86-003996 Mario Alberto Almeida vs. Board Of Medical Examiners Status: Closed Recommended Order on Tuesday, May 26, 1987.

Summary: An unintentional misrepresentation or omission is insufficient to support a charge of fraudulent misrepresentation. Petitioner should sit for licensing exam.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIO ALBERTO ALMEIDA SUAREZ , )

)

Petitioner , )

)

vs. ) CASE NO. 86-3996

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF MEDICAL )

EXAMINERS , )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, the, Division of Administrative Hearings through its

duly designated Hearing Officer Sharyn L. Smith, held a formal hearing in this

case on January 23, 1987, in Tallahassee, Florida. The parties were represented

as follows:

APPEARANCES

For Petitioner : Stephen Marc Slepin, Esquire

SLEPIN & SLEPIN

1114 East Park Avenue

Tallahassee, Florida 32301

For Respondent : Allen Grossman, Esquire

Assistant Attorney General

Department of Legal Affairs

1601 - The Capitol

Tallahassee, Florida 32399-1050

The issue at the final hearing was whether the Petitioner Mario Almeida

Suarez, should be permitted to sit for the Board of Medical Examiners licensing

exam.

At the final hearing, Petitioner's Exhibits 1 and 4-7 were offered and

admitted into evidence. Ruling was reserved on Petitioner's Exhibits 2 and 3

which are now admitted into evidence. Dr. Almeida Suarez and Mrs. Suarez, his

wife, testified on behalf of the Petitioner. The Respondent offered no

witnesses.

The parties requested and received an extension of time for filing proposed

recommended orders. The parties' proposed recommended orders were filed on

April 6, 1987. In the appendix attached to this Recommended Order, the parties'

findings of fact are individually discussed.

FINDINGS OF FACT

1. The Petitioner Mario Alberto Almeida applied to the Respondent Board of

Medical Examiners to sit for the medical licensure examination and paid his

application fee in September, 1985.

2. At that time, the Petitioner Almeida was interning in New York and his

wife, concerned that a prior application had been untimely filed, assisted the

Petitioner in filling out the subject application.

3. When filling out the application, Mrs. Almeida erroneously wrote on the

application form that her husband had a " B.S. 1979, University of Miami," which

error arose from the fact that she was unaware that the Petitioner had not

completed his University of Miami undergraduate degree work despite completing

137 credit hours of courses and being eligible for graduation. Mrs. Almeida

believed that her husband graduated from the University of Miami because he had

not informed her that he had left prior to graduating and Mrs. Almeida had seen

solicitations for funds addressed to her husband as a 1979 University of Miami

graduate.

4. Also omitted by the Almeida's was the Petitioner's race (which is

caucasian), that he had successfully attended a junior college and that he was a

United States citizen who had legally changed his name to reflect his father's

name, Alberto.

5. Other than these erroneous statements and omissions, the Petitioner

Almeida supplied the Respondent with all information requested, including

additional information requested by letter dated November 4, 1985.

6. Thereafter, the Respondent Board issued to the Petitioner Almeida an

authorization to sit for the December, 1985, examination which card was

inadvertently issued to and returned by the Respondent.

7. In support of his application, the Petitioner was issued a letter which

requested that he personally appear in Tampa, Florida, at 4:15 p.m. on November

22, 1985, at a meeting before the Foreign Medical Graduate Committee of the

Board of Medical Examiners. Although the Petitioner was put under oath and was

questioned at that meeting, he was not represented by legal counsel.

8. The Committee referred his application to the full Board with no

recommendation regarding approval.

9. On November 23, 1985, the Board voted to deny the Petitioner's

application. The Petitioner did not receive notice of this second meeting and,

therefore, did not attend.

10. By order dated September 9, 1986, the Petitioner was notified of the

Respondent's denial of his application based upon "material discrepancies

between the information stated on the application and the testimony given with

regard to the applicant's education," citing Section 458.331(1)(a) and (2),

Florida Statutes.

11. The Petitioner's application did misstate his undergraduate, pre-

medical school data. He failed to disclose his successful completion of Miami-

Dade Community College and his 137 credit hours when he left the University of

Miami before attaining the " B.S. 1979, University of Miami." He did however,

accurately testify concerning these discrepancies under oath at the November 22,

1985, committee meeting.

12. These discrepancies were unintentional and resulted from the

Petitioner's preoccupation with his medical duties and his wife's concern that

another application deadline not be missed. No evidence was submitted which

would support a finding that fraud or deceit was intended by either of the

Almeida's or that any advantage would be gained as a result of any errors or

omissions in completing the form.

13. The Respondent's order of September 9, 1986, finds that the Petitioner

either has been found guilty of attempting to obtain a license to practice

medicine by fraudulent misrepresentation or adjudicates him guilty of attempting

to obtain a license to practice medicine by fraudulent misrepresentation.

14. The Petitioner is presently a duly licensed physician in the State of

New York.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this proceeding. Section 120.57(1), Florida

Statutes.

16. On September 9, 1986, the Respondent entered a written order denying

the Petitioner's application to sit for the Medical Board exam. As grounds for

the denial, the Respondent cited Sections 458.331(1)(a) and (2), Florida

Statutes, and noted that "material discrepancies" existed between the

information provided on the application and the testimony given with regard to

the applicant's education.

17. Sections 458.331(1)(a) and (2), Florida Statutes, provide that the

Board may refuse to certify an applicant for licensure who has attempted to

obtain, obtained or received a license to practice medicine by bribery,

fraudulent misrepresentations, or through an error of the department or board.

18. Since no allegations were made in either the order entered September

10, 1986, or at the final hearing that the Respondent attempted to secure

licensure by bribery or through an error of the department or board, the only

issue to be determined is whether the Petitioner fraudulently misrepresented his

educational background on his application for licensure and at the board hearing

on November 23, 1985.

19. It has been consistently held that "fraudulent misrepresentation"

requires a showing of a willful or intentional effort to deceive or mislead.

See, Gentile v. DPR, Board of Medical Examiners, 448. So.2d 1087 (Fla. 1st DCA

1984) ; Gentry v. DPR, Board of Medical Examiners, 293 So.2d 95 (Fla. 1st DCA

1974). An unintentional misstatement or omission is insufficient to support

such a charge.

20. The testimony and evidence introduced at final hearing demonstrate at

best an inadvertent error and at worst simple negligence by the Petitioner and

his wife in completing the subject application. The Petitioner's testimony

before the Respondent was truthful and represented an honest attempt to explain

his educational background. Significantly, no advantage would accrue to the

Petitioner by the alleged misrepresentation since an undergraduate degree is not

a prerequisite to qualify to sit for the Florida medical licensure exam. See,

Section 458.311(1), Florida Statutes.

21. Similarly, the inadvertent omission from the application of

Petitioner's attendance at Miami- Dade Junior College does not rise to the level

of a "fraudulent misrepresentation." No advantage was gained from this

omission, it was fully explained by the Petitioner at the November board

meeting, and further, the Respondent's own application could be reasonably

construed to require that only colleges rather than junior colleges be listed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That a final order be entered by the Board of Medical Examiners approving

the application of the Petitioner Mario Alberto Almeida Suarez, to sit for the

next scheduled medical license examination.

DONE and ENTERED this 26th day of May, 1987 in Tallahassee, Florida.

_________________________________

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of May, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3996

Petitioner's Proposed Findings of Fact

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted, but not in issue.

5. Accepted.

6. Accepted, but not in issue.

7. Accepted.

8. Rejected, not relevant to this proceeding.

9. Accepted in part, rejected in part.

10. Accepted.

11. Accepted.

12. Accepted.

13. Rejected, not relevant.

14. Accepted.

15. Accepted.

16. Accepted.

17. Accepted.

18. Accepted.

19. Rejected.

Respondent's Proposed Findings of Fact

1. Accepted.

2. Accepted.

3. Accepted, but relevant only insofar as educational

background is concerned.

4. Accepted.

5. Accepted.

6. Accepted.

7. Accepted, but not relevant.

8. Accepted.

9. Accepted.

10. Accepted, but not relevant.

11. Accepted, but not relevant.

12. Accepted insofar as the information is characterized as

incomplete.

13. Accepted.

14. Accepted.

15. Accepted.

16. Accepted insofar as this concerns Mrs. Alemeida's knowledge

subsequent to completing the application.

17. Accepted insofar as this concerns Mrs. Alemeida's knowledge

subsequent to completing the application.

18. Accepted.

COPIES FURNISHED:

Stephen Marc Slepin, Esquire

SLEPIN & SLEPIN

1114 East Park Avenue

Tallahassee, Florida 32301

Allen Grossman, Esquire

Assistant Attorney General

Department of Legal Affairs

1601 - The Capitol

Tallahassee, Florida 32399-1050

Joseph A. Sole, Esquire

General Counsel

Department of Professional Regulation

130 North Monroe Street

Tallahassee, Florida 32399-0750

Van B. Poole, Secretary

Department of Professional Regulation

130 North Monroe Street

Tallahassee, Florida 32399-0750

Dorothy Faircloth, Executive Director

Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street

Tallahassee, Florida 32399-0750

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF MEDICAL EXAMINERS

MARIO ALBERTO ALMEIDA SUAREZ,

Petitioner,

vs. CASE NO. 86-3996

DEPARTMENT OF PROFESSIONAL REGULATION,

BOARD OF MEDICAL EXAMINERS,

Respondent.

________________________________________/

FINAL ORDER

The Board of Medicine of the Department of Professional Regulation, after

having reviewed the Recommended Order entered in this case by Sharyn L. Smith,

Hearing Officer of the Division of Administrative Hearings on May 26, 1987

(Exhibit A), the Exceptions to the Recommended Order filed by the Respondent

(Exhibit B), and the complete record and after hearing oral argument of the

parties and being otherwise fully advised in the premises enters the following

Order:

I. This matter came before the Board of Medicine on July 31, 1987. The

Petitioner was represented by Stephen H. Slepin , Esquire, and Respondent was

represented by Allen Grossman, Assistant Attorney General.

II. The Board has jurisdiction over this matter pursuant to Section

120.57(t), Florida Statutes and Chapter 458, Florida Statutes.

Rulings On Exceptions Filed by Respondent

1. Respondent took exception to paragraph 13 of the Findings of Fact of

the Recommended Order asserting that the letter set forth in paragraph 13 is a

legal conclusion rather than a finding of fact. The Board finds that this

Exception is not well-founded and rejects the same.

2. Respondent took exception to paragraph 13 of the Findings of Fact of

the Recommended Order as being contrary to the greater weight of the evidence.

The Board having rejected the first Exception filed by the Respondent, the

Respondent was allowed to modify the second Exception and did so, arguing that

this Finding of Fact was not based upon competent and substantial evidence. The

Board adopted the second Exception as modified and finds that the Finding of

Fact found in paragraph 13 of the Recommended Order is not based on competent

substantial evidence in the record.

3. The remaining Findings of Fact of the Recommended Order are adopted by

the Board of Medicine as being based on competent substantial evidence, and the

Conclusions of Law of the Hearing Officer as set forth in the Recommended Order

are adopted by the Board.

4. The Board adopts the Recommendation of the Hearing Officer that the

Petitioner's application to sit for the license examination be approved.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby

notified that they may appeal this Final Order by filing one copy of a notice of

appeal with the clerk of the agency and by filing the filing fee and one copy of

a notice of appeal with the District Court of Appeal within thirty (30) days of

the day this Order is filed, as provided in Chapter 120, Florida Statutes, and

the Florida Rules of Appellate Procedure.

WHEREFORE, the Board hereby orders that the Petitioner's application for

permission to sit for the medical license examination be approved.

DONE and ORDERED this 6th day of November 1987 by the Board of Medicine.

_________________________

Chairman, Board of Medicine