STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CIRO J. FONSECA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1336

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on May 25, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Ciro J. Fonseca, pro se

9405 West Flagler Street, #D-105 Miami, Florida 33174

For Respondent: Allen R. Grossman, Esquire

Assistant Attorney General Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to sit for the examination for licensure as a physician assistant.

PRELIMINARY STATEMENT

Petitioner's application to sit for the examination for licensure as a physician assistant was denied by an Order entered by the Board of Medicine on March 12, 1992. Petitioner timely challenged the denial and this proceeding followed.

At the formal hearing Petitioner testified on his own behalf and called his uncle as his only other witness. Petitioner presented 8 exhibits, each of which was accepted into evidence. Respondent called no witnesses, but presented one composite exhibit, a copy of its file containing Petitioner's complete application file, which was accepted into evidence. Petitioner's exhibits are also contained in Respondent's composite exhibit.

A transcript of the proceedings has been filed. The proposed findings of fact submitted on behalf of Respondent are adopted in material part by this Recommended Order. Petitioner did not file a post-hearing submittal.

FINDINGS OF FACT

1. Petitioner is an applicant to sit for the examination for licensure as a physician assistant in Florida.

   
   

2. Petitioner relies on the provisions of Section 458.347(7)(b), Florida Statutes, which provide, in pertinent part, as follows:

   
   

   1. 1. . . . [T]he department shall examine each applicant who the board certifies:

      1. Has completed the application form ...

      2. Is an unlicensed physician who graduated from a foreign medical school listed with the World Health Organization ...

      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. . .

         
         

3. Petitioner's application to sit for the examination for licensure as a physician assistant was denied by an Order entered by the Board of Medicine on March 12, 1992. The Order cited the following four grounds for the denial:

   
   

   1. The applicant (Petitioner) does not have a medical degree as required by Sections 458.347(b)1.b. and 458.311(1)(f)3.a., Florida Statutes.

   2. The applicant has been unable to provide adequate evidence that he was a resident in Florida on July 1, 1990.

   3. The applicant has failed to account for all time and activities on his application from July 1981 - May 1982.

   4. The applicant has failed to list all employment activities on his application when compared to the Resume of Qualifications he submitted.

   
   

4. Petitioner attended medical school at the Universidad Central del Este (UCE) in the Dominican Republic from 1975 to 1981. Petitioner testified that he completed his assigned curriculum and that he participated in graduation exercises. Petitioner did not receive a diploma or a medical degree from UCE because he owed the university for tuition. In response to an inquiry from Respondent, the Dean of Medicine of UCE provided the following information:

   
   

   ... [W]hile it is true that [Petitioner] completed the curriculum of our School of Medicine, he has other requisites to be completed. Among these is an outstanding debt for registration fees at our University. Until this debt is satisfied he cannot be awarded the degree of Doctor of Medicine, nor can any documents be issued.

5. Petitioner's application and the documentation he initially submitted in support thereof did not establish that Petitioner met the residency requirements of Section 458.347(7)(b)1.d., Florida Statutes. The evidence submitted at the formal hearing established that Petitioner was a resident of the State of Florida on July 1, 1990, and at all other times pertinent to this proceeding since that time.

   
   

6. Petitioner, in his application for licensure, failed to set forth his activities between July 1981 and May 1982./1 Petitioner has subsequently provided that information to the Respondent. During that time, Petitioner was unemployed and studying for his medical examinations.

   
   

7. Petitioner, in his application for licensure, failed to completely set forth his employment history, including his work as a medical health counselor and as a mental health supervisor. His employment history is required by the application form and should have been included as part of his application package. All information pertinent to his employment has now been provided by Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

9. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to licensure he seeks. See, Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981) and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977.

   
   

10. Petitioner has not been awarded the Medical Doctor degree and cannot establish that he has graduated from the Universidad Central del Este or from any other foreign medical school recognized by the World Health Organization. Respondent, in interpreting the statutes it must administer, has determined that Petitioner therefor does not meet the criteria set forth Section 458.347(7)(b)1, Florida Statutes. An agency's interpretation of its own rules and regulations will not be overturned even if such interpretation is not the sole possible interpretation, the most logical interpretation, or the most desirable interpretation. An agency's interpretation of its rules and governing statutes will not be overturned unless the interpretation is clearly erroneous. Health Quest Corporation, et al. v. Department of Health and Rehabilitative Services and Arbor Health Care Co., et al., 11 FALR 5427 (1989), ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815 (Fla. 1983). Here, Respondent's interpretation of the statute is not clearly erroneous. Consequently, it is concluded that Petitioner's application pursuant to the provisions of Section 458.347(7)(b), Florida Statutes, should be denied.

    
    

11. In this de novo proceeding, Petitioner remedied the other deficiencies in his application listed by Respondent in its Order entered March 12, 1992. While those reasons provided a basis for rejecting his application at the time the Order was entered, the pertinent information has now been supplied. The reasons given in subparagraphs b, c, and d of the Order of March 12, 1992, no longer provide a basis for denial of the application.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's

application on the grounds that he is not a graduate of a medical school recognized by the World Health Organization.

DONE AND ORDERED this 28th day of July, 1993, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 28th day of July, 1993.

ENDNOTE

/1 Rule 21M-17.002, Florida Administrative Code, which is not being challenged in this proceeding, provides, in pertinent part, as follows:

1. Applications for approval as a certified physician assistant must be made upon forms supplied by the Board.

2. Application forms submitted to the Board for certification must be complete in every detail . . .

COPIES FURNISHED:

Ciro J. Fonseca

9405 West Flagler Street #D-105

Miami, Florida 33174

Allen R. Grossman, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050

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

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional Regulation 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 ten days in which to submit written exceptions. Some agencies allow a larger period 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.

Docket for Case No: 93-001336

Orders for Case No: 93-001336