STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALICE KAY WYNNE, RDH, )

)

)

Petitioner, )

)

vs. ) CASE NO. 88-4012

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause cane on for hearing before P. Michael Ruff, the duly designated Hearing Officer of the Division of Administrative Hearings, in Tallahassee, Florida on January 19, 1989.

APPEARANCES

For Petitioner: Alice Kay Wynne, pro se

Post Office Box 50921 Albany, Georgia 31705

For Respondent: H. Reynolds Sampson, Esquire

Department of Professional Regulation 1940 North Monroe Street, Ste. 60

Tallahassee, Florida 32399-0729 PRELIMINARY STATEMENT

This cause was initiated upon notification to the above-named Petitioner that her then-inactive dental hygienist license had become "null and void".

That notification was in the form of a letter dated May 11, 1988, from William Buckhalt, the Executive Director of the Board of Dentistry. The initial decision by the agency was based upon its position that the notification required by Section 466015, Florida Statutes, regarding the automatic expiration of the inactive license after the end of a four year period, without renewal, had been sent to her last known address. That section requires that notification of Impending License Expiration be sent one year prior to the end of the four year period or at the end of the third year of a license's inactive status. The Petitioner contended that she had never received the notification of impending expiration, and requested a hearing. The matter was therefore referred to the undersigned hearing officer for adjudication.

The cause came on for hearing, at which Alice Kathleen Wynne testified in her own behalf, also presenting exhibits 1-6, which were admitted into evidence. Petitioner'S Exhibit 1 was admitted only on the basis provided for in Section 120.58, Florida Statutes, as corroborative hearsay. The Respondent presented the testimony of the Executive Director of the Board of Dentistry, Mr. William

1. Buckhalt, also presenting Respondent's Exhibits A-E, which were admitted into evidence.

   
   

   STATEMENT OF THE ISSUES

   
   

   The issue to be determined concerns whether the Board of Dentistry was justified in cancelling the Petitioner'S dental hygienist license for failure to timely renew it. This necessitates resolution of the question of whether the Petitioner received the required notification of impending license expiration and whether such notification was actually sent to the last known address.

   
   

   FINDINGS OF FACT

   
   

   1. The Petitioner, Alice Kay Wynne has been licensed as a dental hygienist by the Board of Dentistry of the State of Florida. She was licensed in Florida in 1974 and practiced in Georgia and in Montana since that time. In 1975 she moved to Montana to establish a rural, dental public health preventive program. She resided from that time until approximately 1985 in Glendive, Montana. Between December 1984 and January 1988, her license was in inactive status. Pursuant to Section 466.015(1), Florida Statutes, this inactive status can be of up to four years duration. When the Petitioner renewed her license with the Board she presumably thereby notified the Board of her Glendive, Montana address. This address was maintained in the Board's records, apparently until sometime in May of 1987. In the meantime, in 1985, the Petitioner moved from Montana to Albany, Georgia. She never actually submitted a change of address notification to the Board of Dentistry, however. No statutory provision nor rule of that agency requires that such be done (although it would seem a wise course of action). The Petitioner began working as a clinical hygienist in the Navy Branch Dental Clinic of the Marine Corps Logistics Base in Albany, Georgia.

      
      

   2. During her professional tenure in Albany, Georgia, in October 1986, a notice regarding the necessity for her to renew her license and place it on active status once again before the expiration of the four year period mentioned above was sent to her then-record address in Glendive, Montana. The Petitioner never received this notice. The above statutory subsection requires that the Department of Professional Regulation give notice to an inactive licensee one year prior to the expiration of that inactive license, that is, the notice must be sent at the end of three years of inactive status. This notice is required to be sent to the licensee's last address of record. One year prior to the expiration of Petitioner's license would have been on or about December 31 or January 1 of 1986-1987. Rule 21G- 10.009, Florida Administrative Code, regarding reactivation of inactive licenses took effect December 31, 1986, containing a requirement that the above-mentioned, one year advance notice of expiration of licensure be sent by Certified United States Mail. The notice that was apparently sent to the Petitioner, however, was sent more than one year prior to the impending expiration of her license and therefore prior to the enactment of this rule requiring that notice be sent by certified mail. The notice was not sent by certified mail. There is no direct proof that it was sent by the Department or received by Petitioner. The only proof that it was sent, which the Hearing Officer accepts, is the record notation, in evidence, that it was sent to the Glendive, Montana address. It was never received by the Petitioner, however.

      
      

   3. In any event, in early 1988, knowing that she had an employment position in the Orlando, Florida area as a dental hygienist, the Petitioner inquired of the Board regarding the manner in which she should restore her license to active status. By phone call to the Board on March 28, 1988, she

      learned that her license had been rendered "null and void" as of January 1, 1988. She was greatly distressed by this turn of events and the following day wrote the Executive Director of the Board of Dentistry, Mr. Buckhalt, to request that her license be renewed. She informed him that she had never received notice of the impending nullification of her license, although she had filed a change of address with the post office when she moved from Montana to Georgia.

      Thereafter, by letter of May 11, 1988, Mr. Buckhalt informed Ms. Wynne that, at a regularly scheduled meeting of the Board, her licensure status had been considered and that the Board determined that the notice had been mailed to her last known address and that the Board concurred with the Department that Ms.

      Wynne's license was null and void. This letter also informed her of an opportunity to request a formal hearing concerning the issue pursuant to Chapter 120, Florida Statutes. She, of course, availed herself of that right.

      
      

   4. The above-cited statutory provision also contains a requirement that a certain minimum number of hours of continuing education shall be imposed by the Board as a condition for re- activating a license. The Petitioner received the appropriate number of continuing education credits for the years 1986, 1987 and 1988 and supplied that information to the Board. She did not formally provide the Board or the Department with a change of address notification, however. On May 6, 1987 there is an entry on the computer record of her licensure with the Board which shows that the address was then 810 Johnson Road, #6, Albany, Georgia 31705-3432. This record, Petitioner'S Exhibit 4 in evidence, appears to show that that change occurred on May 6, 1987, possibly as a result of the receipt by the Board of CLE credits mailed in, reflecting the Georgia address, although the record does not reflect this definitely.

      
      

   5. In any event, in its letter of May 11, 1988, the Board took the position that Petitioner's license was null and void and provided that notification to the Petitioner. That notification was sent by certified mail, return receipt requested.

      
      

      CONCLUSIONS OF LAW

      
      

      The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto, pursuant to Section 120.57(1), Florida Statutes (1987).

      
      

   6. Section 466.015, Florida Statutes, provides as follows:

      
      

      1. A license which has become inactive

         may be reactivated pursuant to this section upon application to the department. The board shall prescribe by rule continuing education requirements as a condition of reactivating a license. The continuing education requirements for reactivating a license shall not exceed 15 classroom hours for each year the license was inactive. Any such license which has been inactive for more than 4 years shall automatically expire if the licensee has not made application for reactivation of such license. Once a license expires, it becomes null and void without any further action by the board or department.

         One year prior to expiration of the inactive license, the department shall give notice to

         the licensee at the licensee's last address of record.

         
         

   7. Rule 21G-10.009, Reactivation of Inactive License, enacted December 31, 1986, provides as follows:

      
      

      1. An inactive license may remain on inactive status for a period not to exceed 4 years from the commencement of the biennial period that it becomes inactive. Any inactive license which is not reactivated within this 4 year period shall automatically expire and shall become null and void without any further action by the Board or the Department. One year prior to the expiration of this 4 year period, the Department shall give notice to the licensee at the licensee's last address of record, by Certified United States Mail. The Department shall maintain a permanent record of this notice having been sent. (e.s.).

         
         

   8. The license may be reactivated upon application to the Department with payment of certain fees and demonstration of continuing education requirements being met.

      
      

   9. The evidence of record and the above findings of fact demonstrates that this license was due to expire at the end of four years, or January 1, 1988. Thus, the point in time, one year prior to that expiration, at which the Department was required by the above statute to give notice to the licensee of the expiration date, would technically have been on December 31, 1986 or January 1, 1987. If the Department had given notice on that date, the above rule would have been in effect. The Department would then have been required to provide such notice by certified mail, in which event it would have had proof, by the return receipt, of whether the notice had been delivered to the licensee here or not. If not, then the Department could have proceeded according to Section 120.60(7), Florida Statutes, referenced below, and caused a "short simple notice to the licensee to be published once each week for four consecutive weeks in newspaper published in the county of the licensee's last known address as it appears on the records of the Board." If that procedure had been followed there would seem to be little doubt that the expiration would have been final.

      
      

   10. In fact, however, the agency issued the statutorily required notice more than a year prior to the expiration date of the Petitioner's license, and before the enactment of the rule requiring such notice to be by certified mail. Although the above-quoted statute provides that the expiration of such a license at the end of four years is automatic and requires no further Board action, it does place a procedural step in advance of and as a prerequisite to such expiration, that is, the mailing of notice to the licensee involved. Because of the above-quoted language of the statutes, it must be concluded that the provision of notice is a necessary procedural step to the rendering of the license null and void. This procedural step by the agency, which allows the self-executing portion of the statute to render the license expired, if unresponded to, is indistinguishable from an "annulment" for purposes of Section 120.60(7) , Florida Statutes. That provision provides pertinently as follows:

       No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the entry of a final order, the agency has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action and unless the licensee has been given an adequate opportunity to request a proceeding pursuant to s.120.57. When personal service cannot be made and the certified mail notice is returned undelivered, the agency shall cause a short, simple notice to the licensee to be published once each week for 4 consecutive weeks in a newspaper published in the county of the licensee's last known address as it appears on the records of the board...

       
       

   11. The statutory requirement of an affirmative action by the agency, the issuance of the notice, before the expiration can take effect, is tantamount to an annulment. Consequently, and because Section 466.015 and Section 120.60(7), Florida Statutes, are not inconsistent, they should be read in pari materia. Thus, although at the time the notice was apparently sent, in October 1986 the agency did not have the rule requiring notice by certified mail, the mandate of Section 120.60(7), when read in sari materia with the other above-mentioned statutory section would indicate that the agency should have sent the notice by certified mail, even in the absence of the later-enacted rule.

       
       

   12. The statutory purpose of providing notice to licensees before their license is rendered null and void would have then been adequately served because, by use of certified mail with return receipt, the agency would have known whether the licensee had received the notice and then the further step provided in Section 120.60(7), notice by publication, could have been accomplished by the agency such that no dispute could have arisen as to the final expiration of the license.

       
       

   13. In light of these circumstances, therefore, it must be concluded that the necessary procedural step before automatic license expiration could occur was not complied with by the agency and that therefore, by operation of law, expiration never occurred. Consequently, the licensee should be entitled to accomplish the necessary steps to reactivate her inactive license, it being established, as well, that she never received actual notice of the fact that she had one year remaining to reactivate her license, as the statute requires.

       
       

   14. The above-discussed circumstances aside, moreover, the Petitioner established with her testimony, which was not refuted, that she indeed had not received the notice of impending expiration at issue. If Section 120.60(7) had been complied with, the agency would have been free to notice the impending expiration by publication if a return receipt had shown it that notice was not thereby accomplished. That was not done, however. Consequently, notice was not accomplished. Under this circumstance, to deny her the opportunity to reactivate that license by final order, after the conclusion of this proceeding, would constitute a denial of due process of law. Cf. Robinson v. Florida Unemployment Appeals Commission, 526 So.2d 198 (Fla. App. 4 Dist. 1988); Pierre v. Orient Sugar Cane Planting, Inc., 504 So.2d 431 (Fla. 4th DCA 1987). Accordingly, in view of the above considerations and conclusions, Petitioner

should be accorded the opportunity to reactivate her dental hygienist license provided she pays all necessary fees and provides proof, according to relevant agency rules, that she has complied with the continuing education requirements.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED that a Final Order be entered by the Department of Professional Regulation, Board of Dentistry, according the Petitioner, Alice Kay Wynne, the opportunity to reactivate her Florida Dental Hygienist license upon demonstration of compliance with pertinent continuing education requirements and payment of all appropriate fees.

DONE and ORDERED this 31st day of May, 1989, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1989.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-4012

Petitioner's Proposed Findings of Fact:

1. Accepted.

2. Rejected as contrary to Hearing Officer's findings on this subject matter.

3. Accepted.

4. Rejected as subordinate to the Hearing Officer's findings.

5. Rejected as irrelevant.

Respondent's Proposed Findings of Fact: Respondent did not submit proposed findings of fact.

COPIES FURNISHED:

Alice Kay Wynne

Post Office Box 50921 Albany, Georgia 31705

1. Reynolds Sampson, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0726

   
   

   William Buckhalt, Executive Director Florida Board of Dentistry

   1940 North Monroe Street, Suite 60

   Tallahassee, Florida 32399-0726

   
   

   Kenneth Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60

   Tallahassee, Florida 32399-0726

   
   

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

   AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

   BOARD OF DENTISTRY

   
   

   
   

   ALICE KAY WYNNE, R.D.H.,

   
   

   Petitioner,

   DOAH CASE NUMBER 88-4012

   vs. LICENSE NUMBER DN0003182

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes, on September 9, 1989, in Tallahassee, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is attached as Exhibit A) in the case of Alice Kay Wynne, R.D.H. v. Department of Professional Regulation, Case Number 88-4012. At the hearing, Petitioner was present and appeared in her own behalf. Respondent was not represented. Upon consideration of the Hearing Officer's Recommended Order, and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions.

   
   

   FINDINGS OF FACT

   
   

   1. The Hearing Officer's Findings of Fact are approved and adopted and are incorporated herein by reference.

   2. There is competent, substantial evidence to support the Board's findings.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of the parties and subject matter of this case pursuant to Section 120.57 and Chapter 466, Florida Statutes.

   
   

2. The Board rejects the Hearing Officer's Conclusions of Law to the extent that he has interpreted the provisions of Section 120.60(7), Florida Statutes, to apply to Section 466.015, Florida Statutes. Although the Board agrees that prior to a license becoming null and void notice must be sent to the licensee, the interpretation of these two sections does not demand that inactive licensees, who are required to keep the Department apprised of their correct addresses, receive the same notice required for affirmative action against a license. (See Rule 21-6.012, F.A.C.). To interpret the statute to require published notice would render Section 466.015, Florida Statutes, a nullity. Accordingly, the Department is required to send notice as a condition precedent to a license becoming null and void. By current Board rule that notice must be sent by certified mail, return receipt requested. Should the certified mail notice be returned as undeliverable, further action is not required so long as the certified mail notice was sent to the licensee's last known address.

   
   

3. There is competent, substantial evidence to support the Board's conclusions.

   
   

4. The Board approves and adopts the Hearing Officer's recommendation that Respondent be given the opportunity to reactivate her Florida Dental Hygienist license upon demonstration of compliance with pertinent continuing education requirements and payment of all appropriate fees.

WHEREFORE, it is ORDERED AND ADJUDGED that the Petitioner's license did not become null and void by operation of law pursuant to Section 466.015, Florida Statutes, and she is currently eligible to reactivate her license subject to the requirements of Chapters 455, 466, Florida Statutes, and the rules of the Department and the Board.

This Order becomes effective upon being filed with the Board Clerk.

The parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation and by filing a filing fee and one copy of a Notice of Appeal with the District Court of Appeal within thirty days of the date this Order is filed.

DONE AND ORDERED this 16th day October, 1989.

Richard J. Chicetti, D.M.D. Chairman

Board of Dentistry

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been forwarded by Certified United States Mail this 18th day of October,

1989, to Ms. Alice Kay Wynne, Post Office Box 50921, Albany, Georgia 31705 and hand delivered to H. Reynolds Sampson, Esquire, 1940 North Monroe Street, Tallahassee, Florida 32399-0792.

William H. Buckhalt, C.P.M. Executive Director

Board of Dentistry

130 North Monroe Street Tallahassee, Florida 32399-0750 (904)488-6015

Docket for Case No: 88-004012

Orders for Case No: 88-004012