STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRENT WILLIAM DAVIDSON, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1731

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on August 10, 1987, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles A. Stampelos, Esquire

Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey 600 First Florida Bank Building Tallahassee, Florida 32301

For Respondent: Allen R. Grossman, Esquire

Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32399-1050

PROCEDURAL STATEMENT

The Petitioner, Brent William Davidson, applied for a medical license by endorsement pursuant to Section 458.313, Florida Statutes. The Petitioner's application was denied by the Board of Medicine (hereinafter referred to as the "Board"), by Order dated March 25, 1987. The Petitioner filed a Petition for Formal Administrative Proceeding challenging this proposed decision of the Board.

At the formal hearing, the Petitioner testified on his own behalf and presented the testimony of Dorothy Faircloth and Ottilie Stafford. Ms. Stafford was accepted as an expert in academic programs and college instruction. The Petitioner also offered 7 exhibits. Petitioner's exhibits 1-4 and 6-7 were accepted into evidence. Petitioner's exhibit 5 was rejected.

The parties jointly offered 2 exhibits which were marked as "Joint Exhibits" and were accepted into evidence.

The Respondent called no witnesses and offered no exhibits other than the Joint Exhibits.

The parties have timely filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

ISSUES

The questions of fact and law at issue in this proceeding have been agreed to by the parties and have been set out in a Prehearing Stipulation entered into by the parties. The Prehearing Stipulation has been accepted into evidence as Joint Exhibit 1.

FINDINGS OF FACT

1. The Petitioner received a Bachelors Degree from the University of Montemorelos on June 1, 1978.

   
   

2. The Petitioner received a Medical Degree from the University of Montemorelos on June 12, 1982.

   
   

3. The University of Montemorelos is located in Montemorelos, Nuevo Leon, Mexico.

   
   

4. The Petitioner Successfully passed the ECFMG examination in 1982.

   
   

5. The Petitioner successfully completed a fifth pathway program at Loma Linda University School of Medicine effective June 30, 1983 (July 1, 1982 - June 30, 1983).

   
   

6. The Petitioner successfully passed the December, 1982, FLEX examination in California and was licensed to practice medicine in California effective November 13, 1984.

   
   

7. The Petitioner Successfully completed his PGY 1, 2, and 3 training, i.e., a residency program in internal medicine at Charles F. Kettering Memorial Hospital and Wright State University, School of Medicine and Affiliated Hospitals on June 30, 1986 (July 1, 1983 - June 30, 1986).

   
   

8. The Petitioner is in good standing to practice medicine in California, Tennessee and Georgia.

   
   

9. The Petitioner currently practices medicine in Jellico, Tennessee. He is self-employed and on the staff of Jellico Community Hospital.

   
   

10. The Petitioner applied for licensure in Florida by endorsement. His application was dated January 29, 1986. The Petitioner paid the required application fee.

    
    

11. By notice dated March 6, 1986, Ms. Dorothy Faircloth the Executive Director of the Board, notified the Petitioner that his application was incomplete because of his failure to provide:

    copy of 5th pathway certificate, undergraduate degree notarized as stated above. [Emphasis added].

    
    

12. Independently of the March 6, 1986 notice from Ms. Faircloth, the Petitioner sent a notarized copy of his bachelors degree from the University of Montemorelos to the Board by letter dated March 6, 1986.

    
    

13. Board staff notified the Petitioner on or about March 14, 1986, that staff was unable to recommend favorable approval of Petitioner's application by endorsement because he did not possess an undergraduate degree from a United States four-year college or university. In particular, the Petitioner was informed that he failed to fulfill the requirements of Sections 458.311(3)(a) and 458.313(1), Florida Statutes. The Petitioner was also told the following:

    
    

    According to your application you do not possess an undergraduate degree from a United States four year college or university; and for incomplete application process.

    
    

14. Section 458.311(3)(a), Florida Statutes, which requires an applicant to "[h]ave completed undergraduate work in an accredited United States college or university" was also quoted in the Board staff's notice to the Petitioner.

    
    

15. The Petitioner's application was considered by the Board at its meeting of April 4-6, 1986. The Agenda for that meeting included a list of ineligible applicants, including the Petitioner. The following language was included on the list pertaining to the Petitioner:

    
    

    458.313(1) and 458.1311(3)(1) [sic];

    applicant did a 5th pathway and does not have an undergraduate degree from a U.S. college or university.

    
    

16. As a result of the denial of his application by the Board, the Petitioner filed an application in the Spring of 1986 for admission into the Adult Degree Program (hereinafter referred to as the "ADP") of Atlantic Union College (hereinafter referred to as "Atlantic").

    
    

17. Atlantic is a fully-accredit United States college located in South Lancaster, Massachusetts. It has been accredited since approximately 1946 or 1947.

    
    

18. The ADP at Atlantic was begun in 1972. It is an external degree program based upon a short on-campus period of time, during which a student develops an outline of study and begins work on the program with supervision. The student then returns home where the course of study is pursued for 6 months. Students then return to the campus for a one-week mini-course.

    
    

19. On the application for admission into the ADP at Atlantic filed by the Petitioner, the Petitioner answered question 14, which requested, among other things, a short essay discussing the applicant's educational goals, by explaining that he was seeking an undergraduate degree from Atlantic in order to comply with the requirements of Section 458.311(3)(a), Florida Statutes.

    
    

20. The Petitioner was accepted by Atlantic into its ADP.

21. The Petitioner's acceptance into the ADP was based upon a review of his previous academic record and experience. Based upon that review, Atlantic required the Petitioner to complete one unit in the ADP in order to receive a Bachelor of Science degree in General Science.

    
    

22. A "unit" in the ADP is the equivalent of 16 semester hours of study at a university or college.

    
    

23. In order for a student to be awarded an undergraduate degree from Atlantic, the college generally requires that the student earn the equivalent of

    8 units. The last 2 units of study must, according to Atlantic's catalogue, be earned in the ADP at Atlantic in order for a student to be awarded an undergraduate degree from Atlantic.

    
    

24. The requirement that the last 2 units of study be earned in the ADP was waived for the Petitioner, based upon a "rule of thumb" exception which the admissions committee recognizes. That exception is to award an undergraduate degree based upon only one unit of study if an individual has already earned graduate degrees.

    
    

25. The Petitioner enrolled in the ADP at Atlantic for a period of approximately six months.

    
    

26. During the six months of the Petitioner's enrollment at Atlantic, he spent approximately three weeks on the campus of the college; approximately two weeks at the beginning of the program and one week at the end.

    
    

27. During the first two weeks of the program the Petitioner developed the course of his studies and prepared an outline of his proposed course. The course of study, which was to be in the humanities, was approved by a study supervisor.

    
    

28. The Petitioner's course of study consisted of an in-depth study of photography, the history of photography, actual work in photography, including taking black and white and color photographs, processing, developing and mounting of black and white photographs and a presentation of color pictures taken by the Petitioner. The Petitioner wrote a paper on the history of photography and completed a study on architecture in Chicago which was documented photographically and in a paper. The Petitioner also attended a one- week mini-course at the end of the program.

    
    

29. The Petitioner completed the course of study approved by Atlantic and received an "A" for his work. The Petitioner graduated with distinction.

    
    

30. Effective January 11, 1987, the Petitioner received a Bachelor of Science degree in General Science, a "four-year" degree, from Atlantic.

    
    

31. The degree awarded to the Petitioner was based largely on the work he had completed at the University of Montemorelos and in part on the one unit of work in humanities performed at Atlantic.

    
    

32. On February 8, 1987, the Petitioner appeared before the Board. The Board considered the degree awarded to the Petitioner by Atlantic and, by a vote of 6 to 5, denied Petitioner's application.

33. An Order was issued by the Board on March 25, 1987, indicating the Board's intent to deny the Petitioner's application for licensure as a physician by endorsement. The Board rejected the application for the following reason:

    
    

    You have failed to demonstrate that you completed undergraduate work in an accredited United States college or university, as required by Section 458.311(3)(a), Florida Statues, in conjunction with Section 458.313(1), Florida Statutes (1985).

    
    

34. There is no statute or rule which explicates the proper interpretation of Section 458.311(3)(a), Florida Statutes. Nor has the Board applied Section 458.311(3)(a), Florida Statutes, to any licensure applicant based on substantially the same facts involved in this case.

    
    

35. On May 29, 1985, Ms. Faircloth, in her capacity as Executive Director of the Board, executed an Affidavit in the case of Edwardo M. Montes, M.D. v. State of Florida, Board of Medical Examiners, 7 F.A.L.R. 5717 (Final Order Filed November 11, 1985). In pertinent part, Ms. Faircloth stated the following:

    
    

    1. The Board has consistently interpreted the requirement of Section 458.311(3)(a), Florida Statutes, to require a diploma or official transcript showing that an undergraduate degree has been awarded as the only evidence of successful completion of undergraduate work as required by law.

    2. To the best of Affiant's knowledge and belief, no applicant for medical licensure pursuant to Section 458.311(3), Florida Statutes, has been licensed by the Board of Medical Examiners who has not submitted a diploma or official transcript showing that an undergraduate degree has been awarded.

       
       

       CONCLUSIONS OF LAW

       
       

36. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1986 Supp.).

    
    

37. The Petitioner is seeking to be licensed as a physician by endorsement in the State of Florida pursuant to Section 458.313, Florida Statutes. The burden of proving entitlement to such a license is on the Petitioner. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

38. Section 458.313, Florida Statutes, requires, among other things, that an applicant meet the requirements of Section 458.311, Florida Statutes. At issue in this proceeding is the question of whether the Petitioner has satisfied the requirement of Section 458.311(3)(a), Florida Statutes. Section 458.311(3)(a), Florida Statutes, allows licensure of an applicant seeking licensure through the "fifth pathway," if the applicant "[h]as completed undergraduate work in an accredited United States college or university." The Board has agreed that the Petitioner meets all other statutory and rule requirements for licensure as a physician by endorsement in Florida.

39. The Petitioner has raised a number of arguments in support of his position that his receipt of a Bachelor of Science degree in General Science from Atlantic satisfies the requirement of Section 458.311(3)(a), Florida Statutes. Most of the Petitioner's arguments are based upon the Petitioner's position that the Board, in its Final Order in the Montes case, established a policy of only requiring applicants to provide a degree received from an accredited United States college or university in order to meet the requirement of Section 458.311(3)(a), Florida Statutes. Although the facts and result in the Montes case are distinguishable from this case, the Board's conclusions of law in Montes and its instructions to the Petitioner in this case indicate that the Board has required that an applicant only needs to provide a degree received from an accredited United States college or university in order to meet the requirement of Section 458.311(3)(a), Florida Statutes.

    
    

40. The Board's conclusions of law in Montes are consistent with the proper statutory construction of the terms "completed undergraduate work" contained in Section 458.311(3)(a), Florida Statutes. In Montes, the Board concluded the following:

    
    

    Words used in a statute should be given their common and ordinary meaning. "Completed undergraduate work" means exactly what it says. When one completes undergraduate work, one is awarded a degree. Degree is defined as "a title conferred on students by a college, university, or professional school on completion of a program of study." (e.g.) Webster's Ninth New Collegiate Dictionary. (1984).

    
    

41. Based upon this language and the Board's actions in this case, the Board has concluded that an applicant has "completed undergraduate work" as required by Section 458.311(3)(a), Florida Statutes, if the applicant is awarded a degree from an accredited United States college or university. The Board's interpretation of Section 458.311(3)(a), Florida Statutes, quoted, supra, is a proper interpretation and should be applied in this case.

    
    

42. In reliance upon the Board's instructions that the Petitioner failed to qualify for licensure in Florida because he did not possess an undergraduate degree from an accredited United States college or university, the Petitioner took steps to meet this requirement. Having complied with the Board's interpretation of Section 458.311(3)(a), Florida Statutes, the Board should not ignore its own previously established interpretation. See Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977); and Section 12O.66(12)(c), Florida Statutes.

    
    

43. In support of its proposed denial of the Petitioner's application, the Board has argued that it is appropriate for the Board to look beyond and behind the "individual pieces of paper, submitted by an applicant....in order to determine the validity of any representation contained therein." Such a policy is not inconsistent with the Board's action and interpretation of Section 458.311(3)(a), Florida Statutes, in Montes or the interpretation of that Section being applied in this case. Generally, all that Section 458.311(3)(a), Florida Statutes, requires is that an applicant possess an undergraduate degree; if, however, there is any question about the degree, it may be appropriate for the Board to resolve the question. Although there may be no inconsistency with the

    Board's desire to look beyond the paper evidencing an undergraduate degree, the Board has failed to present sufficient evidence to support the application of such a policy. If the Board wishes to rely upon a policy of looking beyond the document evidencing an undergraduate degree submitted by an applicant, that policy must be established by expert testimony, documentary opinion, or other appropriate evidence. Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So.2d 380 (Fla. 1st DCA 1985). The Board has failed to present such evidence in this case.

    
    

44. More importantly, the Board has failed to present sufficient evidence in this case to support a conclusion that the piece of paper at issue in this case -- the degree from Atlantic awarded to the Petitioner -- does not validly represent what it purports to be: evidence of the completion of undergraduate work at an accredited United States college.

    
    

45. The Board has also argued that the degree awarded by Atlantic "does net meet the requirements of the letter, of the spirit or of the intent of Section 458.311, Florida Statutes." The Board, however, has offered no interpretation of Section 458.311, Florida Statutes, inconsistent with a conclusion of law that the Petitioner has complied with the letter and spirit of that Section and the intent of the Legislature in enacting it.

    
    

46. Finally, the Board has argued that the Petitioner has failed to meet the requirement of Section 458.311(3)(a), Florida Statutes, because the degree he earned at Atlantic was based primarily on his work at the University of Montemorelos and because the Petitioner "did not even meet the minimum requirements for graduation from..." Atlantic. The later argument must be rejected because the Board has failed to substantiate its policy of looking beyond an applicant's degree and because the Board failed to prove that the Petitioner was not properly awarded a degree by Atlantic. The former argument must be rejected because of the Board's failure to substantiate its policy and because it is inconsistent with the requirement of Section 458.311(3)(a), Florida Statutes. That Section does not require that every minute of study an applicant performs in earning an undergraduate degree must be performed on the campus of the college or university. Where and how a degree may be earned at an accredited United States college is within the discretion of the college. Although the Legislature recognized that such discretion should not be unbridled, it provided assurances against abuse by requiring that the college or university issuing the degree be properly accredited

    
    

47. Based upon the evidence presented in this case, the Petitioner, in earning a Bachelor of Science degree from Atlantic, has proved that he completed undergraduate work as contemplated by Section 458.311(3)(a), Florida Statutes. That undergraduate work was completed by the Petitioner "at an accredited United States college or university." The Petitioner is, therefore, entitled to licensure by endorsement in the State of Florida as a physician.

    
    

48. It is further concluded that the Board is equitably estopped from denying the Petitioner licensure. All of the elements necessary for equitable estoppel to apply are present in this case:

1. A representation as to a material fact that is contrary to a later-asserted position;

   
   

2. Reliance on that representation; and

3. A change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981). The Board represented to the Petitioner that he needed to possess an undergraduate degree from an accredited United States college or university. In reliance thereon, the Petitioner obtained an undergraduate degree from Atlantic, an accredited United States college. The Board then modified its position by, in effect, insisting that the Petitioner possess an undergraduate degree which the Board believes is satisfactory. The imposition of this additional condition, which the Board has failed to prove is a proper agency policy, was imposed only after the Petitioner relied on and satisfied the Board's originally stated position. In light of the fact that the Board was informed by the Petitioner of his plans for obtaining an undergraduate degree in reliance on the Board's position, to allow the Board to now impose an additional, unsupported condition would be patently unfair to the Petitioner.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued GRANTING the Petitioner's

application for licensure by endorsement as a physician in Florida.

DONE and ORDERED this 14th day of October, 1987, in Tallahassee, Florida.

LARRY SARTIN

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 14th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1731

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 1-3 and 5-9.

2 10-13. The date referenced in the third sentence should be March 6, 1986 and not March 6, 1987. The fifth sentence is irrelevant.

Respondent's Proposed Findings of Fact

1. 18. The question at issue does not only request that an applicant describe himself, "stating his strengths and

   weaknesses and experiences" as suggested by the Respondent.

2. Irrelevant.

3. Irrelevant. The Board failed to prove that it is proper to do so in this case.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Medicine

130 North Monroe Street Tallahassee, Florida 32399-0750

Tom Gallagher, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Charles A. Stampelos, Esquire Finley, Kumble, Wagner, Heine,

Underberg, Manley, Myerson & Casey 600 First Florida Bank Building Tallahassee, Florida 32301

Allen R. Grossman, Esquire Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32399-1050

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

BRENT WILLIAM DAVIDSON,

Petitioner,

vs. DOAH CASE NO. 87-1731

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICINE

Respondent.

/

FINAL ORDER

The Board of Medicine of the Department of Professional Regulation, after having reviewed the Recommended Order entered in this case by Larry J. Sartin, Division of Administrative Hearing, on October 14, 1987 (Exhibit A), the Exceptions to the Recommended Order filed by the Respondent (Exhibit B), the complete record, and after hearing oral argument of the parties and being otherwise fully advised in the premises enters the following Order:

1. Petitioner was represented by Charles A. Stampelos, Esquire, Respondent was represented by Allen R. Grossman, Esquire.

2. The Board has jurisdiction over this matter pursuant to Section 120.57(1), Florida Statutes and Chapter 458, Florida Statutes.

RULING ON EXCEPTIONS FILED BY RESPONDENT

1. Respondent took Exception to paragraph fourteen (14) of the Findings of Fact, that "the Petitioner's application was considered by the Board at its meeting of April 4-6, 1986. The Board finds this Finding of Fact was not based upon competent substantial evidence in the record and therefore adopts the Exception to the Recommended Order of the Respondent, for the reasons stated therein, specifically, transcript pages 34, 35, & 38.

   
   

2. Respondent took exception to a portion of paragraph fifteen (15) of the Findings of Fact of the Hearing Officer, as set forth in Exception number 2 of the Respondent. The Board finds that the Hearing Officer's Finding of Fact was not based upon competent substantial evidence in the record, and therefore, adopts the Exception to the Recommended Order of the Respondent for the reasons stated therein.

   
   

3. The Respondent took exception to a portion of paragraph twenty (20) of the Findings of Fact of the Hearing Officer set forth in Exception number three

   (3) of the Respondent. The Board finds that the Hearing Officer's Finding of Fact was supported by competent substantial evidence, therefore rejects the Exception filed by the Respondent.

   
   

4. The Respondent took exception to paragraph twenty-eight (28) of the Recommended Order of the Hearing Officer. The Board finds that the Hearing Officer's Finding of Fact was supported by competent substantial evidence and therefore rejects the forth Exception of the Respondent.

   
   

5. The Respondent took exception to the Hearing Officer's ruling in regard to Respondent's Proposed Finding of Fact found in paragraph twenty-five (25). The Board determined that it is not obligated to consider exceptions filed to a Hearing Officer's ruling on a proposed finding of fact and therefore rejects the fifth exception of the Respondent.

   
   

6. Respondent took exception to the Hearing Officers ruling on paragraph twenty-six (26) of the Respondent's Proposed Finding of Fact. The Board rejects the sixth exception of the Respondent as the Hearing Officer's determination was based on, competent substantial evidence.

   
   

7. The Respondent took exception to the Hearing Officer's Conclusion of Law as set forth in paragraph seven (7) of the Respondents exceptions. The Board finds that the Hearing Officer has misinterpreted Section 458.311(3)(a), Florida Statutes, and therefore adopts the seventh exception of the Respondent.

   
   

8. The Respondent took exception to the Hearing Officer's Conclusion that the Board is estopped from considering the nature of the Petitioner's undergraduate work. The Board adopts the Respondent's eighth exception.

The remaining Findings of Fact are adopted by the Board of Medicine as being based on competent substantial evidence, and the remaining Conclusions of Law of the Hearing Officer as set forth in the Recommended Order are adopted by the Board.

The Board adopts the Recommendation of the Hearing Officer that the Petitioner's application for licensure by endorsement be granted.

WHEREFORE, the Board hereby orders that the Petitioner's Application for Licensure by endorsement be granted.

DONE and ORDERED this 18th day of December, 1987 by the Board of Medicine.

Emilio Eschevarria, M.D. Chairman, Board of Medicine

Docket for Case No: 87-001731

Orders for Case No: 87-001731