The Issue The Administrative Complaint herein charges Respondent with violation of Section 458.331(1)(x) F.S. (violating Rule 21M-28.002 F.A.C.) by failing to submit documentation verifying his continuing medical education for the period January 1, 1986 through December 31, 1987 in response to the Board of Medicine's random audit and further charges him with violation of Section 458.331(1)(a) by attempting to obtain, obtaining, or renewing a license to practice medicine by bribery, fraudulent misrepresentations, or through error of the department or board, to wit: falsely certifying that he had completed the continuing medical education requirements for the period from January 1, 1986 through December 31, 1987.
Findings Of Fact At all times material, Respondent was licensed by the Florida Board of Medicine, License No. ME 0034111. Respondent's Florida license expired on December 31, 1989 and has not been renewed. The Board of Medicine does not permit licensees to renew their licenses during a period of suspension. Pursuant to an October 29, 1990 Final Order, Respondent's license was suspended until such time as he complied with a prior December 16, 1988 Final Order reprimanding him and imposing an administrative fine of $2500 for a violation of Section 458.331(1)(b) F.S., discipline in another state, Texas. This cause involves Respondent's last biennial license renewal for the period 1988-1989. Pursuant to Section 455.213(5) F.S. as a condition of renewal of a license, the Board of Medical Examiners (Board of Medicine) shall require licensees which it regulates to periodically demonstrate their professional competency by completing at least 40 hours of continuing education every two years, of which at least five hours shall concern risk management. Criteria for, and content of, continuing education courses shall be approved by the Board. Pursuant to Rule 21M-28.002 F.A.C. every physician licensed pursuant to Chapter 458 F.S. shall be required to complete 40 hours of continuing medical education (CME) approved by the Board in the 24 months preceding each biennial renewal period as established by the Department. At least five of such CME hours required for renewal shall concern risk management. Pursuant to Rule 21M-28.002(2)(a) F.A.C. "risk management" means the identification, investigation, analysis, and evaluation of risks and the selection of the most advantageous method of correcting, reducing, or eliminating identifiable risks. Pursuant to Section 21M-28.002(3) F.A.C., part of the application for renewal shall include a form on which the licensee shall state that he has completed the required continuing education. Additionally, the licensee is affirmatively charged with retaining such receipts, vouchers, certificates, or other papers, such as physician recognition awards issued by the American Medical Association (AMA), as may be necessary to document completion of the continuing medical education listed by the licensee on the renewal form for a period of not less than four years from the date the course was taken. The Board is affirmatively charged with randomly auditing such numbers of licensees as is necessary to assure that the continuing education requirements are met. On or about January 18, 1988, Respondent signed the following statement which was thereafter submitted as part of his request to renew his license to practice medicine: I hereby certify that during the period January 1, 1986, through December 31, 1987, I have obtained no fewer than forty (40) hours of continuing medical education courses which meets the requirement of Chapter 455.213(5), Florida Statutes, and Rule 21M-28.002(6), Florida Administrative Code. I further certify that at least five (5) of the forty (40) hours concern risk management pursuant to Rule 21M-28.002(2), Florida Administrative Code. I understand that I must maintain such receipts, vouchers, certificates, or other papers to document completion of the CME requirements for a period of not less than four (4) years from the date the course was taken. I affirm that these statements are true and correct and recognize that providing false information may result in a fine, suspension or revocation of my license as provided in Florida Statutes 455.2275, 775.082, or 775.084. The aforementioned statement concerning CME courses taken January 1, 1986 through December 31, 1987 was required as part of the renewal process for the licensing period from January 1, 1988 through December 31, 1989. Without this statement, Respondent would not have been permitted to renew his license to practice medicine in Florida, but having made it, he was permitted to renew his Florida license. That renewal was based, in part, on the aforementioned statement signed by Respondent regarding completion of the mandatory CME credits. Thereafter, Respondent was selected randomly for audit purposes to verify his continuing medical education for the January 1, 1986 through December 31, 1987 period covered in his statement made January 18, 1988, as a predicate to license renewal. Respondent was required, pursuant to rule, to retain his documentation of 1986-1987 CME courses up through that course's same month and day in 1990 (for 1986) and 1991 (for 1987). On February 17, 1989, the agency received some CME documentation from Respondent, but it was returned to Respondent because it failed to document the required 5 hours in risk management (TR-12). Thereafter, Petitioner prosecuted Respondent for failure to provide adequate documentation of 5 hours of risk management CME credits and 35 hours of Category I CME. (TR-12-13 and the Administrative Complaint herein.) Mr. George Schaffer, the Department of Professional Regulation (DPR) investigator, testified that he also wrote Respondent for documentation of all 1986-1987 CME credits (TR-26-27). Respondent replied to Mr. Schaffer's letter on June 12, 1990, stating, in pertinent part, as follows: I am in receipt of your letter of 6/7/90 concerning continuing education for 1985. To the best of my knowledge, this was submitted when requested. Due to lack of storage space, I am unable to keep papers from these activities longer than two years and I no longer have papers for CME 1985 in my possession. Part of my CME for that period was in Medical management and quality assurance and I did receive my MBA in June of 1986. (P-5) [Emphasis supplied.] Mr. Schaffer's letter is not in evidence, and Respondent's foregoing June 12, 1990 letter suggests that Respondent was under the impression that Mr. Schaffer was asking him to submit only 1985 materials concerning risk management courses. It is noted that as of 6/7/90, Respondent was only required by law to have available documentation from 6/7/86 forward (four years from date of any CME course), and that if Respondent had completed all his required CME credits between January 1, 1986 and June 6, 1986, he was not required by statute and rule to retain and produce the proof thereof after June 6, 1990, and given the agency's return of his documents to him in February 1989 with no question raised to all his CME credits, but only to his risk management credits, it is not unreasonable that he might not have retained all of his CME documentation. However, in his response to Mr. Schaffer, Respondent has admitted that, contrary to law, he has failed to retain any CME materials more than two years. Likewise, once he was timely informed in February 1989 that his risk management hours were incompletely documented, he was on notice as of that date to submit proper documentation for his risk management hours, and as of that date charged with retaining and producing that documentation. After the Administrative Complaint herein was filed, the Respondent mailed to the DPR attorney of record a January 2, 1991 letter from "Prof. The Hon. Dr. M.E. West, O.M." on stationery of the University of the West Indies, Mona, Jamaica Campus. That letter states: TO WHOM IT MAY CONCERN CATEGORY 1 CME HOURS This is to certify that Dr. The Hon. Albert B. Lockhart has participated in a going Medical Education in the area of Risk Management from 1985-90. The hours are as following:- 1985 10 hours 1986 12 hours 1987 10 hours 1988 15 hours 1989 12 hours 1990 10 hours TOTAL 69 hours (Signature) Prof. The Hon. Dr. M.E. West, OM (P-6) Rule 21M-28.002 (6) F.A.C. describes and defines the CME courses approved by the Board and does not on its face certify as approved the courses set out in the foregoing finding of fact. The letter from "Dr. West" is not verified or notarized, and there is no evidence in this record to establish who "Dr. West" is or what constitutes his authority with regard to "going" Medical Education, whatever that may be. Respondent did nothing further to establish his compliance with the Florida CME requirements. The result is that Respondent has only established that during 1986 and 1987, the years he was requested to document, he took 22 hours of medical education, which hours have not been shown to meet the quality standards established by the Board for either Category I CME or risk management courses, pursuant to rule. 1/
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of Count I of the Administrative Complaint by violation of Section 458.331(1)(x) F.S. and not guilty of Count II of the Administrative Complaint, imposing a $5,000 penalty, and suspending Respondent's license until such time as he has paid the penalty and proved to the satisfaction of the Board that he has completed an additional approved 35 CME hours and 5 risk management CME hours, such hours to be in addition to any hours previously earned or required by rule. DONE and ENTERED this 14th day of May, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 14th day of May, 1991.
Findings Of Fact Based upon the deposition testimony and documentary evidence from the petitioner's application file, the following relevant facts are found: Petitioner is a 1979 graduate of the University of Karachi and Dow Medical College in Pakistan. At the time of his application for Florida licensure by endorsement, he was licensed to practice medicine in Iowa. He is currently licensed to practice medicine in the states of Iowa, Georgia and Maryland. When the Florida Board of Medicine noticed its intent to deny petitioner's application, he had obtained a passing score on the federal licensing examination (FLEX). Contained within petitioner's application file are numerous letters from physicians who had, at one time or another, worked with the petitioner at various health care facilities. With one exception, all such letters recommended him for licensure in Florida and are quite positive regarding petitioner's competency as a physician. The one exception came from Dr. David W. Schultz, who was the director of petitioner's first year residency program at Lutheran Medical Center in Ohio. Petitioner participated in and completed a first year internal medicine residency program at Lutheran Medical Center from July 1, 1983 through June 30, 1984. Dr. David W. Schultz had held the position of director of the residency program for over twenty years. During petitioner's year of residency, Dr. Schultz taught the first year residents only one class. Other than his teacher/student relationship with petitioner during that one class in October and/or November of 1983, Dr. Schultz had no opportunity to directly and personally observe petitioner's ability to practice medicine. The entire faculty was involved in the teaching and observation of the residents. The "firm" or group to which petitioner was assigned as a first year resident did not manage or treat any of the patients admitted by Dr. Schultz. Other than his class observations, Dr. Schultz's opinions regarding petitioner's competency are based solely upon verbal reports and comments from other physicians and residents during the year. On January 13, 1984, Dr. Schultz wrote a letter "To Whom It May Concern," stating that petitioner is a "hard working and sincere physician" who "seems to get along with fellow residents and the Attending Staff." He recommended petitioner "for acceptance into your program." On or about February 10, 1984, Dr. Schultz completed and returned a form sent to him by the Florida Board of Medicine. The form advised Dr. Schultz that petitioner had applied for medical licensure in Florida and requested Dr. Schultz to rate petitioner in fifteen areas as either "poor," "fair," "good," "superior," or "don't know," and to provide an overall evaluation by checking one of the following: " 1. Recommend as outstanding applicant. 2. Recommended as qualified and competent. 3. Recommended with some reservation. 4. Cannot recommend." If either numbers 3 or 4 were checked, a written explanation was requested. Dr. Schultz rated petitioner "good" in all fifteen categories and checked item number 2 above -- "recommended as qualified and competent." On June 20, 1984, Dr. Schultz wrote a similar "To Whom It May Concern Letter" recommending petitioner "for acceptance into your program." On June 25, 1984, Dr. Schultz wrote a letter to the Florida Department of professional Regulation recommending petitioner "for a license in the State of Florida." Both of the June, 1984, letters again state that petitioner is "a hard working and sincere physician" and that "he seems to get along with fellow residents and the Attending Staff." In October of 1984, the Board of Medicine received a second completed form from Dr. Schultz regarding the petitioner. This form called for the identical information as the form completed by Dr. Schultz in February of 1984. However, this time Dr. Schultz rated petitioner as "fair" in thirteen categories, "poor" in one category (relationship with colleagues) and "good" in only one category (knowledge of English). As an overall evaluation, Dr. Schultz checked Item Number 3, "recommended with some reservation," but no written explanation was provided. At his deposition taken on September 17, 1987, Dr. Schultz attempted to explain the discrepancies between his evaluations of petitioner submitted in January, February and June of 1984 and his October, 1984, evaluation. When asked what happened between the two forms submitted in February and October of 1984, Dr. Schultz testified that it was only petitioner's failure to improve. Elaborating somewhat, Dr. Schultz stated: "I think, I admit to you it seems difficult to justify. I think if you have had the experience I've had over a period of many, many years in training residents and starting residents in what is a three-year program that you are always hopeful `that people who don't perform well at the first-year level may be able to find themselves, improve their basic knowledge level, and apply it better in the two years they have left in training, and that is the only justification I can give you for those letters. During his deposition, Dr. Schultz opined that petitioner was the "poorest" of the eight first year residents in the areas of basic medical knowledge, ability to apply knowledge to the effective management of patients and willingness to work hard. It was his opinion that, during the time of his first year residency, petitioner was not competent to independently practice medicine with skill and safety. The petitioner's application file also contains two letters written in January and February of 1984, from Dr. William T. Wilder, who was then an associate clinical director of the Medical Geropsychiatric Unit at Lutheran Medical Center. These letters represent that Dr. Wilder has worked closely with the petitioner during his residency program and that Dr. Wilder regards petitioner as having "excellent moral character" and "excellent qualifications to practice as a physician." He describes petitioner as a "very dedicated and thorough resident," "diligent in follow up on patient problems," and able to work well with patients. In 1983, Lutheran Medical Center was required to reduce the number of second year resident positions from eight to six. In the opinion of Dr. Schultz, even if Lutheran had had eight available second year residency positions, petitioner would not have been offered one of them because "his performance didn't warrant that." Petitioner was informed in October of 1983, that he would not be offered a second year residency position at Lutheran. Apparently, the month of October is a uniform appointment time throughout the country for residents in hospitals with approved medical programs. During the end of his second full month of residency at Lutheran Medical Center, petitioner underwent emergency eye surgery for a detached retina. It was petitioner's understanding that he was not offered a second year residency at Lutheran Medical because of his eye problems and because of the cutback in the number of second year residency positions. Although other residents were placed on probation due to unsatisfactory performance, petitioner was never placed on probation during his residency at Lutheran. On July 3, 1984, after the completion of his residency, petitioner filed a civil rights action against Lutheran Medical Center alleging that he had been discriminated against due to his eye problems. Dr. Schultz's deposition was taken in connection with that action in the summer of 1984. Since November of 1986, petitioner has been employed as a staff physician at the Georgia State Prison in Ridgeville, Georgia. In that capacity, petitioner sees approximately twenty to thirty male inmate patients per day and performs some minor surgery. His immediate supervisor is the medical director of the Georgia State Prison, Dr. Henry A. Robinson, who is board certified in obstetrics/gynecology and has been practicing medicine for 31 years. Dr. Robinson observes petitioner on a daily basis, and recommends him for licensure in Florida with no reservation. It is Dr. Robinson's opinion that petitioner is "very firm in his medical skills," has good medical knowledge which he applies very well, is willing to work, is cooperative and gets along well with his peers and his patients. Dr. Robinson has had fewer complaints from inmate patients regarding petitioner than any other health care worker. When asked to give an overall rating of petitioner as a physician, Dr. Robinson replied "I think he's well trained. He's motivated and does a fine job in the day-to-day practice."
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for licensure by endorsement be GRANTED. Respectfully submitted and entered this 25th day of February, 1988, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2680 The proposed findings of fact submitted by counsel have been carefully considered and are accepted and/or incorporated in the Recommended Order, except as noted below. Respondent 5, last sentence: Rejected; if respondent is referring to "approved" medical training, this is irrelevant and immaterial. The evidence does establish that petitioner has been practicing medicine since the time of his residency. 9. The first two sentences and the last four sentences are accepted. The last sentence is accepted as a reason stated by the Board, but not as a sufficient reason for denial. The remaining portions are rejected as contrary to the conclusions drawn by the undersigned upon a reading of the entire deposition. COPIES FURNISHED: Gary D. Fields, Esquire 230 Royal Palm Way Suite 400 Palm Beach, Florida 33480 M. Catherine Lannon, Esquire Assistant Attorney General Administrative Law Section Suite 1601 - The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth Executive Director Department of Professional Regulation Board of Medicine 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Division of Real Estate (Division) was the state agency in Florida responsible for licensing real estate brokers and salespersons and for the regulation of the real estate profession in this state. Respondent was licensed as a real estate broker, but his license had been suspended effective October 13, 1996 On May 17, 1994, after Respondent had requested but failed to appear at an informal hearing on his alleged misconduct, the Florida Real Estate Commission (Commission) issued a Final Order in which it ordered Respondent be reprimanded and pay a $500.00 administrative fine within thirty days of the filing of the order on pain of suspension of his broker's license until the fine was paid. In addition, the Commission placed Respondent's license on probation for one year with the requirement that, inter alia, he enroll in and satisfactorily complete a sixty hour post-licensure education course for brokers within one year of the filing of the order. Though in collateral communications to Petitioner's counsel, to an investigator, Ms. May, and to the prior Judge assigned in this matter, all of which are a part of the file in this case, Respondent claimed not to have received the Final Order in issue, Mr. James, another investigator for the Department of Business and Professional Regulation (Department), in his visit to Respondent's office on June 28, 1995, found a copy of the order in Respondent's office files. The prior misconduct by Respondent bears on the instant case only in so far as it supports the action taken with respect to it by the Commission. As it appears, Respondent failed to file his monthly escrow account reconciliation on the required form though he had received and had a copy of the required form in his file. He claims, in his correspondence, and there is no evidence to refute his claim, that because of his poor memory at the advanced age of eighty years, he forgot the new form had become required and continued to use the previously approved form he had used over his prior twenty-eight years in the real estate business. It appears that when that discrepancy was found by the former investigator, Ms. Mays, Respondent was issued a citation calling for a fine of $100.00 and 30 hours of continuing education, but considering that proposed penalty too severe for a "minor" offense resulting from a lapse of memory, especially when no loss was occasioned to any client, he rejected the citation and demanded a hearing. He then did not attend the informal hearing scheduled. Thereafter, the commission entered the Final Order alleged in the instant Administrative Complaint, the terms of which were described above. The required $500.00 administrative fine has not been paid nor has the required post-licensing education been completed. Respondent still contends the fine is too severe and because of his age and inability to drive at night, he is unable to take the required course. On June 28, 1995, Mr. James, an investigator for the Department, acting on a report that Respondent was continuing to operate his brokerage even though his license had been suspended, went to the Respondent's office located at 56 Harvard Street in Englewood, Florida. At that address Mr. James found Respondent operating two businesses from the same office. One was Englewood Realty and the other was a dry ice company. During the interview held on June 28, 1995, Respondent admitted he had received the Final Order but considered it unfair. Respondent also admitted he was actively engaged in the practice of real estate and wanted to keep the brokerage open until he could sell his own property, and "just in case something else came up." While Mr. James was at the Respondent's office, Respondent was visited by a female representative of an advertising publication who spoke with him about his advertisement for the sale of some real estate. Also during the visit, as James recalls, Respondent received at least one telephone call which seemed to relate to the sale of real property. In both cases, however, it appeared to Mr. James that Respondent was referring to his own property. James did not discover any reference to sales or dealing relating to property owned by anyone other than Respondent. James also reviewed Respondent's books for the brokerage and it appeared to him that Respondent was operating at a loss. Nonetheless, at no time did Respondent fail to identify himself as a real estate broker either to the advertising representative or in response to the telephone call. In light of Respondent's refusal to comply with the earlier suspension, his apparent unwillingness to cease operations as directed until it suited his purpose, and his unfavorable financial position as to the brokerage, the Petitioner recommends only that Respondent's license as a real estate broker be revoked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Florida Real Estate Commission enter a Final Order in this case revoking Respondent's license as a real estate broker in Florida. RECOMMENDED this 2nd day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October 1996. COPIES FURNISHED: Raymond J. McGinn Englewood Realty 56 Harvard Street Englewood, Florida 34223 Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N-308 Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The central issue in this case is whether Petitioner is entitled to licensure by endorsement. Specific to the grounds for denial are the issues of whether Petitioner is of good moral character and whether he is able to practice with skill and safety.
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, I make the following findings of fact: The Petitioner, Norman M. Phillips, M.D., is a graduate of St. George's University School of Medicine, Grenada, West Indies, a foreign medical school. Petitioner holds a certificate from the Educational Commission on Foreign Medical Graduates (ECFMG) and has passed the ECFMG examination. Petitioner obtained a passing score on the licensing examination of the Federation of State Medical Boards of the United States, Inc. (FLEX). Petitioner is licensed to practice medicine in New Jersey. Petitioner is over 21 years of age. Petitioner has completed at least one year of an approved residency. The Petitioner has not committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician, pursuant to Section 458.331(1) or (2), Florida Statutes. Petitioner applied for licensure by endorsement as a physician in Florida. On March 26, 1988, Petitioner appeared before the Credentials Committee of the Board regarding his application for licensure. The Credentials Committee recommended to the Board that Petitioner's application be denied. The basis for this recommendation was Petitioner's alleged inability to practice medicine with reasonable skill and safety due to a mental condition and his prior performance during his medical training. The recommendation also claimed Petitioner was not of good moral character. The Board adopted the recommendation of the Credentials Committee and issued an Order stating its intent to deny the Petitioner's application. Thereafter, Petitioner timely filed for an administrative review of the denial. After graduation from medical school, Petitioner was accepted into a residency program at St. Peter's Medical Center, New Brunswick, New Jersey. This program was in internal medicine and was to cover three years of postgraduate work. After the first year, Petitioner was evaluated and offered a contract for the second year of the program. Dr. Andrew L. Hahn was the program director of the internal medicine residency program. Dr. Hahn is an expert in the matter of residency training of medical students. Dr. Hahn evaluated Petitioner's performance as satisfactory. During the second year of the residency, Petitioner received an unfavorable evaluation which placed him on notice of a need to improve in order to receive a contract for the third year of the program. Petitioner ably made necessary corrections, improved his work performance, and, consequently, received a contract for the third year. After Petitioner had received notice of his contract for the third year, he was required to perform a rotation in radiology. This rotation was selected as it was the only available course given in the time period. While Petitioner would have preferred another topic, he accepted the assignment and agreed to the rotation. The rotation consisted of approximately three weeks of classroom lectures given at a location away from Petitioner's hospital assignments. After attending a few early sessions, Petitioner determined that he had already studied the subject matter of the course in medical school and that further attendance would not benefit him. Petitioner erroneously concluded attendance was not required. Instead of attending the rotation course lectures, Petitioner remained home studying other materials, performed his hospital duties, and made applications relating to future work. Petitioner's patients did not suffer as a result of the missed classroom sessions. Petitioner attended the clinic he was assigned to during the rotation period. When Petitioner's superiors were informed of the failure to attend the classroom sessions, they approached Petitioner for a satisfactory explanation which he was unable to provide. Since they (including Dr. Hahn) considered the failure to attend a serious breach of his professional responsibility, Petitioner was given the choice of either resigning his third year placement or being terminated. Petitioner agreed to resign his third year and was given a certificate for the two years he completed. At the time of his resignation Petitioner offered to repeat the classroom work but that option was rejected by Dr. Hahn. After resigning, Petitioner told his superiors that he had worked in a pharmacy (he is a licensed pharmacist) during the time he was supposed to have been in the radiology classes. He indicated he had done this because he needed money. Petitioner had not worked in a pharmacy, however, and had fabricated the story in a lame effort to excuse his nonattendance. Subsequently, Petitioner was interviewed by Dr. Bernard Sandler for a residency program in physical medicine and rehabilitation at the Robert Wood Johnson, Jr. Rehabilitation Institute of the John F. Kennedy Medical Center in Edison, New Jersey. Petitioner was accepted into the program and fell under the supervision of Dr. Thomas Edmund Strax. Petitioner successfully completed this program in December, 1987. Petitioner did not disclose the underlying facts of his resignation from the internal medicine program to either Dr. Sandler or Dr. Strax, however, neither physician questioned him at length about it either. Petitioner did not misrepresent any pertinent history; he simply did not volunteer embarrassing information. During his residency in rehabilitation, Petitioner was observed by Drs. Sandler, Harold Arlen, and Fazal Panezai. All of these physicians found Petitioner to be able to practice medicine with skill and safety. Petitioner did not exhibit any problem related to malfeasance or incompetence. Petitioner got along with staff and worked well with others. As a resident in the rehabilitation program, Petitioner was evaluated by Dr. Strax who determined that Petitioner would require improvement in order to meet the high standards Dr. Strax maintained for his course of study. Petitioner was able to make the necessary improvements and satisfactorily met Dr. Strax's objectives. Dr. Strax is an expert in the matter of residency training of medical students. Dr. Strax had an opportunity to review Petitioner's work on numerous occasions. Dr. Strax recommended Petitioner for licensure and - found him to be qualified and competent. Petitioner is presently employed as a physician at the Veterans Administration Medical Center in Miami, Florida. Petitioner is not required to be licensed in his present employment since such position is exempt from licensure. Petitioner's present supervisor is Dr. Dorothea Glass, Chief of Rehabilitation Services. Dr. Glass interviewed Petitioner and reviewed references Petitioner had given to her. Dr. Glass knows Dr. Strax who recommended Petitioner for the position which he currently holds. While Dr. Strax advised Dr. Glass to "keep an eye on him," Dr. Glass has done as she would with all young doctors. Dr. Glass has worked with Petitioner on a daily basis since February, 1988, and believes he is competent, hardworking and honest. Petitioner is able to practice medicine with skill and safety. Petitioner is of good moral character. Petitioner did not misrepresent material information when he appeared before the credentials committee.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Medicine enter a final order approving the application for licensure by endorsement for the Petitioner, Norman M. Phillips, M.D. DONE and RECOMMENDED this 30th day of May, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1989. APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 9 are accepted. To the extent addressed in findings of fact paragraphs 11-16, paragraphs 10 through 32 are accepted. Paragraphs 33 through 36, are accepted but are irrelevant to the issues of this case. Paragraph 37 is accepted. Paragraph 38 is rejected as speculation or argument. Paragraph 39 is accepted. Paragraphs 40 through 51 are accepted. Paragraph is rejected as irrelevant. Paragraphs 53 through 63 are accepted. To the extent addressed in findings of fact paragraph 21, paragraphs 64 through 68 are accepted. Paragraphs 69 through 71 are accepted. Paragraphs 72 through 73 are rejected as immaterial, recitation, or argument. Paragraphs 74 through 76 are rejected as recitation of testimony or argument. See findings of fact paragraph 20. Paragraph 77 is rejected as argument. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 10 are accepted. Paragraph 11 is rejected as irrelevant to the extent that it refers to Petitioner's performance as "marginal." Petitioner was rated satisfactory and was permitted to continue. There were areas in which he required improvement, which he was able to correct. Paragraph 12 is accepted with the clarification that the radiology rotation was selected because it was the only one available to Petitioner at the given time. That portion of paragraph 12 which relates a fourth week work in the emergency room is rejected as contrary to the weight of credible evidence. With regard to paragraph 13, that portion which states Petitioner did not attend the classroom radiology rotation is accepted, the remainder is rejected as either unsupported by the record, contrary to the weight of the evidence, or irrelevant. To the extent addressed in findings of fact paragraphs 11-16, paragraphs 14 through 16 are accepted otherwise rejected as irrelevant or contrary to the weight of the credible evidence. It should be noted that any reference to emergency work deficiencies have not been credited nor are they supported by this record. Paragraph 17 is rejected as argument. Paragraph 18 is rejected as contrary to the weight of the credible evidence or argument. Paragraph 19 is rejected as argument, irrelevant, or immaterial to the issues of this case. Paragraph 20 is rejected as argument. Paragraph 21 is rejected as unsupported by the weight of credible evidence or argument. Paragraph 22 is accepted to the extent addressed In findings of fact paragraph 17; otherwise rejected as irrelevant or contrary to the weight of credible evidence. To the extent addressed in findings of fact paragraph 19, paragraph 23 is accepted. Paragraph 24 is accepted. Paragraph 25 is rejected as recitation of testimony, argument, or irrelevant. Paragraph 26 is accepted. Paragraph 27 is rejected as unsupported by the weight of the credible evidence, irrelevant, or argument. COPIES FURNISHED: Robert S. Turk VALDES-FAULI, COBB, PETREY & BISCHOFF, P.A. Suite 3400-One Biscayne Tower Two S. Biscayne Boulevard Miami, Florida 33131 Allen R. Grossman Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050
The Issue The issues presented here are based upon an Administrative Complaint filed by the Petitioner against the Respondent seeking the revocation, suspension, or other disciplinary action against the Respondent, and his license to practice medicine in the State of Florida. Count I to the Administrative Complaint accuses the Respondent of making misleading, deceptive, untrue and fraudulent representations in obtaining his license to practice medicine in the State of Florida. It is further contended that Respondent has not and cannot demonstrate that he graduated from medical school, and alleges that Respondent cannot demonstrate that he has met the minimal medical education, training and experience necessary for licensure by the Petitioner. Based upon these allegations, Respondent has purportedly violated Subsection 455.1201(1)(a), Florida Statutes (1977), by failing to demonstrate qualifications and standards for licensure contained in Chapter 455, Florida Statutes, or the rules and regulations of the Board of Medical Examiners. Count II, utilizing the same factual basis as has been alleged in the initial count, accuses the Respondent of violating Subsection 455.1201(1)(b) , Florida Statutes (1977), by practicing fraud or deceit in obtaining a license to practice medicine. Count III accuses the Respondent, based upon the aforementioned facts, with violating Subsection 458.1201(1) Florida Statutes (1977), by engaging in unethical, deceptive or deleterious conduct or practice harmful to the public. Count IV is based upon the facts as related in Count I and asserts that Respondent has violated Subsection 455.1201(1)(m), Florida Statutes (1977), by being guilty of immoral or unprofessional conduct, negligence or willful misconduct. Count V, utilizing the facts related in Count I, alleges that Respondent has violated Subsection 455.327(2)(c), Florida Statutes (1951), and thereby violated Subsection 458.331(1)(x), Florida Statutes (1981), by violating a provision of Chapter 455, Florida Statutes. Finally, Count VI, asserting the facts as discussed herein, alleges that Respondent has violated Subsection 455.331(1)(a), Florida Statutes (1951), by attempting to obtain and obtaining a license to practice medicine by fraudulent misrepresentations CASE HISTORY On September 24, 1981, the Petitioner filed the Administrative Complaint against the Respondent which is the subject of this proceeding and which is referred to in summary fashion by the Issues statement to this Recommended Order. Subsequently, Respondent requested a hearing in this cause on November 11, 1981, by indicating, in substance, that he disputed the allegations as contained in the Administrative Complaint. On that same date, Respondent, through counsel, answered the Administrative Complaint. This answer was made a part of the record in the course of the final hearing and is being forwarded with the Recommended Order in this action. On November 30, 1981, the Division of Administrative Hearings received the case from Petitioner, the Petitioner having requested the Division to conduct a formal hearing in this matter. On December 3, 1981, Respondent's initial counsel withdrew from representation of Respondent. Respondent subsequently obtained the assistance of his present counsel, Rodney Smith, Esquire, and a final hearing was conducted on March 9, 1982, in keeping with Subsection 120.57(1), Florida Statutes. Petitioner's presentation consisted of testimony by Dorothy J. Faircloth, Executive Director, Board of Medical Examiners, State of Florida. Petitioner also offered seven (7) items as evidence. All those items, with the exception of Nos. 5 and 6, have been received. Respondent gave testimony and presented as witnesses Edward M. Crawford, President, High Springs, Florida, Chamber of Commerce; Lorna J. Peters, resident, High Springs, Florida; Leslie Ann Morgan, X-Ray Technologist in the office of Respondent; Angela Anderson, employee of Respondent; Mireya Braga, Respondent's wife; Lacey William Register, Mayor, High Springs, Florida; a Mr. Westmoreland, resident, High Springs, Florida; Cybil M. Crawford, Vice- President, High Springs Bank, High Springs, Florida; and Thomas William Wolfe, Chief of Police, High Springs, Florida. Respondent offered six (6) items of evidence. All items have been received. The parties, in the person of counsel, have offered proposed recommended orders and supporting argument. Those matters have been reviewed prior to the entry of this Recommended Order. To the extent that those items are consistent with this Recommended Order, they have been utilized. To the extent that the matters are inconsistent with this Recommended Order, they are hereby rejected.
Findings Of Fact In February, 1976, Respondent made his initial application to the Board of Medical Examiners to become a licensed physician in the State of Florida. A copy of that application may be found as Petitioner's Exhibit No. 1, admitted into evidence. This application was received beyond the time of the deadline for filing and as a consequence, Respondent was required to submit a further application. The second application was made on January 17, 1977. A copy of that application may be found as Petitioner's Exhibit No. 2, admitted into evidence. Both applications were prepared by the Respondent and sworn to as to their accuracy. This attestation also acknowledged that if false information was given in the application, that Respondent agreed that the act of falsifying the application constituted cause for denial, suspension or revocation of his license to practice medicine in the State of Florida. Following the submission of the second application for licensure, Braga stood the Board of Medical Examiners' license examination, given in English, and was a successful candidate for licensure. He was awarded License No. ME0032004 and has renewed that license by the payment of applicable fees since the initial award of the license in 1978. The Administrative Complaint which has been discussed in the course of this Recommended Order challenges the accuracy of the information presented in the applications which were submitted by Respondent. In the initial application filed by the Respondent for licensure dating from February, 1976, Braga states that he attended Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, from February, 1971, through December, 1967. In the application, Respondent indicates that he practiced and/or was employed at the INPS (Institute National of Providence Social) , Sao Paulo, Brazil, in General Practice, between 1970 through 1972; Clinica Nuesta Senora, Sao Paulo, Brazil, in General Practice, between 1971 through 1972; Heliopolis Hospital, Sao Paulo, Brazil, between 1969 through 1970, and the Fundacao Centro Nacional, San Paulo, Brazil, between January, 1968 and December, 1968. The initial application of February, 1976, also contained a document written in Portuguese, which was sworn and certified to by Braga as being a true, authentic and legitimate photocopy of the original of his medical diploma issued by Medic Sciences of Santos in Brazil. (See Petitioner's Exhibit No. 1) There is also contained in the application of February, 1976, an indication, under oath by Respondent, concerning a document as attached, purportedly issued by Heliopolis Hospital in San Paulo, Brazil. Finally, Respondent had attached to the form application, and found in Petitioner's Exhibit No. 1, affidavits from three physicians; Antonio J. Maniglia, Jorge Macedo and Humberto Munoz. These affidavits indicated that the physicians swore and affirmed that, by their personal knowledge, Respondent attended and graduated from Faculdade de Ciencias Medicas de Santos, and practiced lawfully in the profession of medicine in Brazil in the years 1968 through 1972, and further indicated that the physicians had practiced in Brazil during that time. It has been proven and Respondent acknowledges that the application of February, 1976, Petitioner's Exhibit No. 1, was false to the extent that it indicated his attendance at Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, during the years 1971 through 1967; to the extent that the application indicated he practiced in the hospitals and clinics as set forth above, and to the extent that the application indicated that the physicians who had signed the affidavits had personal knowledge of Respondent's graduation from the medical school and his practice of medicine in Brazil. In the January, 1977, application with associated documents, found as Petitioner's Exhibit No. 2, admitted into evidence, Respondent indicates to the Board of Medical Examiners that he attended Faculdade de Ciencias Medicas de Santos, Sao Paulo, Brazil, from December 1967 to February, 1971, and received his degree of Doctor of Medicine from that school on January 7, 1967. He indicates in the application, on the subject of residency or other postgraduate training, that he worked at the Fundacao Lusiada, Faculdade de Ciencias Medicas de Santos, from January, 1967, through October, 1967; and attended a Vascular Surgery Course, in the Heliopolis Hospital, Sao Paulo, Brazil, November, 1970. His employment was described in the application as being at the INPS (Institute National of Providence Social) Hospital, Sao Paulo, Brazil, General Practice, 1970 through 1972; at Clinica Nuestra Senora, Sao Paulo, Brazil, General Practice, 1971 through 1972; at Heliopolis Hospital, Sao Paulo, Brazil, General Practice, 1969 through 1970; and Fundacao Centro Nacional, General Practice, January, 1968 through December, 1968. The second application, which is found as Petitioner's Exhibit No. 2, attached a medical diploma purportedly from the School of Medical Sciences of Santos (Faculdade de Ciencias Medicas de Santos). This document shows a date of January 7, 1967, and was dissimilar to the diploma document which was attached to the February, 1976, application. There were certain affidavits with the January, 1977, application from physicians Jose A. Pardo, Jaime Motta and Pedro Melo, which affidavits indicated that the physicians had personal knowledge of Braga's attendance and graduation from Faculdade de Ciencias Medicas de Santos, in Sao Paulo, Brazil, and that he had lawfully practiced the profession of medicine in Brazil in the years 1967 through 1972. It was shown and Respondent admits that the January, 1977 application for licensure was false, in that Respondent did not attend the Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, from December 1967 through February, 1971; that be had not practiced medicine in the hospitals and clinics as listed; that be had not attended residency or postgraduate training programs as shown in the application; and that the physicians who signed the affidavits for Respondent did not have personal knowledge of his graduation from medical school or his practice of medicine in Brazil. In reality, while it is accepted, that Respondent, who is a native of Brazil, has obtained a medical doctor's knowledge, Braga is not found to have graduated from a medical school either in that country or elsewhere or to have, following graduation from a medical school, practiced medicine as a general practitioner for five years or practiced in a one-year internship program, prior to licensure in Florida. Respondent departed Brazil sometime either in 1968 or 1969. Fe did so in the face of circumstances in his country, in which Respondent had been imprisoned. After gaining his freedom he migrated to the United States. When Braga arrived in the United States, he moved to Chicago, Illinois, and practiced medicine in that community without the benefit of a medical license. He subsequently left the State of Illinois and moved to Florida. After arriving in Florida and while employed in the Milagrosa Clinic in Miami, Florida, practiced medicine. At that time he had not been licensed by the State of Florida to practice medicine. Prior to the date of licensure by the State of Florida, Respondent attended and successfully completed the Florida State Board of Medical Examiners' continuing education program for 1977, which was offered by the Office of International Medical Education, University of Miami, School of Medicine, In turn, he successfully stood the requisite medical examination offered in English and was licensed. After receiving his medical license in 1975, Respondent moved to High Springs, Florida, and opened a medical practice which is primarily involved with the general practice of medicine. In the course of his practice, he has treated some 15,000 to 20,000 patients. Respondent offered as witnesses many persons from the community of High Springs, Florida, who, from the point of view of these individuals, are impressed with his good moral character. No evidence was presented from either side on the subject of Respondent's reputation as a medical practitioners as perceived by members of his profession.
Findings Of Fact Petitioner graduated from high school in the People's Republic of China in 1972. She thereafter worked for a short time in a factory that manufactured Chinese medicines as a foreman. She became interested in Chinese medicine and enrolled in Kenchow Chinese Medical College, a nighttime professional university. She studied chemistry, biochemistry, and Chinese medicine. As a part of this program, she studied acupuncture meridians and points. For a full year, she spent two hours per day in classroom studies directly related to acupuncture and two hours practicing acupuncture as an apprentice. Thereafter, from 1973 until 1980, she worked as an acupuncturist for four hours per day, six days per week. She worked at a Chinese medicine industrial research center. In addition to her work with patients as an acupuncturist, she was involved in field studies regarding herbs and Chinese medicines and in the recording of statistics and research data. During this same time, the Petitioner enrolled in a correspondence course at Western Pacific College in Hong Kong. This program included courses in the basic theory of Chinese medicine, including courses specifically dealing with the theory and practice of acupuncture. The Petitioner enrolled at Western Pacific College so that she could receive certification as an acupuncturist. She already had completed similar work at Kenchow, and she was able to complete the course work by devoting approximately two hours per week to it. She received a certification from Western Pacific College that she completed the acupuncture course. The certification is dated January 20, 1980. In January, 1981, Petitioner moved to the United States. Since May, 1981, she has worked under the supervision of physicians performing acupuncture treatments in Volusia County, Florida. Petitioner appears to have sufficient education and experience to practice as an acupuncturist. The Department of Professional Regulation has not approved any programs of education in acupuncture or any apprenticeship programs in acupuncture. There is insufficient evidence in the record in this matter from which it could be determined that the programs offered at either Kenchow Chinese Medical College or Western Pacific College should be approved by the Department. Inquiries directed to the schools by the Department have not been answered, and the Petitioner has been unable to obtain transcripts of her course work. It cannot be determined whether anyone in any of the clinical portions of the educational programs attended by Petitioner were certified acupuncturists. The Department of Professional Regulation has not approved any apprenticeship programs for the practice of acupuncture. While it appears that Petitioner has an ample theoretical and practical background as an acupuncturist, it does not appear that prior to her coming to the United States she was ever supervised by a person who is licensed under Chapters 458, 459, or 468, Florida Statutes. Indeed, since all of her experience was in China, it is extremely unlikely that she was supervised by any such person. Petitioner has been practicing as an acupuncturist since May, 1981, under supervision as required under Chapters 458 and 459, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered denying the application of Lucy Wei-Nor Yu for licensure as an acupuncturist in Florida. RECOMMENDED this 9th day of March, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 9th day of March, 1982. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ms. Lucy Wei-Nor Yu 1360 Ridgewood Avenue Holly Hill, Florida 32017 Mr. Samuel R. Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner received his M.A. degree from New School of Social Research, Graduate Faculty of Political and Social Science in New York, New York, in sociology. He received further training in counseling as part of a Ph.D. program in clinical psychology at the Florida Institute of Technology. He is scheduled to receive his Ph.D. this year, having completed all coursework. Petitioner worked as a counselor under the supervision of Dr. Limbillo of the Naples Community Hospital Mental Health Clinic, in 1973 and 1974. He also worked as a counselor under the supervision of Dr. Hughes from 1975 to 1977 and Dr. Roca from 1977 to 1979.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent enter a Final Order denying Petitioner's application for licensure as a marriage and family therapist by exception. DONE and ENTERED this 27th day of May, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 27th day of May, 1983. COPIES FURNISHED: Daniel D. Peck, Esquire Suite A-204, Park Square 4089 Tamiami Trail, North Naples, Florida 33940 Drucilla Bell, Esquire 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
The Issue Whether respondent's teaching certificate should be suspended or revoked on grounds that he violated Sections 231.09 and 231.28, Florida Statutes (1979), by knowingly obtaining and filing a fraudulent university transcript with the Florida Department of Education for the purpose of being certified in the additional field of elementary education.
Findings Of Fact I. The Respondent: Background l. Respondent, a 44-year-old school teacher, has taught at Dade County elementary schools since 1966. He obtained a bachelor of science degree at Southern University in 1962. Later, he completed several postgraduate elementary education courses at Miami-Dade Community College and the University of Miami; in 1977, he earned a master's degree from Nova University. In his postgraduate courses, he earned almost straight "A's," with an occasional "B." (Testimony of Parker; P-6.) From 1966-1977, Respondent held a rank III (graduate) teaching certificate issued by the Florida Department of Education. After obtaining his master's degree in 1977, he was issued a rank II (post graduate) teaching certificate; however, although qualified in other areas, he was not certified to teach in the field of elementary education. (Testimony of Parker; P-6.) From 1974-1979, Respondent taught at Biscayne Elementary School in Dade County; since he was not certified in elementary education, he taught "out of his field." Teachers, such as Respondent, who taught out of their certified fields were required to complete at least six credit hours per year toward obtaining certification in the field in which they were teaching. Between 1977 and 1979, the Dade County School Board ("School Board") reminded its teachers of this requirement, that if they did not take the necessary ongoing course work, they would be required to return to their certified field of instruction. (Testimony of Gray.) Earlier, Respondent had hoped that, by obtaining his master's degree, he would complete enough courses to qualify for certification in the field of elementary education. However, his 1977 postgraduate teaching certificate did not certify him in elementary education. Sometime in early 1978, he calculated that 18 additional postgraduate credit hours would entitle him to be certified in elementary education, the area in which he preferred to teach. (Testimony of Parker.) II. Sutton Helps Respondent Enroll and Take Courses at Florida A & M University At all times material to this case, Eugene Sutton was employed by Florida A & M University ("Florida A & M") in Tallahassee, Florida, as its supervisor of intern teachers. In this capacity, Sutton would travel around the State, visiting interns and talking to supervising teachers. If problems were encountered, he would offer assistance. (P-4.) Sutton had been introduced to Respondent by Rosalyn Bethel, another faculty member at Biscayne Elementary School. In early 1978, Sutton--who had visited the school numerous times--walked into Respondent's classroom and asked him where he had attended school. When the conversation turned to various universities, Sutton stated that Florida A & M offered courses that could be taken by working people; he volunteered to help Respondent take such courses: [H]e [Sutton] said that he was able to reg- ister me, give me my work, and take it back to the instructors or the University, and I would get credit. (Tr. 76.) (Testimony of Parker; P-3.) Respondent accepted Sutton's offer. Shortly thereafter, he gave Sutton the registration fees (required by the university catalog) for nine credit hours. As promised, Sutton registered Respondent for elementary education courses at Florida A & M for the Spring Quarter of 1978. Respondent received a receipt from the university indicating his enrollment. During the ensuing months, Sutton would frequently exchange course materials with Respondent: Sutton would give course assignments to Respondent; Respondent would give Sutton completed course work for delivery to the various university instructors. (Testimony of Parker.) Respondent reasonably believed that he was properly completing course work assigned by his university instructors. The course work bore course titles and names of various instructors. Sutton was a faculty member at the university, a person in authority with important responsibilities. Respondent had no reason to distrust him or suspect him of wrongdoing. (Testimony of Parker, Gaines.) After finishing the Spring Quarter, Respondent enrolled at Florida A & M again, (through Sutton) for nine more credit hours (three courses) in elementary education during the Summer Quarter of 1978. The procedure was the same: He paid Sutton the required registration fees and received a receipt from the university. Sutton then brought course assignments (with textbooks) to Respondent, who, after completing them, gave them to Sutton for delivery to the various university instructors. Respondent never attended the university's Tallahassee campus or spoke directly with his instructors. (Testimony of Parker.) The elementary education courses which Respondent took at Florida A & M during 1978 were not directed individual study courses--courses which can be completed without attendance at the university's campus. However, Respondent-- at the time he selected these courses--did not know that they required attendance at the university. Sutton helped him select the courses from the university's course catalog, and he relied on Sutton as a university faculty member. (Testimony of Parker.) Respondent was unable to produce tuition receipts or work assignments associated with his course work because his house had been vandalized (and his records damaged) when he was hospitalized in September, 1979. 3/ (Testimony of Parker.) III. Respondent Receives a University Transcript At the conclusion of the Spring and Summer Quarters of 1978, Respondent received a copy of a course transcript from Florida A & M. The transcript--the original of which is part of the official records of the university--indicated that Respondent took six courses (18 credit hours) during the two quarters but successfully completed only three of them; that he earned only nine credit hours because of two "I's" (incompletes) and one "F" (failure). His grade-point average for the two quarters was 2.25. (Testimony of Parker; P- 3, P-4, P-8.) Although the transcript appeared to be valid and authentic, Respondent was surprised at the two "I's" and the "F." He had completed all his course assignments and had given them to Sutton; he did not expect an "F" when he was accustomed to earning A's and B's in postgraduate courses. 4/ Respondent then confronted Sutton. (Testimony of Parker.) Sutton explained that he (Sutton) had been late in delivering Respondent's course work to the university, and that Respondent would receive the correct grades. Shortly thereafter, Respondent received a corrected transcript indicating that he successfully completed (with B's) the three courses which had earlier been "I's" and an "F." He believed the corrected transcript was valid and authentic; however, he did not understand how the "F" could be corrected to a "B" when Sutton's explanation attributed the incorrect grades to the late submittal of course work. 5/ (Testimony of Parker.) Shortly thereafter--on May 31, 1979--Respondent completed an application for extension of his teaching certificate (to extend his area of certification to include elementary education) and gave it to Sutton, with the $5 application fee, for delivery to the Florida Department of Education. Subsequently, the Department granted him the requested extension of his teaching certificate. (Testimony of Parker, Gray; P-6.) The corrected transcript was, in fact, false. Upon discovery of that fact, the School Board suspended Respondent from his employment and conducted an investigation. On November 19, 1980, the School Board reinstated Respondent to his position after learning that Respondent was not the subject of criminal prosecution. (Testimony of Gray.) IV. Findings of Fact Proposed by Parties The findings of fact proposed by the parties have been considered. Those proposed findings which are not incorporated above are rejected as irrelevant to the issue presented or unsupported by the preponderance of evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the charges against Respondent be dismissed. DONE AND RECOMMENDED this 22nd day of October, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1981.
