STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-1940

)

LUIS A. DOURAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above-styled case on November 11, 1985 in Miami, Florida.

APPEARANCES

For Petitioner: Morton Laitner, Esquire

Dade County Health Department 1350 Northwest 14th Street Miami, Florida 33125

For Respondent: Verne L. Freeland, Esquire

Post Office Box 693652 Miami, Florida 33169

By Administrative Complaint dated March 29, 1985 Petitioner seeks to revoke the license of Respondent, Luis A. Doural as a Clinical Laboratory Technologist in the State of Florida. As grounds therefor it is alleged that the Respondent altered his technologist license to show license specialties in the areas of Microbiology, Serology, Clinical Chemistry, Hematology and Immunohematology when in fact Respondent was licensed only in the areas of Serology, Hematology and Immunohematology. By his Petition For Administrative Hearing, dated April 26, 1985, Respondent admitted misrepresenting or overstating his areas of licensed specialties in order to obtain a job at Miami General Hospital. Additionally, the Respondent admitted that there were no disputed issues of material fact. The parties agreed, pursuant to Section 120.57, Florida Statutes (Supp. 1984), for the hearing to be held in accordance with Section 120.57(1),

Florida Statutes (Supp. 1984) for the purpose of hearing testimony to determine whether the penalty of revocation was too severe under the circumstances of this case.

The Petitioner presented the testimony of Gilbert Santos, Kenneth McCormick, M.D., Margaret P. Arnold, Joan E. Altamore and George Sherwood Taylor. Petitioner's Exhibits 1-4 were received into evidence. Respondent testified on his own behalf but introduced no exhibits.

The parties submitted posthearing proposed findings of fact and conclusions of law in the form of a proposed recommended order. The parties stipulated to the facts surrounding the violation as charged by the Administrative Complaint and there is no dispute as to the material facts in this case.

FINDINGS OF FACT

1. The parties stipulated to the following facts:

   
   

   1. That at all times material to these proceedings, Respondent, Luis A. Doural was licensed as Clinical Laboratory Technologist, License No. JC 0008567, in the specialty areas of Serology, Hematology and Immunohematology. which are 2, 4 and 5, respectively.

      
      

   2. That Respondent, Luis A. Doural altered his Clinical Laboratory Technologist License by adding the specialty areas of Microbiology and Clinical chemistry which are 1 and 3, respectively. This alteration resulted in Respondent's license showing specialty areas of Microbiology, Serology, Clinical Chemistry, Hematology and Immunohematology which are 1, 2, 3, 4 and 5, respectively.

      
      

   3. That Respondent, Luis A. Dural altered his Clinical Laboratory Technologist license in order to obtain a job as a Clinical Laboratory Technologist at Miami General Hospital.

      
      

   4. That the alteration was discovered in a routine check of Miami General Hospital by Petitioner and not as a result of a malfeasance or misfeasance on the part of Respondent.

2. The following facts were determined at the hearing:

   
   

   1. That Respondent had failed to pass the test in Microbiology and Clinical Chemistry.

      
      

   2. That Respondent had performed some procedures in Clinical Chemistry under supervision but in his Petition For Administrative Hearings he alleged that he was not called upon to perform any procedure in the unlicensed areas.

      
      

   3. That Respondent tried to cover-up the misrepresentation of his license when confronted by the hospital.

      
      

3. The following testimony of Respondent went unrebutted:

   
   

   1. That he was under extreme pressure and financial hardship due to medical care needed by his daughter and that these circumstances caused his poor judgment in his intentional misrepresentation of his license.

      
      

   2. That he had lost his job with the Miami General Hospital.

      
      

   3. That if his license was revoked he would lose his present job where he is now working in the area of specialties in which he is licensed.

      
      

      CONCLUSIONS OF LAW

      
      

4. The Division of Administrative Hearings (Division) has jurisdiction over the parties to, and the subject matter of, these proceedings as a result of the parties agreeing to the Division hearing this matter for the purpose of determining the penalty to be imposed, notwithstanding that there is no dispute as to the material facts in this matter.

   
   

5. Section 483.21(2)(7), Florida Statutes (1983) 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).

   * * *

   
   

   (2) Engaging or attempting to engage in, or representing himself as entitled to perform, any clinical laboratory procedure or category of procedures not authorized pursuant to his license.

   
   

   * * *

   
   

   (7) Violating or aiding and abetting in the violation of any provision of this part or the rules promulgated hereunder. (Emphasis added)

   
   

6. Section 483.041(2), Florida Statutes (1983), includes technologist in the definition of "clinical laboratory personnel."

   
   

7. Section 483.23(2), Florida Statutes (1983), provides as follows:

   
   

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

   
   

8. Section 483.221(1)(a), Florida Statutes (1983), provides in pertinent part as follows:

   
   

   The Department may deny, suspend, revoke . .

   . a license . . . or impose an administrative fine for the violation of any provision of this part or rules promulgated hereunder. . .

   .

   
   

9. The burden of proof is on the party asserting the affirmative, Balino v. Department of HRS, 348 So. 2d 7 (1 DCA Fla. 1977). Petitioner has shown that Respondent not only engaged in performing but also represented himself as entitled to perform laboratory procedures or category of procedures not authorized pursuant to his license in violation Section 483.21(2), Florida Statutes (1983). Petitioner has also shown that Respondent altered his license and used the altered license to obtain employment in violation of Section 483.23(2), Florida Statutes (1983) which is a violation of Section 483.21(7), Florida Statutes (1983). The Petitioner has proven that grounds exist for disciplinary action under Section 483.221(1) Florida Statutes (l983).

10. License revocation is an extreme and drastic penalty which should be applied in the most flagrant causes. Taylor v. State Beverage Department, 194 So. 2d 321 (2 DCA Fla. 1962). In making a recommendation for the penalty to be imposed, mitigating circumstances should be considered. See Pauline v. Borer, 274 So 2d 1, 3 (Fla. 1973). In considering the demeanor of the Respondent it was apparent that he was not without remorse and the consequences of revocation would serve no useful purpose.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Respondent be found guilty of violating Section 4S3.21(2)(7) and 483.23(2), Florida Statutes (1983). For such violations, considering the mitigating circumstances surrounding the violations, it is RECOMMENDED that the Petitioner enter a final order suspending Respondent's Clinical Laboratory Technologist License for a period of two (2) years and assess the Respondent with an Administrative Fine of

$500.00, stay the suspension and place the Respondent on probation for a period of two (2) years, with conditions necessary to carry out the probation provided Respondent pays the

$500.00 Administrative Fine within ninety (90) days. The Respondent's failure to pay the fine within the time specified will result in his license being suspended for a period of two

(2) years with the requirement that when the fine is paid and the suspension lifted, the Respondent must appear before the Petitioner for reinstatement of his license. Appearance before the Petitioner for reinstatement will not be required provided the fine is paid timely and the conditions of probation are not violated in any respect.

Respectfully submitted and entered this 28th day of January, 1986, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1986.

COPIES FURNISHED:

Morton Laitner, Esquire

Dade County Health Department 1350 NW 14th Street

Miami, Florida 33125

Verne L. Freeland, Esquire., P. O. Box 693652

Miami, Florida 332169

David Pingree Secretary

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee Florida 32301

Docket for Case No: 85-001940

Orders for Case No: 85-001940