STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANKLIN J. LINDSAY, )

)

Petitioner, )

)

vs. ) CASE NO. 76-790

) STATE OF FLORIDA DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this hearing was held in Room 103, Collins Building, Tallahassee, Florida on July 30, 1976 before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration at 10:00 a.m.

APPEARANCES

For Petitioner: John V. Russell, Esquire

239 Commercial Boulevard, Suite 205 Lauderdale-by-the-Sea, Florida 33308

For Respondent: J. E. Hodges, Esquire

Post Office Box 210 Jacksonville, Florida 32201

The Petitioner Franklin J. Lindsay, whose license had been revoked in 1971, applied for a trainee temporary certificate in March of 1976. The application and the accompanying check were returned by the Respondent stating that there was no provision for a reinstatement of a hearing aid dealer's license after revocation.

ISSUE

May a person whose license has been revoked under the provisions of Chapter 468, Florida Statutes, be issued a trainee temporary certificate of

registration-by the Department?

FINDINGS OF FACT

The Petitioner contends that he is eligible to be issued a trainee temporary certificate of registration to engage in the fitting or selling of hearing aids inasmuch as he is of good moral character and is over the age of twenty-one (21).

The Respondent contends that the Petitioner is not eligible to be registered inasmuch as he had his certificate of registration revoked in 1971

and there are no provisions in the statutes for reinstatement once a license is revoked.

1. Petitioner submitted his application for a trainee temporary certificate of registration in March of 1976. The application was returned in April of 1976 for the stated reason that "Since Mr. Lindsay's license was revoked by order of the Division of Health on February 12, 1971, and all licenses to hearing aid dealers are under the provisions of Chapter 468, Florida Statutes, I know of no provisions under these statutes to provide for a reinstatement of a hearing aid dealer's license after revocation. It appears that the hearing aid law statute is silent on this matter, therefore without specific authority to reconsider this application, I am returning to you the check you enclosed, being Check 6483 in the amount of $25.00 drawn on the Florida Bank at Fort Lauderdale, and the original of the application which was enclosed in your letter of March 26, 1976 which was received in this office on March 29."

   
   

2. The Certificate as a Fitter and Seller of Hearing Aids Registration No. 165-06-68 granted Franklin J. Lindsay was revoked February 12, 1971, for the reason that Mr. Lindsay was the owner and proprietor of the Professional Hearing Aid Service and was an employing principal of one Mr. John E. Buehler who was found guilty of violating various provisions of Chapter 468, F.S., including the selling of a hearing aid to a customer as new when in fact the hearing aid was secondhand or rebuilt. Mr. Buehler's license was suspended for one year and Mr. Lindsay's license was revoked.

   
   

3. The Petitioner has established by witnesses that he is of good moral character and has been rehabilitated and that he comes within the qualification of applicants as required for a trainee under Section 468.126(3)(a).

   
   

   CONCLUSIONS OF LAW

   
   

4. Petitioner held a license under the provisions of Florida Statutes, Section 468.126(1):

   
   

   468.126 Qualifications of applicants for registration.

   
   

   (1) Any person engaged in fitting or selling of hearing aids from an established place of business at a permanent address in the state, open for service during usual business hours for at least 2 years prior to the enactment of this part, shall, upon application to the [Department of Health and Rehabilitative Services], be entitled to a certificate of registration qualifying him as a registrant, provided that he must pass the qualifying examination within a period of 2 years after the enactment of this part. Said application shall be made to the [department] on the forms prescribed by it. Any person who becomes a legal resident of the state and who shall produce

   evidence that he has had 1 year's experience in fitting or selling hearing aids can make application to the division for examination

   and upon passing the examination, and being otherwise qualified as provided in this part, shall be granted a certificate of registration.

   
   

5. His license was revoked in 1971 under Section. 468.131-.133, Florida Statutes. A motion to dismiss the "Petition for Certiorari and Brief for Jurisdiction (sic)" was filed and an Order of Dismissal entered by the Circuit Court of the 17th judicial Circuit in and for Broward County, Florida on May 24, 1971.

   
   

6. Although there is no specific procedure for reinstatement of a license that has been revoked by the Respondent State of Florida Department of Health and Rehabilitative Services, it is selfevident that the legislature did not intend to deny forever a person from again working in his profession. Section 468.126(3)(a) provides in pertinent part: "Any person desiring registration who is not qualified otherwise shall be issued a trainee temporary certificate of registration by the [department] only if he is of good moral character, over the age of 21 years and is a graduate of an accredited high school or secondary school . . ." This is a training period which culminates in the administration of an examination. Section 468.126(6) provides: "Any person who shall hold an unsuspended or unrevoked certificate or license to fit or sell hearing aids in another state may make application to the [department] for examination in lieu of any trainee period, provided he becomes a legal resident of this state and is otherwise qualified as provided in this part."

   
   

7. If a person from another state who holds a certificate of registration which was suspended or revoked by another state may enter the trainee program and then take an examination, provided he becomes a legal resident in this state and is otherwise qualified, it would be discriminatory against a resident who holds a revoked certificate to prevent him from pursuing the trainee program and taking an examination in order to get a trainee temporary certificate of registration.

   
   

8. Petitioner is otherwise qualified under the statute and after a five- year revocation should be allowed to show rehabilitation and enter the training program.

RECOMMENDATION

Accept the application together with the required fee of $25 from the Petitioner and allow him to pursue the trainee program as provided in Section 468.126(3)(a).

Date October 25, 1976

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

J. Hodges, Esquire Post Office Box 210

Jacksonville, Florida 32201

John V. Russell, Esquire Suite 205

2 Commercial Boulevard

Lauderdale-by-the-Sea, Florida 33308

Docket for Case No: 76-000790

Orders for Case No: 76-000790