STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEON CESAR DELGADILLO ARGUELLO, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6654

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 24 and 25, 1993, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Leon Cesar Delgadillo Arguello, pro se

10309 Southwest 24th Street, Apt. 102

Miami, Florida 33165-7955

For Respondent: Edwin A. Bayo, Esquire

Assistant Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

Whether Petitioner's application for licensure as a physician assistant should be denied on the grounds set forth in the order of the Department of Professional Regulation, Board of Medicine, which was signed on August 15, 1992, and filed with the Agency Clerk on August 26, 1992.

PRELIMINARY STATEMENT

By order signed August 15, 1992, and filed with the Agency Clerk on August 26, 1992, (hereinafter referred to as the "Notice of Denial" or "Notice"), the Department of Professional Regulation, Board of Medicine (hereinafter referred to as the "Board"), notified Petitioner of its intention to deny his application to be certified as a physician assistant pursuant to Section 458.347(7)(b), Florida Statutes. In the Notice, the Board indicated that its proposed action was based upon the following grounds:

1. Your failure to submit a properly completed application.

2. You have demonstrated a lack of good moral character based upon your testimony and inconsistent and evasive answers.

3. The Board has also determined that based upon review of your application and documentation, and due to the extended length of time since you first worked in the field

   of medicine, and because of the length of time since any significant medical education or training has taken place, you have not established that you are currently able to practice as a physician assistant with reasonable skill and safety to the public

   
   

   Petitioner requested a formal administrative hearing on the Board's proposed denial of his application. On November 5, 1992, the case was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal administrative hearing Petitioner had requested.

   
   

   The final hearing in this case was originally scheduled for March 3 and 4, 1993. At the request of both parties, the hearing was continued and rescheduled to commence on March 24, 1993.

   
   

   Prior to the commencement of the hearing, the parties filed proposed prehearing stipulations. In their proposed prehearing stipulations, both Petitioner and the Board expressed their willingness to stipulate to the following:

   
   

   1. Petitioner applied for licensure as a Physician Assistant within the time limits prescribed by Section 458.347(7)(b), F.S.

   2. Petitioner contacted Representative Morse to obtain his help in completing his application.

   3. Representative Morse spoke to Ms. Bobbie Sawner on or about May 19, 1992 regarding Petitioner's application.

   4. Ms. Sawner sent a fax to Representative Morse's office on May 19, 1992. A copy of said fax is in the file.

   5. Petitioner resubmitted portions of his application to the Board. These were sent together with a cover letter from Representative Morse's office. Copies of these documents are in the file.

The final hearing in the instant case commenced on March 24, 1993, as scheduled. Interpreter services at the hearing were provided by Jorge Angel. A total of eight witnesses testified at the hearing: Jose Mayorga; Dr. Raphael Vega Gonzalez; Sergio Mario Montelegre; Petitioner's wife, Martha Delgadillo; Petitioner; Dorothy Faircloth, Executive Director of the Board; and Dr. Gary Winchester, a member of the Board and chairman of its Physician Assistant Committee. 1/ In addition to the testimony of these witnesses, a total of four exhibits (Petitioner's Exhibits 1 and 2 and Respondent's Exhibits 1 and 2) were offered and received into evidence.

At the close of the evidentiary portion of the hearing on March 25, 1993, the Hearing Officer advised the parties on the record that post-hearing

submittals had to be filed no later than twenty days following the Hearing Officer's receipt of the hearing transcript. The Hearing Officer received the hearing transcript on April 16, 1993.

Petitioner and the Board filed their post-hearing submittals on May 3, 1993, and May 7, 1993, respectively. The Department's post-hearing submittal contains what are labeled as "findings of fact." Petitioner's post-hearing submittal does not; it consists exclusively of argument. 2/

The parties' post-hearing submittals have been carefully considered. The "findings of fact" proposed by the Board in its post-hearing submittal are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made to supplement the parties' factual stipulations:

Petitioner's Pre-Immigration Activities In Nicaragua

1. Petitioner is a native of Nicaragua.

   
   

2. He obtained his medical education at the National University of Nicaragua (hereinafter referred to as the "University").

   
   

3. He graduated from the University in 1961 with a Doctor of Medicine and Surgery degree.

   
   

4. Petitioner later received a Bachelor of Arts degree in psychology from Nicaragua's Central American University.

   
   

5. Thereafter, he completed law school in Nicaragua; however, because he was an outspoken critic of the Sandinista government, he did not receive his law degree.

   
   

6. Petitioner practiced medicine in Nicaragua for more than 26 years before immigrating to the United States for political reasons 3/ on March 10, 1988.

   
   

7. His reputation as a physician in Nicaragua was excellent. Moreover, he provided at his "White Cross" (also referred to herein as "Cruz Blanca") clinic in the city of Managua, which he established in 1972, free medical services to those who were unable to pay for such services. He also volunteered his time and services to various organizations such as the Nicaraguan Professional Boxing Association, of which he was at one time the President, and the Nicaraguan national baseball team.

   
   

   Petitioner's Application For Licensure As A Physician

   
   

8. Approximately 19 months after immigrating to the United States, Petitioner submitted to the Board an application for licensure as a physician pursuant to Section 458.311(10), Florida Statutes.

   
   

9. On the application form, under the heading "Medical Education," Petitioner indicated that he had studied at the University's Leon, Nicaragua campus from April 1, 1952, to January 30, 1953, and at the University's Managua,

   Nicaragua campus from April 1, 1958, to January 30, 1959. He provided no other information under this heading.

   
   

10. Under the heading "Practice/Employment," Petitioner indicated that from January 1, 1962, to October 30, 1972, he had seen "[p]rivate [p]atien[t]s" at his "[o]wn [c]linic" in Managua and that from November 1, 1972, to February 20, 1988, he had been the "Director of Internal and Famil[y] Medicine" of the "White Cross of Nicaragua" in Managua. He provided no other information under this heading.

    
    

11. On December 1, 1989, the Board sent Petitioner written notification that his application was incomplete for the following reasons, among others:

    
    

    The World Directory of Medical Schools indicates duration of studies six years with one year being a rotating internship and one year social service before you are awarded the Doctor of Medicine and Surgery and registration with the Ministry of Public Health you may engage in private practice.

    
    

    In the form of a sworn affidavit please explain or answer the following questions regarding your application:

    
    

    1. It appears your studies only lasted 18 mos. (4-52 to 1-30-53) and (4-1-58 to

       1-10-59).

    2. It is not apparent you completed the required 1 yr social service.

    3. Application indicates you were in medical school from 4-1-58 to 1-1-59 and in residency at General Hospital from 1-1-59 to 12-1-59. Please explain the apparent discrepancy. . . .

       7. Account for the following time: 2-2-88 to the present. . . .

       
       

12. Petitioner responded by writing the Board a letter. The Board received the letter, as well as the attachments Petitioner sent along with it, on January 6, 1990.

13. Petitioner's letter provided in part as follows: Following your letter of December 1, 1989,

    here are my answers to the questions made to

    me in order to complete my Application No. 88, within the framework of the law No. 458.311, "Licensure by examination."

    1. SEE ENCLOSED ATTACH[MENT] ONE (1).- Studies: 4-1-52 to 12-31-58.

    2. I enclose evidence on intense medical practice; when I graduated there was not Social Service for graduated medicine students, however, in addition to the rotatory practice I have 2 internship years. See enclosed Attach[ments] two (2) and three (3)

    3. Residency General Hospital from 1-1-59 to

       12-31-59. See Enclosed attach[ments] (1) and (3). . . .

       7. Since 2-2-88 I live in Miami without practicing my profession; presently I am doing some research and writing two recently finished books. From Miami I am also managing the medical institution "CRUZ BLANCA," of which I am the Director - see enclosed Certificate-; the latter, together with

       other data-evidence confirms my medical professional practice since I graduated. -See Enclosed attach[ments] (4) and (3). . . .

       
       

       I hope I have completed all the information requested; I will be waiting to hear from you for any other point th[at] may arise regarding my request. Thanks.

       
       

14. Attachment (1) referred to in Petitioner's letter was a written statement by Petitioner in which he stated the following:

    
    

    The Medical Education in Nicaragua was of seven years and one year of practice in the General Hospital.

    The Medical School had two locations respectively in Leon and Managua.

    My Medical Education was from April 1, 1952, to Dec. 31, 1958 = seven years.

    
    

    MEDICAL EDUCATION

    
    

    Name of Medical School: Medical School of the National University of Nicaragua:

    
    

    LEON- Nicaragua
    From: April 1, 1952	To: January 30,	1953
    April 1, 1953	To: January 30,	1954
    April 1, 1954	To: January 30,	1955
    April 1, 1955	To: January 30,	1956
    April 1, 1956	To: January 30,	1957
    April 1, 1957	To: January 30,	1958

    
    

    Managua- Nicaragua

    
    

    From: April 1, 1958 To: December 31, 1958

    
    

    There are two months of vacations : February and March, every year.

    
    

    Leon and Managua Nicaragua are the same University in different localities. My INTERNSHIP: General Hospital of Managua from 1-1-59 to 12-31-59.

    
    

15. On January 10, 1990, the Board sent Petitioner written notification that his application was still incomplete. In this written notification, the

    Board requested, among other things, that Petitioner have his letter, "retyped in the form of a sworn affidavit."

    
    

16. Petitioner complied with this request and resubmitted the letter, in affidavit form, to the Board, along with other materials. Among the other materials he sent to the Board was a certificate from the Secretary of the Board of Directors of Cruz Blanca, which provided as follows:

    
    

    The undersigned Secretary of the Board of Directors of the Cruz Blanca Institution of Medical Social Service, established according to the laws of the Republic of Nicaragua, issues these presents to certify that Dr.

    Leon Cesar Delgadillo was our founder in the year nineteen hundred seventy-two and that he has acted as our Medical Director and Executive President of the Board of Directors since then, being also in charge of the responsibility of Internal Medicine. Dr. Leon Cesar Delgadillo is a well-known and experienced doctor in the Republic of Nicaragua. He attended seven years of academic studies at the National University

    of Nicaragua and one year as intern at the General Hospital of Managua which was destroyed by a devastating earthquake in nineteen hundred and seventy-two. He then became an intern at the Social Security Hospital for one more year followed by another year of residency at the Psychiatric Hospital of Managua, Nicaragua. At that time the Medical Social Service did not exist, but Dr. Delgadillo who has a great human sensibility has practiced Social Medicine at Cruz Blanca. His License to practice both private and institutionally as well as his diploma are legally registered at the Ministry of Health. Dr. Delgadillo is also author of "La Dieta Feliz" (The Happy Diet)

    a best seller in Nicaragua and Central America and presently he has finished writing two books which will soon be published "VIDA Y SALUD CON FISIODINAMIA" (LIFE AND HEALTH WITH

    PHYSIODYNAMICA) and an educational novel of intense drama about AIDS titled "INFIERNO EN LA TIERRA" (HELL ON EARTH).

    
    

    Due to political reasons, he has lived in the United States since February 2, 1988, but from there he directs our Institution and has been busy there, in the USA, with the abovementioned books of which he is the author. His degree of Medicine was signed by the President of the Republic because that was the law and practice at that time.

17. On February 19, 1990, the Board, having determined that Petitioner had "substantially complied with the requirements set forth in Section 458.311(10)(a), Florida Statutes," and that it was "likely that [Petitioner would] be able to fully comply with all the requirements," issued an order granting "conditional certification of the application of [Petitioner] pursuant to Section 458.311(10)(a), Florida Statutes," thereby authorizing Petitioner to enroll in the University of Miami's Comprehensive Medical Review Program, which was designed to prepare foreign medical school graduates to take the FLEX licensure examination.

    
    

18. Petitioner subsequently enrolled in and successfully completed the program.

    
    

19. In response to a letter from the Board indicating what he needed to do to "fully comply with all of the requirements of Section 458.311(10)(a), Florida Statutes," Petitioner sent the Board a letter, dated March 26, 1990, in which he stated, among other things, the "corre[c]t date [he] left [his] country [was] 3- 10-88."

    
    

20. On July 10, 1990, Petitioner sent another letter to the Board. In his letter, he stated, among other things, the following:

    
    

    My date and port of entry into E.U. is Miami, Mar. 10-86 and the same day arrived [in] San Francisco.

    I am newspaper reporter. (see page 3 Immigration Statement).

    
    

21. Petitioner enclosed page 3 of the "Immigration Statement" to which he referred in his letter. On this page of the "Immigration Statement," Petitioner had indicated that he was a "travelling correspondent of the news radio 'El Momemto de Radio Mundial de Nicaragua.'"

    
    

22. On July 26, 1990, the Board sent Petitioner a letter advising him that he had to submit the following material in order to complete his application file:

    
    

    In the form of a sworn affidavit please account for your activities from the date [you] entered the United States until the present[. Y]ou[r] application and other supporting documents contain discrepancies regarding the exact date, port of entry and your activities in the United [S]tates. INS verification indicates date of entry of 3/10/86. Your letter of July 10, 1990 is not acceptable.

    
    

23. In response to this letter, Petitioner submitted to the Board a sworn affidavit, dated August 2, 1990, in which he stated the following:

    
    

    Since I entered [t]he United States [o]n 03-10-88, I have been working as a foreign journalist for a Nicaraguan news agency.

    
    

    On this date I entered into the United States by the International Airport in Miami,

    Florida. This information is in the Declaration signed by me on March 28th of 1988 and filed in your office.

    
    

24. Petitioner applied to take the December 1990 FLEX examination. He submitted the completed application and a $500.00 examination fee to the Board. In a letter, dated October 19, 1990, accompanying the fee, Petitioner reiterated that he was working as a foreign journalist for a news agency.

    
    

25. On November 7, 1990, the Board sent Petitioner a letter which contained the following advisement:

    
    

    Pursuant to the Final Order dated February 19, 1990 the following material is required to complete your application file. This material must be received in this office no later than November 14, 1990.

    
    

    The Office of Naturalization and Immigration verifies your date of entry as March 10, 1986; but you give your date of entry as March 10, 1988. Please have INS submit to this office a verification of your exact date of entry into the United States.

    
    

    Information requested above must be received in this office on or before 11/14/90 or you will not be allowed to take the December 1990 FLEX EXAM.

    
    

26. Petitioner timely furnished the Board with documentation from the Immigration and Naturalization Service verifying that he entered the United States on March 10, 1988.

    
    

27. On November 21, 1990, the Board, through its Executive Director, sent Petitioner the following letter:

    
    

    This is to advise you that your application

    to take the Course developed by the University of Miami as directed in Chapter 89-374, Laws of Florida, is now complete.

    
    

    Based on your demonstration of full compliance with the requirements of Section 458.311(10)(a), F.S., as amended by 89-541, Laws of Florida, your application will be presented to the Board of Medicine for full certification for the Course at a meeting of the Board November 30,- December 2, 1990. You will not be required to be in attendance at this meeting. Should you have any questions whatsoever, please do not hesitate to contact this office.

    
    

28. Petitioner took and failed the December 1990 FLEX examination. He contested his failing grade in a letter received by the Board on March 20, 1991. In his letter, he stated that he was a "Medical Doctor, Ps[y]chologist and

    Lawyer of Nicaragua" and he accused the Board of discriminating against him and infringing upon his civil rights.

    
    

29. Petitioner's examination challenge was referred by the Board to the Division of Administrative Hearings, but was subsequently returned to the Board with the recommendation that the Board dismiss Petitioner's challenge.

    
    

    Petitioner's Application For Certification As A Physician Assistant

    
    

30. On or about June 21, 1991, Petitioner filled out an Examination Application for Certification as a Physician Assistant (hereinafter referred to as the "Application"). He thereafter submitted the Application, along with a

    $400.00 application fee, to the Board. The Board received the Application and fee on June 24, 1991.

    
    

31. On the first page of the Application, Petitioner indicated, among other things, that he had received his Doctor of Medicine and Surgery degree from the University on August 11, 1961.

    
    

32. On the second page of the Application, Petitioner indicated that on July 1, 1990, his place of residence was Miami, Florida. He further indicated that he wished to be issued a temporary certificate.

    
    

33. In response to the question on page 2 of the Application, "Did you attend a college or university," Petitioner answered "no."

    
    

34. In response to the question on page 2 of the Application, "Did you receive a degree other than an M.D., to include undergraduate degree," Petitioner also answered "no."

    
    

35. On pages 2 and 10 of the Application, Petitioner listed "all places of residence (where lived) during all periods of medical school" as follows:

    
    

    Leon, Leon Nicaragua from April 1, 1952 to January 30, 1958

    
    

    Managua, Managua, Nicaragua from April 1, 1958 to Dec. 31, 1958

    
    

    Miam[i], Florida from Feb. 24, 1990 to Nov. 20, 1990.

    
    

    February 24, 1990, to November 1990, was the period that Petitioner attended the University of Miami's Comprehensive Medical Review Program.

    
    

36. Petitioner further indicated on pages 2 and 10 of the Application that had attended "medical school" at the Leon campus of the University from April 1, 1952, to January 30, 1958, at the Managua campus of the University from April 1, 1958, to December 31, 1958, and at the University of Miami School of Medicine from February 24, 1990, to November 20, 1990.

    
    

37. On pages 2 and 3 of the application form, applicants were asked to provide information regarding their "Postgraduate Training" and "Practice Employment." They were instructed as follows:

    Account for all time from date of graduation from medical school to present. Do not leave out any time.

    
    

38. Under "Postgraduate Training" applicants were requested to "[l]ist in chronological order from date of graduation to present date, all postgraduate training (Internship, Residency, Fellowship)." Petitioner indicated that he was in an internship program at the General Hospital of Managua from January 1, 1959, to December 31, 1959, a residency program at the Social Security Hospital of Managua from January 1, 1960, to December 31, 1960, and another residency program at the Mental Health Hospital in Managua from January 1, 1961, to December 31, 1961.

    
    

39. Under "Practice Employment" applicants were requested to "[l]ist in chronological order from date of graduation to present date, all practice experience and/or employment." Petitioner indicated that from November 1, 1972, to February 20, 1988, he was the "Director of Familiar Medicine" at the "White Cross of Nicaragua" in Managua. He listed no other "practice experience and/or employment."

    
    

40. On page 8 of the application form, applicants were asked to list their "clerkship(s)" and "all places of residence (where lived) during clerkship(s)." Petitioner indicated that he lived in Managua from January 1, 1959, to December 31, 1959, while in a University-supervised internship program at the General Hospital of Managua, that he lived in Managua from January 1, 1960, to December 31, 1960, while in a University-supervised residency program at the Social Security Hospital of Managua, that he lived in Managua from January 1, 1961 to December 31, 1961, while in a University-supervised residency program at the Mental Health Hospital, and that he lived in Managua from November 1, 1972, to December 20, 1988, while he was the "Director of Medicine Familiar" at the "White Cro[s]s of Nicaragua."

    
    

41. On August 2, 1991, the Board's Physician Assistant Section (hereinafter referred to as the "Section") sent Petitioner a letter advising him that his Application was incomplete because he failed to submit the following:

    
    

    An accounting of your activities for the following period(s) of time: clerkships from 12/61 to 11/72, 2/88 to 12/88, 12/88 to 2/90, page 3 application practice employment 2/88 to present. page 2 application did you attend a college or university you marked NO explain. page 4 application question 8 you marked NO correct and resubmit.

    
    

42. Petitioner responded to this letter by submitting to the Section an affidavit dated August 7, 1991, in which he stated the following:

    
    

    1. Page 2 application; I attend at the Universidad Nacional Autonoma de Nicaragua, UNAN. [University].- Leon and Managua, Nicaragua April 1, 52 to December 31, 58. Also I attend 5 years Universidad Centro- Americana, UCA [Central American University] degree Psichologist.

    2. Clerkships: from 12/61 to 11/72 own private medicine. From 2/88, 12/88 to 2/90,

       2/88 to present: In E.U.; don't work in medicine.

    3. Question 8, page 4 application question:

       since I live in E.U. from 2/88 to present don't work in Medicine for do not have license of M.D.

       
       

43. On August 26, 1991, the Section sent Petitioner a letter advising him that his Application was still incomplete. The letter further provided as follows:

    
    

    1. In your affidavit of August 7, 1991 (copy attached) you indicated that you attended Universidad Centro-Americana, UCA for 5 years and obtained a degree in Psichologist. Please submit diploma and transcripts and translations of transcripts, notarized as stated above, dates of attendance and where the university is located.

    2. Please resubmit pages 8 and 9 (attached) listing only core clerkships while attending medical school at Universidad Nacional Autonoma de Nicaragua UNAN. Be specific with dates, location of hospital, institution or individual where clerkship was performed or supervised. List affiliate University/College.

    3. We need one additional acceptable source of documentation of Florida residency on July 1, 1990, notarized as stated above. It must verify residency covering the period of July 1, 1990.

    4. Please account for your activities for the following periods of time, listing in chronological order from date of graduation to present date, including all practice experience and/or employment or unemployment:

       From February 20, 1988 to present.

       
       

44. Petitioner responded by letter dated August 29, 1991. In his letter, Petitioner argued that it was not necessary for him to provide any additional information regarding his psychology degree because such information was "impertinent or irrelevant." He further contended that he had "sufficiently explained" the "other points [in the Section's August 26, 1991] letter (2,3,4)." In addition, he invited the Section, if it wanted more detailed information about his past, to examine the materials in his physician licensure application file (hereinafter referred to as "File No. 88").

    
    

45. The Section followed Petitioner's suggestion and reviewed his File No.

    88.

    
    

46. Not having received any response to his August 29, 1991, letter,

    Petitioner, on September 23, 1991, sent the Section another letter complaining about the "harassment and intimidation" to which, according to him, he was being subjected by the Section.

47. The Section, on October 15, 1991, wrote to Petitioner and advised him that he needed to do the following to complete his Application:

    
    

    1. In your affidavit of August 7, 1991 and in your "declaration" notarized on March 26, 1990, you stated that you had completed a Bachelors degree in Psychology; and stated that you attended Jesuit University in Nicaragua where you "finished the school of law." Please substantiate these statements with the appropriate documentation and dates of attendance.

    2. You have submitted a certificate issued December 15, 1989 from the Nicaraguan Board of Pharmacy indicating your registration in their books. Please send a notarized copy of the license and/or certificate required to prescribe drugs in Nicaragua.

    3. In your declaration of March 26, 1990, you state that you are enclosing several documents, none of which were enclosed. Among those documents was a "medical file of U.C. Davis (University of California, Davis) Medical Center of Sacremento of March 19, 1988." Please provide all reports of treatment and/or evaluation from the Medical Center of Sacremento to include diagnosis and prognosis.

    4. We need one additional source of information of Florida residency on July 1, 1990, notarized as stated above. It must verify residency covering the period of July 1, 1990.

    5. Please resubmit pages 8 and 9 (enclosed) listing only core clerkships and rotations while attending medical school at Universidad Autonoma de Nicaragua. Be specific with dates, location of hospital, institution or individual where the clerkships was performed or supervised. List affiliate University or College.

    6. You have failed to respond adequately to questions concerning your activities from the time of your graduation from medical school until the present time. On page 3 of the

       application form (enclosed) please complete the information under "practice experience" as instructed. List all practice experience and/or employment, including month, day and year of practice and/or employment. Do not leave out any period of time. Your application will not be considered complete until you have adequately explained your activities from graduation until the present.

    7. You have reported your date of entry into the United States as a Nicaraguan exile as: March 10, 1986; February 6, 1988; February

       23, 1987; February 2, 1988 and March 10, 1988, in letters and affidavits prepared by you. Please explain these discrepancies.

       
       

       Also we have received two conflicting statements from the Immigration and Naturalization Service regarding your date of entry as an exile. It will be necessary for you to request an explanation from the Immigration and Naturalization Service to clarify their conflicting documents.

       
       

48. Petitioner responded by letter dated October 23, 1991. In his letter, he stated the following:

    
    

    I see you have my file 88 of the Board of Medicine. I am attempting to reconcile your accustomed hostility and for this reason I send you letter Nov. 21/90 of "full compliance from Dorothy Faircloth, Executive Director, Florida Board of Medicine.

    
    

    Please, you think, think, think . . . and you don't contradict and the Board of Medicine and its Executive Director. For politeness I send you "personal documents" and I feel you are intimidateing to me or also You are inciteing to me at to lie.

    
    

    Documents:

    Letter Florida Board of Medicine 11/21/90 Original FPL's Bill Jul. Aug. -Ju Jul. -May. Jun., 90

    Medical File of U.C. Davis . . . Sacramento

    . . . "PRIVATE"

    Two Verifications of Information from Migration . . . Below Signed for Richard B. Smith (on Yellow) District Director. - You don't have jurisdiction in this. (Abuse of authority).

    
    

    -Bachelors in Psychology and "finihes the school of law" degree is impertinent and irrelevant to Physician Assistant Section and all this in Nicaragua.

    -I have only certificate from the Nic. Board of Pharmacy.

    -Clerkship only General Hospital of Managua, Social Security Hospital, and Mental Health Hospital. After private medicine all time. You are harassing to me, intimidateing and abuseing of my civil rights and I will have to go at the Judge; You are having to me damage. 4/

49. On November 14, 1991, the Section sent Petitioner a letter advising him that his application was still incomplete and repeating the requests made in numbered paragraphs 1, 5, 6 and 7 of its October 15, 1991, letter to Petitioner. The letter, like the previous letters the Section had sent him, was unsigned.

    
    

50. Petitioner responded by letter dated November 18, 1991, in which he stated the following:

    
    

    I have full my file by Physician Assistant and please, I don't want "nobody else" your anonymous letter, without signature and full of bureaucratic harassment.

    
    

    My rights I will debate it in the instance of Law that it concern.

    
    

    At the bottom of the letter, under Petitioner's signature, was a "Postscript," dated November 20, 1991, which read as follows:

    
    

    I send you fotocopy of Immigration and Naturalization service; "fast" you will have original from Immigration by mail.

    You don't have jurisdiction on matter of Immigration and your hostility is it "abuse of authority" and also is illegal.

    You infringe my civil rights.

    "We have to avoid the risorgimento of the Nazism and the Ku Klux Klan (KKK) in all the sectors," this involve: Racialism, Prepotency, irrationality, intolerance, perversion, terrorism, intimidation . . . etc. and it is crime of hate (Law by crime of hate

    F.S. 1989)

    
    

51. The Section next communicated with Petitioner by letter dated December 17, 1991. The letter advised Petitioner that he needed to do the following to complete his application:

    
    

    1. Translation of medical school diploma, prepared as instructed: The translation of the diploma is a copy and is not notarized as stated above; the translation does not indicate that it was done by a certified translator. Translations must be done by a certified translator and bear his seal or statement of certification. Please provide the translator with a copy of criteria for translation (enclosed).

    2. Translations or transcripts, prepared as instructed: The notary did not affix the seal to the translation of the transcripts. The translation is a copy and as such must be notarized as is stated above.

    3. On page 2 of the application under Medical Education your dates of attendance at the University of Nicaragua do not agree with your previous application, (exile file #88).

       PA Application: Med School: 4/1/52-1/30/58 Exile File #88: " " 4/1/52-1/30/53

       and 4/1/58-1/30/59 Please clarify these discrepancies in affidavit form.

    4. Please resubmit pages 8 and 9 of the application to indicate your core clinical clerkships only. List specific date(s), type of rotation, and name and location of hospital, institution or individual where clerkship was performed or supervised. List affiliate University/College.

    5. An accounting of your activities for the following period(s) of time: 12/31/61 to 11/1/72. List all practice experience and/or employment, do not leave out any period of time.

    6. The Aids certificate submitted does not indicate AMA approved category I. Please submit proof of AMA Category I approved training, or request in affidavit form a 6 month extension in order to obtain AMA approved Category I course.

       
       

52. Petitioner responded by affidavit dated December 31, 1991, to which he appended various documents, including a revised version of pages 8 and 9 of his Application as requested in numbered paragraph 4 of the Section's December 17, 1991, letter. In the affidavit, Petitioner stated the following:

    
    

    1. Translation of medical school diploma, prepared as instructed: notarized, the translation was done by a certified translator and it has or bear his seal and statement of certification. There are in Exile file No. 88 and my file for Certification as a Physician Assistant in each one, respective translation of the diploma "full criteria of law for translation." Translations was prepared by a Certified translator of Professional Traslating Services, Inc.- Suite 540, Courthouse Tower Building.- 44 West Flaguer Street.- Miami, Florida 33130 Phone: (305)

       371-7887

       I ask for please, send to me fotocopy of each one, file No. 88 and PA application, in order to delimitate responsibility.

    2. Translations of transcripts, prepared as instructed: The notary affixed the seal to the translation of the transcripts and it was notarized. Please, send to me fotocopy of each one, file No. 88 and PA application to delimitate responsibility.

    3. The discrepancies of dates under Medical Education of attendance at the University of Nicaragua was clarified on letter notarized January 19, 1990 in reply letter of December

       1, 1989 by William R. Flynn, Senior Clerk, Department of Professional Regulation Board of Medicine, paragraph No. 1 file No. 88 (attached fotocopy) and affidavit of the 7th day of August, 1991 in reply your letter of the august 2, 1991 paragraph No. 1, that have your OK on the left margin (to see attached fotocopy). Confirmation Date: Med. School, April 1, 1952 to December 31, 1958.- Application Physician Assistant Section.

       These discrepancies are result of mistake in the transcription and dates and numbers at the remote time and distance and it was in opportune moment clarified.

       But it is more important to appoint that the application for certification as a Physician Assistant of the 21 day of June, 1991 page 2 and 10 they are with its correct dates and that your letter 12/17/91 paragraph 3 are free Objections

    4. I am incorporating as pages 3 and 4 in this affidavit the corresponding pages 8 and

       9 of the application to indicate my core clinical clerkships; really this question was formulate with confused and ambiguous terms. My application is concrete and certain, page "8" application for certification as Physician Assistant.

    5. From 12/31/61 to 11/1/72 own private medicine; See affidavit of the 7th day of August, 1991, attached fotocopy.

    6. The AIDS certificate of Miami Dade Community Dade, Medical Center Campus for Allied Health Professions. Attached program; You will receive direct information of the

       Miami-Dade Community College Med. Center Campus.

       
       

53. Petitioner, after receiving the Section's December 17, 1991, letter, also sent a letter to Vytas Urba, an assistant general counsel with the Department of Professional Regulation. In his letter, he accused the Section of acting with "madness and hatred" and claimed that he was the victim of a "conspiracy" to violate his civil rights that had resulted in damages of

    $99,999.99.

    
    

54. By affidavit dated January 14, 1992, Petitioner requested that the Section give him a "6 month extension in order to obtain an AMA, AIDS certificate approved Category I course." Among the documents appended to the affidavit was a translation of his "Medical School Diploma."

    
    

55. On January 28, 1992, the Section sent Petitioner a letter, which indicated that "the following [was] necessary to complete [his] application:"

    
    

    1. While you have stated on several occasions that you have not practiced medicine since arriving in the United States, you have not responded to questions regarding your activity or employment. It is not enough to merely

       state that you are not practicing medicine, you must account for your activities from 3/10/88 until the present. You have previously stated that you are a correspondent for Nicaraguan newspaper and radio station but have not substantiated this employment with any information. This will be the THIRD REQUEST for you to account for your activities from 3/10/88 until the present. Please complete the enclosed page 3 of the application as instructed. You must identify, by address and location the names of all employers, or state in affidavit form that you

       have not been employed in any way since 3/10/88.

    2. You have previously stated that in the period from 12/61 to 11/72 that you had a private practice in Managua. You have not identified what type of practice this was. What specialty, or field of medicine did you practice during this time.

    3. Your affidavit of 7 August 1991 states that you attended for 5 years the Universidad Centro-Americana, and that you received a degree of "Psichologist" from this school. Please provide the location of this school and the dates of your attendance. Your previous response that this information is "irrelevant" is not acceptable. You have voluntarily submitted this affidavit, which conflicts with other statements that you have made regarding your activities and you must verify the location of the school and dates of attendance.

    4. The translation of your diploma recently submitted is returned; this document is obviously a copy. Any copy must be notarized as is stated above. Your previous application does not contain a copy of this translation that is notarized as required. Please resubmit a translation of your diploma that is either an original document or properly notarized. The translation of your transcripts was also a copy that was not notarized however there was an acceptable copy in your previous application.

    5. With regard to HIV/AIDS training your request for a six month extension is accepted. The instructions provided with the application clearly state that this training must be AMA Category I approved training. This information should be requested of the provider prior to taking any HIV/AIDS course. You may enquire of Miami Dade Community College as to whether they are authorized to provide AMA Category I training. If they can provide you with verification of this course being AMA Category I approved, the training

       will be accepted upon receipt of this verification.

       
       

56. Petitioner responded by affidavit dated February 10, 1992, in which he stated the following:

    
    

    1. There are in file No. 88 letter January 19, 90 . . . . notarized DOCUMENTS with my activities from 3/10/88 until the present, question 1 and the period from 12/61 to 11/72 my private practice in Managua, question 2 (attached); also affidavit 22th day of August, 1990 and notarized letter January 19, 1990 (attached fotocopy) over-marked on green.

       Next page I ratify and complement question number 1 and I state that in the period from 12/61 to 11/72 I practiced Familiar Medicine, question number 2.

    2. I attended for 5 years at the Universidad Centro-Americana, - from 1969 to 1972, this University in Managua, Nicaragua, C.A. (Re:

       question number 3). - Psichology School.

    3. I resubmit (THIRD TIME) my diploma notarized as required; please send me two previous documents submitted.

    4. I requested at the Florida Board of Medicine, Physician Assistant Section through Cecilia Abrahansem (Director) . . . to eliminate the unlawful monopoly with HIV/AIDS AMA Category I course.

    5. I am foreign journalist for "El Momento" Nicaraguan news agency, Radioperiodico El Momento, RADIO MUNDIAL, Managua, Nicaragua. This activity until the present. (From 1/30/88 to present)

       
       

       Among the documents appended to the affidavit was a revised version of page 3 of Petitioner's Application, which reflected, in addition to his previously disclosed employment with the "White Cross" as its "Director of Familiar Medicine" from November 11, 1972, to February 20, 1998, his employment as a "Foreign Journalist" with "El Momemto Nicaraguan news agency" from "1/30/88 To: the present."

       
       

57. By letter dated June 4, 1992, Petitioner was directed to appear before the Physician Assistant Committee of the Board (hereinafter referred to as the "Committee") at its June 12, 1992, meeting.

    
    

58. Petitioner appeared before the Committee at its June 12, 1992, meeting as directed.

    
    

59. Inasmuch as he has substantial difficulty understanding, and communicating effectively in, English, the Committee provided Petitioner with the services of an interpreter.

    
    

60. Members of the Committee asked Petitioner various questions. The questions were asked in English and translated to Spanish, Petitioner's native

    language, by the interpreter. Petitioner responded in Spanish. The interpreter translated his responses to English for the benefit of the Committee.

    
    

61. Asked when he had arrived in the United States, Petitioner responded, "March 10, 1988."

    
    

62. He was then asked when he had last practiced medicine. His initial response was, "in Managua, Nicaragua." After the question was repeated, however, he answered, "before this time."

    
    

63. In response to the question of whether he had had any exposure to the practice of medicine since his arrival in the United States, Petitioner stated, "never here in the States."

    
    

64. Petitioner told the Committee, in response to their inquiry regarding the matter, that since his arrival in the United States he had been "a writer and a reporter."

    
    

65. Petitioner responded in the affirmative when asked if his only exposure to medicine since he had been in the United States was the intensive review course he had taken at the University of Miami from February to November, 1990.

    
    

66. Petitioner was asked whether he had gone to law school. After responding in the affirmative, he was asked when he had gone to law school. Petitioner answered that he was unable to give an "exact date," but it had been "about five years before he [had] left the country." He added that he had gone to law school at night. Asked whether he had received a law degree, Petitioner responded that he "couldn't" because it "wasn't possible . . . politically."

    
    

67. At no time in responding to the Committee's questions or during any other phase of the application process did Petitioner knowingly provide false information or withhold pertinent information with the intent to mislead or deceive those evaluating his Application about his qualifications to be certified as a physician assistant. Any inaccuracies or omissions in the information he provided was the product of, not an intentional effort to defraud, but rather either inadvertence, carelessness, faulty or limited recall, misunderstanding, limited English language comprehension and communication skills, 5/ or a good faith belief that the information in question was not germane.

    
    

68. After questioning Petitioner, the Committee voted to deny Petitioner's Application.

    
    

69. On August 15, 1992, the Board issued a written order denying the Application on the following grounds:

    
    

    1. Your failure to submit a properly completed application.

    2. You have demonstrated a lack of good moral character based upon your testimony and inconsistent and evasive answers.

    3. The Board has also determined that based upon review of your application and documentation, and due to the extended length of time since you last worked in the field of medicine, and because of the length of time

    since any significant medical education or training has taken place, you have not established that you are currently able to practice as a physician assistant with reasonable skill and safety to the public.

    
    

    Petitioner's Other Activities Since His Arrival in the U.S.

    
    

70. As he attempted to make clear during the application process, Petitioner has not engaged in the practice of medicine in the United States since his arrival in this country.

    
    

71. He has studied medicine on his own, as well as performed medical- related research in connection with several books he has written, however. He has also done volunteer work for the Red Cross.

    
    

72. Petitioner has continued to direct and administer from the United States the operations of the "White Cross" clinic.

    
    

73. Recently, he has started to again visit the clinic on a fairly regular basis and treat patients. The first of these post-March 10, 1988, visits occurred sometime in 1992.

    
    

74. Since 1988, Petitioner has not received any compensation for the work he has performed for the clinic.

    
    

75. In addition to the foregoing activities, Petitioner has worked as a journalist since coming to the United States as he indicated on the revised version of page 3 of his Application.

    
    

76. Petitioner has not lost the ability he demonstrated throughout his many years of practice in Nicaragua before immigrating to the United States to treat patients in a safe and effective manner.

    
    

77. He is currently able to practice as a physician assistant with reasonable skill and safety to the public, notwithstanding that he may have had some difficulty in following the instructions he was given (in English) by the Section during the application process and providing the Section with the information he desired. 6/

    
    

78. Furthermore, Petitioner is of good moral character.

    
    

    CONCLUSIONS OF LAW

    
    

79. Petitioner is seeking to be certified as a physician assistant.

    
    

80. Section 458.347(7), Florida Statutes, prescribes the requirements for physician assistant certification.

    
    

81. Subsection (a) of Section 458.347(7), Florida Statutes, provides as follows:

    
    

    Any person desiring to be certified as a physician assistant must apply to the [D]epartment [of Professional Regulation]. The department shall issue a certificate to any person who the [B]oard [of Medicine] certifies has met the following requirements:

    1. Is at least 18 years of age.

    2. Has satisfactorily passed a proficiency examination by an acceptable score established by the National Commission on Certification of Physician Assistants.

    3. Has completed the application form and remitted an application fee not to exceed $300 as set by the board. An application for certification made by a physician assistant shall include all of the following:

       1. A certificate of completion of a physician assistant training program specified in subsection (6).

       2. A sworn statement of any prior felony convictions.

       3. A sworn statement of any previous revocation or denial of licensure or certification in any state.

       4. Two letters of recommendation.

          
          

82. Subsection (b) of Section 458.347(7), Florida Statutes, provides in pertinent part as follows:

    
    

    1. Notwithstanding the provisions of subparagraph (a)2. and subparagraph (a)3.a., the department shall examine each applicant the board certifies:

       1. Has completed the application form and remitted a nonrefundable application fee not to exceed $500 and an examination fee not to exceed $300, plus the actual cost to the department for purchase of a proficiency examination from a national organization or, if unavailable, for development of a proficiency examination by the department. The examination fee is refundable if the applicant is found to be ineligible to take the examination.

       2. Is an unlicensed physician who graduated from a foreign medical school listed with the World Health Organization who has not previously taken and failed the examination of the National Commission on Certification of Physician Assistants and who has been certified by the board as having met the requirements for licensure as a medical doctor for examination as set forth in s.458.311(1),(3),(4), and (5), with the exception that the applicant is not required to have completed an approved residency of at

          least 1 year and the applicant is not required to have passed the licensing examination specified under s.458.311 or hold a valid, active certificate issued by the Educational Commission of Foreign Medical Graduates.

       3. Has applied for certification as a physician assistant in this state between

          July 1, 1990, and June 30, 1991.

       4. Was a resident of this state on July 1, 1990, or was licensed or certified in any state in the United States as a physician assistant on July 1, 1990.

    2. The board may grant temporary certification to an applicant who meets the requirements of subparagraph 1. Between meetings of the Physician Assistant Committee, the executive director of the board may grant temporary certification to practice based on the completion of all temporary certification requirements. All such administratively issued certifications shall be reviewed and acted on at the next regular meeting of the Physician Assistant Committee and the board. The temporary certificate shall expire upon receipt and notice of scores to the certificateholder from the first available examination specified in subparagraph 1. following certification by the board. An applicant who fails the proficiency examination is no longer temporarily certified and is ineligible for any further temporary certification

       
       

83. Among the "requirements for licensure as a medical doctor by examination as set forth in s.458(1),(3),(4), and (5)," Florida Statutes, is that the applicant be "of good moral character." Section 458.311(1)(c), Fla. Stat.

    
    

84. "Moral character" is

    
    

    not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.

    
    

    Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977). An individual demonstrates a lack of "good moral character" when he engages in "acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation." Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454, 458 (Fla. 1978).

    
    

85. In the instant case, Petitioner is seeking certification pursuant to subsection (b) of Section 458.347(7), Florida Statutes.

    
    

86. As an applicant for certification, he "carries the 'ultimate burden of persuasion' of entitlement." See Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981). He need address, however, only those entitlement issues raised in the Board's Notice of Denial. See Woodholly Associates v. Department of Natural Resources, 451 So.2d 1002 (Fla. 1st DCA 1984).

87. In its Notice of Denial, the Department indicated that it intended to deny Petitioner's Application for the following reasons:

    
    

    1. Your failure to submit a properly completed application.

    2. You have demonstrated a lack of good moral character based upon your testimony and inconsistent and evasive answers.

    3. The Board has also determined that based upon review of your application and documentation, and due to the extended length of time since you last worked in the field of medicine, and because of the length of time since any significant medical education or training has taken place, you have not established that you are currently able to practice as a physician assistant with reasonable skill and safety to the public.

    
    

88. As supplemented, clarified and revised, Petitioner's Application is now complete in all material respects as required by Section 458.347(7)(b)1.a., Florida Statutes. He has provided the Board, through the filing of his original Application, subsequent written submissions, his responses to the Committee's questions at its June 12, 1992, meeting, and his own sworn testimony as well as that of his other witnesses in this administrative proceeding, with sufficient information to determine his qualifications to be certified as a physician assistant.

    
    

89. Petitioner is "of good moral character" as required by Section 458.311(1)(c), Florida Statutes (which requirement is incorporated by reference in Section 458.347(7)(b)1.b., Florida Statutes). It is true that "making false or misleading statements on [an] application is relevant to whether the [applicant] is of good moral character" and if an applicant "perjured himself by intentionally falsifying his application or untruthfully responding to Board inquiries, this is a valid ground for denying him [certification]." Gentile v. Department of Professional Regulation, Board of Medical Examiners, 448 So.2d 1087, 1090 (Fla. 1st DCA 1984). Petitioner, however, has not engaged in such deceitful and dishonest conduct. While he may have initially provided erroneous and incomplete information in connection with his Application, he did not do so knowingly with the intent to deceive or mislead.

    
    

90. Petitioner's conduct in the instant case is certainly no more offensive than was the conduct of the applicant in Lopez v. Florida Board of Bar Examiners, 231 So.2d 819 (Fla. 1969). The applicant in Lopez was a political refugee from Cuba who was seeking admission to The Florida Bar. The Florida Board of Bar Examiners found the applicant unfit to practice law because he had initially failed to disclose certain information on his application for admission to the Bar. The Florida Supreme Court rejected the Board of Bar Examiner's fitness recommendation and admitted the applicant to the Bar, giving the following explanation for its decision:

    
    

    We have carefully examined the charges made against the applicant and can find nothing in the information withheld that would have justified the denial of the application had the facts been submitted forthrightly and

    fully in the first place, as they were in an amended application. It seems clear that the applicant could have had no fraudulent design in withholding information that could have had little, if any, damaging effect on his application. The habit of concealment and equivocation that is so natural for a person of applicant's political leanings when living under a Communist regime will undoubtedly be displaced eventually when applicant becomes fully acclimated to life in this democracy.

    
    

    231 So.2d at 820-21. Petitioner, who also lived under an oppressive "regime" in his native land before fleeing to this country, should likewise be deemed morally fit, notwithstanding that he may have initially provided erroneous and incomplete information during the application process, inasmuch as he had "no fraudulent design" in doing so.

    
    

91. There is no reason to believe, based upon the evidentiary record in this case, that Petitioner is currently unable "to practice as a physician assistant with reasonable skill and safety to the public." While it has been more than five years since he immigrated to the United States where he has been unable to engage in the practice of medicine, given the length of time that he had practiced before coming to this country, the coursework he has taken and the research and study he has done in, or related to, the field of medicine since his arrival here, and the continuing involvement he has had with the "White Cross" clinic, including most significantly his recent visits to the clinic to treat patients, his present ability to perform competently as a physician assistant cannot be questioned. Accordingly, he should be granted temporary certification pursuant to Section 458.347(7)(b)2., Florida Statutes, pending the results of the examination he must take to obtain his regular certification.

RECOMMENDATION

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

RECOMMENDED that the Board enter a final order certifying that Petitioner is eligible to take the examination for certification as a physician assistant pursuant to Section 458.347(7)(b), Florida Statutes, and granting him temporary certification pursuant to Section 458.347(7)(b)2., Florida Statutes, pending the results of the examination.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of June, 1993.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1993.

ENDNOTES

1/ "It is a violation of a party's due process rights in an administrative hearing for [an individual serving alone or with others as an agency] head to testify on a material, disputed issue [as opposed to merely a technical matter] and then review the hearing officer's findings of fact and conclusions of law." Ridgewood Properties, Inc., v. Department of Community Affairs, 562 So.2d 322,

324 (Fla. 1990). Accordingly, Dr. Winchester should not sit on the panel that reviews this Recommended Order.

2/ There are various documents appended to Petitioner's post-hearing submittal. To the extent that these documents are not part of the evidentiary record in this case, they have not been considered by the Hearing Officer.

3/ Before fleeing to the United States, Petitioner had been imprisoned and tortured for having made public statements critical of the Sandinista government.

4/ The foregoing, as well as all other excerpts, represent, unless otherwise indicated, a word for word and letter for letter recital of the contents of the document or portion of the document from which the excerpt was taken.

5/ The printed material on the application form and Petitioner's entries thereon, as well as all written correspondence between Petitioner and the Board, were in English.

6/ While a physician assistant must be able to follow instructions of his employing physician and keep accurate medical records, Petitioner's conduct during the application process does not suggest that he will be unable to do so.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-6654

The following are the Hearing Officer's specific rulings on the findings of facts proposed by the Board:

1-7. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

8. First and third sentences: Accepted and incorporated in substance; Second sentence: In his August 7, 1991, affidavit, Petitioner indicated that he had not "work[ed] in medicine" from "2/88 to present." To the extent that this proposed finding suggests otherwise, it has been rejected because it is not supported by persuasive competent substantial evidence. In all other respects, this proposed finding has been accepted and incorporated in substance.

9-10. Accepted and incorporated in substance.

11. First sentence: To the extent that this proposed finding suggests that staff found a large number, as opposed to merely some, discrepancies, it has been rejected because it is not supported by persuasive competent substantial evidence; Second sentence: Accepted and incorporated in substance.

12-13. Accepted and incorporated in substance.

14. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected because, although they accurately summarize certain testimony given by Petitioner, the fact that such testimony was given should have no bearing on the outcome of the instant case.

15-23. Accepted and incorporated in substance.

24. To the extent that this proposed finding suggests that Petitioner's Application, as supplemented, clarified and revised, contains material errors and omissions, it has been rejected because it is not supported by persuasive competent substantial evidence.

25-26. Accepted and incorporated in substance.

27-28. To the extent that these proposed findings suggest that Petitioner, as he testified at hearing, has continued "his involvement with the White Cross of Nicaragua . . . during his stay in the United States," they have been accepted and incorporated in substance. To the extent that they suggest that he has received compensation for this continuing "involvement" and that he therefore has been employed by the White Cross, it has been rejected because it is not supported by persuasive competent substantial evidence.

1. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed finding suggests that Petitioner is now, and was at the time he submitted the "revised page 3 of his [A]pplication," employed by "the radio newspaper 'El Pensamiento,'" it has been rejected because it is not supported by persuasive competent substantial evidence.

2. Accepted and incorporated in substance.

3. To the extent that this proposed finding suggests that Petitioner received compensation as an employee for engaging in these activities, it has been rejected because it is not supported by persuasive competent substantial evidence.

4. First and second sentences: Accepted and incorporated in substance; Remaining sentences: Rejected because, although they accurately summarize certain testimony given by Petitioner, the fact that such testimony was given should have no bearing on the outcome of the instant case.

33-34. Rejected because, although they accurately summarize certain testimony given by Petitioner's wife, the fact that such testimony was given should have no bearing on the outcome of the instant case.

35-36. Accepted and incorporated in substance.

1. Rejected because, although it accurately summarizes certain testimony given by Petitioner, the fact that such testimony was given should have no bearing on the outcome of the instant case.

2. Accepted and incorporated in substance.

3. To the extent that this proposed finding suggests that Petitioner's Application, as supplemented, clarified and revised, contains material errors, it has been rejected because it is not supported by persuasive competent substantial evidence.

4. To the extent that this proposed finding suggests that Petitioner's "apparent inability to fill out the [A]pplication accurately" demonstrates that he is unable "to practice [as a physician assistant] with reasonable skill and safety," it has been rejected because it is not supported by persuasive competent substantial evidence.

COPIES FURNISHED:

Leon Cesar Delgadillo Arguello

10309 Southwest 24th Street, Apt. 102

Miami, Florida 33165-7955

Edwin A. Bayo, Esquire Assistant Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050

Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period of time within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION BOARD OF MEDICINE

LEON CESAR DELGADILLO ARGUELL0,

Petitioner,

vs. DOAH CASE NO. 92-6654

DEPARTMENT OF BUSINESS

AND PROFESSIONAL REGULATION, BOARD OF MEDICINE,

Respondent.

/

FINAL ORDER

THIS CAUSE came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on August 8 1993, in Tampa, Florida, for consideration of the Hearing Officer's Recommended Order, the Exceptions to the Recommended Order filed by the Respondent and the Response to the Exceptions filed by the Petitioner (copies of which are attached hereto as Exhibits A, B and C respectively) in the above styled cause. Petitioner, Leon Cesar Delgadillo Arguello, was not present. Respondent, the Board of Medicine, was represented by M. Catherine Lannon, Assistant Attorney General.

Upon review of the Recommended Order, the written Exceptions and Responses by the parties, oral argument and after a review of the complete record in this case, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The findings of fact as set forth in the Recommended Order, as amended by the Board in its ruling on exceptions, are accepted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact, as amended.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The conclusions of law set forth in the Recommended Order of the Hearing Officer are rejected and the conclusions of law contained in Respondent's Proposed Recommended Order (a copy of which is attached hereto as Exhibit D), paragraphs 88 through 91, are adopted as the conclusions of law of the Board and incorporated herein.

Rulings on Petitioner's Exceptions to Findings of Fact

1. Respondent timely filed exceptions to the Recommended Order and Petitioner timely filed a written response to the exceptions. For reasons stated in the Exceptions and in oral argument, the Board makes the following findings:

   
   

2. Respondents Exception 1 to the Hearing Officer's rejection of the proposed finding of fact set out in paragraph 14, is accepted and the Board finds that Petitioner's potential to act in a professional licensed capacity is affected by his continued disregard of unsigned board correspondence.

   
   

3. Respondent's Exception 2 to the Hearing Officer's rejection of the proposed findings of fact set out in paragraphs 24 and 39, is accepted and the Board finds that there were material errors with regard to Petitioner's compliance with licensure application.

   
   

4. Respondent's Exception 3 to the Hearing Officer's rejection of the proposed finding of fact in paragraph 31, is accepted and the Board finds that Petitioner should have listed his employment on his licensure application.

   
   

5. Respondent's Exception 4, to the Hearing Officer's rejection of the proposed findings of fact set out in paragraphs 32, 33, and 34, is accepted and

   the Board finds that the testimony of Petitioner's wife and the allegation that the Petitioner was untruthful regarding his licensure application attest to Petitioner's moral character.

   
   

6. Respondent's Exception 5 to the Hearing Officer's rejection of the proposed findings of fact set out in paragraphs 30 and 38, is accepted and the Board finds that Petitioner's testimony that pertinent licensure documents had been provided to the board was not reflected by the evidence of record.

   
   

7. Respondent's Exception 6 to the Hearing Officer's rejection of the proposed finding of fact set out in paragraph 40, is accepted and the Board finds a lack of competent substantial evidence to support the proposition that Petitioner could practice medicine with reasonable skill and safety.

   
   

8. Respondent's Exception 7 to the finding of fact set out in the Recommended Order, paragraph 67, that there was a lack of competent substantial evidence to conclude that Petitioner's inaccuracies and omissions on his' licensure application were due to carelessness or limited recall, is accepted.

   
   

9. Respondent's Exception 8 to the finding of fact set out in the Recommended Order, paragraph 73, that there was competent substantial evidence to prove that Petitioner had in fact practiced medicine at the Cruz Blanco post in 1992, when Petitioner was unable to recall the date of such practice, is accepted.

   
   

10. Respondent's Exception 9 to the finding of fact set out in the Recommended Order, paragraph 74, that there was no competent substantial evidence to challenge Petitioner's testimony that he performed the aforesaid practice at without compensation, is accepted.

    
    

11. Respondent's Exception 10 to the finding of fact set out in the Recommended Order, paragraph 76, that Petitioner had not lost the ability to practice medicine with reasonable skill and safety, regardless of his failure of a FLEX examination and his inability to follow the application instructions, is accepted.

    
    

12. Respondent's Exception 11 to the finding of fact set out in the Recommended Order, paragraph 77, that Petitioner is currently able to practice as a physician assistant with reasonable skill and safety to patients, is accepted.

    
    

    Petitioner's Motion To Dismiss

    
    

13. For reasons stated above, the Board denies the Petitioner's motion to Dismiss Respondent's Exceptions to the Recommended Order of the Hearing Officer.

RECOMMENDATION

The Recommendation of certifying the Petitioner for temporary licensure certificate and licensure examination is rejected. Upon review of the record in this case, the Board determines that the recommendation by the Hearing Officer is rejected for the reasons stated above.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that the Respondent's

application for temporary licensure certificate and licensure by examination be denied.

This order takes effect upon filing with the Clerk of the Department of Business and Professional Regulation.

DONE AND ORDERED this 28th day of September, 1993.

Edward A. Dauer, M.D. Acting Chairman

NOTICE OF RIGHT TO JUDICIAL APPEAL

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the agency and by filing the filing fee and copy of a Notice of Appeal with the District Court of Appeal within thirty (30) days of the date of this Order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Petitioner, Leon Cesar Delgadillo Arguello, 10309 W. 24th St., Apt. No. 102, Miami, Florida 33165, by U.S. Mail, this 30th day of September, 1993.

Marm Harris, Ed.D. Executive Director Board of Medicine

Docket for Case No: 92-006654

Orders for Case No: 92-006654