The Issue The issue in this case is whether Petitioner’s application for continuing education course approval should be granted by the Board of Chiropractic Medicine.
Findings Of Fact Respondent, Board of Chiropractic Medicine, is the state agency responsible for the licensure and regulation of chiropractic medicine in the State of Florida. Section 456.013(6) and Chapter 460, Florida Statutes. The Board has the responsibility to approve continuing education courses sponsored by chiropractic colleges. Section 460.408, Florida Statutes. Continuing education providers established through medical osteopathic or chiropractic colleges send their initial courses to the Board for approval. Ordinarily, once the course is approved they become an approved provider and do not send subsequent continuing courses to the Board for approval. Petitioner is an approved continuing education course provider. On July 24, 2001, Petitioner submitted an application of an online course to the Board for approval. The submitted course, ChiroCredit.com, is a 13-hour course consisting of nine regular hours, two HIV/AIDS hours, and two risk management hours. With the application, Petitioner submitted a letter dated July 19, 2001, by Drs. Richard Saporito and Paul Powers, Petitioner’s representative. The letter requested the Board “to review the issue of acceptance of distance based online education credits for Chiropractors continuing education requirements in the State of Florida.” On August 22, 2001, Stephanie Baxley, Regulatory Specialist for the Board, sent a memorandum to Dr. Gene Jenkins, D.C., chair of the Continuing Education Committee, requesting continuing education review. Dr. Jenkins signed and marked the memorandum "approved" on August 29, 2001. On the same date, Dr. Jenkins also indicated approval of an online course offered by another provider, Logan College. Ms. Baxley wrote to Dr. Richard Saporito notifying him that ChiroCredit.com had been approved for continuing education credit. Vicki Grant is a programs operations administrator with the Department of Health. Her responsibilities include managing the licensing and discipline of four professions, including chiropractic medicine. Ms. Grant received a phone call from Dr. Jenkins who informed her that he had made a mistake by indicating approval of the online course offered by Petitioner. In response to his inquiry as to how to proceed, she advised him to notify the continuing education staff, tell them he had made a mistake, and ask that the matter be presented to the full board. She also spoke to Sharon Guilford regarding the matter. Ms. Guilford is Ms. Baxley's supervisor. Sharon Guilford is a program operations administrator with the Department of Health. One of her responsibilities is serving as the administrator for the continuing education section that consists of six professions, including chiropractic medicine. Ms. Guilford and Ms. Grant spoke about Dr. Jenkins' phone call. On September 11, 2001, Ms. Guilford wrote a note on a copy of the August 29, 2001 letter from Ms. Baxley to Dr. Saporito that stated as follows: "Per Dr. Jenkins-course should've never been approved. Send letter correcting the error of approval." On September 11, 2001, Ms. Baxley sent a letter to Dr. Saporito advising him that the approval letter of August 29, 2001, was sent in error and that the Board would take up the matter at their October 2001 meeting.1/ The Board did address the matter at their October 1, 2001 meeting which was held via teleconference. Dr. Saporito and Dr. Paul Powers spoke to the Board on behalf of Petitioner. During the last part of the Board's consideration of this matter, various board members expressed concern that the Board did not have enough information to vote for an approval of the course and discussed having an opportunity to receive more information. After much discussion, the Board unanimously voted to deny Petitioner's application for approval of the course for continuing education purposes. At the same meeting, the Board also denied an application of Logan College to provide continuing education via an online course. The Notice of Intent to Deny states the grounds for denial: As grounds for denial, the Board found that the course did not meet the requirements of Florida Administrative Code Rule 64B2- 13.004. Specifically, the rule does not contemplate the awarding of credit for virtual courses or those taken online by use of a computer. The Board opined that 'classroom hours' as used in the rule means in-person education and not time spent in front of a computer. The course offered by the applicant is an online offering. Additionally, the Board expressed concerns about the educational merit and security protocols used by online course providers, but welcomes more information regarding these topics. The Board has never approved an online, homestudy, or video-taped presentation for continuing education course credit. The courses presented to the Board by Petitioner and Logan College were the first online courses to be presented for Board approval. The Board interprets its applicable rule, which requires each licensee to obtain 40 classroom hours of continuing education, to require live and in-person classroom hours. Petitioner offered the testimony of two expert witnesses, Dr. Terry Heller and Dr. Joseph Boyle. Dr. Heller has knowledge regarding theories of learning and education, but lacks knowledge about chiropractors, chiropractic education, or chiropractic continuing education and does not appear to be very familiar with Petitioner’s particular online course. Dr. Boyle is familiar with both chiropractic continuing education and Petitioner's course. He disagrees with the Board's interpretation that the term "classroom hours" must mean a lecture or live format. However, Dr. Boyle described the broadest definition of "classroom" to be "anywhere, anyplace, at any pace, anytime." He acknowledged that the Board could set up criteria for online courses that differ from the criteria for traditional classrooms. Respondent’s expert witness, Dr. David Brown, noted that most chiropractors practice in isolation and very few have staff privileges at hospitals. In his opinion, a legitimate policy reason for requiring chiropractors to obtain a certain amount of in-person continuing education is that they can “rub shoulders with their peers” and learn from one another. Dr. Brown noted that many states impose restrictions on the number of online hours that may be taken or on the type of licensees who are eligible to receive credit. Dr. Brown interpreted the word "classroom" within the context of the rule containing the requirement of 40 classroom hours of continuing education to mean ". . . to physically sit in a room, in a classroom type environment which could be an auditorium or some other environment, with your peers who are also taking the class in order to obtain course credit. I think that's a traditional type of view." Dr. Brown's interpretation of "classroom" within the context of the Board's rule is more persuasive than those of Petitioner's experts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered denying Petitioner’s application for continuing education course approval.2/ DONE AND ENTERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 5th day of March, 2002.
The Issue At issue is whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Rudolph Gordon Mirjah, is now and has been at all times material hereto a licensed real estate salesperson in the State of Florida, having been issued license number 0589544. Since November 2, 1994, if not before, Respondent has been employed by Post, Buckley, Schuh, and Jernigan, Inc., a broker corporation located at 2001 Northwest 107th Avenue, Miami, Florida, as a right-of-way agent. Incident to his employment, Respondent works primarily as a consultant for the Florida Department of Transportation to acquire real estate for road improvements. Elements of such activities require his licensure as a real estate salesperson. In or about early 1998, the Department provided Respondent with a renewal notice, which reminded him that his salesperson license was due to expire March 31, 1998. The renewal notice carried the following legend: IMPORTANT: BY SUBMITTING THE APPROPRIATE RENEWAL FEES TO THE DEPARTMENT OR THE AGENCY, A LICENSEE ACKNOWLEDGES COMPLIANCE WITH ALL REQUIREMENTS FOR RENEWAL. Respondent submitted the appropriate renewal fee, and the Department renewed his license. By letter of May 22, 1998,1 the Department advised Respondent that his license had been selected for audit to determine whether he was in compliance with the continuing education requirements for licensure. Pertinent to this case, the letter provided: Your license number has been selected at random for an audit of the education required to comply with Rule 61J2-3.015(2). By submitting the renewal fee to the Department, you acknowledged compliance of the "Commission-prescribed education" requirements for the license period beginning April 1, 1996, ending March 31, 1998. Please submit this letter along with the proof of the Commission approved course or equivalency education required at the time of you renewal, no later than 10 days from the date of this letter. (Emphasis in original.) In response to the Department's request, Respondent provided a certificate (reflecting 14 hours of continuing education), dated January 21, 1996. The Department responded (by letter of June 15, 1998) that the tendered certificate reflected proof of 14 hours of continuing education for the period beginning April 1, 1994, and ending March 31, 1996, and, therefore, evidenced satisfactory completion of the continuing education requirement for renewal of Respondent's license March 31, 1996, and not the renewal of March 31, 1998. The Department again requested evidence that Respondent had satisfactorily completed 14 hours of continuing education for the period beginning April 1, 1996, and ending March 31, 1998, that would support the renewal of his license for March 31, 1998. By letter of June 19, 1998, Respondent replied to the Department's request, as follows: This letter is in reference to the attached letter from the Department of Business & Professional Regulation dated June 15, 1998, and our recent telephone conversation. I honestly was not aware that I have to take the 14 hour Continuing Education course every renewal period, although you stated it on the renewal notice. I thought this was a reminder to take the course which I had already taken. When I had completed this 14 hour course with Gold Coast School of Real Estate, I asked the instructor if I had to take any additional courses, and he told me that was the last course. It was a misunderstanding on my part. I apologize to the Department for not fulfilling this requirement, but ask for an extension to complete the course. On June 20, 1998, Respondent enrolled with Gold Coast School of Real Estate for 14 hours of continuing education (to fulfill his prior obligation), and on June 26, 1998, successfully passed the examination and was awarded a certificate of completion. Notwithstanding, on August 19, 1998, the Department filed the Administrative Complaint which is the subject matter of this case and charged that Respondent violated Subsection 475.25(1)(m), Florida Statutes, by having "obtained a license by means of misrepresentation or concealment," and Subsection 475.25(1)(e), Florida Statutes, by having failed to satisfy the continuing education requirements prescribed by Rule 61J2-3.009, Florida Administrative Code. According to the complaint, the disciplinary action sought for each count or separate offense . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties as provided for by § 455.227 and § 475.25(1), Fla. Stat. and Fla. Admin. Code R. 61J2-24.001. 2 At hearing, Respondent acknowledged his failure to take a continuing education course during the renewal period at issue, and reiterated that the cause for such failure was his misunderstanding of the statement (heretofore noted) made by the instructor at the course he completed in January 1996. Here, Respondent's testimony was candid, and the explanation offered for his failure to complete a continuing education course during the subject renewal period is credited. Consequently, it is resolved that, at the time he submitted his renewal application, Respondent did not intend to mislead or deceive the Department, nor did he act with reckless disregard for the truth. In so concluding, it is observed that following licensure, Respondent duly completed the 45 hours post-licensing educational course requirement prior to the first renewal following licensure, as required by Rule 61J2-3020(1), Florida Administrative Code (Petitioner's Exhibit 6), and 14 hours of continuing education (classroom hours) prior to the second renewal of his license, as required by Rule 61J2-3009(1), Florida Administrative Code (Petitioner's Exhibit 5). It was during the later course that Respondent received the information (that this was the last course he was required to take) which he now understands he misunderstood to apply to any future educational requirements, as opposed to merely that renewal period. Also pertinent to the foregoing conclusion, it is observed that during the period of Respondent's licensure, as well as before, he actively pursued self-improvement in his profession through attendance at numerous educational courses presented by the International Right of Way Association. Such continuing education included a 16-classroom-hour course in Land Titles (completed November 5, 1993); an 80-classroom-hour course in Principles of Real Estate Acquisition (completed December 8, 1995); an 8-classroom-hour course in Ethics and the Right of Way Profession (completed September 27, 1996); a 24-classroom-hour course in Communications in Real Estate Acquisition (completed February 14, 1997); a 16-classroom-hour course in Eminent Domain Law Basics for Right of Way Professionals (completed November 14, 1997); and a 24-classroom-hour course in Interpersonal Relations in Real Estate (completed July 10, 1998). Moreover, between November 1996 and November 20, 1997, Respondent took and passed examinations offered by the International Right of Way Association in Law, Negotiations, Appraisals, and Engineering, and on October 15, 1998, Respondent was approved for registration as a Senior Member of the International Right of Way Association. Given the commitment reflected by Respondent's educational efforts to improve his skills as a right-of-way agent, it is most unlikely that, absent a misunderstanding, Respondent would not have complied with the Department's continuing education requirement. Consequently, given Respondent's candor and history, it must be concluded that the proof fails to support the conclusion that Respondent "obtained [his] license by means of misrepresentation or concealment," as alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Count I of the Administrative Complaint be dismissed. Respondent be found guilty of violating the provisions of Subsection 475.25(1)(e), Florida Statutes, as alleged in Count II of the Administrative Complaint, and that for such violation Respondent receive, as a penalty, a reprimand. DONE AND ENTERED this 20th day of January, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 20th day of January, 1999.
Findings Of Fact Respondent's name was one of about three hundred on a list of public accountants certified in Florida for whom, at the close of the initial period following institution of the requirement, petitioner had no record of the taking of continuing professional education courses or of the passing of a written professional examination. As a result, petitioner mailed respondent a form letter advising him of the situation, in February of 1977. Receiving no reply, petitioner mailed a second letter to respondent on April 28, 1977, stating that he "ha[d] failed to comply with F.S. 473.111(4) and Rule 21A-15" and that his suspension had been recommended to petitioner for that reason. On May 11, 1977, respondent visited petitioner's offices in Gainesville and spoke to George Thomas McCall, at the time petitioner's coordinator for continuing professional education. Mr. McCall gave respondent three reporting forms on which respondent proceeded, without reference to any notes, to list various titles in the column styled "Name of Course or Program," filling in corresponding blanks in columns for the dates of the courses, for their sponsors and for "Credit Hours Claimed." Petitioner's exhibit No. 1. Douglas H. Thompson, Jr., petitioner's executive director, asked Jean P. Finegold, Mr. McCall's successor, to attempt to verify that respondent had taken the continuing professional education courses he had listed. Ms. Finegold wrote respondent requesting documentation. Petitioner sent this letter by certified mail, but it was returned unclaimed. Ms. Finegold also wrote each of the four institutions listed by respondent as sponsors of continuing professional education courses that he had taken. The United States Department of Labor, listed by respondent as the sponsor of 48 hours of course work he had taken in the auditing and accounting category, never replied to Ms. Finegold's inquiry. Because respondent had indicated, on the reporting form for 1974, that he took courses named "Estate Planning" and "Banking" sponsored by the Florida Institute of Certified Public Accountants (FICPA), Ms. Finegold wrote FICPA asking, inter alia, for verification of respondent's attendance at those courses. Respondent listed no other courses sponsored by FICPA on any of the reporting forms. Under the supervision of FICPA's assistant Director, John Scharbaugh, Vicki Ware researched the FICPA's records without finding the course names "Banking" or "Estate Planning." Later, after an extended telephone conversation between respondent and Mr. Scharbaugh, the FICPA verified that respondent had attended "Income Taxation of Estates and Trusts" on January 10, 1974; Basic Concepts in Estate Planning" on January 11, 1974; "Workshop on Fiduciary Income Tax Returns" on December 14, 1973; "Seminar on Bank Audits, Accounting, Taxes and Regulations" (Seminar) on November 16, 1973; and another course on May 17 and 18, 1973. The three more recent courses "each qualify for eight hours of other CPE credit," composite exhibit No. 8, deposition of Jean P. Finegold, as did the seminar. The other course "Management Advisory Services Conference" is the course respondent referred to on his 1974 reporting form as "Computer Advisory," mistakenly indicating sponsorship by Florida State University rather than by the FICPA. In response to Ms. Finegold's inquiry, the American Institute of Certified Public Accountants (AICPA) indicated that the AICPA had offered no courses entitled "Capital Investments--Long Term Debt," "Tax Reform Act of 1975" or "Tax Course," and Rex B. Cruse, Jr., director of the Continuing Professional Education Division of the AICPA, executed an affidavit to that effect. Composite exhibit No. 7, deposition of Jean P. Finegold. Respondent had indicated on his 1974 and 1976 reporting forms that he had taken courses with such names, sponsored by the AICPA. A subsequent search of the AICPA's bad debt file revealed that respondent had ordered self-study materials for courses named "Capital Structure and Long-Term Objectives," "Ins and Outs of IRS Practice and Procedures" and "Tax Reduction Act of 1975," but respondent "did not officially complete the courses by returning examinations. . .for grading." Composite exhibit No. 6, deposition of Jean P. Finegold. Otha L. Brandon, a certified public accountant in Memphis, Tennessee, first engaged respondent's services in 1975. On four or five occasions thereafter, respondent was in Memphis for orientation and instruction in auditing certain types of accounts, including assignments from the Environmental Protection Agency (EPA). Toward the end of 1976, Mr. Brandon entered into a contract with the EPA to audit construction grants to certain municipalities, including eight Florida cities. He hired respondent to perform the Florida audits. On January 3, 1977, Mr. Brendon wrote respondent directing him to go ahead with the work. At the time, Mr. Brandon contemplated completing the job in mid-February, thinking he would send additional manpower to Florida to assist respondent. Unassisted, respondent made submissions to Mr. Brandon on the last of the eight cities in July or August of 1977. Mr. Brandon allocated approximately nine thousand dollars ($9,000.00) to the Florida portion of the project. Upon receipt of respondent's work, people in Mr. Brandon's office revised the reports to make them conform to EPA regulations and directives. This was taken into account when Mr. Brandon paid respondent in excess of seven thousand two hundred dollars ($7,200.00) for his services. Respondent has been a certified public accountant in Florida since 1972.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's certificate for three (3) years. DONE and ENTERED this 9th day of February, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1979. COPIES FURNISHED: James S. Quincey, Esquire 226 South Main Street Gainesville, Florida 32602 Thomas B. Calhoun, Esquire 3656 Shamrock Way Tallahassee, Florida 32308
The Issue The issue in this case is whether disciplinary action should be taken against the Respondent on the basis of her failure to timely comply with continuing education requirements established by Section 626.2815, Florida Statutes.
Findings Of Fact The Respondent is currently licensed by the Florida Department of Insurance ("Department") as a General Lines (2-20) Agent. During the period from August 1, 1995, through July 31, 1997, the Respondent was licensed as a General Lines (2-20) Agent and as a Life, Health, and Variable Annuity (2-15) Agent. At all times material to this case, insurance agents licensed in Florida have been required to complete continuing education courses every two years. Licensed insurance agents can meet their continuing education requirements by attending seminars, taking classroom courses, or taking self-study courses. During the period from August 1, 1995, through July 31, 1997, the Respondent was required to complete 28 hours of continuing education courses. /3 The required courses could be taken and completed at any time during that two-year period. At all times material, the Respondent has been aware of the continuing education requirements applicable to licensed insurance agents. The Respondent resides in Key Largo, Florida, and has lived at the same address for at least 10 years. Miami, Florida, is about 60 miles from Key Largo. Key West is about 100 miles from Key Largo. During the period from August 1, 1995, through July 31, 1997, there were 11 continuing education courses offered in Key largo. During that same period there were 73 continuing education courses offered in Monroe County. During that same period there were approximately 3,000 continuing education courses offered in Dade County. The Respondent waited until July 16, 1997, which was 15 days before the end of her two-year continuing education deadline, before taking any action to comply with the continuing education requirements. On that day she ordered two self-study courses from a course provider named Noble. If an insurance agent chooses a self-study course to fulfill the continuing education requirements, the course is not considered to be completed until the agent has taken a monitored examination on the course material and has achieved a score of at least 70 percent. The Respondent finished her study of the course materials she bought from Noble by the end of July 1997, but she did not take and pass the examinations on those materials until the end of August 1997, which was three or four weeks past the end of her compliance deadline. In July of 1997, the Respondent was nursing an infant child. Although Noble had a testing site in Miami, the Respondent did not want to go to Miami to take the examinations for her self-study courses, because a trip to Miami would interfere with nursing her child. The Respondent waited until the end of August, because by that time Noble had opened a testing site in Key Largo. All insurance agents who failed to comply with the continuing education requirements for the period ending July 31, 1997, were sent a Preliminary Notice of Non-Compliance. All agents who did not respond to the Preliminary Notice of Non- Compliance were sent a Final Notice of Non-compliance. Both preliminary and final notices were sent to the Respondent. The Department initiated disciplinary action against all insurance agents who were found to have failed to comply with the continuing education requirements. The Department offered each of the non-compliant agents an opportunity to settle the disciplinary actions by payment of an administrative fine in the amount of $250.00. Numerous insurance agents settled on those terms. In one case, such a disciplinary action was resolved by a stipulated six-month license suspension.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Insurance issue a final order concluding that the Respondent is guilty of failing to comply with statutory and rule provisions regarding continuing education, and imposing a penalty consisting of a six-month suspension of the Respondent's license. DONE AND ENTERED this 8th day of October, 1999, in Tallahassee, Leon County, Florida. 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 8th day of October, 1999.
Findings Of Fact Donald A. Moyant, Petitioner, operates a contractors' exam school in Brandon, Florida, at which he preps builders to take the CILB exam for licensure as contractors. Petitioner took the exam given in June 1985 and received a score of 58.60. A score of 70.00 is required to pass this examination. The only answer that Petitioner questions is the answer he supplied to question No. 2, which related to the number of reinforcing bars required in a concrete slab of given dimensions and spacings of the bars. In Petitioner's solution to the problem he dropped the fractional bar that resulted from dividing the length of the slab by the spacing between bars. The correct solution requires the addition of a bar for this fractional spare. Petitioner's purpose in pursuing this proceeding is to obtain information to use in his Contractors Exam School, Inc. Since he would not have passed the examination even if his solution to question No. 2 had been marked correct, Petitioner is without standing to bring this action because he is doing so on behalf of the school he runs and not to allow him to receive a passing grade.
The Issue The issue is whether the following rules are invalid exercises of delegated legislative authority: Florida Administrative Code Rules 64B1-2.008; 64B1-6.002(1), (4) (only the following language: "is responsible for filing provider approval applications and"), (5), (8) (only the following language: ". . .n approved"), and (10) (only the following language: "individual,"); 64B1-6.005(4); 64B1-6.006(1), (8) (only the following language: "approved"), and (11); 64B1-6.007(1) and (2); and 64B1-6.008(1) and (2).
Findings Of Fact Petitioner received his degree in Acupuncture and Oriental Medicine in 1997. He subsequently obtained a license, under Chapter 457, Florida Statutes (2003), and is now an acupuncture physician, practicing Acupuncture and Oriental Medicine. Petitioner has been a member of numerous acupuncture organizations. Respondent has approved Petitioner, individually, as a continuing education provider, under provider number BP02-92. To obtain such approval, Petitioner has twice paid Respondent $100 for a two-year approval as an acupuncture continuing education provider. Respondent has also approved the Acupuncture and Oriental Medicine National Coalition Corp. (NCC), which is a Florida for-profit corporation, as an acupuncture continuing education provider. Incorporated on March 3, 2003, NCC has paid Respondent $100 for approval as an acupuncture continuing education provider. Petitioner and David Sontag are the sole officers, directors, and shareholders of NCC. Each shareholder owns half of the company's stock. The purpose of NCC is to raise the standards of the acupuncture profession nationally, including educational standards, and to support the advancement of "acupuncture and oriental medicine." NCC has about 300 members residing in Florida and 1000 members nationally. Membership, which is free, entitles the member to benefits, such as access to information on the NCC website and negotiated discounts from other service providers, but not to rights in governing the corporation. Respondent has approved NCC as a "State or National Acupuncture and Oriental Medicine Organization," pursuant to Section 457.107(3), Florida Statutes (2003). In November 2001, Petitioner coordinated an acupuncture continuing education program in Fort Lauderdale for another provider. In 2002, Petitioner sponsored an acupuncture continuing education program in Florida on electro-acupuncture. On August 23, 2003, Petitioner taught a weekend acupuncture continuing education program sponsored by NCC. Petitioner obtained Respondent's approval for the electro-acupuncture course, but the process took nine months to complete. However, the record is insufficient to determine the cause or causes for the delay and, thus, who was responsible for it. At least 60 days before conducting the course, Petitioner paid the $50 program approval fee and submitted the approval forms. When Petitioner inquired about the approval, Respondent's executive director advised him to provide the course, pending approval. Petitioner thus was unable to advertise the course as approved by Respondent and instead advertised only that the sponsor had applied for Respondent's approval. Nearly 100 persons attended the electro-acupuncture course, paying $65 each. However, Petitioner netted only $350 on the program because of the expenses in advertising the program, renting a hotel, and other items. NCC obtained Respondent's approval for its course in August 2003 within two weeks of submitting its application. NCC submitted the required forms and the required $100 check. Persons attending the NCC course received their acupuncture continuing education credits from Respondent. Petitioner is substantially affected by the rules that he has challenged. Petitioner has sponsored an acupuncture continuing education course and, as an employee, taught another course that was sponsored by NCC. It may be reasonably expected that Petitioner will participate in future acupuncture continuing education programs in one or both of these capacities. The rules concerning a filing fee for approval require a modest fee, but NCC's net on the one course for which detailed financial information was provided suggests that the provider is substantially affected by even a modest fee, given the relatively little profit that ensued from that course. In their entirety, the subject rules in this case are as follows (challenged portions underlined): 64B1-2.008 Continuing Education Program Approval Fee. The continuing education program approval fee shall be $50. Specific Authority 457.104, 457.107(3), Florida Statutes. Law Implemented 457.107(3), Florida Statutes. History–New 5- 12-87, Amended 9-15-92, Formerly 21AA-2.008, 61F1-2.008, 59M-2.008, Amended 10-15-97. 64B1-6.002 Definitions. “Approved” means acceptable to the Florida Board of Acupuncture. “Board” means Florida Board of Acupuncture. “Committee” means Committee on Continuing Education of the Board. “Contact Person” means one who is responsible for filing provider approval applications and insures compliance with these rules, maintains complete rosters of participants, and is knowledgeable about the provider’s program(s). “Correspondence Program” means an approved program offered by mail with a defined course of study to be completed by the participant for which an evaluation of performance is made and a rating of satisfactory or unsatisfactory completion of the course is given by the provider. “Credit Hour” means a minimum of 50 minutes and a maximum of 60 minutes of class time. One-half (1/2) credit hour means a minimum of 25 minutes and a maximum of 30 minutes of class time. “Department” means the Department of Health. “Participant” means an acupuncturist who attends a program presented by an approved provider in order to achieve the stated objectives of the program. “Program” means a planned educational experience dealing with a specific content based on the stated objectives. “Provider” means the individual, organization or institution conducting the continuing education program. Specific Authority 456.013, 456.025, 456.033, 457.104, 457.107(3) Florida Statutes. Law Implemented 456.013, 456.025, 456.033, 457.107(3), Florida Statutes. History–New 2-24-88, Formerly 21AA-6.002, 61F1-6.002, Amended 1-16-97, Formerly 59M-6.002. 64B1-6.005 Standards for Approval of Continuing Education Credit. A continuing education program must contribute to the advancement, extension or enhancement of the licensee’s skills and knowledge related to the practice of acupuncture and oriental medicine. Programs should concern the history and theory of acupuncture, acupuncture diagnosis and treatment techniques, techniques of adjunctive therapies, acupuncturist-patient communication and professional ethics. All continuing education courses are subject to evaluation and approval by the Board to determine that the continuing education course meets the criteria established by the Board which has final determination as to the number of hours of acceptable credit that will be awarded for each program. Each program offered for continuing education credit must be presented or taught by a person who at a minimum holds a bachelor’s degree from an accredited college or university or a post-secondary education institution licensed by the State of Florida, with a major in the subject matter to be presented; or has graduated from a school of acupuncture, or has completed a tutorial program which has a curriculum equivalent to the requirements in this state and was approved by a state licensing authority, a nationally recognized acupuncture/oriental medicine association or a substantially equivalent accrediting body, and has completed three (3) years of professional experience in the licensed practice of acupuncture; and has a minimum of two (2) years teaching experience in the subject matter to be presented, or has taught the same program for which approval is sought a minimum of three (3) times in the past two (2) years before a professional convention, professional group or at any acupuncture school, or has completed specialized training in the subject matter of the program and has a minimum of two (2) years of practical experience in the subject. In order to meet the continuing education requirements, the continuing education program submitted by the licensee must meet the criteria established by the Board. No credit will be given for programs which are primarily devoted to administrative or business management aspects of acupuncture practice. To receive credit for programs on HIV/AIDS, the program must be, at a minimum, two (2) hours in length and must address the areas mandated in Section 456.033, F.S. The Board accepts HIV/AIDS programs presented or conducted by the Department of Health and programs approved by other professional regulatory boards for the health professions. Continuing education programs related to laboratory test or imaging findings shall be designed to provide course content on the clinical relevance of laboratory and diagnostic tests and procedures as well as biomedical physical examination findings and to advance, extend or enhance the licensee’s skills and knowledge related to the safe and beneficial use of laboratory test and imaging findings. Specific Authority 456.013(9), 456.033, 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013(9), 456.033, 457.107(3), Florida Statutes. History–New 2-24-88, Amended 8-6-89, Formerly 21AA-6.005, 61F1-6.005, Amended 3-18-97, Formerly 59M- 6.005, Amended 6-1-99, 1-7-03. 64B1-6.006 Requirements for the Provider. Each provider shall: File all information necessary for provider and program approval on Forms DOH/AP007, Continuing Education Course Approval Applications, DOH/AP006, Continuing Education Provider Approval, which are hereby incorporated by reference and will be effective 2-18-98, copies of which may be obtained from the Board office. Insure that the continuing education program(s) presented by the provider complies with these rules. Maintain a complete, alphabetized, legible roster of participants for a period of 3 years following each program presentation. Maintain a “sign-in” sheet and a “sign- out” sheet with the signatures of participants. Provide each participant with a certificate certifying that the participant has successfully completed the program. The certificate shall not be issued until completion of the program and shall contain the provider’s name, title of program, date of program, location, and number of credit hours. Notify the Board of any significant changes relative to the maintenance of standards as set forth in these rules. Ensure that no person receives credit for the same program more than once. Notify the Board of any change in the presenters or instructors of any approved program, and demonstrate the new instructor meets the criteria set forth in subsection 64B1-6.005(2), F.A.C. Designate a contact person who assumes responsibility for each program, and who is knowledgeable about each program. The contact person shall notify the Board of any significant changes in programs or a lapse in the maintenance of standards. In a correspondence continuing education program, each provider is responsible for obtaining from each certificateholder a signed statement which states that the participant did in fact read the material, performed the exercises and took the examination personally. A clearly defined refund policy shall be in the flyer. There shall be adequate personnel to assist with administrative matters and personnel with competencies outside content areas in cases when the method of delivery requires technical or other special expertise. Providers shall maintain records of individual offerings for inspection by the Board; records shall include subject matter, objectives, faculty qualifications, evaluation mechanisms, credit hours and rosters of participants. Specific Authority 456.013, 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013, 457.107(3), Florida Statutes. History–New 2-24-88, Amended 7-25- 88, Formerly 21AA-6.006, 61F1-6.006, Amended 3-18-97, Formerly 59M-6.006, Amended 2-18-98. 64B1-6.007 Preapproved Providers. Subject to the requirements of Rule 64B1-6.005 and subsections 64B1-6.007(3) through (5), F.A.C., the Board approves for continuing education credit programs offered by: (a) The Continuing Education Committee of the American Association of Oriental Medicine (AAOM); (b) The Florida State Oriental Medicine Association (FSOMA); (c) Individual member schools of the Colleges of Acupuncture and Oriental Medicine (CCAOM); and (d) The National Alliance for Acupuncture and Oriental Medicine. A nonrefundable processing fee of $50 must be submitted with each registration of course offering. Each program offering shall contain: A detailed program outline or syllabus; A current curriculum vitae of each speaker or lecturer; The procedure to be used for recording attendance; and Evidence of meeting all the requirements of Rule 64B1-6.005, F.A.C. Upon processing of a program offering, the Board will assign an identification number to that program. Upon receipt by the provider of the course identification number, the provider may identify the program as “approved by the Florida Board of Acupuncture for purposes of Continuing Education Credit” in any flyer or other advertisement. Specific Authority 456.013(7), (8), (9), 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013(7), (8), (9), 457.107(3), Florida Statutes. History–New 2- 24-88, Formerly 21AA-6.007, Amended 7-4-94, Formerly 61F1-6.007, Amended 4-10-97, Formerly 59M-6.007. 64B1-6.008 Process for Program Approval. Each program to be offered by an approved provider must be approved by the Board. Applications for approval Form DOH/AP007, Continuing Education Provider Approval, which are hereby incorporated by reference and will be effective 2-18-98, copies of which may be obtained from the Board office shall be submitted to the Board Office at least 60 days prior to the date of presentation. Each program application shall contain: A detailed program outline or syllabus; A current curriculum vitae of each speaker or lecturer; The procedure to be used for recording attendance; Evidence of meeting all the requirements of Rule 64B1-6.005, F.A.C.; and A nonrefundable fee of $50.00. Upon approval of a program, the Board will assign an identification number to that program. If approved, the provider may identify the program as “approved by the Florida Board of Acupuncture for Purposes of Continuing Education Credit” in any flyer or other advertisement. Specific Authority 456.013(7), (8), (9), 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013(7), (8), (9), 457.107(3), Florida Statutes. History–New 2- 24-88, Formerly 21AA-6.008, 61F1-6.008, Amended 1-16-97, Formerly 59M-6.008, Amended 2-18-98. The forms mentioned in Florida Administrative Code Rule 64B1-6.006(1) involve two approval processes. Form DOH/AP007, which is also mentioned in Rule 64B1-6.008(1), is the application for Respondent's approval of the provider. Form DOH/AP006 is the application for Respondent's approval of the program. Form DOH/AP007 comprises two pages of instructions, a copy of Florida Administrative Code Rule 64B1-6.005, and a four- page application. The instructions state: "Application Fee: $100 (Non- Refundable). The remainder of the instructions explain the items set forth in the application. The checklist at the end of the instructions restates the requirement to submit a $100 check or money order. The first page of the application states: "$100 non- refundable application fee." It asks whether the application is a "renewal application." The first page also asks the name of the "organization" and its "continuing education director," as well as contact information, such as mailing address. The first page asks four questions: Does your organization monitor attendance to assure those in attendance have been present for the entire program for which they receive credit? Does your organization assign an identifiable person to be present at continuing education activities who is responsible for recording attendance? Does your organization have facilities available to store records for at least 3 years? Have you attached a curriculum vitae for each instructor? The first page concludes with an affidavit signed by the continuing education director, although not notarized, and stating that he or she represents that the information in the completed form is accurate and will comply with the rules contained in Florida Administrative Code Chapter 64B1-6.006. The second page of the application is a certificate of completion. It requests the name, license number, and address of the licensee attending the program; the name and address of the provider; and the site, course title, continuing education hours awarded, and name of the instructor. The third page of the application is Form C: Course Offering Data Form. This page requires the provider to list the educational objectives of the course and the continuing education hours and subject matter for each objective. The form also requires the identification of the teaching methods. The fourth page of the application is Form D: Course Offering Data Form. This page requires the provider to list the name and job title of each instructor and his or her relevant education and experience. Form DOH/AP006 is the application for Respondent's approval of the program. Form DOH/AP006 comprises one page of instructions, a copy of Florida Administrative Code Rules, 4B1-6.005 and 64B1-6.008, and a three-page application, the last two pages of which are identical to the last two pages of the Form DOH/AP007 application. The first numbered instruction requires: "Prior to offering or advertising a continuing education course, the provider must have registered by way of submitting this application: the course, along with any materials to be offered and the name and qualifications of the instructor . . .." This instruction warns: "If you have failed to submit all of the above, you will not be eligible to offer the course for continuing education credit. NO RETROACTIVE CREDIT IS GRANTED BY THE BOARD." The second numbered instruction requires the provider to submit any material to be used in a home-study course. The third numbered instruction requires a "nonrefundable fee of $50" with "each program application." The first page of the application requires identifying information for the provider and program, as well as disclosure of whether the course for which approval is sought is a previously approved course with a new or additional instructor, a new course, or a previously approved course with different credit hours. The first page also states that instructors must meet the qualifications of Florida Administrative Code Rule 64B1-6.005(2)(a) or (b).
Findings Of Fact Petitioner Samuel J. Pomeranz holds a "Rank 2" certificate issued by the Florida Department of Education. Petitioner Samuel J. Pomeranz obtained an advanced certificate in Educational Administration and Supervision in June 1970, from City College of New York. He obtained a Bachelor of Arts Degree in 1957 and a Master of Arts Degree in Education in 1959. Petitioner was licensed as a teacher in the State of New York and served as head of Curriculum Development in a senior high school in New York, New York. At the time of the hearing, he had not taught school in the State of Florida. Petitioner applied for a "Rank 1A" teaching certificate from the Respondent Department of Education Certification Section, but certification as "Rank 1A" was denied. Florida Administrative Code Rule 6A-4.049(1)(b) 1. requires that an applicant hold a "sixth year postmaster's level degree." Applicant received a certificate rather than a degree at the conclusion of his postmaster's work.
Recommendation Affirm the Respondent's action in denying Petitioner's request for "Rank 1A" certificate. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. COPIES FURNISHED: William L. Boyd, Esquire Post Office Box 5617 Tallahassee, Florida 32303 Gene T. Sellers, Esquire State Board of Education Knott Building Tallahassee, Florida 32304 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Respondent committed the violation of Section 475.25(1)(m), Florida Statutes, alleged in the Administrative Complaint? If so, what disciplinary action should be taken against her?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is a Florida-licensed real estate broker (holding License Number 0350383). She is also licensed in the State of New York. Respondent was first licensed in the State of Florida in July of 1983. Toward the latter part of the two-year licensure period ending March 31, 1995, the Department sent Respondent a Renewal Notice reminding her that her broker's license (which was then in "voluntary inactive" status) would expire on March 31, 1995, if she did not renew the license for another two-year period by signing the Renewal Notice and returning it to the Department along with a $75.00 renewal fee. Sometime prior to March 31, 1995, Respondent signed the Renewal Notice and returned it to the Department along with the $75.00 renewal fee. The signed Renewal Notice that Respondent submitted to the Department contained the following Affirmation of Eligibility for License Renewal: I hereby affirm that I have met all of the requirements for license renewal set forth by the Department of Business and Professional Regulation and/or the professional regulatory board indicated on the reverse side of this notice. I understand that, within the upcoming licensure period, if my license number is selected for audit by the Department and/or regulatory board, I may be required to submit proof that I have met all applicable license renewal requirements. I understand that proof may be required by the Department of Business and Professional Regulation and/or professional regulatory board at any time and that it is my responsibility to maintain all documentation supporting my affirmation of eligibility for license renewal. I affirm that these statements are true and correct and recognize that providing false information may result in disciplinary action on my license and/or criminal prosecution as provided in section 455.2275, Florida Statutes. At the time she signed and submitted the Renewal Notice, Respondent had not satisfactorily completed the minimum number of hours of continuing education required for license renewal, a requirement of which she was (at the time) aware. The Department renewed Respondent's license (for the two-year period ending March 31, 1997) based upon Respondent's misrepresentation (made in the signed Renewal Notice she returned to the Department) that she had "met all of the requirements for license renewal." On July 15, 1995, Respondent's residence in New York State (where she spends the summer months 2/ ) was damaged during a violent summer storm. Thereafter, Respondent received the following letter, dated August 8, 1995, from the Department: Your real estate license number has been selected for audit of the education required in compliance with Rule 61J2-3.015. In requesting renewal, you affirmed that you had completed the required education for the license period beginning 4/1/95. The course must have been completed prior to 3/31/95. Please submit to the address printed below, this letter along with the Commission approved course proof or equivalency education required at the time of your renewal, no later than 21 days from the date of this letter. All requests for equivalency for credit courses taken at universities, colleges and community colleges outside of Florida must be accompanied by an official transcript. An official transcript must contain the seal of the institution and the signature of the registrar. Failure to comply with this request within 21 days will result in an appropriate disciplinary action being initiated against your license. Your prompt attention and action will be appreciated. In response to the Department's request, Respondent sent the Department documentation concerning a correspondence course she had taken (from the Bert Rogers Schools of Real Estate) prior to March of 1993. The Department advised Respondent that such documentation was "unacceptable." On or about October 3, 1995, Respondent sent the following letter to the Department: After extensive searching through the records I have here in my possession in Florida, I am unable to provide you with documentation verifying my continuing ed requirements. I spend the summer in New York and many of my records are currently there as I am there two months of the year and I believe the documentation I need may be there. I am a broker in both New York and Florida and have always kept up-to-date with education requirements in the past, the last being in 1993 through Bert Rogers School which I have documentation for. I remember taking the cont. ed course through the mail, but I am unable to tell you exactly which one at the present time. Whatever disciplinary action you choose to apply, would it be possible to reverse same if upon my return to N.Y. in June, I'm able to provide the proof you require? Thank you in advance for your patience with regard to the matter while I have searched, and I'll await your decision. On January 29, 1996, Judy Smith, an Investigation Specialist with the Department, sent the following letter to Respondent: This letter is to serve as official notice to you in accordance with Section 455.225(1), FLORIDA STATUTES. that a complaint has been filed against you (copy attached) and that an investigation will be initiated regarding the subject matter of the complaint. I will be in contact with you at the earliest possible date to schedule a mutually convenient appointment to discuss the complaint in detail. You may submit a written response to the information contained in the complaint within 20 days after receipt of this letter. Any such response and/or contact with the agency regarding this matter prior to personal contact with me, should be directed to my attention at the address reflected below. Thank you for your cooperation and assistance in this matter. Smith later spoke with Respondent. Respondent told Smith that she believed that she had taken the required continuing education coursework (during the previous licensure period, April 1, 1993, through March 31, 1995), but was unable to recall the school that had provided the coursework, when the coursework had been taken and the grade she had received, nor was she able to produce documentation demonstrating that she had taken the required coursework. On February 2, 1996, Respondent sent the following letter to Smith: Pursuant to our conversation earlier today, this letter will serve to try and clear up what has transpired with regard to my continuing education requirement documentation proof. I believe I took the required continuing education requirements in order to renew my license and I normally attach a copy of the proof of passing grade directly to the license renewal form when I send same in for processing. As previously mentioned, all but my 1995 records are currently housed in New York and when I return I will look through financial and real estate records in order to determine which continuing ed course I may have utilized for the period in question. There is, however, a possibility that I have unintentionally and inadvertently failed to complete the continuing education requirement due to the fact that I may have missed a reminder notice from the school due to changing addresses since the last notice. I apologize for not being able to provide the burden of proof that you require at this time. On February 5, 1996, Respondent sent a second letter to Smith, which read as follows: Pursuant to our conversation last Friday February the 2nd . . , I just want to thank you again for your assistance in this matter. As discussed, I am now awaiting your response from the Board regarding this matter. As previously mentioned, I believe my records are in New York, however, I am more than willing to take another course or whatever is required 3at this time to remedy this situation. 3/ On August 23, 1996, the Department issued an Administrative Complaint alleging that Respondent had obtained the renewal of her license "by means of fraud, misrepresentation, or concealment in violation of [Section] 475.25(1)(m), Fla. Stat." Thereafter, on or about November 15, 1996, Respondent sent a letter to the Department's counsel of record in the instant case, Christine Ryall, Esquire, which read, in part, as follows: I am also enclosing copies of what I believe may be the continuing education you require for the 93-95 period. The Accelerated School of Real Estate, Inc. has since been purchased by Goldcoast School of Real Estate and even though I have the yellow final test completed, they have no record of my being a student there as I have tried contacting them regarding same. They do not have records on computer for Accelerated Students. Instead they are in boxes which the girls have to look through and it's certainly conceivable that some of their records are missing due to the takeover and moving of records. I hope that you can [ac]cept the enclosed documentation as proof of taking the continuing education you require for the 9395 period. . . .
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a final order finding Respondent guilty of the violation of Section 475.25(1)(m), Florida Statutes, alleged in the Administrative Complaint and revoking her real estate license for having committed said violation. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of March, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1997.
The Issue Whether Petitioner, Ruth Prevor, Ph.D. ("Dr. Prevor"), should be granted a variance or waiver from Florida Administrative Code Rule 64B19-11.0035.
Findings Of Fact Dr. Prevor graduated with a Ph.D. in psychology in 1988 from Carlos Albizu University (formerly known as Caribbean Center for Advanced Studies) in Puerto Rico.1/ At the time Dr. Prevor was enrolled and graduated from Carlos Albizu University, the psychology doctoral program was not accredited by the American Psychological Association ("APA"). The psychology doctoral program was not accredited by the APA until 1994, approximately six years after Dr. Prevor's graduation. Dr. Prevor received a license to practice psychology in Puerto Rico in 1985. For over 25 years after becoming licensed in Puerto Rico, Dr. Prevor practiced psychology in Puerto Rico. Approximately two years ago, Dr. Prevor moved to the United States, intending to obtain licensure as a psychologist in Florida, and practice psychology in Florida. The Board is the state agency charged with the duty of licensing psychologists in the state of Florida, pursuant to chapter 490, Florida Statutes. A person may apply to the Board to be licensed as a psychologist through various methods, including: a) licensure by examination; b) licensure by endorsement; and c) licensure by diplomate status. The Board considers each application for licensure on an individual basis. On March 20, 2012, Dr. Prevor submitted an application to the Board for licensure as a psychologist by endorsement, only. At no time has Dr. Prevor applied to be licensed by examination or diplomate status. Dr. Prevor applied for licensure by endorsement through two endorsement methods: endorsement by licensure in another state, and endorsement of 20 years' experience. In her application for licensure by endorsement, Dr. Prevor was specifically asked: "Did you graduate from a doctoral program which was accredited by the American Psychological Association (APA) at the time you were enrolled and subsequently graduated?" Following the question were two boxes marked "YES," and "NO." Dr. Prevor checked the box marked "NO," acknowledging that she had not graduated from a doctoral program which was accredited by the APA at the time she was enrolled and graduated. Dr. Prevor's application for licensure by endorsement was initially reviewed by the Board's staff. Subsequently, Dr. Prevor was notified that her application would be considered at the Board's Credentials Committee meeting on July 20, 2012. Prior to the July 20, 2012, meeting, Dr. Prevor was aware that the Board was concerned about her application. Importantly, the Board was concerned that Dr. Prevor's doctoral program did not meet the minimum educational requirements set forth by statute because her doctoral program was not accredited by the APA at the time she was enrolled and graduated. In an effort to address this concern, Dr. Prevor solicited a "comparability study" from Jose Pons, Ph.D., Professor and Director of an APA accredited Psy.D. program at Ponce School of Medicine and Health Science in Puerto Rico. On June 21, 2012, Dr. Pons submitted a letter to the Board on behalf of Dr. Prevor, purporting to demonstrate that the doctoral program Dr. Prevor was enrolled in and graduated from in 1988 was "comparable" or "substantially equivalent" to an APA accredited program. The Board refused to accept the "comparability study," and instead, offered to allow Dr. Prevor to withdraw her application for licensure by endorsement. Dr. Prevor refused the Board's offer. Instead, Dr. Prevor requested that her application for licensure by endorsement be held by the Board in abeyance pending the outcome of this proceeding. The Board agreed to this request and, as of the date of the final hearing, no formal decision had been made by the Board on Dr. Prevor's application for licensure by endorsement. Dr. Prevor's primary contention is that the Board should have accepted the "comparability study" submitted by Dr. Pons. According to Dr. Prevor, the Board accepted "comparability studies" from other applicants prior to an October 2011 amendment to rule 64B19-11.0035, which took language allowing for "comparability studies" "out of the rule." According to Dr. Prevor, the underlying purpose of section 490.006, Florida Statutes, which governs licensure by endorsement, would be met by requiring the Board to accept her "comparability study," and the Board's application of the current rule to her circumstances would violate principles of fairness or impose a substantial hardship. Therefore, Dr. Prevor asserts she is entitled to a variance from the current rule 64B19-11.0035. In denying the petition, the Board relied on sections 490.006 and 490.003, Florida Statutes, which contain the minimum educational requirements for licensure by endorsement. These statutes are clear in requiring that a doctoral degree be awarded from an accredited institution and from an accredited program at the time of enrollment and graduation. Section 490.006 provides as follows: 490.006 Licensure by endorsement.- The department shall license a person as a psychologist or school psychologist who, upon applying to the department and remitting the appropriate fee, demonstrates to the department or, in the case of psychologists, to the board that the applicant: * * * Holds a valid license or certificate in another state to practice psychology or school psychology, as applicable, 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 at that time; and, if no Florida law existed at that time, then the requirements in the other state must have been substantially equivalent to or more stringent than those set forth in this chapter at the present time; Is a diplomate in good standing with the American Board of Professional Psychology, Inc.; or Possesses a doctoral degree in psychology as described in s. 490.003 and has at least 20 years of experience as a licensed psychologist in any jurisdiction or territory of the United States within 25 years preceding the date of application. Section 490.003(3)(b), provides, in pertinent part, as follows: (b) Effective July 1, 1999, "doctoral-level psychological education" and "doctoral degree in psychology" mean a Psy.D., an Ed.D. in psychology, or a Ph.D. in psychology from: An educational institution which, at the time the applicant was enrolled and graduated, had institutional accreditation from an agency recognized and approved by the United States Department of Education or was recognized as a member in good standing with the Association of Universities and Colleges of Canada; and A psychology program within that educational institution which, at the time the applicant was enrolled and graduated, had programmatic accreditation from an agency recognized and approved by the United States Department of Education. In Dr. Prevor's Proposed Recommended Order, she concedes that the definition of "doctoral degree in psychology" in section 490.003(3)(b), applies equally to all provisions of section 490.006. The evidence presented at the final hearing established that Dr. Prevor does not possess the minimum statutory qualifications to be licensed in Florida by endorsement pursuant to section 490.006, because at the time she was enrolled and graduated with her Ph.D. in 1988, the doctoral program was not accredited by the APA. Dr. Prevor failed to prove that she is entitled to a variance or waiver from rule 64B19-11.0035, because she did not establish that the purpose of the underlying statute, section 490.006, would be met were she to be granted a variance or waiver from the rule, and that the Board's application of the current rule to her circumstances would violate the principles of fairness or impose a substantial hardship. The purpose of the underlying statute governing licensure by endorsement, section 490.006, would not be met if Dr. Prevor were to be granted a variance or waiver from the rule, because Dr. Prevor does not meet the minimum educational requirements of the statute to be licensed as a psychologist by endorsement. The undersigned rejects Dr. Prevor's contention that the underlying purpose of the statute would be achieved by the Board's acceptance of the "comparability study." The statute is clear in requiring that a doctoral degree be awarded from an accredited institution and from an accredited program at the time of enrollment and graduation. Nothing in sections 490.006 or 490.003 allow for the Board to accept a "comparability study" in lieu of an applicant's satisfaction of the statutory minimum educational requirements. Allowing the Board to accept the "comparability study" would run afoul of the statutory requirement that the applicant must have been enrolled and graduated from a doctoral program which, at the time, was accredited by the APA. No statutory provision exists allowing for a doctoral degree to meet the educational requirements through a "comparibility study" or accreditation of the program at a later time. The undersigned also rejects Dr. Prevor's contention that the application of the current rule to her circumstances would violate principles of fairness or impose a substantial hardship. Dr. Prevor cannot obtain a variance or waiver from the rule because she cannot meet the minimum educational requirements established by statute. In other words, Dr. Prevor cannot overcome her failure to satisfy the minimum statutory educational requirements by seeking a variance or waiver from a rule. Be that as it may, the rule, in its current and prior versions, applies to licensure by examination, not licensure by endorsement. No sufficient factual basis was provided by Dr. Prevor for a variance or waiver from a rule governing licensure by examination, which on its face, does not apply to an application for licensure by endorsement.2/ The undersigned rejects Dr. Prevor's contention that because the Board may have accepted "comparability studies" under the old rule prior to October 2011 for other persons, (and particularly one person who received his doctoral degree in psychology in 1988 from Carlos Albizu University), that Dr. Prevor is therefore entitled to a variance from the current rule. This argument fails for two fundamental reasons. First, the rule, in its prior or current versions, does not create an exception to the statutory requirement that the doctoral program must have been APA accredited at the time of enrollment and graduation. Thus, if the Board accepted "comparability studies" under the old rule, it did so in violation of the statute. Secondly, Dr. Prevor did not provide persuasive evidence that the other persons are similarly situated to her. Many of the other persons had licenses from other states (not a territory such as Puerto Rico), and submitted their applications under different methods of licensure. Furthermore, if any "comparability studies" were accepted by the Board, they were accepted prior to the effective date of the October 2011 amendment to the rule. Dr. Prevor's argument is premised on an old rule, which is no longer in effect.3/ Finally, Dr. Prevor failed to prove that the application of the current rule to her circumstances would violate principles of fairness or impose a substantial hardship, because she may have the option of pursuing alternative pathways to licensure as a psychologist in Florida.4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order dismissing the Petition for Variance From or Waiver of Rule 64B19-11.0035, Florida Administrative Code. DONE AND ENTERED this 28th day of January, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2014.
