STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIO NARAYANLAL AGRAWAL, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 88-1476

)

BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 29, 1988, at Tallahassee, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:

For Petitioner: Shio Narayanlal Agawal, M.D.

4140 North West 64th Street Gainesville, Florida 33612

For Respondent: Allen R. Grossman, Esquire

Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050

ISSUES AND INTRODUCTION

The issue in this case is whether the Petitioner is entitled to licensure by endorsement as a physician in the State of Florida. At the hearing, the parties stipulated that the Petitioner meets all requirements for licensure by endorsement with the exception of the residency requirements of Sections 458.311(1)(f) and 458.313(1), Florida Statutes, and Rule 21M-22.004, Florida Administrative Code.

The Petitioner testified as the only witness on his own behalf and offered nine exhibits. Each exhibit was received in evidence over the timely objections of counsel for the Board. Mrs. Dorothy Faircloth testified as the only witness for the Board. Four exhibits offered by the Board were received in evidence without objection. Upon the request of the Board, official recognition is taken of Sections 458.311 and 458.313, Florida Statutes, and Rule 21M-22.004, Florida Administrative Code.

At the conclusion of the formal hearing, the Petitioner waived the filing of a proposed recommended order. The Board was allowed 14 days within which to file a proposed recommended order. On July 8, 1988, the Board filed its proposed recommended order containing proposed findings of fact and conclusions of law. All proposed findings of fact are addressed in the appendix to this recommended order.

FINDINGS OF FACT

Based on the stipulations of the parties and on the testimony and exhibits received at the hearing, I make the following findings of fact.

1. The Petitioner is an applicant for licensure by endorsement as a physician in the State of Florida. The parties have stipulated that the Petitioner meets all requirements for such licensure other than the residency requirements.

   
   

2. The Petitioner served as a "Resident 2" in medicine at the Westminster Hospital in London, Ontario, from July 27, 1976, to June 30, 1977. During the time period from July 1976 to June 1977, the residency program at Westminster Hospital was not approved by the American Medical Association. During the time period from July 1976 to June 1977, the residency program at Westminster Hospital was not approved by the Royal College of Physicians and Surgeons of Canada.

   
   

3. There is no evidence that the Petitioner completed any other approved one year residency program.

   
   

4. The Petitioner is a diplomate certified in internal medicine by the American Board of Internal Medicine. The American Board of Internal Medicine permits certification based on experience without requiring completion of a one year residency approved by the American Medical Association.

   
   

   The Petitioner is licensed as a physician by the State of Michigan.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this case. Sec. 120.57(1), Fla. Stat.

   
   

6. The Petitioner, as an applicant for licensure, carries the burden of proof to establish his eligibility for the license he seeks. See Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); and Rule 28-6.008, Florida Administrative Code.

   
   

7. Section 458.313, Florida Statutes, sets forth the requirements for medical licensure by endorsement. Subsection (1) of that statutory provision requires an applicant to demonstrate that he has met the qualifications for licensure set forth in Section 458.311(1)(b)-(f), Florida Statutes. Section 458.311(1)(f), Florida Statutes, requires an applicant to have completed an approved residency of at least one year. Rule 21M-22.004, Florida Administrative Code, sets forth the Board's interpretation of the approved residency requirement. The rule requires that such training be for a period of not less than twelve calendar months and that it be received in a hospital "which has been approved for the training and teaching of physicians by the Council of Medical Education and Hospitals of the American Medical Association..."

8. The residency program in which the Petitioner participated does not meet the requirements of the Board's rule, because it lasted for a period of only eleven months and because it was at a hospital which at that time was not approved by the Council of Medical Education and Hospitals of the American Medical Association. Accordingly, the evidence in this case is insufficient to establish that the Petitioner is eligible for licensure by endorsement as a physician in the State of Florida.

RECOMMENDATION

For all of the foregoing reasons, it is recommended that the Board of Medicine issue a final order in this case denying the Petitioner's application for licensure by endorsement as a physician in the State of Florida.

DONE AND ENTERED this 14th day of July, 1988, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 14th day of July, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1476

The following are my specific rulings on all of the proposed findings of fact submitted by the parties.

Findings submitted by Petitioner (None submitted by Petitioner)

Findings submitted by Respondent

Paragraph 1: Accepted.

Paragraph 2: Covered in introductory paragraphs. Paragraphs 3, 4, and 5: Accepted.

Paragraph 6: Omitted as subordinate and unnecessary details. Paragraphs 7, 8, 9, and 10: Accepted.

Paragraph 11: Omitted as repetitious.

COPIES FURNISHED:

Shio Narayanlal Agrawal, M.D. 4140 North West 64th Street Gainesville, Florida 33612

Allen R. Grossman, Esquire Assistant Attorney General Department of Legal Affairs Room 1603, The Capitol Tallahassee, Florida 32399-1050

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-001476

Orders for Case No: 88-001476