The Issue Does the challenged language contained in the Academic Policy Statement Handbook constitute "curricula" so as to be exempt from rule-making pursuant to Section 120.81(1)(a), Florida Statutes [1996 Supp.]? Is Petitioner entitled to a de novo hearing on the merits of her dismissal from the University pursuant to Section 120.57(1) Florida Statutes in light of the provisions of Section 120.81(1)(f) Florida Statutes?
Findings Of Fact Petitioner was enrolled in Florida Agricultural and Mechanical University's College of Pharmacy and Pharmaceutical Sciences. On December 18, 1996, Petitioner was dismissed from the pharmacy program by a letter from the Dean of the College which stated, in pertinent part, After reviewing your academic record and the recommendation of the Admission and Academic Standards Committee, I must inform you that you are being dismissed from the College of Pharmacy. Please be advised that further request for readmission will not be considered. Because pharmacy is a career directed toward the safeguarding of community health, it also is a demanding career. We must insist that our students meet the academic challenges of the College of Pharmacy so that they will be well prepared to meet the challenge of a dynamic health care system. (Emphasis in original) [See, Exhibit to the First Amended Petition] Count I of the First Amended Petition challenges "Academic Policy Statement Handbook, Section 2 Dismissal", found on pages 9 and 10 of the publication. (See, Paragraph 5 of the First Amended Petition) The full title of this handbook is "Florida Agricultural and Mechanical University Academic Policy Handbook for BS and PharmD Students." The "Disclaimer" on page one of the Handbook makes clear that the Handbook is, ". . .for information purposes only and should not be construed as the basis of a contract between the student and the FAMU College of Pharmacy and Pharmaceutical Services . . ., the College reserves the right to change any provision listed, including but not limited to academic requirements for graduation, . . . it is especially important that each student note that it is his/her responsibility to keep himself/herself apprised of current graduation requirements by regular consultation with his/her advisor." The portion of the Handbook specifically challenged by Count I of the First Amended Petition provides as follows: ACADEMIC POLICY STATEMENT The Florida Agricultural and Mechanical University (FAMU) College of Pharmacy and Pharmaceutical Sciences (the College) has a responsibility to prepare students to enter the practice of pharmacy with competencies demanded by his/her role in health care. Further, the College serves to provide breadth and depth of scientific and professional background so as to allow versatility of practice within the subsystems of pharmacy. Students must make a commitment to their chosen profession by making those sacrifices necessary to insure academic success in their course of study. Being admitted to the College comes with the understanding that excellence in academic performance is expected. Failure to maintain academic performance will result in some action by the appropriate College of Pharmacy Committee. **It should be further understood that failing a course will usually result in the suspension of the student's program due to the structure of the curriculum and the associated prerequisite requirements in addition to any academic sanctions that may be imposed. The curriculum is designed to be followed from a course prerequisite standpoint while maintaining the integrity of the courses based on the year offered in the curriculum (i.e. 3rd year courses must be completed before entering 4th year courses, etc.). In addition to University Academic Regulations, the following rules will be used to provide for the immediate intervention of the Admissions and Academic Standards (A&AS) Committee. Additionally, the A&AS Committee may intervene at times other than specifically stated below if it is deemed necessary in order to ensure the academic integrity of the College. ProbationA student will be placed on academic probation if EITHER of the following occurs:Two or more D's in any course work in any semesterFailure of a professional courseA G.P.A. less than 2.0 in any semester. While on academic probation, the student will be required to meet with his/her advisor to determine what steps are needed to increase the student's academic performance. The student will be expected to adhere to the plan worked out with the student's advisor. The advisor will inform the A&AS Committee of the student's compliance and progress. **A "C" grade or better is required for passing all pharmacy courses.Probation will be lifted when BOTH of the following occur:A G.P.A. above 2.00No additional D's or F's DismissalA student may be dismissed from the program under provisions set by the A&AS Committee if EITHER of the following occurs:Two or more failures in one semesterA total of three failures in professionalcourses semester A G.P.A. less than 2.00 for the thirdThe student will be required to attend ALL professional courses in the semester in which he/she is retaking courses.The A&AS Committee will review every case separately and reserves the right to determine the provisions for each individual situation.The A&AS Committee will define the conditions for readmission for each individual student. DismissalA student will be dismissed from the program if EITHER of the following occurs:The fifth failure in professional coursesThe fifth failure in non-professionalcoursesThree failures in professional courses inone semesterThe second failure of a single courseThe student is eligible to reapply and be considered for admission one year after studies in the College have been discontinued. It is the student's responsibility to ask to be withdrawn from a course in a timely manner. Failure to seek counseling or guidance in a situation that negatively impacts his academic performance will not be used as cause to prevent the imposition of the appropriate academic penalty. (Emphasis in original) [See, Paragraph 5 of the First Amended Petition and Exhibit attached thereto] In her Supplementary Response to the Motion to Dismiss the First Amended Petition, Petitioner conceded that "No doubt the major text of the 'ACADEMIC POLICY STATEMENT' challenged, constitutes 'curriculum' which is exempt from rulemaking under Florida Law." The thrust of her challenge was then directed to the fifth paragraph on page 9 of the Handbook which reads, Additionally, the A & AS Committee may intervene at times other than specifically stated below if it is deemed necessary in order to ensure the academic integrity of the College. Petitioner further argued that she "contends that it is not what the challenged agency statement says . . . but what is not specifically in that text. The statement granted the A&AS Committee authority to take action against the Petitioner to preserve the 'academic integrity of the College,' but the text did not state what grounds that action must be based upon or what reasons are needed to take such action." Petitioner ultimately argued that she is "not challenging the 'curricula' use of the challenged statement to judge academic standards, but the use of the statement for other purposes as used against her." [See Petitioner's Supplementary Response to Respondent's Motion to Dismiss]. However, Petitioner conceded in the March 7, 1997 oral argument that she had no idea what those "other purposes" (also referred to as "discipline" or "other or secret agenda" in oral argument) might be, if any. Count II of the First Amended Petition adds anew a petition for a de novo review of the action of the Dean in dismissing Petitioner from the College of Pharmacy and Pharmaceutical Services. See, Finding of Fact 2, above.
Findings Of Fact This proceeding arises from a petition filed pursuant to Section 120.54, Florida Statutes, that challenges the validity of Proposed Rule 6C2- 5.0021. STIPULATED FACTS Findings contained in paragraphs 2-9 were stipulated by the parties, and with minor editorial changes, are set forth as follows: Petitioner is Douglas A. Charity, a former doctoral graduate student in the Department of Economics at Florida State University. The parties have stipulated to Petitioner's standing to bring this action. Respondent is Florida State University. Respondent began a review of academic rules during 1992. By memorandum dated December 10, 1992, Steve Edwards, Dean of the Faculties, wrote to all Academic Deans on the subject of academic rules in the Florida Administrative Code. In this memorandum, Dean Edwards refers to the repeal of the academic rules and the incorporation of the University bulletin by reference. Attached to Dean Edward's memorandum is a draft list of those academic rules in Rule Chapter 6C2 - Academic Matters proposed to be repealed. An additional attachment to Dean Edwards' memorandum is a "Notice of Proposed Rule Amendment (Repeal)." [T]he memorandum provides [t]he purpose and effect of the proposed rule is: In that section 120.52(16), Florida Statutes, excludes curricula from the definition of a rule, all rules setting out university curricula are being repealed, as are the rules setting out admission requirements and graduation requirements. All subject matter set out in the repealed rules are contained in the various university bulletins, which are being adopted by reference. (Prehearing Stipulation paragraph 20). On April 1, 1992, Gerald B. Jaski [Respondent's General Counsel] wrote a memorandum on the subject of Administrative Rule Revisions to Dr. Robert B. Glidden, Provost and Vice President for Academic Affairs, and Dr. Steve Edwards, Dean of the Faculties. In this memorandum, Mr. Jaski states "Dean Elizabeth Muhlenfeld and Dr. Pete Metarko have suggested rule revisions which will greatly streamline the university rule scheme. According to Dr. Metarko, Mr. Carraway has been consulted and concurs with the suggestion." Mr. Jaski's memorandum also refers to the specific rules to be repealed and provides that rule 6C2- 5.002 will be amended to adopt by reference the General Bulletin, the Graduate Bulletin and the Florida State University Bulletin: Directory of Classes. Attached to Mr. Jaski's memorandum is a draft list of those academic rules in Rule Chapter 6C2 - Academic Matters, proposed to be repealed. An additional attachment to Mr. Jaski's memorandum is a "Notice of Proposed Rule Amendment (Repeal)". The purpose and effect of the proposed rule is provided as: In that section 120.52(16), Florida Statutes, excludes curricula from the definition of a rule, all rules setting out university curricula are being repealed, as are the rules setting out admission requirements and graduation requirements. All subject matter set out in the repealed rules are contained in the various university bulletins, which are being adopted by reference. The summary of this attachment provides that: The repeals shall be accommodated by the simul- taneous amendment of 6C2-5.002, Florida Adminis- trative Code, adopting by reference the university bulletin series. The various bulletins cover all subject matter presently addressed in the rules which are being repealed. (Prehearing Stipulation paragraph 21). By memorandums dated February 7, and 14, 1994, Gerald B. Jaski, advised the University President, Provost and various Vice Presidents on an update of the FSU Rule proposal. Mr. Jaski's memorandum of February 7, 1994, contained attachments titled "The Rulemaking Process Summary," "Document Requirements For Rulemaking," "Rulemaking Time Line," and "JAPC Checklist." (Prehearing Stipulation paragraph 22). By memorandum dated March 31, 1994, Gerald B. Jaski and Bjarne Andersen wrote to various academic program administrators, such as Dr. Charles F. Cnudde, Dean of the College of Social Sciences, on the subject of University FAC Rule update. This memorandum requested the administrators to review their rules currently published in the Florida Administrative Code as part of the process of repealing academic rules in the F.A.C. and incorporating the university catalogs and bulletins by reference. (Prehearing Stipulation paragraph 23). By memorandum dated April 8, 1994, Dean of the Faculties Steve Edwards wrote to Academic Deans on the subject of Academic Rules in the Florida Administrative Code. In this memorandum, Dean Edwards refers to his previous memorandum of December 10, 1992, on the same subject and requests a response to whether the Academic Deans object to repealing their applicable rules in the Florida Administrative Code and incorporating them by reference in the University Bulletin. (Prehearing Stipulation paragraph 24). Proposed rule 6C2-5.0021 repeals some of the current rules in Rule Chapter 6C2-5 - Academic matters, which rules contain university curricula, and other rules which contain admission/readmission requirements and procedures, graduation requirements, retention requirements, etc. The proposed rule additionally provides for incorporation by reference of University Catalogs and Bulletins and other various publications which "establish, contain or prescribe various academic and curriculum matters that include admission and degree requirements, course offerings, fields of study, academic calendars, facilities available to students, faculty and staff of the university, and other matters of educational delivery." (Prehearing Stipulation paragraph 26). OTHER FACTS The proposed rule reads: 6C2-5.0021 Academic and Curriculum Information; Course Offerings, University Bulletins, Catalogs, and Applications In addition to the adopted Florida State University administrative and operational rules published in the Florida Administrative Code pursuant to Florida Statutes, Chapter 120, the University publishes the following listed documents that are incorporated herein by reference which establish, contain or prescribe various academic and curriculum matters that include admission and degree requirements, course offerings, fields of study, academic calendars, facilities available to students, faculty and staff of the University, and other matters of educational delivery: Florida State University General Bulletin, 1994/1995. Florida State University General Bulletin, Graduate Edition 1993/1995. The Florida State University College of Law 1994-1995, Catalogue & Application. Study Abroad Programs. Florence Study Center Course Descriptions, Fall Semester 1994 and Spring Semester 1995. London Program Course Description, Fall Semester 1994 and spring Semester 1995. Costa Rica Program Course Description and Meeting times, Summer 1994 Information Guide to the Florida State University Panama Canal Branch, with the 1994- 1995 Academic Calendar FSU Panama Canal Branch. Those portions of the University Bulletins or Catalogs, which are not included in, or addressed by, a specific University rule as published in the Florida Administrative Code, have the force and effect of a rule by the incorporation of the text of the documents listed herein. In the event of a conflict or an inconsistency between any provisions of a Bulletin or Catalog and any adopted rule of Florida State University as published in the Florida Administrative Code, such published rules of the University shall prevail. The Bulletins and Catalogs of the University may also contain the academic calendar as set by the Florida State University within the general guidelines of the Board of Regents. Copies of the catalogs or bulletins can be obtained from the Florida State University, Office of the Registrar, Tallahassee, Florida 32306-1011. The University utilizes the following referenced application forms which may be obtained from the Florida State University, Office of Admissions, Tallahassee, Florida 32306-1009, for admission consideration to Florida State University: The "Application for Admission, State University System of Florida, Entering Freshman or Undergraduate Transfer" and instructional information contained therein (Revised 1993). See BOR rules 6C-1.012, F.A.C. The "Application for Admission to a Graduate Program, Florida State University" (Eff. 8/94), including instructions. "Application for Admission as an Inter- national Student to Florida State University" (Revised 4/93), with the accompanying forms "Confidential Report on International Applicant" (3/92) and "Confidential Financial Statement" (3/92) including instructions and the attached document entitled "International Student Inform- ation 1993/1994." Study Abroad Programs, Application for Admission (Florence, London, or Costa Rica), Form SAPA-00l (Eff. 9/94). The University bulletins and catalogs shall have prospective effect only. A student entering an academic program of the University before the published catalog date, when requirements for degree programs where different from those under newer incorporated Bulletin catalog dates may elect to remain under the earlier requirements for such a program if the pursuit of such degree or program requirements are continuous. Curriculum of the institution and academic policies and procedures of a particular school, college, department or division, including among other academic subjects admission, registrations, withdrawal, readmission, and graduation or certification requirements of particular academic programs are also currently described in various University documents available or supplied to each applicant for admission, a currently-enrolled student, or other interested parties. These publications include both the Florida State Univer- sity Bulletins, or Catalogs, and informational documents such as term or semester class schedules, the student handbook or the faculty handbook and all such other similar type documents which repre- sent a means to notice the flexible nature of the current curriculum, educational plans, offerings, and requirements which may be altered from time to time in order to carry out the purposes, mission and objectives of the University. The University reserves the right to change by rule, or order of the President or his Academic Designee, any provi- sion, offering, or requirement at any time within the student's period or study at the University. Material changes to the content of a currently incorporated document will be noted by supplemental amendments to this rule. The University further reserves the right to require a student to withdraw from the University for cause at any time. Pursuant to Section 240.227(1), Florida Statutes, Respondent has the authority, through the President of Florida State University, to promulgate rules for the operation and administration of the University. Section 240.227(1), Florida Statutes, provides in pertinent part that each university president shall: Develop and adopt rules governing the operation and administration of the university. Such rules shall be consistent with the mission of the uni- versity and statewide rules and policies and shall assist in the development of the university in a manner which will complement the missions and activities of the other universities for the overall purpose of achieving the highest quality of education for the citizens of the state. Respondent agrees that the phrase "and all such other similar type documents which represent a means to notice" contained in subparagraph (7) of the proposed rule is vague. Respondent has filed a notice of change regarding subparagraph (7) which is now proposed to read as follows: Curriculum of the institution and academic policies and procedures of a particular schools, college, department or division, including among other academic subjects admission, registration, with- drawal, readmission, and graduation or certification requirements of particular academic programs are also currently described in various University documents available or supplied to each applicant for admission, a currently-enrolled student, or other interested parties. These publications include both the Florida State University Bulletins, or Catalogs, and informational documents such as term or semester faculty handbook, all such other similar type documents which represent a means to notice the flexible nature of those referenced in paragraph (1) of this rule. These documents reflect the current curriculum, educational plans, offerings, and requirements which and may be altered from time to time in order to carry out the purposes, mission and objectives of the University. The University reserves the right to change by rule, or order of the President or his Academic Designee, any provision, offering, or requirement at any time within the student's period of study at the University. Material changes to the content of a currently incorporated document will be noted by supplemental amendments to this rule. The University further reserves the right to require a student to withdraw from the University for cause at any time. With the exception of Respondent's admission to the vagueness of subsection (7) of the rule as originally proposed, no evidence has been presented, and accordingly no finding can be made, that the proposed rule exceeds the grant of rule-making authority contained in Section 240.227(1), Florida Statutes; or that the proposed rule enlarges, modifies or contravenes specific provisions of law implemented. The evidence presented, other than the change proposed and acknowledged by Respondent to resolve the ambiguities contained in subsection (7), does not provide a basis for a finding that proposed rule 6C2-5.0021 fails to establish adequate standards for agency decisions or vests unbridled discretion in the agency. In the absence of evidence that proposed rule 6C2-5.0021 is not supported by facts or logic, or that Respondent seeks to promulgate this rule without thought or reason, no finding of the proposed rule's infirmity on that basis may be made. The proposed rule, with consideration given the change noticed by Respondent for subparagraph (7), is not arbitrary or capricious.
The Issue The issue presented for determination in these causes, pursuant to F.S. Section 120.56(1), is whether or not the "12 hour F rule," F.A.C. Rule 6J- 5.56(11)(b), and/or the "mandatory grade curve rule," F.A.C. Rule 6J-5.56(5)(c), constitute either an invalid exercise of validly delegated legislative authority, or an exercise of invalidly delegated legislative authority. The major contention of petitioner is that the respondent failed to comply with the notice requirements of F.S. Section 120.54(1)(a) when it adopted the rules in question. No other issues, including the wisdom or the applicability of such rules, are appropriate in a Section 120.56 proceeding for an administrative determination of a rule.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitions filed herein allege that petitioner was academically dismissed from the law school because of the "12 hour F rule" and that he received a failing grade in Tax 601-602 because of the "mandatory grade curve rule." After some student input, the faculty of the FSU law school adopted the "12 hour F rule" and the "mandatory grade curve rule" in 1973 and 1975 respectively, prior to the effective date of Chapter 75-191, Laws of Florida. Effective June 26, 1975, Chapter 75-191, Laws of Florida, included units of the state university system within the confines of the Administrative Procedures Act, Chapter 120 of the Florida Statutes. Pursuant thereto, the respondent, Florida State University, began the process of adopting new and repromulgating its existing rules. The Dean of the FSU Law School was instructed by respondent to submit all of the law school rules to the respondent so that they could be properly promulgated along with other FSU rules. The Dean complied with this request. On August 20, 1975, and again on August 22, 1975, legal ads were placed in the Tallahassee Democrat concerning respondent's intent to adopt proposed rules. Notices were also published, making reference to the aforesaid more complete notice, in the Miami Herald, the St. Petersburg Times and the Jacksonville Times-Union. The August 20th notice in the Tallahassee Democrat announced that a hearing would be held on September 3, 1975, and set forth for each rule the purpose and effect of the rule, a summary of the rule, general authority for the rule and the law implemented. The challenged College of Law Rules numbered, as 6J-5.56, were included in this legal ad and were in substantially the same form as that previously adopted by the law school faculty. By letter dated August 13, 1975, Mr. Mike Beaudoin, respondent's Director of Informational Services, notified respondent's three foreign branches in Florence, Italy, London, England and the Canal Zone of the proposed rules. Gail Shumann, a staff assistant to respondent's Vice President for Academic Relations, assisted in the rule promulgation process. Utilizing a list furnished her by the Coordinator of Student Organizations, Shumann sent by campus mail a "notice of intent to file rules" to all listed registered student organizations existing on January 17, 1975. Such notice was also posted in the personnel office. This notice announced that the rules would be adopted on September 10, 1975, that a copy of the notice of the proposed rules was available in the Office of Student Government, that a copy of the rules was available at the information desk in the Strozier Library and could be obtained at cost from the Division of University Relations and that a hearing on the proposed rules would be held on September 3-5, 1975. The notice was dated August 18, 1975. The list of registered student organizations furnished Ms. Shumann by the Coordinator of Student Organizations did not contain the name of the student body president and listed the former president of the student bar association. A secretary for the student body president was unable at the time of the hearing to find or to recall whether she had received copies of the notice of intent to adopt rules. She testified that she did not have the opportunity to go through all of her files and that it was possible she received such notice. The president of the student bar association, who was not on campus during the summer quarter, could not recall having seen the notice of intent, but testified that it was possible that it came through his office while he was off campus. At least fourteen days prior to the scheduled hearing, Informational Services Director Beaudoin directed a reliable employee to post the notice of intent upon respondent's fifteen official bulletin boards. On August 20, 1975, respondent's rules were filed with the Joint Administrative Procedures Committee. Public hearings were held on September 3, 4, and 5, 1975, on the FSU campus for the purpose of hearing comments concerning the proposed rules. Few persons attended these hearings. The rules were filed with the Secretary of State on September 10, 1975, and became effective on September 30, 1975.
Conclusions This matter is before Florida Agricultural and Mechanical University Board of Trustees (FAMU) for final agency action. Pursuant to FAMU Regulations 10.120 and 10.302, Respondent requested a formal administrative hearing on or about November 17, 2012 to contest his dismissal from employment. Respondent's request for administrative hearing was referred to the Division of Administrative Hearings (hereinafter "DOAH") on November 29, 2011. The Administrative Law Judge assigned to review the matter scheduled a disputed-fact hearing for January 30-31, 2012. Respondent filed a Consented Motion for Continuance on January 26, 2012. DOAH issued an Order on January 19, 2012, granting the Continuance and requesting that the parties advise of the status by February 1, 2012. Upon Respondent's failure to provide a status report, DOAH issued an Order Closing File and Relinquishing Jurisdiction on April 12, 2012. Accordingly, it is hereby ORDERED and ADJUDGED that the Petition for Formal Administrative Hearing in this matter is dismissed in its entirety. DONE and ORDERED this 16th day of April, 2012. ounaa {rons Ammons, President Filed with the Agency this day of April, 2012. Agency Clerk
Other Judicial Opinions Petitioner may seek judicial review of this Final Order pursuant to Florida Rule of Appellate Procedure 9.190(b)(3), applicable to review of quasi-judicial decisions of an administrative body not subject to the Administrative Procedure Act, by filing a petition for certiorari review with the appropriate circuit court within thirty (30) days of the final University decision. If you seek review with the court, you must also provide a copy of the petition to the following university office or official: Agency Clerk, Office of the General Counsel, 1601 South Martin Luther King Jr. Boulevard, 300 Lee Hall, Tallahassee, Florida 32307. Copy: Tyreece Brown, Respondent Nellie C. Woodruff, Assistant Vice President, Human Resources Claudia Llado, DOAH Agency Clerk Avery D. McKnight, Esq. Robert E. Larkin, III, Esq.
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 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. The proposed rule amendments quoted immediately above are presently being challenged in Case No. 93-2166RP. 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."
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case concluding that the Petitioner is ineligible to seek licensure pursuant to Section 458.311, Florida Statutes (1992 Supp.), by reason of having already failed the FLEX examination more than five times since 1986. DONE AND ENTERED this 16th day of September, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 16th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1801 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted in substance with some subordinate and unnecessary details omitted. Paragraph 8: Rejected as not fully supported by the evidence of record and as, in any event, subordinate and unnecessary details in view of later Board action. Paragraphs 9, 10, 11, 12, and 13: Accepted in substance with some subordinate and unnecessary details omitted. Paragraph 14: Rejected as irrelevant. Findings submitted by Respondent: Paragraph 1: Covered in Preliminary Statement Paragraph 2: Accepted in substance. Paragraph 3: Covered in Preliminary Statement. Paragraph 4: Covered in Conclusions of Law. COPIES FURNISHED: Robert S. Turk, Esquire Valdes-Fauli, Cobb, Bischoff & Kriss, P.A. One Biscayne Tower, Suite 3400 Two South Biscayne Boulevard Miami, Florida 33131-1897 Claire D. Dryfuss, Esquire Department of Legal Affairs Office of the Attorney General The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Liz Cloud, Chief Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750
