STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6917

)

CHARLES W. HARRIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on June 23, 1993, in Sarasota, Florida and continued on November 15, 1993, in Sarasota, Florida.

APPEARANCE

For Petitioner: Charles Faircloth, Esquire,

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Robert Watrous, Esquire

27 South Orange Avenue Sarasota, Florida 34236

STATEMENT OF THE ISSUE

Whether the Respondent's license as a mental health counselor should be revoked, suspended or otherwise disciplined based on the allegation contained in the Second Amended Administrative Complaint.

PRELIMINARY STATEMENT

By a Second Amended Administrative Complaint dated May 8, 1992, and filed with the Division of Administrative Hearings on November 19, 1992, the Department of Business and Professional Regulation (formerly the Department of Professional Regulation) (Department) seeks to revoke, suspend or otherwise discipline Respondent Charles W. Harris' license as a mental health counselor in the State of Florida. As grounds therefor, it is alleged that Respondent: (1) engaged in false, deceptive or misleading advertising in violation of Section 491.009(2)(d), Florida Statutes; (2) made misleading, deceptive, untrue, or fraudulent representations in the practice of mental health counseling in violation of Section 491.009(2)(l), Florida Statutes; (3) failed to include the words "licensed mental health counselor" or the letters "LMHC" on all promotional materials, including cards, brochures, stationery, advertisements,

and signs naming the licensee in violation of Section 491.0149(3), Florida Statues, which is a violation of Section 491.009(2)(q), Florida Statutes; and

1. failed to respond within 30 days to a written communication from the Department concerning an investigation by the Department, or failed to make available any relevant records with respect to any investigation about Respondent's conduct or background in violation of Section 491.009(2)(o), Florida Statutes. By letter dated November 19, 1992, this matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer and the conduct of a hearing.

   
   

   In support of the charges, the Department presented the testimony of Denise Love, Michele Hampton, Rhonne Sanderson and Ellen Bolves. The Department's exhibits 1 through 9 were received as evidence in this case. The Respondent testified on his own behalf and presented the testimony of Denise Love.

   Respondent's exhibits 1, 2, 3A, 3B, 3C, 10, 12-14 and 22 were received as evidence in this case. Chapter 491, Florida Statutes, and Chapters 61F4-1, 61F4-11, 61F4-21, 61F4-22 and 61F4-31, Florida Administrative Code, (formerly 21CC-1, 21CC-11, 21CC-21, 21CC-22 and 21CC-31, respectively) were officially recognized. The transcripts of the June 23, 1993 and the November 15, 1993

   hearings were filed with the Division of Administrative Hearings on July 9, 1993 and December 7, 1993, respectively. A Joint Motion For Extension Of Time for filing proposed recommended order was filed by the parties. The motion was granted with the understanding that any time constraint for entering a Recommended Order imposed under Rule 28-5, Florida Administrative Code, was waived in accordance with Rule 60Q-2.031(2), Florida Administrative Code. The parties timely filed their Proposed Recommended Orders under the extended time frame. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

   
   

   1. At all times material to this proceeding, the Respondent was licensed as a mental health counselor in the State of Florida, having been issued license number MH 0001282.

      
      

   2. The Respondent was awarded the degree Doctor of Philosophy with an area of specialization in Counseling Psychology from The Union Graduate School, The Union For Experimenting Colleges and Universities. Subsequently, the Respondent completed course work and training in, among others, the areas of psychological testing and neuropsychological examinations.

      
      

   3. The Respondent has never been licensed as a psychologist in the State of Florida under Chapter 490, Florida Statutes. However, the Respondent was allowed to practice what was commonly referred to as psychology without a license as long as the Respondent did not use the word "psychologist" or related terms in his advertising or professional activities.

      
      

   4. At all times material to this proceeding the Respondent was a member of the Florida Psychological Practitioners Association (FPPA), a private nonprofit association of psychologists, and the American Psychological Practitioners Association (APPA), a private nonprofit association of psychologists.

      
      

   5. In a promotional or advertisement letter dated October 8, 1990, the Respondent advises attorneys who specialize in personal injury cases of his

      services for a "regimen of rehabilitation, on an OUTPATIENT basis, for individuals with various cognitive deficits such as attention and concentration memory disorders". In the course of advising these attorneys of his services, the Respondent indicates that he has provided "neuropsychological examinations" for clients of certain attorneys and would provide "neuropsychological examinations" in performing this "regimen of rehabilitation" if one had not already been administered. On this letter appear: (a) the seal of the FPPA and the seal of the APPA; (b) the words "Board Certified Psychological Services" at the top of the letter; and (c) the words "Board Certified, Clinical Psychology, APPA" in the signature block of the letter below the signature of the Respondent. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on this letter.

      
      

   6. In a letter dated November 19, 1990, to the Department's employee, Denise Love, Complaint Analyst, the Respondent responds to an earlier letter from Love concerning a complaint. On this letter appear: (a) the seal of the FPPA and the seal of the APPA; (b) the words "Board Certified Psychological Services" at the top of the letter; and (c) the words "Board Certified, Clinical Psychology, APPA" appear in the signature block below the Respondent's signature. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on this letter.

      
      

   7. On a promotional or advertisement letter dated January 10, 1991, containing basically the same message as the October 8, 1990, letter referred to in Finding of Fact 5 above, appear: (a) the seal of the FPPA and the seal of the APPA; (b) the words "Board Certified Psychological Services" on the top of the letter; and (c) the words "Fl. Lic. #XA0001479; #MH0001282" and "Division of Workers Compensation Rehabilitation Services Provider" in the signature block below the Respondent's signature. There was no evidence as to what Florida License #XA0001479 refers to, but Florida License #MH001282 refers to Respondent's license as a mental health counselor. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on this letter.

      
      

   8. There is sufficient evidence to show that at all times material to this proceeding, the Respondent was: (a) qualified to perform psychological services, including neuropsychological examinations and psychological testing; (b) not prohibited by statute or rule from offering or performing psychological services, including neuropsychological examinations and psychological testing;

      1. Board Certified in Clinical Psychology by the APPA; (d) a member of the FPPA or APPA; and (e) authorized by the FPPA or the APPA to display the seal of each of these respective organizations on his stationery.

         
         

   9. The letters "LMHC" or the words "licensed mental health counselor" do not appear on the Respondent's business card obtained by Michelle Hampton from Respondent's office while serving papers on the Respondent around February 8, 1991. However, the words "Florida License: #MH0001282" do appear on the card.

      
      

   10. The letters "LMHC" or the words "licensed mental health counselor" do not appear on either the Respondent's letter of April 8, 1991, to Denise Love, or on the Respondent's business card enclosed with the letter. However, the words "Florida License: #MH 0001282 do appear on both the Respondent's letter and business card.

       
       

   11. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on the Respondent's letter of October 21, 1991, to Michelle Hampton. However, the words "Psychotherapist & Examiner" and "Florida License: #MH0001282" do appear on the Respondent's letter in the signature block below

       the Respondent's signature. There was sufficient evidence to show that Respondent was qualified, by training and experience, to hold himself out as a psychotherapist.

       
       

   12. Section 491.0149(3), Florida Statutes, which requires a licensed mental health counselor to include the use of the words "licensed mental health counselor" or the letters "LMHC" on all promotional material, including cards, brochures, stationery, advertisements, and signs naming the licensee went into effect on October 1, 1990.

       
       

   13. Respondent did not become aware of Section 491.0149(3), Florida Statutes, until sometime around January, 1991, and, at that time, it was the Respondent's understanding that the requirement of that section would be met by placing his mental health counseling license's number on all promotional materials. Thereafter, Respondent placed his mental health counseling license's number on all promotional material.

       
       

   14. By letter addressed to the Respondent, referencing the Department's Case #9014778, dated October 10, 1991, Michelle Hampton advised the Respondent that the Department's attorney had requested that Hampton obtain additional information concerning Respondent's credentials, such as the continuing education courses and the college courses completed by Respondent, that would enable the Respondent to administer, and to score, psychological tests. The letter did not cite any statutory authority for requiring this information or the penalty for failure of the Respondent to furnish this information.

       
       

   15. There was insufficient evidence to show that the Department had made an earlier request of the Respondent on September 10, 1991, to furnish information concerning the Respondent's credentials, such as the continuing education courses and college courses completed, that would enable the Respondent to administer, and to score, psychological tests, notwithstanding the testimony of Michelle Hampton to the contrary which lacks credibility.

       
       

   16. By letter dated October 21, 1991, the Respondent responded within 30 days to Hampton's letter of October 10, 1991. As explained in the Respondent's letter, the Respondent considered the request in Hampton's October 10, 1991, letter as being: (a) not relevant to Case #9014778 which involved an allegation that Respondent had utilized a title reserved for those licensed under Chapter 490, Florida Statutes; (b) inappropriate; and (c) harassment. Although, the Respondent did not furnish the requested information at that time, the Respondent did not refuse to furnish the information in his reply to Hampton's letter.

       
       

   17. The Department's Case #9014778 was opened as result of a complaint filed by Susan B. Filskov, apparently involving an alleged violation of Chapter 490, Florida Statutes, and was subsequently closed along with several other cases involving complaints filed by other individuals against the Respondent.

       
       

   18. The Department made no further attempt to: (a) obtain this information from the Respondent; (b) explain to the Respondent how the information was relevant to the investigation; (c) explain the Department's need for obtaining the information; or (d) point out that the Respondent was statutorily required to furnish relevant information upon request of the Department.

       
       

   19. There is sufficient evidence to show that Respondent's conduct in regards to the Department's request for information concerning his credentials did not violate Section 491. 009(2)(o), Florida Statutes.

   20. Prior to October 1, 1992, no statutory limits on the practice of psychology or the allied fields (Chapter 491, Florida Statutes, specifically mental health counseling) existed in the State of Florida, apart from the limits on the use of the term "psychologist" and related terms described in Section 490.012, Florida Statutes, and Section 491.012, Florida Statutes, unless a person was a licensed psychologist or licensed in one of the allied fields under Chapter 491, Florida Statutes.

       
       

   21. The restriction on the use the terms referred to in Finding of Fact 20 by those persons not licensed under Chapters 490 and 491, Florida Statutes, was challenged in federal court. On January 3, 1992, in the case of Abramson v Gonzalez, 949 F.2d 1567 (11th Cir. 1992), the court issued an opinion finding that the Psychological Services Act [Chapter 490, Florida Statutes (1991)], and Chapter 491, Florida Statutes (1991), placed an unconstitutional burden on commercial speech and remanded for proceedings not inconsistent with the opinion. Included as plaintiffs/appellants in this case were several practicing psychologists, clinical social workers, therapists, and the FPPA, of which Respondent was a member. The defendant/appellees were The Florida Department of Professional Regulation, the members of the Florida Board of Psychological Examiners, and the members of the Florida Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling.

       
       

   22. On August 26, 1992, after remand on January 3, 1992, by the United States Circuit Court of Appeals, the United States District Court, Middle District of Florida, Orlando Division, in the Case styled as Abramson et al. and Florida Psychological Practitioners Association vs. Larry Gonzalez, et al., Case No. 81-735-Civ-Orl-19, entered a Stipulated Order of Permanent Injunction enjoining the defendants from enforcing against any plaintiff, or any member of plaintiff Florida Psychological Practitioners Association, the provisions of Section 490.012, Florida Statutes, and from otherwise attempting to require any plaintiff, or member of plaintiff Florida Psychological Practitioners Association, to refrain from holding themselves out by any title or description incorporating the words, or permutations of the words, "psychologist", "psychology", "psychological", psychodiagnostic", "school psychologist, or "psychotherapy", or from describing any test or report as "psychological" so long as that person was permitted under the laws of the State of Florida to practice as a psychologist. The injunction also enjoined the defendants from enforcing the provisions of Section 490.012(3), or the provisions of Section 491.012(4) or (5), Florida Statutes, with regard to Section 491.012(3), Florida Statutes, and from attempting to require any plaintiff,or any member of plaintiff Florida Psychological Practitioners Association, to refrain from holding themselves out by any title or description incorporating the words, or permutations of the words, "mental health counselor", "psychotherapist", psychotherapy", "mental health therapist", or "mental health consultant", so long as that person was permitted under the laws of the State of Florida to practice as a mental health counselor. There are like provisions enjoining the defendants as to "clinical social workers" and "marriage and family therapist" which are not pertinent here. Likewise, any plaintiff or plaintiff member of the Florida Psychological Practitioners Association were enjoined from the use of any term or title which implies or connotes that such individual holds a license issued under the provisions of Chapter 490 or 491, Florida Statutes, unless that individual is the holder of a valid license issued pursuant to either Chapter 490 or 491, Florida Statutes.

       
       

   23. There is insufficient evidence to show that the Respondent's use of the words "Board Certified Psychological Services", "Board Certified, Clinical

       Psychology ", "neuropsychological examinations", "psychotherapist" or the use of the "FPPA" and "APPA" seals on stationery that Respondent used for promotional, advertisement or other business purposes: (a) was false, deceptive or misleading advertisement; or (b) that Respondent was making misleading, deceptive, untrue, or fraudulent representations in the practice of mental health counseling, notwithstanding the testimony of Ellen Bolves to the contrary, which lacks credibility.

       
       

   24. There is insufficient evidence to show that Respondent's failure to include the letters "LMHC" or the words "licensed mental health counselor" on all promotional material was to create false, deceptive, or misleading advertising, or for the purpose of making misleading, deceptive, untrue, or fraudulent representations in the practice of mental health counseling, notwithstanding the testimony of Ellen Bolves to the contrary, which lacks credibility.

       
       

       CONCLUSIONS OF LAW

       
       

   25. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

       
       

   26. Section 491.009(1), Florida Statutes, empowers the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling (Board) to revoke, suspend or otherwise discipline the license of the Respondent, if the Board finds that the Respondent has committed any one of those acts enumerated in Section 491.009(2), Florida Statutes.

       
       

   27. The Second Amended Administrative Complaint charges the Respondent with four basic violations of Section 491.009(2), Florida Statutes.

       
       

       1. Count I charges Respondent with the violation of Section 491.009(2)(d), Florida Statutes, in that Respondent was alleged to have engaged in false, deceptive, or misleading advertisement.

          
          

       2. Count II charges Respondent with the violation of Section 491.009(2)(l), Florida Statutes, in that Respondent was alleged to have made misleading, deceptive, untrue, or fraudulent representations in the practice of mental health counseling.

          
          

       3. Count III charges Respondent with the violation of Section 491.009(2)(q), Florida Statutes, by violating Section 491.0149(3), Florida Statutes, by allegedly failing to include the letters "LMHC" or the letters "licensed mental health counselor" on all promotional material, including cards, brochures, stationery, advertisements, and signs naming the licensee.

          
          

       4. Count IV charges the Respondent with the violation of Section 491.009(2)(o), Florida Statutes, by allegedly failing to respond within 30 days to a written communication from the Department concerning an investigation by the Department, or allegedly failing to make available any relevant records with respect to any investigation about Respondent's conduct or background.

          
          

   28. Section 491.009(2)(d),(l),(o) & (q), Florida Statutes, provides in pertinent part as follows:

       1. The following acts of a licensee . . . are grounds for which the disciplinary actions listed in subsection (1) may be taken:

          * * *

          1. False, deceptive, or misleading advertising or obtaining a fee or other thing of value on the representation that

          beneficial results from any treatment will be guaranteed.

          * * *

          (l) Making misleading, deceptive, untrue, or fraudulent representations in the practice of any profession licensed or certified under this chapter.

          * * *

          (o) Failing to respond within 30 days to a written communication from the department or the board concerning any investigation by the department or the board, or failing to make available any relevant records with respect to any investigation about the licensee's

          . . . conduct or background. (E. S.).

          * * *

          (q) Violating provisions of this chapter, or of chapter 455, or any rules adopted pursuant thereto.

          
          

   29. Chapter 90-263, Section 20, Laws of Florida, created Section 491.0149(3), Florida Statutes, which became effective October 1, 1990, and provides as follows:

       
       

       1. A licensed mental health counselor shall include the words "licensed mental health counselor or the letters "LMHC" on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the licensee.

       
       

   30. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (2 DCA Fla. 1977). The Department must prove the material allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

       
       

   31. As to Count I and Count II, the Department has failed to sustain its burden in this regard. First, there was no prohibition, during the period in question, to the Respondent practicing psychology without a license, while at the same time practicing mental health counseling. Therefore, any alleged violation of Sections 491.009 (2)(d) & (l), Florida Statutes, would require consideration of both practices. Under this scenario, there was no violation, particularly in light of the injunction entered by the lower court and the decision rendered in Abramson v. Gonzalez, 949 F.2d 1567 (11 Cir. 1992). In fact, it would appear that the Department was enjoined from this type of enforcement. Secondly, assuming arguendo that the Respondent was only practicing mental health counseling, then the record is clear that the message, or lack of

       a message (absence of the letters "LMHC" or the words "licensed mental health counselor") was neither false nor inherently misleading, and as such was not false, deceptive or misleading advertisement or would be considered as making misleading, deceptive, untrue, or fraudulent representations in the practice of mental health counseling. See, Abramson v. Gonzalez, 949 F.2d 1567 (11th Cir. 1992). The Department relied heavily on its expert, Ellen Bolves, to show that Respondent's promotional material contained messages that violated Section 491.009(2)(d) and (l), Florida Statutes. In rendering her opinion, Ms. Bolves relied heavily on matters that the court in Abramson v. Gonzalez, 949 F.2d 1567 (11th Cir. 1992), rejected as not being inherently misleading in reaching its decision that restrictions on the use of such terms was an unconstitutional burden on commercial speech. Additionally, because of Ms. Bolves' close relationship with the Board, particularly the chairman, the potential for bias colors her testimony and dimishes her credibility It appears that if it were Respondent's intent to make false, deceptive or misleading statements in his advertisements or to make misleading, deceptive, untrue, or fraudulent representations in the practice of mental health counseling, then he certainly would not put the Department on notice by including such statements on letters written to the Department's employees. Likewise, had it been the Respondent's intent to deceive or mislead by the absence of "LMHC" or "licensed mental health counselor", then why put the Department on notice. It should also be noted that the Department did not advise the Respondent of what it considered violations prior to its formal complaint. Under this scenario, there would be no violation of Section 491.009(2)(d) and (l), Florida Statutes.

       
       

   32. As to Count III, the record is clear that on several pieces of Respondent's promotional material, neither the letters "LMHC" nor the words "licensed mental health counselor" appeared thereon. It is clear from the record that the Respondent's failure to place the letters "LMHC" or the words "licensed mental health counselor" on this particular promotional material was not done with the intent to mislead, deceive or to misrepresent. However, his failure to strictly adhere to the language of Section 491.0149(3), Florida Statutes, is nothing more than technical violation but a violation, nevertheless.

       
       

   33. As to Count IV, the record is clear that there was no violation of Section 491.009(2)(o), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order dismissing Count I, Count II and Count IV. It is further recommended, after consideration of Rule 61F4-5.001, Florida Administrative Code, Disciplinary Guidelines, and the primary purpose of regulating any profession being to protect the health, safety and welfare of the public and not the generation of revenue, that the Board issue a letter of reprimand to the Respondent for the violation set forth in Count III of the Second Amended Administrative Complaint.

DONE AND ENTERED this 10th day of June, 1994, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6917

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner, Department's Proposed Findings of Fact:

1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1,3); 2(5); 3(6); 4(7); 5(9); 6(10); 7(11); 10(16); and 12(11,12).

2. Proposed findings of fact 11, 13, 14 and 16 are unnecessary in that they present matters previously presented in other proposed findings of fact which have been adopted. However, should there be any matter that was not previously adopted then such matters are hereby adopted.

3. Proposed findings of fact 8, 9, 15, 17, 18, 19, 20 and 21 are not supported by competent substantial evidence in the record. Additionally, proposed findings of fact 17 - 20 also present argument which should be presented in the Conclusions of Law.

Respondent, Harris' Proposed Findings of Fact:

1. The Respondent's proposed findings of fact are so intermingled with argument and other matters not considered findings of fact that I do not intend to respond to each one. However, those matters that are clearly findings of fact are adopted in Findings of Fact 1 through 24. The balance are rejected as being argument, conclusions of law, matters that should be covered in the preliminary statement, or not material or relevant.

COPIES FURNISHED:

Charles Faircloth, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Ste. 60

Tallahassee, Florida 32399-0792

Robert Watrous, Esquire

27 S. Orange Avenue Sarasota, Florida 34236

Jack McRay General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Henry Dover Executive Director

Board of Clinical Social Work, Marriage & Family Therapy & Mental Health Counseling

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

CHARLES W. HARRIS, NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 94-3890

DOAH CASE NO. 92-6917

AGENCY FOR HEALTH CARE ADMINISTRATION,

Appellee.

/ Opinion filed April 8, 1996.

An appeal from the Agency for Health Care Administration. Robert P. Watrous, Sarasota, for appellant.

Kathryn L. Kasprzak, Assistant General Counsel, Department of Business and Professional Regulation, for appellee.

KAHN, J.

Charles W. Harris appeals a decision by the Board of Clinical Social work, Marriage and Family Therapy, and Mental Health Counseling (Board) that his failure to include the designation "licensed mental health counselor" or "LMHC" on several pieces of promotional material constituted a violation of section 491.0149(3), Florida Statutes (1991). Appellant asserts that the requirement in section 491.0149(3) that "licensed mental health counselor" or "LMHC" be included on all promotional materials unconstitutionally restricts his right of free speech under the First Amendment. we affirm.

Appellant is a licensed mental health counselor with his office and practice in Sarasota, Florida. Section 491.01,49,(3) provides that "[a] licensed mental health counselor shall include the words `licensed mental health counselor' or the letters `LMHC' on all promotional materials, including cards, brochures, stationery, advertisements, and signs, naming the licensee." Section 491.009(2)(q), Florida Statutes (1991), indicates that violations of provisions contained in chapter 491 constitute grounds for disciplinary action. The hearing officer assigned to the case, William R. Cave, found that Appellant violated section 491.0149(3) and, therefore, discipline was warranted pursuant to section 491.009(2)(q). The Board adopted the hearing officer's findings and conclusions; however, rather than sending Appellant a letter of reprimand, as recommended by the hearing officer, the Board determined that Appellant should receive a public reprimand as well as pay an administrative fine of $1,000.

The parties agree that the statute at issue in this case regulates commercial speech. "`[C]ommercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values,' and is subject to `modes of regulation that might be impermissible in the realm of noncommercial expression.'" Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 477, 109 S. Ct. 3028, 3033, 106 L. Ed.

2d 388 (1989)(quoting Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456, 98 S. Ct. 1912, 56 L. Ed. 2d 444 (1978)). The United States Supreme Count has recently explained the test applicable to restrictions on commercial speech:

[w]e engage in "intermediate" scrutiny of restrictions on commercial speech, analyzing them under the framework set forth in Central Hudson Gas & Electric Corp. v. Public Service Comm'n of N.Y., 447 U.S. 557, 100 S.Ct. 2343,

65 L.Ed.2d 341 (1980). Under Central Hudson, the government may freely regulate commercial speech that concerns unlawful activity or is misleading. Commercial speech that falls into neither of those categories . . . may be regulated if the government satisfies a test consisting of three related prongs: first, the government must assert a substantial in- terest in support of its regulation; second,

the government must demonstrate that the restriction on commercial speech directly and materially advances that interest; and third, the regulation must be "narrowly drawn."

Florida Bar v. Went For It, U.S. , 115 S. Ct. 2371, 2375-76, 132 L. Ed. 2d 541 (1995)(citations omitted); see Abramson v. Gonzalez, 949 F.2d 1567, 1575 (11th Cir. 1992)

The parties in this case have incorrectly focused on the Central Hudson test, however. Indeed, the parties have overlooked "material differences between disclosure requirements and outright prohibitions on speech." See Zauderer v. Office of Disciplinary Counsel of the Supreme Ct. of Ohio, 471 U.S. 626, 650, 105 S. Ct. 2265, 2281, 85 L. Ed. 2d 652 (1985). In Zauderer, an

attorney challenged as violative of the First Amendment a state requirement that he include, in advertising his availability on a contingent fee basis, "the information that clients might be liable for significant litigation costs even if their lawsuits were unsuccessful . . . ." 471 U.S. at 650. Zauderer argued that an assessment of the validity of this requirement involved the same analysis as and assessment of the validity of restrictions on advertising content. Id. Specifically, Zauderer suggested "the State must establish either that the advertisement, absent the required disclosure, would be false or deceptive or that the disclosure requirement serves some substantial government interest other than preventing deception," and "the State must establish that the disclosure requirement directly advances the relevant governmental interest and that it constitutes the least restrictive means of doing so." Id. In determining that such an analysis was not warranted, the Court reasoned as follows:

In requiring attorneys who advertise their willingness to represent clients on a contin- gent fee basis to state that the client may have to bear certain expenses even if he loses, Ohio has not attempted to prevent attorneys from conveying information to the public; it has only required them to provide somewhat

more information than they might otherwise be inclined to present. we have, to be sure, held that in some instances compulsion to speak may be as violative of the First Amendment as prohibitions on speech.

* * *

But the interests at stake in this case are not of the same order . . . . Ohio has not attempted to" prescribe what shall be orthodox in politics, nationalism, religion, or other

matters of opinion or force citizens to confess by word or act their faith therein." The State has attempted only to prescribe what shall be orthodox in commercial advertising, and its prescription has taken the form of a require- ment that appellant include in his advertising purely factual and uncontroversial information about the terms under which his services will be available. Because the extension of First Amendment protection to commercial speech is justified principally by the value to con-

sumers of the information such speech provides

. . . appellant's constitutionally protected interest in not providing any particular factual information in his advertising is minimal. Thus, in virtually all our commercial

speech decisions to date, we have emphasized that because disclosure requirements trench much more narrowly on an advertiser's interests than do flat prohibitions on speech, "warning[s] or disclaimer[s] might be appropriately required

. . . in order to dissipate the possibility of consumer confusion or deception."

Id. at 650-51 (citations omitted). Because disclosure requirements could nevertheless raise First Amendment concerns, the Court established a reasonable relationship test for such requirements:

We do not suggest that disclosure require- ments do not implicate the advertiser's First Amendment rights at all. We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers.

Id. at 651.

In this case, similar to the situation in Zauderer, the state has not attempted to prevent licensed mental health counselors, such as Appellant, from conveying information to the public; rather, it has merely required them to provide slightly more information than they might otherwise be inclined to present. The relatively innocuous requirement that such counselors include "LMHC" or "licensed mental health counselor" on their promotional materials is reasonably related to the state's interest in preventing deception of consumers, specifically in preventing the practice of mental health counseling by non- qualified persons and assisting the public in making informed choices regarding mental health services. See 491.002, Fla. Stat. ("intent" section of chapter 491). Accordingly, the statute at issue does not unconstitutionally restrict Appellant's First Amendment right to engage in commercial speech.

AFFIRMED.

ZEHMER, C.J., and BARFIELD, J., CONCUR.

Docket for Case No: 92-006917

Orders for Case No: 92-006917