                                   No. 85-313
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1986




IN THE MATTER OF THE DENIAL OF
LICENSURE OF RUDOLPH E. WHITE.




APPEAL FROM:    District Court of the First Judicial District,
                In and for the County of Lewis & Clark,
                The Honorable Gordon Bennett, Judge presiding.



COUNSEL OF REC0R.D:

         For Appellant:
                Geoffrey L. Brazier, Dept. of Commerce, Helena,
                Montana

         For Respondent:
                Michael- P. Sand, Bozeman, Montana




                                      Submitted on Briefs: Nov. 6, 1985
                                                 Decided: January 23, 1986



Filed:    JAN 2 13 1986


                              m.


                                      f,f#


                                      Clerk
Mr. Justice John C.          Sheehy delivered the Opinion of the
Court.


     The Board of Nursi.ng appeals from a judgment of the
District Court, First Judicial District, Lewis and                       Clark
County which reversed the decision of the Roa.rd of Nursing
and ordered the Board to license the petitioner.                   We affirm.
     The Board of Nursing raises four issues on appeal.                     1)
Should Rudolph E. White be licensed as a practical nurse in
Montana?        2) Did the District Court disregard uncontroverted
credible and material evidence?             3) Did the Dj-strict Court

substitute its opinion for that of the agency as to the
weight     of     the   evidence?      4)     Did       the   District   Court
erroneously construe the applicable statutes?                  We will treat
all these issues together.
     Rudolph E. White applied to the Board of Nursing of
Montana for a practical nurse license by endorsement pursuant
to section 37-8-417, MCA.           He was denied that license.            He
requested the Board review the denial of his license.                     The
Board considered the denial of his license at its meeting and
again denied the license.            White requested administrative
review   of      the    Board's   decision.         A    hearing   was   held,
witnesses were heard          and   exhibits were         introduced.     The
hearing examiner concluded that the Board should issue the
license.         The matter was referred back to the Board of
Nursing which held another hearing.             The Board reversed the
decision of the hearing examiner and denied the license.
White petitioned for judicial review.                    The District Court
adopted the Findings of Fact and Conclusions of Law of the
hearing examiner and ordered the Boarc? to license White.
     The Board appeals.
     After White graduated from high school in New York, he
served as an army medic for six years.      After being honorably
discharged    from   the   service, he   worked    as   a   laboratory
technician in cancer research for eight years.                He also
attended medical assistant's school for a yea-r.
     White attended Onondaga Community College in Syracuse
from the spring semester of 1975 through fall semester 1977
where he earned 57 credits of the required 62 credits toward
a registered nurse degree.     New York allows a candidate for a
registered nurse degree to take the licensed practical nurse
examination   after    completion   of   three    semesters   of   the
registered nurse program if their grades are satisfactory.
In 1980, White successfully passed the National Standardized
Practical Nursing Examination and was licensed as a practical
nurse in New York.     White worked as a. practical nurse in New
York until 1.982 when he came to Montana.               His New York
license is still valid.
    White applied for a license by endorsement in Montana
under section 37-8-41-7,MCA.     That section states:
    The board may issue a license to practice as a
    licensed practical nurse, without examination, to
    an applicant who has been licensed or registered as
    a licensed practical nurse or person entitled to
    perform like services under a different title under
    the laws of another state or territory if, in the
    opinion of the board, the applicant meets the
    requirements for practical nurses in this state.
The requirements for practical nurses in this state are set
out in section 37-8-415, MCA.
    An applicant for a license to practice as a
    licensed practical nurse shall submit to the board
    written evidence, verified by oath, that the
    applicant:
     (1) has   successfully completed at least an
     apprcved 4-year high school course of study or the
     equivalent as determined by the office of                  the
     superintendent of public instruction;
     ( 2 ) is a graduate of an approved practical nursing
     education program that is authorized to prepare
     persons for licensure as practical nurses; and
      (3) meets other qualification              requirements   the
     board prescribes in its rules.
     The   Board      argues    that White     cannot be     licensed by
endorsement in Montana, nor will the Board allow him to take
the Montana examination until he graduates from an approved
practical nursing education program.             They argue he did not
graduate since he holds no diploma.           They also argue that the
school White went to while it. is an approved school for
registered nurses, is not an approved school for licensed
practical nurses.       Thus they argue White should enroll in a
licensed practical       nurse program        in Montana and graduate
before he can ta.ke the Montana exam.
     White argues he completed the equivalent of graduation
from a school of practical nursing.             Under New York law, an
applicant may take the examination if he graduates from a
practical nursing program or if he completes the equivalent
thereof.    White qualified under the equivalent preparation
section    of   New    York    law   and    passed    the   standardized,
nationalized examination, which is used both in New York and
in Montana..    His score was sufficient to constitute passing
in both New York and Montana.            He argues that by refusing him
a license in Montana, the Board is attempting to disapprove

of the educational standards of New York.
     We    first look     to the     standa.rd of review of agency
decisions under MAPA.           Section 2-4-704, MCA states, "The
[district] court may           reverse    or modify    the decision   if
substantial rights of the appellant have been prejudiced
because the administrative findings, inferences, conclusions,
or decisions are:           . . .    (f) arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted
exercise of discretion."            In this case, the District Court
reversed the decision of the agency and found the decision
was    arbitrary, capricious and             abusive of     discretion       and
affected by other error of law.               The District Court adopted
in their entirety the Findings of Fact and Conclusions of Law
of    the   hearing   examiner.        The District Court          found     the
Board's      interpretation       of       section     37-8-417,      MCA     is
"hypertechnical,       defeats       the     clear     intention      of     the
legislature and would deprive the public of the services of a
well qualified, probably over-qualified, licensed practical
nurse. "
       We   agree with      the   District Court        that    the   Roard's
interpretation of the statute is hypertechnical.                The statute
should be interpreted to mean the applicant's esucation has
been approved and authorized by the state in which he has
been, licensed.       The District Court is also correct that the
Board's interpretation of the statute defeats the intention
of the legislature.          The intention of the legislature is
expressed in section 37-8-101(2), MCA.
       In order to safeguard life and health, any person
       practicing or offering to practice practical
       nursing in this state for compensation or personal
       gain shall be required to submit evidence that he
       or she is qualified to practice and shall be
       licensed as hereinafter provided.
Denying this applicant a license frustrates the legislative
intent      of   safeguarding     life      and   health.      Finally,      the
District     Court    is   correct     in    holding   that denying         this
appl-icilnt a license deprives the public of a well.-qualified
applicant.       It has not been argued and cannot be argued that
 the applicant's qualificati.ons are in any way deficient for

 the purpose of being a licensed practical nurse in Montana.

      The      effect       of   the   Board's   decision   is   to   deny    to

 qualified applicants the right to practice in Kontana.                      The

 District Court did not err.             We affirm.




 FJe Concur:
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