STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA ANN JENNINGS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4259

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CLINICAL ) SOCIAL WORK, MARRIAGE & FAMILY ) THERAPY, AND MENTAL HEALTH )

COUNSELING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on October 12, 1990, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Frank J. Santry, Esquire

P.O. Box 14129 Tallahassee, Florida 32317

For Respondent: Linda B. Miles, Esquire

Assistant Attorney General Office Of Attorney General 1602 The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

The issues for determination are whether Petitioner's substantial interest was affected by Respondent's denial of Petitioner's application for licensure by examination; and, whether Respondent's denial conformed with applicable time limits in Section 120.60(2), Florida Statutes, requiring that agency action denying license applications be taken with 90 days of receipt of the application.

PRELIMINARY STATEMENT

On February 15, 1990, Petitioner's application for licensure by examination as a marriage and family therapist was received by Respondent. On June 7, 1990, Petitioner received written notice that Respondent intended to deny her application. The notice also provided Petitioner the opportunity to contest the asserted grounds for denial through administrative proceedings pursuant to Section 120.57, Florida Statutes.

Petitioner responded by requesting a formal administrative hearing regarding the intended denial and the matter was transferred to the Division Of Administrative Hearings for conduct of a formal hearing pursuant to Section 120.57(1), Florida Statutes.

By motion filed on August 2, 1990, Petitioner requested that the issue of whether Respondent's denial action procedurally complied with requirements of Section 120.60, Florida Statutes, be considered separately from Respondent's asserted grounds for licensure denial, particularly since a finding favorable to Petitioner on this issue could be dispositive of the entire matter. The motion was granted in accordance with the parties' prehearing stipulation adopting Petitioner's request; however, the granting of this motion has been modified as set forth in the conclusions of law portion of this recommended order.

At the hearing, Petitioner submitted one evidentiary exhibit, but did not present testimony of any witnesses. Respondent presented testimony of one witness and one evidentiary exhibit. The parties jointly submitted two exhibits.

The transcript of the hearing was filed with the Division Of Administrative Hearings on October 24, 1990. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

The parties stipulated to those factual findings set forth in paragraphs 1- 12, below.

Stipulated Facts

1. Petitioner's completed application was received by Respondent on February 15, 1990. The application was timely for admission to Respondent's licensure examination offered on April 19, 1990. The application was complete, free of errors or omissions and fully responded to all previous requests by Respondent for additional information or correction of errors or omissions.

   
   

2. Respondent's board did not vote to admit Petitioner to the April 19, 1990 examination at its meeting on March 3-4, 1990. No communication was made to Petitioner by Respondent following that meeting to inform her that no action had been taken on the application, except to the extent it could be said to have been incorporated into the notice recited in paragraphs 4 and 7 below. Respondent's board did not meet again until April 27-28, 1990.

   
   

3. On April 28, 1990, Respondent's board made a formal decision to deny Petitioner's application.

   
   

4. On May 21, 1990, the board's decision to deny the application was orally communicated to Petitioner's attorney.

   
   

5. On May 30, 1990, Respondent's Order Of Intent To Deny Petitioner's application was issued and signed.

   
   

6. Subsequently, Respondent's Order Of Intent To Deny was filed with the agency clerk on June 6, 1990.

7. A copy of Respondent's order was thereafter received by Petitioner on June 7, 1990.

   
   

8. The oral communication of Respondent's denial of the application to Petitioner's attorney; issuance and signing of Respondent's order; the formal filing of the order with the agency clerk; and the receipt of Respondent's order by Petitioner all occurred more than 90 days after receipt of Petitioner's complete application on February 15, 1990.

   
   

9. There were no special circumstances or conditions which hindered or prevented Respondent from processing the Order Of Intent To Deny or the delivery of notice of that order to Petitioner.

   
   

10. The petition challenging Respondent's administrative action was timely filed.

    
    

11. Petitioner's substantial interests have been affected by the challenged agency action.

    
    

12. The parties stipulate that the issues in the Division Of Administrative Hearings (DOAH) Case No. 90-4259 be bifurcated and that Petitioner's contention that her application must be deemed approved upon satisfactory completion of the licensure examination under Chapter 120.60(2), Florida Statutes (1989) be considered first, inasmuch as determination of that issue may moot further proceedings. The parties stipulate that remaining issues in the case be stayed for later determination, if necessary.

    
    

    Other Facts

    
    

13. Petitioner, Donna Ann Jennings, is a 34 year old resident of Tallahassee, Florida. She received a Bachelor of Science Degree in Health Education from the University of North Carolina and a Master of Arts Degree in Agency Counseling from North Carolina Central University. She is presently a candidate for a Ph.D. from Florida State University.

    
    

14. Petitioner has practiced in the field of marriage and family therapy since 1980. She has served as an assistant and adjunct faculty member at Florida State University from 1985 through 1989, teaching in the areas of child development, marriage and family, and family systems. Presently, she serves as an adjunct faculty member at Tallahassee Community College.

    
    

15. By correspondence to Petitioner dated January 26, 1990, following receipt of an application from Petitioner, Respondent deemed that application incomplete and requested additional information.

    
    

16. Respondent's correspondence of January 26, 1990, stressed that the additional information had to be provided "and approved" no later than February 19, 1990, in order for Petitioner "to be scheduled" for the licensure examination to be given on April 19, 1990.

    
    

17. As established by the parties' stipulation in paragraph 1., above, Petitioner's application which was subsequently filed on February 15, 1990, was complete, free of errors or omissions and fully responded to all previous requests by Respondent for additional information or correction of errors or omissions.

18. No additional requests for information pertinent to the application were forwarded by Respondent to Petitioner between February 15, 1990, and the meeting of Respondent's board on March 3-4, 1990.

    
    

19. The parties' stipulation regarding Petitioner's February 15, 1990 application, coupled with Respondent's January 26, 1990 correspondence to Petitioner, establishes that the failure of Respondent's board to consider the application at its March 3-4, 1990 meeting effectively deprived Petitioner of admission to the April 19, 1990 licensure examination and thereby affected her substantial interests.

    
    

20. Respondent did not act with reasonable dispatch in regard to Petitioner's rights and privileges. Such failure on the behalf of Respondent is established by Respondent's action informing Petitioner of an application deadline (February 19, 1990) for admission to a particular licensure examination (April 19, 1990), and Respondent's stipulation that Petitioner met that deadline.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

22. The parties have stipulated to bifurcation of issues in this proceeding, DOAH Case No. 90-4259. The stipulation of the parties with regard to bifurcation is accepted to the extent that all remaining issues in DOAH Case No. 90-4259 are excluded from this proceeding and are now consolidated with DOAH Case No. 90-4139. Further, DOAH Case No. 90-4139, as now amended, is abated until conclusion of future proceedings in DOAH Case No. 90-4259 or issuance of an order by the Hearing Officer in DOAH Case No. 90-4139.

    
    

23. Petitioner contends her application for licensure, subject to satisfactory completion of an examination, should be deemed approved by operation of provisions of Section 120.60(2), Florida Statutes, which reads as follows:

    
    

    When an application for a license 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. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period. The agency shall notify the applicant if the activity for which he seeks a license is exempt from the licensing requirement and return any tendered application fee within 30 days after receipt of the original application

    or within 10 days after receipt of the timely requested additional information or correction of errors or omissions. Every application for 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 agency action is provided by law. The 90-day or shorter time period will be tolled by the initiation of a proceeding under s. 120.57 and will resume 10 days after the recommended order is submitted to the agency and the parties. Any application for a license which is 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 submitted to the agency and the parties, whichever is latest, 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. The Public Service Commission, when issuing a license, and any other agency, if specifically exempted by law, shall be exempt from the time limitations within this subsection. Each agency, upon issuing or denying a license, shall state with particularity the grounds or basis for the issuance or denial of the license, except when issuance is a ministerial act. On denial of a license application on which there has been no hearing, the denying agency shall inform the applicant of any right to a hearing pursuant to s. 120.57. (Emphasis added).

    
    

24. Section 120.60(3), Florida Statutes, requires that an applicant shall be given written notice that the agency intends to grant or deny an application for license, or has granted or denied the application for license.

    
    

25. While Respondent's action denying the application was taken within 90 days of receipt of the additional requested information, the order documenting that action was not signed until May 30, 1990, approximately 14 days after expiration of the 90 day period.

    
    

26. Petitioner received no notice of Respondent's denial of the application prior to the oral notice provided to her attorney approximately five days after expiration of the 90 day period.

    
    

27. Respondent's final order was filed with the agency clerk approximately

    21 days after expiration of the 90 day period. A copy of the order and provision of a point of entry to administrative proceedings was received by Petitioner 22 days after expiration of the 90 day period.

28. Respondent's contention that it has satisfied its statutory duty by voting to deny the application within the prescribed 90 day period is unpersuasive. Section 120.60(2), Florida Statutes, also requires that Respondent act with "reasonable dispatch." This requirement is mandatory, not discretionary. Under the factual circumstances adduced in this case, Respondent's action did not comport with this legal standard.

    
    

29. Respondent seeks to buttress its position by reliance on Sumner v. Department of Professional Regulation, 555 So.2d 919 (Fla. 1st DCA 1990). The facts of Sumner are quite distinguishable from the present matter. Notably, the court in Sumner based its interpretation of the requirements of Chapter 120.60(2), Florida Statutes, in specific terms:

    
    

    The object of Section 120.60(2) is to conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. This was accomplished in this case as Sumner's application was acted upon within 90 days, she was orally notified of the Board's decision within ninety days, she was promptly provided with a clear point of entry to request an administrative hearing, and in fact she timely petitioned for her administrative hearing. Construing section 120.60(2) as having been met in this case when the Board acted on Sumner's application will most effectively meet the beneficial end contemplated by the legislature, will promote

    justice and will avoid harsh results. Id. at 921-922.

    
    

30. Unlike Sumner, where failure to file the order denying the application with the agency clerk until two days after expiration of the 90 day period was excused because the clerk's office was moving, it is stipulated in this case that no special circumstances prevented Respondent from processing the order of intent to deny.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered by the Board of Clinical Social Work, Marriage & Family Therapy, and Mental Health Counseling, granting Petitioner's application for licensure as a marriage and family therapist, subject to satisfactory completion of requisite examination requirements.

DONE AND ENTERED this 16th day of November, 1990, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 16th day of November, 1990.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings.

1.-16. Adopted in substance, though not verbatim.

Respondent's Proposed Findings. 1.-12. Adopted in substance.

COPIES FURNISHED:

Frank J. Santry, Esq.

P.O. Box 14129 Tallahassee, FL 32317

Linda B. Miles, Esq. Edwin Bayo, Esq.

Assistant Attorney General Office Of Attorney General 1602 The Capitol

Tallahassee, FL 32399-1050

Executive Director

Board of Clinical Social Work,

Marriage & Family Therapy, and Mental Health Counseling Department of Professional Regulation

The Northwood Centre 1940 N. Monroe St.

Tallahassee, FL 32399-0750

Kenneth Easley, Esq.

General Counsel

Department of Professional Regulation The Northwood Centre, Suite 60

1940 N. Monroe St. Tallahassee, FL 32399-0750

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA ANN JENNINGS,

Petitioner,

vs. CASE NO. 90-4259

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF CLINICAL SOCIAL WORK, MARRIAGE & FAMILY THERAPY, AND MENTAL HEALTH COUNSELING,

Respondent.

/

FINAL ORDER

THIS CAUSE came on to be heard before the Florida Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling at a regularly scheduled meeting held in Tampa, Florida on January 11, 1991.

The Board, having reviewed the complete record in the above styled cause including the transcripts and exhibits, hereby makes the following rulings on the Exceptions filed by both parties to the Hearing Officer's Recommended Order dated November 16, 1990. Petitioner's Exceptions were filed on December 6, 1990. Respondent's Exceptions were filed on December 7, 1990. All of Petitioner's Exceptions were directed to Conclusions of Law.

As to Respondent's Exception No. 1, the Board agrees that the Hearing Officer's Findings Of Fact No. 19 should be rejected. There was no evidence in the record which established that Petitioner was eligible to sit for the examination. The factual record establishes that Petitioner would not have been approved for the April examination even if her application had gone before the Board at its March meeting. Thus, the finding that "failure . . . to consider the application at its March 3-4, 1990 meeting effectively deprived Petitioner to admission to the April 19, 1990 licensure examination and thereby affected her substantial interests" is not supported by competent substantial evidence.

As to Respondent's Exception No. 2, the Board agrees that the Hearing Officer's Findings of Fact No. 20 should be rejected. There is no evidence in the record to establish what "reasonable dispatch" requires, therefore, there is no competent substantial evidence to support the finding of fact that the Board did not act with "reasonable dispatch".

With the above-mentioned modification, the Board hereby ACCEPTS the Hearing Officer's Proposed Findings of Fact.

As to those Exceptions relating to the Proposed Conclusions of Law, the Board hereby rejects Petitioner's Exceptions No. 1 and 2, directed to the Hearing Officer's Conclusions of Law No. 10. This Conclusions of Law does not misstate the facts of the Sumner case; and in any event, the Sumner opinion speaks for itself.

Petitioner's Exceptions No. 3, 4 and 5 are rejected. These Exceptions are not directed at any of the Hearing Officer's Conclusions of Law. Furthermore, the Heller and Sumner decisions, as well as Rule 28-6.005(1), F.A.C., and the cited Sections of Chapter 120, F.S., speak for themselves.

Petitioner's Exception No. 6 is rejected as being an incorrect statement of the law. The Sumner Court specifically held that the deemer provision of Section 120.60(2) does not incorporate the written notice requirements of Section 120.62(3). The Board observes, as the Sumner Court did, that if the legislature had intended to specifically require written notice within 90 days, it would have been a simple matter to have the statute so state.

Respondent's Exception No. 3 is directed at the Hearing Officer's Conclusions of Law No. 8, which concluded that the Board's action in this matter did not comport with the legal standard that action be taken with "reasonable dispatch". The Board hereby accepts this Exception. The Board voted to deny the application within the 90 days limit prescribed by 120.60(2). The statute does not impose any penalty for the failure to act with "reasonable dispatch".

Even assuming, arguendo, that Petitioner's application was not acted upon with "reasonable dispatch", such failure is not grounds for granting licensure under the deemer provisions The deemer provision only applies to the 90 day requirement of Section 120.60(2).

The Board hereby accepts Respondents Exception No. 4, directed at the Hearing Officer's Conclusions of Law No 9. It is the Board's opinion that the present case and Sumner share the same seminal fact which was used by the court in reaching its decision, to wit, both applications were acted upon within the 90-day time frame required by 120.60(2), F.S. The other facts mentioned in Sumner were mere dicta because the court's decision was based ultimately on the fact that agency action was taken on the application within 90 days.

The Board hereby accepts Respondent's Exception No. 5, directed at the Hearing Officer's Conclusions of Law No. 10, which states that the Respondent in Sumner was excused from filing the order denying the application within 90 days because the clerk's office was moving. In addressing the section 120.60(3), F.S. notice requirements, the court concluded that even if that notice requirement is not met, that section of the statute does not provide for an application to be deemed approved because of the agency's failure in that regard.

The facts in Sumner regarding notice were not the ultimate factors upon which the court's decision was based. In its reasoning, the court did not convey that the Department was excused from the 90-day limit because it was moving. On the contrary, the Court held that the application was not "deemed" approved merely because the Board failed to file its written notice of intent to deny within 90 days from receipt of a completed application. The fact that the Department was moving was immaterial to the court's-ultimate determination that the deemer provision does not apply to the written notice requirements and that the requirement for agency action was fulfilled when the Board voted within 90 days.

With the above mentioned modification, the Board hereby determines that the Conclusions of Law of the Hearing Officer be and the same are hereby ACCEPTED and made the Conclusions of Law of the Board.

WHEREFORE, based upon the findings of fact and conclusions of law accepted by the Board, it is concluded that Petitioner's application for licensure as a marriage and family therapist is not deemed approved pursuant to Section 120,60(2); that the Board denied said application within the applicable 90 day period, and that Petitioner's application be and the same is hereby DENIED.

DONE AND ORDERED this 27th day of February , 1991, by the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling.

HARRY SHYERS, CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been provided by U.S. Mail to FRANK J. SANTRY, ESQUIRE, Granger, Santry, Mitchell & Heath, P.A. Post Office Box 14129, 2833 Remington Green Circle, Tallahassee, Florida 32317, LAURA P. GAFFNEY, Senior Attorney, Department of Professional Regulation, Northwood Centre, 1940 North Monroe Street, Suite 60, Tallahassee, Florida 32399-0792 and by hand delivery to the Board Clerk, Department of Professional Regulation and its Counsel, 1940 North Monroe Street, Tallahassee, Florida 32399- 0775, on or before 5:00 p.m. this 28 day of February 1991.

Docket for Case No: 90-004259

Orders for Case No: 90-004259