis added). The
cases construing the pre-1996 version of the statute recognized this limitation on
agency authority to issue declaratory statements. See, e.g., Regal Kitchens, Inc. v.
Fla. Dep’t of Rev., 641 So. 2d 158, 161-62 (Fla. 1st DCA 1994) (“[Section 120.565,
Florida Statutes (1989)] limits the use of a declaratory statement to an expression of
the agency’s position on an issue raised by an individual petitioner in a particular set
of facts.”); Fla. Optometric Ass’n v. Dep’t of Prof’l Reg., 567 So. 2d 928, 937 (Fla.
1st DCA 1990) (stating in dicta that “[d]eclaratory statements should only be granted
where the petition has clearly set forth specific facts and circumstances which show
that the question presented relates only to the petitioner and his particular set of
circumstances”).
In 1996, the word “only” was deleted from section 120.565, see ch. 96-159, §
17, Laws of Fla., and in Chiles v. Department of State, 711 So. 2d 151, 154 (Fla. 1st
DCA 1998), we construed this change to mean that “a petition for declaratory
statement need not raise an issue that is unique” and that “there is no longer a
requirement that the issue apply only to the petitioner.” We went on to explain that
that although a declaratory statement cannot be used to circumvent rulemaking, 8 “a
8
On this point, we cited Florida Optometric Association in which we observed in
dicta that:
8
declaratory statement is not transformed into a rule merely because it addresses a
matter of interest to more than one person.” Id. Our decision in Chiles was
subsequently approved by the Florida Supreme Court in Florida Department of
Business and Professional Regulation, Division of Pari-Mutuel Wagering v.
Investment Corp. of Palm Beach, 747 So. 2d 374 (Fla. 1999).
The agency in Investment Corp. was asked to issue a declaratory statement by
a group of pari-mutuel racetracks. See Inv. Corp. of Palm Beach v. Div. of Pari-
Mutuel Wagering, 714 So. 2d 589, 590 (Fla. 3d DCA 1998). The declaratory
statement addressed the substance of the issue raised by the racetracks but also stated
that the agency intended to initiate rulemaking because the issue had general
application to the pari-mutuel industry. Id. The racetracks appealed, arguing that
declaratory statements and rules serve clearly distinct
functions under the scheme of Chapter 120. Although the
line between the two is not always clear, it should be
remembered that declaratory statements are not to be used
as a vehicle for the adoption of broad agency policies. Nor
should they be used to provide interpretations of statutes,
rules or orders which are applicable to an entire class of
persons. . . . When an agency is called upon to issue a
declaratory statement . . . which would require a response
of such a general and consistent nature as to meet the
definition of a rule, the agency should either decline to
issue the statement or comply with the provisions of
Section 120.54 governing rulemaking.
567 So. 2d at 937 (emphasis in original).
9
the agency “overstepped administrative bounds” when it issued the declaratory
statement after concluding that the issues raised by racetracks had general
applicability and required rulemaking. Id. at 590-91. The Third District agreed and
reversed the declaratory statement. Id. at 591
Judge Cope dissented. He first pointed out that the racetracks invited the error
that they raised on appeal. Id. at 592 (Cope, J., dissenting) (“The racetracks asked
for a declaratory statement. The racetracks got a declaratory statement.”). He then
explained that section 120.565 would be “nearly useless” if a declaratory statement
could not be issued if it impacted anyone other than the petitioner. Id. at 593. Then,
relying on Chiles, he concluded that the agency’s decision to contemporaneously
initiate rulemaking “was a perfectly permissible step to take, but it did not thereby
invalidate the declaratory statement.” Id. (citing Chiles, 711 So. 2d at 153-54).
The Florida Supreme Court quashed the Third District’s decision and adopted
Judge Cope’s dissenting opinion as the “correct view” of the law. Investment Corp.,
747 So. 2d at 386. The Court explained that the 1996 amendments to section
120.565 were “meant to dispel any confusion that only the most narrowly drawn
declaratory statement having an absolutely unique application was permissible.” Id.
at 383. The Court also expressly rejected the proposition that an agency could
decline to issue a declaratory statement simply because it intended to initiate
rulemaking. Id. at 385. On this point, the Court explained that:
10
it elevates form over substance to assert that an agency
cannot issue a declaratory statement dealing with a
petitioner’s ‘particular set of circumstances,’ while at the
same time indicating that ‘a similar fact pattern may exist’
in other circumstances and announcing its intention to
‘initiate rulemaking to establish an agency statement of
general applicability.’ . . . . We are not aware of any rule
of law that precludes an agency from simultaneously
pursuing both courses of action.
Id. (emphasis added).
In short, Investment Corp. stands for the proposition that an agency has an
obligation to issue a declaratory statement explaining how a statute or rule applies
in the petitioner’s particular circumstances even if the explanation would have a
broader application than to the petitioner. But, if the statement has such a broad and
general application that it meets the definition of a rule, the agency must also
simultaneously initiate the rulemaking process to adopt the statement as a rule. See
§ 120.54(1)(a), Fla. Stat. (2014) (stating that rulemaking is not a matter of agency
discretion and requiring agencies to adopt statements that meet the definition of a
rule as soon as it is feasible and practicable to do so).
Here, the Board did precisely what was contemplated by the Court
in Investment Corp. when it answered the specific question raised in SCMHR’s
petition for declaratory statement and simultaneously announced its intention to
initiate rulemaking on the subject. The fact that SCMHR does not like the answer it
got in response to its petition does not mean that the Board exceeded its authority in
11
issuing the declaratory statement in this case. Indeed, if SCMHR was of the view
that the issue raised in its petition could only be addressed by rulemaking, it should
have petitioned for rulemaking under section 120.54(7) instead of a declaratory
statement under section 120.565. See Investment Corp., 747 So. 2d at 385-86.
In ExxonMobil Oil Corp. v. Department of Agriculture and Consumer
Services, 50 So. 3d 755 (Fla. 1st DCA 2010), we reversed an order dismissing a
petition for declaratory statement seeking clarification of a statute enforced by the
agency. In doing so, we observed that the agency’s refusal to answer the question
raised in the petition “serves no logical end and thwarts the purpose behind section
120.565 by foreclosing [the petitioner] from securing ‘definitive binding advice as
to the applicability of agency-enforced law to a particular set of facts.’” Id. at 758
(quoting Investment Corp., 747 So. 2d at 382). The same would have been true here
had the Board refused to issue the declaratory statement in response to the petition
filed by SCMHR.
Our decision in Lennar Homes is not contrary authority. It is distinguishable
from this case. The agency in Lennar Homes not only announced a “broad agency
policy” that prohibited the use of arbitration provisions in all condominium purchase
and sale contracts statewide, but it went further and purported to invalidate the
petitioner’s contract. See 888 So. 2d at 54-55 (“In the case before us, the [agency]
went beyond applying the condominium statutes to [petitioner]’s contract and ruled
12
that the contract language requiring arbitration was void against public policy. We
know of no statute which confers authority on the [agency] to declare a party’s
contract void.”). Here, the declaratory statement issued by the Board only addressed
the question framed by the petition and its scope is limited to electrologists using
lasers or light-based devices. Moreover, unlike the agency in Lennar Homes, which
had not announced its intention to institute rulemaking, see id. at 54, the Board voted
to initiate rulemaking on the subject addressed in the declaratory statement
contemporaneously with its vote to issue the declaratory statement.
Merits of the Declaratory Statement
Turning to the merits of the declaratory statement, we apply a deferential
standard of review: “[a]n appellate court may reverse a declaratory statement only
if the agency’s interpretation of the law is clearly erroneous.” Thrivent Fin. for
Lutherans v. Dep’t of Fin. Servs., 145 So. 3d 178, 181 (Fla. 1st DCA 2014). An
agency’s interpretation of an ambiguous statute or rule that it administers is not
clearly erroneous if it “‘is within the range of possible and reasonable’
interpretations.” Office of Fire Code Official v. Fla. Dep’t of Fin. Servs., 869 So.
2d 1233, 1237 (Fla. 2d DCA 2004) (quoting Republic Media, Inc. v. Dep’t of
Transp., 714 So. 2d 1203, 1205 (Fla. 5th DCA 1998)).
Here, we have no trouble concluding that the Board’s legal analysis in the
declaratory statement is not clearly erroneous. First, no statute or rule expressly
13
requires electrologists using laser or light-based devices to have a “current” CME
certification. Second, even if the use of the passive form of the present perfect tense
in the phrase “have been certified” results in a slight grammatical ambiguity in rule
64B8-56.002(2)(b) because that tense can be used to indicate “action that was started
in the past and has been recently completed or [action that] is continuing up to the
present time,” see The Gregg Reference Manual, supra, ¶ 1033, at 272 (emphasis
added), we cannot say that the Board’s interpretation of the rule falls outside of the
range of possible interpretations. Indeed, we find that the Board’s interpretation
gives rule 64B8-56.002(2)(b) its most logical and natural reading and that the
Board’s harmonization of that rule with the other rules and statutes discussed in the
declaratory statement comports with logic and reason.
That said, we are not unsympathetic to the policy arguments advanced by
SCMHR in support of a requirement that electrologists using laser and light-based
devices maintain a current CME certification. Indeed, there appear to be valid policy
arguments for and against such a requirement. However, these policy arguments are
more appropriately directed to the Board in the rulemaking process because this
court does not have the authority to make policy or to second-guess the wisdom of
the policy embodied in the Board’s rules.
14
CONCLUSION
For the reasons stated above, we affirm the declaratory statement issued by
the Board in response to the petition filed by SCMHR.
AFFIRMED.
RAY and KELSEY, JJ., CONCUR.
15