STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WILLIAM O. WOMER, )
)
Petitioner, )
)
v. ) CASE NO. 90-0580
) FLORIDA BOARD OF CHIROPRACTIC, ) DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondent. )
) ELLIOTT S. KRAKOW, )
)
Petitioner, )
)
v. ) CASE NO. 90-0581
) FLORIDA BOARD OF CHIROPRACTIC, ) DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on June 18, 1990, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
APPEARANCES
For Petitioners: Lynne Hankins-Fielder
Attorney at Law
402 Appelrouth Lane, Suite 10 Key West, Florida 33040
For Respondent: Theresa M. Bender
Assistant Attorney General Suite 1603, The Capitol
Tallahassee, Florida 32399-1550 STATEMENT OF ISSUES
The issue is whether the Petitioners, William O. Womer and Elliott S. Krakow, are entitled to licensure by the Board of Chiropractic.
PRELIMINARY STATEMENT
Petitioners presented their own testimony and the testimony of Arthur Thomas Brooks, Joseph R. McQuaite, Patricia B. Guilford, and Norman Wiedow. Petitioner's Exhibits 2 and 3 were admitted in evidence, as were Womer's Exhibits 1 and 2. The Department of Professional Regulation (DPR), Board of Chiropractic (Board), presented the testimony of Patricia B. Guilford and David
Bolton, and had DPR Exhibit 1 admitted in evidence. Joint Exhibits 1-3 were also admitted.
The transcript of the proceedings was filed on July 20, 1990. The proposed recommended orders were due on July 30, 1990. The Petitioners timely filed separate proposed orders. Womer's proposed order was 78 pages and Krakow's proposed order was 72 pages. The Hearing Officer's office contacted Petitioners and advised that the cases were consolidated and that Rule 22I-6.031, Florida Administrative Code, limits proposed orders to 40 pages, thus allowing in these cases one proposed order of 40 pages. Petitioners then timely filed an amended proposed recommended order with objection. This amended proposed order complied with the length requirements of the above-cited rule. Respondent also timely filed proposed findings of fact and conclusions of law. The amended proposed findings of fact and conclusions of law filed by Petitioners and the proposed findings of fact and conclusions of law filed by Respondent have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
FINDINGS OF FACT
On March 16, 1989, Petitioner Womer filed with the Board of Chiropractic an application for licensure by endorsement from the Commonwealth of Pennsylvania.
On March 31, 1989, Petitioner Krakow filed with the Board of Chiropractic an application for licensure by endorsement from the Commonwealth of Pennsylvania.
On April 11, 1989, Womer was advised that his application was incomplete because the Board had not received the signed Licensure Verification Form from the Pennsylvania Board of Chiropractic. Because it was incomplete, Womer withdrew his application from consideration at the April 13, 1989, Board meeting.
The Licensure Verification Form for Womer was received by the Board on April 24, 1989. With the Form, Womer also sent a letter to the Board which stated:
It is my understanding, upon receipt of the enclosed form by the Florida Board of Chiropractic, that Dr. Womer's application for licensure by endorsement is now complete. If you agree, please reagenda Dr. Womer's Application for Licensure by Endorsement for
the next chiropractic board meeting, and advise regarding the time and place of same.
No further timely request from the Board for additional information was received by Womer.
The Board first verbally notified Womer of its intent to deny his application for licensure by endorsement at its public meeting in Orlando, Florida, on July 27, 1989, ninety-four days after receipt by the Board of the Licensure Verification Form which made his application complete.
Womer is licensed since 1946 by the Pennsylvania State Board of Medical Examiners as a Drugless Therapist with the right to treat the sick by chiropractic. This was the only form of licensure available to chiropractors at that time. Womer has practiced as a chiropractor since his licensure in 1946.
The Pennsylvania Board of Chiropractic, which came into existence in the early 1950's, refused to complete and sign the Licensure Verification Form for Womer because Womer is not licensed by it. Womer continues to be licensed to practice chiropractic by the medical board.
The Board denied Womer's application on the following grounds:
The licensing requirements of Pennsylvania are not substantially similar to, equivalent
to, or more stringent than Florida's licensure requirements. Specifically, the Pennsylvania practical examination does not test on physical diagnosis or x-ray interpretation and Pennsylvania does not require passage of Part I and II and the written Clinical Competency Examination of the National Board within the past ten years.
Pennsylvania does not have the ten-year requirement regarding passage of the National Boards. In fact, the Clinical Competency Examination only came into existence in 1987 and could not have been taken by anyone prior to that year.
On April 14, 1989, the Board acknowledged receipt of Krakow's application for licensure by endorsement and stated that the only document not received was a "valid State Endorsement Questionnaire Form from the State of Pennsylvania." The letter further stated that the Questionnaire had to be received on or before July 1, 1989, in order for Krakow's application to be considered at the next board meeting.
The Board received the Questionnaire regarding Krakow on April 17, 1989, and his application was complete on that date.
No further timely request from the Board for additional information was received by Krakow.
By letter dated June 1, 1989, Krakow requested that his application be considered at the next scheduled board meeting.
The Board of Chiropractic first verbally notified Krakow of its intent to deny his application for licensure by endorsement at its meeting in Orlando, Florida, on July 27, 1989, one hundred and one days after receipt by the Board of his complete application.
The Board denied Krakow's application on the following grounds:
The licensing requirements of Pennsylvania are not substantially similar to, equivalent
to, or more stringent that Florida's licensure requirements. Specifically, the Pennsylvania practical examination does not test on physical diagnosis or x-ray interpretation.
Subsequent to the denial of licensure to both Womer and Krakow, the Board attempted to raise additional grounds for the denials. Specifically, the Board alleges that licensure should be denied because Pennsylvania does not require a score of 75% on each portion of the state licensure examination, because neither of the Petitioners has passed the National Chiropractic Board Examination, Parts I and II, and the Written Clinical Competency Examination, and because Womer is not a licensed chiropractor in the State of Pennsylvania. However, the Board has not provided adequate notice of these additional alleged grounds for denial and they will not be considered.
Except for the licensure requirements discussed herein, Womer and Krakow have satisfied all other requirements for licensure by endorsement.
Petitioners offered the testimony of Joseph R. McQuaite, D.C., to show that the licensure requirements in Florida and Pennsylvania are substantially similar. However, Dr. McQuaite was not offered, tendered, or accepted as an expert in comparisons of states' licensure requirements. Accordingly, his opinions are not given weight as expert opinions, but are instead treated only as laymen's opinions.
The Board offered David L. Bolton as a witness to show that the examination requirements between Florida and Pennsylvania are not substantially similar. While Bolton's testimony at hearing was not expert, his deposition testimony was stipulated between the parties to be expert testimony on the Florida practical examination.
The Florida practical examination tests extensively on x-ray interpretation and physical diagnosis. These portions of the practical examination constitute two of the four sections of the practical examination. Florida considers these two aspects of the examination to be so important that a passing grade of 75% must be made on each section instead of a mere 75% average for the entire practical examination.
The Pennsylvania practical examination is solely on chiropractic technique and jurisprudence and does not cover physical diagnosis and x-ray interpretation. Physical diagnosis and x-ray interpretation are covered in Pennsylvania only to the extent that the subjects are covered in the National Board examinations.
The Florida practical examination is more thorough and covers more areas than does the Pennsylvania examination. The additional areas covered in Florida, x-ray interpretation and physical diagnosis, are significant and are important. In these respects, the Florida licensure requirements are not substantially similar to those of Pennsylvania. The differences are sufficient to support denial of licensure by endorsement.
Petitioners maintain that the Board's denial of licensure by endorsement is impermissibly based on an anti-competitive bias on the part of the entire Board against applicants for licensure by endorsement. The greater weight of the credible, competent and substantial evidence does not support these assertions.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.
A preliminary issue arises under Section 120.60(2), Florida Statutes (1989), which relates to licensing and states:
(2) When an application for licensure
is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. 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 omissions, and request any additional information the agency is permitted by law to require. . . . Every application for a license shall be approved or denied within 90 days
after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for the agency action is provided by law. . . . Any application for a license which is not approved or denied within the 90-day or shorter time period . . . shall be deemed approved; and, subject to the satisfactory completion of an examination,
if required as a prerequisite to licensure, the license shall be issued.
In these cases it is quite clear that the agency did not approve or deny the applications within the 90-day time period. Womer's application was denied 94 days after it was complete and Krakow's application was denied 101 days after it was complete. The denials of both applications for licensure by endorsement were made orally at the Board meeting on July 27, 1989, and the oral denials were sufficient to constitute agency action for calculation of the 90- day period set forth in Section 120.60(2). See Sumner v. Department of Professional Regulation, Board of Psychological Examiners, 555 So.2d 919 (Fla. 1st DCA 1990). Therefore one remaining question is whether Petitioners are entitled to licensure pursuant to the "deemer provision" of Section 120.60(2).
Chapter 120 contains numerous references to time limits. Some are subject to the harmless error doctrine and some are subject to specific sanctions clearly stated in statute. In Lewis v. Department of Professional Regulation, 410 So.2d 593 (Fla. 2d DCA 1982), the issue involved the Section 120.59(1)(b) requirement that an agency enter a final order following a formal hearing within 90 days after the recommended order is submitted to the agency. In Lewis the agency entered its Final Order 68 days after the 90-day period ended. The Court concluded:
Where an agency's violation of the ninety-day rule constitutes a material error in procedure which causes severe prejudice and no extenuating
circumstances exist which would relieve the agency from strict compliance with such rule, we shall reverse the agency action.
The Supreme Court modified this position in Department of Business Regulation, Division of Pari-Mutual Wagering v. Hyman, 417 So.2d 671 (Fla. 1982). Hyman also involved Section 120.59(1). The Court distinguished between those time-limitation statutes which provide for sanctions and those which do not. It stated:
Although section 120.59(1) says that final orders shall be rendered within 90 days, it does not specify any sanction for violation of the time requirements. Other parts of chapter 120, however, do provide sanctions or
other consequences where there is a failure by either an agency or an affected party to act within the prescribed time limits. See sections 120.53 (5)(b), 120.54(11)(b), 120.545(6) and (7), 120.58
(3), 120.60(2), (3), and (4). If the legislature had intended that untimely orders rendered in proceedings in which the agency is the protagonist would be unenforceable, we believe that it would have included the necessary language in section 120.59(1) to impose such sanction as it did in other parts of chapter 120.
In view of the legislature's failure to provide a sanction for the untimely rendition of final orders, we read section 120.59(1) in conjunction with section 120.68(8). We have previously characterized this section as the harmless error rule for agency action. . . .
We conclude that . . . although the 90-day period prescribed by section 120.59(1) is mandatory, the consequence of its violation should be determined by section 120.68(8). Applying this section in the
present case, we hold that the untimely rendition of the final order did not result in the impairment of either the fairness of the proceedings or the correctness of the action and that Hyman was not prejudiced by the delay.
Hyman can be interpreted to mean that where there are no expressly stated sanctions for failure to meet such a time limit, the failure is to be evaluated in light of the harmless error rule; however, where there is an expressed sanction or consequence for the failure, the harmless error rule does not apply.
The only two published cases involving the 90-day rule under Section 120.60(2) are Lin v. Department of Professional Regulation, Board of Psychological Examiners, 444 So.2d 1105 (Fla. 1st DCA 1984), and Sumner, supra. Lin involved an application for licensure by endorsement where the agency entered its intent to deny the application within 90 days after it was filed and
the applicant requested and received a hearing by the agency instead of a hearing officer. While Lin does not relate directly to the issues in this case, it does show a willingness by the courts to enforce the 120.60(2) time limits in appropriate cases. The same can be said for Sumner. There have been no cases in which a license was issued pursuant to the "deemer provision" of Section 120.60(2).
In the present case, the 90-day time requirement clearly was not met. The sanction or consequence for failure to meet the requirement is clearly stated. The application "shall be deemed approved." The applications at issue are ones for licensure by endorsement, as distinguished from licensure by examination as defined in Section 460.406, Florida Statutes (Supp. 1988). Hence the qualifying language of Section 120.60(2), which states "subject to the satisfactory completion of an examination, if required as a prerequisite to licensure, the license shall be issued," does not apply here. The applications filed by Womer and Krakow did not require completion of an examination as a prerequisite to licensure. For these technical reasons, the applications of Womer and Krakow should be granted and the licenses issued. This is so even though the Board and DPR are charged by Chapters 455 and 460 with protection of the public health, safety and welfare by the regulation of the profession. This case is unique in that it involves applications for licensure by endorsement that were filed during the limited window of opportunity when endorsement was an available avenue to licensure. Most applications subject to Section 120.60(2) are for licensure by examination. Even if the time requirements are not met on applications for licensure by examination, the statute provides that the license is not to be issued until the prerequisite examination is satisfactorily completed. Hence there will be very few times when the consequences for failure of the agency to render a timely decision on a license application will result in licensure of a person who has not completed the prerequisite examination. Those very few times could only involve applications for licensure by endorsement filed by professionals who are already licenced in another state and who thus clearly do not pose a threat to the public health, safety and welfare. These two cases involve one of these very few times where the Board and DPR can face the consequences of their failure to timely act without violating their statutory duty to protect the public health.
However, in order that the issues in these cases are thoroughly addressed, it is necessary ro determine what the requirements for licensure by endorsement mean. The issue in this de novo proceeding is whether the Petitioners are entitled to licensure by endorsement by meeting the statutory requirements. If Petitioners are not given their licenses under Section 120.60(2), then they have the burden of proving their entitlement to licensure by endorsement. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).
Section 460.4065, Florida Statutes (Supp. 1988), is the statute applicable to these Petitioners applications. That section states:
The department shall issue a license by endorsement to any applicant who, upon applying to the department and remitting a fee set by the board, demonstrates to the board that he is of good moral character, is not less than 18 years of age, is a graduate of a chiropractic college as defined in s. 460.406(1)(c), and
Has held for at least 5 years an active license to practice chiropractic in another state of the United States, the District of Columbia,
or a territory of the United States, provided that the requirements for licensure in the issuing jurisdiction are substantially similar to, equivalent to, or more stringent than the current requirements of this chapter; or
Meets the qualifications of s. 460.406.
As relevant to this case, parts of the licensure requirements of Section 460.406, Florida Statutes (Supp. 1988), state:
(1)(f) Successfully completed the National Board of Chiropractic Examiners certification examination in parts I and II and clinical competency, with a score approved by the board, within 10 years immediately preceding application to the department for licensure.
The Legislature repealed Section 460.4065 in 1989, shortly after the Petitioners applied under its terms, and there is no longer licensure by endorsement in Florida. Specifically, Chapter 89-162, Laws of Florida (1989), effective July 1, 1989, effectuated the repeal.
The parties are in agreement that the Pennsylvania licensing requirements are not equivalent to or more stringent than Florida's. In determining whether the Pennsylvania licensure requirements are "substantially similar" to Florida's, it is noted that this term is not defined in Chapter 460 or in the rules of the Board or DPR. Further, no cases have been located that specifically define the term "substantially similar." However, the court's opinion in Moorehead v. Department of Professional Regulation, Board of Psychological Examiners, 550 So.2d 521 (Fla. 1st DCA 1989), is instructive. Moorehead involved interpretation of the term "comparable to" in the context of a license application case. The Board concluded that "comparable to" meant "equivalent" rather that "similar." In restating the "fundamental tenet of statutory construction that words of common usage are accorded their plain and ordinary meaning," the Court stated:
The term "comparable to" is not a technical term requiring the Board's expertise to interpret it. Instead, the term must be accorded its plain and ordinary meaning. Webster's Third New International Dictionary, unabridged, defines "comparable" as "1: capable of being compared: a: having enough like characteristics or qualities to make comparison appropriate . . . b: permitting or inviting comparison often in one or two salient points . . . 2: suitable for match-ing, coordinating, or contrasting: EQUIVALENT, SIMILAR." There is no basis for the Board's determination that "comparable" only means equivalent or the same.
The words "substantially" and "similar" are words of common usage the meanings of which can be determined from the plain dictionary definitions. Webster's Ninth New Collegiate Dictionary defines "substantial" this way:
1 a: consisting of or relating to substance b: not imaginary or illusory: REAL, TRUE
c: IMPORTANT, ESSENTIAL . . . 5: being
largely but not wholly that which is specified . . . .
"Substantially" then means "essentially" or "largely." The same dictionary defines "similar" to mean:
1: having characteristics in common:
strictly comparable 2: alike in substance or essentials: CORRESPONDING syn
SIMILAR, ANALOGOUS, PARALLEL means closely resembling each other . . . .
It is concluded that the term "substantially similar" means "essentially alike" or "largely comparable."
In applying this definition to the facts in these cases, it is concluded that the licensure requirements between Pennsylvania and Florida are not substantially similar. The major dissimilarity is the absence of a practical examination in Pennsylvania on x-ray interpretation and physical diagnosis. This is a significant and important difference that is directly related to the practice of chiropractic in Florida. The Board has already reached a similar conclusion in Wiedow v. Department of Professional Regulation, Board of Chiropractic, DOAH Case No. 89-0501 (Recommended Order October 11, 1989, Final Order December 26, 1989).
This is not to say that Petitioners are not competent to practice chiropractic in Florida. By their education and experience there is every reason to believe that both are capable and well-qualified chiropractors. The question is simply whether they are entitled to licensure by endorsement. They have not met the requirements of Section 460.4065, Florida Statutes (Supp. 1988).
Petitioners raised extensive arguments regarding the anti-competitive bias of the Board. The facts do not support these arguments and they are rejected.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Professional Regulation, Board of Chiropractic enter a Final Order and therein issue licenses by endorsement to William O. Womer and Elliott S. Krakow based on Section 120.60(2), Florida Statutes.
RECOMMENDED this 9th day of August, 1990, in Tallahassee, Florida.
DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1990.
APPENDIX TO THE RECOMMENDED ORDER, CASE NOS. 90-0580 and 90-0581
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioners, William O. Womer and Elliott S. Krakow
Each of the following proposed finding of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 37 & 38(10).
Proposed findings of fact 1-8, 10, 19, 20, 29, 35, and 36 are subordinate to the facts actually found in this Recommended Order.
Proposed findings of fact 9, 11-18, 21-25, 28, and 40 are rejected as being mere summaries of testimony and not properly stated as proposed findings of fact. To the extent that the contents of these proposed findings of fact are reflected in this Recommended Order, the contents are adopted. The remainder is subordinate.
Proposed findings of fact 26, 27, 31, 32, 34, and 39 are unsupported by the credible, competent and substantial evidence.
Proposed findings of fact 30 and 33 are irrelevant.
Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation, Board
of Chiropractic
Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 4(30; 5 & 6(4); 7-10(5-8); 11 & 12(11 & 12); 14(14); 15(13); 18(15); and 30(10).
Proposed findings of fact 3, 21, 28, 29, and 31 are subordinate to the facts actually found in this Recommended Order.
Proposed findings of fact 13, 16, 19, 20, and 22 are irrelevant or unnecessary.
Proposed findings of fact 17, 26, and 27 are unsupported by the credible, competent and substantial evidence.
Proposed findings of fact 23-25 are considered and discussed in the Conclusions of Law in the Recommended Order.
COPIES FURNISHED:
Lynne Hankins-Fielder Attorney at Law
402 Appelrouth Lane, Suite 10 Key West, Florida 33040
Theresa M. Bender Assistant Attorney General Suite 1603--The Capitol
Tallahassee, Florida 32399-1550
Patricia Guilford Executive Director Department of Professional
Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Kenneth E. Easley, General Counsel Department of Professional
Regulation Suite 60
1940 North Monroe Street Tallahassee, Florida 32399-0792
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF CHIROPRACTIC
ELLIOTT KRAKOW,
Petitioner,
vs. DOAH CASE NO. 90-0581
DEPARTMENT OF PROFESSIONAL REGULATION,
Respondent.
WILLIAM WOMER,
Petitioner,
vs. DOAH CASE NO. 90-0580
DEPARTMENT OF PROFESSIONAL REGULATION,
Respondent.
/
FINAL ORDER
THIS CAUSE, came before the State Board of Chiropractic at its duly noticed meeting of September 21, 1990, in Tallahassee, Florida by conference call.
The Respondent was represented by Theresa M. Bender, Assistant Attorney General; the Petitioners, Elliott Krakow and William Womer represented themselves and appeared telephonically.
Upon a complete review of the entire record and argument of the parties, the Board finds and concludes that:
Respondent filed timely exceptions to the Hearing Officer's Recommended Order entered in this cause, copies of the Exceptions and Recommended Order are attached.
The Respondent's exception number 1 is adopted and incorporated herein. The words "oral" and "orally' are deleted/stricken from the Hearing Officer's Recommended Order last paragraph on page 8 for the reasons set forth in the Respondent's exceptions and the transcript of final action page 7-10, copy attached and hereinafter referred to as T.
The Respordent's exception number 2 regarding paragraph 17 of the Hearing Officer's Recommended Order page 5, is adopted in that the adequate notice of additional reasons for denial by the respondent Board was given to the Petitioners. T11- 22
The Respondent's remaining exception number 2 is adopted. The Hearing Officer's Recommended Order page 11 starting with `hence" and ending with "protect the public health" on Page 12 of the Recommended Order are deleted for the reasons set forth in the Respondent's exceptions. T11-31
The Respondent's exception number 3 is adopted and the first sentence of the second paragraph on page 15 of the Hearing Officer's Recommended Order is deleted for the reasons set forth in Respondent's exceptions. T 31-38.
The Board adopts the Hearing Officer's remaining findings of facts as amended in toto.
The Board adopts the Hearing Officer's remaining conclusion of law as amended in toto.
The Board rejects the Hearing Officer's recommendation and adopts the Respondent's recommendation as amended and as is consistent with the Recommended Order as amended.
It is hereby ordered and adjudged that the Petitioners' licensure by endorsement are conditionally approved. The Petitioners upon successful completion of the National Chiropractic Board Examination, Parts I, II, and a clinical competency examination (Part III) within 3 years from the day of the filing of the final order shall receive the basic Chiropractic licensure. T 38- 52
DONE and ORDERED this 3rd day of January, 1991.
Stanley Kaplan
Chairman Board of Chiropractic
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by U.S. Mail to Theresa M. Bender, Assistant Attorney General, Suite 1603, The Capitol, Tallahassee, Florida 32399-1550, Lynne Hankins-Fielder, Attorney at Law, 402 Appelrouth Lane, Suite 10, Key West, Florida 33040, William M. Furlow, Attorney at Law, 215 South Monroe, Suite 400, Tallahassee, Florida 32301, Elliott S. Krakow, 2584 Stinson Lane, Norristown, Pennsylvania 19403, and William O. Womer, 5434 West Fullerton Avenue, Chicago, Illinois 60639, this 4th day of January 1991.
Stanley Kaplan, D.C.
Chairman Board of Chiropractic
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
ELLIOTT KRAKOW, D.C., and NOT FINAL UNTIL TIME EXPIRES TO WILLIAM WOMER, D.C., FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED.
Appellants, CASE NO. 91-93
DOAH CASE NO. 90-0580
DEPARTMENT OF PROFESSIONAL 90-0581
REGULATION, BOARD OF CHIROPRACTIC,
Appellee.
/ Opinion filed September 30, 1991.
Appeal from an order of the Division of Administrative Hearings.
Paul R. Ezatoff of Katz, Kutter, Haigler, Alderman, Davis, Marks & Rutledge, P.A., Tallahassee, for appellants.
Robert A. Butterworth, Attorney General; Theresa M. Bender, Assistant Attorney General; Edwin A. Bayo, Assistant Attorney General, Tallahassee, for appellee.
WOLF, J.
Elliott Krakow and William Womer appeal a final administrative order of the Department of professional Regulation, Board of Chiropractic (board) which conditioned issuance of their licenses to practice upon successful completion of portions of the National Chiropractic Board Examination. Appellants asserts that they are entitled to issuance of a license by endorsement without conditions in light of the board's failure to timely act upon appellants' requests for licensure. We agree and reverse.
Dr. Krakow and Dr. Womer are practicing chiropractic physicians, licensed in Pennsylvania. Dr. Womer is licensed in four other states as well. Dr. Krakow has been licensed in Pennsylvania for more than five years and is also a licensed chiropractor in more than one state. In March 1989, both doctors applied to the Florida Department of Professional Regulation, Board of Chiropractic, for licensure by endorsement as chiropractors from Pennsylvania, pursuant to section 460.4065, Florida Statutes (Supp. 1988). That statute, which dealt solely with licensure by endorsement, was repealed in 1989, effective July 1, 1989. (See s. 66, ch. 89-162, L.O.F.). Dr. Womer's application was complete on April 24, 1989, and Dr. Krakow's application was complete on April 17, 1989. On July 27, 1989, the Board of Chiropractic
notified both doctors of its intent to deny their applications for licensure. The notice was given 94 days after Dr. Womer's application became complete, and
101 days after Dr. Krakow's application became complete.
Both doctors petitioned for a section 120.57(1) hearing to challenge the denial of their applications for licensure by endorsement, arguing that their licenses should have been deemed approved by operation of section 120.60(2), Florida Statutes, which requires the board to approve or deny a license application within 90 days off the date an application is complete. The doctors' complaints were heard before a hearing officer. The hearing officer ruled that Dr. Krakow and Dr. Womer were entitled to licenses by endorsement because of the board's failure to comply with the 90-day time limit imposed by statute. The hearing officer determined that there was no threat to public health or safety in issuing default licenses to the doctors since they were both licensed to practice in other states. The hearing officer also determined that no examination was required as a prerequisite to licensure by endorsement. The recommended order was entered on August 9, 1990.
A final order was issued by the Board of Chiropractic on January 3, 1991.
The final order concluded that the appellants were entitled to default licenses, but rejected the hearing officer's recommendation that the board issue licenses by endorsement without condition, approving such licensure by endorsement only upon "successful completion of the National Chiropractic Board Examination, Parts I, II, and a Clinical Competency Examination (Part III) within three years from the date of the filing of the final order. . .." Appellants challenge that order.
Section 120.60(2), Florida Statutes, states that when an application for licensure which is not timely acted upon must be "deemed approved," and that such approval is only subject to the condition of an examination if an examination is required:
Any application for a license which is not approved or denied within the 90-day or shorter time period ... shall be deemed approved; and, subject to the satisfactory completion of an examination, if required as a prerequisite to licensure, the license shall be issued.
120.60(2), Fla. Stat. (emphasis added). In World Bank v. Lewis, 425 So.2d 77 (Fla. 1st DCA 1982), the appellants who had filed an application for a bank charter, were not notified of approval or denial of the application within the 180-day period required by statute. The applicable statute in that case, comparable to section 120.60(2), which applies in the instant case, requires that any application for license not approved or denied within the 180-day period "shall be deemed approved subject to the satisfactory completion of conditions required by statute as a prerequisite to license." Because of the inaction of the agency in World Bank, the pending application was deemed approved by operation of the statute. World Bank v. Lewis, 406 So.2d 541 (Fla. 1st DCA 1981). The Department of Bank and Finance, however, issued an order placing certain conditions upon the approval of the application. This court held that
[d]epartmental discretion in the matter is foreclosed. The application having been approved by default, the imposition of such a condition subsequent to default approval is
impermissible. To hold otherwise would eviscerate the 180-day requirement of section - 120.60(4)(c)
World Bank, 425 So.2d at 79. In World Bank, the court stated that the legislative intent is quite clear in providing for deemed approval of an application when the statutory time limit is violated. "Approval by default has the effect of placing the applicants in the same position they would have enjoyed had the Department granted approval on the merits within the 180-day period." . at 79.
The statute under which the appellants were seeking licensure in the instant case is section 460.4065, Florida Statutes (Supp. 1988) (repealed effective July 1, 1989, by s. 66, ch. 89-162, L.O.F.). At the time of the appellants' applications for licensure, chapter 460 provided for chiropractic physicians either to be licensed by examination under 460.406, Florida Statutes, or to be licensed by endorsement under 460.4065, Florida Statutes (Supp. 1988). The statutory provision for licensure by endorsement states in pertinent part:
460.4065 Licensure by Endorsement. -
The department shall issue a license by endorsement to any applicant who, upon applying to the department and remitting a fee set by the board, demonstrates to the board that he is of good moral character, is not less than 18 years of age, is a graduate of a chiropractic college as defined in s. 460.406(1)(c) and:
has held for at least five years an active license to practice chiropractic in another state of the United States, the District of Columbia, or a territory of the United States, provided that the requirements for licensure and the issuing jurisdiction are substantially- similar to, equivalent to, or more stringent than the current requirements of this chapter; or
Meets the qualifications of s. 460.406.
The board asserts it may condition appellants' approval because of its discretion to determine when an applicant has qualified for licensure by endorsement. The board argues that it is reasonable to interpret the applicable statute to require an applicant to have come from a state which requires an examination similar to Florida's exam as a prerequisite to licensure. The board, thus, concludes that it had the power to implement this policy by requiring appellants in the instant case to pass a new examination.
While it may have been reasonable for the board to exercise its discretion and implement a policy (either by rule or application of non-rule policy) requiring an applicant for licensure by endorsement to have previously passed a particular licensing exam in another state, this discretion could not be exercised to require these applicants to complete a new examination in Florida.
The board's argument must fail for two reasons. First, the statute itself does not contemplate that applicants for licensure by endorsement will be required to take a new examination. The statute provides alternative prerequisites for licensure, one involving a new exam in Florida and one that allows an applicant to be licensed based on prior experience or achievement.
The appellants in this case applied pursuant to the portion of the statute which provided for licensure based on prior experience. While successful completion of a prior test or examination may constitute reasonable criteria for qualifying for licensure by endorsement, a new examination in Florida is not statutorily authorized pursuant to this subsection. More importantly, however, the board's failure to timely act on these applications precludes it from exercising its discretion to determine the applicants' qualifications for licensure by endorsement in this case. See World Bank v. Lewis, 425 So.2d 77 (Fla. 1st DCA 1982). Once the board failed to act in a timely manner, it was precluded from considering the merits of the appellants' application and, in accordance with World Bank, the application must be deemed approved. The board, thus, did not have authority under section 120.60(2), Florida Statutes, to add conditions to appellants' license. /1
The order of the board is vacated and remanded with directions to issue the licenses by endorsement.
SHIVERS, J., and CAWTHON, Senior Judge, concur.
ENDNOTE
1/ The hearing officer determined that in light of the appellants' previous experience, there was no threat to the public health or safety in issuing the default license. It appears that there is competent substantial evidence to support this factual finding. We specifically decline to address the issue of whether the board could have imposed conditions necessitated for the protection of the public. See Manasota-88 v. Agrico Chemical Co., 576 So.2d 781 (Fla. 2nd DCA 1991).
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT
To the Honorable Stanley Kaplan, Chairman
WHEREAS, in that certain cause filed in this Court styled: Board of Chiropractic.
ELLIOTT KRAKOW, WILLIAM WORMER
vs. Case No. 91-93
Your Case No. 90-580 &
DEPARTMENT OF PROFESSIONAL REGULATION 90-581
/
The attached opinion was rendered on September 30, 1991.
YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.
WITNESS the Honorable James E. Joanos
Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 31st day of October, 1991.
Clerk, District Court of Appeal of Florida, First District
| Issue Date | Proceedings |
|---|---|
| Aug. 09, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 30, 1991 | Opinion | |
| Aug. 09, 1990 | Recommended Order | Applicants for licensure by endorsement entitled to licensure pursuant to deemer provision for board's failure to approve or deny within 90 days. |
