STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH V. STEWART, M.D., )

)

Petitioner, )

)

v. ) CASE NO: 81-2899

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on April 14, 1982, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Joseph V. Stewart, M.D., pro se

97 West Grand Avenue Northlake, Illinois 60164

For Respondent: Chris D. Rolle, Esquire

Department of Legal Affairs The Capitol, Suite 1602 Tallahassee, Florida 32301

ISSUE PRESENTED

Whether petitioner's application for a license to practice medicine in Florida should be granted, or denied on the ground that he has not completed an approved internship of at least one (1) year.

BACKGROUND

Petitioner, Joseph V. Stewart, M.D. ("petitioner"), applied for licensure (by endorsement) to practice medicine in Florida. By final order dated September 30, 1981, respondent Department of Professional Regulation, Board of Medical Examiners ("the Board"), denied his application on the ground that he had not shown that he was capable of safely practicing medicine with reasonable skill and safety.

On October 10, 1981, petitioner requested a Section 120.57(1) hearing, and on November 16, 1981, the Board forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Thereafter, the Board reconsidered its prior decision, then issued another order, dated March 1, 1982, which denied petitioner's application.

At hearing, petitioner testified in his own behalf and offered Petitioner's Exhibit 1/ Nos. 1 through 3 into evidence, each of which was received. The Board called Dorothy Faircloth as its only witness and Respondent's Exhibit 1/ Nos. 1 through 3 were received into evidence.

The Board filed proposed findings of fact by May 4, 1982. It also filed a motion to strike several post-hearing documents submitted by petitioner.

FINDINGS OF FACT

1. In April, 1981, petitioner applied for a license, by endorsement, to practice medicine in Florida. (R-3.)

   
   

2. Petitioner is a practicing physician. He graduated from the University of Hawaii School of Medicine in 1977, then successfully completed the examination of the National Board of Medical Examiners. He is licensed to practice medicine in California and Illinois but has not yet had five (5) years of licensed practice.

   
   

3. The Board asserts that petitioner meets all requirements for licensure by endorsement except the requirement relating to completion of an approved internship program of at least one (1) year. (Respondent's Proposed Recommended Order, P. 4.)

   
   

4. Petitioner participated in two separate internship programs at two hospitals. From January, 1978, to June, 1978, he participated in an American Medical Association ("AMA") approved psychiatric residency program at Loyola University Medical Center in Maywood, Illinois. From July 1, 1978, to February 29, 1979, and from April 1-30, 1979, he participated in an AMA approved rotating internship at West Suburban Hospital, Oak Park, Illinois. (Testimony of Stewart; P-1, R-1.)

   
   

5. Persons interested in applying for licensure by endorsement are provided an information sheet by the Board which contains this internship requirement:

   
   

   The applicant must have completed at least one year AMA approved training . . . .

   
   

   Petitioner, reasonably relying on this information sheet, believed he was qualified for licensing since he completed a total of sixteen (16) months of AMA approved training. (Testimony of Stewart; P-3.)

   
   

6. It was not until the Board's February, 1982, meeting, when it reconsidered its earlier action denying petitioner's application, that it informed petitioner he did not meet the internship program requirement. Petitioner came to the February meeting to refute the Board's earlier allegation that he was not capable of safely practicing medicine. Instead, the inquiry into his qualifications shifted to the sufficiency of his internship. As a result, the Board reaffirmed its earlier denial, but added an additional ground: that he had not completed an approved internship of at least one (1) year.

   Later--at final hearing--the only reason offered to justify denying his application was his alleged failure to meet the internship requirement. (Testimony of Stewart; R-3.)

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. s. 120.57(1), Fla. Stat. (1981).

   
   

8. The Board is required to issue a license by endorsement if, among other things, the applicant "demonstrates . . . that he has met the qualifications for licensure in s. 458.311 . . . . " s. 458.313(1), Fla. Stat. (1981).

   
   

9. In turn, Section 458.311(1) requires that applicants have:

   
   

   (c) Completed an approved internship of at least 1 year . . . .

   
   

10. Pursuant to the authority of Section 458.313(4), the Board has, by rule, defined an approved internship program:

    
    

    An approved internship program of at least one year constitutes a course of study and training by a person holding a degree as a medical doctor in a hospital which has been approved for the training and teaching of physicians by the Council of Medical Educa- tion and Hospitals of the American Medical Association for a period of not less than twelve (12) calendar months. (Emphasis supplied.)

    
    

11. The Board contends that, under its rule definition, supra, applicants must complete at least twelve (12) months in one approved internship program. This is a permissible interpretation--one reasonably drawn from the language of the rule--and must be given great weight. See, Cappetta v. Wainwright, 220 So.2d 357 (Fla. 1969). 2/ Accordingly, since petitioner has not shown that he completed one approved internship program for at least one (1) year, it must be concluded that he has not established his entitlement to the requested license. His application must, therefore, be denied.

    
    

12. The Board's motion to strike the unauthorized material submitted by petitioner subsequent to hearing is granted. The Board's proposed findings of fact have been incorporated in this recommended order and are adopted.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

1. That petitioner's application be denied.

   
   

2. That the Board revise its information sheet on licen- sure requirements so that prospective applicants are fairly informed of the requirement that an approved internship program be a single training program of at least one (1) year.

DONE AND RECOMMENDED this 4th day of June, 1982, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Telephone: (904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this day of June, 1982.

ENDNOTES

1/ Petitioner's and Respondent's Exhibits will be referred to as "P- ," and "R- ," respectively.

2/ The wisdom of the Board's rule, and its strict interpretation of that rule, are not in question here. When an agency casts its policy in rule form, it is beyond the reach of Section 120.57(1) proceedings; it cannot be attacked and need not be defended. See, Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981).

COPIES FURNISHED:

Joseph V. Stewart, M.D.

97 West Grand Avenue Northlake, Illinois 60164

Chris D. Rolle, Esquire Department of Legal Affairs The Capitol, Suite 1602 Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002899

Orders for Case No: 81-002899