Ferro v. Utah Dept. of Commerce, Div. of Occupational and Professional Licensing

• Decision Date: 03 March 1992
• Docket Number: No. 910313-CA,910313-CA
• Parties: 73 Ed. Law Rep. 1149 Dr. James FERRO, Petitioner, v. UTAH DEPARTMENT OF COMMERCE, DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING, Respondent.
• Court: Utah Court of Appeals

Page 507

828 P.2d 507

73 Ed. Law Rep. 1149

Dr. James FERRO, Petitioner, v. UTAH DEPARTMENT OF COMMERCE, DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING, Respondent.

No. 910313-CA.

Court of Appeals of Utah.

March 3, 1992.

Daniel G. Darger (argued), Salt Lake City, for petitioner.

R. Paul Van Dam, Atty. Gen., Robert E. Steed (argued), Asst. Atty. Gen., Salt Lake City, for respondent.

Before BENCH, P.J., and BILLINGS and RUSSON, JJ.

OPINION

BENCH, Presiding Judge:

Petitioner Dr. James Ferro seeks licensure as a psychologist in the State of Utah. The Division of Occupational and Professional Licensing (Division) denied his application. Dr. Ferro has petitioned this court to review the Division's denial of his application. We reverse.

BACKGROUND

Dr. Ferro received his doctoral degree in psychology from the Union for Experimenting Colleges and Universities (UECU) in 1980. At that time, UECU was not an accredited institution. In 1985, UECU became accredited with the regional accrediting body. In 1986, Dr. Ferro sought licensure as a psychologist in the State of Utah by filing an application with the Division. That application was denied because Dr. Ferro's doctoral degree was not from an accredited university as required by subsection 3(2)(c) of the Psychologists' Licensing Act (the Act). Utah Code Ann. § 58-25a-1 to -13 (1990). ¹

In 1990, Dr. Ferro submitted a second application to the Division. The application indicated that five months earlier, Dr. Ferro had received a license as a psychologist in California. He therefore requested that his application be considered under the recently added reciprocity provision for psychologists licensed to practice in other states. See Utah Code Ann. § 58-25a-5 (1990). Again, the Division denied his application, indicating in a letter that "California's licensure requirements are not equal to Utah's requirements and that your licensure status in California is not substantially in compliance with the provisions of the Psychology Licensing Act." As the Division admits, neither the Division nor the Psychologists' Licensing Board (Board) conducted a complete evaluation of Dr. Ferro's application because of the Division's determination that Dr. Ferro failed to meet the threshold requirement of having completed a doctoral program at an accredited school.

Dr. Ferro sought and obtained a review of the denial of his application by a special appeals board called by the Division. Following the hearing, the special appeals board entered its findings of fact and conclusions of law recommending rejection of Dr. Ferro's application because he did not meet the minimum mandatory education requirements found in Utah Code Ann. § 58-25a-3 ("section 3"). The Division followed the recommendation of the special appeals board and rejected Dr. Ferro's second application. ²

Dr. Ferro claims his doctoral degree satisfies the education requirements of section 3 because UECU was accredited at the time he applied for licensure. In the alternative, he asserts that he qualifies for a case-by-case review of his qualifications under the terms of Utah's reciprocity statute, and that any statutory bar against him applying for licensure is unconstitutional. ³

Dr. Ferro also asserts that he is entitled to attorney fees under 42 U.S.C. § 1988. We decline to address this issue, however, because Dr. Ferro's brief lacks sufficient legal analysis to support the claim. See Utah R.App.P. 24(a)(9) (1991) ("The argument shall contain the contentions and reasons of the appellant with respect to the issues presented, with citations to the authorities [and] statutes ... relied on."); Utah R.App.P. 18 (1991) (appellate rules apply equally to administrative petitions). See also State v. Price, 827 P.2d 247, 248 (Utah App.1992) (appellant's brief must contain adequate legal analysis or we will assume the tribunal acted properly). ⁴

STANDARD OF REVIEW

The Division's actions are governed by the Utah Administrative Procedures Act (UAPA), Utah Code Ann. §§ 63-46b-1 to

-22 (1989). Dr. Ferro claims he is entitled to relief under subsection 16(4)(d), which provides that we may grant relief if an agency's interpretation of the law is erroneous. We review statutory interpretations by agencies for correctness, giving no deference to the agency's interpretation, unless the statute grants to the agency the discretion to interpret the statute. Morton Int'l, Inc. v. Auditing Div. State Tax Comm'n, 814 P.2d 581, 588 (Utah 1991).

A grant of discretion to interpret a statute may be explicit or implicit. Id. at 588. There is no explicit grant of discretion provided in the Act whereby the Division is directed to interpret the language involved here. We therefore must determine whether there is an implicit grant of discretion. Id. at 589. To do so, we first determine whether the statute is ambiguous. If the statute is clear and unambiguous, there is no implicit grant of discretion possible because there is no interpretation required by the agency. The agency simply applies the statute according to its plain language. ⁵

If a statute is ambiguous, however, we apply traditional rules of statutory construction under the assumption that the Legislature was operating under such rules. We also assume that the Legislature expected the agency to likewise apply the traditional rules of statutory interpretation. No deference is therefore given to the agency's interpretation if an otherwise ambiguous statute may be interpreted in accordance with traditional rules of interpretation. See Morton at 589.

If, however, a traditional analysis of the statute does not resolve the ambiguities and "there is no discernible legislative intent concerning a specific issue[,] the Legislature has, in effect, left the issue unresolved. In such a case, it is appropriate to conclude that the Legislature has delegated authority to the agency to decide the issue." Id. We assume that the Legislature expected the agency to use its expertise in choosing between the possible permissible interpretations. Id. The choice of interpretations in such cases is therefore viewed as a policy decision by the agency to which we give deference. Id. ⁶ As is apparent from our analysis, we find no explicit or implicit grant of discretion to the Division in this case and therefore apply a correction-of-error standard to the Division's interpretation of the Act.

ANALYSIS

Accreditation

First we address Dr. Ferro's claim that his doctoral degree from a school that was not accredited at the time he graduated satisfies the statutory requirement of a doctoral degree from an accredited institution. According to Dr. Ferro, his degree satisfies this requirement because UECU was accredited at the time of his application. The Division, however, held as a matter of law that Dr. Ferro's doctoral degree did not satisfy the educational requirement because the school was not accredited at the time Dr. Ferro attended and graduated. Dr. Ferro asserts that the educational requirement is ambiguous on this point.

Section 3 provides that in order for an applicant to sit for the exam, the applicant must "produce certified transcripts of credit from an accredited institution of higher education recognized by the division verifying satisfactory completion of a doctoral degree in psychology." Section 58-25a-3(2)(c). Dr. Ferro asserts that the phrase "certified transcripts of credit from an accredited institution" indicates that the transcript must come from an institution that is accredited at the time the transcript is submitted; in other words, the phrase "from an accredited institution" qualifies the term "transcript." The Division on the other hand, asserts that the credit must be from an institution accredited at the time the credit and doctoral degree are received; in other words, the phrase "from an accredited institution" qualifies the term "credit." When viewed in isolation, this provision is ambiguous because it "can be understood by reasonably well-informed persons to have different meanings." Tanner v. Phoenix Ins. Co., 799 P.2d 231, 233 (Utah App.1990).

In determining whether the Legislature has implicitly granted the Division the discretion to interpret this education requirement, we first apply traditional statutory rules of construction. "[Q]ualifying words and phrases are generally regarded as applying to the immediately preceding words, rather than to more remote ones." Salt Lake City v. Salt Lake County, 568 P.2d 738, 740 (Utah 1977) (footnote omitted). Under this "last antecedent rule," the Division's interpretation is clearly correct.

The Division's interpretation is also supported by another cardinal rule of construction: "If there is doubt or uncertainty as to the meaning or application of the provisions of an act, it is appropriate to analyze the act in its entirety, in light of its objective, and to harmonize its provisions in accordance with the legislative intent and purpose." Osuala v. Aetna Life & Cas., 608 P.2d 242, 243 (Utah 1980) (footnotes omitted). The purpose of the Act is to protect the public from unqualified persons by ensuring that applicants for licensure have certain minimum qualifications. See section 58-25a-1.

A requirement that an applicant present a degree from an institution that is accredited at the time of application, without any regard for whether the school was accredited at the time the degree was obtained, would be useless in ensuring a minimum standard of education. The accreditation status of a school at the time of application has no rational bearing on the quality of education actually received by the applicant. Accreditation at the time the student attended, on the other hand, is indicative of the quality of education received. A requirement of accreditation at the time of graduating therefore furthers the purpose of ensuring certain minimum educational standards. Under Dr. Ferro's interpretation, a graduate of a fully accredited and...