STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLOTTE HOLTON, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4067

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on April 14, 1987, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Charlotte Holton, pro se

4200 Northwest 76th Avenue Pompano Beach, Florida 33065

For Respondent: Leonard T. Helfand, Esquire

Department of Health and Rehabilitative Services

401 Northwest Second Avenue, Suite 790 Miami, Florida 33128

PROCEDURAL BACKGROUND

At the final hearing, the Petitioner testified in her own behalf and submitted no documentary evidence. The Respondent presented the testimony of one witness and submitted Respondent's Exhibits 1 and 2. The parties have submitted post-hearing proposed findings of fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order. In addition, the supplement to Respondent's proposed recommended order filed on May 6, 1987, has been considered.

FINDINGS OF FACT

Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact:

1. By letter dated August 11, 1986, the Respondent advised the Petitioner that her application for supervisor license under the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes, was denied. The letter provided

   that the application was denied because the Petitioner does "not have a B.S. degree required under Section 10D-41.68(3), Florida Administrative Code."

   
   

2. By letter dated September 9, 1986, the Petitioner requested a formal administrative hearing.

   
   

3. The Petitioner took and passed the proficiency examination for clinical laboratory technologists given by the U.S. Office of Health and Human Services (formerly Department of Health, Education and Welfare) in 1977.

   
   

4. Based in part on the Petitioner's satisfactory grade on the federal examination, she was licensed in the State of Florida as a clinical laboratory technologist in microbiology, clinical chemistry, hematology and histology.

   
   

5. The Petitioner has over six years of pertinent clinical laboratory experience.

   
   

6. The Petitioner does not have a bachelor's degree.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 129.57(1) Florida Statutes.

   
   

8. The Department of Health and Rehabilitative Services is charged with the responsibility of regulating and enforcing the provisions of the Clinical Laboratory Law, Chapter 483, Florida Statutes.

9. Rule 10D-41.68, Florida Administrative Code, provides in part that: Laboratory Personnel - Qualifications -

   Supervisor.

   A supervisor shall meet one of the following requirements:

   * * *

   (3) Is qualified as a clinical labora- tory technologist pursuant to the provisions of Subsection 10D-41.69(1),

   (2) or (3), and in addition meets one of the following requirements:

   * * *

   (c) Has 6 years of experience in an approved laboratory.

10. Rule 10D-41.69, Florida Administrative Code, provides in part: Laboratory Personnel - Qualifications -

    Technologist.

    A technologist shall meet one of the following requirements:

    1. Holds a bachelor's degree from an accredited college or university in a Medical Technology Program ..., or

    2. Successful completion of three years of academic studies ... and the successful completion ... of at least

       12 months in a school of Medical Technology ..., or

    3. Holds at least a bachelor's degree from an accredited college or university in one of the chemical, physical or biological sciences ..., or

    * * *

    (6) For applicants qualifying prior to January 1, 1986, achievement of a satisfactory grade on the U.S. office of Health and Human Services approved proficiency examination in clinical laboratory technology and at least 6 years of pertinent experience in an approved laboratory.

    
    

11. Although the Petitioner has 6 years of experience in an approved laboratory, she is not qualified as a clinical laboratory technologist pursuant to the provisions of Subsections 10D-41.69(1), (2) or (3). Rather, the Petitioner is qualified as a clinical laboratory technologist in accordance with the provisions of Subsection 10D-41.69(6). Thus, the Petitioner may not avail herself of the requirements for supervisor provided in Rule 10D-41.68(3)(c), Florida Administrative Code, which only apply to clinical laboratory technologists licensed under subsections 10D-41.69(1), (2) or (3).

    
    

12. The purpose of Rule 10D-41.69(6), Florida Administrative Code, which went into effect in June of 1985, was to indicate discontinuance of the "H.H.S. exam/6 years experience" method of licensure approval in favor of the requirement of a bachelor's degree or its equivalent. This purpose was further expressed in Rule 10D-41.68(3)(c), Florida Administrative Code, which does not recognize the "H.H.S. exam/6 years experience" technologist license as a valid predicate for licensure as a clinical laboratory supervisor.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That Charlotte Holton's application for supervisor license under the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes, be DENIED.

DONE AND ORDERED this 11th day of May, 1987, in Tallahassee, Florida.

W. MATTHEW STEVENSON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4067

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by Petitioner

1. Rejected as subordinate and/or unnecessary.

2. Adopted in substance in Findings of Fact 1 and 2.

3. Addressed in Conclusions of Law section.

4. Rejected as subordinate and/or unnecessary.

5. Adopted in substance in Finding of Fact 5.

6. Rejected as argument.

7. Addressed in Conclusions of Law section.

Rulings on Proposed Findings of Fact Submitted by Respondent

1. Adopted in substance in Finding of Fact 1.

2. Adopted in substance in Finding of Fact 4.

3. Addressed in Conclusions of Law section.

4. Addressed in Conclusions of Law section.

5. Rejected as legal argument.

6. Rejected as legal argument.

COPIES FURNISHED:

Ms. Charlotte Holton

4200 Northwest 76th Avenue Pompano Beach, Florida 33065

Leonard T. Helfand, Esquire Department of Health and

Rehabilitative Services

401 Northwest Second Avenue, Suite 790 Miami, Florida 33128

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, Esquire Acting General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 86-004067

Orders for Case No: 86-004067