STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JASPER O. BELL, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2825

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, DIVISION OF )

PROFESSIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton II, on February 11, 1982. The Division of Administrative Hearings received a transcript of proceedings on March 1, 1982.

APPEARANCES

For Petitioner: pro se.

For Respondent: Salvatore A. Carpino, Esquire

130 North Monroe Street Tallahassee, Florida 32301

ISSUES

Petitioner seeks licensure by respondent as an acupuncturist, and contends that respondent's proposed denial of his application would be improper because respondent proposes to rely on Rule 21-12.08, Florida Administrative Code, even though it was adopted after the application petitioner filed, and because respondent allowed too much time to pass (a) before requesting additional information from petitioner, (b) before acting dispositively on his application, and (c) before forwarding his request for a formal hearing to the Division of Administrative Hearings.

Neither Mr. Bell's age nor whether he paid the $200 application fee is at issue in these proceedings. Petitioner seemed to contend, in a pleading filed three days before the final hearing, that Rule 21-12.08, Florida Administrative Code, is invalid. At the hearing, petitioner argued that Rule 21-12.08, Florida Administrative Code, did not square with Section 455.201, Florida Statutes (1981). The hearing officer declined to reach the merits of this contention, but without prejudice to petitioner's filing a rule challenge pursuant to Section 120.56, Florida Statutes (1981), or pursuing the matter on appeal under the authority of State ex rel. Department of General Services v. Willis, 344 So.2d 580, 592 (Fla. 1st DCA 1977).

FINDINGS OF FACT

1. On July 27, 1981, respondent Department received petitioner's form "Application for Acupuncture Examination." Petitioner's Exhibit No. 1.

   
   

2. Thereafter, on September 18, 1981, the Department filed its acupuncture rules with the office of the Secretary of State. Petitioner's Exhibit No. 3. These rules, including Rule 21-12.08, Florida Administrative Code, became effective 20 days later on October 8, 1981. Petitioner's Exhibit No. 3.

   
   

3. On September 22, 1981, Mrs. Ann M. Mayne wrote petitioner Bell on behalf of the Department advising him that his "application for the acupuncture examination ha[d] been reviewed . . . [and determined to be] incomplete . .

   . [for failure to include an] official transcript from a school . . . approved in accordance with Rule 21-12.08 . . . [and/or failure to include an] affidavit . . . signed by an officer of the school . . . certifying to applicant's satisfactory completion of . . . training." Hearing Officer's Exhibit No. 2. The letter also advised:

   
   

   Your school or college has not been approved by this Department. The Department is in the process of trying to determine if your school meets the qualifications as set forth in Rule 21-12.08 in order for your school or college to be considered for approval.

   
   

   [Y]our acupuncture license and admission to the next acupuncture examination is denied, based on the deficiencies as indicated above. If all of this material is received in this office by October 9, 1981, your application will be reconsidered for the November 1981 examination. Otherwise, you will have to be considered for a subsequent examination.

   
   

   In accordance with 120.60(2), Florida Stat- utes, you have a right to a 120.57 hearing on this matter, if you request same within thirty (30) days of the date of this letter.

   
   

   Hearing Officer's Exhibit No. 2. On October 6, 1981, petitioner furnished the Department an official transcript attested to by one Walter D. Sturm, "President and Alumni Director" of the Occidental Institute of Chinese Studies Alumni Association. Petitioner's Exhibit No. 1.

   
   

4. The Department of Professional Regulation received a telegram on October 16, 1981, which read: "REQUEST 120.57 HEARING REGARDING ACUPUNCTURE EXAM JASPER ODELL BELL AND YVONNE MARION BELL." Petitioner's Exhibit No. 4.

   The Department received a letter from petitioner on October 22, 1981, "a follow- up letter to telegram of October 16, 1981." Petitioner's Exhibit No. 1. In this letter, dated October 20, 1981, petitioner stated, "I request a 120.57 hearing . . . due to the September 22nd letter's denial of admission to

   November acupuncture examination based on deficiencies indicated in that letter and the lack of your response within the 30-day hearing deadline." Petitioner's Exhibit No. 1. From records of the Division of Administrative Hearings, it appears that this letter, together with a request that a hearing officer be assigned, was received by the Division of Administrative Hearings on November 12, 1981.

   
   

5. Mr. Inge, deputy director of respondent's Division of Professions, wrote Mr. Bell on November 18, 1981, as follows:

   
   

   Your application for the acupuncture examination has been reviewed and is hereby denied based on the information contained

   in your application and the findings thereof.

   Based on the information received from your school or college, it has been deter- mined that your school or college does not meet the criteria as set forth in Rule

   21-12.08 in order to be approved by this Department.

   Pursuant to 120.60(2), Florida Stat- utes, your acupuncture license and admis- sion to the next examination is denied, based on your failure to qualify pursuant to Chapter 468, Part VIII and the rules adopted thereunder.

   In accordance with 120.60(2), Florida Statutes, you have a right to a 120.57 hear- ing on this matter, if you request same within 30 days of the date of this letter.

   Hearing Officer's Exhibit No. 1.

   
   

   The parties stipulated that the Department has yet to approve any school or college as meeting the criteria set forth in Rule 21-12.08, Florida Administrative Code.

   
   

6. Petitioner's proposed findings of fact and conclusions of law have been given careful consideration, and the proposed fact findings have been adopted to the extent that they were relevant and supported by the evidence, but not otherwise.

   
   

   CONCLUSIONS OF LAW

   
   

7. When an agency has "set forth in writing the grounds or basis for [proposed] denial of a license," Rule 28-6.08(2), Florida Administrative Code; see Section 120.60(2), Florida Statutes (1981), "unless otherwise provided by law the applicant shall have the burden of establishing entitlement." Rule 28- 6.08(3), Florida Administrative Code. See Department of Transportation v.

   J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). The grounds stated in Mr. Inge's letter of November 18, 1981, boil down to the Department's "determin[ation] that [petitioner's] school or college does not meet the criteria as set forth in Rule 21-12.08 in order to be approved by this

   department." Hearing Officer's Exhibit No. 1. Petitioner does not argue that his school or college does meet those criteria. He contends that Rule 21-12.08, Florida Administrative Code, cannot be applied retroactively and that he is entitled to sit for the acupuncture examination pursuant to Section 120.60, Florida Statutes (1981).

   
   

   RULE RETROACTIVITY

   
   

8. Petitioner's contention that he should be admitted to the acupuncture examination because Rule 21-12.08, Florida Administrative Code, was adopted after he had applied for licensure must be rejected. In pertinent part, Section 468.323, Florida Statutes (1981), provides:

   
   

   1. A person may become certified to practice acupuncture if he:

      (b) Furnishes satisfactory evidence to the department that he:

      I. Has completed a 2-year program of education in acupuncture in a school or col- lege approved by the department; . . . (Emphasis supplied.)

      
      

      While Rule 21-12.08, Florida Administrative Code 1/ , sets forth the criteria on the basis of which the Department is to approve or disapprove schools, the evidence did not establish that petitioner's "program of education in acupuncture" would have been approved by the Department but for the rule. At the hearing, petitioner adverted to respondent's admissions in response to these requests for admissions:

      
      

      (F) Respondent had not rejected Petitioner's academic training institute at the time Respondent accepted a $200.00 non- refundable application fee.

      (K) That prior to accepting $200.00 non-refundable fee, the Respondent

      had not rejected any academic training institute.

      
      

      Although the Department "had not rejected Petitioner's academic training institute," neither had the Department approved petitioner's "program of education in acupuncture." At the time of the hearing, the Department had approved no educational program before or since adoption of Rule 21-12.08, Florida Administrative Code.

      
      

      TIME REQUIREMENTS

      
      

9. In pertinent part, Section 120.60, Florida Statutes (1981), provides:

   
   

   1. . . . Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omis- sions, and request any additional informa- tion the agency is permitted by law to require. Failure to correct an error or omission or to supply additional informa-

      tion shall not be grounds for denial of

      the license unless the agency timely noti- fied the applicant within this 30-day

      period. . . . Every application for license shall be approved or denied within 90 days after receipt of the original application

      or receipt of the timely requested addi- tional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law. The 90-day or shorter time period shall be tolled by the initiation of a proceeding under s120.57 and shall resume 10 days after the recommended order is submitted to the agency and the parties. Any appli-

      cation for a license not approved or denied within the 90-day or shorter time period, within 15 days after conclusion of a public hearing held on the application, or within

      45 days after the recommended order is sub- mitted to the agency and the parties, which- ever is latest, shall be deemed approved and, subject to the satisfactory completion of an examination, if required as a prereq- uisite to licensure, the license shall be issued. . .

      
      

      With respect to bank charters and the like, Section 120.60(4), Florida Statutes, sets the default time at 180 days, or 30 days after a public hearing concludes, and provides that an application "not approved or denied" within the period "shall be deemed approved subject to the satisfactory completion of conditions required by statute Section 120.60(4)(c), Florida Statutes (1981).

      
      

      EFFECT OF INJUNCTION

      
      

10. On October 14, 1981, the Circuit Court for the Second Judicial Circuit, per Hall, J., entered an injunction enjoining the Department "from enforcing and implementing the provisions of Chapter 468, Florida Statutes, through testing and final certification of applicants for licensure under that Chapter." Pan Jau Chi v. Department of Professional Regulation, No. 81-2259 (Fla. 2d Cir.). Petitioner was never a party to any of the proceedings in the Pan Jau Chi case. The injunction was conditioned on the filing of a bond. The hearing officer discovered no evidence in the court file that any bond was ever filed. The Department filed a notice of appeal directed to the injunction the following day, October 15, 1981. On October 23, 1981, Pan Jau Chi and the two other plaintiffs filed a motion for order dissolving stay. This motion was denied by order dated November 5, 1981, and entered on November 6, 1981. All parties to the litigation filed a joint motion for order dissolving preliminary injunction, and this motion was granted by order dated November 5, 1981, and entered on November 6, 1981.

    
    

11. The appellate rules provide that a notice of appeal "shall automatically operate as a stay pending review . . . when the state or other public body seeks review . . . ." Rule 9.310(b)(2), Fla.R.App.P. The plaintiffs' motion to dissolve the automatic stay proved unavailing. Even if

    the plaintiffs in the Pan Jau Chi case filed a bond, therefore, the injunction was in effect for no more than one day, and does not affect the outcome of the present case. Petitioner's application never reached the testing or final certification stage, moreover.

    
    

    REQUEST FOR ADDITIONAL INFORMATION

    
    

12. One view is that "the 30-day time limitation or requirement prescribed by s120.60(2) . . . cannot be waived by the applicant for a license or the licensing agency." Attorney General's Opinion 077-41 (1977). Even if a waiver is possible in some circumstances, supplying additional information in response to the Department's untimely request could not extend the 30-day period. Petitioner did not waive the 30-day limit on agency requests for additional information or any other time limit "by complying with the Department's request for additional information." World Bank v. Lewis, 406 So.2d 541, 542 (Fla. 1st DCA 1981).

    
    

13. It does not follow, however, as petitioner contends, that he is entitled to admission to the examination simply because the Department's request for additional information was made more than 30 days after the application was filed. For purposes of Section 120.60, Florida Statutes (1981), an untimely request has the same legal effect as no request at all: The running of the 90- day period continues uninterrupted and the agency is foreclosed from denying a license application for "[f]ailure to correct an error or omission or to supply additional information." Section 120.60(2), Florida Statutes (1981).

    
    

    NINETY DAYS PLUS

    
    

14. As respondent's counsel conceded at the final hearing, "it certainly would appear that [time spent processing petitioner's application was] over ninety days." (T. 77.) In fact, 114 days elapsed before the Department denied petitioner's application. While not free from ambiguity, the Department's letter of September 22, 1981, should be construed as a request for additional information; and as a denial only in the event no additional information had been supplied.

    
    

    HEARING DEMANDS

    
    

15. In the same letter in which the Department advised petitioner that his application was incomplete because it lacked a transcript and an affidavit, in addition to soliciting the omitted documents, the Department advised him of "a right to a 120.57 hearing on this matter, if . . . request[ed] . . . within thirty (30) days." Petitioner submitted the requested documents but heard nothing. He then requested an administrative hearing first by telegram then by a follow-up letter. Respondent contends that these requests, arriving on the 81st and 87th days, tolled the running of the 90 days, even though they were not acted on by the Department until some 108 days had passed. 2/

    
    

16. The Department's contention must be rejected on the unique facts of the present case. This is not a situation where specific rules or statutes require hearings for licensure without regard to the licensing agency's intentions, or where a third party objecting to issuance of a license has requested a hearing. Petitioner himself requested a hearing in response to the Department's letter of September 22, 1981.

17. If the Department had made a timely request for additional information, petitioner would have had the election to submit additional information and await the Department's determination or to stand on the application as originally filed and demand an administrative hearing 3/ . The letter of September 22, 1981, was intended to communicate this choice to petitioner but was worded so as to make petitioner reasonably believe he had to demand a hearing by August 21, 1981, in order not to forfeit his right to a hearing on his application as supplemented. Even though the request for information was not timely, petitioner elected to furnish the information the Department had requested. He later filed a request for administrative proceedings only because the Department's letter of September 22, 1981, misled him to believe he had to in order to preserve his rights to an administrative hearing. The Department cannot escape the 90-day requirement by "entrapping" applicants into filing premature requests for administrative hearings. It is significant that the Department itself continued to process petitioner's application, once the additional information had been furnished, as if no hearing demand had been filed.

    
    

18. Even though, moreover, in World Bank v. Lewis, 406 So.2d 541 (Fla. 1st DCA 1981), "a hearing was pending," 406 So.2d at 542, the court ordered that an application for a bank charter "be deemed approved, subject to satisfactory completion of statutory requirements," World Bank v. Lewis, 406 So.2d 541, 543 (Fla. 1st DCA 1981), for failure to act on the application within the 180-day period analogous to the 90-day period prescribed by Section 120.60(2), Florida Statutes (1981).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the Department deem petitioner's application approved and, subject to the satisfactory completion of an examination, license petitioner as an acupuncturist.

DONE AND ENTERED this 29th day of March, 1982, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1982.

ENDNOTES

1/ See Appendix.

2/ More than 15 days elapsed between the filing of a petition for hearing and the forwarding of the petition to the Division of Administrative Hearings, but this in itself did not affect petitioner's substantial rights.

3/ If the request for information had been timely and if petitioner had declined to submit additional information and demanded a hearing, then there would be no 90-day problem because the Department's determination based on all materials would already have been made.

APPENDIX

21-12.08 APPROVAL OF SCHOOLS

1. The Department shall approve each school or college which offers a two

2. year program of education in acupuncture and which submits satisfactory evidence to the Department of the following:

   1. A program of acupuncture education of not less than 1800 hours classroom, which shall consist of a minimum of 800 hours of academic study of acupuncture and 1000 hours of supervised clinical acupuncture practice;

   2. A curriculum which includes a minimum of 200 hours of theoretical training in the following:

      1. History of medicine - a survey of medical history, including transcultural healing practices;

      2. Medical terminology and patient histories - fundamental English language medical terminology and patient histories;

      3. General sciences - a survey of biology, chemistry, physics, biochemistry,- and the behavioral sciences, including psychology;

      4. Anatomy - a survey of microscopic and gross anatomy;

      5. Physiology - a survey of basic physiology, including neurophysiology, endocrinology and neurochemistry;

      6. Pathology - a survey of the nature of disease and illness, including microbiology, immunology, psychopathology, and epidemiology;

      7. Clinical sciences - a review of internal medicine, pharamacology [sic]

         , neurology, surgery, obstetrics/gynecology, urology, radiology, nutrition and public health, including an approved course in cardiopulmonary resuscitation; and

      8. Clinical medicine - a survey of the clinical practice of medicine,

      osteopathy, dentistry, psychology, nursing, chiropractic, podiatry, and naturopathy to familiarize practitioners with the practice of other health care practitioners.

   3. A curriculum which includes a minimum of 600 hours of theoretical training in the following:

      1. Traditional Oriental Medicine - a survey of the theory and practice of traditional diagnostic and therapeutic procedures;

      2. Acupuncture anatomy and physiology - fundamentals of acupuncture, including meridian system, special and extra loci, and auriculotherapy;

      3. Acupuncture techniques - instruction in the use of needling techniques, moxibustion, and electroacupuncture, including precautions, (e.g., sterilization of needles) , contraindications and complications; and

      4. Practice management - instructions in the legal and ethical aspects of maintaining a professional practice, including record keeping, professional liability, and patient records.

   4. The curriculum shall include adequate clinical instruction which includes direct patient contact where appropriate in the following:

      1. Practice observation - supervised observation of the clinical practice of acupuncture with case presentations and discussions;

      2. Diagnosis and evaluation - the application of eastern and western diagnostic procedures in evaluating perspective [sic] patients; and

      3. Supervised practice - the clinical practice of acupuncture under the direct supervision of a certified acupuncturist.

   5. The program of education in acupuncture shall be located in an institution authorized, accredited or approved by the appropriate governmental accrediting authority.

   6. The training program shall provide evaluation mechanisms to determine the effectiveness of its theoretical and clinical program.

   7. Course work shall carry academic credit.

   8. The training program may establish equivalency and proficiency testing and other mechanisms whereby full academic credit is given for past education and experience in the course of the curriculum required in Subsection (1)(b) of this Rule.

   9. The Director of the clinical portion of the training program shall be a certified acupuncturist.

COPIES FURNISHED:

Jasper Odell Bell

1800 Northwest 107 Street

Miami, Florida 33167

Salvatore A. Carpino, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

H. F. Bevis, Director Division of Professions

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002825

Orders for Case No: 81-002825