HARRY HUGHES, Governor

755

Stated from the other perspective, the subsection states
that a health occupation board may not arbitrarily deny an
otherwise qualified applicant an opportunity to take the
license examination. This requirement of the present law
becomes clearer in the context of the revised form used in
the "Examinations" sections of this article. In any event,
this provision reflects the requirements of the due process
clause of the 14th Amendment of the U.S. Constitution. See
Schware v. Board of Bar Examiners, 353 U.S. 232 (1957); and
Douglas v. Noble, 261 U.S. 165 (1923).

The Commission notes that the majority of the titles of
this article do not include mental incompetence as a ground
for suspension or revocation of a license. The General
Assembly may wish to consider adding such a provision to
those titles, because the absence of such a provision
deprives a health occupation board of a valuable mechanism
by which to protect the public against a fundamental danger
— a health practitioner who is mentally disabled.

The Commission also calls the attention of the General
Assembly to the fact that parts of this article seem to
conflict, at least in principle, with the Administrative
Procedure Act as it relates to a stay of a board's order of
suspension or revocation pending judicial review. The
Administrative Procedure Act provides that the filing of a
petition for review "does not itself stay enforcement" of
the order, but allows for "a stay upon appropriate terms"
unless "otherwise provided by law". See Art. 41, § 255(c)
of the Code. The present law includes express provisions
that relate to stays of orders . by some health occupation
boards governed by this article, and, as a result, some
sections of this article that relate to administrative and
judicial review contain such provisions. These provisions
vary significantly: some — see, §§ 6-317(c), 10-317(c), and
15-315(c) — provide for an automatic stay; and others —
see, §§ 7-314(c) and 14-508(c) — prohibit stays pending
review. The Administrative Procedure Act represents the
procedure that the General Assembly intends should apply to
most, if not all, review of administrative orders in this
State. See Section 3 of Ch. 94, Acts of 1957. Therefore,
it is possible that some of these unique stay provisions do
not represent the procedure that the General Assembly would
now favor.

The attention of the General Assembly is also called to
the fact that Ch. 702, Acts of 1980 added additional
members to most of the boards governed by this article, and,
in so doing, may have worked some unintended changes in the
law. For example, present Art. 43, § 483 states, in part,
that a license to practice podiatry may be issued only when
"at least three members of the Board vote in favor of
granting the license" — a requirement that now appears in §
15-306 of this article. Before Ch. 702, Acts of 1980 became
law, three affirmative votes corresponded to a majority of
the full authorized membership of the Board of Podiatry
Examiners. However, Ch. 702, Acts of 1980 added one member