12-001207 Irene Acosta vs. Department Of Health, Board Of Clinical Social Work, Marriage And Family Therapy, And Mental Health Counseling Status: Closed Recommended Order on Friday, November 16, 2012.

Summary: Motion to reinstate license should be denied because licensee relinquished license in 2002.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IRENE ACOSTA, )

)

Petitioner, )

)

vs. ) Case No. 12 - 1207

)

DEPARTMENT OF HEALTH, BOARD OF )

CLINICAL SOCIAL WORK, MARRIAGE )

AND FAMILY THERAPY, AND MENTAL )

HEALTH COUNSELING, )

)

Respondent. )

)

RECOMMENDED ORDER

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.

Arr ington of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Howard J. Hochman, Esquire

Law Offices of Howard J. Hochman

Suite 210

7695 Southwest 104th Street

Miami, Florida 33156

For Respondent: Deborah Bartholow Loucks, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether the Board of Clinical Social Work, Marriage and

Family Therapy, and Mental Health Counseling (Board) erred in

issuing an order that denied r einstatement of Irene Acosta ' s

(Ms. Acosta or Petitioner) mental health intern lic ense .

PRELIMINARY STATEMENT

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 t he 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 registra tion.

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

administ rative 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.

Those stipulated facts have been incorporated in this

Recommended Order to the extent the stipulated facts have been

found to be relevant.

At the formal hearing, Petitioner testified on h er own

behalf and presented the additional testimony of Susan J. Foster

(the Boar d ' 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 t he 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 partie s 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. "

FINDINGS OF FACT

1. The Board is the state agency that licenses mental

health interns in the State of Florida.

2. The Board initially licensed Ms. Acosta as a mental

health intern on March 19, 1999, when it issued to her license

number IMH 1515.

3. This license was is sued after Ms. Acosta completed and

submitted to the Board an application for the license.

4. Ms. Acosta received her higher education from Newport

University in California.

5. It is the Board ' s position that in 2002, Newport

University, located in C alifornia, 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 Unive rsity, 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.

6. 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.

7 . Ms. Acosta did not bribe, coerce, use undue influence,

make fraudulent misrepres entations, commit any intentional

wrongdoing, or unlawfully conceal any information in order to

obtain her intern license.

8 . Intern licenses are issued for two - year periods.

Ms. Acosta ' s license was last renewed on February 5, 2001.

9. In 2002, the Bo ard 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.

10. In 2002, Ms. Foster was Executive Director for the

Board. Ms. Foster concluded that Ms. Acosta ' s license had been

issued in error becaus e Ms. Acosta lacked required educational

credentialing.

11. 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 Counsel ing, 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

Edu cation. As such, the intern registration

was issued in error.

Section 491.009(1)(a), F.S. provides that:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action as specified in s. 456.072(2):

(a) Attempting to obta in, 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 th at 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, ple ase feel

free to contact us at our office at . . . .

12. 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.

13. John Schwartz, Petitioner ' s at torney , contacted

Ms. Foster by letter dated April 1, 2002. Among other

questions , Mr. Schwartz asked for documentation that Newport

University was not regionally accredited.

14. Edward A. Te llechea was, in 2002, an Assistant

Attorney General who serv ed 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 Statut es,

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 public ation 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 reg ional

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 ar e

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 for ward 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.

15. Mr. Schwartz provided Ms. Acosta with a copy of

Mr. Tellechea ' s letter.

16. On May 7, 2002, Robin McKenzie, a program

administrator for the Florida Department of Health, s ent a memo

to the Bureau of Consumer Protection within the Agency for

Health Care Administration (Consumer Protection) that contained

the following:

Please initiate a c omplaint 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 lic ense to the board

office.

17. 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 foll ows:

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.

18. 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.

19. 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 co unselor.

20. 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

pu rposes of her licensure application.

21. 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 admin istrative 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.

22. 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 proble m 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

23 . DOAH has jurisdiction over the subject matter of and

the p arties to this proceeding pursuant to sections 120.569 and

120.57(1).

24 . 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.

25 . As the applicant, Petitioner has the burden of proving

h er entitlement to the relief s he 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).

26 . 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).

27 . Ms. Acosta failed to prove that t he 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 denie d 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).

28 . F urther, 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 control led

the decision whether to relinquish. Cf. City of Miami v. Kory ,

supra.

29 . 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:

(1) 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

add itional 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. A n 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 sh all 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 t he 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

iss uance 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.

30 . Petitioner ' s reliance on the foregoi ng 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.

31 . Ms. Acosta contends that the March 18, 2002, letter

deprived her of due proce ss 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 le tter 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.

32 . Petitioner ' s other arguments based on equity and

fundamental fairness doctrines are rejected b ecause the Board

did no wron g and Ms. Acosta knew, or should have known, her

options when she relinquished her license .

3 3 . 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 repre sentation; 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) .

3 4 . Equitable estoppel can be applied against the sta te

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

s tate action except where there are special circumstances and

some positive act on the part of an officer of the state).

35. The elements necessary to trigger equitable relief are

lacking here.

RECOMMENDATION

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 t his

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.

S

CLAUDE B. ARRINGTON

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 16th day of November , 201 2 .

COPIES FURNISHED :

Howard J. Hochman, Esquire

Law Offices of Howard J. Hochman

Suite 210

7695 Southwest 104th Street

Miami, Florida 33156

Deborah B. Lo ucks, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Susan Foster, Executive Director

Department of Health

Board of (Certified Master Social Worker)

Clinical Social Work,

Marriage and Family Therapy, and

Mental Health Counseling

4052 Bald Cypress Way, Bin C08

Tallahassee, Florida 32399 - 3258

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

A ll parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.