STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSE THOMAS PEREIRA, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4180

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on February 17, 1987, at Clearwater, Florida.

APPEARANCES

For Petitioner: Jose Thomas Pereira, pro se

13415 Conch Court

Tampa, Florida 33618

For Respondent: Barbara McPherscn, Esquire

Department of Health and Rehabilitative Services

2255 East Bay Drive Clearwater, Florida 33515

By letter dated August 19, 1986, Jose Thomas Pereira, Petitioner, requested a hearing to contest the denial by the Department of Health and Rehabilitative Services, Respondent, of his application to sit for the examination for laboratory supervisor in the Immunohemotology specialty. Petitioner's application was denied because he does not hold a bachelor's degree.

At the hearing Petitioner testified in his own behalf, Respondent called one witness and one exhibit was admitted into evidence.

FINDINGS OF FACT

1. Petitioner took the examination for licensure as a laboratory supervisor in 1981, 1982, 1984 and 1985. In the fall of 1984 he passed that portion of the examination covering Immunohistology but failed the portion covering Supervision and Administration. His score on the Immunohemotology portion was 32 with 31 required for a passing grade. On the Supervision and Administration portion his score was 47 with 48 required to pass.

2. On June 6, 1985, the rules affecting laboratory personnel licensing was changed to require candidates for the examination for which Petitioner applied to hold a bachelor's degree. Petitioner does not hold a bachelor's degree and acknowledged that he does not meet the current academic requirements to sit for the examination.

   
   

3. Although the required procedures for making rule changes were followed by Respondent, Petitioner contends that he was not advised of the proposed changes, and, had he been so advised, he would have applied to retake the examination in Supervision and Administration before the rule changes became effective and would have qualified to sit for the examination.

   
   

4. Respondent's witness presented Petitioner's record. This record shows that Petitioner, in October 1984 passed the Immunohistology portion of the examination and failed the Supervision and Administration portion by one point. This record also revealed that Petitioner applied to retake the examination in Supervision and Administration in January 1985 and sat for this examination in April 1985. On the examination his test score was 39 with 48 required to pass.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

6. Rule 1OD-41.68, Florida Administrative Code, provides that, to qualify as Supervisor, laboratory personnel shall meet one of the following requirements:

   
   

   1. Has earned a doctoral degree from an accredited institution with a chemical, physical, or biological science as a major subject, and has at least two years of pertinent clinical laboratory experience in one of the laboratory specialties in an approved laboratory, or

   2. Holds a master's degree from an accredited academic institution with a major in one of

      the chemical, physical, or biological sciences and has at least 3 years of pertinent clinical laboratory experience of which at least 2 years has been spent working in one of the laboratory specialties in an approved laboratory, or

   3. is qualified as a clinical laboratory technologist pursuant to the provisions of Subsection 10D-41.69(1),(2) or (3) and in addition meets one of the following requirements:

      1. Holds a master's degree from an accredited academic institution with a major in

         Management or Allied Health and has 4 years of experience, or

      2. Holds a specialist certification gained as a result of one year of training in one of the laboratory specialties in a post baccalaureate program approved by the Committee on Allied Health Education and Accreditation or a

         program with equivalent standards and has 4 years of experience, or

      3. Has 6 years of experience in an approved laboratory.

         
         

7. Petitioner presented no evidence to show that he met any of the above requirements. His principal contention is that, once he is deemed qualified to take the examination for Supervisor, rules should not be changed to increase the requirements. This position is without merit.

   
   

8. In this case the Petitioner has the burden to show that he is entitled to the relief requested. Balino v. Department of HRS, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

9. From the foregoing it is concluded that Petitioner has failed to show that he is qualified to take the examination for laboratory supervisor. It is

RECOMMENDED that Petitioner's application to sit for the laboratory Supervisor examination be denied.

ENTERED this 25th day of February, 1987, in Tallahassee, Florida.

K.N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1987.

COPIES FURNISHED:

Jose Thomas Pereira 13415 Conch Court

Tampa, Florida 33618

Barbara McPherson, Esquire Department of Health and Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33515

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: 86-004180

Orders for Case No: 86-004180