Abramson v. Gonzalez, 90-4099

Citation949 F.2d 1567
Decision Date03 January 1992
Docket NumberNo. 90-4099,90-4099
PartiesJudith ABRAMSON, et al., Plaintiffs, Donald Airey, et al., Plaintiffs-Appellants, v. Larry GONZALEZ, as Secretary of the Florida Department of Professional Regulation, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Charles M. Kagay, Spiegel Liao & Kagay, San Francisco, Cal., for plaintiffs-appellants.

Bruce Culpepper, Darren A. Schwartz, Haben, Culpepper, Dunbar & French, Tallahassee, Fla., for amicus curiae Florida Psychological Assoc.

John J. Rimes, III, Asst. Atty. Gen., Dept. of Legal Affairs, Dept. of Professional Reg., Tallahassee, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before COX and BIRCH, Circuit Judges, and ENGEL *, Senior Circuit Judge.

ENGEL, Senior Circuit Judge:

In this case, the plaintiffs challenge Florida's statutory regulation of the practice of psychology. We find that the state's current method of granting licenses to psychologists is valid, and conclude that the state acted properly in denying the plaintiffs the right to practice as licensed psychologists in Florida. However, we further find that under the state's current statutory scheme, Florida's regulation of professional advertising by unlicensed psychologists is unconstitutional under the first amendment.

I.

The plaintiffs-appellants are dozens of practicing psychologists, clinical social workers and therapists, plus the Florida Psychological Practitioners' Association ("FPPA"), a private non-profit association of psychologists. The defendants are the secretary of the Florida Department of Professional Regulation, the members of the Florida Board of Psychological Examiners, and the members of the Florida Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, all named in their official capacities. 1

The licensing and disciplinary regulations governing the practice of psychology in Florida are contained in the state's Psychological Services Act, Fla.Stat. § 490.001 et seq., ("Chapter 490"). Florida first enacted Chapter 490 in 1957. In 1961, the Florida Supreme Court struck down that early version of the law, concluding that the state legislature had unconstitutionally delegated the administration of the statute to the Board of Examiners of Psychology without sufficiently limiting the Board's discretion. Husband v. Cassel, 130 So.2d 69, 72 (Fla.1961). The legislature reenacted the statute that same year, addressing the Court's concerns. See Laws of Florida, Chapter 61-473. This new statute remained in effect until July 1, 1979, when it expired under the Regulatory Sunset Act. The Florida Regulatory Sunset Act, Fla.Stat. § 11.61, automatically repeals chapters and sections of the state's laws which are not amended or reenacted after a specified period of time.

During a 30-month period, from July 1, 1979 until Chapter 490's reenactment, effective January 1, 1982, the State of Florida did not regulate the practice of psychology. During this period, however, some municipalities in the state regulated the practice of psychology by requiring practitioners to obtain professional licenses. In 1982, the current version of Chapter 490 took effect. In 1987, the portion of Chapter 490 relating to clinical social workers, marriage and family therapists, mental health counselors, and school psychologists was deleted from Chapter 490 and reenacted as Chapter 491 of the Florida Statutes (Laws of Florida, Chapter 87-52). Though Chapter 491 has no official name, we will refer to it as the "Clinical Counseling Act." 2

To become a licensed psychologist by examination in Florida, a person must pay application and examination fees, hold a doctoral degree in psychology from an approved program, pass the examination, and have two years or 4,000 hours of experience in the field of psychology in association with or under the supervision of a licensed psychologist. Fla.Stat. § 490.005. An approved doctoral program is one accredited by the American Psychological Association ("APA"), or comparable to such an accredited program. The latter comparable programs must at least be accredited by a regional accrediting body recognized by the Council on Postsecondary Accreditation. Fla.Stat. § 490.005(1)(b) 1., 2. The Act also provides for licensing of persons holding degrees from foreign institutions. Fla.Stat. § 490.005(1)(b) 2., 3. In addition, the statute contains a provision allowing psychologists licensed or certified in other states to obtain a Florida license, provided the educational and professional requirements in the other state met or exceeded those in Florida at the time the applicant obtained his other license. Fla.Stat. § 490.006.

No laws in Florida prevent anyone from practicing psychology or one of the allied fields, but a person not licensed under either Chapter 490 or 491 is prohibited from holding himself or herself out by any title or description incorporating the following words: psychologist, psychology, psychological, psychodiagnostic, school psychologist, clinical social worker, psychotherapist, psychotherapy, licensed social worker, psychiatric social worker, psychosocial worker, marriage and family or family therapist, marriage consultant, family counselor, family consultant, mental health counselor, mental health therapist, or mental health consultant. Fla.Stat. §§ 490.012, 491.012. In addition, the Act also prohibits anyone not licensed under Chapters 490 or 491 from describing any test or report that he or she may provide as psychological. Id. The law does provide exemptions from the licensing requirements for students, employees of some schools and government agencies, and the clergy. See Fla.Stat. §§ 490.014, 491.014.

Anyone not licensed as a psychologist or allied professional in Florida who uses the terms reserved for licensed professionals commits a misdemeanor of the first degree under Florida law. See Fla.Stat. §§ 490.012(3), 491.012(3). Penalties for the use of the term "psychologist" by an unlicensed practitioner include imprisonment not exceeding one year, see Fla.Stat. § 775.082, and a criminal fine not exceeding $1,000, see Fla.Stat. § 775.083.

When the Florida legislature reenacted Chapter 490 after its sunset repeal, the statute provided two "grandfather" methods for licensure without examination for persons who applied to the Department of Professional Regulation and Board of Psychological Examiners by March 1, 1982. One who had made such an application could be licensed without examination if he or she held:

a valid certificate to practice psychology issued by the Florida Psychological Association ["FPA"] or the Florida Association of Practicing Psychologists ["FAPP"], or ha[d] submitted proof satisfactory to the board that he ha[d] received a doctoral degree from a university or professional school accredited by an accrediting agency approved by the United States Department of Education in a program that [was] primarily psychological in nature and, subsequent to receiving such degree, ha[d] had 5 years experience, primarily psychological. Two years' experience must [have been] in Florida, and only one year of experience may [have been] predoctoral.

Laws of Florida, Chapter 81-235.

Although the FPA, FAPP and FPPA provided certification to their members during the 1979-81 sunset period, the above-quoted statute indicates that only those certified by the FPA or FAPP could obtain licenses to practice without examination once Chapter 490 was reenacted. The FPA and FAPP required their certified members to hold doctoral degrees primarily in psychology from a school accredited by an accrediting association recognized by the U.S. Department of Education. However, the FPPA granted certified memberships to persons who held doctoral or masters degrees relating to psychology from institutions which were not accredited in Florida, provided those institutions were "licensed" by the states in which they were located.

Authority to police the practice of psychology and the allied fields rests with Florida's Department of Professional Regulation under Fla.Stat. § 20.30. Within that department, Florida has established a Board of Psychological Examiners to implement the licensing and disciplinary provisions of Chapter 490, and a Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling, which administers Chapter 491. See Fla.Stat. §§ 490.004, 491.004. Positions on the seven-member Florida Board of Psychological Examiners must be filled by five licensed psychologists--who have by definition attained the educational standards of the licensing statute--as well as two Florida citizens who have never been licensed psychologists and are in no way connected with the practice of psychology. Similarly, three of the nine members of the Board created under Chapter 491 must be unconnected with the practice of any of the allied fields. Fla.Stat. § 491.004. Members of the two boards serve four-year terms and are appointed by the governor and confirmed by the state senate. Fla.Stat. §§ 490.004, 491.004.

This case was initiated in 1981 by several persons who wished to practice psychology in Florida and to hold themselves out as psychologists. The plaintiffs sought prospective injunctive and declaratory relief to restrain the defendants' enforcement of Chapter 490. While evidence was not presented to the district court concerning the educational and professional qualifications of most of the plaintiffs, it appears that several of them hold doctoral degrees, in psychology and other fields, from institutions that are not accredited by the State of Florida. Others attended accredited schools, but received their training in educational programs that were not comparable to those approved by the American Psychological Association. Some of the plaintiffs were licensed as psychologists by local...

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