STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORMA HOWELL, )

)

Petitioner, )

)

vs. ) Case No. 97-1881

) BOARD OF CLINICAL LABORATORY ) PERSONNEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard on June 26, 1997, in Brooksville, Florida, by Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michelle L. Proctor, Esquire

7637 State Road 52

Bayonet Point, Florida 34667

For Respondent: Edwin A. Bayo, Esquire

Department of Legal Affairs The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

Whether Petitioner's request that she be reissued a medical technologist license without taking an examination should be approved.

PRELIMINARY STATEMENT

This matter began on April 11, 1997, when Respondent, Board of Clinical Laboratory Personnel, issued its Notice of Intent to Deny Variance or Waiver from Rule 59O-7.001(2), Florida Administrative Code, filed on behalf of Petitioner, Norma Howell. By her request, Petitioner asked for a variance or waiver from the requirement that she be required to take an examination to reinstate her medical technologist license. The license had previously become "null and void" by operation of law on June 30, 1996, when Petitioner failed to timely request a change in the status of her license from delinquent to active.

Petitioner requested a formal hearing to contest the agency's action. The case was referred by Respondent to the Division of Administrative Hearings on April 17, 1997, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated May 22, 1997, a final hearing was scheduled on June 26, 1997, in Brooksville, Florida. On June 23, 1997, the case was transferred from Administrative Law Judge Don W. Davis to the undersigned.

By Order dated May 29, 1997, Petitioner was allowed to "further define issues for consideration of this matter." These issues are identified in the prehearing stipulation filed by the parties and include a contention that the agency failed to give Petitioner proper notice before her license was rendered null and

void.

At final hearing, Petitioner testified on her own behalf.

Respondent presented the testimony of Dr. Patricia A. Johns, program administrator. Also, it offered Respondent's composite exhibit 1 which was received in evidence.

The transcript of hearing was filed on July 14, 1997.

Proposed findings of fact and conclusions of law were due on July 29, 1997. None were timely filed by the parties.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this proceeding, Petitioner, Norma Howell, seeks to have her medical technologist license reactivated after it was rendered "null" by operation of law on June 30, 1996. A Notice of Intent to Deny Application for Licensure was entered by respondent, Board of Clinical Laboratory Personnel (Board), on March 21, 1997. Because Petitioner requested that the Board grant a variance or waiver of the rule requiring her to take an examination in order to be relicensed, the Board reconsidered the matter at its April 3, 1997, meeting. On April 11, 1997, the Board entered its Notice of Intent to Deny Variance or Waiver on the ground Petitioner had not demonstrated that she would suffer a substantial hardship or that the application of the rule would affect her in a manner significantly different from other applicants for licensure. On May 9, 1997, Petitioner filed a

   request for a hearing in which she contended that the statute relied upon by the Board for denying her request "did not apply to her case" and that the Board "did not comply with the 90-day notification requirement of the statute which it relied upon to nullify her license."

2. Petitioner has been practicing in the field of medical technology for some thirty years and she has practiced in Florida for at least nine years. Until this controversy arose, she held medical technologist supervisor license number JC-0026722.

3. Prior to July 1, 1994, medical technogist licenses were subject to the regulatory authority of the former Department of Health and Rehabilitative Services (HRS). At that time, licenses were issued for two-year periods, and if not renewed, they "automatically" reverted to an inactive status. Section 483.819, Florida Statutes (1993), provided that if a license was inactive for less than one year, it could be reactivated by payment of a late renewal penalty. If the license was inactive for more than one year but less than five, it could be reactivated "upon application" to HRS and proof that the licensee had completed 15 hours of continuing education requirements for each year the license was inactive, but not more than a total of 65 hours. If a license was inactive for more than five years, it was automatically suspended, but one year prior to the date the suspension took effect, HRS was required to give written notice to the licensee. Once suspended, a license could not be

   reactivated unless a licensee met all "requirements for reinstatement." Among other things, HRS possessed the discretionary authority to require reexamination before reinstatement.

4. Effective July 1, 1994, Section 483.819, Florida Statutes (1993), was repealed, and regulatory authority over medical technologist licensees was transferred from HRS to the Department of Business and Professional Regulation (DBPR). In addition, a new Section 455.271, Florida Statutes (Supp. 1994), was created to provide new requirements relative to the inactive and delinquent status of all professional licenses, including those for medical technologists. Section (5) provided that the "[f]ailure of a licensee to renew before the license expires shall cause the license to become delinquent in the license cycle following expiration." Section (6) provided that:

   a delinquent status licensee must affirmatively apply with a complete application, as defined by rule of the board, or the department when there is no board, for active or inactive status during the licensure cycle in which a licensee becomes delinquent. Failure by a delinquent status licensee to become active or inactive before the expiration of the current licensure cycle shall render the license null without any further action by the board or the department. (Emphasis added)

   The same subsection provided that once a license was rendered "null," any subsequent licensure "shall be as a result of applying for and meeting all requirements imposed on an applicant for new licensure." In other words, a licensee would have to

   retake the examination in order to be relicensed.

   
   

5. As a safeguard to automatic cancellation of a delinquent license, however, new Section 455.273 (Supp. 1994), provided that "[a]t least 90 days before the end of a licensure cycle, the Department of Business and Professional Regulation shall . . . [f]orward a notice of pending cancellation of licensure to a delinquent status licensee at the licensee's last known address of record with the department."

6. Against this statutory backdrop, Petitioner's license was due for renewal on June 30, 1994, when her latest biennial cycle ended. Because the license was not renewed, it became delinquent under the terms of Section 455.271(5). Therefore, it was incumbent on Petitioner to seek active or inactive status before the end of the next licensure cycle, or by June 30, 1996, or have her license rendered "null" by operation of law. It is noted that Petitioner was one of approximately 2,000 licensees whose license was not renewed at the end of the June 30, 1994, licensure cycle and thus became delinquent.

7. In January 1992 Petitioner relocated from Florida to Mississippi in order to care for her elderly mother. She continued working as a medical technologist in Mississippi. When her license came up for renewal on June 30, 1994, Petitioner had no need for an active Florida license and therefore did not renew it. She assumed, however, that she could keep it in an inactive, delinquent status for up to five years under the terms of Section

   483.819, Florida Statutes (1993).

   
   

8. Petitioner acknowledges that she became aware of the new law in general terms, but not in specifics, in June 1995. This occurred when the Board her sent a Notice to Delinquent and Inactive Licensees advising that changes in the law had been made and that "the changes affected the manner in which licensees regulated under Chapter 483, F.S., clinical laboratory personnel, may reactivate a license or request to be placed on inactive status." The notice further provided that if Petitioner "would like to receive an application to reactivate (her) license or to be placed on inactive status," she should fill out a form at the bottom of the Notice and return it to the Board. There was no mention in the Notice that Petitioner's license would become "null" by operation of law if she did not take affirmative action by June 30, 1996.

9. In response to the Notice, on June 16, 1995, Petitioner filed the Notice and form with the Board requesting that she be sent an application to place her license in an inactive status.

10. The Board says that the Notice described in finding of fact 8 was a part of a packet of information attached to a form letter sent to all delinquent status licensees on May 27, 1995. According to a Board representative, the form letter contained an admonition to licensees that unless they reactivated their licenses by June 30, 1996, their licenses would be null and void. However, the actual contents of the letter are not of record.

    This is because the letter was not identified by Respondent's counsel as an exhibit in the prehearing stipulation; it was not a part of the Board's official file pertaining to Petitioner; opposing counsel had no notice that such a letter existed or would be used as evidence at hearing; and thus it was not received in evidence.

11. Even though the form letter was sent some thirteen months before the licensure cycle ended, the Board takes the position that it constituted the statutory notice of pending cancellation required by Section 455.273(1)(b) to be sent to each delinquent status licensee "at least 90 days before the end of the licensure cycle." Board records do not establish that Petitioner received the form letter, and she denies having received any statutory notice of pending cancellation.

12. Approximately two thousand (out of eighteen thousand) licenses under the Board's jurisdiction became delinquent because they were not renewed by June 30, 1994. While the number that were automatically cancelled on June 30, 1996, by operation of law is not of record, only four licensees, including Petitioner, have asked that their licenses be reinstated because of cancellation. Given this unusual circumstance, it is reasonable to accept Petitioner's testimony that she did not receive a notice of cancellation as required by law. This omission by the Board, while unintentional, constituted a material error in procedure which occasioned serious prejudice to Petitioner.

13. In addition to filing the form on June 16, 1995, Petitioner also sent a letter to the Board on June 23, 1995. The letter stated, in pertinent part, as follows:

    Please place my Medical Technologist Supervisor's Lic # JC 0026722 on inactive status until further notice. I am presently residing in Mississippi. Enclosed is the required fee of $25.00 plus copies of Continuing Education certificates; 39 hrs.

    
    

    The letter provided her most current address in Mississippi, and it contained a postscript that "[i]f an additional form is necessary please advise."

14. By letter dated June 28, 1995, the Board acknowledged receiving Petitioner's letter and check. In the letter, a Board representative advised petitioner that her "request for inactivation of licensure . . . cannot be processed" because she had sent an incorrect fee and a formal application had to be completed. The letter indicated that an application to reactivate her license was also enclosed.

15. Apparently in response to the June 16, 1995, request for an application form, on July 14, 1995, the Board sent Petitioner another reactivation application. Because Petitioner did not want to reactivate her license, but she only wanted to place her license in an inactive status, she did not complete the application at that time. Again, however, she assumed that her license could remain inactive for up to five years after June 30, 1994, without placing it in jeopardy.

16. Petitioner received no further advice, oral or written,

    from the Board until after she filed a Reactivation Application with the Board on December 19, 1996, together with a $470.00 fee and proof of 39 hours of continuing education. She did so at that time since she had been offered a job in Florida and intended to relocate to this state.

17. On December 20, 1996, Petitioner and the Board's administrator spoke by telephone regarding Petitioner's application. Among other things, Petitioner was told that her license was null and void by operation of law since she failed to reactivate her license by June 30, 1996. On December 27, 1996, the administrator sent Petitioner a letter in which she reconfirmed this fact, but advised that the matter would be taken up by the Board. Petitioner asked that an exception be made since she lived out-of-state and had never received notice of cancellation. The Board later denied her request.

18. Rule 59O-7.001(2), Florida Administrative Code, prescribes the examination requirements for licensure as a supervisor. The purpose of the underlying statute is to ensure minimum competency of all persons engaging in the profession. Petitioner has satisfied this purpose by having successfully practiced in the field for some thirty years and being certified in five specialties. In addition, during the period of time in which her license was delinquent, she successfully completed all necessary continuing education courses.

19. If the request for a variance or waiver is denied,

    Petitioner will suffer economic hardship since she will be unable to practice her profession in Florida until she passes an examination. More specifically, she will be unable to accept a pending job offer as a medical technologist supervisor.

20. Unusual circumstances are present here. Of the two thousand licensees in a delinquent status after June 30, 1994, only Petitioner has contended that she failed to receive the statutory notice of cancellation. To her detriment, the license was subsequently cancelled by operation of law. The literal application of the rule requiring an examination would unintentionally penalize Petitioner's good faith efforts to reactivate her license.

21. Because it is presumed that all other licensees in a delinquent status received notice of pending cancellation, Petitioner will be treated in a manner significantly different from the way the rule affects other similarly situated persons seeking licensure. That is to say, any other persons requesting relief from the rule because of automatic cancellation on June 30, 1996, would have been on notice that unless they renewed their license by that date, they would be subject to the terms of the rule. Petitioner had no such notice. Therefore, fairness requires an exception.

22. Petitioner has paid all filing fees and completed all continuing education courses necessary for reactivation. If her

    request is ultimately denied, she is entitled to a refund of her fees.

    CONCLUSIONS OF LAW

    
    

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

24. As the party seeking to establish entitlement to her license through a waiver or variance of a rule or through the failure of the Board to follow a statutory procedure, Petitioner bears the ultimate burden of persuasion as to those issues.

25. Petitioner originally sought licensure on the theory that, under the circumstances presented here, she qualified for a variance or waiver of Rule 59O-7.001(2), Florida Administrative Code, which imposes an examination requirement for licensure.

    She has subsequently added a contention that the Board failed to "forward a notice of pending cancellation of licensure" at least

    90 days before the end of the licensure cycle as required by Section 455.273(1)(b), Florida Statutes. She essentially argues that without such a notice, her license could not be rendered null by operation of law.

26. Petitioner seeks a variance or waiver from the requirements of Rule 59O-7.001(2), Florida Administrative Code. That rule imposes a requirement that "for licensure as a supervisor," an examination is required. The purpose of the underlying statute, Section 455.2173, Florida Statutes, is to

    "ensure that . . . the examinations adequately and reliably measure an applicant's ability to practice the profession regulated by the agency."

27. A variance and waiver are defined in Sections 120.52(18) and (19), Florida Statutes, "as a modification to all or part of the literal requirements of an agency rule" and "a decision by an agency not to apply all or part of a rule to a person who is subject to the rule." The general premise behind the statutory scheme is that it gives agencies flexibility to deal with unusual circumstances. Thus, when unusual circumstances are present, as is the case here, the agency is no longer obliged to rigidly follow its rules where the consequences of doing so "can lead to unreasonable, unfair, and unintended results in particular instances." Section 120.542(1), Florida Statutes.

28. Section 120.542(2), Florida Statutes, authorizes the Board to grant variances and waivers:

    when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of the rule would create a substantial hardship or would violate principles of fairness. For purposes of this section, "substantial hardship" means a demonstrated economic . . . hardship to the person requesting a variance or waiver. For purposes of this section, "principles of fairness" are violated when the literal application of a rule affects a particular person in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule.

29. The established evidence supports a conclusion that Petitioner qualifies for a waiver or variance of the rule. More specifically, she has demonstrated that she will suffer economic hardship if the examination requirements of the rule are applied to her, and she has shown that the rule affects her "in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule." Importantly, too, she has satisfied the purpose of the underlying statute through thirty years of experience in the profession and completion of all required continuing education courses. Therefore, Petitioner has established that a "[s]trict application of uniformly applicable rule requirements can lead to unreasonable, unfair, and unintended results." Section 120.542(1), Florida Statutes. This being so, her request for a waiver or variance from the rule should be granted.

30. As to Petitioner's alternative theory for entitlement, the more credible and persuasive evidence supports a conclusion that the Board, albeit unintentionally, failed to provide Petitioner with notice of cancellation at least ninety days before the end of the licensure cycle as required by Section 455.273(1)(b), Florida Statutes. This error in procedure was material, and Petitioner demonstrated that she was severely prejudiced by the error. Under these circumstances, Petitioner's application should be considered as being timely filed, and it should be judged on its merits. If she satisfies all relevant

    requirements for licensure, such as the payment of fees and completion of continuing education courses, the application should be approved. Because the evidence shows that Petitioner meets all requirements for reactivation of her license, the application should be granted on merits.

31. In summary, by granting Petitioner's request for a waiver or variance from the requirements of Rule 59O-7.001(2), Florida Administrative Code, and reinstating her license, the Board can avoid the "unintended results" that have befallen her. Alternatively, she is entitled to licensure on the merits of her application due to the material error in procedure.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Board of Clinical Laboratory Personnel enter a final order granting Petitioner's request for a waiver or variance from Rule 59O-7.001(2), Florida Administrative Code, and reinstating her license number JC-0026722.

DONE AND ENTERED this 31st day of July, 1997, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675, SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1997.

COPIES FURNISHED:

Eric G. Walker, Executive Director Board of Clinical Laboratory Personnel 1940 North Monroe Street

Tallahassee, Florida 32399-2200

Lynda L. Goodgame, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Michelle L. Proctor, Esquire 7637 State Road 52

Bayonet Point, Florida 34667

Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol

Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the Board of Clinical Laboratory Personnel.

Docket for Case No: 97-001881

Orders for Case No: 97-001881