Findings Of Fact Petitioner is an instructor of mathematics at Glades Junior High School in Dade County, Florida. On May 10, 1967, Petitioner received a Rank III teacher's certificate from the Respondent. Petitioner has been certified as a Rank III teacher since that time. Petitioner most recently requested reevaluation of her certificate status on or about September 15, 1975. Petitioner sought certification as a Rank II teacher. The Respondent denied the request. Petitioner was awarded a Bachelor of Arts Degree from Hunter College on June 19, 1940. Petitioner was awarded a Bachelor of Law Degree by St. Johns University School of Law in September, 1943. At the time that Petitioner enrolled in the St. Johns University School of Law, the St. Johns University School of Law did not require that candidates for admission possess an undergraduate Bachelor's Degree in order to be enrolled. Candidates for admission were required to have completed at least two years of college in order to be enrolled.
The Issue The central issue in this case is whether Petitioner is entitled to licensure by endorsement.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Petitioner, Gerardo Hevilla, completed the application for licensure by endorsement and submitted all degrees, test results, certificates, recommendations, and other documents required by law to be considered for licensure by endorsement as a medical doctor in Florida. The degrees, test results, recommendations and other documents submitted by Petitioner are authentic. Petitioner obtained a doctor of medicine degree from the Universidad Nacional De Rosario in Argentina on July 1, 1980. Universidad Nacional De Rosario Medical School (School) is a medical school duly listed by the World Heath Organization. Graduates of the School are eligible to seek medical licensure in Florida by endorsement pursuant to the provisions found in Section 458.313, Florida Statutes, and the rules and regulations promulgated by the Board of Medicine (Board). On November 20, 1985, Petitioner satisfied the requirements of the Educational Council on Foreign Medical Graduates (ECFMG) and was issued ECFMG certificate no. 339-394-9. Petitioner obtained a passing score on the Federated Licensing Examination (FLEX) within 10 years immediately preceding his application for licensure by endorsement in Florida. Petitioner successfully completed one year of post- graduate training at Lincoln Medical and Mental Health Center as a resident in general surgery. Petitioner has satisfied all preliminary requirements of the Board to be considered for licensure by endorsement. Petitioner came to Florida in April, 1981. At that time he did not speak English and, therefore, was not able to pass the English portion of the ECFMG examination. In order to learn English, he enrolled at Miami High School. While enrolled at the high school, Petitioner volunteered his services to a clinic located approximately two blocks from the school. Petitioner worked at this clinic, LeGran Familia Clinic (Clinic), from 1982 until 1984, while he attempted to learn English. Since many of the doctors and patients at the Clinic spoke Spanish, Petitioner did not have difficulty. The Clinic had 20-22 licensed physicians on staff during the time Petitioner worked there. During the time Petitioner worked at the Clinic, he was primarily under the supervision of Dr. Mirabal. According to Dr. Mirabal, Petitioner was a brilliant, though ambiguous, physician. Petitioner did not represent himself to patients as a physician but was responsible for taking vital statistics, patient histories, and transcribing Dr. Mirabal's dictation. A licensed physician was present at the clinic at all times during which Petitioner performed these services. Subsequently, the Clinic came under investigation for Medicaid fraud. Petitioner was named as one of several defendants in the criminal prosecution. This charge was later dismissed by the prosecuting State Attorney and is not claimed as a basis for the denial of Petitioner's application for licensure. A second charge, the unauthorized practice of medicine, was alleged against Petitioner in State of Florida v. Gerardo Hevilla, Dade County Circuit Court, Criminal Division, case no. 84-8608. Initially, Petitioner pled not guilty to this charge. On May 3, 1985, Petitioner changed his plea to nolo contendere based upon a representation by the State Attorney to the trial judge that the Department of Professional Regulation had been contacted and had agreed that such plea would not be used against Petitioner in his future licensing efforts. This representation was made on the record and is a part of the plea colloquy. Prior to this presentation, Petitioner had refused, and intended to continue to refuse, to change his plea because of his concern that such a plea would adversely affect his ability to become licensed. The estimated cost to defend the criminal case exceeded $25,000. Petitioner accepted the negotiated plea as a financial concession only after the assurances were given that it would not affect his ability to become licensed. In January or February, 1984, Petitioner became employed at the South Florida Medical and Surgical Center (Center). He remained associated with the Center until June, 1986. While at the Center, Petitioner worked as a surgical assistant and helped the licensed surgeons as they directed. Petitioner did not treat patients independently of the licensed doctors and did not hold himself out as a licensed physician. He told one patient, Zoraida Wong, that he was a student. Petitioner assisted Dr. DeGeronimo and Dr. Alexander at the Center. These doctors found Petitioner to be competent, skilled, and a good worker. In fact, Dr. DeGeronimo was so pleased with Petitioner's work that he employed him at his private office until June, 1986. The work performed by Petitioner at the Center and with Dr. DeGeronimo consisted of setting up the operating area, ordering supplies, assisting in surgery by wiping blood, holding retractors, or cutting stitches, and bandaging wounds. All work was done under a licensed physician's supervision. From June, 1986 until July, 1987, Petitioner performed a one year residency at the Lincoln Medical Hospital. During this period, Petitioner was supervised by Drs. Stahl, the program director, and Kazigo, an associate professor. According to these physicians, Petitioner is qualified for licensure, possesses the requisite knowledge and skill, and successfully completely the residency program. Following the completion of his residency, Petitioner returned to Miami and is employed again as an assistant to Dr. DeGeronimo in his plastic surgery practice. Petitioner did not perform facial plastic surgery on the patient, Zoraida Wong. Petitioner did not withhold facts regarding his criminal plea from the Board.
Recommendation Based on the foregoing, it is RECOMMENDED: That The Board of Medicine enter a final order approving Petitioner's application for licensure by endorsement. DONE and RECOMMENDED this 30th day of December, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1987. APPENDIX TO RECOMMENDED ORDER RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: The first sentence in Paragraph 1 is accepted. With regard to the sentence, that portion which alleges Petitioner took courses at the University of Miami is accepted the rest is rejected as beyond the scope of evidence presented or irrelevant to these proceedings. Paragraph 2 is accepted as to all parts. With regard to paragraph 3A. with the exception of the reference to full-time study of English it is accepted. The record does not conclude whether or not Petitioner was in school full-time, he did enroll at Miami High School to learn English so to that extext it is accepted, otherwise rejected as not supported by the record. Paragraphs 3B-D are accepted. Paragraph 4 is accepted. Paragraph 5A. is accepted. The first sentence and last sentence of the first paragraph of paragraph 5B are accepted; the remainder of the first paragraph is rejected as irrelevant, immaterial, not supported by the record or speculation. The second, third and fourth paragraphs of Paragraph 5B are accepted. The first paragraph of SC is accepted. The second paragraph of SC is rejected as irrelevant; the Board has not claimed the allegations relating to the alleged Medicaid fraud were a basis for denial of Petitioner's license. The first three sentences of the first paragraph of Paragraph 6 are accepted. The remainder of the first paragraph is rejected as a recitation of testimony, irrelevant, or unsupported by the record. The second paragraph of Paragraph 6 is rejected as a recitation of testimony, irrelevant, or argument. The third paragraph of Paragraph 6 is rejected as a recitation of testimony, irrelevant, or argument. The fourth paragraph of Paragraph 6 is rejected as a recitation of testimony, irrelevant, or argument. With regard to these paragraphs, see finding of fact which concludes Petitioner did not operate on the patient Wong. Petitioner's testimony, Dr. DeGeronimo's, and Urquiza's testimony were deemed credible. Dr. Garcia-Lavin and Wong were not. The fifth paragraph of Paragraph 6 is rejected as argument, but as to facts therein see explanation in p. 13 above. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1-11c are accepted. The first sentence of paragraph 12 is accepted. The remainder of paragraph 12 is rejected as contrary to the weight of credible evidence. Petitioner was not eligible to take the residency until he had mastered English to a sufficient level to pass required examinations. Petitioner's explanation for the period was acceptable. Paragraph 13 is accepted. Paragraph 14 is rejected as contrary to the credible evidence, argument or irrelevant. Petitioner is found to be credible. Paragraph 15 is rejected as contrary to the evidence, argument or irrelevant. Paragraph 16 is rejected as irrelevant, unsupported by the credible evidence or argument. Paragraph 17 is rejected as irrelevant or argument. That the Department did not actually pledge to hold Petitioner harmless by reason of the plea is not a disputed issue Petitioner had a reasonable basis for believing that to be the case; however, and was induced to change his plea on that basis. Paragraph 18 is accepted but is irrelevant; see p. 7 above. The first three sentences of paragraph 19 are accepted. The record does not disclose how many licensed physicians may performed surgery at the Center; therefore the fourth sentence is rejected. The record does support a finding that Drs. Alexander, DeGeronimo, and Garcia-Lavin worked there and that the facility only used one surgical room. Paragraph 20 is rejected as irrelevant to the issues of this case. Paragraph 21 is rejected as irrelevant, immaterial or unnecessary to the resolution of the issues of this case. Paragraph 22 is rejected as irrelevant, immaterial, contrary to the evidence or unnecessary to the resolution of the issues of this case. The first two sentences of paragraph 23 are accepted, the remainder is rejected as contrary to the credible evidence, irrelevant, or immaterial to the resolution of the issues of this case. Paragraphs 24-26 are rejected as contrary to the weight of the evidence, irrelevant or immaterial to the resolution of the issues of this case. It is possible that Petitioner remained associated with the Center and also worked for Dr. DeGeronimo. The testimony of the three (Petitioner, Alexander, and DeGeronimo) does not conflict. COPIES FURNISHED: Rodney W. Bryson Bryson & Berman, P.A. Suite 219 8525 N.W. 53rd Terrace Miami, Florida 33166 Ann Cocheu Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Petitioner, Ana Caos, M.D., is a applicant for a restricted license to practice Medicine in the State of Florida pursuant to the provisions of Section 458.311(8), Florida Statutes. Successful completion of the Florida Board Examination is a prerequisite to licensure under Section 458.311(8), Florida Statutes. The Florida Board Examination is also known as the FLEX examination. In an effort to meet that prerequisite, the Petitioner has already taken the FLEX examination six times since October 1, 1966. The Petitioner has passed portions of the licensure examination, but thus far she has not received a passing grade on the Basic Sciences portion of that examination. The Petitioner seeks to continue taking the licensure examination until she achieves a passing grade on all portions of the examination. The issue of whether Section 458.311(2), Florida Statutes, had the effect of limiting the number of times the Petitioner could take the FLEX exam was first considered by the Board of Medicine in 1992. In response to an earlier application by the Petitioner, by letter dated March 11, 1992, the Petitioner was advised by Board staff that Section 458.311(2), Florida Statutes, appeared to apply to her application and that the matter would be considered by the Board at the next meeting of the Board. Thereafter, by letter dated May 7, 1992, Board staff advised the Petitioner that her application would be considered by the Board's Credentials Committee, and that the Petitioner was required to attend the meeting of that committee on May 27, 1992. At the May 27, 1992, meeting, the Board's Credentials Committee, following perfunctory advice of counsel, and without discussion by the committee members, voted to recommend that the Petitioner be allowed to take the FLEX exam a sixth time after 1986, even though she had previously failed the exam five times since 1986. The committee recommendation was adopted by a majority of the Board of Medicine, and the Petitioner was allowed to take the FLEX examination for a sixth time since 1986. The Petitioner failed the FLEX examination for a sixth time since 1986. The Petitioner has reapplied for licensure under Section 458.311(8), Florida Statutes (1992 Supp.), and seeks to take the FLEX exam for a seventh time since 1986. On January 19, 1993, the Board of Medicine filed and served an order regarding the Petitioner's pending licensure application. The order reads as follows, in pertinent part: You are hereby notified pursuant to Section 120.60(3), Florida Statutes, that the Board of Medicine voted to DENY your application for licensure as a physician by examination. The Board of Medicine reviewed and considered your application for licensure by examination on November 19, 1992, in a telephone conference call originating in Tallahassee, Florida and has determined that said licensure by examinatiion be denied, stating as grounds therefore: That you have failed to pass the FLEX examination six times since October 1986. Subsection 458.311(2), Florida Statutes, prohibits licensure of any individual who has failed the FLEX examination five times after October 1, 1986. Although the Board previously permitted you to sit for the the FLEX examination for a sixth time in 1992, it has since that time determined that this provision applies to all applicants for licensure. The Board of Medicine has an existing rule that interprets several provisions of Section 458.311(8), Florida Statutes (1991). (See Rule 21M-22.020 (1), Florida Administrative Code.) At the Board meeting on July 11 and 12, 1992, the Board of Medicine discussed proposed amendments to the existing rule and voted to initiate rulemaking to amend Rule 21M-22.020(1), Florida Administrative Code, by adding to it new subsections specifically addressing the issue of how many times applicants under subsections (8) and (10) of Section 458.311, Florida Statutes, may take the licensure examination. At its meeting on July 11 and 12, 1992, the Board of Medicine instructed its legal counsel to initiate rulemaking to adopt the rule amendments described above. For reasons unknown to the Board's Executive Director, the Board's legal counsel did not file the proposed rule amendment for adoption until March of 1993. The March 12, 1993, issue of the Florida Administrative Weekly contains notice of the Board's intention to adopt the rule amendments described above. The full text of the proposed rule is as follows: 21M-22020 Western Hemisphere Exile Requirements. For purposes of interpreting Section 458.311, Florida Statutes, as amended by Section 6, Chapter 86-245, Laws of Florida, (codified at Subsection 458.311(8)(9)(a), Florida Statutes (1992 Supp))(1988 Supp), the following shall apply: (a) - (c) No change (d) The phrase "successfully completes the Florida Board Examination" is interpreted as requiring obtaining a passing score as defined by Rule 21M-29.001(2) within the time frame set forth in Section 458.311(2), Florida Statutes. Specifically, if the applicant has failed the examination five times after October 1, 1986, the applicant is no longer eligible for licensure. For purposes of interpreting Section 458.311, Florida Statutes, as amended by Chapter 89-266, Chapter 89-541 and Chapter 92-53, Laws of Florida, (codified at Subsection 458.311(10), Florida Statutes (1992 Supp.)(1991)), the following shall apply: (a) - (g) No change. (h) The phrase "successful completion of the licensure examination" is interpreted as requiring obtaining a passing score as defined by Rule 21M-29.001(2) within the time frame set forth in Section 458.311(2), Florida Statutes. Specifically, if the applicant has failed the examination five times after October 1, 1986, the applicant is no longer eligible for licensure. It is the consistent practice of the Board of Medicine to apply the provisions of Section 458.311(1)(a)-(d), (4), and (5), Florida Statutes, to all applicants seeking licensure under Section 458.311(8), which last-mentioned section is also known as the "Cuban Exile Program."
The Issue The issue in this case is whether Petitioner's request for license by endorsement as a professional engineer should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, James R. Eason (Petitioner), is the pavement management coordinator for the Hernando County Public Works Department. He is a registered professional engineer in the State of Georgia, having received Professional Engineering Registration Number 17320 in 1988. In March 1997, Petitioner filed an application with Respondent, Board of Professional Engineers (Board), seeking licensure by endorsement as a professional engineer in this state. On July 1, 1997, the Board issued its preliminary decision in the form of a letter advising Petitioner that his application had been denied. As grounds, the Board stated that Petitioner had received a raw score of 67 with five points awarded for Veterans Preference on the Principles and Practice portion of the examination. The letter further explained that a raw score of 70 or above was required in order for his score on the Georgia examination to be recognized in the State of Florida and that "Chapter 471, F.S. does not provide for awarding of points for Veterans Preference." The denial of the application prompted Petitioner to bring this action. Petitioner is a graduate of, and holds a bachelor's degree in civil engineering from, the Georgia Institute of Technology. He has a record of four years active engineering experience of a character indicating competence to be in responsible charge of engineering. The parties have also stipulated he is of good moral character, and he has never been under investigation in another state for any act which would constitute a violation of Chapters 455 or 471, Florida Statutes. Petitioner passed the Fundamentals portion of the professional engineering examination administered in 1973 by the State of Georgia. He obtained a score of more than 70. In April 1988, Petitioner took the Principles and Practice portion of the examination. A grade of 70 was required to pass the Georgia examination. Petitioner received a grade of 67 on the initial scoring of the Principles and Practice portion of the examination, plus a five-point Veterans Preference credit, for a total grade of 72. The Veterans Preference credit is provided by Georgia law to all candidates who are members or former members of the Armed Forces of the United States and meet certain service requirements. In Petitioner's case, he had served eight years on active duty as a member of the United States Naval Reserve, and he was honorably discharged as a Lieutenant on July 3, 1969, upon expiration of his active duty commitment. At least ninety days of his active duty military service was during wartime or at a time when military personnel were committed by the President of the United States. The examination administered by the State of Georgia in April 1988 was a national examination published by the National Council of Examiners for Engineering and Surveying, and it was identical to the examination administered by the State of Florida at that time. Florida, like Georgia, requires a grade of 70 to pass the examination, but it does not provide a Veterans Credit for service to candidates who are members or former members of the Armed Forces of the United States. Therefore, in the State of Georgia, a veteran can pass the examination with a raw score as low as 65. To this extent, the two examinations are not substantially equivalent. Among other things, Petitioner pointed out at hearing that he needed only three points to achieve a passing grade on the Principles and Practice portion of the examination. Therefore, he concluded that the awarding of that amount of extra points for being a veteran amounted to only a single standard deviation, and thus the extra points were immaterial in relation to the overall score. However, the Board does not construe this three-point deficiency as being "immaterial," and had Petitioner received the same score in Florida, he would not have passed the examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Professional Engineers enter a Final Order denying Petitioner's request for licensure by endorsement as a professional engineer. DONE AND ORDERED this 25th day of November 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 25th day of November, 1997. COPIES FURNISHED: Joseph M. Mason, Jr., Esquire Post Office Box 1090 Brooksville, Florida 34605-1900 Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Angel Gonzalez, Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0755
Findings Of Fact The Respondent Alam Farzad is a currently licensed medical doctor practicing medicine in Dade County, Florida. The Respondent was first licensed in Florida in 1975. In February, 1972, the Respondent resided in Miami with her husband, Kiumaris Bakshandeh, having moved to the United States from Iran in 1971 where they had both studied medicine and received medical degrees. In February, 1972, the Respondent's sister, Iran Farzad Rafael, was residing in Chicago, Illinois. Prior to February, 1972, the Respondent's sister graduated as a medical doctor in Iran and after moving to the United States, attempted to qualify for eventual licensure by taking an examination for foreign medical graduates administered by the Educational Council for Foreign Medical Graduates (ECFMG). In 1972 a passing grade was required on the examination by a foreign medical graduate in order to become eligible to take medical training in an intern program in the United States. Upon completion of the training for foreign professionals, another examination was required to be passed in order to become licensed in a state. Thus, the examination was a type of qualifying exam, the successful passage of which entitled a foreign graduate to receive medical training in the United States and eventually sit for the state medical licensing exam which was administered to all persons who desired to become licensed physicians. The Respondent's sister took the ECFMG exam three times prior to February, 1972, and failed it each time. At the request of her husband, the Respondent flew to Chicago in February of 1972, to take the ECFMG exam for her sister. The Respondent went to the examination site with the examination entrance papers she had taken from her sister, forged her sister's name at the examination site and took the examination using her sister's name. She subsequently received word from her sister that she had received a passing grade on the examination. The night after taking the examination, the Respondent received a phone call from her husband at her sister's home. During the conversation between the Respondent's husband and sister, the husband requested that the sister perform an abortion on the Respondent in return for her help on the examination. The Respondent's sister refused the husband's request. But for the Respondent taking and passing the ECFMG exam on behalf of her sister, the sister could not have practiced medicine or entered into a residency program. In 1978, the Respondent testified that her sister had practiced medicine in 1976 specializing in physical medicine and rehabilitation. However no official records were submitted by the Petitioner that the Respondent's sister is presently licensed or has been licensed as a physician in Illinois. In 1976, the Respondent's husband used his knowledge concerning the ECFMG examination to coerce the Respondent into signing a property settlement and custody agreement in a pending divorce proceeding. In exchange for agreeing to the property and custody agreement, the Respondent's husband signed an affidavit that would allegedly ensure that no information concerning the 1972 examination would be made public. In early 1978, the Respondent instituted proceedings in the Eleventh Judicial Circuit, Dade County, to set aside the child custody and support provisions contained in the final decree of dissolution of marriage between the Respondent and her husband on the grounds of coercion and duress. Following a lengthy hearing in which numerous witnesses were heard and exhibits entered into evidence, the Circuit Court in March, 1978, granted Respondent's motion to set aside the agreement and awarded custody of the couple's minor child to the Respondent. Dr. Bakshandeh appealed the trial court's decision to the District Court of Appeal, Third District. The court affirmed the trial court noting that there was " . . . an abundance of evidence in the record. . ." to support the Respondent's contention that she had been subjected to coercion and duress by her husband into entering into the agreement and that such coercion and duress constituted "misconduct of an adverse party" which would authorize a trial court to set aside a final judgment. See Bakshandeh v. Bakshandeh, 370 So.2d 417 (Fla. 3rd DCA 1979). The court went on to make, however, the following observation: As a final note, we are disturbed by an undisputed fact which emerges from this record. The wife Dr. Alam Farzad Bakshandeh is a physician licensed to practice medicine in Florida; the husband Kiumaris Bakshandeh is a chief resident urological surgeon for the University of Miami. Both were originally from Iran where they received part of their medical training. The record reveals that in February, 1972, the wife took a medical examination for her sister Iran Farzad Rafael for admission to a medical training program as a foreign physican in the State of Illinois. The examination was given in Chicago wherein the wife used her sister's name, took the exami- nation and passed it. The sister after additional training and examination was ad- mitted to practice medicine in Illinois. There is evidence that the husband urged the wife to take the examination for her sister and thereafter used this indiscretion to blackmail the wife into signing the pro- perty settlement agreement herein. The re- cord does not reflect whether the appropriate medical authorities have been notified of the above facts. We trust that such notifi- cation will be accomplished in the near future. Thereafter, on April 24, 1979, the Clerk of the Third District Court of Appeal forwarded a copy of the court's opinion to the Board of Medical Examiners for appropriate action. This was presumably the first actual notice the Petitioner received concerning the Respondent's actions on behalf of her sister in February, 1972. In July, 1981, a Board of Medical Examiners Probable Cause Panel found probable cause to believe violations of Chapter 458, Florida Statutes existed in this case and an Administrative Complaint was issued and filed against Respondent. Respondent was licensed by the Board of Medical Examiners as a medical physician in approximately February, 1975. The Petitioner filed the Administrative Complaint approximately 9 years after the incident in question occurred. The Petitioner failed to introduce evidence at the final hearing that while exercising due diligence it was unable to discover this incident prior to April, 1979.
The Issue The issue in this case is whether the Respondent discriminated against the Petitioner by refusing to hire the Petitioner because of Petitioner's race.
Findings Of Fact The Respondent is the School Board of Alachua County, Florida. The Respondent advertised to hire a senior drafting technician in June of 1993. The minimum qualifications for this position were "graduation from High School or Completion of GED; three (3) years experience in drafting and architectural design under the direction of an architect or engineer; or an equivalent combination of training and experience. Graduation from a college of architecture or engineering preferred." The Petitioner, Monroe Lee, is a Black male who attended North Florida Junior College from 1970 to 1973, obtaining a 1080 hour certificate in engineering design. In 1979-80, the Petitioner completed another training program in civil engineering design. The Petitioner has been employed as a engineering draftsman by several architecture and engineering companies since 1973. His duties have included drafting, project design, and project management. Since 1991, he has been self-employed in his own architectural firm employing an architect. In August 1993, the Petitioner applied for the senior drafting technician's position advertised by the Respondent. Attached to the application was an card entitled "Data for Affirmative Action", which asked for information on the race, sex, and similar information from the applicant. This card is separated from applications by the personnel office and maintained for tracking compliance with affirmative action laws. Completion of the card is not required, but the Petitioner filled out the card attached to his application. Approximately 25 applications were received for this position. The applications were screened in the fall of 1993 by the Respondent's Supervisor of Personnel, who selected to be interviewed seven individuals, who she determined were the most qualified. Interviews were conducted on January 10 and 11, 1994, by a committee from the Respondent's Planning and Construction Department. Ultimately, no hiring decision was made because of uncertainty about the availability of funds due to a budgetary crisis. During the pendency of his application, the Petitioner made numerous inquiries at the personnel office regarding the status of his application. It appeared that his application was misplaced, and the personnel office had difficulty responding to his inquiries. Because of his visits, the Petitioner became well known to the Respondent's staff. In January or February, 1994, the Petitioner filed a complaint of discrimination in hiring against Respondent regarding this application. The complaint was investigated by the Florida Commission of Human Relations, and the Respondent answered inquiries from the Commission on March 1, 1994. It was determined that the Respondent had not discriminated against the Petitioner. In March 1994, the Respondent readvertised the position of Senior Drafting Technician. Applications were accepted between March 14-18, 1994, and the Petitioner reactivated his application for the position. The Supervisor of Personnel again screened the applications. Again, the Petitioner was not selected to be interviewed. Of those selected to be interviewed, at least one was Black, and one female applicant had a Bachelors degree in fine arts and two female applicants had Bachelors degrees in interior design. Of those not selected for employment at least two individuals had training and experience equal to the Petitioner's. The Supervisor of Personnel emphasized selection on the basis of applicants having degrees. Harry Burns, a White male, applied for the position when it was readvertised. Burns obtained an A.A. from Santa Fe Community college in 1990 and a B.A. in building construction from the University of Florida. Burns had also completed technical courses in the U.S. Air Force. He had worked for four employers since 1987 as a carpenter, managing projects, field surveying, doing traffic counts, drafting, and using a computer. Burns was hired for the position on May 9, 1994.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petitioner's complaint. DONE and ENTERED this 31st day of October, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 31st day of October, 1995. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-2044 Respondent submitted findings which were read and considered. The following states which of the findings were adopted, which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 1 Paragraph 2 Paragraph 2 Paragraph 3 Paragraph 3 Paragraph 4 Paragraph 3 Paragraph 5 Paragraph 4 Paragraph 6 Paragraph 6 Paragraph 7 Paragraph 7 Paragraph 8 Paragraph 8 Paragraph 9 Paragraph 2 Paragraph 10 Paragraph 9 Paragraph 11 Paragraph 9 Paragraph 12 Irrelevant COPIES FURNISHED: Monroe Lee Post Office Box 43 Alachua, FL Thomas L. Wittmer, Esquire Alachua County School Board 620 East University Avenue Gainesville, FL 32601 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, FL 32601-5498 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, FL 32399-0400 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
Findings Of Fact Petitioner is licensed as a psychologist in Argentina, where she was educated. She attended the University of Buenos Aires completing a six-year program in four years. Petitioner received a degree in psychology from the University of Buenos Aires on December 23, 1977, but did not receive her diploma from that institution until June of 1979. She became licensed as a psychologist by the Ministry of Health in 1979. Upon her graduation from the University of Buenos Aires, Petitioner began to practice psychology in Argentina. She worked in a hospital from 1979 to 1983. Petitioner describes this period of work as her "internship." She also worked in a drug abuse program, which she also describes as an "internship." During these work experiences, Petitioner supervised other personnel. During the same period of time, specifically from 1980 to 1982, Petitioner also engaged in private practice. In 1981 Petitioner enrolled in the Argentina School of Psychotherapy for Graduates, where she took a number of courses and wrote a paper which she presented to the faculty there. The Argentina School of Psychotherapy for Graduates is not a degree-granting institution. Upon completion of the four year program, only a certificate is issued. Petitioner did not produce a transcript from the Argentina School of Psychotherapy for Graduates as part of her application for licensure in Florida. She submitted only a syllabus, i.e., a listing of the names of the courses she took at that institution. A syllabus, however, is not a transcript. Subsequently, Petitioner moved to the state of Michigan where she applied for licensure as a psychologist at the master's degree level. Based upon her education and training, she received a limited license to practice psychology in 1989. Michigan recognizes master's degree level psychologists. In Florida, however, master's degree level applicants are not eligible for licensure as psychologists. In 1991 Petitioner was interviewed by the licensure board in Michigan. Subsequent to that interview, Michigan granted her full licensure to practice as a psychologist in that state. In granting Petitioner full licensure, the Michigan licensing board deemed that her education and training were equivalent to education and training at the doctorate level even though between 1989 and 1991, Petitioner had not added to her education credentials. She had merely obtained additional supervised experience. At some point, Petitioner took and passed the Michigan examination for licensure. The Michigan examination is not the same as the examination for licensure developed by Professional Examination Services. Petitioner has never taken the national examination required for licensure in Florida. In 1993, Petitioner applied for licensure as a psychologist in Florida. She maintains that Michigan's determination that her education and training are equivalent to a doctorate level education should be sufficient to qualify her for Florida licensure as well. She admits, however, that she does not have a Ph.D. She also admits that there is "a huge difference" between the training in Argentina and the training in the United States. As part of her application process and in order to demonstrate to Respondent her qualifications for licensure in Florida, Petitioner submitted her education and training credentials to two foreign education credentialing services. One of those services determined that Petitioner has the equivalent of a Bachelor of Science degree in psychology from an institution in the United States that has regional academic accreditation, plus completion of four years of advanced theoretical and clinical training. The other service found that Petitioner has the equivalent of a bachelor's degree in psychology. The second credentialing service was unable to evaluate Petitioner's studies at the Argentina School of Psychotherapy for Graduates because that institution is not recognized as a degree-granting institution of higher education. Neither of those evaluations could verify that Petitioner possesses the equivalent of a doctorate degree as a result of her training and education in Argentina. In 1992, the University of Buenos Aires created a Ph.D. program in psychology; however, that program did not exist at the time that Petitioner attended that institution. The Argentina School of Psychotherapy for Graduates is not a degree granting institution and does not offer a doctorate program in psychology. At the time that Petitioner chose to attend the University of Buenos Aires and the Argentina School of Psychotherapy for Graduates, it was possible to obtain a Ph.D. in psychology in Argentina, but Petitioner chose not to pursue that course of study. Based upon Petitioner's advanced education beyond her bachelor's degree, she has the educational equivalent of a master's level degree without the thesis generally required to obtain such a degree.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a psychologist either by endorsement or by examination. DONE and ENTERED this 7th day of June, 1996, at Tallahassee, Leon County, 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 7th day of June, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-4675 Petitioner's proposed findings of fact numbered 1-3, 5, 7, 9, 11, 20- 22, 24, 28 and 46 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4 and 10 have been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed findings of fact numbered 6, 13-17, 19, 39, 41- 43, 47, and 50-54 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Petitioner's proposed findings of fact numbered 8, 12, 18, 25-27, 34- 38, 40 and 49 have been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed findings of fact numbered 23, 29-33, 44, 45, and 48 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 1-10, 12 and 15 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 11, 13 and 14 have been rejected as not constituting findings of fact but rather as constituting argument of counsel. COPIES FURNISHED: Frank P. Rainer, Esquire 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Virginia Daire, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Dr. Kay Howerton, Executive Director Agency for Health Care Administration Board of Psychology 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The sole issue for determination in this cause is whether the failing grade received by petitioner from Professor Kenneth Vinson in a constitutional law course was a result of arbitrariness, capriciousness or bad faith.
Findings Of Fact Upon consideration of the relevant oral and documentary evidence adduced at the hearing, the following facts are found: while enrolled as a student in the Florida State University College of Law, petitioner received a failing grade in constitutional law for the winter quarter of 1975 from his professor, Kenneth Vinson. After discussing his grade with Mr. Vinson, petitioner filed an appeal pursuant to the grade appeal policy of the College of Law. A board comprised of three students determined that there was probable cause for the grade appeal and recommended that the appeal be referred to a full committee for hearing. After some delay apparently resulting from the loss of the report of the student board, a committee consisting of two students and three faculty members was appointed. Mr. Vinson did not attend the hearing, but submitted to the committee a memorandum, attaching thereto a completed examination paper with his written comments concerning the answers given. Petitioner appeared and offered testimony concerning his grade. The committee was also supplied with five or six other completed examinations with grades ranging from "A" to "F". These exams were copied in such a manner that neither the student involved nor the grade assigned were known to the committee. The five members of the committee rated these exams and substantially agreed with the grades assigned by Vinson to each paper. Each member of the committee placed petitioner's exam in the "F" category. In its final report, the committee expressed concern with Vinson's lack of sufficient assistance to them in the articulation of his standards and his lack of cooperation in the grade appeal process. Nevertheless, it was the conclusion of the committee that petitioner's appeal should be denied for the reason that Vinson had recognizable standards of grading and that there was no gross deviation in the application of his standards to petitioner's examination paper. The committee's findings are more fully set forth in a ten page decision which was admitted into evidence at the hearing as Exhibit 3. The examination in dispute is a 38-question, short answer exam, a type traditionally and frequently administered in law school courses. In this type of examination, the objectives of the professor are inherent in the examination questions asked. The weight to be assigned each question on such an examination is not always determined by the professor before grading the papers. A cut sheet or master list of desired answers is difficult to prepare for an essay- type examination in law school. As well as evaluating the student's ability to identify the issues involved in a legal problem, the law school professor also seeks to evaluate the student's knowledge of the substantive law relating to an issue. Thus, if a student deviates from the projected issue, he may lose credit for that but gain credit for a good discussion of the erroneously-selected issue. Often, the law professor is seeking a judgmental or subjective response to a question on an examination. In such situations, the preparation of a master answer to all questions would be futile. Among educators, there appears to be no uniform methodology for grading examinations. Those educators often referred to as behaviorists advocate specific written standards and objectives both for evaluation purposes and to facilitate the student's learning. Others referred to as humanists object to a specific statement of objectives and standards, feeling that such would be too limited and constrictive. The difficulty with a non-written, personal approach to evaluation is the assessment of its validity and replicability as to time and another student. One method of testing the reliability of the grading procedure utilized is to have other persons assign a grade to the completed examination. If two or more persons were to assign the same grade as that originally assigned, this would provide replicability and would indicate that the original grade assigned was reasonable and the method of evaluation was reliable. As noted above, the specific statement of standards and objectives is not universally employed by educators, and its nonuse does not imply unethical behavior or that one's teaching methods are invalid. Professor Vinson has been teaching law school courses for over seven years. It was his testimony that, although the mandatory blind or anonymous grading system was not in effect at the time he graded Petitioner's examination, he in fact did not know whose paper he was grading at the time he assigned a grade to Petitioner's paper. All exam papers were graded by him anonymously. Vinson's method of grading was to review five or six exam papers, get a "feeling" for the type of responses received, assign tentative grades to them and then perhaps change those grades based on his conception of the total class curve. He does not find that a cut sheet or set of model answers is helpful in a short essay type examination. When evaluating a paper for grading purposes, Mr. Vinson stated that he compares students' answers with each other and forms an opinion of the student's understanding of the subject matter and class discussions. When grading papers, he also looks at the students' writing style, knowledge concerning the substance of the course, and understanding of legal processes. He further evaluates the student's ability to recognize issues, manipulate legal jargon and apply cases studied and discussed during the course. Vinson applied the same criteria or standard of evaluation to petitioner's examination as he applied to other examinations. The ultimate grade assigned each paper constituted Vinson's value judgment, based upon his experience as a law school professor, as to that student's knowledge concerning the substance of the course taught by him. While Vinson has no written standards or criteria for evaluating a student's performance on an examination, he feels that his standards are implicit in classroom discussions and that the questions asked on his examinations form the answers to be given. The failing grade assigned to petitioner's examination was a result of Vinson's opinion of petitioner's understanding of the subject matter of the course taught.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's amended petition be dismissed. Respectfully submitted and entered this 17th day of June, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1976. COPIES FURNISHED: President Stanley Marshall Florida State University Tallahassee, Florida 32306 Stanley C. Kiser 3220 Jim Lee Road Tallahassee, Florida 32301 Robert D. Bickel University Attorney Suite 309 Westcott Florida State University Tallahassee, Florida 32306 John D. Carlson State Board of Education 400 Barnett Bank Building Tallahassee, Florida 32304
The Issue The issue in this case is whether the Petitioner, Rene Delgado Leon, M.D., is eligible for examination for licensure to practice medicine in the state of Florida. The Petitioner, of course, contends that he is eligible. The Respondent, Board of Medical Examiners, contends that the Petitioner has failed to demonstrate eligibility, having previously advised him, inter alia: Your application and supporting documentation contained substantial omissions of material information relative to your medical education. Additionally, your application and supporting documentation does not provide sufficient information to demonstrate that you can practice medicine with reasonable skill and safety. See Section 458.301, Florida Statutes.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. The Petitioner, Dr. Rene Pedizo Delgado Leon, was born on November 26, 1936, in Cuba. All of his formal education prior to medical school was obtained in Cuba. He attended medical schools, off and on, at various times and places between 1955 and June of 1980. His medical education commenced in 1955 at the Medical School of the University of Havana and ended when he-was awarded his medical degree from the University of Dominica in June of 1980. The Petitioner's first language was Spanish and he is not completely fluent in the English language. When communicating in English he appears to have a tendency to interpret statements and questions in a very literal manner. The Petitioner does not appear to have intended to deceive the Board of Medical Examiners or to misrepresent information about his education and experience. Nevertheless, he has not been very clear about a number of details. Since receiving his degree from the University of Dominica in 1980, the Petitioner has completed a residency in pathology, has passed the FLEX exam in conjunction with his application for licensure in the state of Georgia, and has been licensed to practice medicine in the state of Georgia. There were several discrepancies between information given by the Petitioner to the Board of Medical Examiners and to the Hearing Officer concerning various aspects of his background, particularly concerning his medical education. With regard to his medical education, Petitioner listed on his first application that he attended medical school in Havana, Cuba, from April 1954 until December 1962. On his second application he stated that he attended medical school in Havana, Cuba, from September 1955 until September 1960. He testified before the Foreign Medical Graduate Committee that he attended medical school at the University of Havana from 1955 until 1962. At the final hearing he testified that he attended the University of Havana from 1955 until 1962. On his first application, in response to the direction that he list all universities or colleges where he attended classes and received training as a medical student, he stated only that he attended the University of Dominica from June of 1977 until June of 1980. He subsequently filed a form, received by the Board on October 26, 1983, stating that he had attended the University of Zaragoza, Zaragoza, Spain, and received training as a medical student from November of 1974 until April of 1975. On his second application, he stated that he had attended the University of Zaragoza as a medical student from November of 1974 until April of 1975. At the final hearing he testified that in 1973 while he was in Zaragoza he applied to revalidate old courses taken in Havana and that thereafter he took all examinations up to the third year. He stated that he took other courses in Zaragoza, but that he did not take the examinations for any of the medical courses taken in Zaragoza. He also testified that he was given credit for courses at Zaragoza even though he did not take the examinations. The next segment of his medical education was consistently testified to as having been had at the Universidad Central del Este in the Dominican Republic. He attended the Universidad Central del Este for only one semester, during which he took six or seven subjects. He testified that Universidad Central del Este did give him some credit for the third year of medical school; in spite of the fact that he did not take examinations in any of the third-year courses he took in Zaragoza. In January of 1979 he transferred to Universidad Nordestana and spent approximately one year there. Univeraidad Nordestana gave him two and one half to three years of credit. Although his initial application showed that he had attended the University of Dominica in the West Indies from June of 1977 until June of 1980, his subsequent written and oral testimony was that he was enrolled at the University of Dominica only from January of 1980 until June of 1980. He testified before the Foreign Medical Graduate Committee that at the time he transferred from Nordestana, he was basically finished with his medical education and he said he transferred to Dominica because they did not talk in English in Santo Domingo. He also testified that he transferred to Dominica so that he could get some exposure to how medicine was practiced in the United States. Petitioner testified that although he transferred to the University of Dominica and he received his degree from the University of Dominica six months after he transferred there, he did not pay any monies to the University of Dominica. His explanation of why he did not pay money to the University of Dominica is that he wrote things for them, like a pathology booklet. The application form which Petitioner completed requested that he specify all places of residence since beginning medical training. On his first application he showed that he resided in Dominica, West Indies, from January of 1980 until June of 1980. On his second application he listed as residences since initiation of medical training only the University of Miami, Jackson Memorial, VA Hospital, and the University of South Florida, Tampa. In August of 1983 he followed up the second application with a letter to Mrs. Faircloth which stated that his place of residence while attending medical school was the "students quarters and dormitories" at Portsmouth, University of Dominica, West Indies. However, at the hearing before the Foreign Medical Graduate Committee and at the final hearing, Petitioner admitted that he was, in fact, on the campus of the University of Dominica only one day, and that was on graduation day. In fact, when he testified before the Foreign Medical Graduate Committee, he was specifically asked, "When you left Nordestana, where did you go?" To that question he replied, "Oh, to Dominica." However, he later admitted that when he left Nordestana, he went to Miami and he did not go to Dominica until he went six months later in order to graduate. On both of his written applications, Petitioner was asked to list the degrees earned other than M.D. On neither application did he list a bachelor's degree. Yet, in testimony before the Committee and at the final hearing, he testified that he had earned the equivalent of a B.S. in chemistry at the University of Havana. He testified that the reason that he omitted it was that he thought the question referred to medical education. However; in response to the same question, he listed that he had obtained a Licensee in Science and a Doctor in Science from the University of Zaragoza. With regard to the matter of what clerkships, if any, Petitioner performed as part of his medical education, the record shows that he was enrolled at the University of Dominica, the school from which he received a medical degree, from January or February of 1980 until June of 1980. The record also shows that during that five- or six-month period he performed what purported to be clerkships at the VA Hospital and at Coral Gables Hospital, in Miami, and at the same time was an employee of the VA Hospital. He testified that his clerkship at the VA Hospital was in pathology and that he was employed full time in the same area as he was receiving clerkship credit. He arranged the clerkships himself and informed the university of the clerkships. He testified that he did the same activities as the other clerks did, but he worked approximately forty hours and they worked thirty to forty hours. He effected his transfer to the University of Dominica by writing to the New York office and by taking some "required" examinations in basic sciences and clinical studies. He took the examinations in Miami and passed everything but gynecology. He eventually passed gynecology, but not until May of 1980 after he had almost completed clerkships. He testified that when he did his "rotation" at the VA Hospital, he was told that he could "moonlight." He testified that he did all of the autopsies while the other medical students watched. He testified that he went in to work at about 7:00 a.m. and left around 4:00 p.m. and that the other residents did not arrive until about 8:00 a.m. However, he did testify that the clerks arrived at 6:00 a.m. Petitioner testified that he was doing a clerkship at the time, not a residency, and that it was the extra time that he put in that justified his being both paid and given credit for an educational experience. Dr. Robert M. Clark was Petitioner's supervisor during the period of approximately January of 1980 until June of 1980. Petitioner worked in the morgue as a Physician's Assistant and also did "resident physician work." Petitioner was paid at the same time as he was doing a rotation because there was a shortage of residents. Petitioner had the same exposure to pathology as the other residents, all of whom were from the University of Miami. None of the other students were paid employees. A Physician's Assistant requires two years of medical school. Dr. Clark was introduced to Petitioner by Dr. Kuhnhardt. Dr. Kuhnhardt was not connected in any way with the medical school at the University of Dominica. The only other purported clerkship about which there was testimony at the hearing related to a clerkship at Coral Gables Hospital. That clerkship was under Dr. Hurst. That clerkship was done from January of 1980 until June of 1980, the same period during which the clerkship at the VA Hospital was done. Petitioner testified that he went to Coral Gables Hospital after he left the VA Hospital, usually after 4:00 p.m., and stayed however long was necessary, possibly as late as 8:00 or midnight. Dr. Hurst only let the students observe medical procedures. That clerkship was conducted in a community hospital. As for the supervision by the school, the testimony was that the school played no role in arranging the clerkships. Petitioner testified that people from the school came for general meetings every once in a while during the clerkships. As for evaluation, Petitioner testified that the school sent evaluation forms to him and he distributed the forms to whoever was supervising him.
Recommendation Based upon all of the foregoing it is my recommendation, because of the contradictions and uncertainties on the record in this case regarding the nature of the Petitioner's medical education, that the Board of Medical Examiner issue a final order denying the Petitioner's application for licensure by examination without prejudice to the filing of any future application for licensure by examination or endorsement, unless; for reasons analogous to those set forth in the Lopez decision, supra, the Board is persuaded that the shortcomings in the application and its supporting evidence may be overlooked in light of the Petitioner's achievements since 1980. DONE AND ORDERED this 3rd day of January, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1986. COPIES FURNISHED: M. Catherine Lannon, Esquire Assistant Attorney General Department of Legal Affairs Room LL-04, The Capitol Tallahassee, Florida 32301 Jorge A. Sibila, Esquire 2751 Coral Way Miami, Florida 33145 Dorothy Faircloth; Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche; Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. Rulings on Petitioner's proposed findings: The Petitioner's proposed findings of fact consist of a two- line introductory clause and six unnumbered indented paragraphs. The six unnumbered indented paragraphs are addressed below in the order in which they appear in the Petitioner's proposed findings of fact. First Paragraph: Rejected. This paragraph is merely a commentary on the state of the record and does not contain any proposed finding of fact. Second Paragraph: Rejected for the same reason as the first paragraph. Third Paragraph: Rejected in part and accepted in part. Rejected portions are rejected for the most part for the same reason as the rejection of the first two paragraphs. The "fully explained" portion of this paragraph is rejected as not supported by the greater weight of the evidence. Findings have been made consistent with the portions of this paragraph relating to when Petitioner's medical education began and ended, his completion of a residency in pathology, and his passing of the FLEX examination. Fourth Paragraph: The first sentence of this paragraph is rejected in part because it is merely a commentary on the state of the record and in part because it is inconsistent with the evidence of record. Dr. Clark did not explain the Petitioner's work in detail: to the contrary, his testimony was rather vague about a number of the details and he failed to recall a number of specific details. The last sentence of this paragraph is rejected because it is not supported by competent substantial evidence. Fifth Paragraph: Rejected for the same reason as the first paragraph. Sixth paragraph: The first sentence of this paragraph is rejected because the Petitioner's explanations were incomplete. With regard to the second sentence of this paragraph, it is accepted that the Petitioner is "not fluent/native in the English language or in legal terminology," and that the Petitioner did not intend to deceive the Board or misrepresent information to the Board. m e remainder of the second sentence is rejected on the grounds that it is in part irrelevant and immaterial as well as on the grounds that the ultimate factual conclusion urged in the second sentence is not warranted by the evidence in the record. Rulings on Respondent's proposed findings: The Respondent's proposed findings of fact consist of seventeen separately numbered paragraphs. The paragraph numbers which follow correspond to the numbers of the paragraphs of the Respondent's proposed findings. Accepted in substance with certain gratuitous editorial material deleted. Accepted in substance. Accepted in substance with the exception of the sentence reading: "In contradiction, he testified at the final hearing, on both direct and cross-examination, that he furthered his medical education in Spain in 1970." The quoted sentence is rejected because it does not accurately reflect the totality of the Petitioner's testimony on this subject. Some other redundant material in this paragraph is also rejected. Rejected on the grounds that it consists of irrelevant and cumulative details which are not necessary to the disposition of this case. Accepted in substance with certain gratuitous editorial material deleted. The first sentence of this paragraph is accepted. The second sentence is accepted with the exception of the words ". . . at which time he needed three years." The quoted language is rejected as not being supported by persuasive competent substantial evidence. Accepted. The first two sentences of this paragraph are accepted in substance. The last sentence is rejected as irrelevant in part, cumulative in part, and not supported by competent substantial evidence in part. Accepted in substance with certain gratuitous editorial material deleted. Accepted. Accepted in part and rejected in part. Reasons for rejection include the feet that although most of this paragraph is an accurate summary of portions of the Petitioner's testimony; some of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. The parenthetical mention of the pathology booklet is rejected because there is no competent substantial evidence as to when Petitioner wrote any pathology books Accepted in substance. Accepted in part and rejected in part. Reasons for rejection include the fact that although much of this paragraph is an accurate summary of portions of Dr. Clark's testimony, much of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. Portions of this paragraph have also been rejected on the grounds that they constitute commentary on the quality of the testimony or argument and are not proposed findings of fact. Accepted in part and rejected in part. Reasons for rejection include the fact that although most of this paragraph is an accurate summery of portions of the Petitioner's testimony, much of the testimony on this subject was not persuasive and has not been used as the basis for findings of fact. Accepted. Rejected as findings of fact because it constitutes argument rather than proposed findings of fact. [Much of the argument is well taken, but it is argument nevertheless and not appropriately part of the findings of fact.] Rejected for the same reason as Paragraph 16.
The Issue Whether the Statewide Nominating Commission for Judges of Compensation Claims’ “Guidelines of Operation of the Statewide Judicial Nominating Commission” constitutes an unadopted rule, as defined in section 120.52(2), Florida Statutes, in violation of section 120.54(1), Florida Statutes. Filed January 10, 2018 4:52 PM Division of Administrative Hearings
Findings Of Fact 1. Judges of Compensation Claims are appointed by the Governor and charged with conducting administrative proceedings on petitions for benefits filed under Florida’s “Workers’ Compensation Law,” Chapter 440, Florida Statutes. See § 440.45(2) (a) & (c), Fla. Stat.; Fla. Admin. Code R. 600Q-6.105. These Judges are appointed for four-year terms, with the Governor having the discretion —- as qualified below - to reappoint a sitting Judge for a subsequent term. § 440.45(2) (c), Fla. Stat. The statute does not limit the number of times the Governor may reappoint a Judge of Compensation Claims, and does not prohibit the Governor from appointing a qualified person to serve non-consecutive terms as a Judge. 2. The Statewide Nominating Commission for Judges of Compensation Claims (“Commission”) is charged with making a threshold eligibility determination as part of the reappointment process. Prior to the expiration of a judge’s term of office, the statewide nominating commission shall review the judge's conduct and determine whether the judge’s performance is satisfactory. Effective July 1, 2002, in determining whether a judge’s performance is satisfactory, the commission shall consider the extent to which the judge has met the requirements of this chapter, including, but not limited to, the requirements of ss.440.25(1) and (4) (a)-(e), 440.34(2), and 440.442. If the judge’s performance is deemed satisfactory, the commission shall report its finding to the Governor no later than 6 months prior to the expiration of the judge’s term of office. The Governor shall review the commission’s report and may reappoint the judge for an additional 4-year term. If the Governor does not reappoint the judge, the Governor shall inform the commission. The judge shall remain in office until the Governor has appointed a successor judge in accordance with paragraphs (a) and (ob). If a vacancy occurs during a judge’s unexpired term, the statewide nominating commission does not find the judge’s performance is satisfactory, or the Governor does not reappoint the judge, the Governor shall appoint a successor judge for a term of 4 years in accordance with paragraph (b). § 440.45(2)(c), Fla. Stat. (emphasis added). Without a reported determination of “satisfactory” from the Commission, the Governor is required to appoint a successor Judge. In such an instance, the Governor has no legal authority to reappoint the incumbent. 3. Other than reporting on whether a sitting Judge’s performance has been satisfactory, the Commission is not statutorily authorized to make a recommendation on reappointment. 4. The Office of the Judges of Compensation Claims (“Office”) is a unit within the Department of Management Services comprised of all Judges of Compensation Claims and headed by a Deputy Judge of Compensation Claims. § 440.45(1) (a), Fla. Stat. The Office has the duty to adopt rules, including those for the Commission to follow in reviewing the performance of incumbent Judges.} The Office of the Judges of Compensation Claims shall adopt rules to carry out the purposes of this section. Such rules must include procedural rules applicable to workers’ compensation claim resolution, including rules requiring electronic filing and service where deemed appropriate by the Deputy Chief Judge, and uniform criteria for measuring the performance of the office, including, but not limited to, the number of cases assigned and resolved, the age of pending and resolved cases, timeliness of decisions, extraordinary fee awards, and other data necessary for the judicial nominating commission to review the performance of judges as required in paragraph (2) ({c). [emphasis added] § 440.45 (4), Fla. Stat. This statutory mandate was passed sixteen (16) years ago and has remained essentially unchanged since. See Ch. 2001-91, § 26, Laws of Fla. (2001) .? 5. Pursuant to this mandate, the Office adopted the “Rules of Procedure for Workers’ Compensation Adjudications,” Chapter 600-6, Florida Administrative Code, which became effective February 23, 2003. The Chapter contains individual rules that address initial pleadings, discovery, mediation, hearings, and other procedural matters. 6. None of the rules in this Chapter contain uniform criteria for measuring performance. None of the rules cite section 440.45(2) (c), Florida Statutes, as a “law implemented.” There are no rules in this Chapter or adopted elsewhere for the Commission to follow in determining whether an incumbent Judge’s performance has been satisfactory and reporting this determination to the Governor. 7. In the absence of rules, the Commission follows a document titled “Guidelines of Operation of the Statewide Judicial Nominating Commission” (“Guidelines”) in “review[ing] the applications of Judges of Compensation Claims who seek reappointment.” Guidelines, § I.3 The Guidelines require applicants to complete an application form by a specified deadline, establish procedures for public comment, and allow the Commission to pose “questions deemed pertinent to each applicant’s fitness and qualifications to hold the judicial office.” Id., §§ I & IV. Section V of the Guidelines, titled “Standards and Qualifications; Criteria,” provides that [n]o nominee shall be recommended to the Governor for appointment unless the Commission finds that the nominee meets all constitutional and statutory requirements and is fit for appointment after full and careful consideration which consideration may include, but [is] not necessarily limited to, the following criteria: (a) Personal attributes (1) Personal integrity (2) Standing in community (3) Sobriety (4) Moral conduct (5) Ethics (6) Commitment to equal justice under law (b} Competence and experience (1) General health, mental and physical (2) Intelligence (3) Knowledge of law (4) Professional Reputation (5) Knowledge of and experience in the court involved (c) Judicial capabilities (1) Patience (2) Decisiveness (3) Impartiality (4) Courtesy (5) Civility (6) Industry and promptness (7) Administrative ability (8) Possible reaction to judicial power (9) Temperament (10) Independence 8. The Guidelines do not contain uniform criteria or a procedure for the Commission to report whether a judge’s performance has been satisfactory. Rather, the Guidelines direct the Commission to take the following action at the conclusion of the review process: When considering a Judge for reappointment, by majority vote, the Commission shall vote upon whether to recommend each particular judge for reappointment. The names of each judge considered by the Commission shall be certified to the Governor in writing, which shall include only the judge’s name and whether recommended or not. 9. The Guidelines bear an effective date of November 22, 2013, and provide that they “may be amended by majority vote of the Nominating Commission” and “may be readopted periodically at the discretion of the Commission members.” Id., § XII. The Guidelines contain no mention of the rulemaking process under Chapter 120, Florida Statutes. 10. The Guidelines have not been adopted by the Office or the Commission as a rule pursuant to the rulemaking procedures in section 120.54, Florida Statutes. The Commission has no rulemaking authority. See Fla. Att’y Gen. Op. 92-72 (1992). 11. Petitioner Gerardo Castiello is a resident of Dade County, Florida. Petitioner was appointed as a Judge of Compensation Claims for the Miami District of the State of Florida, Office of the Judges of Compensation Claims, at some point prior to 2013. In November 2016, Petitioner was serving as a Judge and seeking reappointment for another four-year term. 12. On November 1, 2016, the Commission conducted a hearing to consider Petitioner’s application for reappointment. The Commission did not vote or otherwise make a determination of whether Petitioner’s performance was satisfactory. Instead, the Commission applied the Guidelines in reaching its decision. This decision is memorialized in a letter sent by the Commission to the Governor on November 14, 2016, which contains the following statement regarding Petitioner: “The Commission did not nominate Hon. Gerardo Castiello (MIA) for reappointment.” 13. Petitioner commenced this proceeding on January 20, 2017, when, by and through counsel, he filed a Petition Challenging Agency Statements Defined as Undaopted Rules with the Division of Administrative Hearings (“DOAH”). The Petition alleges that the Guidelines meet the definition of “rules,”4 have not been adopted as rules as required by statute,® and have been relied upon by the Commission as “the basis of its denial and rejection of the Petitioner’s reappointment application.” Petition { 38. Petitioner requested a formal administrative hearing, a determination that the Guidelines are unadopted rules, and related relief. Id. @ 42. 14. DOAH did not assign an administrative law judge to preside over this proceeding within ten days after receipt of the petition as required by section 120.56(1) (c), Florida Statutes. On February 22, 2017, Petitioner filed a Motion for Appointment of Administrative Law Judge, and Notice of Objection to Consideration by Administration Commission. 15. Petitioner then filed petitions with the First and Third District Courts of Appeal beginning in February 2017 to address this issue and related matters. Among other relief, these petitions sought to compel DOAH to appoint an administrative law judge. The Commission objected to this relief, in part, on the basis that “DOAH is the real party in interest,” and this matter has “been referred to the Administration Commission for appointment of an attorney to hear the case pursuant to § 120.80(1), Fla. Stat.” Respondent’s Response to Petitioner’s Petition, Third DCA Case No. 3D17-0341 (March 8, 2017). 16. The Third District Court of Appeals ultimately denied Petitioner’s petition for writ of prohibition, writ of mandamus, and/or alternative writs and remedies. Order, Third DCA Case No. 3D17-0341 (March 29, 2017). The Court subsequently denied Petitioner’s motion for written opinion, clarification, rehearing, certification, and/or rehearing en banc. Order, Third DCA Case No. 3D17-0341 (May 3, 2017). 17. Approximately four months later, without any action by the Administration Commission, undersigned was designated by DOAH Chief Judge Cohen as the “hearing officer to conduct the hearing” in this matter under the authority of section 120.65(5), Florida Statutes. Order of Assignment at 1 (September 18, 2017). That section allows DOAH to assign a full-time state employee as a hearing officer “[i]f the division cannot furnish a division administrative law judge promptly in response to an agency request.” § 120.56(5), Fla. Stat.® 18. Based on the assignment of undersigned, the First District Court of Appeals dismissed Petitioner’s petition for writ of mandamus as moot. See Castiello v. Florida Div. of Admin. Hearings, 229 So. 3d 861 (Fla. lst DCA 2017), reh'g denied (Nov. 8, 2017). 19. After filing the petition that commenced this proceeding and while the petitions for various writs were pending before the District Courts of Appeal, Petitioner propounded discovery to Respondent. On February 13, 2017, Petitioner served on Respondent and filed with DOAH a request for admissions. Respondent did not timely answer or object to this request. 20. On September 20, 2017, after undersigned was assigned as the Hearing Officer, counsel for Petitioner sent to counsel for Respondent an e-mail stating that the request would be deemed admitted due to the failure to respond. The Commission did not respond to this e-mail, answer the request, or file an objection. 21. On December 5, 2017, Petitioner filed a Motion for Summary Order. As support for the Motion, Petitioner asserts 10 that the material facts in this proceeding are undisputed because of Respondent’s failure to respond to the February request for admissions. More than 30 days (indeed, over 9 months) have passed since the request for admissions was serviced on the SNC, and the SNC has never responded to Castiello’s request for admissions. The SNC has never moved for additional time to respond, and has not attempted to demonstrate any excusable neglect for failing to timely respond. Nor is there any possibility of any excusable neglect for the SNC’s failure to respond -— especially after the Petitioner reported the SNC’s failure to response at least three different times. 22. Respondent did not file a response to the Motion for Summary Order as allowed under Rule 28-106.204, Florida Administrative Code, and the time for doing so has expired. Respondent has not answered or objected to the request for admissions.
Other Judicial Opinions A party who is adversely affected by this Summary Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceeding are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law. 21
