vs. )
) DEPARTMENT OF HEALTH, BOARD OF ) CLINICAL SOCIAL WORK, MARRIAGE ) AND FAMILY THERAPY, AND MENTAL ) HEALTH COUNSELING, )
Respondent. )
Case No. 12-1207
Pursuant to notice, a formal hearing was held in this case on August 29, 2012, by video teleconference between Miami and Tallahassee, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings (DOAH).
For Petitioner: Howard J. Hochman, Esquire
Law Offices of Howard J. Hochman Suite 210
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Whether the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling (Board) erred in issuing an order that denied reinstatement of Irene Acosta's (Ms. Acosta or Petitioner) mental health intern license.
In 1999, Ms. Acosta applied to the Board for licensure as a mental health intern. The Board granted Ms. Acosta's application in 1999. In 2002, the Board notified Ms. Acosta that her registration had been issued in error as the result of a credentialing error. The Board informed Ms. Acosta that she could either relinquish her registration or the Board would institute an administrative complaint to have her registration revoked. Ms. Acosta thereafter relinquished her registration.
In 2012, Ms. Acosta filed an "Amended Emergency Motion to Reinstate Licensed Mental Health Counselor Intern License or for Alternative Relief." On March 5, 2012, the Board denied
Ms. Acosta's motion. Ms. Acosta timely requested a formal administrative hearing to challenge the denial of her motion, the matter was referred to DOAH, and this proceeding followed.
Prior to the formal hearing, the parties executed a Joint Pre-Hearing Stipulation that contained factual stipulations.
Recommended Order to the extent the stipulated facts have been found to be relevant.
At the formal hearing, Petitioner testified on her own behalf and presented the additional testimony of Susan J. Foster (the Board's Executive Director). Petitioner offered the following pre-numbered Exhibits, each of which was accepted into evidence: 1-5 and 7-9. The Board recalled Ms. Foster and presented the additional testimony of Robin McKenzie (a programs administrator for the Department of Health, Medical Quality Assurance). The Board offered its pre-numbered Exhibits 2 and 3, both of which were admitted into evidence.
A Transcript of the proceedings, consisting of one volume, was filed on September 18, 2012. Both parties filed Proposed Recommended Orders (PROs), which have been duly considered by the undersigned in the preparation of this Recommended Order.
In addition, the undersigned has considered Petitioner's separately-filed "Closing Argument."
The Board is the state agency that licenses mental health interns in the State of Florida.
The Board initially licensed Ms. Acosta as a mental health intern on March 19, 1999, when it issued to her license number IMH 1515.
This license was issued after Ms. Acosta completed and submitted to the Board an application for the license.
Ms. Acosta received her higher education from Newport University in California.
It is the Board's position that in 2002, Newport University, located in California, was not a regionally accredited university as defined by the Council on Higher Education and, consequently, degrees from that institution did not meet the Board's credentialing requirements for licensure as a mental health intern. Newport University, located in Virginia, was appropriately accredited, and degrees from that institution met the Board's credentialing requirements. Newport University in California is not affiliated with Newport University in Virginia.
Ms. Acosta provided to the Board as part of her application package transcripts and correspondence from Newport University which clearly indicate that the university is in California, not Virginia.
Ms. Acosta did not bribe, coerce, use undue influence, make fraudulent misrepresentations, commit any intentional wrongdoing, or unlawfully conceal any information in order to obtain her intern license.
Intern licenses are issued for two-year periods.
Ms. Acosta's license was last renewed on February 5, 2001.
In 2002, the Board realized that Ms. Acosta had obtained her master's degree from Newport University in California. The Board, notwithstanding a diligent search and investigation, is unable to determine how Ms. Acosta's credentialing issue was brought to its attention. That determination could not be made because of the passage of time and the possible destruction of documents.
In 2002, Ms. Foster was Executive Director for the Board. Ms. Foster concluded that Ms. Acosta's license had been issued in error because Ms. Acosta lacked required educational credentialing.
By letter dated March 18, 2002, Ms. Foster advised Ms. Acosta as follows:
As the Executive Director for the Board of Clinical Social Work, Marriage & Family Therapy, and Mental Health Counseling, I am writing concerning your intern registration license which was issued by the Board on March 19, 1999. At the time your application was approved, Newport University was not a regionally accredited university as defined by the Council on Higher Education. As such, the intern registration was issued in error.
Section 491.009(1)(a), F.S. provides that:
The following acts constitute grounds for denial of a license or disciplinary action as specified in s. 456.072(2):
Attempting to obtain, obtaining, or renewing a license, registration, or certificate under this chapter by bribery or fraudulent misrepresentation or through an error of the board or the department.
After consulting with Board counsel, I have been instructed to request that you voluntarily relinquish your intern registration licensed [sic] within 15 days of the receipt of this letter. Failure to do so will result in a complaint being filed with the Agency for Health Care Administration.
Should you have any questions, please feel free to contact us at our office at . . . .
Petitioner contacted Ms. Foster by telephone to discuss the March 18 letter. Petitioner told Ms. Foster that she was going to contact an attorney to advise her.
John Schwartz, Petitioner's attorney, contacted Ms. Foster by letter dated April 1, 2002. Among other questions, Mr. Schwartz asked for documentation that Newport University was not regionally accredited.
Edward A. Tellechea was, in 2002, an Assistant Attorney General who served as legal counsel for the Board.
Mr. Tellechea responded to Mr. Schwartz's letter by letter dated April 16, 2002. Mr. Tellechea's letter identified his status as counsel for the Board and included the following:
Chapter 491.005(4)(b)2., Florida Statutes, requires that the education programs for mental health counseling applicants be obtained from institutions that are properly accredited. The relevant statutory language reads as follows:
2. 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
accredited by a regional accrediting body recognized by the Commission on Recognition of Postsecondary Accreditation. . . .
Based upon the publication titled: The Accredited Institutions of Postseconday Education, which is published in consultation with the Council for Higher Education Accreditation, Newport University in Newport Beach, California, is not an institution that is accredited by a regional accrediting body recognized by the Commission on Recognition of Postsecondary Accreditation. It does contain the name of a Newport University, with is located in the Commonwealth of Virginia, but Board staff has verified that the two institutions are not affiliated with each other.
If you have any documentation that indicates that Newport University [in California] is accredited by a regional accrediting body recognized by the Commission on the Recognition of Postsecondary Accreditation, please forward it to the Board office by May 2, 2002. Otherwise, this matter will be referred to the Agency for Health Care Administration for appropriate legal action.
Mr. Schwartz provided Ms. Acosta with a copy of Mr. Tellechea's letter.
On May 7, 2002, Robin McKenzie, a program administrator for the Florida Department of Health, sent a memo to the Bureau of Consumer Protection within the Agency for Health Care Administration (Consumer Protection) that contained the following:
Please initiate a complaint against Irene Acosta. An intern registration license was issued to her in error. A letter dated March 18, 2002, was sent to Ms. Acosta
requesting that she voluntarily relinquish this license. As of this date, Ms. Acosta has not returned her license to the board office.
Petitioner relinquished her license by handwritten letter addressed to Ms. Foster. The letter, dated May 1, 2002, bears Ms. Acosta's signature. The letter, received by
Ms. Foster's office on May 7, 2002, provided as follows:
As requested by your office, I hereby relinquish my intern registration license. Thank you for all your help. Please note I have destroyed the license.
On May 21, 2002, Ms. McKenzie sent a memo to Consumer Protection that enclosed a copy of Ms. Acosta's letter dated May 1, 2002, and asked that the complaint against her be closed.
Between the time she was issued the subject license and the time she relinquished the license, Ms. Acosta earned her livelihood working as a mental health counselor.
Petitioner never engaged in any unlawful concealment or otherwise intentional wrongdoing in her application process. When she submitted her application, Ms. Acosta was unaware that Newport University (in California) was not accredited for purposes of her licensure application.
Petitioner testified that when she relinquished her license, she was unaware that she could have had the Board's intended action reviewed by a probable cause committee or challenge the intended action in an administrative hearing. She
further testified that had she known of these rights, she would have challenged the intended action. She further testified that she relinquished her license because she believed that she would be charged with a crime if she did not do so. That testimony has been considered in making the finding as to voluntariness that follows. Also considered is the fact that Ms. Acosta consulted an attorney before deciding to relinquish her license.
While it is evident that Petitioner did not want to relinquish her license, and did so only after concluding she had no other choice than to proceed to an administrative hearing, the Board did not coerce her into that action. Ms. Foster's letter and Mr. Tellechea's letter identified the problem with Ms. Acosta's credentials and simply laid out her options - - either relinquish the license or the Board will file an administrative complaint to revoke the license.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of and the parties to this proceeding pursuant to sections 120.569 and 120.57(1).
This is a de novo proceeding designed to formulate final agency action. See Hamilton Cnty Bd. of Cnty Comm'rs v.
Dep't. Envtl. Reg., 587 So. 2d 1378 (Fla. 1st DCA 1991) and section 120.57(1)(k), Florida Statutes.
As the applicant, Petitioner has the burden of proving
her entitlement to the relief she seeks by a preponderance of the evidence. See Dep't of Banking and Fin. v. Osborne Stern, 670 So. 2d. 932 (Fla. 1996) and Dep't of Transp. v. J. W. C.
Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
A "preponderance" of the evidence means the greater weight of the evidence. See Fireman's Fund Indem. Co. v. Perry, 5 So. 2d 862 (Fla. 1942).
Ms. Acosta failed to prove that the Board coerced her into relinquishing her license because she failed to prove that the Board engaged in any improper conduct towards her. See
McLaughlin v. Fl. Dep't of Nat. Res., 526 So. 2d 934, 937, (Fla. 1st DCA, 1988) ("An action is not voluntary if it is produced by government conduct which is wrongful"). It is not improper and therefore not duress or coercion for an agency to threaten action the agency is legally entitled to take. City of Miami v. Kory, 394 So. 2d 494, 498 (Fla. 3d DCA, rev denied 407 So. 2d 1104 Fla. 1981) The Board clearly had the legal right to file an administrative complaint against Petitioner if the Board believed her license was issued in error. Cirnigliaro v. Fla.
Police Standards and Training Comm'n, 409 So. 2d 80 (Fla. 1st DCA 1982).
Further, Ms. Acosta consulted an attorney and knew, or should have known, that she could have contested the administrative complaint that the Board would have filed if she
had not relinquished her license. Consequently, she controlled the decision whether to relinquish. Cf. City of Miami v. Kory, supra.
Ms. Acosta relies on the following provisions of section 120.60, Florida Statutes (1998), the law in effect when she submitted her application for licensure, in support of her argument that her license should be reinstated:
Upon receipt of an application for a license, an agency shall examine the application and, within 30 days after such receipt, notify the applicant of any apparent errors or omissions and request any additional information the agency is permitted by law to require. An agency shall not deny a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant within this 30-day period. An application shall be considered complete upon receipt of all requested information and correction of any error or omission for which the applicant was timely notified or when the time for such notification has expired. Every application for a license shall be approved or denied within 90 days after receipt of a completed application unless a shorter
period of time for agency action is provided by law. The 90-day time period shall be tolled by the initiation of a proceeding under ss. 120.569 and 120.57. An application for a license must be approved or denied within the 90-day or shorter time period, within 15 days after the conclusion of a public hearing held on the application, or within 45 days after a recommended order is submitted to the agency and the parties, whichever is later. The agency must approve any application for a license or for an examination required for licensure if the
agency has not approved or denied the application within the time periods prescribed by this subsection.
* * *
(3) Each applicant shall be given written notice either personally or by mail that the agency intends to grant or deny, or has granted or denied, the application for license. The notice must state with particularity the grounds or basis for the issuance or denial of the license, except when issuance is a ministerial act. Unless waived, a copy of the notice shall be delivered or mailed to each party's attorney of record and to each person who has requested notice of agency action. Each notice shall inform the recipient of the basis for the agency decision, shall inform the recipient of any administrative hearing pursuant to ss. 120.569 and 120.57 or judicial review pursuant to s. 120.68 which may be available, shall indicate the procedure which must be followed, and shall state the applicable time limits. The issuing agency shall certify the date the notice was mailed or delivered, and the notice and the certification shall be filed with the agency clerk.
Petitioner's reliance on the foregoing statutory provisions is misplaced because those provisions pertain only to initial licensure, and are irrelevant to Ms. Acosta's request that her license be reinstated.
Ms. Acosta contends that the March 18, 2002, letter deprived her of due process because it did not advise her of her rights to challenge the assertion that her school was not properly accredited. Ms. Acosta also contends that the Board
should have presented the issue of accreditation to a probable cause panel before issuing the letter of March 18. Both contentions are rejected. As to the first contention, the letter of March 18 was not an administrative complaint, and there was no need to include a notice of rights in the letter. As to the second contention, the letter of March 18, Petitioner failed to demonstrate that Ms. Foster was required to consult a probable cause panel before issuing the letter.
Petitioner's other arguments based on equity and fundamental fairness doctrines are rejected because the Board did no wrong and Ms. Acosta knew, or should have known, her options when she relinquished her license.
The elements required for equitable estoppel are a representation as to a material fact that is contrary to a later-asserted position; reliance on that representation; and a changed in position detrimental to the party claiming estoppels caused by the representation and reliance thereon. State Dep't
of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla. 1981).
Equitable estoppel can be applied against the state only in "rare instances" and under "exceptional circumstances." State Dep't of Revenue v. Anderson, supra, at 400. See also
Machules v. Dep't of Admin., 502 So. 2d 437, 439 (Fla. 1st DCA 1987) (As to estoppel, that doctrine is rarely applied against state action except where there are special circumstances and
some positive act on the part of an officer of the state).
The elements necessary to trigger equitable relief are lacking here.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling enter a Final Order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is further Recommended that the Final Order deny Irene Acosta's "Amended Emergency Motion to Reinstate Licensed Mental Health Counselor Intern License or for Alternative Relief."
DONE AND ENTERED this 16th day of November, 2012, in Tallahassee, Leon County, Florida.
CLAUDE B. ARRINGTON
Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2012.
Howard J. Hochman, Esquire
Law Offices of Howard J. Hochman Suite 210
Deborah B. Loucks, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Jennifer A. Tschetter, General Counsel Department of Health
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.
