The opinion
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D2022-2829
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BRADLEY D. SCHAFFNER,
Appellant,
v.
FLORIDA DEPARTMENT OF
HEALTH,
Appellee.
_____________________________
On appeal from the Department of Health, Board of Pharmacy.
Jessica Sapp, Executive Director.
May 8, 2024
M.K. THOMAS, J.
Bradley Schaffner challenges a final order approving a
settlement agreement he purportedly entered with the Florida
Department of Health (Department). He argues that he did not
consent to unilateral, post-hearing modifications the Department
made to the agreement. He further argues that the Department
lacked the authority, at the time it filed an administrative
complaint, to discipline him because he was not a licensee. Because
Appellant did not preserve his first argument below, and the
Department had the authority to file the administrative
complaint, we affirm.
I.
Appellant, while a student at the University of South Florida
College of Pharmacy (USFCOP), was granted a pharmacy student
intern license. Subsequently, he was arrested for driving under the
influence, and entered a plea of nolo contendere to one count of
reckless driving. After reporting the criminal matter to the
pharmacy school and to maintain his student status, Appellant
was required to undergo an evaluation by Professionals Resource
Network (PRN). PRN recommended a plan including counseling
and weekly monitoring, among other requirements. Appellant
failed to comply, and PRN notified the Department. USFCOP
dismissed Appellant based on his failure to participate in PRN.
The Department notified Appellant that in addition to his
failure to comply with PRN recommendations, he violated section
456.072(1)(x), Florida Statutes, which required him to report his
nolo contendere plea to the Department within 30 days of issuance.
The Department filed an administrative complaint against him.
Appellant timely submitted a response indicating that he did not
dispute the factual allegations of the complaint but requested a
hearing before the Board of Pharmacy. However, a settlement
agreement was reached and counsel for the Department set the
matter for “final agency action” before the Board.
Prior to the Board hearing, the parties signed and notarized
the settlement agreement. At hearing the Board rejected the
settlement and orally proposed a counteroffer with additional
conditions. Appellant’s counsel responded, “[w]e would welcome
the counteroffer wholeheartedly today.” Appellant did not object
to the additional terms. In fact, his statements aligned with
general assent to the counteroffer. Subsequently, the Board issued
an order declaring, “[Appellant] accepted the counteroffer on the
record.”
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II.
Appellant now contends that the order unilaterally and
impermissibly incorporated settlement conditions not discussed at
the hearing and to which he did not agree—specifically, strict
timelines for compliance with the settlement conditions—and that
this requires reversal. However, we cannot reach the merits of this
argument because Appellant failed to preserve it through a motion
for rehearing below. “[W]hen a final order addresses substantive
issues or reaches legal conclusions that have not been previously
raised or challenged . . . a party must file a motion for rehearing to
preserve those alleged errors for appellate review.” State v. Clark,
373 So. 3d 1128, 1131 (Fla. 2023) (citing Holland v. Cheney Bros.,
Inc., 22 So. 3d 648, 650 (Fla. 2009)). Appellant’s arguments that he
did not consent to the modified settlement agreement during the
hearing, or the additional provisions added following the hearing,
should have been raised in a motion for rehearing to allow the
lower tribunal to consider and resolve errors when they arose,
rather than wait for the process of an appeal and expend the
judicial resources that come with that procedure. See id.
(citing Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005); Castor v.
State, 365 So. 2d 701, 703 (Fla. 1978). The preservation
requirement also serves the purpose of treating the parties, the
court, and the judicial system fairly. See City of Orlando v.
Birmingham, 539 So. 2d 1133, 1134 (Fla. 1989); Eaton v. Eaton,
293 So. 3d 567, 568 (Fla. 1st DCA 2020). As Justice Grosshans
recently emphasized in Clark, “[t]hese preservation principles are
not less applicable in the context of formal administrative
adjudication.” 373 So. 3d at 1131 (citing Fla. Dep’t of Bus. & Pro.
Reg., Div. of Pari-Mutuel Wagering v. Inv. Corp. of Palm Beach,
747 So. 2d 374, 385 (Fla. 1999)). Because Appellant failed to file a
motion for rehearing, the argument is not preserved, and therefore
we reject it.
III.
We also reject Appellant’s argument that the Department
lacked authority to initiate and prosecute an administrative
complaint against him because he did not possess an active Florida
license at the time and therefore was not a “health care
practitioner” subject to the Department’s jurisdiction. The
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statutory basis for the Department’s complaint against Appellant
was section 456.072, Florida Statutes, governing grounds for
discipline, which provides in relevant part as follows:
(1) The following acts shall constitute grounds for which
the disciplinary actions specified in subsection (2) may be
taken; . . .
(x) Failure to report to the board, or the department if
there is no board, in writing within 30 days after the
licensee has been convicted or found guilty of, or entered
a plea of nolo contendere to, regardless of adjudication, a
crime in any jurisdiction. . . .
(2) When the board, or the department when there is no
board, finds any person guilty of the grounds set forth in
subsection (1) or of any grounds set forth in the applicable
practice act, including conduct constituting a substantial
violation of subsection (1) or a violation of the applicable
practice act which occurred prior to obtaining a license, it
may enter an order imposing one or more of the following
penalties:
. . .
Appellant contends that he was not subject to the
Department’s authority because he was only a pharmacy student
intern and, even if he were a “licensee” when the Department filed
the complaint, the Department’s own action of revoking his intern
status removed him from the Department’s authority. The
Department contends that it had jurisdiction over Appellant
because he was a licensee when he pleaded nolo contendere to the
criminal offense, and the language of section 456.072(2) does not
require active licensee status to invoke the Department’s
disciplinary authority. Rather, the plain language of the statute
authorizes the Department to enter an order against “any person”
who has violated subsection (1) or the applicable practice act.
We agree with the Department’s reasoning. We begin with the
governing statutory definition of a “licensee.” Chapter 456
empowers the Department to regulate healthcare professions and
broadly defines a “licensee” as “any person or entity issued a
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permit, registration, certificate, or license, including a provisional
license, by the department.” § 456.001(6), Fla. Stat. Chapter 465—
the chapter governing the practice of pharmacy—defines a
“[p]harmacy intern” as:
a person who is currently registered in, and attending, a
duly accredited college or school of pharmacy, or who is a
graduate of such a school or college of pharmacy, and who
is duly and properly registered with the department as
provided for under its rules.
§ 465.003(21), Fla. Stat.
Further, section 465.013, Florida Statutes, addresses the
registration of pharmacy interns and provides, in relevant part:
The department shall register as pharmacy interns
persons certified by the board as being enrolled in an
intern program at an accredited school or college of
pharmacy . . . . The board may refuse to certify to the
department or may revoke the registration of any intern
for good cause, including grounds enumerated in this
chapter for revocation of pharmacists’ licenses.
To register with the Department as a pharmacy student
intern, “An applicant . . . must submit proof of: (A) Enrollment in
an intern program at an accredited college or school of pharmacy.”
Fla. Admin. Code R. 64B16-26.400(2)(a). And relevant to the effect
of withdrawal or dismissal from an accredited pharmacy program,
Within thirty (30) days of termination of enrollment
in an intern program, or withdrawal of registration or
attendance in an accredited school or college of pharmacy,
all registered pharmacy interns shall report such change
in enrollment, registration or attendance to the Board
office. The notification may include a request, including
full explanation and supported by accompanying
documentation, if any, that the pharmacy intern
registration not be cancelled pending the registered
pharmacy intern's re-enrollment, re-registration, or re-
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attendance in an accredited intern program or accredited
school or college of pharmacy.
Fla. Admin. Code R. 64B16-26.400(5).
Thus, Appellant’s dismissal from USFCOP revoked his
pharmacy student intern status because certification depends on
active enrollment in a pharmacy program. That established, a
plain reading of section 456.001(6), supports the conclusion that
the Department properly exercised its disciplinary authority when
it filed the complaint against Appellant, because its definition of
“licensee” includes those registered with the Department or issued
an applicable certificate or license. Both criteria apply to Appellant
due to his enrollment with USFCOP at the time he pleaded nolo
contendere. We find no merit in Appellant’s argument that the
Department’s authority only applies to those with licensee status
at the time the Department files its complaint. The Department’s
authority clearly extends to former licensees with inactive status.
We rejected an argument similar to Appellant’s in Boedy v.
Department of Professional Regulation, 433 So. 2d 544 (Fla. 1st
DCA 1983). In Boedy, the appellant, a physician, argued that a
regulatory board lacked jurisdiction to discipline him because his
physician license was inactive when the board sought to act. Id. at
544. He asserted that to be subject to discipline he had to be a
“physician practicing in the state” as required by section 458.301,
Florida Statutes. Id. To the contrary, we reasoned that the plain
language of the statute, including the use of the general term
“physicians” and the phrase “any person,” applied to the formerly
licensed appellant regardless of license status. Id. (citing
§ 458.331(2), Fla. Stat.).
Appellant attempts to distinguish Boedy because the
regulatory board there noted that the physician could reactivate
his license at his own volition. But we approved the board’s
reasoning in Boedy, recognizing the following logic:
[T]o suggest that physicians should be able to immunize
themselves from prosecution by simply going inactive
suggests a form of self-regulation of the medical
profession which was obviously rejected by the
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Legislature . . . To permit a licensee to indefinitely hide
behind an inactive status while evidence is lost, witnesses
disappear, and memory is eradicated serves no useful
public interest.
Id. at 544–45.
As a pharmacy student intern, Appellant qualified as a
“licensee” under section 456.003(6) because he was admitted to
USFCOP, then certified by the Board of Pharmacy and registered
with the Department. While the physician in Boedy voluntarily
inactivated his license, Appellant’s dismissal from USFCOP had
the legal effect of revoking his pharmacy student intern status.
However, Appellant’s emphasis on voluntary or involuntary
inactivation of a license is a factual distinction that does not
preclude Appellant from being considered a licensee. Section
456.072(1)(x), Florida Statutes, dictates that a licensee’s failure to
timely report a plea of nolo contendere to the Department is a
punishable offense. The governing statutes and regulations do not
give regulated professionals control over regulatory authorities’
jurisdiction. The Department’s authority to implement a penalty
is not limited to only those with an active license, but “any person
guilty of the grounds set forth in subsection (1).” § 456.072(2), Fla.
Stat. (emphasis added). Because Appellant was a licensee when he
pleaded nolo contendere, the plain language of the statute allows
the Department to file an administrative complaint against him
even after he was dismissed from USFCOP.
Because statutes authorizing revocation of licenses to practice
a business or a profession are penal in nature, they must be strictly
construed. See Taylor v. Dep’t of Pro. Reg., 534 So. 2d 782, 784 (Fla.
1st DCA 1988). Under the plain language of section 456.072(2), the
Department had the authority to file the administrative complaint
against Appellant. Accordingly, we affirm.
AFFIRMED.
OSTERHAUS, C.J., and KELSEY, J., concur.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Luke C. Lirot, Luke Charles Lirot, P.A., Clearwater; Ann M.
Allison, Allison Law Group, Temple Terrace; and Daniel K.
Schaffner, Law Office of Daniel Schaffner, Clearwater, for
Appellant.
Sarah Young Hodges, Florida Department of Health, Tallahassee,
for Appellee.
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