STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGSI

EDUARDO M. MONTES, )

)

Petitioner, )

)

vS. ) CASE NO. 85-0238

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

MEDICAL EXAMINERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this cause on May 31, 1985, in Jacksonville, Florida before Diane A. Grubbs, the assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Frederick A. Buttner, Esq.

112 West Adams Street Barnett Bank Building Jacksonville, Florida 32202

For Respondent: M. Catherine Lannon, Esq.

Department of Legal Affairs The Capitol, Suite LL04 Tallahassee, Florida 32301

ISSUE

Whether the petitioner has "completed undergraduate work" and is, therefore, eligible for a license by endorsement to practice medicine in Florida pursuant to Section 458.313 and 458.311.

BACKGROUND

Petitioner applied for licensure by endorsement to practice medicine in Florida. By order filed on May 18, 1984, the Board of Medical Examiners denied the application on the following grounds:

"Your application and documentation do not satisfy the requirements of Sections 458.311, Florida Statutes, insofar as you have not completed undergraduate work in an accredited United States college or university."

Petitioner requested an administrative hearing, and on January 10, 1985, the matter was referred to the Division of Administrative Hearings for further proceedings. Prior to the hearing the parties filed a stipulation setting forth the issue in dispute and the facts that were admitted.

At the hearing petitioner testified on his own behalf and entered two exhibits into evidence. The respondent presented no witnesses but entered two exhibits into evidence. Both the petitioner and the respondent have filed proposed findings of fact and conclusions of law which have been carefully considered.

FINDINGS OF FACT

1. Petitioner attended undergraduate school at the University of Puerto Rico. The University of Puerto Rico is an accredited United States university. He graduated with a medical degree from La Universidad Autonoma de Guadalajara, Mexico, and returned to the University of Puerto Rico from January 21, 1930, to December 20, 1980, to satisfactorily complete the Fifth Pathway Medical Program at the Mayaquez

   ;~ledical Center in Puerto Rico. Petitioner is a licensed physician in Georgia, Michigan and Puerto Rico. He successfully passed the FLEX and obtained a weighted average of 76.

   
   

2. Petitioner attended the University of Puerto Rico from July, 1972, until December, 1975. He did not obtain any degree from the University of Puerto Rico, but he testified, and it was so stipulated, that he completed his pre-med undergraduate work. Petitioner was fifteen hours short of obtaining his degree when he withdrew from the University of Puerto Rico to attend medical school. Although petitioner had completed all the required courses in his pre-med program, he needed fifteen hours of credit in electives before he could complete his undergraduate

   work and obtain his degree. There was no evidence presented that the University of Puerto Rico considered the completion of the required pre-med courses as constituting the completion of undergraduate work at that institution.

   
   

3. In her affidavit, which was entered into evidence by stipulation, the Executive Director of the Board of Medical Examiners stated that the board has consistently interpreted Section 458.311(3)(a) as requiring a diploma or official transcript showing that an undergraduate degree has been awarded as the only evidence of successful completion of undergraduate work. She further averred that, to the best of her knowledge and belief, no applicant for medical licensure pursuant to Section 458.311(3) had been licensed who had not submitted a diploma or official transcript showing that an undergraduate degree had been awarded.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Licensure by endorsement to practice medicine in Florida is governed by Section 458.313. Section 458.313(1) provides that an applicant for licensure by endorsement must demonstrate to the board that he has met the qualifications for licensure set forth in Section 458.311. The respondent is applying for licensure pursuant to 458.311(3), which provides, in pertinent part, that the applicant must have "completed undergraduate work in an accredited United States college or university." Section 458.311(3)(a), Florida Statutes.

   
   

6. Respondent contends that because he completed the required courses for his pre-med program he "completed undergraduate work." He argues that if the Legislature had intended that an applicant be a graduate of an accredited college or university, the statute would have so stated. Respondent points to several subsections of Section 458.311 where the word graduate is used.

   
   

7. Respondent's argument is not convincing. First, the phrase, "completed undergraduate work" is quite clear in its meaning. Second, in every case where the word graduate is used in the statute, it is used in connection with medical school, not undergraduate school. Third, the Legislature may have specifically selected the phrase "completed undergraduate work"

over the word "graduated" because the Legislature recognized that graduates of accredited two-year colleges or business colleges might be encompassed by the term "graduated" but not by the phrase "completed undergraduate work". Finally, if the Legislature meant "completed required pre-med courses" rather than "completed undergraduate work", it would have said so.

1. Words used in a statute should be given their common and ordinary meaning. "Completed undergraduate work" means exactly what it says. When one completes undergraduate work, one is awarded a degree. Degree is defined as "a title conferred on students by a college, university, or professional school on completion of a program of study." (e.s.) Webster's Ninth New Collegiate Dictionary. (1984). The Board of Medical Examiners has properly interpreted Section 458.311(3) (a) to require a diploma or an official transcript showing that an undergraduate degree has been awarded as evidence of completion of undergraduate work.

   
   

2. In this case the petitioner was fifteen hours short of completing his undergraduate work when he withdrew from undergraduate school to attend medical school. Therefore, the petitioner does not meet the qualifications for licensure in Section 458.311 as required by Section 458.313(1), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a final order be entered denying the petitioner's application for licensure by endorsement.

DONE and ENTERED this 27th day of August, 1985, in Tallahassee, Leon County, Florida.

DIANE A. GRUBBS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904) 488-9675

FILED with the Clerk of the Divisign of Administrative Hearings this 27th day of August, 1985.

COPIES FURNISHED:

Frederic A. Buttner, Esq.

112 West Adams Street Barnett Bank Building Jacksonville, FL 32202

Arden M. Siegendorf, Esq.

M. Catherine Lannon, Esq. Department of Legal Affairs The Capitol, Suite LL04 Tallahassee, FL 32301

Dorothy Faircloth Executive Director Department of Professional

Regulation

Board of Medical Examiners

130 North Monroe Street Tallahassee, FL 32301

Salvatore A. Carpino General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, FL 32301

Docket for Case No: 85-000238

Orders for Case No: 85-000238