STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL LICHTMAN, )

)

Petitioner, )

)

vs. )

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

)

Respondent. )

Case No. 05-0004

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on April 14, 2005, by video teleconference at sites in Fort Lauderdale and Tallahassee, Florida, before Administrative Law Judge Michael M. Parrish, of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Mark J. Berkowitz, Esquire

Mark J. Berkowitz, P.A.

524 South Andrews Avenue, Suite 200N Fort Lauderdale, Florida 33301

For Respondent: Michael Flury, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner’s application for relicensure as a mental health counselor should be granted or denied.

PRELIMINARY STATEMENT

This is a license application proceeding in which the Petitioner seeks to once again be licensed to practice as a Mental Health Counselor in Florida. The Petitioner has been served with notice that the Respondent intends to deny his application. The notice of intent to deny was twice amended. The final notice, titled Second Amended Notice of Intent to Deny, advised the Petitioner that the Respondent intended to deny his application for the following three reasons:

1. The applicant has had a comparable professional license to practice revoked or acted against by another state pursuant to the provisions of Section 491.009(1)(b) and 456.072(1)(f), Florida Statutes.

2. The applicant was convicted or found guilty of a crime in another jurisdiction which directly relates to the practice of his or her profession in accordance with the provisions of Section 491.009(1)(c) and 456.072(1)(c), Florida Statutes, and failed to demonstrate that he meets the statutory requirements of Section 491.005(4), Florida Statutes.

3. The applicant’s prior license as a Mental Health Counselor in Florida was revoked pursuant to Final Order in DOH Case No. 95-17236, entered July 16, 2001.

The Petitioner requested an evidentiary hearing, and in due course the case was referred to the Division of Administrative Hearings to conduct the requested evidentiary hearing.

At the final hearing the Petitioner testified on his own behalf and also presented the testimony of two other witnesses. The Petitioner also offered three exhibits, all of which were received in evidence.

The Respondent did not call any witnesses to testify at the final hearing, but did offer six exhibits, one of which was the transcript of the deposition testimony of one of the Respondent’s employees. All of the Respondent’s exhibits were received in evidence.

A deadline for submission of proposed recommended orders of ten days following the filing of the transcript was agreed to by the parties. The transcript of the final hearing was filed on May 4, 2005. Thereafter, both parties filed timely Proposed Recommended Orders containing proposed findings of fact and conclusions of law. The proposals submitted by the parties have been carefully considered during the preparation of this Recommended Order.1

FINDINGS OF FACT

1. The Petitioner was licensed as a psychologist in the State of New Jersey from May 14, 1979, until May 29, 1996.

   While so licensed, the Petitioner engaged in private practice as

   a psychologist in New Jersey where he engaged individual, family, and group therapy.

2. On October 16, 1995, the Petitioner’s license to practice psychology in New Jersey was suspended pursuant to a Consent Order. The suspension was based on allegations of extensive insurance fraud perpetrated by the Petitioner during the course of his practice of psychology in New Jersey.

3. Following the suspension of his license, the Petitioner continued to practice psychology in New Jersey by continuing to see patients and continuing to provide therapy.

4. On May 28, 1996, the Petitioner pled guilty to one count of conspiracy and to one count of theft by deception in New Jersey Superior Court, Criminal Division. The criminal charges to which the Petitioner pled guilty resulted from the Petitioner’s having engaged in a scheme in his psychology practice whereby he would submit claims for payment to insurance companies, and would receive payments for those claims from insurance companies, for patients he did not see and/or for treatments he never rendered. The criminal court that convicted the Petitioner ordered the Petitioner to pay restitution in the amount of $2,793,656.70 and sentenced the Petitioner to a prison term of five years and six months. Ultimately, the Petitioner was required to serve only seven months in prison. The Petitioner has repaid a substantial amount of the restitution,

   but he still owes approximately $600,000.00 in unpaid restitution.

5. On May 29, 1996, the New Jersey State Board of Psychological Examiners issued a Final Order which, among other things, revoked the Petitioner’s license to practice psychology in New Jersey. On June 27, 1996, the Superior Court of New Jersey in Case No. C-225-96 issued a Final Order and Judgment and Permanent Injunction against the Petitioner. That order permanently enjoined the Petitioner from engaging in the practice of psychology in any setting and also ordered the Petitioner to reimburse the patients he had treated while his license was suspended.

6. On May 25, 1994, the Petitioner was advised by letter that he had successfully completed the requirements to be eligible for licensure in Florida as a mental health counselor. Shortly thereafter the Respondent received his license to practice as a mental health counselor in Florida. The Petitioner was licensed in Florida as a mental health counselor from mid-1994 until July 16, 2001. On July 16, 2001, the Florida Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling entered a Final Order revoking the Petitioner’s license to practice mental health counseling in Florida. The revocation order was based on an Administrative Complaint which alleged that the Petitioner had

   violated Sections 491.009(2)(b) and 491.009(2)(c), Florida Statutes, by reason of the revocation of his New Jersey license to practice psychology, and by reason of his criminal conviction in New Jersey of a crime that directly related to the practice of mental health counseling.

7. The profession of psychologist and the profession of mental health counseling are comparable professions.2

8. The Petitioner has not completed a minimum of three semester hours or four quarter hours of graduate level coursework on the subject of substance abuse. The Petitioner has not completed a minimum of three semester or four quarter hours of graduate level coursework on the subject of legal, ethical, and professional standards.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this case. §§ 120.569 and 120.57(1), Fla. Stat.3

10. In license application cases, the burden is upon the applicant to demonstrate entitlement to the requested license by a preponderance of the evidence. Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977); State ex rel. Glaser v. Pepper,

    155 So. 2d 383 (Fla. 1st DCA 1963). For the reasons set forth

    below, the Petitioner has failed to demonstrate such entitlement.

11. Section 491.009(1)(b), Florida Statutes, provides in pertinent part:

    The following acts constitute grounds for denial of a license or disciplinary action as specified in Section 456.072(2):

    
    

    (b) Having a license, registration, or certificate to practice a comparable profession revoked, suspended, or otherwise acted against, including the denial of certification by another state, territory or country.

    
    

12. Pursuant to the statutory definition at Section 491.003(9), Florida Statutes, and at Section 490.003(4), Florida Statutes, the practice of mental health counseling and psychology are clearly comparable professions.

13. By having his license to practice psychology revoked by the New Jersey Board of Psychological Examiners for insurance fraud and for practicing as a psychologist on a suspended license, the Petitioner has violated Section 491.009(1)(b), Florida Statutes, by having a comparable license acted against in another state.

14. Section 491.009(1), Florida Statutes, states in pertinent part:

    The following acts constitute grounds for denial of a license or disciplinary action, as specified in Section 456.072(2):

    (c) Being convicted or found guilty, regardless of adjudication, or having entered a plea of nolo contendere to, a crime in any jurisdiction which directly relates to the practice of his or her profession or the ability to practice his or her profession.

    
    

15. The Petitioner is in violation of Section 491.009(1)(c), Florida Statutes, by pleading guilty to one count of conspiracy and to one count of insurance fraud in the State of New Jersey and by being found guilty of those crimes. Those crimes were committed during the course of his practice as a psychologist. Therefore, those crimes are related to the Petitioner’s practice of his profession because they occurred during the course of, and as a part of, his practice of his profession.

16. Section 456.072(6), Florida Statutes, provides in pertinent part:

    In the event the board, or the department when there is no board, determines that revocation of a license is the appropriate penalty, the revocation shall be permanent. However, the board may establish by rule requirements for reapplication by applicants whose licenses have been permanently revoked. Such requirements may include, but shall not be limited to, satisfying current requirements for an initial license.

    
    

17. The Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling has not established any rules for reinstatement or reapplication for a license that has

    been revoked. Therefore, pursuant to Section 456.072(6), Florida Statutes, the Board lacks statutory authority to grant the Petitioner a license as a mental health counselor unless and until rules are adopted by the Board establishing requirements for reapplication by applicants whose licenses have been permanently revoked.

18. Subsections 491.005(4)(b)1.a. and b., Florida Statutes, require that an applicant for a mental health counselor license have at least three semester hours or four quarter hours of graduate level coursework in a list of subject areas which include substance abuse, and legal ethical and professional standards issues. The Petitioner does not meet the statutory requirements as listed in Section 491.005(4), Florida Statutes, because the Petitioner does not have the required graduate level coursework in substance abuse and in legal, ethical, and professional standards issues.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling enter a final order denying the Petitioner’s application for licensure as a licensed mental health counselor.

DONE AND ENTERED this 28th day of June, 2005, in Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2005.

ENDNOTES

1/ The proposed findings and conclusions set forth in the Respondent’s Proposed Recommended Order are in large part consistent with the findings and conclusions reached by the Administrative Law Judge. Accordingly, portions of the Respondent’s proposals have been incorporated into the text of this Recommended Order.

2/ In this regard it is instructive to compare the statutory definition of the term “practice of psychology” at Section 490.003(4), Florida Statutes, with the statutory definition of the term “practice of mental health counseling” at Section 491.003(9), Florida Statutes.

3/ All references to the Florida Statutes are to the current version of the Florida Statutes except where otherwise indicated.

COPIES FURNISHED:

Mark J. Berkowitz, Esquire Mark J. Berkowitz, P.A.

524 South Andrews Avenue, Suite 200N Fort Lauderdale, Florida 33301

Michael Flury, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Susan Foster, Executive Director

Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling

Department of Health 4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Timothy M. Cerio, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Dr. John O. Agwunobi, Secretary Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 05-000004

Orders for Case No: 05-000004