STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELAINE L. OWENS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1003

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

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on September 26, 1991 in Lake City, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: Martin S. Page, Esquire

228 East Duval Street Lake City, FL 32055

FOR RESPONDENT: Edwin A. Bayo

Assistant Attorney General Administrative Law Section Office of the Attorney General The Capitol

Tallahassee, FL 32399-1050 STATEMENT OF THE ISSUE

May Petitioner be licensed as a Clinical Social Worker, by endorsement or may she sit for the examination?

PRELIMINARY STATEMENT

The Petitioner testified on her own behalf and had four exhibits admitted in evidence. Respondent presented no oral testimony and had one exhibit admitted in evidence.

A transcript was filed. All timely filed proposed findings of fact have been ruled on in the appendix to this Recommended Order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Petitioner was licensed as a clinical social worker by the State of Georgia on June 4, 1987.

   
   

2. Petitioner is now an applicant for Florida licensure by endorsement as a clinical social worker. Her application was filed prior to August 25, 1990, the date on which the Florida Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counselling met to consider her application.

   
   

3. The September 29, 1990 Florida Board's Order of Intent to Deny Petitioner's application stated, in pertinent part:

   
   

   2. The Board stated the following factual grounds for denial: At the time your license as a clinical social worker was obtained in the State of Georgia, the requirements were not substantially equivalent to nor more stringent than those set forth in Chapter 491, Florida Statutes; therefore, you are not eligible for endorsement under s. 491.006, Florida Statutes. Specifically, although the Georgia Board did not require a master's degree in social work, the information submitted concerning the educational criteria in that state did not list any specific clinical coursework requirements. In addition, a review of the transcript of your

   master's program in social work indicates that you would not meet Florida's clinical social work education requirements. Your master's program at University of Georgia School of Social Work did not contain 21 semester or 31 quarter hours in theory of human behavior and practice methods as courses in clinically oriented services, including a course in psychopathology, as required by Chapter 21CC-11.002(1), Florida Administrative Code. The Board did not find a course in psychopathology and determined you completed only 24 quarter hours of the 31

   quarter hours of clinical coursework required. In addition, your transcript did not document that you completed an advanced field placement in a clinical (direct service) setting as required by Chapter 21CC-11.002(2), Florida Administrative Code. Therefore, your master's program did not emphasize direct clinical patient or client health care services as defined by Board rule and required by Chapter 491.005(1)(b), Florida Statutes. The two year post-master's level supervised experience requirement for licensure in Florida [s.

   491.005(1)(c), F.S.] was also not documented by your application materials. [Emphasis supplied]

4. At formal hearing, Petitioner documented that her master's program at University of Georgia School of Social Work, completed prior to Georgia licensure, did, indeed, contain 21 semester or 31 quarter hours of the appropriate type studies, and included a "practicum" or clinical direct service requirement completed before Georgia licensure.

   
   

5. Petitioner also presented documentation and testimony to establish that she had satisfactorily completed a course in psychopathology during the summer of 1991 at Florida State University, after her Georgia licensure (1987) and after her initial application for licensure by endorsement in Florida.

   
   

6. At the time Petitioner applied for Florida licensure, she was two months short of the two years of post-master's clinical supervision required by Florida. At formal hearing, Petitioner was able to document that since applying for Florida licensure by endorsement, she had completed the last two months of the required two years of post-master's level supervised experience under Imogene Darby, CSW. Petitioner's testimony that she had done similar supervised work before Georgia licensure was unrefuted.

   
   

7. Thereafter, Respondent's counsel stipulated at formal hearing that the post-master's clinical supervision requirement and the number of hours and content in Petitioner's master's program were "no longer issues." Specifically, Respondent's stipulation was,

   
   

   "I don't think there is an issue with the specific course work. I don't think that that is an issue. I think . . . after having heard her testimony regarding the psychopathology course that she took as well as the two additional . . . months experience, . . . that those are not longer issues. . . . I will be more than happy to stipulate to those issues on behalf of the Board." (TR 25-26)

   
   

8. Prior to the Respondent Florida Board's August 25, 1990 consideration of Petitioner's application, the Georgia State Board of Professional Counselors, Social Workers and Family Therapists sent the Florida Board a verification of Petitioner's Georgia license. This verification form, independently submitted by the Georgia authorities on or about May 16, 1989, represented that Petitioner was originally licensed in Georgia by examination. In marking the box showing that Petitioner had been licensed in Georgia by "examination," the Georgia authorities simultaneously rejected the boxes that would have designated Petitioner as having been originally licensed in Georgia "without examination," by "grandfathering," or by "reciprocity."

   
   

9. However, in the course of formal hearing, Petitioner testified,

   
   

   Question by Respondent's counsel: Were you grandfathered in? By that I mean: Did you take any examination?

   
   

   Petitioner's Answer: No, because I was not offered an exam, and I showed proof I met the requirements of the State of Georgia for licensure without exam.

   Q You have not taken any examination by the State of Georgia regarding your licensure as a social worker?

   
   

   A No, sir, because I was not offered an exam. When I submitted my application, I was qualified, according to the Board of the State of Georgia.

   
   

10. Upon learning for the first time at formal hearing that Petitioner had not taken a written examination for licensure in Georgia, Respondent's counsel asserted that because Petitioner was able to obtain Georgia licensure in 1987 without taking a written examination, the Georgia requirements for licensure were not substantially equivalent but were less stringent than the Florida requirements, and therefore Florida licensure by endorsement was not appropriate, but that Petitioner would be eligible to sit for the Florida license examination on the basis of all the evidence. The reason given for lack of prior notice that a written examination was necessary for Florida licensure by endorsement was that Respondent first became aware at formal hearing that, contrary to the prior representations of the Georgia Board, the Petitioner had not been licensed originally by written examination in Georgia.

    
    

11. Neither party offered any testimony to show that the licensure requirements in Florida and Georgia were similar or dissimilar on June 4, 1987, the date Petitioner was originally licensed in Georgia, nor was a copy of the applicable Georgia statute(s) submitted by the parties. The record is devoid of evidence as to the precise date Petitioner applied in Florida, but since 1981 Florida continuously has required a written examination for Clinical Social Worker licensure. See, the pertinent portions of Sections 491.005-491.006 F.S., first enacted effective October 1, 1987 by Section 15, Ch. 87-252 Laws of Florida, and the pertinent parts of predecessor statutes, Sections 490.005(2)(a)4. and 490.006 F.S. [1981-1986 Supp.], first enacted by Sections 1, 3, Ch. 81-235 Laws of Florida.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

13. At all times material, Section 491.006(1) F.S. or its predecessor statute has provided:

    
    

    The department shall license or grant a certificate to a person in a profession regulated by this chapter who, upon applying to the department and remitting the appropriate fee, demonstrates to the board that he holds a valid license or certificate in another state to practice the profession for which licensure or certification is applied, provided that when the applicant secured such license or certificate, the requirements were substantially equivalent to or more stringent than those set forth in this chapter. (Emphasis supplied)

14. Respondent's post-hearing proposal argues that although Petitioner has now satisfied all of the specific concerns raised within the four corners of the September 29, 1990 Order of Intent to Deny, she remains ineligible for Florida licensure by endorsement because at the time she was licensed in Georgia, Georgia did not require the course in psychopathology, supervised experience, and a written examination as did Florida, and that therefore the Georgia license requirements were not equivalent to or more stringent than the Florida license requirements contained in Section 491.005 (1) F.S. [1988 Supp.] and Rule 21C-

    11.002 F.A.C.

    
    

15. Respondent's stipulation entered before Petitioner rested her case at formal hearing waived any bar to Petitioner's licensure by endorsement arising from the number and type of courses Petitioner took in her degree program and the type, length, and duration of her clinical supervision. Respondent is bound by its stipulation and estopped to re-assert those "specifics" in its post hearing proposals.

    
    

16. However, Respondent's final point is well taken: Petitioner is not eligible for Florida licensure by endorsement since she never took a written examination for Georgia licensure. Such a significant discrepancy between the two states' licensure requirements clearly renders Georgia's requirements the less stringent of the two. Successful completion of a prior test or examination may constitute reasonable criteria for qualifying for licensure by endorsement. See, Wiedow v. Dept. of Professional Regulation, Board of Chiropractic, DOAH Case No. 89-0501 (Recommended Order entered October 11, 1989/ Final Order entered December 26, 1989); Krakow v. Dept. of Professional Regulation, Board of Chiropractic, Case No. 91-93 First District Court of Appeal (Opinion entered September 30, 1991).

    
    

17. Although Petitioner asserted, pursuant to Section 120.60 F.S., that the Florida Board may not go outside the four corners of its Order of Intent to Deny, that the Board was required to give "specific" notice of its reasons for denial and the Board's Order did not specifically raise the issue of "no examination," and that Petitioner had the right to rely on the Board's Order in preparing its case for formal hearing, those arguments are not persuasive for licensure by endorsement under the circumstances of this case. The Board's Order did set forth as the ultimate ground for denial the lack of substantial equivalency of Petitioner's Georgia licensure. The Order did not list "no examination" as part of its clauses of greater specificity only because the Florida Board was operating on erroneous information provided by the Georgia Board, which information the Florida Board had every reason to rely upon. The Petitioner's testimony correcting the Georgia Board's erroneous information is newly discovered evidence for the Florida Board which could not possibly constitute any surprise or prejudice to Petitioner, since Petitioner has always known that she never took a written examination in Georgia and Petitioner consistently has borne the burden of establishing her entitlement to Florida licensure. See, Young v. State Dept. of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990), Florida Dept. of Transportation v. JWC Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Dept. of Health and Rehabilitative Services, 348 So.2d

    349 (Fla. 1st DCA 1977).

    
    

18. The situation herein is roughly analogous to the situation in Board of Medicine v. Mata, 561 So.2d 364 (Fla. 1st DCA 1990), and the court's reasoning therein is instructive:

    
    

    [T]he Board is required to consider new evidence adversely affecting an applicant's

    qualification for licensure received before rendition of the Board's final decision on that application, and . . . the Board has authority to deny the license on that ground even if the evidence is received after completion of a section 120.57(1) hearing on the application by a DOAH hearing

    officer . . .

    
    

    In Mata, it was deemed appropriate for the Board to remand the case to the Hearing Officer for a further hearing on newly disputed issues of fact which had arisen after the entry of a Recommended Order. Here, the fact of non- examination was provided by Petitioner herself in the course of formal hearing, and there is no dispute concerning that factual issue.

    
    

19. Petitioner has suffered by her candor, but she is to be commended for it. There is no suggestion herein that Petitioner was responsible for the Georgia Board's transmitting erroneous information to the Florida Board in the first place. Petitioner has been honorable and forthright in all respects and is clearly eligible for licensure upon examination. Nor is this to say that Petitioner is not competent to practice her profession in Florida. By her education, training, and experience there is every reason to believe that she is capable and well-qualified. The question is simply whether she is entitled to licensure by endorsement. She has not met the requirements of Section 491.006(1) F.S. and therefore she cannot qualify by endorsement.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order denying Petitioner's application for Florida licensure by endorsement and determining her eligible to sit for the Florida Clinical Social Worker license examination.

DONE and ENTERED this 8th day of November, 1991, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1991.

APPENDIX TO RECOMMENDED ORDER CASE NO. 91-1003

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF):

Petitioner's PFOF:

Petitioner waived the filing of PFOF.

Respondent's PFOF:

1, 3-5 Accepted.

2, 7 Accepted in substance; modified to conform more closely to and reflect the factual nuances of the record.

6 Sentence 1 is rejected as contrarty to the evidence (See Respondent's Exhibit 1). Sentence 2 is rejected as conclusionary legal argument and contrary to the evidence (See TR and Respondent's Exhibit 1).

COPIES FURNISHED TO:

Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol, MS #4 Tallahassee, FL 32399-1050

Elaine L. Owens

304 South Division Street Lake City, FL 32055

Diane Orcutt, Executive Director Board of Clinical Social Work,

Marriage and Family Therapy and Mental Health Counseling

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

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.

Docket for Case No: 91-001003

Orders for Case No: 91-001003