STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARRISON L. BOOTHE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-280

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on May 1, 1980, at Orlando, Florida.

APPEARANCES

For Petitioner: Garrison L. BOOTHE, pro se

3614 South Forest Avenue Orlando, Florida 32806

For Respondent: Douglas E. Whitney, Esquire

District VII Legal Counsel Department of Health and

Rehabilitative Services

400 West Robinson Street Orlando, Florida 32801

ISSUE

Whether Petitioner's application for renewal of his certificate of registration to fit and sell hearing aids should be denied here he establishes that he satisfactorily completed the required continuing education course during the year of his application, rather than during the previous calendar year.

BACKGROUND

By letter dated January 31, 1980, the Respondent (hereinafter "Department") notified Petitioner (hereinafter "Applicant") that it intended to deny his application for renewal of his certificate of registration to dispense hearing aids in Florida on the ground that he failed to show evidence of satisfactory completion of the required continuing education course.

On February 13, 1980, the Applicant requested an administrative hearing on the Department's intended denial.

On February 15, 1980, the Department forwarded the Applicant's request to the Division of Administrative Hearings, and asked that a Hearing Officer be assigned to conduct the requested hearing.

By Notice of Hearing dated March 12, 1980, the final hearing was set for April 21, 1980. The Department's subsequent Motion for Continuance of the hearing was granted, and, without objection of the Applicant, the hearing was rescheduled for May 1, 1980.

At final hearing, the Applicant testified in his own behalf, and offered Petitioner's Exhibits 1 and 2, each of which was admitted into evidence. The Department called no witnesses, and offered Respondent's Exhibits 1 and 2 into evidence, each of which was admitted.

The facts in this case are not in dispute. Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

1. On January 29, 1980, the Applicant submitted to the Department a completed application for renewal of his 1979 Certificate of Registration to Dispense Hearing Aids in Florida. (Petitioner's Exhibit 1).

   
   

2. At the time of his application (January, 1980) the Applicant was unable to provide evidence of having completed at least ten hours of an approved continuing education course relating to the fitting and selling of hearing aids. He was, however, in the process of attending such a course at the University of Central Florida, which he successfully completed during February, 1980. (Petitioner's Exhibits 1 and 2, Testimony of G. L. BOOTHE)

   
   

3. The Department proposed to deny the applicant's request for renewal on the sole ground that his application failed to show that the required continuing education course had been completed prior to his application, and during the prior calendar year 1979. (Testimony of G. L. Boothe)

   
   

4. On July 21, 1978, and again on October 1, 1979 the Department notified all registered hearing aid dispensers, including the Applicant, of the new continuing education requirement enacted by the 1978 Florida Legislature. The Applicant received such notice, and was aware of this new requirement. (Respondent's Exhibits 1 and 2, Testimony of G. L. BOOTHE)

   
   

5. Between 1969 and February, 1979, the Applicant was licensed by the State to fit and sell hearing aids, and was employed by the Beltone Hearing Aid Company. In February, 1979, he left the company and was considering retirement. (Testimony of G. L. BOOTHE)

   
   

6. The Applicant failed to take the required continuing education course during 1979 because, from February 1979 through January, 980, he was uncertain whether he would surrender his license or continue in the business of fitting and selling hearing aids. During January and February, 1980, he entered the employment of the Orange Hearing Aid Center, Orlando, Florida for the purpose of fitting and selling hearing aids. He, therefore, applied far the renewal of his license, and successfully completed the required continuing education course. (Testimony of G. L. Boothe)

   CONCLUSIONS OF LAW

   
   

7. Section 468.134 Florida Statutes (1979) prohibits the fitting or selling of hearing aids in Florida without having first obtained a certificate and license from the Department. License holders are required to apply, by January 1 of each year, for annual renewal of their license. Id. The Department is required to renew an applicant's registration (upon submittal of a completed application and the required annual fee), 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." (Emphasis supplied) Id.

   
   

8. At the time of hearing, the Applicant and the Department agreed that the Applicant met and complied with all substantive requirements for renewal of his certificate of registration, except that he had completed the required continuing education course during February, 1980 - not during the "previous calendar year" as required by subsection 468.134(4) supra.

   
   

9. The primary guide to interpreting statutes is to determine the legislative intent and carry it into effect. Dickinson v. Bradley, 298 So.2d

   352 (Fla. 1974). An interpretation which produces unreasonable, absurd, or ridiculous consequences, should be avoided, City of St. Petersburg v. Siebold, 48 So.2d 291 (Fla. 1950).

   
   

10. To deprive an otherwise qualified individual from engaging in the fitting and selling of hearing aids for almost a full year merely because he did not complete the required continuing education course during the previous calendar year would be an absurd consequence, impose an unreasonable hardship without benefit to the public, and fly in the face of reason. See Bernard A. Whittington v. Department of Health and Rehabilitative Services and Frank H. Horrigan v. Department of Health and Rehabilitative Services, Recommended Order dated May 2, 1980, DOAH Case Nos. 80-305, 80-306.

    
    

11. The annual continuing education course requirement of subsection 468.134(4) must be read, in pari materia, with 468.134(1) Florida Statutes. The latter subsection, which requires applications for renewal to be filed on or before January 1 of each year, would logically dictate that the continuing education requirement be completed in the prior calendar year. But that subsection explicitly allows a late filing applicant to obtain renewal of his certificate upon the payment of a delinquency fee of $25.00 for each year, or fraction thereof, that he failed to register. It would be unreasonable to impose a harsh and inflexible penalty upon an individual who fails to complete the continuing education course during the prior calendar year, yet impose virtually no penalty upon one who fails to file a timely application for renewal.

    
    

12. From the foregoing, it is concluded that the Applicant now qualifies for renewal of his certificate of registration to fit and sell hearing aids in Florida during the remainder of 1980. In order to be eligible for renewal on January 1, 1981, the Petitioner must show satisfactory completion of at least ten additional contact hours of an approved continuing education course relating to the selling and fitting of hearing aids. It is therefore,

RECOMMENDED that the application of Garrison L. BOOTHE for renewal of his certificate of registration to fit and sell hearing aids in Florida be APPROVED.

DONE and ENTERED this 13th day of May, 1980, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Garrison L. Boothe

3614 South Forest Avenue Orlando, Florida 32806

Douglas E. Whitney, Esquire District VII Legal Counsel Department of Health and Rehabilitative Services

400 West Robinson Street Orlando, Florida 32801

Docket for Case No: 80-000280

Orders for Case No: 80-000280