STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IRVING ZAHLER, )

)

Petitioner, )

)

vs. ) CASE NO. 80-710

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Miami, Florida, on April 30, 1980, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Irving Zahler

100 Golden Beach Drive Golden Beach, Florida 33160

For Respondent: Leonard Helfand, Esquire

Department of Health and Rehabilitative Services

District 11 Legal Counsel

401 Northwest 2nd Avenue, Room 1040 Miami, Florida 33128

ISSUE

Whether Petitioner's application for technologist license should be approved pursuant to Chapter 493, Florida Statutes.

Petitioner appeared without counsel at the hearing and was advised of his rights in administrative proceedings. He acknowledged understanding such rights and elected to represent himself in this matter.

FINDINGS OF FACT

1. Petitioner Irving Zahler resides at Golden Beach, Florida. In September 1979, he submitted an application to Respondent for licensure as a clinical laboratory technologist in the specialties of serology, clinical chemistry, hematology, and immunohematology. His application reflected his education, laboratory training, and experience in the field. Specifically, it showed that he had been the director of a diagnostic laboratory for a period of

   32 years. Prior to that period, from 1940 to 1949, he had been employed as a medical technician for the Veterans Administration, Bronx, New York. He has obtained 35 academic college credits in his field at accredited colleges or universities. (Testimony of Petitioner, Taylor, Exhibits 1-2).

2. By letter of February 13, 1980, Respondent's director of Office of Laboratory Services advised Petitioner that his application had been denied because he did not have 60 semester hours of education as required under Section 10D-441.25(9), Florida Administrative Code. Petitioner informally requested review of the decision to determine if he met other qualification standards under the rule. By letter of arch 12, 1980, Respondent sent him another letter again informing him that his application had been denied for failure to show that he had achieved a satisfactory grade in the U.S Public Health Service approved proficiency examination in clinical laboratory technology, as specified in Section 10D-41.25(10), F.A.C. Petitioner thereafter requested an administrative hearing. (Exhibit 3).

   
   

3. The U.S. Public Health Service proficiency examination was administered from 1975 to March 1979 when it was discontinued. Petitioner did not take the examination during that period and cannot do so at this time since it is not available to applicants. However, during the period 1967-1968, he passed qualifying examinations given by the Department of Health, Education and Welfare in General, microbiology, chemistry, mematology, serology, blood grouping and typing. These examinations qualified him to serve as the director of a clinical laboratory. In 1979 he was issued a license as a director of a clinical laboratory by the City of New York. (Testimony of Petitioner, Taylor, supplemented by Exhibit 4)

   
   

   CONCLUSIONS OF LAW

   
   

4. Section 483.161 provides that Respondent Department of Health and Rehabilitative Services shall prescribe the minimal qualifications for clinical laboratory personnel in various fields and shall issue a license to any person who meets the minimum qualifications, and who demonstrates that he possesses the character, training, and ability to qualify in those areas for which the license is sought. It further provides that "Examinations required shall be given by the Department."

   
   

5. Rule 10D-41.25, Florida Administrative Code, prescribes the various qualifications for licensure as a technologist. In view of the fact that Petitioner does not possess 60 semester hours of academic credits, he can only qualify for licensure under subparagraph (10) of the rule which states as follows:

   
   

   10D-41.25 Laboratory Personnel--Qualifications, Technologists. A technologist shall meet one of the following requirements:

   * * *

   (10) Achievement of a satisfactory grade in the

   U.S. Public Health Service approve proficiency examination in clinical laboratory technology, and at least six years of pertinent experience in an approved laboratory.

   
   

   It is obvious from the evidence that Petitioner meets the six year experience requirement, but has not taken the Public Health Service proficiency examination. Rule 10D-41.27 provides that as part of the qualifications for licensure, technologists may be required to pass an examination given by Respondent in each of the specialties or sub-specialties for which the license is sought.

6. In view of the statutory requirement in Section 483.161 that any required examination must be given by the Department, it is questionable if paragraph (10) of the rule would survive a rule challenge unless the examination is administered by Respondent. However, Respondent's licensing official, who testified at the hearing, indicated that the designated examination was formerly administered by the Public Health Service and is not offered at the present time.

   
   

7. In view of the above considerations, and in the light of Petitioner's extensive prior experience in the field including many years as the director of a clinical laboratory, it is considered that Respondent should exercise its discretionary authority as set forth in 10D-41.27 and waive the examination requirement in Petitioner's case.

RECOMMENDATION

That Petitioner Irving Zahler be issued a license as a clinical laboratory technologist in those specialties set forth in his application for licensure.

DONE AND ENTERED this 10th day of June, 1980, in Tallahassee, Florida.

THOMAS C. OLDHAM, Hearing Officer Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

COPIES FURNISHED:

Leonard Helfand, Esquire District 11 Legal Counsel

401 Northwest 2nd Avenue Room 1040

Miami, Florida 33128

Irving Zahler

100 Golden Beach Drive Golden Beach, Florida 33160

Department of Health and Rehabilitative Services

Steven W. Huss, Staff Attorney Central Operations Services 1317 Winewood Boulevard

Tallahassee, Florida 32301

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

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

IRVING ZAHLER,

Petitioner,

vs. CASE NO. 80-710

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

The Department of Health and Rehabilitative Services, having received a Recommended Order in this proceeding dated June 10, 1980 from Hearing Officer Thomas C. Oldham, and having received Exceptions to the Recommended Order and being otherwise well advised in the premises, decides as follows:

1. The findings of fact contained in the Recommended Order are approved and adopted as a part of this Final Order.

   
   

2. The first conclusion of law contained in the Recommended Order is approved and adopted as a part of this Final Order but the other conclusions of law and recommendation of the Hearing Officer are specifically rejected.

   
   

3. The following conclusions of law are substituted for those conclusions of law of the Recommended Order which are rejected:

1. Rule 10D-41.25, Florida Administrative Code, establishes the qualifications for licensure as a technologist. Each applicant for licensure must meet one of the requirements contained in paragraphs (1)-(10) of Rule 10D- 41.25, Florida Administrative Code. The Petitioner in this proceeding does not meet any of those requirements and therefore is not qualified for licensure as a technologist.

   
   

2. The Hearing Officer speculates in his conclusions of law that one of the requirements contained in Rule 10D-41.25, specifically Rule 10D-41.25(10), would probably not survive a rule challenge and therefore apparently reaches the conclusion that Petitioner has satisfied the requirements of 10D-41.25. Petitioner has not filed a rule challenge to Rule 10D-41.25(10) pursuant to Fla. Stat. Section 120.56 and therefore the Hearing Officer's exercise in discussing this matter is irrelevant and immaterial and purely a matter of speculation and serves as no legal basis for concluding as a matter of law that the Petitioner meets one of the requirements for licensure.

3. A further requirement for any applicant for licensure as a technologist is that the applicant pass the examination requirement set forth in Rule 10D- 41.27, Florida Administrative Code. The Department has exercised its discretion under that regulation and Fla. Stat. 483.161 and requires that all applicants for licensure as a technologist pass an examination given by the Department.

The Department, having decided to require an examination of all applicants, has no authority to waive that requirement for certain individual applicants.

THEREFORE, it is ORDERED and ADJUDGED that Petitioner's application for licensure as a technologist be denied.

DONE and ORDERED this 26 day of June, 1980, in Tallahassee, Florida.

ALVIN J. TAYLOR

Secretary

COPIES FURNISHED:

Leonard Helfand, Esquire District XI Legal Counsel Department of HRS

401 Northwest 2nd Avenue Room 1040

Miami, Florida 33128

Steven Huss, Esquire Staff Attorney

Central Operations Services Department of HRS

1317 Winewood Boulevard

Tallahassee, Florida 32301

Irving Zahler

1. Golden Beach Drive Golden Beach, Florida 33160

   
   

   Randy Rarick Laboratory Services Department of HRS Post Office Box 210

   Jacksonville, Florida 32231

   
   

   Thomas C. Oldham, Hearing Officer Division of Administrative Hearings

2. Collins Building Tallahassee, Florida 32301

Docket for Case No: 80-000710

Orders for Case No: 80-000710