STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERNARD A WHITTINGTON, )

)

Petitioner, )

)

vs. ) CASE NO. 80-305

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

) FRANK H. HORRIGAN, )

)

Petitioner, )

)

vs. ) CASE NO. 80-306

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled cases on 18 April 1980 at Largo, Florida.

APPEARANCES

For Petitioners: William H. Carey, Esquire

500 Florida National Bank Building St. Petersburg, Florida 33701

For Respondent: Barbara D. McPherson, Esquire

HRS District V Legal Counsel 2255 East Bay Drive

Largo, Florida 33540

By letters dated February 13, 1980 Frank Horrigan and Bernard Whittington, Petitioners, requested hearings to contest the denial of the. renewal of their hearing aid licenses by the Department of Health and Rehabilitative Services, Respondent. Respondent's grounds for denial of the renewal applications was that Petitioners did not complete a continuing education course in calendar year 1979.

Because identical issues are involved, these cases were consolidated for hearing and one recommended order will be submitted. At the hearing both Petitioners testified in their own behalf, one witness was called by Respondent

and two exhibits were admitted into evidence. There was no dispute regarding the facts here involved.

FINDINGS OF FACT

1. Petitioner Horrigan has owned Better Hearing Aid Services, St. Petersburg, Florida since the company was started in 1957. Be is a certified hearing aid specialist and has been licensed each year through 1979.

   
   

2. Petitioner Whittington has been a certified hearing aid specialist since 1957 and has managed Better Hearing Aid Services since 1968.

   
   

3. During the early part of 1979 Petitioner Horrigan decided to sell his business and Whittington decided to retire at the end of 1979. Both Petitioners are well past 65 and Horrigan has had more than one heart attack. To seek buyers for the business an ad was placed in the June 1979 issue of the Hearing Aid Journal (Exhibit 1)

   
   

4. Both Petitioners were aware of the requirement for completion of the continuing education course for renewal of certificates hut since both of them planned to retire in 1979 neither intended to renew his license for 1980. Bulletins reminding registrants of this requirement were sent to all certificate holders by Respondent on February 13, August 8 and October 1, 1979.

   
   

5. Attempts to sell the hearing aid business in 1979 were unsuccessful. Accordingly, late in 1979, Horrigan decided it would be necessary for him to renew his certificate to keep the business open until he could find a buyer. Continuing education courses were given at various places in Florida during 1979 and Horrigan planned to go to Daytona Beach to take the course given 2 December 1979. On 27 November 1979 Horrigan was hospitalized for 9 days for a condition related to his previous heart attacks and was unable to take the course. Whittington was not aware that Horrigan was hospitalized until after the 2 December continuing education course was given. Had he known Horrigan couldn't attend, Whittington testified he would have attended so he could qualify for renewal of his certificate and keep the business open until a buyer was found.

   
   

6. The next continuing education course given in Florida after 2 December 1979 was on January 24-25, 1980 at St. Petersburg, Florida. Both Petitioners attended this course and immediately upon completion submitted their applications for renewal of their certificates. Both applications for renewal were denied because they had not taken the continuing education course in calendar year 1979.

   
   

7. Both Petitioners are highly qualified to sell hearing aids and denial of their applications for renewal of certificates is not in the public interest.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

9. Section 468.134(4), Florida Statutes, which establishes continuing education requirements, provides;

   
   

   The department shall issue to any duly registered person fitting and selling hearing aids in this state, upon his

   application there for 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.

   
   

10. 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 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.

    
    

11. Section 468.134(1) provides generally that no person shall fit or sell hearing aids until he has complied with the provisions of this chapter. Among these requirements are that every person presently registered shall apply for renewal of registration on or before January 1 of each year, and any person who fails or neglects to register by January 1 of any year shall be suspended automatically after a 30-day grace period until such time as the person shall register and pay the annual fee plus a delinquency fee.

    
    

12. Here the evidence was uncontradicted that the sole reason these applications for renewal were not granted was because the Petitioners did not take the continuing education course before December 31, 1979. A literal reading of Section 468.134(4) above quoted would seem to require this result. However, in interpreting a statute the primary consideration is to ascertain the legislative intent. As the Court succinctly stated in Leadership Housing, Inc.

    v. Department of Revenue, 336 So.2d 1239 (Fla. 1st DCA 1976):

    
    

    It is elementary that the function of courts is to ascertain and give effect to the legislative intent in enacting the statute. In applying this principle certain rules have been adopted to guide the process of judicial thinking. The first of these is that the Legislature

    is conclusively presumed to have a working knowledge of the English language and when a statute has been drafted in such a manner as to clearly convey a specific meaning the only proper function of the

    court is to effectuate this legislative intent. Florida State Racing Commission

    v. McLaughlin, 102 So.2d 575.575 (Fla. 1958).

    
    

13. While subsection (4) of Section 468.134 contains a proviso that the registrant applying for renewal show evidence of completion of the continuing education course relating to fitting and selling hearing aids during the previous calendar year, subsection (1) provides for a 30-day grace period after

    1 January during which time the automatic suspension of a certificate for failure to renew, is stayed. Subsection (1) further provides late registration even after more than one year upon the paying of a $25 delinquency fee for each year or fraction thereof the registrant failed to register.

    
    

14. The legislative intent, expressed in Section 468.121 quoted above, has as its primary purpose the protection of the public from unqualified hearing aid salesmen. A secondary purpose is to increase the competence of hearing aid salesmen by requiring continuing education. Here Respondent acknowledges that these Petitioners are eminently qualified for renewal of their registrations, and the issuance of the certificates applied for will be in the public interest. Thus the primary purpose of the statute will be satisfied by the renewal of these certificates. 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 be fore 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.

    
    

15. 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 profession for one full year flies in the face of reason and does not comport with the expressed legislative intent.

    
    

16. From the foregoing it is concluded that Petitioners became eligible for renewal of their certificates as hearing aid salesmen for the year 1980 after they completed the continuing education course on January 26, 1980. It is further concluded that in order to be eligible for renewal on 1 January 1981 they must again complete a continuing education course before that time. It is therefore

RECOMMENDED that the applications of Frank H. Horrigan and Bernard A. Wittington for renewal of their certificates of registration as hearing aid specialists be approved.

Entered this 2nd day of May, 1980.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

William H. Carey, Esquire

500 Florida National Bank Building St. Petersburg, Florida 33701

Barbara D. McPherson, Esquire HRS District V Legal Counsel 2255 East Bay Drive

Largo, Florida 33540

Docket for Case No: 80-000305

Orders for Case No: 80-000305