Judges: WILLIAM E. WILLIAMS
Agency: Department of Business and Professional Regulation
Latest Update: Feb. 03, 1984
Summary: Doctor, who was denied application by endorsement to practice in Florida, appeals. Hearing Officer recommends decision be reversed and doctor be allowed to receive license for Florida practice.
83-1766.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ZIA DURRANI, M.D., )
)
Petitioner, )
)
vs. ) CASE NO. 83-1766
)
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 E. Williams, held a public hearing in this cause on October 24, 1983, in Tallahassee, Florida.
APPEARANCES
For Petitioner: John A. Barley, Esquire
Suite 315, Lewis State Bank Building Tallahassee, Florida 32301
For Respondent: John E. Griffin, Esquire
Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301
Petitioner, Zia Durrani, M.D. ("Petitioner"), an applicant for Florida medical licensure by endorsement, has been denied such licensure by the State of Florida, Department of Professional Regulation, Board of Medical Examiners ("Board"). Petitioner seeks through this proceeding to gain licensure by endorsement or, in the alternative, licensure by default.
Final hearing in this cause was scheduled for October 24, 1983, by Notice of Hearing dated August 24, 1983. At the final hearing, neither party called live witnesses. Petitioner offered Petitioner's Exhibits 1 through 16, which were received into evidence. In addition, a prehearing stipulation entered into between the parties was admitted as Hearing Officer's Exhibit 1.
Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not contained in this order, they have been rejected as being either irrelevant to the issues presented for determination, or as not having been supported by evidence of record.
FINDINGS OF FACT
The parties to this proceeding, through their counsel, have stipulated to the following facts:
On December 21, 1982, Petitioner submitted by mail an application for licensure by endorsement to the Board. The application was received by the Board on December 28, 1982. Sometime between December 28, 1982, and January 19, 1983, the Board requested additional information from Petitioner relating to his professional activities during the period from June 1967, to June 1968. Petitioner responded to this inquiry by letter dated January 19, 1983, and therewith provided the Board with the requested information. This letter was received by the Board on January 24, 1983, which date constitutes the date on which the ninety-day period within which Petitioner's application must be approved or denied commenced running. By use of a form dated February 23, 1983, the Board made another request for information from Petitioner relating to two omissions in his application. Petitioner responded to this inquiry by letter dated March 15, 1983, providing the requested information. This letter was received by the Board on March 21, 1983.
Petitioner's application for licensure by endorsement is based upon his previously obtained FLEX certification. Petitioner took the FLEX, a three-part examination, incidental to applying for medical licensure by examination in the State of Illinois. Petitioner sat for the FLEX examination in Illinois on June 13, 14, and 15, 1972, and on December 5, 6, and 7, 1972. Following conclusion of each examination, Petitioner's responses to the examination questions were forwarded to the National Board of Medical Examiners for evaluation and scoring. On or about January 17, 1973, the National Board of Medical Examiners completed its evaluation and scoring of Petitioner's responses to the December 1972 examination, and on or about January 19, 1973, the scores achieved by Petitioner were forwarded to the State of Illinois. On February 7, 1973, Petitioner was licensed by the State of Illinois, based upon the scores obtained by Petitioner on the June and December 1972 FLEX.
The weighted average of the scores achieved by Petitioner on which licensure was granted to the Petitioner by the State of Illinois was 75. This weighted average was computed by assigning a one-sixth weight to the basic science portion of the FLEX examination taken by Petitioner on June 13, 1972; assigning a two-sixth weight to the clinical science portion of the FLEX examination taken by Petitioner on December 6, 1972; and assigning a three-sixth weight to the clinical competence portion of the FLEX examination taken by Petitioner on December 7, 1972.
By letter dated March 1, 1983, Willie J. Burch, a Staff Assistant of the Board, notified Petitioner that she would not be able to recommend favorable approval of Petitioner's application to the Board for reason that Petitioner had not obtained a score of 75 percent or above at one sitting of the complete examination. The same letter further informed Petitioner that his application would be presented to the Board for consideration at its April 9-10, 1983 meeting, and that Petitioner would be notified of the Board's final decision within approximately fifteen days from the date of that meeting.
On April 10, 1983, the Board at a regularly noticed public meeting considered the Petitioner's application. Petitioner's undersigned attorney then appeared before the Board and addressed the Board on behalf of Petitioner.
After considering the information, argument, and legal authority presented by Petitioner's attorney, and the advice and information presented by its staff,
the Board, through its chairman, declared that Petitioner's application was not filed with the ten-year period required by Section 458.313(d), Florida Statutes. Further, the Board maintained that Petitioner had failed to comply with Rule
21M-29.01(2), Florida Administrative Code, a newly enacted rule interpreting the statutory phrase "has been certified by licensure examination of . . . (FLEX) to mean that an applicant must not only have been certified by licensure examination of FLEX, but must have scored a FLEX-weighted average of 75 percent or better during only one complete sitting of the FLEX.
As of April 25, 1983, neither Petitioner nor his attorney had received any written decision from the Board. On May 23, 1983, Petitioner's attorney filed on behalf of Petitioner, a Request to Issue License, notifying the Board of its failure to comply with the requirements of Section 120.60(2), Florida Statutes.
On May 24, 1983, the Board mailed to Petitioner's attorney a document entitled NOTICE OF INTENT TO DENY ENDORSEMENT LICENSURE bearing a certificate of service signed by Dorothy J. Faircloth as the Board's executive director, stating that a copy of such notice had been furnished to Petitioner by mail on May 4, 1983. Said notice expressed the Board's decision to deny Petitioner's application for licensure by endorsement. On May 27, 1983, Petitioner's attorney received a copy of such notice.
On May 27, 1983, Petitioner's attorney filed on behalf of Petitioner, a PETITION FOR ADMINISTRATIVE HEARING pursuant to Section 120.57(1), Florida Statutes, to review the Board's denial of Petitioner's application for licensure by endorsement.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes.
Section 458.313(1), Florida Statutes, contains the qualifications for licensure by endorsement as a medical doctor in the State of Florida. Only Section 458.313(1)(d), Florida Statutes, is in dispute in this proceeding, and that section provides as follows:
(d) Has been certified by licensure examina- tion 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 shall have been so certified within
the 10 years immediately preceding the ruling of his application for licensure under this section.
On August 7, 1983, the Board adopted Rule 21M-29.01(2), Florida Administrative Code, which purported to interpret Section 458.313(1)(d), Florida Statutes. By contemporaneous order, that rule was declared invalid in Durrani
v. State of Florida, Department of Professional Regulation, Board of Medical Examiners, Division of Administrative Hearings Case No. 83-3441R. As a result, the provisions of that rule will not be applied in this case.
Section 120.60(2), Florida Statutes, provides, in part, that ". . . [e]very application for license shall be approved or denied within 90 days after receipt of the original application or receipt of . . . timely requested additional information. . . . Any application for a license not approved or denied within the 90-day or shorter time period . . . shall be deemed approved
It is specifically concluded, as a matter of law, that the ten-year period contained in Section 458.313(1)(d), Florida Statutes, for filing of an application for licensure by endorsement begins to run from the date an applicant has been certified as having successfully completed the FLEX examination. By stipulation of the parties, this date has been established as either January 17, 1973, at the earliest, or January 19, 1973, at the latest. Using either of these dates, Petitioner's application which was filed with the Board on December 21, 1982, was filed within ten years from the date he was certified as having completed the FLEX examination.
Petitioner would not, however, be entitled to the issuance of a license under the default provisions of Section 120.60(2), Florida Statutes, under the facts of this case. See, Bass v. Gilchrist County School Board, Case No. AN-420 (Fla. 1st DCA, September 9, 1983); State v. Public Service Commission, 333 So.2d 9 (Fla. 1976).
Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED:
That a Final Order be entered by the Department of Professional Regulation, Board of Medical Examiners, granting Petitioner's application for licensure by endorsement.
DONE AND ENTERED this 3rd day of February, 1984 at Tallahassee, Florida.
WILLIAM E. WILLIAMS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 3rd day of February 1984.
COPIES FURNISHED:
John A. Barley, Esquire
Suite 315, Lewis State Bank Building Tallahassee, Florida 32301
John E. Griffin, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301
Dorothy Faircloth, Executive Director Board of Medical Examiners
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Fred M. Roche, Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 83-001766
Orders for Case No: 83-001766
| Issue Date |
Document |
Summary |
|
Feb. 03, 1984 |
Recommended Order
|
Doctor, who was denied application by endorsement to practice in Florida, appeals. Hearing Officer recommends decision be reversed and doctor be allowed to receive license for Florida practice.
|
