16-006167 Rebecca Coleman Curtis vs. Department Of Health, Board Of Psychology Status: Closed Recommended Order on Monday, March 13, 2017.

Summary: Petitioner is entitled to licensure pursuant to section 120.60(1). The Board's process of conducting a second review after the Board approved a license application is an unadopted rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REBECCA COLEMAN CURTIS,

Petitioner,

vs. Case No. 16 - 6167

DEPARTMENT OF HEALTH, BOARD OF

PSYCHOLOGY,

Respondent.

_______________________________/

AMENDED RECOMMENDED ORDER

On Fe bruary 1, 2017, Administrative Law Judge Lisa Shearer

Nelson of the Division of Administrative Hearings conducted a

hearing pursuant to section 120.57(1), Florida Statutes (201 6 ),

in Tallahassee, Florida.

APPEARANCES

For Petitioner: Edwin A. Bayó, Esquir e

Paul Drake, Esquire

Grossman, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

For Respondent: Rachel W. Clark, Esquire

Administrative Law Bureau

Office of the Attorney General

The Capitol, Plaza Leve l 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

The first issue to be determined is whether Petitioner,

Rebecca Coleman Curtis ( Ð Petitioner Ñ or Ð Dr. Curtis Ñ ), is

entitled to licensure as a psychologist in the State of Florida

by virtue of t he ÐdeemerÑ provision in section 120.60(1) . The

second issue to be determined is whether the Florida Board of

Psychology (the Ð Board Ñ ) used an unadopted rule in violation of

section 120.54(1)(a), with respect to its decision to deny

Dr. CurtisÓ s applicati on for a license.

PRELIMINARY STATEMENT

On October 11, 2016, the Board issued a Notice of Intent to

Deny PetitionerÓs application for licensure as a psychologist in

the State of Florida. On October 13, 2016, Petitioner filed a

Petition for Hearing Involvi ng Disputed Issues of Fact and

Petition to Determine Validity of Agency Statements with the

Board . O n October 21, 201 6 , the matter was referred to the

Division of Administrative Hearings for assignment of an

administrative law judge , and was assigned to A dministrative Law

Judge E. Gary Early.

Judge Early originally scheduled the case for hearing to be

conducted on December 20, 2016. At the joint request of the

parties , the matter was rescheduled for February 1, 2017, and

proc e eded as rescheduled. On Janu ary 18, 2017, the case was

transferred to A dministrative Law Judge Lisa Shearer Nelson.

The parties filed a Joint Pre - hearing Stipulation on

January 27, 2017, which included stipulated facts for which no

evidence would be required at hearing. Those facts have been

incorporated into the Findings of Fact below. Petitioner also

filed a Motion to Deem Matters Admitted, based upon RespondentÓs

answers to Requests for Admissions, which was granted at the

commencement of the hearing. Those facts, where relevan t, also

have been incorporated into the Findings of Fact.

At the hearing, the parties called Allen Hall, e xecutive

d irector of the Board of Psychology , as a j oint w itness.

PetitionerÓs Exhibits numbered 1 through 6 and RespondentÓs

Exhibits numbered 1 through 6 were admitted into evidence without

objection . The one - volume Transcript of the hearing was filed

with the Division of Administrative Hearings on February 8, 2017,

and both parties timely filed their Proposed Recommended Orders

on February 20, 2 017 , which have been carefully considered in the

preparation of this Recommended Order. 1/ Statutory references are

to the 2016 codification, which is identical to the version in

effect in 2014.

FINDING S OF FACT

1. Section 490.006(1), Florida Statutes, pr esents three

avenues for a psychologist to obtain licensure by endorsement .

2. Petitioner applied to the Board of Psychology for

licensure as a psychologist on September 30, 2014. She applied

under the category of licensure authorized by section

490.00 6(1)(c) , which allows for licensure to persons who possess

a doctoral degree in psychology as described in section 490.003

and have at least 20 years of experience as a licensed

psychologist in any jurisdiction or territory of the Unite d

States within 25 y ears preceding the date of the application .

3 . PetitionerÓs application was deemed complete by the

Board office on October 17, 201 4 . Ninety days from PetitionerÓs

completed application was January 15, 2015. The Department of

Health sent Petitioner a let ter regarding her application dated

October 1 7 , 2014, which states in pertinent part:

Dear Dr. Curtis:

Psychology board staff has reviewed your

application. You have been authorized for

the Florida laws and rules exam. You have

been approved for licensu re upon passage of

your exam. Please note that that you have 24

months, from the date of this letter, to

verify completion of these requirements or

your application will be administratively

closed as required in Section 490.005(3)(a),

Florida Statutes. ( emphasis added) .

4 . Petitioner was included in a list of applicants (the APA

L ist) to be ratified by Respondent at a telephone conference call

on November 21, 2014. The Board approved all of the candidates on

the list. Both the letter authorizing Petit ioner to take the laws

and rules examination and the BoardÓs action ratifying approval of

PetitionerÓs application for licensure occurred within 90 days of

her completed application.

5 . The top of the first page of the APA List contains a

statement which reads: Ðregardless of the application method, if

board staff becomes aware of any issues of concern, approved

applicants will be brought back before the Board for

reconsideration prior to issuance of a license.Ñ Respondent has

not cited any authority for this statement.

6. This statement was applicable to all candidates on the

APA L ist, including Petitioner, and was applicable to similar

candidates on previous lists on which the Board has acted.

Applicants for licensure are not made aware that the Board will

reconsider an application previously approved by the Board.

7 . Petitioner took and passed the required laws and rules

exami nation in August 2016, and her score was reported to the

Board office.

8 . Respondent sent Petitioner a letter dated Augus t 9, 2016 ,

which stated that her application would be considered by the Board

of PsychologyÓs Credentials Committee at its meeting September 9,

2016, despite that she was advised previously that she was

approved for licensure. That same day, Michelle Bran ch from the

Bo ard office sent Dr. Curtis an e mail which stated, in part:

We have received your Laws and Rules exam

score and it appeared you were ready for

licensure, however, after further review of

your file, there is a question on whether you

received y our doctorate degree from a program

that was accredited by the American

Psychological Association.

To obtain a psychology license under the

Endorsement of 20 Years of Licensed

Psychology Experience method, you must have

received your doctorate degree from an APA

accredited program. I have provided Section

490.005, F.S., for your reference: . . . .

Your transcripts indicated that you received

your PhD from the Social Psychology program

at the Teachers College, Columbia University,

New York City, which is not listed as an

accredited program on APAÓs website. I have

contacted APA to verify and am waiting on a

reply. Please request a letter from the

university indicting [ sic ] your major . This

letter can be emailed to me. Your

application and transcripts w ill then go

before the September 9, 2016 Credentials

Committee for review. Please find the

attached meeting notice. (emphasis added) .

Ms. BranchÓs request for additional information was more than

30 days from the BoardÓs receipt of PetitionerÓ s applica tion, and

well after the application had been deemed complete , and well

after the application was approved by the Board .

9 . On August 24, 2016, Petitioner submitted to RespondentÓs

a gency c lerk a Notice of Intent to Rely upon Default License

Provision.

1 0. A memo provided to the Board regarding Dr. CurtisÓs

application contained the following information for the BoardÓs

consideration.

Dr. Curtis applied for licensure under the

Endorsement of 20 Years of Licensed

Psychology Experience method, however, her

doctoral psychology program completed at the

Teachers Colle ge, Columbia University, New

York City in 1973, did not hold programmatic

accreditation by the American Psychological

Association (APA). Although Dr. Curtis went

on to complete studies in Clinica l Psychology

at the APA - accredited Adelphi University in

1988, the transcript indicates it was a non -

degree program.

In the initial review of Dr. CurtisÓ

application by former staff, these issues

were not addressed and the staff erroneously

approved Dr. Curtis to sit for the laws and

rules examination. Upon the receipt of

Dr. CurtisÓ exam score, current staff

performed a final review for license issuance

and these issues were discovered. Dr. Curtis

was subsequently notified that her

application would r equire review by the

BoardÓs Credentials Committee before further

action could be taken .

1 1 . The author of this memo is not identified, and did not

testify at hearing. While it is admissible for the purpose of

demonstrating what the Board considered i n its second review of

Dr. CurtisÓs application, it is hearsay.

1 2 . Dr. CurtisÓ s unrefuted testimony is that she holds two

separate doctoral degrees in psychology, the first from Teachers

College at Columbia University, and one from Adelphi University.

Both schools are located in New York. According to Dr. Curtis,

b ecause New York would not issue a second doctoral degree in the

same field, her degree from Adelphi is listed as non - degree

seeking, despite her completing the requirements for a degree and

b eing issued a diploma . Dr. Curtis has been licensed in the State

of New York since 1983 , and her application file does not include

any indication that her license has ever been disciplined .

1 3 . The only evidence other than the memo cited above that

woul d indicate that Dr. CurtisÓs education did not qualify her for

licensure in Florida are copies of emails , which appear to be the

source of the Board staffÓs information . Neither the person who

received the email nor the person who sent them testified at

h earing, and, although included in PetitionerÓs licensure file,

the contents of the emails are also hearsay.

1 4 . During the September 9, 2016, meeting, the Committee

voted to deny PetitionerÓs application for licensure. Petitioner

received a Notice of In tent to Deny from Respondent on or about

October 11, 2016, notwithstanding the BoardÓs prior approval of

her application nearly two years before .

1 5 . The Board has not promulgated any rule that provides for

Ðre - screeningÑ or a Ðsecond reviewÑ or Ðfinal reviewÑ of an

application that has been previously approved by the Board. Nor

has the Board promulgated any rule that provides for

ÐreconsiderationÑ of an application that has been previously

approved by the Board.

1 6 . The Board delegates to office sta ff the review of

applications to see if applications meet the requirements

specified in chapter 490 and the BoardÓs rules.

1 7 . Petitioner provided notice to the Board on September 12,

2016, pursuant to section 120.595(4)(b), regarding possible

unadopte d rules. The Board has not commenced any rulemaking

proceedings regarding the subjects addressed in the September 12,

2016, notice to the Board of Psychology.

CONCLUSIONS OF LAW

1 8 . The Division of Administrative Hearings has

jurisdiction over the partie s and the subject matter of this

procee ding pursuant to sections 120.56(4), 120.569, 120.57(1) and

120.60, Florida Statutes.

19 . Respondent is the state agency charged with regulating

the practice of psychology in the State of Florida, pursuant to

section 20.43 and chapters 456 and 490, Florida Statutes.

2 0 . As an applicant, Petitioner bears the burden of

demonstrating that she is entitled to licensure. DepÓt of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla.

1996 ). While the ultimate b urden remains with Petitioner, it is

the BoardÓs responsibility to provide specific reasons for the

denial and to produce competent, substantial evidence to support

those reasons. Comp . Med. Access, Inc. v. Off . of Ins. Reg. , 983

So. 2d 45, 46 - 47 (Fla. 1s t DCA 2008); N.W. v. DepÓt of Chi l d . &

Fam. Servs. , 981 So. 2d 932, 600 (Fla. 3d DCA 2008); Mayes v.

DepÓt of Child . & Fam. Servs. , 801 So. 2d 980 (Fla. 1st DCA

2001).

The Requirements of Section 120.60(1)

2 1 . The process for obtaining a license from a s tate agency

is outlined in section 120.60(1), which states:

(1) Upon receipt of a license application,

an agency shall examine the application and,

within 30 days after such receipt, notify the

applicant of any apparent errors or omissions

and request any additional information the

agency is permitted by law to require. An

agency may 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. The agency may establish by rule

the time period for submitting any additional

information requested by the agency. For

good cause shown, the agency shall grant a

request for an extension of time for

submitting the additional information. If

the applica nt believes the agencyÓs request

for additional information is not authorized

by law or rule, the agency, at the

applicantÓs request, shall proceed to process

the application. An application is complete

upon receipt of all requested information and

correc tion of any error or omission for which

the applicant was timely notified or when the

time for such notification has expired. An

application for a license must 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 is tolled by the

initiation of a proceeding under

ss. 120.569 and 120.57 . Any application for

a license which is not approved or denied

within the 90 - day or shorter time period,

within 15 days after conclusion of a public

hearing held on the application, or within 45

days after a recommended order is submitted

to the agency and the parties, whichever

action and timeframe is latest and

applicable, is considered approved unless the

recommended order recommends that the agency

deny the license. Subject to the

satisfactory completion of an examination if

required as a prerequisite to licensure, any

license that is considered approved shall be

issued and may include such reasonable

conditions as are authorized by law. Any

applicant for licensure seeking to claim

licensure by default under this subsection

shall notify the agency clerk of the

licensing agency, in writing, of the intent

to rely upon the defa ult license provision of

this subsection , and may not take any action

based upon the default license until after

receipt of such notice by the agency clerk.

(emphasis added).

2 2 . While an agency must take action within 90 days of a

completed applicatio n, that action need not be reduced to writing

within that time frame. Sumner v. De pÓt of ProfÓl Reg., Bd. of

Psychological E xamÓrs , 555 So. 2d 919, 921 (Fla. 1st DCA 1990)

(while section 120.60(3) requires that written notice be given to

an applicant, onl y the decision to approve or deny need be

accomplished within 90 days). Here, Petitioner was notified in

writing and the Board voted to approve her licensure within the

90 - day period. At that point, the only requirement left for

Petitioner to receive her license was for her to pass the Florida

laws and rules examination, which she did within the required

24 - month period . Petitioner was and is entitled to licensure.

2 3 . The Board contends that it could not issue the license

once staff discovered what t hey perceived to be a deficiency in

PetitionerÓs application. However, staffÓs discovery occurred

long after the statutorily - established time frame for reviewing

the application, but more to the point, the Board had already

voted to approve the license. Moreover, section 456.013(2)

provides that the Ð department shall issue a license to any person

certified by the appropria te boardÑ as having met the licensure

requirements . (emphasis added). It was obligated to do so here.

2 4 . Moreover, once they discov ered the perceived error, a

staff member wrote to Dr. Curtis and asked her for more

information to clarify the issue. This action clearly contravenes

the requirements of section 120.60(1) . While the agency may

request information within 30 days after rec eiving an application,

section 120.60(1) expressly provides that Ð [a] n agency may 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. Ñ To the extent that the

BoardÓs decision was based on PetitionerÓs failure to correct an

error or omission, or to supply additional information in response

to Board staffÓs request, the Board was prohibited from doing so.

It could not alter its course an d refuse to issue the license at

this late juncture, or place conditions on her licensure. Krakow

v. DepÓt of ProfÓl Reg. , 586 So. 2d 1271 (Fla. 1st DCA 1991).

The BoardÓs Basis for Denial

2 5 . As noted above, the Board is required in this proceeding

to p rovide competent substantial evidence for the basis of its

denial of PetitionerÓs license. It did not do so.

2 6 . The Board submitted without objection the licensure

application file for Petitioner as an exhibit at the hearing . The

application file inclu ded the email and the memo upon which the

Board relie d . No other evidence was submitted to substantiate the

grounds for denial.

2 7 . While t he application file may be admissible as a public

record pursuant to section 90.803(8), Florida Statutes, its

admis sibility does not automatically transform the nature of

hearsay documents contained within it. Johnson v. DepÓt of HRS ,

546 So. 2d 741, 743 (Fl a. 1st DCA 198 9 ) (ÐWhile the documents

themselves might qualify as the DPAFÓs business records, the

statements c ontained in the documents relating to Turner House

RestaurantÓs business are simply hearsay within hearsay and would

only be admissible if they, too, conformed to the requirements of

the business records exception to the hearsay rule. Ñ); Harris v.

Game & F resh Water Fish CommÓn , 495 So. 2d 806, 808 - 809 (Fla. 1st

DCA 1986).

2 8 . The Board also contends that it could ÐrecallÑ its

decision to approve PetitionerÓs application based on Bronson v.

Schulten , 104 U.S. 410 (1881), which states, Ð[i]t is a general

ru le of the law that all the judgments, decrees, or other orders

of the courts, however conclusive in their character, are under

the control of the court which pronounces them during the term at

which they are rendered or entered of record, and they may then be

set aside, vacated, modified, or annulled by that court.Ñ

29 . While the Board asserts that the Bronson decision is

directly applicable to the facts of this case, it has no

application at all. The Board is not a court, it is an executive

branch agen cy exercising quasi - judicial powers. Agencies, unlike

courts, have only those powers that the Legislature has granted to

them. Schindelar v. Fla. Unemplmt . App . CommÓn , 31 So. 3d 903,

905 (Fla. 1st DCA 2010); State, DepÓt of Envtl. Reg. v. Falls

Chase Sp ecial Taxing Dist. , 424 So. 2d 787, 793 (Fla. 1st DCA

1982), rev. denied , 436 So. 2d 98 (Fla. 1983) (ÐAn agency has only

such power as expressly or by necessary implication is granted by

legislative enactment. An agency may not increase its own

jurisdicti on and, as a creature of statute, has no common law

jurisdiction or inherent power such as might reside in, for

example, a court of general jurisdiction.Ñ) .

3 0 . Here, the BoardÓs authority is expressly circumscribed

by the process outlined in section 120. 60(1), and the Board has

provided no exception that would allow it to vary from the

statutorily - mandated process for evaluating licensure

applications.

Whether the BoardÓs Reconsideration is an Unadopted Rule

3 1 . Section 120.57(1)(e) provides in pertinent part :

(e)1. An agency or an administrative law

judge may not base agency action that

determines the substantial interests of a

party on an unadopted rule or a rule that is

an invalid exercise of delegated legislative

authority. This subparagraph does no t

preclude application of valid adopted rules

and applicable provisions of law to the

facts.

2. In a matter initiated as a result of

agency action proposing to determine the

substantial interests of a party, the partyÓs

timely petition for hearing may challenge the

proposed agency action based on a rule that

is an invalid exercise of delegated

legi slative authority or based on an alleged

unadopted rule. For challenges brought under

this subparagraph:

a. The challenge may be pled as a defense

using the procedures set forth in

s. 120.56 (1)(b).

b. Section 120.56 (3)(a) a pplies to a

challenge alleging that a rule is an invalid

exercise of delegated legislative authority.

c. Section 120.56 (4)(c) applies to a

challenge alleging an unadopted rule.

d. This subparagraph does not preclude the

consolidation of any proceeding under

s. 120.56 with any proceeding under this

paragraph.

* * *

4. The recommended and final orders in any

proceeding shall be governed by paragraphs

(k) and (l), except that the administrative

law judgeÓs determination r egarding an

unadopted rule under subparagraph 1. or

subparagraph 2. shall not be rejected by the

agency unless the agency first determines

from a review of the complete record, and

states with particularity in the order, that

such determination is clearly erroneous or

does not comply with essential requirements

of law. In any proceeding for review under

s. 120.68 , i f the court finds that the

agencyÓs rejection of the determination

regarding the unadopted rule does not comport

with this subparagraph, the agency action

shall be set aside and the court shall award

to the prevailing party the reasonable costs

and a reaso nable attorney fee for the initial

proceeding and the proceeding for review.

3 2 . Section 120.56(4)(c) provides:

(4) CHALLENGING AGENCY STATEMENTS DEFINED AS

UNADOPTED RULES; SPECIAL PROVISIONS. Ï

(a) Any person substantially affected by an

agency statement that is an unadopted rule

may seek an administrative determination that

the statement violates s. 120.54 (1)(a). The

petition shall include the text of the

statement or a description of the statement

and shall state facts suff icient to show that

the statement constitutes an unadopted rule.

* * *

(c) If a hearing is held and the petitioner

proves the allegations of the petition, the

agency shall have the burden of proving that

rulemaking is not feasible or not practicable

under s. 120.54 (1)(a).

(d) The administrative law judge may

determine whether all or part of a statement

violates s. 120.54 (1)(a). . . .

(e) If an administrative law judge enters a

final order that all or part of an unadopted

rule violates s. 120.54 (1)(a), the agency

must immediately discontinue all reliance

upon the unadopted rule or any substantially

similar statement as a basis for agency

action.

* * *

(g ) All proceedings to determine a violation

of s. 120.54 (1)(a) shall be brought pursuant

to this subsection. A pro ceeding pursuant to

this subsection may be consolidated with a

proceeding under subsection (3) or under any

other section of this chapter. This

paragraph does not prevent a party whose

substantial interests have been determined by

an agency action from br inging a proceeding

pursuant to s. 120.57 (1)(e).

3 3 . While section 120.57(1)(e) contemplates a type of

proceed ing that a party may file , it also serves as a restriction

on the administrative law judgeÓs authority: Ð[a] n agency or an

administrative law judge may not base agency action that

determines the substantial interests of a party on an unadopted

rule or a r ule that is an invalid exercise of delegated

legislative authority .Ñ (emphasis added). Petitioner alleges

that the BoardÓs action in denying Dr. CurtisÓs application is

based on its practice of conduct ing a Ðfinal reviewÑ or

ÐreconsiderationÑ of an appli cantÓs qualifications prior to

issuing the license. Therefore , it must be determined whether the

BoardÓs practice meets the definition of a rule , and , if so,

whether it has been adopted through the rulemaking process

outlined in section 120.54.

3 4 . Secti on 120.52(16) defines a rule as "each agency

statement of general applicability that implements, interprets,

or prescribes law or policy or describes the procedure or

practice requirements of any agency and includes any form which

imposes any requirement o r solicits any information not

specifically required by statute or by an existing rule." An

"unadopted rule" is defined as an agency statement that meets the

definition of the term rule, but that has not been adopted

pursuant to the requirements of sectio n 120.54. § 120.52(20),

Fla. Stat.

3 5 . In this proceeding, Petitioner bears the burden of

demonstrating by a preponderance of the evidence that the BoardÓs

statements regarding the ÐreconsiderationÑ or Ðfinal reviewÑ of

applications by Board staff meets the definition of a rule and

that the Board has not adopted the statement by rulemaking

procedures. S.W. Fla. Water Mgmt. Dist. v. Charlotte Cnty . , 774

So. 2d 903, 908 (Fla. 2d DCA 2001); § 120.56(4)(a) and ( c ), Fla.

Stat.

3 6 . A statement is considere d to be "generally applicable"

if it is intended by its own effect to create rights, to require

compliance, or to otherwise have the direct and consistent effect

of law. State Bd. of Admin. v. Huberty , 46 So. 3d 1144, 1147

(Fla. 1st DCA 2010) (use of tele phone hotline to allow employees

to make a switch in their pension plan did not meet definition of

a rule; simply provided a means of exercising an election

consistent with the statute); Coventry First, LLC v. Off. o f Ins.

Reg. , 38 So. 3d 200, 204 - 205 (Fla . 1st DCA 2010) (statements not

unadopted rules because discretionary in their application);

Ag. for Health Care Admin . v. Custom Mobility, Inc. , 995 So. 2d

984, 986 (Fla. 1st DCA 2008) (sampling formula just one of

several permitted under statute, and the refore does not have the

direct and consistent effect of law); and Dep't of Rev. v.

Vanjaria Enter., Inc. , 675 So. 2d 252, 255 (Fla. 5th DCA 1996)

(tax assessment procedures in DOR training manuals not simply a

direct application of statute; procedures aff ord no discretion to

auditors and creates DOR's entitlement to taxes while adversely

affecting property owners).

3 7 . An agency statement need not be in writing, or need to

be expressed publically in words. DepÓt of High . Saf . & Motor

Veh. v. Schluter , 70 5 So. 2d 81 , 84 ( Fla. 1st DCA 1997) . An

unadopted rule may be established based on agency conduct, where

the conduct manifests an underlying policy of general

applicability having the force and effect of law. Fla. Quarter

Horse Track AssÓn v. DepÓt of Bu s. & ProfÓl Reg. , 133 So. 3d 1118

(Fla. 1st DCA 2014).

3 8 . In this case, it is undisputed that on the APA L ist

which provides the names of the applicants for action by the

Board, there was a statement reading, Ðregardless of the

application method, if boa rd staff becomes aware of any issues of

concern, approved applicants will be brought back before the

Board for reconsideration prior to issuance of a license.Ñ

Similarly, on the memorandum regarding PetitionerÓs application

that was presented to the Board in 2016, it referenced a Ðfinal

review for license issuanceÑ conducted by staff. Both statements

contemplate an additional layer of review after the BoardÓ s

consideration of applications for licensure. It is also without

dispute that this Ðreconsiderati onÑ or Ðfinal review for license

issuanceÑ process was routinely applied, not only with respect to

Petitioner, but applicants in general.

39 . In Department of Business and Professional Regulation

v. Harden , 10 So. 3d 647 (Fla. 1st DCA 2009), Harden chal lenged

the procedure by which license applications were reviewed by the

Construction Industry Licensing Board (ÐCILBÑ) . The CILB used a

process whereby applications were reviewed by an application

committee appointed by the CILB chair . There was neither a

statute nor rule expressly authorizing the application review

committee. The administrative law judge determined that the

committee procedure met the definition of a rule because it was

an agency statement of general applicability implementing section

1 20.60(1) . The Department appealed and the First District

affirmed, stating, Ðwe cannot agree that the procedure utilizing

the application review committee does not affect any private

interests. The application review committee is responsible for

reviewin g pending licensure applications. . . . [I ] t seems clear

that private interests were affected by this CILB procedure.Ñ

10 So. 3d at 649.

4 0 . The same can be said with respect to the

ÐreconsiderationÑ or Ðfinal reviewÑ procedure utilized by the

Board. T he executive director acknowledged that the notice on

the APA L ist was applicable to all applicants on the list and was

applicable to similar candidates on previous lists up on which the

Board had acted. The procedure establishing a second review of

applic ations prior to issuing a license meets the definition of

an unadopted rule. Moreover, the process, as applied in this

case, contravenes the express requirements of section 120.60(1).

4 1 . The Board presented no evidence to establish that

rulemaking was n ot feasible or was impracticable.

4 2 . The Board also states the following:

Finally, a matter of practicality should be

discussed by this Court. It does not appear

to be in the best interest of Petitioner nor

the public to direct the issuance of a

defau lt license when the Department is

statutorily authorized to prosecute and

discipline Petitioner for obtaining a

license through an error of the Department

or Board pursuant to §§ 490.009(1)(a) and

456.072(1)(h). As discussed above, the

penalty for obtaini ng a license in this

matter is Ð[r]evocation or permanent denial

of licensure and a $10,000 fine.Ñ 64B19 -

17.002(1)(a), Fla. Admin. Code.

4 3 . Clearly, the disciplinary provisions in chapter 490

authorize discipline for obtaining a license by fraud,

misr epresentation, or error of the Board. However, as noted by

Judge Van Laningham in DepÓt of Hea l th v. Diamond , Case

No. 12 - 3825PL (DOAH Apr. 9, 2013; DOH Aug. 21, 2013), the BoardÓs

Ðunilateral errorÑ theory is inconsistent with the general

procedure for licensing in section 120.60. While the Ðerror of

the boardÑ language has been included in section 490.009 since

1976, 2/ the procedure in section 120.60(1) has been amended

numerous times to reinforce the requirement that agencies act in

a timely manner on license applications, and to limit the time in

which an agency can seek additional information. T o allow the

agency later to revoke a license pursuant to section

456.072(1)(h) based solely on a purported deficiency in the

licenseeÓs application when the agency has failed to comply with

section 120.60(1), not only would erode the protection that

section 120.60 affords license applicants, but also would

undermine the integrity of the licens ing process .

4 4 . Basic canons of statutory interpretation require that

related statutes be read together , Ðbased on a realistic

assessment of what the legislature ought to have meant.Ñ De La

Osa v. Wells Fargo Bank, N.A. , 2016 Fla. App. LEXIS 18361 pp. 12 -

13 (Fla. 3d D CA Dec. 14, 2016) . ÐStatutes must be read with

other related statutes and other related portions of the same

statute. Where possible, courts must give effect to al l

statutory provisions and construe related statutory provisions in

harmony with one another.Ñ Abbott Labs. v. Mylan Pharms. Inc. ,

15 So. 3d 642, 657 (Fla. 1st DCA 2009) (citations omitted). To

allow the Board to revoke a license because of its error whe n

section 120.60 mandates that the license be issued , would

essentially make the mandate in section 120.60(1) a nullity . It

is a cardinal rule of statutory construction that statutes should

not be read in a manner that would render a statutory provision

m eaningless. Forsythe v. Longboa t Key Beach Erosion Control

Dist. , 604 So. 2d 452, 455 - 456 (Fla. 1992). The BoardÓs

statement regarding its statutory authority to seek disciplinary

action against Petition er would clearly violate this rule of

statutory con struction.

4 5 . Petitioner also contends that the statement in the

Notice of Intent to Deny that the Board has delegated the duty of

reviewing applications to Board staff, whereby those applications

are approved and then subsequently ratified by the Board , is also

one of general applicability that has been applied to Petitioner,

has not been adopted as a rule, and meets the definition of a

rule in section 120.52(16). However, as Respondent points out,

section 456.013(2) provides:

(2) Before the issuanc e of any license, the

department shall charge an initial license

fee as determined by the applicable board or

if there is no board, by rule of the

department. Upon receipt of the appropriate

license fee, the department shall issue a

license to any person certified by the

appropriate board, or its designee , as having

met the licensure requirements imposed by law

or rule. (emphasis added).

Delegating the review of licenses to staff would be consistent

with this provision, and a rule is not necessary to imp lement this

provision. Unlike the reconsideration or second review process,

the statute itself contemplates a delegation. Envtl . Trust v.

DepÓt of Envtl. Prot . , 714 So. 2d 493 (Fla. 1st DCA 1998).

4 6 . Section 120.5 6 (4)(e) requires that where an

adminis trative law judge determines that all or part of an

unadopted rule violates section 120.54(4)(1)(a), then the agency

must immediately discontinue all reliance upon the adopted rule or

any substantially similar statement as a bases for agency action.

In th is case, the Board must discontinue the practice of

conducting a second review, or reconsideration, of license

applications after the initial decision has been ratified by the

Board.

4 7 . Section 120.595(4) (a) provides that if an appellate

court or an adm inistrative law judge determines that all or part

of any agency statement violates section 120.54(1)(a), or that the

agency must immediately discontinue reliance on the statement or

any substantially similar statement, then a judgement or order

shall be en tered against the agency for reasonable costs and

attorneyÓ s fees, unless the agency demonstrates that the statement

is required by the federal government to implement or retain a

delegated or approved program, or to meet a condition for receipt

of federal funds. No such assertion that the statement is

required has been made in this case.

4 8 . Because the agency statements providing for

reconsideration or a second review of approved applications for

licensure after the receipt of examination scores and be fore the

issuance of the license meet the definition of a rule, Petitioner

is entitled to recover fees and costs in this action pursuant to

section 120.595(4)(a). Jurisdiction is retained to determine the

amount of fees and costs pursuant to section 120.595(4), upon

entry of a final order. Petitioner shall file a motion to

determine the fee amount within 60 days of the entry of the final

order.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Psychology enter a f inal

o rder that: 1) acknowledges P etitionerÓs application for

licensure is approved, pursuant to the procedure in section

120.60(1); and 2) directs the issuance of PetitionerÓs license as

a psychologist.

With respect to PetitionerÓs claims pursuant to section

120.57(1)(e), it is further RE COMMENDED that: 1) the statements

related to reconsideration or a second review of approved

applications for licensure after the receipt of examination

scores and before the issuance of the license meet the definition

of a rule and constitute an unpromulg ated rule; 2) the Board must

immediately discontinue all reliance on these statements or any

substantially similar statement as a basis for agency action;

and 3) Petitioner is entitled to an award of reasonable

attorney Ó s fees and costs, in an amount to be determined after

the entry of the final order.

DONE AND ENTERED this 1 3 th day of March , 2017 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 1 3 th day of March , 2017 .

ENDNOTE S

1/ Respondent initially filed its Proposed Recommended Order on

February 20, 2017. The following day, a Motion to File Correct

Version of Proposed Recommended Order was filed, indicating that

the wrong version was filed initially due to a computer error.

There was no objection to Respondent substituting the correct

version, and the Motion to File Correct Version of Proposed

Recommended Order is granted.

2/ § 10, ch. 76 - 131, Laws of Fla.

COPIES FURNISHED:

Edwin A. Bayó, Esquire

Grossman, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

(eServed)

Rachel W. Clark, Esquire

Administrative Law Bureau

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eServed)

Paul Drake, Esquire

Grossman, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

Allen Hall, Executive Director

Board of Psychology

Depar tment of Health

4052 Bald Cypress Way, Bin C05

Tallahassee, Florida 32399 - 3255

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernes t Reddick, Chief

Rachel Porter

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days fro m 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.