STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVELYN SWARD WEBSTER, )

)

Petitioner, )

)

vs. ) CASE NO. 80-278

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Daytona, Florida, on May 1, 1980, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Evelyn Sward Webster

Acousticon of Daytona

222 Magnolia Avenue at Ridgewood Daytona Beach, Florida 32014

For Respondent: Leo Stellwagen

Assistant District IV Legal Counsel Department of Health and Rehabilitative Services

Post Office Box 2417-F Jacksonville, Florida 32231

ISSUE

Whether Petitioner's application to renew license to dispense hearing aids should be approved.

This proceeding involved Petitioner's application to renew an existing license to dispense hearing aids in the State of Florida which was denied by Respondent Department of Health and Rehabilitative Services by letter of January 31, 1980, for failure to establish that the applicant had satisfactorily completed a continuing education course relating to the fitting and selling of hearing aids consisting of a minimum of ten contact hours of classroom instruction. Petitioner requested a hearing by letter, dated February 4, 1980.

Petitioner appeared at the hearing unaccompanied by legal counsel and was advised by the Hearing Officer as to her rights in administrative proceedings. She acknowledged understanding such rights and elected to represent herself in the matter.

FINDINGS OF FACT

1. Petitioner Evelyn S. Webster was licensed with Respondent to fit and sell hearing aids in 1979. She owns and operates a firm called Acousticon of Daytona at Daytona Beach, Florida, where she fits and sells hearing aids and also larynx and speech aids. (Testimony of Petitioner)

   
   

2. In 1978, the state legislature amended the "Fitting and Selling of Hearing Aids Act," Chapter 468, Florida Statutes, Part III, to require that registrants must show evidence of satisfactory completion of a continuing education course relating to the fitting and selling of hearing aids during the previous calendar year consisting of a minimum of ten contact hours of classroom instruction which course is subject to approval for credit by Respondent. The requirement was to commence beginning with calendar year 1979. Respondent's hearing aid licensure program administrator issued a succession of notices to all registered hearing aid dispensers in 1978 and 1979 advising of the new requirement and providing information as to where and when approved courses could be taken. By further letter of October 1, 1979, Respondent's licensing administrator transmitted applications to registrants for annual renewal of certificates. The letter of transmittal advised all registrants to enclose with their applications proof of successful completion of the ten-hour continuing education course during the calendar year 1979. Petitioner received the various letters issued by Respondent and her application for renewal. (Testimony of Gray, Petitioner, Exhibit 5)

   
   

3. Petitioner was in ill health during 1978 and 1979 with various medical problems, and is still under the care of a physician for hypertensive cardiovascular disease. Consequently, she did not take the continuing education course until October 1979. At that time, she successfully completed the five hours of instruction offered by the Florida Hearing Aid Society at Daytona Beach. All hearing aid dispensers were advised in a letter from Respondent dated October 1, 1979, that a ten-hour course would be offered in early November at Brevard Community College, Titusville, Florida. However, Petitioner did not seek to attend this session. She submitted her application for license renewal on January 14, 1980, to Respondent and enclosed proof of completion of the five hours of instruction. Respondent's Director of Licensure and Certification advised her, by letter of January 31, 1980, that her application was denied since she had not completed a minimum of ten contact hours of approved continuing education credits. Thereafter, during March 1980, she attended and satisfactorily completed the full ten-hour course at Brevard Community College. (Testimony of Petitioner, Gray, Exhibits 1-2, 4,6)

   
   

   CONCLUSIONS OF LAW

   
   

4. Fitting and selling hearing aids are governed by Part II of Chapter 468, Florida Statutes. The purpose of Part II is stated in Section 468.121 as follows:

   
   

   Part II of this chapter requires registration for the protection of the public of any person engaged in the fitting or selling of hearing aids, to encourage better educational training programs for such persons to provide against unethical and improper conduct and for the enforcement of this part, and to provide penalties for its violation.

5. Section 468.134(1) requires registrants to apply for renewal of registration on or before January 1 of each year, and further provides that failure to do so shall result in automatic suspension of registration after a thirty-day grace period until such time as the registrant shall register and pay the regular annual fee, plus a delinquency fee.

   
   

6. A 1978 amendment to the renewal provisions of the statute appears in Section 468.134(4) and provides as follows:

   
   

   (4) The department shall issue to any duly registered person fitting and selling hearing aids in this state, upon his application therefor in accordance with the provisions hereof, a certificate of registration under the seal of the department for the year ensuing and ending December 31, provided that the registrant shows evidence of satisfactory completion of a continuing education course relating to the fitting and selling of hearing aids during the previous calendar year. Said course shall consist of a minimum of 10 contact hours of classroom instruction and be subject to approval for credit by the department. The requirement for completion

   of continuing education courses shall begin with calendar year 1979. (Emphasis added)

   
   

7. The only reason for denial of Petitioner's application for renewal, as stated in Respondent's letter to Petitioner, dated January 31, 1980, was due to the fact that she did not complete the full ten hour continuing education requirement of Section 468.134(4). No mention was made therein that the course of instruction had to be completed during calendar year 1979.

   
   

8. Since Petitioner now has completed 15 hours of instruction, the question for determination is whether the pertinent statute requires completion of the continuing education course during the calendar year prior to January 1 of each year or simply during the twelve-month period prior to issuance of the certificate of registration. Resolution of this question requires an interpretation of the words "during the previous calendar year" as used in Section 468.134(4)f when used in conjunction with the general requirements for renewal contained in Section 468.134(1).

   
   

9. This problem was recently addressed in administrative proceedings by another Hearing Officer (Whittington v. HRS, DOAH Case No. 80-305; Horrigan v. HRS, DOAH Case No. 80-306). His recommended order in these consolidated cases, dated May 2, 1980, stated that the legislative intent of the act governing the legislation of fitting and selling hearing aids as expressed in Section 468.121 has as its primary purpose the protection of the public from unqualified hearing aid salesmen, and that a secondary purpose is to increase the competence of hearing aid salesmen by requiring continuing education. He found that it would be in the public interest to issue renewal registration to two registrants who had not completed their required ten hour course until late January, 1980, and thereafter submitted renewal applications. In this regard, his recommended order stated:

   Secondarily, the important, factor is that the salesman complete the continuing education program each year before his registration is renewed. Since registrations are renewed effective 1 January and continue through 31 December each year, under normal circumstances the registrant who applies before 1 January for renewal must take the continuing education course before 31 December in order to complete the course before he applies for renewal of his registration. Here petitioners have met this requirement of completing the continuing education course before applying for renewal of their registration.

   
   

   To hold that any registered hearing aid salesman who, for whatever reason, failed to take the continuing education course in any year would be barred from pursuing this (sic) profession for one full year flies in the face of reason and does not comport with the express legislative intent.

   
   

10. This Hearing Officer concurs with the foregoing reasoning and concludes that the renewal application of Petitioner herein should be approved since she has completed the required course subsequent to applying for registration renewal. The public certainly cannot be harmed by the fact that a registrant has taken a course later in time than that of most other registrants. In fact, any new concepts that perhaps were not known or taught during earlier courses would equip him to better serve the public. It is considered that the requirement to complete the continuing education course "during the previous calendar year" is primarily designed to ensure (1) that a registrant completes a course each year and (2) that the course must not have been taken more than twelve months prior to registration renewal. Although Respondent was correct in its preliminary denial of the application in that Petitioner only had completed five hours of instruction at the time she made application, this proceeding is for the purpose of formulating agency action which must be based on the situation existing at the time of entry of a final order. At this point in time, Petitioner is qualified for license renewal.

RECOMMENDATION

That Petitioner's application for renewal of her certificate of registration to fit and sell hearing aids be approved.

DONE and ENTERED this 8th day of May, 1980, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Leo Stellwagen Evelyn S. Webster Assistant District IV Acousticon of Daytona Legal Counsel 222 Magnolia Avenue at Department of HRS Ridgewood

Post Office Box 2417-F Daytona Beach, Florida 32014 Jacksonville, Florida 32231

Stephen S. Huss Staff Attorney Department of HRS

1317 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 80-000278

Orders for Case No: 80-000278