Poole v. Louisiana Board of Electrolysis Examiners

964 So. 2d 960, 2006 La.App. 1 Cir. 0810, 2007 La. App. LEXIS 1033, 2007 WL 1430181
CourtLouisiana Court of Appeal
DecidedMay 16, 2007
DocketNo. 2006 CA 0810
StatusPublished
Cited by2 cases

This text of 964 So. 2d 960 (Poole v. Louisiana Board of Electrolysis Examiners) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Poole v. Louisiana Board of Electrolysis Examiners, 964 So. 2d 960, 2006 La.App. 1 Cir. 0810, 2007 La. App. LEXIS 1033, 2007 WL 1430181 (La. Ct. App. 2007).

Opinions

WELCH, J.

[gin this mandamus proceeding, a licensing board appeals a judgment of a trial court ordering it to issue a license to an applicant who met all of the statutory requirements for obtaining an electrolysis instructor’s license. We affirm.

FACTS AND PROCEDURAL HISTORY

On August 24, 2004, Pauline Poole, a licensed electrologist for more than five years who completed the statutorily required instructor training, filed an application with the Louisiana Board of Elec[962]*962trolysis Examiners (Board) to become a licensed instructor of electrology. One statutory requirement for obtaining an instructor’s license is that the applicant successfully achieve a minimum score on an examination administered and approved by the Board. La. R.S. 37:3077(C)(3)(a).

The Board’s Chairperson, Cheri Miller, admitted that although the testing requirement went into effect in 2001, the Board did not begin to create an examination for the instructor’s license until 2004, after learning that Ms. Poole was applying for an instructor’s license. After submitting her application, Ms. Poole was advised that she would be given both a written test and a practical examination, but was not provided with details regarding the practical examination.

The evidence reflects that the Board did not formulate the practical portion of the examination until the day it administered the test to Ms. Poole. According to Ms. Miller, four members of the five-member Board met before the test and agreed that Ms. Poole would be graded on personal appearance, knowledge of subject matter, planning and preparation, student involvement and motivation, teaching methods and models, relationship with students, and communication skills. Board member Maureen Calloway testified that prior to the date that Ms. Poole sat for her written test, there had been no decision by the Board to require a practical portion of the examination. Ms. Calloway attested that she was “amazed” when the Board |stold Ms. Poole that she would be given a practical examination that day.

Ms. Poole took the written portion of the test, which she passed. The written test contained an instruction regarding the practical examination, in which Ms. Poole was apprised that she would be given ten minutes to prepare a lesson plan and deliver a lecture to the Board. The written portion of the test did not state what the topic would be. Ms. Poole prepared a lesson plan and appeared before the Board to give her lecture. However, she was told to present a lecture instead on the topic of “skin and hair.” This topic had not been decided upon until shortly before Ms. Poole entered the room. Ms. Poole was told by one of the Board members to assume that the Board members were her students and that someone in the room had a learning disability such as dyslexia or ADD. Ms. Poole was given another ten minutes to prepare for the presentation. When Ms. Poole attempted to lecture on the topic chosen by the Board, one of the Board members objected to her reading from her notes, and instructed her to give the presentation without reading her notes. Ms. Poole protested that she was not prepared and asked to give a lecture on the topic she had prepared. She and the Board members continued to dispute the lecture topic, and Ms. Poole was asked to leave the room. Thereafter, the Board members graded the practical examination, giving Ms. Poole an “incomplete.”

On June 15, 2005, Ms. Poole filed a “Rule To Show Cause For Mandamus" seeking to have the court direct the Board to issue her an electrology instructor’s license in accordance with La. R.S. 37:3077. In her petition for mandamus relief, Ms. Poole urged that the Board did not have authority to condition the issuance of an instructor’s license on a practical examination. She submitted that because she passed the written test and met all of the statutory requirements for obtaining an instructor’s license, the issuance of a license to her was a purely ministerial act, involving no exercise of discretion on the part of the Board. Thus, Ms. Poole 14urged, she was entitled to the issuance of a writ of mandamus ordering the Board to grant her an instructor’s license.

[963]*963The trial court agreed and granted the writ of mandamus, ordering the Board to grant Ms. Poole a license as an instructor of electrology pursuant to La. R.S. 37:3077. This appeal, taken by the Board, followed.

DISCUSSION

Mandamus is a writ compelling a public officer to perform a ministerial duty required by law. La. C.C.P. arts. 3861 and 3863. Mandamus is an extraordinary remedy, which must be used sparingly by the court, and only to compel action that is clearly provided for by law. Bonvillian v. Department of Insurance, 2004-0332, p. 3 (La.App. 1st Cir.2/16/05), 906 So.2d 596, 599, writ not considered, 2005-0776 (La.5/6/05), 901 So.2d 1081. Although the granting of a writ of mandamus, as a general rule, is considered improper when the act sought to be commanded contains any element of discretion, it has been allowed in certain cases to correct an arbitrary and capricious abuse of discretion by public boards or officials, such as the arbitrary refusal by an administrative body to grant a license. Bonvillian, 2004-0332 at p. 4, 906 So.2d at 599. See State v. City of Shreveport, 231 La. 840, 93 So.2d 187, 189 (1957) (wherein our Supreme Court expressly clarified that “[w]hile it is the general rule that mandamus may be invoked only to coerce performance of duties that are purely ministerial in nature, it is well settled in this state as well as in other jurisdictions that the writ mail also be employed to reach and correct an arbitrary or capricious abuse of discretion by public boards or officials ... such as the arbitrary refusal to yrant a license).” (Emphasis added).

In Charbonnet v. Board of Architectural Examiners, 205 La. 232, 17 So.2d 261, 263 (1944), mandamus was issued to the Board compelling it to issue the plaintiff a license to practice the profession of architecture in Louisiana. The 15plaintiff/applicant proved that he had fulfilled all the statutory requirements for the granting of said license. Notwithstanding, the Board denied him a license on the basis of the Board’s additional requirement by rule that, in addition to the statutory requirements, this applicant also had to have at least three years of practical training in an office of accredited architecture. The Supreme Court considered the issue of “whether the Board of Examiners is vested with the power and authority, under the law, to prescribe such qualifications as it sees fit, in addition to those prescribed by the act, as conditions precedent to its issuance of a license.... ” Id. at 263. The court concluded:

Clearly, ... the members of the Board of Examiners have misconceived their duty, power, and responsibility. The Legislature itself has prescribed the qualifications of architects and has assumed the responsibility of permitting those who hold diplomas from schools of architecture of good standing to practice the profession of architecture in this state. The Legislature did not intend to confer upon the Board of Examiners the arbitrary authority and power which it is assuming in this case.
“Generally mandamus does not lie to control the judgment or discretion of a public [official], lying only to require performance of a plain ministerial duty; but

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964 So. 2d 960, 2006 La.App. 1 Cir. 0810, 2007 La. App. LEXIS 1033, 2007 WL 1430181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poole-v-louisiana-board-of-electrolysis-examiners-lactapp-2007.