STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ENRIQUE RUEDA ARGUELLO, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1550

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on June 17, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: Enrique Rueda Arguello, pro se

9409 Fountainbleau Boulevard, Apt. #101

Miami, Florida 33172

For Respondent: M. Catherine Lannon, Esquire

Department of Legal Affairs The Capitol PL-01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue presented is whether Petitioner is entitled to take the examination for certification as a physician assistant.

PRELIMINARY STATEMENT

By Order entered February 24, 1993, Respondent notified Petitioner that his application for certification as a physician assistant had been denied, and Petitioner timely requested a formal hearing regarding that determination. This cause was thereafter transferred to the Division of Administrative Hearings for the conduct of a formal proceeding.

Petitioner Enrique Rueda Arguello testified on his own behalf, and Respondent presented the testimony of Bobbie Sawner. Additionally, Petitioner's Composite Exhibit numbered 1 and Respondent's Exhibits numbered 1-5 were admitted in evidence.

This matter is being expedited since the examination Petitioner wishes to take is about to be administered. Petitioner gave a closing statement at the conclusion of the hearing in lieu of filing a proposed recommended order. The transcript of the final hearing was filed on July 7, 1993. Respondent filed a

proposed recommended order on July 6, 1993, and an amended proposed recommended order on July 8, 1993. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order. The parties have stipulated that any exceptions will be filed within 10 days from the date this Recommended Order is issued.

FINDINGS OF FACT

1. Petitioner filed an application for certification as a physician assistant pursuant to Section 458.347(7)(b), Florida Statutes, a special avenue of certification as a physician assistant for graduates of foreign medical schools. In furtherance of that application, he appeared before the Physician Assistant Committee of the Board of Medicine.

   
   

2. Subsequent to his appearance before that Committee, on August 13, 1992, Respondent sent Petitioner a letter which provides, in pertinent part, as follows:

   
   

   This is to advise that your application for issuance of a temporary certification with the requirement that prior to issuance of temporary certificate you submit within 30 days of date of appearance, a new corrected and complete application to be reviewed by the Board staff. Please complete the enclosed application. You will be required, as a condition to take the examination, 2 new personalized letters of recommendation, specifically recommending you as a physician assistant.

   
   

   The letter did not enclose an application form for Petitioner to complete.

   Respondent admits that the information in the letter was incorrect because it confused temporary certification with the requirements for examination. It is apparent that the letter is also incorrect because it fails to advise Petitioner if his application was being granted or denied; moreover, the wording of the letter makes no sense.

   
   

3. By Order dated August 26, 1992, the Board of Medicine notified Petitioner that his application for temporary certification as a physician assistant was denied pursuant to the Committee's August 1 determination and the Board's August 9 determination that the length of time since Petitioner had last worked in the field of medicine or received significant medical education or training precluded him from being able to establish that he could practice as a physician assistant with reasonable skill and safety to the public. That Order further advised Petitioner, however, that the Board had granted Petitioner's application to sit for the certification examination pursuant to Section 458.347(7)(b), Florida Statutes, because Petitioner was eligible to take the examination to become certified as a physician assistant and that passage of the examination would serve to establish Petitioner's qualifications for practice. The Order specifically provided that the Board's permission for Petitioner to sit for the certification examination was "contingent upon and subsequent to receipt within 30 days" of Petitioner's appearance before the Physician Assistant Committee of (1) a complete and correct application and (2) two more letters of recommendation which specifically recommend Petitioner as a physician

   assistant. It would have been difficult for Petitioner to timely comply with the Order entered August 26 requiring him to file documents within 30 days of his August 1 appearance before the Committee.

   
   

4. By letter dated August 31, 1992, Petitioner requested an extension of one week by which to obtain the second letter of recommendation due to the devastation produced by Hurricane Andrew and Petitioner's inability to communicate with the doctor who would sign it. Petitioner did, however, submit another application which was postmarked August 31, 1992, and received by Respondent early in September. At hearing, Respondent advised that it was waiving the 30-day deadline contained in the August 26, 1992, Order due to the intervention of Hurricane Andrew and because Respondent had not strictly enforced such deadlines as to other applicants. Rather, Respondent simply required that Petitioner comply with its Order within a reasonable period of time.

   
   

5. By letter dated December 21, 1992, Respondent advised Petitioner that his application was incomplete because the Board had only received Petitioner's new application, one letter of recommendation, and Petitioner's request for an extension of time for submittal of the second letter. The letter further advised that the Board's staff's review of Petitioner's recent application had revealed some discrepancies requiring an explanation by Petitioner. The letter, therefore, advised Petitioner to submit one more recommendation letter, provide an explanation for six specified areas, and submit pages 8 and 9 of the application regarding Petitioner's clerkships. The letter further advised Petitioner that all information must be received by the Board no later than December 31, 1992.

   
   

6. On January 20, 1993, Respondent received an undated letter from Petitioner referencing Respondent's December 21, 1992, letter which was received by Petitioner on December 30. Petitioner's letter enclosed the additional letter of recommendation requested by the Board, responded specifically to the six areas of inquiry, and enclosed pages 8 and 9 of the Board's application form.

   
   

7. On January 20, 1993, the Board received a letter from Dr. Jose M. Bermudez, recommending Petitioner as a physician assistant.

   
   

8. On January 28, 1993, the Board sent Petitioner a letter advising him that the Board had received the letter of recommendation from Dr. Bermudez and pages 8 and 9 of the application. That letter further provided as follows:

   
   

   However, the Physician Assistant Committee required you to submit a new complete and accurate application, and two (2) additional letters of recommendation which specifically recommend you as a physician assistant.

   
   

   Enclosed you will find a complete physician assistant application. Please fill the application out in its entirety and submit it to the Board of Medicine as soon as possible.

   
   

9. In compliance with that request, Petitioner submitted yet another application for certification as a physician assistant, which was received by the Board on February 8, 1993.

10. On February 24, 1993, the Board of Medicine entered its Order denying Petitioner's application for certification as a physician assistant. The Order recited that the denial was based upon the determination made by the Physician Assistant Committee on January 8 and by the Board on January 13 because Petitioner "failed to submit a new and complete and accurate application and one new personalized letter of recommendation within the time frame allotted by the Board." That Order does not mention Petitioner's application to sit for the certification examination, the issue pending before the Board, since the Board had already denied Petitioner's application for certification by Order entered August 26, 1992. That February Order also advised Petitioner of his right to request an administrative hearing regarding the Board's determination.

    
    

11. On February 26, 1993, the Board's staff sent Petitioner a letter advising him that he had been certified by the Board to take the examination for licensure as a physician assistant to be administered in September, 1993.

    
    

12. On March 10, 1993, the staff sent Petitioner a letter acknowledging Petitioner's "request for a hearing on the denial of your application for certification as a physician assistant," and advising Petitioner that the February letter advising him that he had been certified to take the examination for licensure as a physician assistant had been sent to Petitioner in error. A "corrected" letter was enclosed. That "corrected" letter dated March 10 advised Petitioner that the Board had preliminarily denied him certification to take the examination for licensure as a physician assistant. By letter dated March 18, 1993, the Board's staff sent an additional letter to Petitioner advising Petitioner as to the correct dates for the examination.

    
    

13. In applying for temporary certification as a physician assistant and/or to sit for the certification examination, Petitioner has filed an additional application each time he has been instructed to do so by the Board or by the Board's staff and has submitted a letter explaining the information given in his applications each time that the Board's staff has requested that he do so. Petitioner has filed at least three such applications and has responded by letter to inquiries regarding the contents of his applications at least three times. Additionally, Petitioner has personally appeared before the Physician Assistant Committee on August 1, 1992, to be questioned regarding his qualifications. The Board has discovered some "discrepancies" or omissions in analyzing those various documents.

    
    

14. Petitioner's August application states that the ending date for medical school, assumedly the date he received his degree, was February 25, 1965. That date appears in three places. Further, the copy of his diploma submitted to the Board reflects that date. Yet, the December 21, 1992, form from the Board to Petitioner advises him that he must explain his ending date for medical school. In response to that indication that he must provide different information, Petitioner's letter received by the Board on January 20, 1993, states that the ending date for medical school was February 29, 1962. At hearing, Petitioner explained that he attempted to differentiate between the date he completed classes and the date he completed all requirements, including internships, in order to receive his diploma. The information contained in Petitioner's application is correct.

    
    

15. The August application contains an answer in the negative to question numbered 9 asking Petitioner if he is or has ever been emotionally or mentally ill. Although Petitioner's subsequent February 1993 application contains no answer to that question, the Board did not have before it the February

    application when it decided in January to deny Petitioner's application. Even so, Petitioner had no intention to be incomplete or inaccurate when he failed to answer that question on the February application.

    
    

16. In his August application Petitioner does not list the completion of any social service work in either section inquiring about post-graduate training or practice employment. In an application that Petitioner filed in 1985 requesting licensure as a physician, Petitioner had specifically detailed the social service work performed by him as part of his medical school training. In that application he listed the dates as January 1, 1963 to December 31, 1963. The letter Petitioner wrote to the Board in response to its December 1992 request for a better explanation states that his social service work was done between March 1, 1963 and September 30, 1963. There is no dispute regarding whether Petitioner did in fact complete his social service work requirement as part of his education in order to receive his diploma, and it is clear that such work was done in 1963. Although there is a discrepancy regarding which months during 1963 he did his social work, the discrepancy as to the months during which Petitioner did something 30 years ago does not make his application inaccurate. In fact, the August application may be more accurate than the 1985 application form.

    
    

17. The August application required Petitioner to list in chronological order from the date of graduation to the present all practice experience and/or employment. Petitioner advised that from February 28, 1970, to April 30, 1976, he was in private practice in Nicaragua. The Board's December 1992 letter asked for clarification because a prior application indicated additional activity. Petitioner's response letter advised that he was also in pediatric practice at the General Hospital of Managua from 1970 to 1972. His 1985 application did not mention the pediatric practice at General Hospital. At final hearing, Petitioner explained that he was in private practice at the same time that he practiced at the clinic in the hospital. Petitioner's 1985 and February 1993 applications, although not the subject of this proceeding, also contained some minor discrepancies regarding Petitioner's employment experience. For example, one shows Petitioner beginning his employment with the Nicaraguan Red Cross on May 1, 1976, and the other shows Petitioner's employment beginning on May 31, 1976. The parties do not dispute that Petitioner in fact practiced with the Nicaraguan Red Cross during that time period.

    
    

18. In further response to the question requiring Petitioner to list all of his practice experience or employment, Petitioner did not list his activities from September 10, 1984, and thereafter. The Board's December 21, 1992, letter to him requested that he account for all his activities for the time period of January 1, 1984, and thereafter. In his response he did not identify those activities except to say that during that time period he was living in Miami. The detailed information had been provided to the Board in response to a letter to Petitioner from the Board dated March 8, 1992, in conjunction with his original application for certification as a physician assistant, although he did not again provide that information when he was ordered by the Board to file a new application.

    
    

19. In Petitioner's August application, he listed no ending date regarding his private practice begun on January 1, 1984 in Managua, Nicaragua. Petitioner's 1985 physician license application showed that that employment ended September 10, 1984, whereas his February application showed that practice to have ended on September 15, 1984. Such a discrepancy is not material to Petitioner's application or eligibility.

20. The application form contains a section regarding clerkships and requests that each clerkship be specified. In the August application Petitioner did not specify his four individual clerkships. After being asked pursuant to the Board's staff's December 1992 letter to resubmit pages 8 and 9 as to his clerkships, Petitioner did so by referring to them as a group rather than breaking them down individually. He did the same in the February 1993 application. The parties do not dispute that Petitioner performed the required clerkships.

    
    

21. It is unclear how many letters recommending him as a physician assistant Petitioner has submitted to the Board. Petitioner referenced his submittal of photocopies of the "last two" letters of recommendation, the originals of which had previously been submitted to the Board, in a letter that Petitioner sent the Board in March of 1992. In correspondence from the Board to Petitioner in May of 1992 reference is made to the requirement that Petitioner submit another letter of recommendation because the Board did not have the original of that letter in its file. When the Board's staff instructed Petitioner to appear before the Physician Assistant Committee on August 1, 1992, the absence of necessary letters of recommendation was not one of the reasons given. The Board's August 26, 1992, Order requests "two more letters", which indicates that letters had been previously submitted. The staff's December 21, 1992, communication to Petitioner acknowledges receipt of one additional letter but requests another, which request was complied with at least by the submittal of the letter from Dr. Bermudez received by the Board on January 20, 1993.

    
    

22. Petitioner applied to be certified as a physician assistant and the Board determined that he was eligible to take the examination. Thereafter, through a series of mistakes and correct acts, the Board's staff requested Petitioner on a number of occasions to file additional applications which he did. When the Board's staff asked for clarification he responded in writing and by telephone call, and the Board agrees that it has telephone slips in Petitioner's file. Each time the Board's staff asked for different information than had been given in Petitioner's previous application(s), Petitioner provided more and/or different information. There is no suggestion that Petitioner attempted to provide inaccurate or false information, and it is found that Petitioner provided correct and complete information to the best of his ability. Petitioner's mistakes are certainly no greater than the mistakes made by the Board's staff in sending Petitioner conflicting instructions, conflicting correspondence, and one letter that did not make any sense.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

24. Petitioner filed an application for certification as a physician assistant pursuant to Section 458.347(7)(b), Florida Statutes. This is a special provision for the certification as physician assistants of unlicensed physicians who graduated from foreign medical schools. This one-time special avenue of licensure is only available to persons who applied for certification between July 1, 1990 and June 30, 1991. Petitioner is one of those persons. Further, only one examination for certification is available to Petitioner and those similarly situated, and that examination will be administered in September 1993.

25. The application for certification as a physician assistant and/or to take the examination to become a physician assistant filed by Petitioner during the "window" for such applications was not offered in evidence. Any alleged deficiencies in that application, therefore, are unknown. What is known is that by Order entered August 26, 1992, Petitioner's application for temporary certification was denied, but the Board ruled that Petitioner was eligible to take the examination to become certified, noting that passage of the examination would serve to establish Petitioner's qualifications for practice. The Order is silent as to what might have been the reasons that the Board required Petitioner in that Order to file by August 31, 1992, a complete and correct application and two additional letters of recommendation specifically recommending Petitioner as a physician assistant, making Petitioner's certification for examination contingent thereon. That Order did advise Petitioner of his right to request an administrative hearing, and Petitioner chose instead to comply with that Order and take the examination for certification.

    
    

26. The Board has waived the 30-day deadline because of Hurricane Andrew, the Governor's Executive Order, and the acceptance by the Board of late-filed documents by other applicants. The Board asserts, instead, that Petitioner should be held to a standard of filing within a reasonable time. Petitioner did so. He immediately filed a new application. He filed at least one additional letter of recommendation within a short time. Although it may be that the other letter of recommendation was not filed until January of 1993, there is no suggestion that Petitioner failed to attempt to secure that letter upon receipt of a copy of the Board's Order.

    
    

27. It is noted that Section 458.347(7)(b), Florida Statutes, does not require the filing of letters of recommendation nor do those portions of Section

    458.311 which are incorporated by reference. The requirement for two letters of recommendation is found in Section 458.347(7)(a) which only applies to the certification of physician assistants who have attended a physician assistant training program. Since the Board's August 26, 1992, Order requests two more letters, the inference is that Petitioner had previously filed such letters. Although it appears that the letter from Dr. Bermudez filed on January 20, 1993, may have been the second additional letter required by the Order, it would be arbitrary for the Board to rescind its determination that Petitioner had established his eligibility to take the examination based upon a requirement neither found in the statute nor explained by the Board.

    
    

28. The Board's February 24, 1993, Order denying Petitioner's application for certification as a physician assistant is curious since it does not specify that the Board is denying Petitioner the right to take the examination to establish his qualifications. Further, the Order recites as the basis for denial Petitioner's failure to submit a new complete and accurate application and one new personalized letter of recommendation "within the time frame allotted by the Board." The time frame allotted by the Board was 30 days from August 1, which information was found in the Board's Order dated August 26. Certainly Petitioner could not have complied before entry of the Order and cannot be held to know the Order's contents prior to his receipt of that Order. It is clear that the letter from Dr. Bermudez was received at least by January 20, 1993, prior to the entry of the Board's February 24 Order which refers to conference calls engaged in by the Board and by the Physician Assistant Committee in January 1993.

    
    

29. As to the incompleteness or inaccuracy of the application filed by Petitioner in August, it is clear that Petitioner provided the information the Board wanted although not in the specific format requested (grouping his

    clerkships rather than itemizing them) and substantially accounted for his medical education and medical training. Petitioner did fail to provide some information in the August application which had been disclosed in his original application filed during the "window" for doing so. He also failed to answer one question.

    
    

30. Leaving one answer blank does factually make Petitioner's August application incomplete. Any inaccuracies, however, are minor and are somewhat attributable to the Board's staff repeatedly asking Petitioner for additional information. For example, the staff raised questions as to the ending date for medical school when the August application advised the Board in three separate places that he obtained his doctor of medicine degree on February 25, 1965. Further, Petitioner had provided the Board with a copy of that degree.

    
    

31. None of the "discrepancies" discovered by the Board's staff is other than a minor discrepancy. Further, none of those discrepancies indicates that Petitioner is not eligible to sit for the examination. The Board does not suggest that Petitioner attempted to be inaccurate or incomplete. There is no suggestion that any information provided by Petitioner was false. There is no suggestion that Petitioner did other than his best to provide specific information and dates for activities which occurred 30 years ago. Lastly, there is no suggestion that Petitioner made any more mistakes in submitting his application than the Board's staff did in receiving and reviewing it.

    
    

32. It is the Board's position that the only issue under consideration herein is whether Petitioner did in fact submit a new complete and accurate application and one new personalized letter of recommendation within a reasonable time. By so limiting the issue, the issue in this case becomes whether Petitioner completed the paperwork in a manner satisfactory to the Board rather than whether Petitioner is qualified to take the examination which will only be given one time. Since the Board determined that Petitioner does have the qualifications to take the examination, preventing Petitioner from doing so because of his slow submittal of additional paperwork not required by law would be arbitrary conduct. Similarly, prohibiting Petitioner from taking the one- time examination because Petitioner left blank the answer to a question he had previously answered and because Petitioner continued to provide additional information in response to requests from the Board's staff which information was then utilized to establish "discrepancies" would be arbitrary. Such a decision would put form over substance.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered permitting Petitioner to sit for

the physician assistant examination to be administered during September of 1993.

DONE and ENTERED this 12th day of July, 1993, at Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1993.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-1550

1. Respondent's proposed findings of fact numbered 1-10 have been adopted in substance in this Recommended Order.

2. Respondent's proposed finding of fact numbered 11 has been rejected as not being supported by the weight of the evidence in this cause.

COPIES FURNISHED:

1. Catherine Lannon, Esquire Department of Legal Affairs The Capitol PL-01

   Tallahassee, Florida 32399-1050

   
   

   Enrique Rueda Arguello

   9409 Fountainbleau Boulevard, Apt. #101

   Miami, Florida 33172

   
   

   Dorothy Faircloth, Executive Director Department of Professional

   Regulation, Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792

   
   

   Jack McRay, General Counsel Department of Professional

   Regulation

   1940 North Monroe Street Tallahassee, Florida 32399-0792

   
   

   NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

   
   

   All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final

   order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

   
   

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

   AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA

   DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

   BOARD OF MEDICINE

   
   

   ENRIQUE RUEDA ARGUELLO,

   
   

   Petitioner,

   
   

   -vs- DOAH CASE NO. 93-155O

   
   

   DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF MEDICINE,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS CAUSE came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on August 8, 1993, in Tampa, Florida, for consideration of the Hearing Officer's Recommended Order, the Exceptions to the Recommended Order filed by the Respondent and the Petitioner's Response to the Exceptions (copies of which are attached hereto as Exhibits A, B and C respectively) in the above styled cause. Petitioner, Enrique Rueda Arguello, was not present. Respondent, the Board of Medicine, was represented by M. Catherine Lannon, Assistant Attorney General.

   
   

   Upon review of the Recommended Order, written exceptions and response by the parties, oral argument and after a review of the complete record in this case, the Board makes the following findings and conclusions.

   
   

   Findings of Fact

   
   

   1. The findings of fact as set forth in the Recommended Order, as amended by the Board's ruling on exceptions, are accepted and incorporated herein.

      
      

   2. There is competent substantial evidence to support the findings of fact, as amended.

Conclusions of Law

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

2. The conclusions of law set forth in the Recommended Order, as amended, are accepted and incorporated herein with the following additions:

   
   

3. The ability to practice medicine is not an absolute right, but is subject to police powers. Boedy v. Department of Professional Regulation, 463 So.2d 215 (Fla. 1985). The Legislature has granted discretionary authority to agencies enforcing statutes under the police power. This discretionary authority is particularly necessary when an agency regulates occupations which are potentially injurious to the public and which are practiced by privilege rather than by right. The agency then has the authority to determine fitness of those seeking licensure Astral Liquors, Inc. v. Department of Business Regulation, 463 So.2d 1130 (Fla. 1985)

   
   

4. Petitioner bears the burden of demonstrating his fitness to practice medicine as a physician assistant and his compliance with all the conditions required. Balino v. Department of Health and Rehabilitative Services, 348 So.2d

   349 (Fla. 1st DCA 1977) Florida Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). See also Rule 28-6.008(3), Florida Administrative Code.

   
   

5. The filing of a complete and correct application is not accomplished by the filing of multiple choice answers which requires the Board to decide which information is true and correct.

   
   

6. The issue involved in this cause was whether Petitioner complied with the Order of the Board issued on August 26, 1992, and whether Petitioner's failure to request a hearing before the Board pursuant to such Order, constituted a waiver of Petitioner's right to later contest that August 26, 1992 order.

   
   

7. There is competent substantial evidence to support the conclusions of law, as amended.

Rulings on Respondent's Exceptions to Findings of Fact

1. Respondent timely filed exceptions to the Recommended Order and Petitioner timely filed a written response to the exceptions. For reasons stated in those exceptions and oral argument presented, the Board finds the following:

   
   

2. Respondent's Exception 1 to the finding of fact set out in the Recommended Order, paragraph 3, that Petitioner would have had difficulty in complying with the August 26, 1993 order of the Board, is accepted.

   
   

3. Respondent's Exception 2 to the finding of fact set out in the Recommended Order, paragraph 6, that implies Petitioner was reasonable in the tendering of documents and the completeness of the information provided to the Board, is accepted.

   
   

4. Respondent's Exception 3 to the finding of fact in the Recommended Order, paragraph 9, that implies that Petitioner's application, as submitted, was complete, is accepted.

   
   

5. Respondent's Exception 4, to the finding of fact set out in the Recommended Order, paragraph 10, that a temporary certification is an authorization to take the physician assistant examination, is accepted.

6. Respondent's Exception 5 to the finding of fact set out in the Recommended Order, paragraph 14, that Petitioner provided correct information despite having provided conflicting information on two separate documents in the application, is accepted.

   
   

7. Respondent's Exception 6, is withdrawn.

   
   

8. Respondent's Exception 7 to the finding of fact set out in the Recommended Order, paragraph 17, that the discrepancies and misstatements in Petitioner's application documents were minor, is accepted.

   
   

9. Respondent's Exception 8 to the finding of fact set out in the Recommended Order, paragraph 19, that a discrepancy in Petitioner's dates of private practice is not material to Petitioner's application or eligibility, is accepted.

   
   

10. Respondent's Exception 9 to the finding of fact set out in the Recommended Order, paragraph 20, that Petitioner's application was complete and accurate and that the parties did not dispute whether Petitioner performed certain clerkships, is accepted.

    
    

11. Respondent's Exception 10 to the finding of fact set out in the Recommended Order, paragraph 21, that the letter of recommendation submitted to the Board on behalf of Petitioner was sufficient, is accepted.

    
    

12. Respondent's Exception 11 to the finding of fact set out in the Recommended Order, paragraph 22, that Petitioner's eligibility to take licensure examination was absolute, that the Petitioner had filed a complete and accurate application, that Petitioner did not attempt to provide inaccurate information and that mistakes by Board staff were material to a determination of Petitioner's licensure eligibility is accepted.

    
    

    Ruling on Respondent's Exceptions to Conclusions of Law

    
    

13. Respondent's Exception 12 to the conclusions of law set out in the Recommended Order, paragraph 25, that implies the burden of proof is upon the Board as opposed to Petitioner and that Petitioner was eligible to take the licensure examination based upon a condition stipulated in the August, 1993, order, is accepted.

    
    

14. Respondent's Exception 13 to the conclusions of law set out in the Recommended Order, paragraph 26, that Petitioner's subsequent application for licensure was accurate and that there was no evidence of Petitioner's having failed to attempt to submit a complete and accurate application, is accepted.

    
    

15. Respondent's Exception 14 to the conclusions of law set out in the Recommended Order, paragraph 27, that Petitioner was denied due process of law, is accepted.

    
    

16. Respondent's Exception 15 to the conclusions of law set out in the Recommended Order, paragraph 28, which describes as "curious" the action of the Board, that finds that the Petitioner couldn't have complied with the Board order and that the letter of recommendation was timely filed, is accepted.

17. Respondent's Exception 16 to the conclusions of law set out in the Recommended Order, paragraph 29, that Petitioner provided what was requested by the Board and that Petitioner substantially accounted for his medical education, is accepted.

    
    

18. Respondent's Exception 17 to the conclusions of law set out in the Recommended Order, paragraph 30, that Petitioner submitted a complete application, is accepted.

    
    

19. Respondent's Exception 18 to the conclusions of law set out in the Recommended Order, paragraph 31, that discrepancies in the licensure application were minor, that Petitioner did his best in attempting to complete such application and that problems encountered by the Board staff in the process was at issue, is accepted.

    
    

20. Respondent's Exception 19 to the conclusions of law set out in the Recommended Order, paragraph 32, that Petitioner, as applicant, submitted an accurate and timely licensure application, is accepted.

Recommendation

The Recommendation of certifying the Petitioner for licensure examination is rejected, Upon review of the record in this case, the Board determines that the recommendation by the Hearing Officer is rejected for the reasons stated above.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that the Respondent's

application for licensure by examination be denied.

This order takes effect upon filing with the Clerk of the Department of Business and Professional Regulation.

DONE AND ORDERED this 28th day of September, 1993.

Board of Medicine

Edward A. Dauer, M.D Acting Chairman

Notice of Right to Judicial Appeal

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the agency and by filing the filing fee and copy of a Notice of Appeal with the District Court of Appeal within thirty (30) days of the date of this Order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Petitioner, Enrique Rueda Arguello, 9409 Fountainbleau Blvd., #101, Miami, Florida 33172, by US Mail, this 30th day of September, 1993.

Marm Harris, Ed.D. Executive Director Board of Medicine

Docket for Case No: 93-001550

Orders for Case No: 93-001550