STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SURESH PAUL PUSHKARNA, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3434

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MENTAL ) HEALTH COUNSELING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on August 29, 1990, in Sanford, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Vytas J. Urba, Staff Attorney

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 For Respondent: Suresh Paul Pushkarna, pro se

STATEMENT OF THE ISSUES

The issue is whether Petitioner is qualified to take the examination for licensure as a mental health counselor.

PRELIMINARY STATEMENT

By Order of Intent to Deny filed April 12, 1990, Respondent informed Petitioner that he failed to meet the qualifications for licensure as a mental health counselor because he had not completed two years of mental health counseling under supervision of a qualified person.

By letter dated April 30, 1990, Petitioner requested a formal hearing.

At the hearing, Petitioner called two witnesses, and Respondent called none. Petitioner offered into evidence three exhibits, and Respondent offered into evidence one exhibit. All exhibits were admitted. A transcript was filed September 10, 1990. Respondent filed a proposed recommended order, and all of its proposed findings are adopted or adopted in substance.

FINDINGS OF FACT

1. Petitioner executed an application for licensure as a mental health counselor on June 13, 1989. He filed the application with the Board of Clinical Social Workers, Marriage & Family Therapists, and Mental Health Counselors on July 6, 1989.

   
   

2. The application was accompanied by the appropriate fee and disclosed that Petitioner satisfied all of the educational requirements for taking the examination. However, Respondent determined that the application was incomplete because Petitioner failed to show that he had had the requisite clinical experience under the supervision of a qualified person.

   
   

3. By letter dated July 17, 1989, Respondent informed Petitioner that his application was incomplete pending receipt of, among other things, documentation of the requisite clinical experience under the supervision of a qualified person. A second letter dated January 17, 1990, from Respondent to Petitioner restated that the application was still missing the items set forth in the prior letter.

   
   

4. By Order of Intent to Deny filed April 12, 1990, Respondent informed Petitioner that it was denying his application on the grounds set forth above.

   
   

5. Petitioner obtained a master's degree in clinical psychology from the University of Central Florida on December 20, 1985.

   
   

6. From October 4, 1985, through October 20, 1988, Petitioner worked full- time as a psychological specialist at the Polk Correctional Institution under the supervision of Gerd Garkisch, Ph.D., who was head of the mental health department at the prison. Petitioner's work qualifies as clinical experience in mental health counseling.

   
   

7. Dr. Garkisch does not hold any Florida professional licenses, such as a mental health counselor or psychologist. He is not so licensed in any other state, although he is licensed as a psychologist in Puerto Rico.

   
   

8. Dr. Garkisch does not meet the education criteria required for licensure as a mental health counselor. Dr. Garkisch earned a master's degree in clinical psychology, which would otherwise satisfy the educational requirement for licensure as a mental health counselor. However, he received his degree from the Pontifical Catholic University of Rio Grande do Sul, Institute of Psychology, which is located in Brazil. The school is not accredited by an accrediting agency approved by the U.S. Department of Education, Council on Postsecondary Accreditation, or Association of Universities and Colleges of Canada.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. As an applicant, Petitioner has the burden of proving that he is entitled to take the mental health counseling examination. Florida Department of Transportation V. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

11. Under current law, Respondent shall issue a license as a mental health counselor to any applicant who, in addition to meeting other requirements including passing an examination, certifies that he has:

    
    

    Has had a minimum of 3 years' clinical experience in mental health counseling, 2 years of which must be at the post-master's level under the supervision of a licensed mental health counselor or the equivalent as determined by the board. . . .

    
    

    Section 491.005(3)(c), Florida Statutes (1989).

12. Chapter 88-393, Section 31, Laws of Florida, provides: Notwithstanding the provisions of section

    491.005, Florida Statutes, the Department of Professional Regulation shall license as a mental health counselor any person who

    made application and paid the fee for such license on or before December 31, 1989, if the person met the qualifications for such license that were required by the laws of this state on September 30, 1987.

    
    

13. As of September 30, 1987, an applicant had to show that he:

    
    

    Has had a minimum of 3 years' experience in mental health counseling, 2 years of which must be at the post-master's level and 2 years of which must be under the supervision of someone who meets the education and experience requirements for licensure as a mental health counselor under this chapter.

    
    

    Section 490.005(2)(c)4., Florida Statutes (1985).

    
    

14. The educational requirements for licensure have changed between 1987 and 1989. As of September 30, 1987, an applicant for a mental health counseling license must have earned a master's degree in mental health counseling, psychology, guidance counseling, or rehabilitation counseling at a college or university "accredited by an accrediting agency approved by the U.S. Department of Education" or has completed all of a list of requirements at such a university. Section 490.005(2)(c)2., Florida Statutes (1985).

    
    

15. The present educational requirement is that an applicant for a mental health counseling license must have earned a master's degree with a major emphasis in mental health counseling, or the equivalent as determined by the board, or has completed all of a list of requirements. Section 491.005(3)(b), Florida Statutes (1989). However, the flush language of Section 491.005(3)(b) adds:

    
    

    Except as otherwise provided, education and training in mental health counseling must have been received in an institution of higher education which at the time the applicant graduated was fully recognized by a

    regional accrediting body recognized by the Council on Postsecondary Accreditation or in an institution which is publicly recognized as a member in good standing with the Association of Universities and Colleges of Canada.

    
    

16. Petitioner is not qualified to take the examination under the law in effect on September 30, 1987. The two years' experience in mental health counseling under the supervision of Dr. Garkisch does not meet the requirement of Section 490.005(2)(c)4., Florida Statutes (1985). Dr. Garkisch did not meet the educational requirements then in effect for licensure because he earned his master's degree from an institution not accredited by an accrediting agency approved by the U.S. Department of Education.

    
    

17. Likewise, Petitioner is not qualified to take the examination under the law in effect presently. Dr. Garkisch is not a licensed mental health counselor and would not himself meet the requirements for licensure because he earned his master's degree from an institution not accredited by an accrediting body recognized by the Council on Postsecondary Accreditation or the Association of Universities and Colleges of Canada. On the basis of the present record, Petitioner has not proven that Dr. Garkisch, who holds no Florida licenses, is the equivalent of a mental health counselor.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Professional Regulation deny Petitioner's application for licensure as a mental health counselor.

ENTERED this 11th day of October, 1990, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1990.

COPIES FURNISHED:

Kenneth E. Easley General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Linda Biederman, Executive Director Board of Mental Health Counseling 1940 North Monroe Street Tallahassee, FL 32399-0792

Vytas J. Urba, Staff Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Suresh Paul Pushkarna, pro se

309 Hidden Hollow Court Sanford, FL 32773

Docket for Case No: 90-003434

Orders for Case No: 90-003434