STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES J. HADDAD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1034

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 21, 1983, in Miami, Florida.

Samuel S. Forman, Esquire, Hollywood, Florida, appeared on behalf of Petitioner Charles J. Haddad, and Morton Laitner, Esquire, Miami, Florida, appeared on behalf of Respondent Department of Health and Rehabilitative Services.

Petitioner filed an application to take the examination for licensure as a supervisor under the Florida Clinical Laboratory Law, and Respondent denied his application. Petitioner timely requested a formal hearing on that denial, and, accordingly, the issue for determination is whether Petitioner's application should be approved.

Petitioner testified on his own behalf and presented the testimony of Dr. Jerome Benson and of Norman Bass. Additionally, Petitioner's Composite Exhibit numbered 1 was admitted in evidence.

George Sherwood Taylor, Jr., testified on behalf of the Respondent, and Respondent's Exhibits numbered 1 and 2 were admitted in evidence.

Both parties have submitted post-hearing findings of fact in the form of a proposed recommended order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. Petitioner is licensed by the State of Florida as a laboratory technologist. Petitioner applied to the Respondent for licensure as a supervisor. On February 2, 1982, Respondent denied Petitioner's application to take the supervisory examination for the stated reason that Petitioner did not have ten years of experience.

2. Petitioner holds a Bachelor's degree in Fine Arts from Florida International University. Petitioner has supplemented his education by taking additional science courses. The science courses taken before and after Petitioner received his Bachelor's degree total 26 semester credits. The courses taken after receipt of his degree have been specifically related to his field.

   
   

3. Petitioner has been employed by the Miami Heart Institute since July 11, 1976, except for the period between September, 1976, and August, 1977.

   
   

4. Dr. Jerome Benson is a pathologist and is the Director of Laboratories at the Miami Heart Institute. He is also Vice Chairman of the National Accreditation for Clinical Laboratory Sciences, the organization which accredits approximately 1,000 programs in the medical technology field and which is responsible for the Committee on Higher Education and Accreditation of the United States Office of Education, which accredits laboratories. He is familiar with accreditation of medical technology programs throughout the country and locally. He serves on the Advisory Committee at Miami-Dade Community College, and he planned the curriculum for the medical technology programs at both Miami- Dade Community College and at Florida International University. He was recognized as an expert by both parties. Dr. Benson believes that Petitioner is qualified to sit for the supervisory examination in terms of education, in terms of experience time, in terms of intent of the law, and in terms of protecting the public safety. He further believes that the science courses Petitioner has taken, both pre-baccalaureate and post-baccalaureate, qualify Petitioner for a Bachelor's degree in medical technology.

   
   

5. Norman Bass was formerly Petitioner's immediate supervisor. He evaluates Petitioner's performance in the laboratory as excellent and believes that Petitioner is qualified through experience and academic courses to sit for the supervisory examination. At the time of the formal hearing in this cause, Petitioner had a total of 12,935 hours of work time at the Miami Heart Institute.

   
   

6. Respondent considers 37.5 hours as constituting a full work week.

   
   

7. George S. Taylor, Jr., reviewed Petitioner's application on behalf of Respondent. The application was received on January 18, 1982, and was denied on February 2, 1982, for the reason that Petitioner did not have ten years' experience. At the time, Respondent did not have current transcripts reflecting courses taken by Petitioner. Respondent did not request any, but simply used transcripts on file with Respondent which had been filed when Petitioner applied for his technologist's license, even though Petitioner's application for licensure as a supervisor reflected that he had taken various science courses at Miami-Dade Community College. Taylor is of the opinion that an applicant with

   120 college credits must have between 25 and 30 of those credits in science courses in order to have a major in science; an applicant with 90 semester hours in college is required to have 17 to 24 credits in science in order to have a science major.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), Florida Statutes.

   
   

9. Section 483.051, Florida Statutes (1979), authorizes the Department of Health and Rehabilitative Services to license all clinical laboratory personnel

   and to prescribe the qualifications necessary for licensure. It further provides that the Respondent may require appropriate education or experience or the passing of an examination in appropriate subjects or any combination of these factors, and further requires the Respondent to conduct the examinations to determine the qualification of clinical laboratory personnel for licensure. In implementation of this statutory responsibility, Respondent has adopted Rule 10D-41.24, Florida Administrative Code, which sets forth ten alternative methods by which an applicant can qualify to take the state's examination for licensure as a supervisor.

   
   

10. Respondent denied Petitioner's application to take the examination based upon Petitioner's failure to satisfy the requirements of Section 10D- 41.24(10), Florida Administrative Code, which requires an applicant to have completed two years of academic study and at least ten years of pertinent experience in an approved laboratory. Clearly, Petitioner does not fit the qualifications of that section, since he does not have at least ten years of pertinent experience. However, it is Petitioner's contention that he qualifies under two of the other methods for qualifying.

    
    

11. The other pertinent provisions of Section 10D-41.24, Florida Administrative Code, provide that an applicant will qualify to take the licensure examination if he meets one of the following requirements:

    
    

    1. Holds a bachelor's degree from an accredited institution with a major in one of the chemical, physical, or biological sciences and has had at least six years of pertinent laboratory experience of which not less than two years had been spent working in one of the laboratory specialties in an approved laboratory, or

    2. Successful completion of three years of academic study (a minimum of 90 semester hours or equivalent in quarter or trimester hours) in an accredited college or university with a chemical, physical, or biological science as a major subject and at least seven years of

       pertinent experience in an approved laboratory. . .

       
       

       Respondent contends that Petitioner fails to meet both the academic and experience requirements to qualify under the method in Subparagraph (4) and that Petitioner fails to meet the requirement as to experience in Subparagraph (5).

       
       

12. As to Subparagraph (4), Respondent takes the position that the applicant must file an official transcript reflecting that the applicant obtained a sufficient number of credits in science courses to have obtained a major in science when the applicant received his or her Bachelor's degree. If the applicant did not have a major in science at the time of receiving the Bachelor's degree, then no matter how many credits in science courses are subsequently obtained, the applicant can never be considered to be one with a Bachelor's degree with a major in one of the chemical, physical or biological sciences. Instead, Respondent will consider the applicant to fall within the requirements of Subparagraph (5) as having completed at least three years of academic study, and Respondent will consider that applicant qualified at any time the applicant achieves enough credits in science so that science will have become one of the applicant's major subjects. In other words, if an applicant has a Bachelor's degree, he or she can never subsequently obtain enough credits

    to be considered as one holding a Bachelor's degree with a major in science; however, if the applicant does not possess a Bachelor's degree, then he or she will be considered to have studied science as a major subject as soon as enough science credits have been obtained. Petitioner has obtained 26 semester credits in science. Accordingly, he has fulfilled the academic requirements contained in Subparagraph (5) but cannot attain the academic requirement contained in Subparagraph (4), since his Bachelor's degree in Fine Arts with a major in theater can never be converted into a Bachelor's degree in science.

    
    

13. The language in Subparagraph (4) is indeed harsh by not providing latitude for determining that an applicant has the equivalent of a Bachelor's degree with a major in science. For example, an applicant holding a Bachelor's degree with a minor in science, as well as an applicant holding a Bachelor's degree but having one less science credit than required, could never qualify under Subparagraph (4) by taking the one or two necessary courses to be considered the holder of a Bachelor's degree in science. However, no challenge to the rule was filed in this cause, and the rule must accordingly be read in accordance with its clear language.

    
    

14. At the time of the formal hearing in this cause, Petitioner did not have the six years of pertinent laboratory experience required to qualify under Subparagraph (4), nor did he have the seven years of pertinent experience required to qualify under Subparagraph (5). Respondent computed Petitioner's experience time as five years and four months. Petitioner argues that since he has worked a substantial amount of overtime and since Respondent considers 37.5 hours to constitute a full work week, then Petitioner has the required years of experience because he has the number of hours of work that he would have if he had worked the required number of years. Although the novelty of this argument has some appeal, the rules under which applications are reviewed require a minimum number of years of experience before an applicant is considered to have met minimum qualifications. Insofar as the required number of years is established as a minimum qualification, any shortened time frame is insufficient. The rule measures experience in terms of years and not in terms of months, weeks, days or hours.

    
    

15. Although Petitioner may now have met the time requirement to qualify under Subparagraph (4), he has not (and cannot) achieve the academic requirement of that subparagraph. On the other hand, Petitioner has demonstrated that he meets the academic requirement in Subparagraph (5), but Petitioner has not yet met the experience requirement in that subparagraph. Although it would be the undersigned's recommendation to the Respondent that Subparagraph (4) be interpreted to allow the equivalency of a Bachelor's degree to be considered in a situation such as this one where Petitioner has achieved the required credits for a major and has attained an excellent level of competency as described by his witnesses, the interpretation accorded by Respondent to the rule thus far would require the denial of Petitioner's application to sit for the examination for a supervisor's license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application

to take the examination for a supervisor's license.

DONE and RECOMMENDED this 14th day of January, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1983.

COPIES FURNISHED:

Samuel S. Forman, Esquire The Counsel Building

2016 Harrison Street

Hollywood, Florida 33020

Morton Laitner, Esquire

Dade County Health Department 1350 North West 14th Street Miami, Florida 33125

David H. Pingree, Secretary Department of HRS

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-001034

Orders for Case No: 82-001034