STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RENE N. MAYORGA BARANELLO, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0979

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

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 February 26, 1988 in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Alfonso E. Oviedb-Reyes, Esquire

2100 Coral Way, Suite 403

Miami, Florida 35145

For Respondent: Allen R. Grossman, Esquire

Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050

PROCEDURAL BACKGROUND

Rene N. Mayorga-Baranello (hereinafter Petitioner) applied for a medical license by endorsement in the State of Florida. His application was denied by the Board of Medicine and he requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. At the final hearing, Petitioner testified in his own behalf as the only witness in the case. Petitioner's Exhibit 1 was duly offered and admitted into evidence. The parties submitted joint exhibits 1-8. All of the exhibits were admitted without objections. The Respondent 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.

FINDINGS OF FACT

1. Petitioner applied for licensure as a physician through endorsement by application dated May 20, 1986.

   
   

2. On October 9, 1986, Petitioner appeared before the Board of Medical Examiners, Foreign Graduate Committee regarding his application for licensure.

3. The Board of Medical Examiners (hereinafter "Board") at its meeting of October 11, 1986, voted to deny his application for licensure by endorsement.

   
   

4. The Board stated as grounds for the denial that Petitioner had failed to document that he was a legitimate graduate of a foreign medical school.

   
   

5. The Petitioner attended the National Autonomous University of Nicaragua in the country of Nicaragua.

   
   

6. The National Autonomous University of Nicaragua requires, under Nicaraguan law, the completion of "social service" prior to receipt of a medical school diploma. The social service requirement involves between 1 and 3 full years of medical service in Nicaragua, usually at or very near to, the war zone.

   
   

7. The Petitioner completed all course work required for the Diploma of Doctor in Medicine and Surgery from the National Autonomous University of Nicaragua but completed only eleven months of the social service requirement. The Petitioner left Nicaragua and came to the United States in April 1981.

   
   

8. The Petitioner was not awarded his medical diploma because he failed to complete the social service requirement.

   
   

9. The Petitioner testified at the final hearing that he failed to complete the social service requirement and fled his native country because of political persecution. The Petitioner stated that he was in fear for his life when he left Nicaragua.

   
   

10. In order to take the Federation of State Medical Board's licensure examination (FLEX), Petitioner needed a medical school diploma.

    
    

11. While in this country, the Petitioner searched for a medical school that would award him a diploma for his work in Nicaragua. The Petitioner's search included schools in Mexico, Honduras, Puerto Rico and the Dominican Republic. The Petitioner received a favorable response from CIFAS University in the Dominican Republic.

    
    

12. CIFAS reviewed the Petitioner's transcripts of completed course work from the National Autonomous University of Nicaragua. Petitioner did not do any additional course work or training through CIFAS. Upon completion of its review of the Petitioner's medical education and training, CIFAS awarded Petitioner a medical degree on January 10, 1983.

    
    

13. On February 17, 1983, Petitioner was issued a certificate from the Education Commission for Foreign Medical Graduates.

    
    

14. The Petitioner took and passed the FLEX in June of 1983 and received a medical license in the State of Georgia.

    
    

15. At the time of filing his application, Petitioner was a permanent resident of the United States.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

17. The final hearing in this matter, held pursuant to Section 120.57(1), Florida Statutes, is a de novo proceeding, Florida Department of Transportation

    v. J.W.C., 396 So.2d 778 (Fla. 1st DCA 1981). The Petitioner, as an applicant for licensure, has the burden of proof to establish his eligibility for licensure. Rule 28-6.008, Florida Administrative Code; Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

18. The provisions relating to the licensure of medical doctors in the State of Florida are set forth in Chapter 458, Florida Statutes. Section 458.313, Florida Statutes relates to licensure by endorsement and requires among other things, that an applicant meet the requirements for licensure by examination, as set forth in Section 458.311(1)(b)-(f), Florida Statutes.

    
    

19. In pertinent part Section 458.311(1)(f), Florida Statutes requires that the applicant be a "graduate of a foreign medical school registered with the World Health Organization and certified pursuant to s. 458.314 as having met the standards required to accredit medical schools in the United States or reasonably comparable standards."

    
    

20. Rule 21M-22.001, Florida Administrative Code, states that "[a] foreign medical graduate is a person holding a medical degree awarded by a college or school located outside the United States."

    
    

21. CIFAS is a medical school which is registered with the World Health Organization and certified pursuant to Section 458.314, Florida Statutes as having met the standards required to accredit medical schools in the United States or reasonably comparable standards.

    
    

22. The relevant and narrow controlling issue in this case is whether the Petitioner is a "graduate" of CIFAS medical school.

    
    

23. The Board's position is that it is implicit in Section 458.311(1)(f), Florida Statutes and Rule 21M-22.001, Florida Administrative Code that the applicant must have completed course work at the institution from which he claims to be a graduate or from which he holds a medical degree.

    
    

24. The Petitioner has established that he is in fact a "graduate" of a foreign medical school as that term is used in the Florida Statutes, the Florida Administrative Code and standard English usage.

    
    

25. Rule 21M-22.001, Florida Administrative Code defines the term graduate; Section 458.311, Florida Statutes uses the term but does not define it. Rule 21M-22.001 defines a foreign medical "graduate" as one who holds a medical degree awarded by a college located outside the United States. Webster's II New Riverside University Dictionary defines "graduate" as "one who has received an academic degree or diploma" or "to grant an academic degree or diploma."

    
    

26. The Board's argument that an applicant must have physically attended the University from which he holds a degree places an additional condition on the term "graduate" not found in either the statutes, rules or common understanding and definition of the word graduate. Although it is somewhat perplexing that CIFAS would not require some type of resident coursework prior to awarding a degree, that alone is not dispositive of this issue. The salient point is that CIFAS is a university registered with the World Health Organization and accepted by the State of Florida as a school which may award a

    recognizable medical degree. In the absence of a showing that the medical degree in question was obtained through fraud, misrepresentation or some other type of misconduct, the Petitioner's degree from CIFAS must be accepted.

    
    

27. The Petitioner has met his burden of proving eligibility for licensure as a physician by endorsement by having complied with all the relevant provisions of Section 458.13, Florida Statutes.

    
    

28. Upon the request of Petitioner, official recognition was taken of 8 USCS Section 1101(a)(42); The United Nations Universal Declaration of Human Rights (General Assembly Resolution 217A(III) as of December 10, 1948; and, the United Nations Convention Relating to the Status of Refugees. (Adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons). The cited federal statute regards immigration and naturalization of aliens in the United States and neither purports to nor actually has any relevance to matters involved in this cause regarding professional licensure in the State of Florida. The Convention Relating to The Status of Refugees document is directed toward the protection of a specific class of people and by its own provisions does not apply to a permanent resident of the United States. In the United Nations documents, the Universal Declaration of Human Rights speaks to the treatment of citizens within their own countries throughout the world and the universal concepts do have an indirect bearing on this matter. However, the documents do not provide for anything more than fair and equal treatment which is amply provided or and addressed in the pertinent statutes and rules.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order granting

Petitioner's application for licensure by endorsement.

DONE and ORDERED this 25th day of May, 1988 in Tallahassee, Leon County, 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 25th day of May, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0979

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 the Petitioner: (None submitted).

Rulings on Proposed Findings of Fact Submitted by the Respondent:

COPIES FURNISHED:

Alfonso Oviedo-Reyes, Esquire 2100 Coral Way, Suite 403

Miami, Florida 33145

Allen R. Grossman, Esquire Department of Legal Affairs The Capitol LL04

Tallahassee, Florida 32399-1050

William O'Neil, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Ms. Dorothy Faircloth Executive Director Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-000979

Orders for Case No: 87-000979