STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ASUNCION INTERIAN, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1672

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on September 17, 1993, in Tallahassee, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: O. Frank Valladares, Esquire

2151 LeJeune Road, Suite 310 Coral Gables, Florida 33134

For Respondent: Michael A. Mone', Esquire

Assistant Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

1. Whether the Department of Business and Professional Regulation, subsequent to October 1, 1993, still has the authority to issue a physician's license pursuant to subsection (8) of Section 458.311, Florida Statutes (Supp. 1992)?

   
   

2. If so, whether Petitioner's application for licensure as a physician pursuant to subsection (8) of Section 458.311, Florida Statutes (Supp. 1992), should nonetheless be denied on the grounds set forth in the order of the Department of Professional Regulation (now the Department of Business and Professional Regulation and hereinafter referred to as the "Department"), Board of Medicine (hereinafter referred to as the "Board" or "Respondent"), which was signed on September 25, 1992, and filed with the Agency Clerk on October 21, 1992?

PRELIMINARY STATEMENT

By order signed September 25, 1992, and filed with the Agency Clerk on October 21, 1992, Respondent notified Petitioner of its intention to deny her application for licensure as a physician pursuant to subsection (8) of Section 458.311, Florida Statutes (Supp. 1992). In the order, Respondent indicated that its proposed action was based upon the following grounds:

[Y]ou have not provided any reasonable proof of your graduation from medical school in Cuba or of any post graduate training or practice as required by statute.

Petitioner requested a formal administrative hearing on Respondent's proposed denial of her application. On April 1, 1993, the case was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal administrative hearing Petitioner had requested.

The final hearing in this case was originally scheduled for June 21, 1993.

On June 3, 1993, Respondent filed a motion requesting that the hearing be continued. On June 10, 1993, Petitioner filed a written response in which she indicated that she "join[ed]" in the motion. By order issued June 14, 1993, the motion for continuance was granted and the hearing was reset for September 17, 1993.

The hearing was held on September 17, 1993, as scheduled. Petitioner was the only witness to testify at the hearing. In addition to her testimony, a total of six exhibits (Petitioner's Exhibit 1 and Respondent's Exhibits 1 through 5) were offered and received into evidence.

At the close of the evidentiary portion of the hearing on September 17, 1993, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than ten days following the Hearing Officer's receipt of the hearing transcript. The Hearing Officer asked the parties to address in their respective post-hearing submittals, among other things, what effect, if any, the October 1, 1993, repeal of subsection (8) of Section 458.311, Florida Statutes (Supp. 1992), would have on the instant case if, as appeared a virtual certainty, this matter was still pending on that date.

The Hearing Officer received the hearing transcript on October 12, 1993.

On October 25, 1993, and October 27, 1993, respectively, Respondent and Petitioner filed their post-hearing submittals. The parties' post-hearing submittals contain what are labelled as "findings of fact." These "findings of fact" have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. Petitioner is a native of Cuba.

   
   

2. She graduated from medical school in Cuba in July of 1981.

3. For a one year period, from July of 1981, until July of 1982, Petitioner practiced medicine in Cuba as part of her postgraduate medical training.

   
   

4. Petitioner emigrated from Cuba for political reasons in November of 1985.

   
   

5. Cuban authorities did not let Petitioner take with her any documentation demonstrating that she had graduated from medical school and had one year of postgraduate medical training in Cuba.

   
   

6. After leaving Cuba, Petitioner first went to Spain.

   
   

7. She remained in Spain for slightly less than a year and a half.

   
   

8. In April of 1987, Petitioner immigrated to the United States from Spain.

   
   

9. On or about December 2, 1991, Petitioner submitted to the Board an application for licensure as a physician pursuant to subsection (8) of Section 458.311, Florida Statutes (1991).

   
   

10. The Board, through its staff, advised Petitioner that it considered her application to be incomplete and gave her several opportunities to supplement her application with additional documentation.

    
    

11. Petitioner's efforts to complete her application did not fully satisfy the Board.

    
    

12. By order signed September 25, 1992, and filed with the Agency Clerk on October 21, 1992, the Board notified Petitioner of its intention to deny her application for licensure on the grounds that she had

    
    

    not provided any reasonable proof of [he]r graduation from medical school in Cuba or of any post graduate training or practice as required by statute. See Section 458.311(8)(a)1., a., b., and c., Florida Statutes.

    
    

13. Thereafter, Petitioner requested a formal hearing on the matter.

    
    

    CONCLUSIONS OF LAW

    
    

14. Petitioner is seeking to be licensed as a physician pursuant to subsection (8) of Section 458.311, Florida Statutes (Supp. 1992).

    
    

15. The Board takes the position that Petitioner has not met her burden of proving that she meets the criteria for licensure set forth in Section 458.311(8)(a)1.a., b., and c., Florida Statutes (Supp. 1992), which provide as follows: 1/

    
    

    (8) Notwithstanding any of the provisions of this section, the department shall issue a restricted license to any applicant who successfully completes the Florida Board Examination and who the board certifies has

    met the criteria of subparagraph (a)1. . . .

    as follows:

    (a)1.a. Is a graduate of a foreign medical institution located in a country in the Western Hemisphere with which the United States does not maintain diplomatic relations;

    1. Received a medical education which was substantially similar at the time of the applicant's graduation to approved United States programs;

    2. Practiced medicine in a foreign country from which he immigrated to the United States of America and has lawful immigration status, including employment authority;

    
    

    Petitioner takes a contrary position and urges the Hearing Officer to find that she is "qualified for licensure by examination pursuant to [S]ection 458.311(8), Florida Statutes."

    
    

16. There is no longer any need, however, to resolve this dispute between the Board and Petitioner in light of the last sentence of subsection (8) of Section 458.311, Florida Statutes (Supp. 1992), which reads as follows:

    
    

    This subsection is repealed effective October 1, 1993.

    
    

17. Inasmuch as subsection (8) of Section 458.311, Florida Statutes (Supp. 1992), was repealed effective October 1, 1993, the Department is now without authority to grant Petitioner's application for licensure pursuant to that subsection regardless of whether the proof she submitted at hearing is deemed sufficient to demonstrate that she meets the criteria prescribed by subparagraph (a)1. of the subsection. 2/ See Tel Service Co. v. General Capital Corporation,

    227 So.2d 667, 671 (Fla. 1969)("penalty or forfeiture [provided by usury statutes] possesses no immunity against statutory repeal or modification and the enactment of legislation to this effect abates such penalty or forfeiture pro tanto even during the pendency of an appeal from a final judgment predicated on such statutory penalties or forfeiture"); State ex rel. Arnold v. Revels, 109 So.2d 1, 3 (Fla. 1959)("when the jurisdiction of a court depends upon a statute which is repealed or otherwise nullified, the jurisdiction falls even over pending causes, unless the repealing statute contains a saving clause" 3/); Yaffee v. International Company, Inc., 80 So.2d 910, 911-12 (Fla. 1955)("repealing statutes should be given retrospective operation . . . where a right or remedy has been created wholly by statute;" "when the statute is repealed the right or remedy created by the statute falls with it"); Lavernia

    v. Department of Professional Regulation, Board of Medicine, 616 So.2d 53 (Fla. 1st DCA 1993)("Florida follows the general rule that a change in a licensure statute that occurs during the pendency of an application for licensure is operative as to the application, so that the law as changed, rather than as it existed at the time the application was filed, determines whether the license should be granted"); Bureau of Crimes Compensation, Department of Labor and Employment Security v. Williams, 405 So.2d 747, 748 (Fla. 2d DCA 1981)("[r]epealing statutes apply retrospectively in all situations where a right or remedy has been created wholly by statute;" "[t]hus, when the legislature repeals a statute, the right or remedy created by the statute falls with it").

18. Accordingly, Petitioner's application for licensure pursuant to subsection (8) of Section 458.311, Florida Statutes (Supp. 1992,) should be denied on the ground that that subsection was repealed effective October 1, 1993.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that a final order be entered denying Petitioner's application for licensure pursuant to subsection (8) of Section 458.311, Florida Statutes (Supp. 1992), on the ground that that subsection was repealed effective October 1, 1993.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1993.

STUART M. LERNER

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 3rd day of November, 1993.

ENDNOTES

1/ An applicant for licensure whose application has been preliminarily denied by the Board "carries the 'ultimate burden of persuasion' of entitlement" to the license he seeks. See Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981).

2/ Although asked to specifically address in her post-hearing submittal the effect, if any, the last sentence of subsection (8) of Section 458.311, Florida Statutes (Supp. 1992), would have on the instant case if her application was still pending as of October 1, 1993, Petitioner did not do so. The Board did address the issue in its post-hearing submittal, but devoted only a single sentence to the matter in which it simply stated, without any further elaboration, that "Section 458.311(8), Florida Statutes has not been repealed by the legislature of the State of Florida." The Board did not cite, nor has the Hearing Officer's research revealed, any legislative enactment that has deleted, modified, or otherwise impacted the clear and unambiguous language of the last sentence of subsection (8) of Section 458.311, Florida Statutes (Supp. 1992).

In the absence of any such legislative enactment, the language "must be given its plain and ordinary meaning," as the Hearing Officer has done in concluding that subsection (8) was repealed effective October 1, 1993. Mayo Clinic Jacksonville v. Department of Professional Regulation, Board of Medicine, 18 FLW D2253 (Fla. 1st DCA October 15, 1993).

3/ Chapters 90-228 and 90-249, Laws of Florida, which established the October 1, 1993, repeal date for subsection (8) of Section 458.311, Florida Statutes, contain no such "saving clause."

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-1672

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the parties:

Petitioner's Proposed Findings

First, second and third unnumbered paragraphs: Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

Fourth unnumbered paragraph: Rejected as a finding of fact because it is more in the nature of a summary of evidence adduced at hearing than a finding of fact based upon such evidence.

Fifth unnumbered paragraph: First sentence, before comma: Rejected as a finding of fact because it is more in the nature of a summary of evidence adduced at hearing than a finding of fact based upon such evidence; First sentence, after comma: Rejected because it is simply a summary of a statement that counsel for Respondent made during opening argument rather than a finding of fact based upon evidence adduced during the evidentiary portion of the hearing; Second and third sentences: Rejected because, even if true, they would have no bearing on the outcome of the instant case.

Respondent's Proposed Findings

1-3. Accepted and incorporated in substance.

4. Rejected because it is more in the nature of a statement of the law than a finding of fact. Moreover, it is an erroneous statement of the law.

5-7. Accepted and incorporated in substance.

1. Rejected as a finding of fact because it is more in the nature of a summary of evidence adduced at hearing than a finding of fact based upon such evidence.

2. Rejected because, even if true, it would have no bearing on the outcome of the instant case.

COPIES FURNISHED:

O. Frank Valladares, Esquire 2151 LeJeune Road, Suite 310 Coral Gables, Florida 33134

Michael A. Mone', Esquire Assistant Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050

Dorothy Faircloth, Executive Director

Department of Business and Professional Regulation Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, Esquire General Counsel

Department of Business and 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 of time 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.

Docket for Case No: 93-001672

Orders for Case No: 93-001672