STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES R. SULLIMAN, Ph.D., )

)

Petitioner, )

)

vs. ) CASE NO. 83-1376

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

PSYCHOLOGICAL EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before Marvin

1. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on July 5, 1983, in Tallahassee, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Mallory E. Borne, Esquire

   BORNE, RHODES, JAFFRY & BORNE

   Suite 800, Barnett Bank Building Tallahassee, Florida 32301

   
   

   For Respondent: Randall A. Holland, Esquire

   Assistant Attorney General Administrative Law

   1601 The Capitol

   Tallahassee, Florida 32301 ISSUES AND BACKGROUND

   This case involves the issue of whether Petitioner's application for licensure as a psychologist was properly denied. At the formal hearing the Petitioner testified on his own behalf and called as additional witnesses Dr. F. Donald Kelly, Jr., and Dr. Jane Raker. Respondent called as its only witness Dr. Aubrey Perry. Petitioner offered and had admitted into evidence six exhibits and Respondent offered and had admitted into evidence three exhibits.

   The Department of Professional Regulation file regarding the Petitioner was offered and admitted as a joint exhibit.

   
   

   Counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings are consistent with the findings herein, they were adopted. To the extent that such proposed findings are inconsistent with the findings contained in this order, they were considered by the Hearing Officer and rejected as not being supported by the evidence or as being unnecessary to the resolution of this cause.

   FINDINGS OF FACT

   
   

   1. The Petitioner made application to Respondent to obtain a license as a psychologist by exception pursuant to the provisions of Section 1 of Chapter 81- 235, Laws of Florida, as amended by Section 37 of Chapter 82-179, Laws of Florida, and Rule 21U-11.05, Florida Administrative Code. Respondent denied Petitioner's application on the grounds that his doctoral degree did not meet the educational requirements of Subsection (2) of Rule 21U-11.05, Florida Administrative Code.

      
      

   2. It was stipulated by and between the Petitioner and the Respondent that Petitioner's doctoral degree did not meet the specific course requirements of Rule 21U-11.05, Florida Administrative Code.

      
      

   3. Petitioner received his B.A. degree from Rutger's University, a master's degree in counselor education from Florida State University, and a Ph.D. in marriage and family counseling from Florida State University.

      
      

   4. Petitioner's doctoral dissertation concerned itself with one of the key aspects of Adlerian psychology called "social interest." This dissertation was of such professional significance as to result in an appearance of Petitioner for the purpose of presenting the paper to the American Society of Adlerian Psychologists. Petitioner's course of study for his doctoral degree focused primarily on Adlerian psychology. The total course work completed by the Petitioner exceeded the minimum requirements for his Ph.D. In addition to his educational training, the Petitioner has done individual counseling and psychotherapy for approximately eleven years.

      
      

   5. Within the general field of psychology there are a host of different subdivisions. One of these subdivisions is counseling psychology. Within counseling psychology there are different theories or methods relative to dealing with individuals, and one of these methods is the Adlerian method. It was this method which was the focus of the Petitioner's dissertation for his doctoral degree.

      
      

   6. Petitioner sought his licensure by exception by contending that he obtained a doctoral degree from an approved university in a program that is primarily psychological in nature. The Petitioner's application for licensure was denied on the basis that his course of study was not primarily psychological in nature because the program did not include at least one course in biological bases of behavior or cognitive-affective bases of behavior as required by subparagraphs (a) and (b) of Subsection (2) of Rule 21U-11.05, Florida Administrative Code.

      
      

   7. Three other individuals, Dr. Kerr, Dr. Simpson, and Dr. Shreenan, applied for and were granted licensure as psychologists during the same period of time in which Petitioner applied and was denied licensure. Petitioner's educational qualifications were equal to or exceeded those of Drs. Kerr, Simpson, and Shreenan. Dr. Kerr, Dr. Simpson, and Dr. Shreenan were certified by the Florida Association of Practicing Psychologists and gained licensure as psychologists pursuant to Chapter 81-235 as amended by Section 37 of Chapter 82- 179, Laws of Florida, which mandated licensure of persons so certified.

      
      

   8. Petitioner did not apply for certification by the Florida Association of Practicing Psychologists. The evidence did not establish that Petitioner's failure to apply for such certification was in any part due to actions or inactions on the part of the Respondent. The specific course requirements of

      Rule 21U-11.05, Florida Administrative Code, were not applicable to those individuals gaining licensure through certification by the Florida Association of Practicing Psychologists. Rule 21U-11.05 was promulgated by the Board of Psychological Examiners in order to establish an objective method for evaluating the educational programs of those applying for licensure. The rule establishes the minimum qualifications for a program of study to be considered primarily psychological in nature.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.

      
      

   10. The instant case involves a denial of Petitioner's application for licensure as a psychologist under Chapter 81-235, Laws of Florida, as amended and Rule 21U-11.05, Florida Administrative Code, promulgated thereunder. Petitioner's position is that the rule, although valid on its face, has been applied to the Petitioner in a way that denied him his constitutional right to equal protection. Petitioner admitted that he did not qualify under Rule 21U- 11.05, but asserts that his qualifications were equal to or better than three individuals who were granted licensure under Chapter 81-235, Laws of Florida, as amended, and Rule 21U-11.05. However, the evidence reveals that these three individuals were licensed under a totally different section of Chapter 81-235 than that under which the Petitioner applied. The Board in promulgating its rule properly tracked the statute and the criteria set forth in the statute and properly denied Petitioner's application.

       
       

   11. Petitioner made application to the Respondent to be licensed as a psychologist under Chapter 81-235, Laws of Florida, as amended by Section 37 of Chapter 82-179, Laws of Florida. Chapter 81-235 provides:

       
       

       1. Exceptions

          1. The department shall license a person in clinical social work, marriage and family therapy, mental health counsel- ing, or school psychology who, within 6 months following the effective date of this chapter, has made application for licensure and paid the appropriate fee and who, on the effective date of this chapter:

             1. Is a legal resident of this state;

             2. Meets the education requirements prescribed herein for the profession for which licensure is sought; and

             3. Has had at least 3 years' experience in the practice of such profession.

          2. The department shall license as a psychologist any person who the board certifies:

             1. Has made application and paid the appropriate fee on or before December 31, 1981; and

             2. Holds a valid certificate to practice psychology issued by the Florida Psychological Association or the Florida Association of Practicing Psychologists, or has submitted proof satisfactory to the board that he has

                received a doctoral degree from a university or professional school accredited by an accrediting agency approved by the United States Department of Education in a program that is primarily psychological in nature and, subsequent to receiving such degree, has had

                5 years' experience, primarily psychological. Two years experience must be in Florida,

                and only one year of experience may be pre- doctoral.

          3. The exceptions of this section shall not apply to any person who is under investi- gation by another state or by an agency of this state for acts which would constitute a violation of this chapter; or who has had

       a license revoked or suspended by another state or an agency of this state.

       
       

       Section 37 of Chapter 82-179, Laws of Florida, extended the cutoff date for licensure under the above section relating to psychologists from December 31, 1981, to June 30, 1982.

       
       

   12. In order to implement Chapter 81-235, the Board promulgated Rule 21U- 11.05, Florida Administrative Code, which provides in relevant part:

       
       

       21U-11.05 Licensure by Exception.

       1. In order to be certified by the Board as eligible for issuance of a psy- chology license by exception pursuant

          to Section 490.013(2), Florida Statutes, an applicant must submit both a completed application and the fifty dollar ($50.00)

          application fee specified by Rule 21U-12.10, prior to December 31, 1981, and must demon- strate to the Board's satisfaction that he:

          1. Holds a valid certificate to prac- tice psychology issued by the Florida Psychological Association or the Florida Association of Practicing Psychologists; or

          2. Received a doctoral degree from a university or professional school accredited by an accrediting agency approved by the United States Department of Education in a program that is primarily psychological in nature and, subsequent to receiving such degree, has had 5 years' experience, primarily psychological. Two years' experience must

             be in Florida, and only one year of experience may be predoctoral.

       2. For the purposes of subsection (1)(b) above, the Board defines a program that is primarily psychological in nature as one that requires the successful completion of one course in each of the following areas:

          1. biological bases of behavior (e.g., physiological psychology, comparative psy- chology, neuropsychology, psychopharmacology),

          2. cognitive-affective bases of behavior (e.g., learning, memory, perception, cogni- tion, thinking, motivation, emotion),

          3. social bases of behavior (e.g., social psychology, cultural, ethnic, and group processes, sex roles, organizational and systems theory)

          4. individual behavior (e.g., personality theory, human development, individual dif- ferences, abnormal psychology, psychology of women, psychology of the handicapped),

          5. statistics and research methodology, and

          6. methodology for the application of psychological knowledge.

             
             

             The purpose of the criteria established under Subsection 2 of this rule was to establish an objective standard for what the Board considered to be the minimum course work necessary in order to qualify a doctoral program as primarily psychological in nature. The criteria of Subsection 2 apply only to those persons seeking licensure by exception under Subsection 1(b) of Rule 21U-11.05, Florida Administrative Code.

             
             

   13. Respondent chose to apply for licensure under Subsection 1(b) of Rule 21U-11.05, rather than Subsection 1(a) and therefore the criteria of Subsection

       2 applied to his application. The Respondent stipulated prior to hearing that the course work he completed in obtaining his doctoral degree did not meet the requirements of Subsection 2 of the above rule. His application was denied on the basis that his doctoral program was not primarily psychological in nature, because the program did not include at least one course in biological bases of behavior of cognitive-affective bases of behavior as required by Subsections 2(a) and 2(b) of Rule 21U-11.05.

       
       

   14. The Respondent contends that because his qualifications were equal to or better than those of Drs. Kerr, Simpson, and Shreenan, who were licensed as psychologists in Florida, he was denied equal protection. However, Drs. Kerr, Simpson, and Shreenan elected to qualify for licensing under Subsection 1(a) of Rule 21U-11.05 by obtaining a valid certificate to practice psychology issued by the Florida Association of Practicing Psychologists. The legislature, under Chapter 81-235, did not make the requirement that an applicant's doctoral program be primarily psychological in nature applicable to those obtaining certificates under Subsection (a) of the rule and therefore the course criteria were not applicable to Drs. Kerr, Simpson, and Shreenan. The Petitioner had available to him the procedure for licensure under Subsection 1(a) of Rule 21U- 11.05, but chose not to seek licensure under that subsection.

       
       

   15. The criteria under Subsection 2 were applicable to Subsection 1(b) under which the Petitioner applied. The Board properly applied those criteria and properly denied the Petitioner's application for licensure. The criteria on which the denial of Petitioner's application was based were not applicable to Subsection 1(a) under which the Board granted licensure to Drs. Kerr, Simpson, and Shreenan. The Board properly applied the criteria mandated by the legislature under Chapter 81-235 and the failure of the Board to apply those criteria to Drs. Kerr, Simpson, and Shreenan was proper under the statute.

       
       

   16. Petitioner carries the burden as the applicant for licensure of proving his entitlement to the license. See, Florida Department of

Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has not sustained this burden.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That Petitioner's application for licensure as a psychologist be DENIED. DONE AND ENTERED this 29th day of September, 1983, at Tallahassee, Florida.

MARVIN E. CHAVIS, 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 September, 1983.

COPIES FURNISHED:

Mallory E. Horne, Esquire Randall A. Holland, Esquire

BORNE, RHODES, JAFFRY & Assistant Attorney General HORNE Administrative Law

Suite 800, Barnett Bank Bldg. 1601-The Capitol Tallahassee, Florida 32301 Tallahassee, Florida 32301

Jane Raker, Executive Director Board of Psychology Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES R. SULLIMAN, )

)

Petitioner/Appellant, )

)

vs. ) CASE NO. 83-1376

) DCA CASE NO. AX-432

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PSYCHOLOGICAL ) EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an evidentiary hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on May 20, 1985, in Tallahassee, Florida. The purpose of the hearing was to respond to the Order of the District Court of Appeal, First District in Case No. AX-432, as fully set forth below.

APPEARANCES

For petitioner/ Mallory E. Horne Appellant: 3596 Kinhega Drive

Tallahassee, Florida 32312

For Respondent/ Randall A. Holland Appellee: Assistant Attorney General

1601-The Capitol Tallahassee, Florida 32301

INTRODUCTION

On February 13, 1984, counsel for petitioner/appellant Sulliman filed with the District Court of Appeal, First District a notice of appeal from a Final Order of the Florida Board of Psychological Examiners denying licensure as a psychologist to Dr. James R. Sulliman. The "Notice of Administrative Appeal" states on its face that the Final Order being appeal was rendered on November 11, 1983, but further states that a copy was not mailed to the petitioner/appellant or his attorney of record until February 8, 1984.

By Order dated January 29, 1985, in Case No. AX-432, the District Court relinquished jurisdiction of the cause to the Department of Professional Regulation, Board of Psychological Examiners

"for factual findings and a determination of the issue raised by appellant in his notice of administrative appeal so that jurisdiction in this Court can be determined."

The Department of Professional Regulation, Board of Psychological Examiners, through counsel, thereafter requested a formal hearing on the issue, and the undersigned was designated as the Hearing Officer.

At the hearing, two joint exhibits were received into evidence and petitioner/appellant presented the testimony of Mallory Horne, the attorney of record in this cause, and Barbara Keel, Mr. Horne's legal secretary.

Subsequent to the hearing, counsel for the parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed findings of fact are not included in this Recommended Order, they are rejected as being either not supported by competent, substantial evidence adduced at the hearing, irrelevant or immaterial to the issue for determination and/or as constituting legal conclusions as opposed to factual findings.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

1. According to the Final Order of the Board of Psychological Examiners, the Board considered the Recommended Order of the Hearing Officer on November 3, 1983, and ordered that Mr. Sulliman's application for licensure be denied. The Final Order is undated, but it was filed with the Board Clerk on November 22, 1983.

   
   

2. It is the regular and routine procedure of the Board of Psychological Examiners to send a copy of all Final Orders to all attorneys of record at the time of filing. The Executive Director of the Board had no recollection or information as to whether regular procedures were or were not followed with regard to the Sulliman Final Order.

   
   

3. After waiting some period of time and being advised that Mr. Sulliman had not received a copy of the Final Order, Mallory Horne, petitioner/appellant's counsel of record, requested his legal secretary, Barbara Keel, to call regarding the status of the Final Order. Ms. Keel placed a telephone call to the office of the attorney representing the Board and that office referred her to the Department of Professional Regulation. After calling that office on three occasions, she was finally informed that a Final Order had been entered and that she would be sent a copy.

   
   

4. Shortly thereafter, by certified mail sent on February 8, 1984, the office of petitioner/appellant's counsel of record received on February 10, 1984, a copy of the Final Order. No earlier copies had been received. The Notice of Administrative Appeal was dated and filed on February 13, 1984.

   
   

   CONCLUSIONS OF LAW

   
   

5. In administrative proceedings, it is incumbent upon an agency to notify parties either personally or by mail of any order and,

   
   

   "unless waived, a copy of the final order shall be delivered or mailed to each party or

   to his attorney of record." Section 120.59(4), Florida Statutes.

6. The evidence establishes that it is the normal and regular practice of the Board of Psychological Examiners to send a copy of all Final Orders to the attorneys of record. However, there was no evidence that this normal procedure was or was not followed in this instance. Also, there was no evidence that any attempt or effort was made to deliver or mail the Final Order to Mr. Sulliman.

   
   

7. On the other hand, the evidence is uncontradicted that, on February 10, 1984, Mr. Horne's office did receive a copy of the Final Order which was mailed by certified mail on February 8, 1984. The respondent presented no evidence as to whether or not it was the regular practice and procedure to send Final Orders by certified mail or whether or not a return receipt for an earlier mailing of this Final Order was in existence. In the absence of such evidence, it is concluded that petitioner/appellant's attorney of record first received notice of the entry of the Final Order on February 10, 1984. It thus appears that the issue becomes one of whether the appellate jurisdictional time restrictions may be extended by state action depriving a party of notice of the entry of an appealable order. The District Court of Appeal, First District has previously certified this question as being a matter of great public importance in the recent cases of Cash v. Smith, 10 FLW 632 (Fla. 1st DCA, March 12, 1985), and Upjohn Healthcare Services, Inc. v. DHRS, Case No. BG-199, So.2d (Fla. 1st DCA, June 12, 1985).

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Department of Professional Regulation, Board of Psychological Examiners, report the following factual findings and determination to the District Court of Appeal, First District in its pending Case Number AX- 432:

1. That the Final Order of the Board of Psychological Examiners was rendered on November 22, 1983; and

   
   

2. That petitioner/appellant's attorney of record did not receive a copy of that Final Order until February 10, 1984, and was not notified of the entry of that Order until shortly before that date.

Respectfully submitted and entered this 26th day of June, 1985, in Tallahassee, Florida.

DIANE D. TREMOR

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 26th day of June, 1985.

COPIES FURNISHED:

Mallory E. Horne Linda Biedermann

3596 Kinhega Drive Executive Director

Tallahassee, Fl. 32312 Board of Psychological Examiners

130 N. Monroe St.

Randall A. Holland Tallahassee, Fl. 32301 Assistant Attorney General

1601-The Capitol Raymond H. Rhodes, Clerk Tallahassee, Fl. 32301 District Court of Appeal, First

District

State of Florida Tallahassee, Fl. 32301

Docket for Case No: 83-001376

Orders for Case No: 83-001376