STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANSELMO MANUEL MENDIVE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2967

)

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

MEDICAL EXAMINERS, )

)

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 November 10, 1986, in Miami, Florida.

Petitioner Anselmo Manuel Mendive was represented by Ramon S. Santos, Jr., Esquire, Miami, Florida; and the Respondent Department of Professional Regulation, Board of Medical Examiners was represented by M. Catherine Lannon, Esquire, and Allen R. Grossman, Esquire, Tallahassee, Florida.

Petitioner applied for licensure as a medical doctor in Florida by endorsement, and Respondent denied that application due to deficiencies in Petitioner's proof as to his prior practice of medicine. Accordingly, the issue for determination is whether Petitioner is entitled to licensure by endorsement.

Petitioner Anselmo Manuel Mendive testified on his own behalf and presented the testimony of Esperanza Arce, M.D.; Oscar Bravo-Campa, M.D.; Ignacio Coro, M.D.; Juan Enriquez-Elesgaray, M.D.; Luis Manuel Rodrigues-Molina; Pedro Velez, M.D.; and Dorothy J. Faircloth. Additionally, Petitioner's Exhibits numbered 1-

7 were admitted in evidence. Respondent presented no witnesses; however, Respondent's Exhibits numbered 1-4 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. Certain of Petitioner's proposed findings of fact have been adopted in this Recommended Order as follows: proposed findings numbered 1, 2, 4, 6, the second sentence of 9, the third sentence of 10, and the third and fourth sentences of 11 and 12. The remainder of Petitioner's proposed findings of fact have been rejected as follows: 3, 7, 8, the second sentence of 10, the first and second sentences of 11, and the first sentence of 12 as being unnecessary for determination herein; 5, the fifth sentence of 11, the third sentence of 13, and 14 as not constituting findings of fact but rather as constituting arguments of counsel or conclusions of law; the first and third sentences of 9, the fifth sentence of 10, the second sentence of 12, and the firsthand second sentences of 13 as not being supported by the greater weight of the credible evidence herein; and the first and fourth sentences of 10 as being- irrelevant to the issues herein. Certain of Respondent's proposed findings of

fact have been adopted in this Recommended Order as follows: 1, 2, 4-10, 12-15, the second sentence of 16, 18, the second through the fourth sentences of 20, 21, 23, 25, the first sentence of 26, the first sentence of 27, 28 and 29. The remainder of Respondent's proposed findings of fact have been rejected as follows: 3 as being redundant; 17, 19, 22, and 31 as being unnecessary; the first sentences of 16 and 20 as being irrelevant; and 11, 24, the second sentences of 26 and 27, and 30 as not being supported by the greater weight of the credible evidence herein.

FINDINGS OF FACT

1. Petitioner filed with the Board of Medical Examiners an application for licensure by examination in 1983. Included with that application were original "affidavits" submitted on Petitioner's behalf by Dr. Borroto and Dr. Velez. Petitioner filed an application for licensure by endorsement in October of 1984.

   
   

2. In conjunction with his application for licensure by endorsement, Petitioner submitted photocopies of the "affidavits" submitted with his 1983 application for licensure by examination. These photocopies of Dr. Borroto's and Dr. Velez's "affidavits" were submitted by Petitioner with notarized attestations that the notary had in fact seen the originals. Petitioner knew that this was not true.

   
   

3. On December 28, 1984, Dorothy Faircloth, Executive Director of the Board of Medical Examiners (hereinafter "the Board"), sent Petitioner a letter indicating, among other things, that Petitioner had submitted photocopies rather than original letters establishing his five years of licensed medical practice. Furthermore, he was notified that his application would not be complete until the originals were received.

   
   

4. The same letter notified Petitioner that all documents to be notarized must be certified as true and correct copies of the original and stated so by the notary. Petitioner was specifically warned that the notary must see the original and copy in order to make the required statement.

   
   

5. In January of 1985, Petitioner submitted new affidavits concerning five years of licensed medical practice.

   
   

6. On August 2, 1985, Petitioner attended a meeting of the Board's Foreign Medical Graduate Committee (hereinafter "FMGC") in order to address problems with his application for licensure by endorsement. At that meeting, Petitioner failed to satisfactorily address the issues concerning affidavits attesting to his five years of licensed medical practice. The committee voted to recommend denial of Petitioner's application based upon the lack of personal knowledge of the affiants, improper notarization of the purported affidavits and fraudulent notarization of the 1983 affidavits of Dr. Borroto and Dr. Velez.

   
   

7. The Board considered Petitioner's application for licensure by endorsement on August 3, 1985, and voted to deny licensure based on the recommendations of the FMGC. An Order to that effect was filed on August 26, 1985.

   
   

8. On October 4, 1985, the FMGC reconsidered Petitioner's application, including new affidavits from Dr. Oscar R. Bravo-Campa, Dr. Juan A. Enriquez- Elesgaray and two other licensed physicians. However, the FMGC determined that the new affidavits did not overcome the problems raised during Petitioner's

   original attempt to obtain licensure by endorsement and voted to reaffirm their previous recommendation.

   
   

9. On October 5, 1985, the Board reconsidered Petitioner's application for licensure by endorsement and voted to reaffirm its previous denial. An Order to that effect was filed on March 27, 1986.

   
   

10. Dr. Pedro G. Velez's certification dated January 10, 1983, stated that he had personal knowledge of Petitioner's medical practice in Cuba from January 1971 to June 1980. At the final hearing in this cause, Dr. Velez testified that he has known Petitioner personally only since the 1980s and that he did not know him professionally in Cuba at all. Dr. Velez also testified that he left Cuba in 1966 and that he might have met Petitioner when Petitioner was a student in 1964.

    
    

11. Dr. Velez further testified that he signed a second letter in behalf of Petitioner. He testified that Petitioner had probably prepared it for his signature and that no one was present when he signed it. Specifically, the notary who attested to his signature was not present.

    
    

12. Dr. Pedro G. Velez clearly had no personal knowledge that Petitioner was licensed to practice or did practice medicine in Cuba from January 1971 through June 1980.

    
    

13. The certification completed by Dr. Esperanza Arce-Nunez, regarding Petitioner's five years of licensed medical practice and submitted by Petitioner to the Board in 1985, was not notarized as an affidavit.

    
    

14. Dr. Arce-Nunez testified that she could not remember anything about seeing Petitioner in a practice setting in 1971, one of the years covered by her certification. In fact, her only personal knowledge of Petitioner's practice of medicine in Cuba occurred in 1977.

    
    

15. Dr. Oscar R. Bravo-Campa testified that he coincided with Petitioner during annual medical rotations in Havana every year. He also testified that he could not remember when or where he saw Petitioner in a practice setting during the nine years covered by his affidavit, which specifically stated that he had contact with Petitioner in a practice setting three times a year in addition to rotations every year between 1971 and 1980. In fact, his only personal knowledge of Petitioner's practice of medicine in Cuba occurred in 1977.

    
    

16. Dr. Ignacio Coro initially testified that he knew Petitioner for six years. In fact, Petitioner has resided in this country for approximately six years, since June of 1980. Dr. Coro subsequently claimed to know Petitioner longer than six years, about thirteen years.

    
    

17. Although Dr. Coro's certification claimed he saw Petitioner in a practice setting twice a year from 1971 to 1980, he testified that he saw Petitioner only once in 1980. Dr. Coro could not remember seeing Petitioner in a practice setting during 1973. Dr. Coro further testified that the clarification statement, dated September 20, 1985 and attached to his September 9, 1985 affidavit, was included because Petitioner specifically requested it, and he did not know where the document was typed.

    
    

18. The certification prepared by Dr. Juan A. Enriquez-Elesagaray and submitted by Petitioner did not contain a notarization.

19. Petitioner testified that the letters dated September 20, 1985 and signed by Dr. Esperanza Arce-Nunez, Dr. Oscar R. Hravo-Campa, Dr. Ignacio Core, and Dr. Juan A. Enriquez- Elesgaray were each composed by the individual doctors. However, the letters are almost identical as to their wording, punctuation mistakes and misspellings.

    
    

20. Petitioner testified both that he received his medical degree in 1971 and in 1977.

    
    

21. Petitioner further testified that he allowed his application to be notarized by someone who did not witness his signature.

    
    

22. Dorothy Faircloth, Executive Director of the Board, testified that the Board initially had concerns about Petitioner's application, specifically because he submitted affidavits with attestations stating that the notary had seen the originals. The Board doubted the veracity of such a statement because the originals were in the Board's possession.

    
    

23. Ms. Faircloth also testified that the change in the Board's certification forms that took place subsequent to 1983 was an attempt to clarify and emphasize the Board's previous requirement that affiants have actual knowledge, by determining the basis and frequency of such knowledge.

    
    

24. Petitioner took his blank application (except for Petitioner's signature) to Dr. Luis Manuel Rodriguez Molina who prepares licensure application documents for Cuba doctors seeking licensure in Florida. Molina translated and/or filled in all documents, obtained signatures, and then later had his son notarize those documents even though none was actually signed in the presence of his son, the notary public. When he submitted it to the Board, Petitioner knew that he had not signed his application in front of a notary public, and, therefore, Petitioner's affidavit portion of his application was knowingly false.

    
    

25. The purported "personal knowledge" of each affiant and witness testifying as to Petitioner's five years of actual practice is that each between the years of 1971 and 1980 saw Petitioner at the equivalent of medical association meetings. These meetings were, however, also attended by students. Only Dr. Elesgaray could testify that he saw Petitioner in a practice setting twice each year.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

27. Section 458.313, Florida Statutes, regulates licensure by endorsement and requires, inter alia, that an applicant for licensure by endorsement also fulfill the requirements for licensure by examination found in Section 458.311, Florida Statutes. Section 458.311(1)(c), Florida Statutes, requires that such an applicant complete an approved internship of at least one year or at least five years of licensed practice. Section 21M- 22.07, Florida Administrative Code, provided at the time that Petitioner submitted his application for licensure by endorsement and at the time that the Board determined that application was denied as follows:

    
    

    The applicant for the licensure examina-

    tion relying on five years of licensed practice as an experience prerequisite shall submit to the Department a certificate under seal of the highest licensing authority from the state or territory or country where admitted to practice medicine, demonstrating that such applicant was in the active practice of medicine for a total of at least five years, or in lieu thereof, affidavits from two physicians attesting to the applicant's active practice of medicine for a total of at least five years.

    
    

    At the time that the Board entered its order denying Petitioner's application and at the time of the final hearing in this cause, Section 21M-22.07 provided as follows:

    
    

    The applicant for the licensure examination relying on five years of licensed practice as an experience prerequisite shall submit to the Department a certificate under seal of the highest licensing authority from the state or territory or country where admitted to practice medicine, demonstrating that such applicant was in the active practice of medicine for a total of at least five years, or in lieu thereof, affidavits from two physicians licensed to practice in Florida attesting to the applicant's active licensed practice of medicine for a total of at least five years. Such affidavits must include a statement showing the basis for the affiant's knowledge such as, but not limited to, information as to how often and under what circumstances the affiant actually observed the applicant practicing medicine.

    
    

28. The only reasons recited in the Board's order denying Petitioner's application for licensure by endorsement are that some of the affidavits submitted by Petitioner as evidence of five years of licensed practice were not based on personal knowledge, were not properly notarized, and appeared to contain an attestation which was not truthful. Since it is well settled that the burden of proof is on the applicant to show entitlement to licensure, Petitioner has failed to carry that burden. Only one physician testified that Petitioner was licensed and practicing for the requisite five years and that knowledge was restricted to knowledge obtained from seeing Petitioner in a practice setting on two occasions each year. Such evidence is simply insufficient for establishing the required five years of active practice particularly where Petitioner himself indicates in his documentation that he received his diploma in 1971 and that he received his diploma in 1977.

    
    

29. In its unilateral statement filed less than a week prior to the final hearing in this cause, Respondent alleges that one of the issues involved herein

is the denial of Petitioner's application pursuant to the disciplinary grounds listed in Section 458.331(1)(a), Florida Statutes, which prohibits attempting to obtain a license to practice medicine by fraudulent misrepresentations.

Respondent cannot raise such allegation as a basis for Petitioner's denial for two reasons: (1) that was not a reason that the Hoard preliminarily denied Petitioner's application; and (2) a finding of fraudulent misrepresentations in this cause requires specific determinations of fraud committed by the affiants who are not charged with such conduct and cannot be tried for that conduct in this case. The only possible fraudulent misrepresentation which does not require a finding of prohibited conduct by others than Petitioner involves Petitioner's testimony at the final hearing that he did not sign his application form in front of the notary public. Since it is unclear that Petitioner's application form contains false information, Respondent has failed to prove that Petitioner is guilty of attempting to obtain his license by fraud even if Respondent could raise such an allegation just prior to the final hearing in this cause.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure by endorsement.

DONE and RECOMMENDED this 13th day of January, 1987, at Tallahassee, 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 13th day of January, 1987.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Ramon S. Santos, Jr., Esquire

1000 Ponce de Leon Boulevard, Suite 303 Coral Gables, Florida 33134

M. Catherine Lannon, Esquire Allen R. Grossman, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings S. Benton, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-002967

Orders for Case No: 86-002967