05-000004 Carl Lichtman vs. Department Of Health, Board Of Clinical Social Work, Marriage And Family Therapy, And Mental Health Counseling Status: Closed Recommended Order on Tuesday, June 28, 2005.

Summary: Petitioner`s application for a license as a mental health counselor should be denied for several reasons, including a prior revocation of his license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL LICHTMAN, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0004

)

DEPARTMENT OF HEALTH, BOARD OF )

CLINICAL SOCIAL WORK, MARRIAGE )

AND FAMILY THERAPY, AND MENTAL )

HEALTH COUNSELING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a fin al 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

For t 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 ISSU E

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 licen sed 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 In tent 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 p rovisions 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 o f Section 491.009(1 )(c) and

456.072(1) (c) , Florida Statutes , and failed

to demonstrate that he meets the statut ory

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 e xhibits, one of which was the

transcript of the deposition testimony of one of the

Respondent’s emplo yees. All of the Respondent’s e xhibits were

received in evidence.

A deadline for submission of proposed recommen ded 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 fa ct 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

S tate 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 Ne w 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 licen se, 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 Jers ey 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 insuran ce

companies, and woul d 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 an d 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 $60 0,000.00 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 Superio r 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

Pe titioner 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 coun selor.

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 direc tly 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 h ours 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 entitleme nt to the requested license b y

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 const itute 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 c omparable 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 specifi ed 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 pra ctice 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 cr imes. Tho se

crimes were committed during the course of his practice as a

psychologist. Therefore, tho se 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

pr ofession.

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.

How ever, 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 requi rements

for reapplication by applicant s whose licenses have been

permanently revoked.

18. S ub s ections 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 ab use, 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 a buse 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 C ounseling

enter a final order denying the Petitioner’s application for

licensure as a licensed mental health counselor.

DONE A ND ENT ERED this 28 th day of June, 2005 , in

Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

Administrative Law Judge

Div ision 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

th is 2 8 th 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, w ith 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.

COP IES 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

Sus an 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 A 00

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 a gency that

will issue the Final Order in this case.