STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD JAY STRANG, )

)

Petitioner, )

)

v. ) CASE NO. 85-1939

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before William R. Cave, Hearing Officer with the Division of Administrative Hearings, on October 17, 1985 in West Palm Beach, Florida. The issue for determination is whether Respondent's application for licensure as a clinical laboratory technician should be denied.

APPEARANCES

For Petitioner: Richard Jay Strang, Pro Se

8775 20th Street, No. 157 Vero Beach, Florida 32960

For Respondent: K. C. Collette, Esquire

HRS District Nine Legal Counsel

111 Georgia Avenue, 3rd Floor West Palm Beach, Florida 33401

BACKGROUND

By letter dated May 7, 1985, Respondent denied Petitioner's application for licensure as a clinical laboratory technician on the ground that Petitioner had presented an altered temporary license in support of an application for employment with Indian River County which violated Sections 483.23(2), 483.21(7)(9), and 483.221(1)(a), Florida Statutes.

Petitioner testified on his own behalf. Petitioner's Exhibit No. 1 was received into evidence.

Respondent presented the testimony of George Sherwood Taylor, Administrative Assistant, Laboratory Personnel Licensure, Office of Licensure and Certification, Department of Health and Rehabilitative Services. Respondent's Exhibits Nos.

1 and 2 were received into evidence. Both parties waived submission of posthearing proposed findings of fact and conclusions of law as provided in Section 120.57(1)(b)(4), Florida Statutes.

FINDINGS OF FACT

1. On April 30, 1985, Petitioner filed an application for employment as a clinical laboratory technician with Indian River County, Florida and in support of that application presented a temporary license from Respondent authorizing Petitioner to work in the capacity of a clinical laboratory technician until the receipt of the April 27, 1985examination results but no later than December, 1985. The license provided that failure to appear to take the April 27, 1985 examination invalidated the temporary license.

   
   

2. On April 30, 1985, Petitioner filed an application with Respondent for licensure as a clinical laboratory-technician. Prior to April 30, 1985, Petitioner had not filed an application for licensure as a clinical laboratory technician with Respondent. He did not take the April 27, 1985 examination.

   
   

3. On May 2, 1985, Doris E. Roy, an employee of Indian River County, mailed a copy of the temporary license presented by Petitioner to the Respondent as a result of a telephone conversation with Nancy Chapman, an employee of Respondent.

   
   

4. Prior to making application for employment with Indian River County, Petitioner had worked as a clinical laboratory technician with Insta Med Clinic, Inc. from June, 1984 to April, 1985 and had taken laboratory training as a clinical laboratory technician at University Community Hospital, Tamarac, Florida from September, 1982 until May, 1983.

   
   

5. The temporary license presented by Petitioner to Indian River County had been altered to show Petitioner as the temporary licensee but the evidence was insufficient to prove that Petitioner had in any way altered the temporary license.

   
   

6. Petitioner's testimony that he received the temporary license through the corporate office of his previous employee,

Insta Med Clinic, Inc. is believable, but his testimony that he had no knowledge of, or any reason to believe that, the temporary license was anything other than genuine prior to presenting it to Indian River County on April 30, 1985 is not credible. This is based on the following considerations: Particularly when you consider: (a) Petitioner's completion of required laboratory training wherein individuals are trained to meet the requirements for licensure as a clinical laboratory technician in Florida; (b) Petitioner's knowledge of the language in the temporary license indicating that Petitioner's application had been reviewed when, in fact, Petitioner had never submitted an application: (c) the statutory language requiring the application to be under oath which puts Petitioner on notice that he must fill out the application personally and not rely on someone else to file his application; and, (d) Petitioner's failure to take the April 27, 1985 examination.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1) Florida Statutes (1983).

   
   

2. The burden of proof is on the parties asserting the affirmative, Balino v. Department of HRS, 348 So. 2d 347 (1 DCA Fla. 1977). The initial burden is on Petitioner to establish that he meets the minimal qualifications prescribed in Rule 10D

- 41 26 Florida Administrative Code and having accomplished that, then the burden shifts to the Respondent to establish that Petitioner in presenting the altered temporary license to support his employment application with Indian River County violated Section 483.21(7)(9) and 483.23(2), Florida Statutes and, therefore, is subject to denial under Section 483.221(1)(a), Florida Statutes.

(3) Rule 10D-41.36, Florida Administrative Code provides as follows:

A technician shall meet one of the following requirements:

1. Successful completion of two years of academic study (a minimum of 60 semester hours or equivalent in quarter or trimester hours) in an accredited college or university with a chemical, physical or biological science as his major subject, or

2. Graduation from high school and successful completion of a full course of a

   minimum of 12 calendar months (equivalent to 1,500 clock hours) in a school accredited by the Department of Health and Rehabilitative Services and has had one year of pertinent experience as a technician trainee in an approved laboratory, or

3. Graduation from high school and subsequent to graduation has had two years of pertinent experience as a technician trainee in an approved laboratory, or

4. Graduation from high school and successful completion of an official military-laboratory procedures course of at least 12 calendar months of study and has had one year or pertinent experience as a technician trainee in an approved laboratory, or

5. Graduation from high school and subsequent to graduation, successful completion of at least one year of technician training in a technician training program approved by the Council on Medical Education of the American Medical Association, or an equivalent accepted by the Department of Health and Rehabilitative Services, or

6. Graduation from high school and subsequent graduation has had two years of pertinent experience in an approved laboratory.

   
   

   1. The Petitioner presented no evidence to establish that he had completed any of the minimal education or training requirements for licensure set out in the above cited rule and, therefore, has failed to meet his initial burden of proof.

      
      

   2. Section 483.221(7)(9), Florida Statutes provides as follows:

   
   

   The following acts constitute grounds for which disciplinary action specified in

   s. 483.221, may be taken against clinical laboratory personnel. (Emphasis added)

   * * *

7. Violating or aiding and abetting in the violation of any provisions of this part or

the rules promulgated hereunder. (Emphasis added)

* * *

(9) Knowingly advertising false services or credentials. (Emphasis added)

11 Section 483.041(2), Florida Statutes includes technician in the definition of "clinical laboratory personnel."

1. Section 483.23(2) provides as follows:

   
   

   Any use or attempted use of a forged license under this part constitutes the crime of forgery.

   
   

2. Section 483.221(1)(a), Florida Statutes provides in pertinent part as follows:

   
   

   The department may deny, . . . a license for the violation of any provision of this part or rules promulgated hereunder . . . (emphasis added).

   
   

3. Section 483.151, Florida Statutes requires an application for a clinical laboratory personnel license, which includes clinical laboratory technician, to be under oath. And since the Petitioner is charged with knowledge of the law concerning the licensure of a clinical laboratory technician he would know, or he should have known, that Insta Med Clinic, Inc. should not have filed an application for him. Therefore, Petitioner should have questioned the temporary license because he had never submitted an application for review. For this reason and the other reasons expressed in Findings of Fact 6 above, Respondent has met its burden to prove that Respondent had knowledge of the temporary license being altered at the time he presented it to Indian River County and, therefore, has proven a violation of Section 483.21(9), Florida Statutes when he knowingly presented false credentials and a violation of Section 483.21(7) Florida Statutes when he knowingly attempted to use the altered temporary license in violation of Section 483.23(2), Florida Statutes. The Respondent has proven that grounds exist for denial under Section 483.221(1)(a), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Department of Health and Rehabilitative Services enter a final order DENYING Petitioner's application for licensure as a clinical laboratory technician.

Respectfully submitted and entered this 1st of November, 1985, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 1st day of November, 1985.

COPIES FURNISHED:

K. C. Collette, Esq.

HRS District Nine Legal Counsel

111 Georgia Avenue, 3rd Floor West Palm Beach, FL 33401

Mr. Richard J. Strang 8775 20th Street, No. 157 Vero Beach, FL 32960

David Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32301

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=

AGENCY FINAL ORDER

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

=

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

RICHARD JAY STRANG,

Petitioner,

vs. CASE NO. 85-1939

DEPARTMENT OF HEALTH AND REHABILITATIVE SFRVICES,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DO-H' in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

FINDINGS OF FACT

The Department hereby.adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order.

Accordingly,

It is ADJUDGED that Petitioner's application for licensure as a clinical laboratory technician is DENIED.

DONE and ORDERED this 9th day of December, 1985, in Tallahassee, Florida.

DAVID H. PINGRE

(for) Secretary

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESECRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Copies furnished to:

K. C. Collette, Esquire HRS District

111 Georgia Avenue

West Palm Beach, FL 3340

William R. Cave Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

Amy Jones, Director Office of Licensure and

Certification Department of Health and

Rehabilitative Services Jacksonville, FL 32231

Docket for Case No: 85-001939

Orders for Case No: 85-001939