STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IRA MARTIN FINE, M.D., )

)

Petitioner, )

)

vs. ) Case No. 85-3505

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

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled case was held before Mary Clark, Hearing Officer of the Division of Administrative Hearings, on February 11, 1986, in West Palm Beach, Florida.

For Petitioner: Phillip H. Reid, Jr., Esquire

396 Royal Palm Way

Palm Beach, Florida 33480

For Respondent: Catherine Lannon, Esquire

Assistant Attorney General Department of Legal Affairs Room LL-04, the Capitol Tallahassee, Florida 32301.

BACKGROUND

Petitioner, Ira Martin Fine, M.D., applied for licensure by endorsement as a medical doctor in Florida. On May 31, 1985, the Board of Medical Examiners voted to deny the application and stated in its Order, dated July 7, 1985:

There are deficiencies in documenting the authenticity of the documents submitted in support of the application. The applicant has failed to reasonably document his medical education.

This proceeding commenced with Petitioner's timely request for a formal hearing to review the decision. At the hearing, Petitioner testified on his own behalf and submitted two exhibits: a Berlitz translation of his medical school transcript, dated May 31, 1985; and a notice from Berlitz of that same date, addressed "To Whom It May Concern".

Respondent's evidence consisted of the entire application file before the Board of Medical Examiners, admitted without objection. Petitioner was the only witness for either party.

After the hearing, both parties submitted proposed recommended orders. These have been carefully considered in the preparation of this Recommended Order and a specific ruling on each proposed finding of fact is included in the attached Appendix.

ISSUE

The issue presented is whether the Petitioner is entitled to licensure as a physician in the State of Florida by endorsement, as provided in Chapter 458, Florida Statutes.

FINDING OF FACT

1. Petitioner, Ira M. Fine, M.D., is a licensed practicing physician in the State of New York and is a Diplomate of the American Board of Internal Medicine. (T-13, Respondent's Exhibit #1) His medical degree is from the University of North Paris, France. (T-12, Respondent's Exhibit #1).

   
   

2. Intending to commence practice in Florida, Petitioner submitted his endorsement application to the Board of Medical Examiners in November and December 1984. (Respondent's Exhibit #1).

   
   

3. In April 1985, when Petitioner first appeared before the Foreign Medical Graduate Committee of the Board of Medical Examiners, some discrepancies were discovered in the translation of his medical school transcript. The English version, completed by Margery R. Strack in April 1982, excludes items which in the French version are struck through by a hand-marked slash. On one page, Ms. Strack's translation includes the word "total" after the listing of the grades; on another page, Ms. Strack includes the word "admitted" after the words, "jury decision". In the French version, those words do not appear on the corresponding pages. (Respondent's Exhibit t1). Ms. Strack is a French teacher and translator in New York and her

   translation was originally submitted when Petitioner applied for licensure in New York. (T-16). When the Chairman of the Foreign Medical Graduate Committee pointed out the discrepancies, Petitioner agreed there was an error and accepted the Committee's recommendation to get the translation redone in Florida. (T-l9).

   
   

4. Petitioner gave the transcript to Berlitz in Ft. Lauderdale and made arrangements with a doctor friend to mail him the copy when it was completed. The translation arrived the day Dr. Fine left New York to appear again before the Committee and he did not have time to review it. (T-19, 21) At this appearance, for the second time, errors were pointed out by the Cornnittee. Chagrined, Dr. Fine left the meeting and went directly to Berlitz to complain. Berliz apologized and redid the translation that evening. The next day Dr. Fine returned to the meeting place with his latest translation but found that the Board had just adjourned. (T-21-23).

   
   

5. Berlitz' errors in their first translation are far more egregious than those committed by Ms. Strack. On several pages, names of courses and their grades are deleted altogether; the grade number in one instance does not agree with the grade for that course in the French version; in another case the grade is listed as 5/20, rather than 5/10 as appears in the French version. (Respondent's Exhibit #l).

   
   

6. Berlitz wrote an explanatory note for Dr. Fine stating the errors were due to a new typist; they also reimbursed his fee and provided the second translation gratis. (Petitioner's Exhibit #2, T-22).

   
   

7. The French version of the transcript found in Respondent's Exhibit #1 is missing a page corresponding to the second year of the second cycle. That page does exist in each of the three translations. (Respondent's Exhibit #1).

   
   

8. The second Berlitz translation, viewed against the French version and the two other translations, is complete and accurate. Dr. Fine's explanation of circumstances surrounding the botched first translation is entirely credible.

   
   

9. Nothing in this proceeding, no testimony, no exhibits, would lead to an inference, as suggested by counsel for Respondent that Dr. Fine is attempting to deceive or mislead the Board with regard to the documentation of his medical education. The errors in the Strack translation are inconsequential and do

   not affect the substance of the document. The material deleted from the text is struck through in the French version, denoting an intent to delete material which relates to make-up exams in a September session for individuals who did not pass the April exams. Dr. Fine's testimony that he did not have to take the make-up exams is credible and unrebutted. The errors in the first Berlitz translation are substantive, but are also so obvious as to utterly negate any inference of deception. For example, there is no apparent attempt to delete lower grades and to leave intact the higher grades. In at least one case, the grade in the translation is lower (5/20) than in the French version (5/10). (Respondent's Exhibit f1). The errors are random and appear to be the sort of errors committed by carelessness rather than design. The effect of the carelessness of the preparer of the document was compounded by Dr. Fine's carelessness in failing to review it in his haste to get his application approved.

   
   

10. All four letters of recommendation addressed to the Board of Medical Examiners on Dr. Fine's behalf cite his proper and good conduct: ". . .conduct up to good ethical standards. .

    ." (Stanley Gross, M.D., letter dated 1/23/85); ". . . An ethical, highly moral individual. . ." (Joe H. Dwek, M.D., letter dated 12/27/84); ". . . the highest ethical conduct . .

    ." (Stephen Karbowitz, M.D., letter dated 11/7/84); ". . . conduct has always been exemplary. . . " (Lawrence L. Faltz,

    M.D. letter dated 11/8/84).

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction in this cause pursuant to Section 120.57, Florida Statutes and Section 455.213(3), Florida Statutes.

    
    

12. Petitioner's application for licensure by endorsement is subject to Subsection 458.313(1), Florida Statutes, which requires, among other things, that the applicant demonstrate to the Board that he has met the qualifications for licensure in Section 458.311, Florida Statutes. Both sections 458.311, Florida Statutes and 458.313, Florida Statutes require graduation from a medical school or college.

    
    

13. The Petitioner, as an applicant for licensure as a medical doctor in Florida, bears the burden of proof in establishing that he is qualified. J. W. C. Company, Inc., v. D.O.T., 396 So.2d 778 (Fla. 1st DCA 1981).

14. Subsection 120.60(2), Florida Statutes, requires, reach agency, upon issuing or denying a license, shall state with particularity the grounds or basis for the issuance or denial of the license, except when issuance is a ministerial act." Nothing in the record of this proceeding, including Respondent's exhibit consisting of the entire record before the Board, reveals that Dr. Fine was put on notice, prior to the final hearing on February 17, 1986, that his moral character was in issue or that the Board was concerned about anything more than obtaining authentication of his medical education. In that regard and in other significant details, this ease is distinguishable from Gentile v. DPR, Board of Medical Examiners,

    448 So. 2d 1087 (Fla. 1st DCA 1984), cited by Respondent.

    
    

15. Assuming, however, that Dr. Fine's moral character is legitimately at issue here, positive evidence of good character exists in his file before the Board (See Finding of Fact, paragraph 10, above). The discrepancies in the various translations of his medical school record are insufficient to overcome that positive showing. In Bachynsky v. State Department of Professional Regulation, 471 So. 2d 1305 (Fla. 1st DCA 1985), a prior misdemeanor conviction was held to not bar a physician's application for licensure by endorsement when other competent substantial evidence supported a finding of good moral character.

Petitioner has met his burden of documenting his medical education; his prima facie evidence of good moral character is unrebutted by Respondent; no other qualifications are in dispute. Petitioner meets the requirements of Section 458.313, Florida Statutes, and it is therefore

RECOMMENDED:

That Petitioner's application for licensure as a physician in the State of Florida by endorsement be approved.

DONE and ORDERED this 2nd day of Apri1, 1986, in Tallahassee, Florida.

MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1986.

COPIES FURNISHED:

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore Carpino, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

M. Catherine Lannon, Esquire Assistant Attorney General Counsel to the

Board of Medical Examiners Office of the Attorney General The Capitol

Tallahassee, Florida 32301

Phillip H. Reid, Jr., Esquire

396 Royal Palm Way

Palm Beach, Florida 33480

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.5a(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in paragraph 1.

2. Adopted in paragraphs 3 and 4.

   
   

3. Adopted in paragraphs 3 and 5, except however, the defects in the first Berlitz translation are found to be substantive in paragraph 9.

   
   

4. Adopted in substance in the background statement preceding the Findings of Fact. While the Board's order addresses documentation of Petitioner's medical education, no specific question as to his diploma appears in the record.

   
   

5. Adopted in paragraph 8.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in paragraph 2 and in the statement of Issue preceding the Findings of Fact.

   
   

2. Adopted in substance in paragraphs 3-5. However, the proposed finding that the three translations set forth different substantive information is specifically rejected in paragraph 9, as inconsistent with the evidence.

   
   

3. The errors in the Strack translation are addressed in paragraph 3. The characterization of the errors as "substantive" is rejected in paragraph 9, as contrary to the weight of evidence.

   
   

4. Adopted in substance in paragraph 3.

   
   

5. Rejected as immaterial and a restatement of testimony rather than a finding of fact.

   
   

6. Adopted in substance in paragraphs 4 and 5.

   
   

7. Rejected as a restatement of the testimony rather than a finding of fact.

   
   

8. Adopted in paragraphs 4, 6 and 8.

Docket for Case No: 85-003505

Orders for Case No: 85-003505