STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAMUEL COOPER, )

)

Petitioner, )

)

vs. ) CASE NO. 80-279

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Fort Lauderdale, Florida, on April 29, 1980, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Samuel Cooper

9101 Northwest 81st Court

Ft. Lauderdale, Florida 33321

For Respondent: Harold Braynon, Esquire

District X Legal Counsel Department of Health and

Rehabilitative Services

201 West Broward Boulevard Ft. Lauderdale, Florida 33301

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 an undated letter which was received by Respondent on February 11, 1980.

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

FINDINGS OF FACT

1. Petitioner Samuel Cooper has been licensed with Respondent to fit and sell hearing aids since 1975. He is presently employed with the Better Hearing Aid Service of Fort Lauderdale. (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 1973 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 his application for renewal. (Testimony of Gray, Petitioner, Exhibit 1)

   
   

3. Petitioner was in poor health during 1979 and did not decide to renew his registration until late in the year. In addition, he was unemployed during most of 1979. Consequently, he did not take the required ten hours of instruction until January 11-12, 1980 at Tampa, Florida. He thereafter filed his application for renewal on January 21, together with proof of satisfactory completion A of the required course. Respondent's director of licensure and certification advised Petitioner, by letter of January 31, 1980, of intent to deny the application for failure to show evidence of completing the continuing education course. At the hearing. Respondent's program administrator explained that the reason for denial was failure to complete the course during the calendar year 1979. (Testimony of Petitioner, Gray, Exhibit 1)

   
   

   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. It is undisputed that the only reason for denial of Petitioner's application for renewal was due to the fact that he did not complete the continuing education requirement of Section 468.134(4) during calendar year 1979. However, he did satisfactorily complete an approved course prior to submission of his renewal application on January 21, 1980.

   
   

8. The sole 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), 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 he completed the required course prior 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 s 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.

RECOMMENDATION

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

DONE and ENTERED this 6th 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:

Harold Braynon, Esquire District X Legal Counsel Department of HRS

201 West Broward Boulevard Ft. Lauderdale, Florida 33301

Samuel Cooper

9101 NW 81st Court

Ft. Lauderdale, Florida 33321

Stephen S. Huss Staff Attorney Department of HRS

1317 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 80-000279

Orders for Case No: 80-000279