                                      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).
                                            4
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
