STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK J. BOGAERT, )

)

Petitioner, )

)

vs. ) Case No. 97-0069

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) BOARD OF VETERINARY MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before

Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings, on May 21, 1997, by video teleconference. The Administrative Law Judge was located in Tallahassee, Florida. Other participants were located in Jacksonville, Florida.

APPEARANCES

For Petitioner: I. Mark Rubin, Esquire

Rubin and Rubin, P.A. 2107 Hendricks Avenue

Jacksonville, Florida 32207

For Respondent: Edwin A. Bayo, Esquire

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

STATEMENT OF THE ISSUE

The issue is whether Respondent properly denied Petitioner’s application for a license to practice veterinary medicine.

PRELIMINARY STATEMENT

On or about December 5, 1996, Respondent Board of Veterinary Medicine (Respondent) issued an Order of Intent to Deny Petitioner Frank J. Bogaert (Petitioner) a license to practice veterinary medicine. Respondent based the denial on the following three grounds: (a) Petitioner failed the examination more than three times subsequent to October 1, 1989, and has not obtained a certificate from the Educational Commission for Foreign Veterinary Graduates (ECFVG); (b) Petitioner violated Section 474.213(1)(d), Florida Statutes, by giving false or forged evidence to Respondent for the purposed of obtaining a license; and (c) Petitioner violated Section 474.213.(1)(h), Florida Statutes, by attempting to obtain a license to practice veterinary medicine by fraudulent representation.

Petitioner requested a formal hearing to challenge the denial of his application. Respondent referred this matter to the Division of Administrative Hearings on January 8, 1997.

The undersigned scheduled the case for formal hearing on May 21, 1997. When the hearing convened, Petitioner stipulated that he was statutorily ineligible for licensure under Section 474.207(4), Florida Statutes, because he failed the examination more than three times and did not have an ECFVG certification. Accordingly, the only relevant issues were whether Petitioner

violated Sections 474.213(1)(d) and 474.213(1)(h), Florida Statutes.

Petitioner presented his testimony at the hearing. Respondent offered two exhibits which were admitted into evidence.

The court reporter filed a copy of the transcript on

June 11, 1997. Respondent filed proposed findings of fact and conclusions of law on June 9, 1997. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner is a graduate of a foreign school of veterinary medicine. He received a doctorate in veterinary medicine from the National Pedro Henriquez Urenta University, Santo Domingo, Dominican Republic, in 1987.

2. Petitioner filed his first application to take the National Board of Veterinary Medicine Examination (National Board), the Clinical Competency Test (CCT), and the Florida Laws and Rules Examination (Florida Laws and Rules) on

   February 22, 1988. On or about March 14, 1988, Respondent notified Petitioner that his application was complete.

   Respondent subsequently certified Petitioner as eligible to take the three tests on May 10-11, 1988. On or about June 29, 1988, Respondent advised Petitioner that he had failed all three tests.

3. On or about July 5, 1990, Petitioner filed a second application to retake the examinations in Florida. Respondent

   advised Petitioner that his application was outdated on or about July 16, 1990. Respondent directed Petitioner to resubmit his application on the current forms.

4. On or about August 14, 1990, Petitioner filed his application to retake the examinations on the current forms. Respondent notified Petitioner that his application was complete. By notice dated August 17, 1990, Respondent advised Petitioner that he was eligible to take the examinations on December 9-10, 1990. Respondent subsequently informed Petitioner of a change in the dates of examination to December 11-12, 1990.

5. Petitioner took the examinations on December 11-12, 1990 in Florida. On or about February 2, 1991, Petitioner received notice that he had not passed any of the examinations.

6. Petitioner subsequently became aware of a change in Florida law which would prohibit him from becoming licensed to practice veterinary medicine without a certificate from the ECFVG if he failed to pass the examinations three times after

   October 1, 1989. He decided to apply to take the examinations in Georgia.

7. Petitioner took and failed the National Board in Georgia on the following dates: (a) December, 1992; (b) April, 1993;

   (c) December, 1993; (d) April, 1994; (e) December, 1994;

   
   

   (f) April; 1995; and (g) December, 1995. He took and passed this test in Georgia in April of 1996.

8. Petitioner took and failed the CCT in Georgia on the following dates: (a) December, 1992; (b) April, 1993; and

   (c) December, 1993. He took and passed this test in Georgia in April of 1994.

9. Petitioner filed an application for licensure with Respondent on or about August 1, 1996. Item six of this application asks:

   Have you ever taken the National Board Examination, Clinical Competency Test or Florida Laws and Rules Examination? If yes, list below the name(s) of the exam(s), the date(s) of the exam(s) and the state(s) in which the examination was taken.

   
   

10. In response to item six of the application, Petitioner answered as follows:

    National Board - December, 1990, Florida; April, 1996.

    
    

    Clinical Competency Test - December, 1990, Florida; April, 1994, Georgia.

    
    

    Laws and Rules - December, 1990.

    
    

11. On or about August 26, 1996, Respondent informed Petitioner that his application was complete. However, Petitioner was advised that Respondent might deny the application unless Petitioner had completed the ECFVG program because Petitioner had taken the National Board and the CCT more than three times since October of 1989.

12. By letter dated August 28, 1996, Respondent requested the Georgia State Board of Veterinary Medicine to provide written confirmation of Petitioner's examination record in that state.

    On or about October 28, 1996, the Georgia State Board of Veterinary Medicine certified in writing that Petitioner had taken the National Board a total of eight times and the CCT a total of four times. The Georgia certification listed the dates

    that the examinations were attempted and finally passed. That same day, Respondent gave Petitioner preliminary notice that his application would be denied.

13. Petitioner had not completed the ECFVG program. Therefore, Respondent issued an Order of Intent to Deny Petitioner's application on or about December 5, 1996.

14. According to his testimony, Petitioner was not aware that he needed to disclose information related to his 1988 Florida exams and his failed exams in Georgia. He was aware that the law, which limited the number of times he could take the exams without earning an ECFVG certificate, would not count exams taken before October 1, 1989. He also asserted a belief that the law would not apply to the number of times he took the exams in another state. Petitioner's testimony is contrary to more persuasive evidence.

15. Petitioner admitted that he read the license application instructions before he filed his 1996 application. These instructions clearly require an applicant to provide Respondent with an examination history including the following information: (a) the name of every prior examination; (b) the date of every prior examination; and (c) the state in which the applicant took every prior examination.

16. The license application instructions and the application admonish applicants to answer all questions fully and truthfully. They warn applicants that obtaining a license by

    fraudulent misrepresentation is grounds for denial of an application or revocation of a license.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57, Florida Statutes.

18. Petitioner has the burden of proving that Respondent improperly denied his application to practice veterinary medicine in the State of Florida. Balino v. Dept. of Health and Rehab. Serv., 348 So. 2d 349(Fla. 1st DCA 1977). He has not met his burden.

19. Applicants for licensure in Florida must pass the national examination for veterinarians which has two parts: the National Board and the CCT. They also must pass the Florida Laws and Rules examination. See Section 474.207, Florida Statutes.

20. Graduates of foreign veterinary medicine schools must obtain a certificate from the ECFVG before they receive a license to practice veterinary medicine in Florida and Section 474.207(2)(b), Florida Statutes. Such graduates are exempt from the requirement of completing the ECFVG program if Respondent certified them for licensure prior to October 1, 1989. Section 474.207(3), Florida Statutes. However, applicants certified under that exemption, who fail the required examinations three times subsequent to October 1, 1989, must demonstrate that they

    meet the requirements of Section 474.207(2)(b), Florida Statutes. Section 474.207(4), Florida Statutes.

21. Petitioner was certified for licensure before

    
    

    October 1, 1989. Petitioner stipulated that he is ineligible for licensure at the present time because he has failed the examination three times subsequent to October 1, 1989, and has not completed the ECFVG program.

22. Petitioner disputes Respondent's allegations that he provided false information on his 1996 application in violation of Section 474.213(1)(d), Florida Statutes. He also contends that he did not violate Section 474.213(1)(h), Florida Statutes, by attempting to obtain a license by fraudulent representation.

23. Petitioner's answer to item six was false because it was not complete. He did not list the pertinent information relating to his 1988 examinations in Florida. He did not reveal the relevant information concerning the examinations he took in Georgia and failed. Petitioner knew the information was false because he read the application instructions.

24. Petitioner was aware of the law which limited the number of times he could take the examinations without earning an ECFVG certification. Petitioner thought he could avoid this limitation by not disclosing the number of times he failed the exams in Georgia. He only disclosed the 1990 Florida exams and the dates that he passed the National Board and CCT in Georgia. Therefore, his answer to item six was a fraudulent misrepresentation of material fact.

25. Petitioner's explanation of his interpretation of Section 474.207(4), Florida Statutes, is not credible. The greater weight of the evidence indicates that Petitioner violated Sections 474.213(1)(d) and 474.213(1)(h), Florida Statutes.

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 for a license to practice veterinary medicine.

DONE AND ENTERED this 8th day of July, 1997, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1997.

COPIES FURNISHED:

Edwin A. Bayo, Esquire

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

I. Mark Rubin, Esquire

2107 Hendricks Avenue

Jacksonville, Florida 32207

Sue Foster, Executive Director Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, Esquire Department of Business and

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 within 15 days from the date of 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: 97-000069

Orders for Case No: 97-000069