STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 97-2852

)

PAUL BUTLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 5, 1997, via video teleconference, with the Petitioner and the Respondent appearing in Miami, Florida, before Patricia Hart Malono, a duly designated Administrative Law Judge of the Division of Administrative Hearings, who was located in Tallahassee, Florida.

APPEARANCES

For Petitioner: Morton R. Laitner, Esquire

Department of Health

Dade County Health Department 1350 Northwest 14th Street Building 7, Third Floor Miami, Florida 33125

For Respondent: Paul Butler, pro se

30525 Southwest 149th Court Leisure City, Florida 33033

STATEMENT OF THE ISSUES

Whether the Petitioner committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated April 14, 1997, the Department of Health ("Department") charged Paul E. Butler with violations of Section 468.3101, Florida Statutes, asserting that he disregarded the expiration date of his certificate as a basic X-ray machine operator and performed X-rays without a valid certificate; that he presented an altered radiologic technology certificate and misrepresented facts on an application for employment as a radiologic technician; and that he failed to conform to acceptable prevailing radiologic technology practice by having alcohol on his breath while at work as a radiologic technologist.

Mr. Butler timely requested a formal hearing, and the Department transferred the file to the Division of Administrative Hearings for the assignment of an Administrative Law Judge. By notice, a final hearing was scheduled for September 5, 1997.

At the hearing, the Department presented the testimony of three witnesses: Kristi Green, office manager of South Dade Orthopedic Associates; William Paczetti, acting chief of the Department's Bureau of Radiation Control; and Sallie Johnson, an environmental specialist with the Bureau of Radiation Control.

Petitioner's Exhibits A through O, consisting of fifteen exhibits, were offered and received into evidence. At the close of the hearing, the Department withdrew its allegation that

Mr. Butler had reported for work with alcohol on his breath.

Mr. Butler testified in his own behalf, and Respondent's

Exhibit 1, a composite consisting of ten pages, was offered and received into evidence.

The transcript of the proceedings was filed on October 17, 1997, and the Department timely submitted a proposed recommended order, which has been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department of Health is the state agency responsible for certifying and regulating basic X-ray machine operators in Florida. Sections 468.3001-.312, Florida Statutes.

2. On March 30, 1993, Paul Butler was issued Basic X-ray Machine Operator Certificate Number 7729. The certificate expired December 31, 1994, and Mr. Butler requested renewal by submitting a renewal form and the required fee to the Department on December 20, 1996.

3. Mr. Butler admitted that he knew his certificate expired December 31, 1994, but that he nonetheless took numerous X-rays subsequent to that date.

4. On January 4, 1996, Mr. Butler prepared and submitted an application for employment to Kristie Green, office manager for South Dade Orthopedic Associates. In that application,

   Mr. Butler signed his name and appended to his name the designation "RMA, CRT."

5. Ms. Green interviewed Mr. Butler, and he provided her with a copy of his certificate that showed an expiration date of December 31, 1995. Ms. Green noted that his certificate had expired four days previously, and Mr. Butler told her he was short of funds and would send in his renewal application when he received his first paycheck. Ms. Green hired Mr. Butler as an X- ray technician and medical assistant.

6. After Mr. Butler repeatedly assured her that he had sent his renewal application to the Department, Ms. Green fired

   Mr. Butler on June 20, 1996, because he had not obtained a current Basic X-ray Machine Operator certificate.

7. The evidence presented by the Department is sufficient to establish that Mr. Butler took X-rays without having an active certificate, and that he identified himself in his employment application to South Dade Orthopedic Associates as a Certified Radiologic Technologist by using the letters "CRT" after his signature. The evidence presented is also sufficient to permit the inference that Mr. Butler altered his basic X-ray Machine Operator certificate by changing the expiration date from December 31, 1994, to December 31, 1995.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 120.57(1), Florida Statutes (1997).

9. In its Administrative Complaint, the Department seeks to

   impose on Mr. Butler administrative penalties that include suspension of his certificate and the imposition of an administrative fine. Therefore, the Department has the burden of proving by clear and convincing evidence that Mr. Butler committed the violations alleged in the Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

10. Sections 468.3001-.312, Florida Statutes, govern the regulation of radiologic technologists. Section 468.302, Florida Statutes, provides:

    468.302 Use of radiation; identification of certified person; limitations; exceptions.-

    (1) Except as hereinafter provided, no person shall use radiation on a human being unless he:

    1. Is a licensed practitioner; or

    2. Is the holder of a certificate, as provided in this part, and is operating under the direct supervision or general supervision of a licensed practitioner in each particular case.

       (2)(a) A person holding a certificate as a basic X-ray machine operator may use the title "Basic X-ray Machine Operator."

       ***

    3. A person holding a certificate as a general radiographer may use the title "Certified Radiologic Technologist- Radiographer" or the letters "CRT-R" after his name.

    4. A person holding a certificate as a limited computed tomography technologist may use the title "Certified Radiologic Technologist-Computed Tomography" or the letters "CRT-C" after his name.

    5. A person holding a certificate as a radiation therapy technologist may use the title "Certified Radiologic Technologist-

       Therapy" or the letters "CRT-T" after his name.

    6. A person holding a certificate as a nuclear medicine technologist may use the title "Certified Radiologic Technologist- Nuclear Medicine" or the letters "CRT-N" after his name.

    
    

    No other person is entitled to use a title or letters contained in this subsection or to hold himself out in any way, whether orally

    or in writing, expressly or by implication, as being so certified.

    
    

11. Section 468.309(1) requires that certificates issued to radiologic technologists be renewed by submitting a renewal application to the Department together with the renewal fee. Failure to renew a certificate by the specified expiration date results in the certificate reverting to an inactive status. Section 468.309(4).

12. Section 468.3101(1) provides in subsection (f) that "[e]ngaging in unprofessional conduct" and in subsection (h) that "[v]iolating any provision of this part, [or] any rule of the department" is grounds for disciplinary action.

13. Based on the facts found herein, the Department has proven by clear and convincing evidence that Mr. Butler committed acts that are grounds for disciplinary action. Mr. Butler has admitted that he took X-rays and performed the duties of a Basic X-ray Machine Operator after his certificate expired on

    December 31, 1994, and so violated Section 468.302(1).

    
    

    Mr. Butler violated Section 468.302(2) when he identified himself on his application for employment to South Dade Orthopedic Associates as a Certified Radiologic Technologist by using the designation "CRT" after his name. Mr. Butler also misrepresented his licensure status when he provided South Dade Orthopedic Association with a copy of his Basic X-ray Machine Operator certificate which had been altered to show an expiration date of December 31, 1995, when the certificate issued by the Department

    showed an expiration date of December 31, 1994. This act

    constitutes unprofessional conduct as defined by the Department in Rule 64E-3.011(1)(e)9, Florida Administrative Code.

14. In Section 468.3101(2), the Department is authorized to impose penalties on a person found to have committed a violation identified in subsection (1) ranging from revocation or denial of an application to imposition of an administrative fine to issuance of a reprimand. In Rule 64E-3.011, the Department has, as it is required to do in Section 468. 3101(4), identified the penalties which should be imposed for various violations. It has also included in Rule 64E-3.011(2) certain factors that shall be taken into consideration "in determining the appropriate disciplinary action to be imposed." In recommending the appropriate penalty in this case, both the penalties identified by the Department in Rule 64E-3.011 (1) and the factors identified in Rule 64E-3.011 (2) have been considered.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health issue a final order finding that Paul Butler violated Section 468.3101(h), Florida Statutes, by violating Section 468.302(1) and (2) and that he violated Section 468.3101(f). Based on the violations, the Department of Health should impose the following penalties:

1. Suspend Mr. Butler's Basic X-ray Machine Operator certificate for a period of six (6) months;

2. Impose an administrative fine in the amount of Six hundred twenty-five dollars ($625.00); and

3. Condition the reinstatement of Mr. Butler's certificate on his having completed thirty (30) hours of continuing education.

DONE AND ENTERED this 12th day of January, 1998, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1998.

COPIES FURNISHED:

Morton Laitner, Esquire Department of Health

401 Northwest 2nd Avenue Suite N-1014

Miami, Florida 33128

Paul Butler, pro se

30525 Southwest 149th Court Leisure City, Florida 33033

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard

Building 6

Tallahassee, Florida 32399-0700

Pete Peterson, General Counsel Department of Health

1317 Winewood Boulevard Building 6, Room 102-E

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-002852

Orders for Case No: 97-002852