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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERON D. MCCLENDON, )

)

Petitioner, )

)

vs. ) Case No. 09-3482

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 9, 2009, a formal administrative hearing was

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

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: C. Erica White, Esquire

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

215 South Monroe Street, Suite 510

Tallahassee, Florida 32301

For Respondent: Donna Erlich, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner's

application for certification by examination as a basic X-ray

machine operator should be approved or denied.

PRELIMINARY STATEMENT

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

Department of Health (Respondent) notified Eron D. McClendon

(Petitioner) that his application for certification by

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

The Petitioner requested an administrative hearing to challenge

the denial. The Respondent forwarded the request to the

Division of Administrative Hearings, which scheduled and

conducted the proceedings.

On August 24, 2009, the previously assigned Administrative

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

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

Intent to Deny was filed on August 26, 2009.

The case was transferred to the undersigned ALJ on

October 29, 2009.

At the hearing, the Petitioner presented the testimony of

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

admitted into evidence. The Respondent presented the testimony

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

admitted into evidence.

The two-volume Transcript of the hearing was filed on

November 30, 2009. Both parties filed Proposed Recommended

Orders that have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. In February 2009, the Petitioner submitted an

application to the Respondent for certification by examination

as a basic X-ray machine operator.

2. The application was submitted by “Ultimate Medical

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

training, but the Petitioner provided the information contained

therein and was responsible for the accuracy of the application.

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

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

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

other than radiography, nuclear medicine, or radiation therapy.

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

Petitioner that the application was incomplete because it lacked

a criminal history record from the Florida Department of Law

Enforcement.

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

Petitioner’s criminal history record, which revealed convictions

between the years 1993 and 2002, and related periods of

incarceration, for retail theft, felony grand theft, felony

uttering of forged checks, other forgeries, and failure to

appear.

6. The Petitioner was also convicted of federal crimes,

including possession of counterfeited checks in 2000 and felony

uttering a forged check in 2002.

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

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

his release. His most recent sentence included a probationary

period that expired at the end of May of 2007.

8. As part of the application process, the Petitioner

advised the Respondent that his civil rights had been restored

on January 31, 2008. The Petitioner provided documentation to

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

purposes of this Recommended Order, the restoration of civil

rights has been deemed applicable to the Petitioner.

9. The Respondent reviewed the Petitioner’s application,

including the criminal history and the restoration of civil

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

criminal history.

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

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

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

obtained, as well as to the personal and medical information

contained within patient records.

11. After receiving the Respondent’s decision, the

Petitioner requested an administrative hearing to challenge the

denial.

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

the Respondent became aware of potential issues related to the

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

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

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

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

2008, when he graduated from the UMA.

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

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

evidence that he was not competent to perform the tasks assigned

to him during the externship.

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

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

customer contact duties, greeting patients and gathering

information. His duties also included placing and positioning

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

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

administration of radiation to obtain the desired images.

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

and operating the radiation equipment constitutes the practice

of radiologic technology.

17. The Petitioner was supervised by a licensed technician

at all times during his positioning of patients and operation of

the machine. The Petitioner performed these duties without

being properly licensed.

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

responsibilities at Palm Harbor MRI, the Respondent issued an

Amended Notice of Intent to Deny that identified the alleged

unlicensed activity as an additional basis for denial of the

application.

19. The Respondent also initiated a review of the Palm

Harbor MRI facility’s operating procedures that was continuing

at the time of the hearing.

20. The application information originally disclosed by

the Petitioner was inaccurate because it failed to reveal that

he was involved in performing radiography at Palm Harbor MRI.

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

requested that the Petitioner provide a copy of his certificate,

apparently unaware that the Petitioner had no license at that

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

employment was terminated on May 18, 2009.

22. The Petitioner has asserted that he was exempt from

licensure because he was a student attending St. Petersburg

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

radiologic technology program, and ultimately to become licensed

as a radiography technologist.

23. Students attending a medical school or “enrolled in

and attending” a radiologic technology educational program are

statutorily exempt from licensure during their educational

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

entitled to the exemption.

24. Although SPC has a radiologic technology educational

program, the Petitioner has neither been admitted to the program

nor attended any classes within the program’s curriculum.

25. Additionally, Palm Harbor MRI is not an approved

clinical training site for students enrolled in and attending

the SPC radiography program.

26. The Petitioner had not applied to the SPC radiography

program prior to termination of his employment from Palm Harbor

MRI, and the applications subsequently submitted by the

Petitioner for application to the SPC radiography program were

denied.

27. There was no credible evidence presented at the

hearing that the Petitioner was a medical student or was

enrolled in and attending a radiologic technology educational

program at any time relevant to this proceeding.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

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

29. The Petitioner has the burden of establishing by a

preponderance of the evidence that he is entitled to approval of

his application for certification as a basic X-ray machine

operator. Florida Department of Transportation v. JWC Company,

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

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

1977). In this case, the burden has not been met.

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

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

of good moral character.”

31. The Petitioner has failed to submit satisfactory

evidence that he is of good moral character. The Petitioner

engaged in almost ten years of criminal activity for which he

was incarcerated in jail and in federal prison. The

Petitioner’s most recent probationary period expired in May

2007, just over two years prior to the hearing. While the

Petitioner appeared intent on making better and more appropriate

life decisions, the evidence of rehabilitation was scant and the

period of time without the structure of institutional control

was insufficient at this time to establish good moral character,

given the nature and extent of the Petitioner’s previous

criminal activity.

32. Additionally, Section 468.304, Florida Statutes

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

The department may not certify any applicant

who has committed an offense that would

constitute a violation of any of the

provisions of s. 468.3101 or the rules

adopted thereunder if the applicant had been

certified by the department at the time of

the offense.

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

in relevant part, as follows:

468.3101 Disciplinary grounds and actions.-

(1) The department may make or require to

be made any investigations, inspections,

evaluations, and tests, and require the

submission of any documents and statements,

which it considers necessary to determine

whether a violation of this part has

occurred. The following acts shall be

grounds for disciplinary action as set forth

in this section:

* * *

(c) Being convicted or found guilty,

regardless of adjudication, in any

jurisdiction of a crime that directly

relates to the practice of radiologic

technology or to the performance of the

duties of a radiologist assistant, or to the

ability to practice radiologic technology or

the ability to perform the duties of a

radiologist assistant. Pleading nolo

contendere shall be considered a conviction

for the purpose of this provision.

* * *

(f) Engaging in unprofessional conduct,

which includes, but is not limited to, any

departure from, or the failure to conform

to, the standards of practice of radiologic

technology or the standards of practice for

radiologist assistants as established by the

department, in which case actual injury need

not be established.

* * *

(i) Violating any provision of this part,

any rule of the department, or any lawful

order of the department previously entered

in a disciplinary proceeding or failing to

comply with a lawfully issued subpoena of

the department.

* * *

(j) Employing, for the purpose of applying

ionizing radiation or otherwise practicing

radiologic technology or performing the

duties of a radiologist assistant on a human

being, any individual who is not certified

under the provisions of this part.

* * *

(m) Having been found guilty of, regardless

of adjudication, or pleading guilty or nolo

contendere to, any offense prohibited under

s. 435.03 or under any similar statute of

another jurisdiction.

34. Although there is no evidence that the Petitioner has

been convicted or found guilty of a crime that directly relates

to the practice of radiologic technology or the performance of

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

history included felony-level convictions for theft that

adversely affect his ability to perform such employment. The

potential issues presented by a radiologic technician or

assistant with access to a patient’s personal possessions during

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

personal and medical information contained within patient

records, is clear. The Petitioner has violated Section

468.3101(1)(c), Florida Statutes (2008), and pursuant to Section

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

the Petitioner.

35. The evidence established that by engaging in the

practice of radiologic technology without proper certification,

the Petitioner engaged in unprofessional conduct. The

Petitioner testified that he performed “positioning” and

“technique” activities while employed at Palm Harbor MRI and

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

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

radiologic technology as “the performance of activities

requiring special knowledge and skills, including positioning,

technique, safe operation of radiation equipment and radiation

protection.” Positioning is defined at Florida Administrative

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

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

correct alignment of the radiation equipment to the landmarks of

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

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

equipment setting and procedure protocol used to produce a

diagnostic image or to accomplish the desired results.”

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

Respondent may not certify the Petitioner due to the violation

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

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

prohibits the use of radiation or the practice of radiologic

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

radiologist assistant on a human being” without being properly

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

that such practice constitutes a second-degree misdemeanor.

There is no credible evidence that the Petitioner was exempt

from license or certification requirements. By violating

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

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

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

Respondent may not certify the Petitioner.

37. The evidence fails to establish that the Petitioner

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

38. The Petitioner’s criminal history includes felony

theft violations of Chapter 812, Florida Statutes, that are

included within the offenses listed at Section 435.03, Florida

Statutes, and accordingly, the Petitioner has violated Section

468.3101(1)(m), Florida Statutes (2008). Pursuant to Section

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

the Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Final Order denying the Petitioner's application for

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

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

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of December, 2009.

COPIES FURNISHED :

Donna Erlich, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1703

C. Erica White, Esquire

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

215 South Monroe Street, Suite 510

Tallahassee, Florida 32301

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A-02

Tallahassee, Florida 32399-1701

Dr. Ana M. Viamonte Ros, Secretary

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.