D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: E. Renee Alsobrook, Esquire
Alsobrook and Dove, P.A. 2074 Thomasville Road Post Office Box 10426
For Respondent: Edward A. Tellechea, Esquire
Whether Petitioner's license to practice clinical social work was lawfully annulled.
This case began on March 16, 1998, when the Petitioner, Patricia Katz, filed a Petition for Formal Hearing, Motion to Vacate Null and Void Licensure Status and Emergency Petition for Variance of Rule 64B-3.003(4 and 5). The Respondent, Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling, forwarded the matter to the Division of Administrative Hearings for formal proceedings on June 29, 1998. In the interim, Petitioner had also filed a Petition for Initiation of Proceedings which alleged Petitioner had been denied notice of the annulment of her license prior to the agency action of same. The Respondent disputes the procedural deficiencies alleged by Petitioner and maintains that, by operation of law, Petitioner's license was appropriately annulled.
At the hearing, Petitioner testified in her own behalf and offered Exhibits 1 through 5, which were received into evidence. Respondent offered testimony from Susan Foster, Executive Director for the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling; Cynthia Wooten, a Regulation Specialist for the Department of Health; and Melissa Meadows, an OMC manager with the Department of Health.
Respondent's Exhibits 1 and 2 were also received into evidence. The transcript of the proceedings was filed on November 3,
1998. Thereafter, the Respondent filed a Motion for Extension of
Time to File Proposed Recommended Order which was granted. Without objection from Petitioner, a late-filed exhibit, the deposition testimony of the Petitioner, was filed by Respondent on November 25, 1998. The parties were granted leave until
5:00 p.m., November 25, 1998, to file their proposed orders which have been considered in the preparation of this Recommended Order.
Petitioner, Patricia Katz, was licensed as a clinical social worker in Florida, license number SW 0002228, on March 31, 1989. Thereafter, Petitioner intended to remain fully licensed.
The Respondent is the state agency charged with the responsibility of regulating and licensing clinical social workers within the State of Florida.
Based upon the testimony of Petitioner and documentary evidence received in this cause, it is undisputed that Petitioner remained actively licensed until January 31, 1995.
Prior to the expiration of her license in January 1995, the Respondent was required to send Petitioner a license renewal notice. Renewal notices are typically computer generated and the Respondent does not maintain copies of the notices to verify that they are sent to, or received by, its licensees.
In this case, there is no direct evidence to establish Petitioner received the renewal notice; however, the computer records maintained by the Respondent reflect that the renewal
notice was sent to Petitioner's Miami address on or about September 20, 1994.
The address the Respondent maintained for Petitioner for the 1995 renewal time frame was accurate: 9720 Southwest 159th Street, Miami, Florida.
In June 1995, Petitioner acquired a new residence in Broward County, Florida. She has remained at the Broward residence, 762 Heritage Drive, Weston, Fort Lauderdale, Florida, continuously since that time.
In August 1995, Petitioner sold her old residence in Miami. Between this sale and the acquisition of the Broward residence, Petitioner maintains she notified the Respondent, in writing, of the address change.
For some unexplained reason, the Respondent did not change its records regarding Petitioner's address. It continued to carry Petitioner's address as the Miami residence.
For some unexplained reason, Petitioner did not contact the Respondent, in writing, to question why she did not receive a renewal notice for the 1995-97 period.
Petitioner knew or should have known that her license renewals were due every two years. In addition to renewal forms, license fees are due and payable to the Respondent at renewal time.
Had Petitioner renewed her license for the 1995-97 period, it would have expired at the end of January 1997.
In October 1996, Respondent, again by way of the computer-generated form, sent Petitioner a notice of license nullification. According to the computer records, this notice was also sent to the Petitioner's old Miami address. Respondent does not have a copy of the notice or verification that Petitioner received it.
In February 1997, the Respondent declared Petitioner's license null and void.
Petitioner chose not to renew her license in January 1995, but believed it had automatically gone into an "inactive" status which would continue indefinitely.
During this time Petitioner encountered several personal challenges which rightfully preempted her interest in her license status. Among these crises were two close relatives with cancer who required her assistance.
Nevertheless, because she desired to maintain her license for the 1995-1997 time frame, Petitioner took the required continuing education courses. Such course work, completed during calendar year 1996, is fully documented in Petitioner's Exhibit 3.
Petitioner did not pay any fees associated with her license status for the period 1995-1997.
Sometime in 1997, Petitioner became concerned regarding her license status and contacted the Respondent by telephone.
She spoke with Lucy Gee, the former executive director for Respondent, and sought clarification as to her license.
When Ms. Gee advised Petitioner that her license had been annulled as a matter of law, Petitioner immediately sought to challenge such decision.
In August 1997, the Respondent advised Petitioner that she would have to re-apply for licensure as a new licensee. Other options were not suggested.
Petitioner did not receive notice that her license would be annulled prior to the agency action in February 1997.
Petitioner was not afforded a point of entry to challenge the agency decision until March 1998. Thereafter, the Petitioner's challenge was forwarded to the Division of Administrative Hearings for formal proceedings.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
At all times material to the allegations of this case, Section 455.275, Florida Statutes (1995), was in effect and provided:
Each licensee of the department is solely responsible for notifying the department in writing of the licensee's current mailing address and place of practice, as defined by rule of the board or the department when there is no board. A licensee's failure to notify the department of a change of address constitutes a
violation of this section, and the licensee may be disciplined by the board or the department when there is no board.
Notwithstanding any other provision of law, service by regular mail to a licensee's last known address of record with the department constitutes adequate and sufficient notice to the licensee for any official communication to the licensee by the board of the department except when other service is required pursuant to s. 455.225.
Section 455.271, Florida Statutes (1995), also provided in pertinent part:
A licensee shall apply with a complete application, as defined by rule of the board, or the department when there is no board, to renew an active or inactive status license before the license expires. Failure of a licensee to renew before the license expires shall cause the license to become delinquent in the license cycle following expiration.
A delinquent status licensee must affirmatively apply with a complete application, as defined by the 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. Any subsequent licensure shall be as a result of applying for and meeting all requirements imposed on an applicant for new licensure.
Section 455.714(1), Florida Statutes (1997), provides: Renewal and cancellation notices.–
At least 90 days before the end of a licensure cycle, the department shall:
Forward a licensure renewal notification to an active or inactive
licensee at the licensee's last known address of record with the department.
Forward a notice of pending cancellation of licensure to a delinquent status licensee at the licensee's last known address of record with the department.
Section 120.60(5), Florida Statutes (1997), provides:
No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the entry of a final order, the agency has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action and unless the licensee has been given an adequate opportunity to request a proceeding pursuant to ss. 120.569 and 120.57. When personal service cannot be made and the certified mail notice is returned undelivered, the agency shall cause a short, plain notice to the licensee to be published once each week for 4 consecutive weeks in a newspaper published in the county of the licensee's last known address as it appears on the records of the agency. If no newspaper is published in that county, the notice may be published in a newspaper of general circulation in that county. If the address is in some state other than this state or in a foreign territory or country, the notice may be published in Leon County.
In this case, the agency did not enter a final order of annulment. It maintains that, as a matter of law, such annulment was appropriate because the delinquent licensee failed to correct the license status before the expiration of the licensure cycle. Because the license was null "without any further action" by the Board, the Respondent argues the notice of proposed action, as contemplated by Section 120.60, Florida Statutes, was unnecessary.
While it is undisputed the Respondent did not afford Petitioner the notice required by Section 120.60, Florida Statutes, it is concluded the failure to do so has been adequately cured by offering Petitioner the instant point of entry to challenge the underlying facts which gave rise to the Respondent's conclusion that the license had been rendered null without further action by the Board.
In this regard the record is clear. The Respondent forwarded, to Petitioner's correct address of record, a license renewal form for the license period 1995-1997. Petitioner knew her license was to be renewed for the two-year period.
Petitioner knew records are maintained by the Respondent and that it was her responsibility to notify Respondent of address changes. The address maintained by Respondent for Petitioner for the renewal was accurate.
Petitioner did not respond to the renewal license form, did not file a written request for an "inactive" status, did not remit any license fees for the period, and did not document any written communication with Respondent until June 1997.
Petitioner's assertion that by doing nothing her license status would be placed "inactive" for an indefinite period of time has been rejected. Licensees bear the responsibility of complying with license laws. Periodic renewal of the license was well known to Petitioner. If, as she claims, the renewal notice for the 1995-97 period was not received
(although mailed to her correct address), Petitioner should have immediately contacted the Respondent for assistance. She did not. Moreover, Petitioner did nothing in writing to verify that her assumptions regarding her "inactive" license status were accurate. Nor did she seek written confirmation from Respondent regarding such assumptions.
It is concluded the Respondent provided a notice of the delinquent license status to Petitioner at her last known, albeit incorrect, address prior to the annulment of her license. Petitioner bore the duty to notify the Respondent, in writing, of her address change and to comply with all license laws. If Petitioner did not receive the renewal notice sent for the
1995-97 license period (sent to the correct address), she knew or should have known there was an address problem as she knew a renewal was then due. All of the licensing confusion which ensued could then have been averted by Petitioner notifying the agency. She did nothing.
An agency is not required to track its licensees to all possible addresses. The statute and rule place the burden on licensees to keep their records current. When Respondent can demonstrate, as it did in this case, that it generated documents to the last known address, it has met its burden under the law. Petitioner has no written documentation for the period 1995 through June 1997, to support her claims. Accordingly, such claims are rejected.
