09-003482 Eron D. Mcclendon vs. Department Of Health
 Status: Closed
Recommended Order on Tuesday, December 29, 2009.


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Summary: The evidence fails to support the application for certification by examination for basic X-ray machine operator.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ERON D. MCCLENDON, )

12)

13Petitioner, )

15)

16vs. ) Case No. 09-3482

21)

22DEPARTMENT OF HEALTH, )

26)

27Respondent. )

29)

30RECOMMENDED ORDER

32On November 9, 2009, a formal administrative hearing was

41held in Tallahassee, Florida, before William F. Quattlebaum,

49Administrative Law Judge, Division of Administrative Hearings.

56APPEARANCES

57For Petitioner: C. Erica White, Esquire

63Quintairos, Prieto, Wood & Boyer, P.A.

69215 South Monroe Street, Suite 510

75Tallahassee, Florida 32301

78For Respondent: Donna Erlich, Esquire

83Department of Health

864052 Bald Cypress Way, Bin A02

92Tallahassee, Florida 32399-1703

95STATEMENT OF THE ISSUE

99The issue in this case is whether the Petitioner's

108application for certification by examination as a basic X-ray

117machine operator should be approved or denied.

124PRELIMINARY STATEMENT

126By Notice of Intent to Deny, dated May 6, 2009, the

137Department of Health (Respondent) notified Eron D. McClendon

145(Petitioner) that his application for certification by

152examination as a basic X-ray machine operator had been denied.

162The Petitioner requested an administrative hearing to challenge

170the denial. The Respondent forwarded the request to the

179Division of Administrative Hearings, which scheduled and

186conducted the proceedings.

189On August 24, 2009, the previously assigned Administrative

197Law Judge (ALJ) granted the Respondent’s Motion for Leave to

207Amend the Notice of Intent to Deny, and an Amended Notice of

219Intent to Deny was filed on August 26, 2009.

228The case was transferred to the undersigned ALJ on

237October 29, 2009.

240At the hearing, the Petitioner presented the testimony of

249one witness, testified on his own behalf, and had two exhibits

260admitted into evidence. The Respondent presented the testimony

268of four witnesses and had Exhibits numbered 1-4 and 6-11

278admitted into evidence.

281The two-volume Transcript of the hearing was filed on

290November 30, 2009. Both parties filed Proposed Recommended

298Orders that have been considered in the preparation of this

308Recommended Order.

310FINDINGS OF FACT

3131. In February 2009, the Petitioner submitted an

321application to the Respondent for certification by examination

329as a basic X-ray machine operator.

3352. The application was submitted by “Ultimate Medical

343Academy” (UMA), where the Petitioner obtained his basic X-ray

352training, but the Petitioner provided the information contained

360therein and was responsible for the accuracy of the application.

3703. On the Petitioner’s application, he stated that he was

380employed in “basic x-ray” at Palm Harbor MRI, and indicated that

391“100%” of his time at Palm Harbor MRI was related to duties

403other than radiography, nuclear medicine, or radiation therapy.

4114. On February 19, 2009, the Respondent notified the

420Petitioner that the application was incomplete because it lacked

429a criminal history record from the Florida Department of Law

439Enforcement.

4405. On April 14, 2009, the Respondent received the

449Petitioner’s criminal history record, which revealed convictions

456between the years 1993 and 2002, and related periods of

466incarceration, for retail theft, felony grand theft, felony

474uttering of forged checks, other forgeries, and failure to

483appear.

4846. The Petitioner was also convicted of federal crimes,

493including possession of counterfeited checks in 2000 and felony

502uttering a forged check in 2002.

5087. The Petitioner spent three years in federal prison and,

518in December of 2003, was transferred to a halfway house after

529his release. His most recent sentence included a probationary

538period that expired at the end of May of 2007.

5488. As part of the application process, the Petitioner

557advised the Respondent that his civil rights had been restored

567on January 31, 2008. The Petitioner provided documentation to

576the Respondent that spelled his first name as “Erin.” For

586purposes of this Recommended Order, the restoration of civil

595rights has been deemed applicable to the Petitioner.

6039. The Respondent reviewed the Petitioner’s application,

610including the criminal history and the restoration of civil

619rights, and denied the application because of the Petitioner’s

628criminal history.

63010. The specific basis for the denial was the Respondent’s

640concern with the access an X-ray operator has to the personal

651belongings and medications of a patient while X-ray images are

661obtained, as well as to the personal and medical information

671contained within patient records.

67511. After receiving the Respondent’s decision, the

682Petitioner requested an administrative hearing to challenge the

690denial.

69112. After issuing the initial Notice of Intent to Deny,

701the Respondent became aware of potential issues related to the

711Petitioner’s employment during and after his training at UMA.

72013. As part of his educational training, UMA placed the

730Petitioner into an externship at Palm Harbor MRI for a six-week

741period of clinical practice. The externship ended on April 4,

7512008, when he graduated from the UMA.

75814. The quality of the Petitioner’s job performance at

767Palm Harbor MRI is not at issue in this proceeding. There is no

780evidence that he was not competent to perform the tasks assigned

791to him during the externship.

79615. On April 9, 2008, the Petitioner began working as a

807full-time employee at Palm Harbor MRI. He performed some

816customer contact duties, greeting patients and gathering

823information. His duties also included placing and positioning

831patients on the X-ray table, imputing the machine settings

840(“technique”) and operating the X-ray machine, including the

848administration of radiation to obtain the desired images.

85616. Positioning patients for X-rays, machine technique,

863and operating the radiation equipment constitutes the practice

871of radiologic technology.

87417. The Petitioner was supervised by a licensed technician

883at all times during his positioning of patients and operation of

894the machine. The Petitioner performed these duties without

902being properly licensed.

90518. After the Respondent learned of the Petitioner’s job

914responsibilities at Palm Harbor MRI, the Respondent issued an

923Amended Notice of Intent to Deny that identified the alleged

933unlicensed activity as an additional basis for denial of the

943application.

94419. The Respondent also initiated a review of the Palm

954Harbor MRI facility’s operating procedures that was continuing

962at the time of the hearing.

96820. The application information originally disclosed by

975the Petitioner was inaccurate because it failed to reveal that

985he was involved in performing radiography at Palm Harbor MRI.

99521. In May 2009, the office manager at Palm Harbor MRI

1006requested that the Petitioner provide a copy of his certificate,

1016apparently unaware that the Petitioner had no license at that

1026time. When he was unable to provide the certificate, his

1036employment was terminated on May 18, 2009.

104322. The Petitioner has asserted that he was exempt from

1053licensure because he was a student attending St. Petersburg

1062College (SPC) with the intention of being admitted to the SPC

1073radiologic technology program, and ultimately to become licensed

1081as a radiography technologist.

108523. Students attending a medical school or “enrolled in

1094and attending” a radiologic technology educational program are

1102statutorily exempt from licensure during their educational

1109period; however, there is no evidence that UMA students are

1119entitled to the exemption.

112324. Although SPC has a radiologic technology educational

1131program, the Petitioner has neither been admitted to the program

1141nor attended any classes within the program’s curriculum.

114925. Additionally, Palm Harbor MRI is not an approved

1158clinical training site for students enrolled in and attending

1167the SPC radiography program.

117126. The Petitioner had not applied to the SPC radiography

1181program prior to termination of his employment from Palm Harbor

1191MRI, and the applications subsequently submitted by the

1199Petitioner for application to the SPC radiography program were

1208denied.

120927. There was no credible evidence presented at the

1218hearing that the Petitioner was a medical student or was

1228enrolled in and attending a radiologic technology educational

1236program at any time relevant to this proceeding.

1244CONCLUSIONS OF LAW

124728. The Division of Administrative Hearings has

1254jurisdiction over the parties to and subject matter of this

1264proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009).

127229. The Petitioner has the burden of establishing by a

1282preponderance of the evidence that he is entitled to approval of

1293his application for certification as a basic X-ray machine

1302operator. Florida Department of Transportation v. JWC Company,

1310Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department

1322of Health and Rehabilitative Services , 348 So. 2d 349 (1st DCA

13331977). In this case, the burden has not been met.

134330. Section 468.304, Florida Statutes (2008), requires

1350that an applicant for certification as a basic X-ray machine

1360of good moral character.”

136431. The Petitioner has failed to submit satisfactory

1372evidence that he is of good moral character. The Petitioner

1382engaged in almost ten years of criminal activity for which he

1393was incarcerated in jail and in federal prison. The

1402Petitioner’s most recent probationary period expired in May

14102007, just over two years prior to the hearing. While the

1421Petitioner appeared intent on making better and more appropriate

1430life decisions, the evidence of rehabilitation was scant and the

1440period of time without the structure of institutional control

1449was insufficient at this time to establish good moral character,

1459given the nature and extent of the Petitioner’s previous

1468criminal activity.

147032. Additionally, Section 468.304, Florida Statutes

1476(2008), provides, in relevant part, as follows:

1483The department may not certify any applicant

1490who has committed an offense that would

1497constitute a violation of any of the

1504provisions of s. 468.3101 or the rules

1511adopted thereunder if the applicant had been

1518certified by the department at the time of

1526the offense.

152833. Section 468.3101, Florida Statutes (2008), provides,

1535in relevant part, as follows:

1540468.3101 Disciplinary grounds and actions.-

1545(1) The department may make or require to

1553be made any investigations, inspections,

1558evaluations, and tests, and require the

1564submission of any documents and statements,

1570which it considers necessary to determine

1576whether a violation of this part has

1583occurred. The following acts shall be

1589grounds for disciplinary action as set forth

1596in this section:

1599* * *

1602(c) Being convicted or found guilty,

1608regardless of adjudication, in any

1613jurisdiction of a crime that directly

1619relates to the practice of radiologic

1625technology or to the performance of the

1632duties of a radiologist assistant, or to the

1640ability to practice radiologic technology or

1646the ability to perform the duties of a

1654radiologist assistant. Pleading nolo

1658contendere shall be considered a conviction

1664for the purpose of this provision.

1670* * *

1673(f) Engaging in unprofessional conduct,

1678which includes, but is not limited to, any

1686departure from, or the failure to conform

1693to, the standards of practice of radiologic

1700technology or the standards of practice for

1707radiologist assistants as established by the

1713department, in which case actual injury need

1720not be established.

1723* * *

1726(i) Violating any provision of this part,

1733any rule of the department, or any lawful

1741order of the department previously entered

1747in a disciplinary proceeding or failing to

1754comply with a lawfully issued subpoena of

1761the department.

1763* * *

1766(j) Employing, for the purpose of applying

1773ionizing radiation or otherwise practicing

1778radiologic technology or performing the

1783duties of a radiologist assistant on a human

1791being, any individual who is not certified

1798under the provisions of this part.

1804* * *

1807(m) Having been found guilty of, regardless

1814of adjudication, or pleading guilty or nolo

1821contendere to, any offense prohibited under

1827s. 435.03 or under any similar statute of

1835another jurisdiction.

183734. Although there is no evidence that the Petitioner has

1847been convicted or found guilty of a crime that directly relates

1858to the practice of radiologic technology or the performance of

1868the duties of a radiologist assistant, the Petitioner’s criminal

1877history included felony-level convictions for theft that

1884adversely affect his ability to perform such employment. The

1893potential issues presented by a radiologic technician or

1901assistant with access to a patient’s personal possessions during

1910the time a test is being performed, as well as access to the

1923personal and medical information contained within patient

1930records, is clear. The Petitioner has violated Section

1938468.3101(1)(c), Florida Statutes (2008), and pursuant to Section

1946468.304, Florida Statutes (2008), the Respondent may not certify

1955the Petitioner.

195735. The evidence established that by engaging in the

1966practice of radiologic technology without proper certification,

1973the Petitioner engaged in unprofessional conduct. The

1980Petitioner testified that he performed “positioning” and

1987“technique” activities while employed at Palm Harbor MRI and

1996operated the X-ray machine to obtain patient images. Florida

2005Administrative Code Rule 64E-3.002(9) defines the practice of

2013radiologic technology as “the performance of activities

2020requiring special knowledge and skills, including positioning,

2027technique, safe operation of radiation equipment and radiation

2035protection.” Positioning is defined at Florida Administrative

2042Code Rule 64E-3.002(5) as the “correct placement of the human

2052body part to the image detector or radiation source, and the

2063correct alignment of the radiation equipment to the landmarks of

2073the body, and the major anatomical structures.” Technique is

2082defined at Florida Administrative Code Rule 64E-3.002(7) as “the

2091equipment setting and procedure protocol used to produce a

2100diagnostic image or to accomplish the desired results.”

2108Pursuant to Section 468.304, Florida Statutes (2008), the

2116Respondent may not certify the Petitioner due to the violation

2126of Section 468.3101(1)(f), Florida Statutes (2008).

213236. Further, Section 468.302(1), Florida Statutes (2008),

2139prohibits the use of radiation or the practice of radiologic

2149technology or the performance of “any of the duties of a

2160radiologist assistant on a human being” without being properly

2169licensed. Section 468.311(1), Florida Statutes (2008), provides

2176that such practice constitutes a second-degree misdemeanor.

2183There is no credible evidence that the Petitioner was exempt

2193from license or certification requirements. By violating

2200Section 468.302(1), Florida Statutes (2008), the Petitioner

2207violated Section 468.3101(1)(i), Florida Statutes (2008).

2213Pursuant to Section 468.304, Florida Statutes (2008), the

2221Respondent may not certify the Petitioner.

222737. The evidence fails to establish that the Petitioner

2236has violated Section 468.3101(1)(j), Florida Statutes (2008).

224338. The Petitioner’s criminal history includes felony

2250theft violations of Chapter 812, Florida Statutes, that are

2259included within the offenses listed at Section 435.03, Florida

2268Statutes, and accordingly, the Petitioner has violated Section

2276468.3101(1)(m), Florida Statutes (2008). Pursuant to Section

2283468.304, Florida Statutes (2008), the Respondent may not certify

2292the Petitioner.

2294RECOMMENDATION

2295Based on the foregoing Findings of Fact and Conclusions of

2305Law, it is RECOMMENDED that the Department of Health enter a

2316Final Order denying the Petitioner's application for

2323certification by examination as a basic X-ray machine operator.

2332DONE AND ENTERED this 29th day of December, 2009, in

2342Tallahassee, Leon County, Florida.

2346S

2347WILLIAM F. QUATTLEBAUM

2350Administrative Law Judge

2353Division of Administrative Hearings

2357The DeSoto Building

23601230 Apalachee Parkway

2363Tallahassee, Florida 32399-3060

2366(850) 488-9675

2368Fax Filing (850) 921-6847

2372www.doah.state.fl.us

2373Filed with the Clerk of the

2379Division of Administrative Hearings

2383this 29th day of December, 2009.

2389COPIES FURNISHED :

2392Donna Erlich, Esquire

2395Department of Health

23984052 Bald Cypress Way, Bin A02

2404Tallahassee, Florida 32399-1703

2407C. Erica White, Esquire

2411Quintairos, Prieto, Wood & Boyer, P.A.

2417215 South Monroe Street, Suite 510

2423Tallahassee, Florida 32301

2426Josefina M. Tamayo, General Counsel

2431Department of Health

24344052 Bald Cypress Way, Bin A-02

2440Tallahassee, Florida 32399-1701

2443Dr. Ana M. Viamonte Ros, Secretary

2449State Surgeon General

2452Department of Health

24554052 Bald Cypress Way, Bin A00

2461Tallahassee, Florida 32399-1701

2464NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2470All parties have the right to submit written exceptions within

248015 days from the date of this Recommended Order. Any exceptions

2491to this Recommended Order should be filed with the agency that

2502will issue the Final Order in this case.

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Date
Proceedings
PDF:
Date: 02/02/2010
Proceedings: Agency Final Order
PDF:
Date: 02/02/2010
Proceedings: Agency Final Order filed.
PDF:
Date: 12/29/2009
Proceedings: Recommended Order
PDF:
Date: 12/29/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 12/29/2009
Proceedings: Recommended Order (hearing held November 9, 2009). CASE CLOSED.
PDF:
Date: 12/10/2009
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 12/10/2009
Proceedings: Petitioner's Proposed Recommended Order filed.
Date: 11/30/2009
Proceedings: Transcript of Proceedings (Volumes I&II) filed.
Date: 11/09/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 11/02/2009
Proceedings: Notice of Additional Witness filed.
PDF:
Date: 10/29/2009
Proceedings: Notice of Transfer.
PDF:
Date: 10/28/2009
Proceedings: Notice of Additional Documents filed.
PDF:
Date: 10/28/2009
Proceedings: Notice of Witnesses and Documents (exhibits not available for viewing) filed.
PDF:
Date: 10/15/2009
Proceedings: Notice of Witnesses and Documents filed.
PDF:
Date: 10/15/2009
Proceedings: Subpoena Duces Tecum (to J. Fleming) filed.
PDF:
Date: 10/05/2009
Proceedings: Notice of Subpoena in Advance of Compliance Request that Witness Participate by Telephone filed.
PDF:
Date: 09/29/2009
Proceedings: Notice of Transfer.
PDF:
Date: 09/22/2009
Proceedings: Order Denying Motion to Relinquish.
PDF:
Date: 09/16/2009
Proceedings: Petitioner's Response to Motion to Relinquish Jurisdiction filed.
PDF:
Date: 09/11/2009
Proceedings: Respondent's Motion to Relinquish Jurisdiction filed.
PDF:
Date: 09/10/2009
Proceedings: Notice of Filing (of case documents;documents not available for viewing) filed.
PDF:
Date: 08/26/2009
Proceedings: Amended Notice of Intent to Deny filed.
PDF:
Date: 08/24/2009
Proceedings: Order Granting Leave to Amend and Order Granting Continuance and Re-scheduling Hearing (hearing set for November 9, 2009; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 08/20/2009
Proceedings: Respondent's Motion for Leave to Amend Notice filed.
PDF:
Date: 08/11/2009
Proceedings: Petitioner's Response to Request for Admissions filed.
PDF:
Date: 08/11/2009
Proceedings: Petitioner's Response to Respondent's First Interrogatories filed.
PDF:
Date: 08/11/2009
Proceedings: Petitioner's Response to Request for Production filed.
PDF:
Date: 07/14/2009
Proceedings: Notice of Taking Deposition Duces Tecum (of E. McClendon) filed.
PDF:
Date: 07/13/2009
Proceedings: (Proposed) Order Approving Motion to Continue filed.
PDF:
Date: 07/13/2009
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for September 21, 2009; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 07/10/2009
Proceedings: Motion to Continue filed.
PDF:
Date: 07/10/2009
Proceedings: Notice of Appearance (of C. White) filed.
PDF:
Date: 07/01/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 07/01/2009
Proceedings: Notice of Hearing (hearing set for August 19, 2009; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 07/01/2009
Proceedings: Notice of Serving Respondent's First Request for Admissions filed.
PDF:
Date: 06/29/2009
Proceedings: Notice of Serving Respondent's First Interrogatories and Request for Production of Documents filed.
PDF:
Date: 06/29/2009
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 06/24/2009
Proceedings: Order Denying Motion to Dismiss filed.
PDF:
Date: 06/24/2009
Proceedings: Request for an Extension filed.
PDF:
Date: 06/24/2009
Proceedings: Motion to Dismiss Petititoner's Notice of Request for Formal Hearing filed.
PDF:
Date: 06/24/2009
Proceedings: Notice of Intent to Deny filed.
PDF:
Date: 06/24/2009
Proceedings: Notice of Request for Formal Hearing filed.
PDF:
Date: 06/24/2009
Proceedings: Notice (of Agency referral) filed.
PDF:
Date: 06/24/2009
Proceedings: Initial Order.

Case Information

Judge:
WILLIAM F. QUATTLEBAUM
Date Filed:
06/24/2009
Date Assignment:
10/29/2009
Last Docket Entry:
02/02/2010
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

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