STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESMAT ADLY ZAKLAMA, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 83-441

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on April 15, 1983, in Miami, Florida. The transcript was received on April 25, 1983, and the parties were allowed ten days thereafter to submit proposed findings of fact and conclusions of law. These were timely filed by both parties, and have been considered. Where not adopted, they were found to be irrelevant or immaterial, or not supported by competent, substantial evidence.

APPEARANCES

For Petitioner: Esmat Adly Zaklama,M.D., in pro per

7 Hegeman Avenue, No. 7-H Brooklyn, New York 11212

For Respondent: John E. Griffin, Esquire

Assistant Attorney General The Capitol, Suite 1601 Tallahassee, Florida 32301

The issue to be determined in this proceeding is whether the Petitioner meets the qualifications for licensure in Florida as a physician by endorsement. By letter dated February 1, 1983, the Petitioner challenged the Respondent's denial of his application for licensure, and requested a formal administrative hearing to resolve this issue.

In support of his contention that he meets all eligibility requirements the Petitioner testified in his own behalf and offered two exhibits which were received in evidence. The parties offered as a joint exhibit a certified copy of the Petitioner's application file, and this was received in evidence as the third exhibit. There were no witnesses presented by the Respondent.

FINDINGS OF FACT

1. On July 6, 1982, the Respondent received an application for licensure by endorsement submitted by the Petitioner.

2. By a notice of intent to deny dated January 18, 1983, the Respondent notified the Petitioner that it was denying his application. The Respondent expressly stated in its notice that this denial was because the Petitioner "did not average 75 percent on FLEX weighted average on the licensure examination of the Federation of State Medical Boards of the United States, Inc., as required in Rule 21M-29.01(2) , Florida Administrative Code," and because he "is not certified by the National Board of Medical Examiners as having completed its examination, within ten years immediately preceding the filing of the application for licensure by endorsement, as required by Section 458.313(1)(d), Florida Statutes."

   
   

3. Prior to June, 1980 the Federation of State Medical Boards of the United States, Inc., which prepares and administers the FLEX examination, mathematically calculated the final weighted average by a round up method. Thus, a weighted average of 74.50 percent to 74.99 percent was rounded up to

   75.0 percent and was deemed to be a passing grade by the Board. Beginning with the June, 1980 examination, the Federation changed its policy. Since then the weighted average is no longer rounded up, but the decimal or fraction is dropped entirely. Scores of 74.99 percent are now rounded down to 74.0 percent.

   
   

4. The FLEX scores presented to the Respondent by the Petitioners produce a FLEX weighted average of 74.6 percent. Because scores have been rounded down since June, 1980 the Petitioner's 74.6 percent score was treated as 74.0 percent, and the Petitioner was found not to meet the 75.0 percent requirement.

   
   

5. Although the Petitioner testified that he knew of one other individual with similar scores who was licensed by the Respondent, he produced no corroborative evidence to support this self-serving assertion, and he introduced no evidence to show why, in view of the FLEX requirement of 75.0 percent, he is entitled to licensure.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

7. Section 458.313(1)(d), Florida Statutes, provides that a license by endorsement shall be issued to any applicant who "has been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX) or is certified by the National Board of Medical Examiners as having completed its examination; provided that said examination required [sic] shall have been so certified within the 10 years immediately preceding the filing of his application. . ."

   
   

8. Section 21M-29.01(2), Florida Administrative Code, provides that "the phrase has been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX) or is certified by the National Board of Medical Examiners as having completed its examination as used in Sections 458.313(1)(d), F.S., shall mean the following:

   
   

   a FLEX weighted average of seventy-

   five percent (75.0 percent) from one complete sitting on the FLEX, or an average

   score of seventy-five percent (75.0 percent) on the National Board."

9. Since 1980 the "FLEX weighted average of 75 percent has been interpreted to require an actual achievement of a 75 percent score, and rounding up scores between 74.5 and 74.99 to 75 percent has not been permitted.

   
   

10. The actions of an administrative agency, when within the powers validly conferred upon it, are presumed to be valid and correct in the absence of proof to the contrary. Varholy v. Sweat, 15 So.2d 267 (Fla. 1943); Hayes v. Bowman, 91 So.2d 795 (Fla. 1957)

    
    

11. An applicant for a license or permit carries the ultimate burden of persuasion of entitlement throughout all proceedings. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977)

    
    

12. The Petitioner has presented no competent evidence to demonstrate that the Respondent erred in refusing to license him. The evidence the Petitioner did submit showed that in its decision to deny licensure to the Petitioner the Respondent followed its policy of requiring 75 percent on the FLEX examination.

    
    

13. The fact that prior to June, 1980, applicants were licensed based on raw scores which were rounded up to 75 percent by the Federation of State Medical Boards of the United States, Inc., is not relevant, since the Petitioner did not apply for licensure until July, 1982, more than two years after the policy of rounding up had been discontinued.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application for licensure by endorsement filed by the

Petitioner, Esmat Adly Zaklama, M.D., be DENIED.

DONE and RECOMMENDED this 10th day of May, 1983, in Tallahassee, Florida.

COPIES FURNISHED:

Esmat Adly Zaklama, M.D.

7 Hegeman Avenue No. 7-H

Brooklyn, New York 11212

WILLIAM B. THOMAS, 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 10th day of May, 1983.

John E. Griffin, Esquire Assistant Attorney General The Capitol, Suite 1601 Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000441

Orders for Case No: 83-000441