STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTIN KEITH DONALDSON, )

)

Petitioner, )

)

vs. ) Case No. 83-3331RE

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF HEARING ) AID SPECIALISTS, )

)

Respondent. )

)

FINAL ORDER

A hearing was held in the above-captioned matter, after due notice, at Tallahassee, Florida, on November 14, 1983, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: George L. Waas, Esquire

Slepin, Slepin, Lambert & Waas 1114 East Park Avenue Tallahassee, Florida 32301

For Respondent: Randall A. Holland, Esquire

Assistant Attorney General Department of Legal Affairs 1601, The Capitol

Tallahassee, Florida 32301 ISSUE PRESENTED

Administrative determination of the validity of Respondent's Emergency Rule 21JJER83-7, pursuant to Section 120.56, Florida Statutes.

This proceeding arises as a result of Petitioner's challenge to the validity of Respondent's Emergency Rule 21JJER83-7 which provides that probable cause determinations concerning alleged violations by Hearing Aid Specialists of the provisions of Chapter 455, Florida Statutes, or of Chapter 83-153, Laws of Florida, or the rules promulgated thereunder, shall be made by the Department of Professional Regulation.

At the hearing, Petitioner presented the testimony of Marcelle V. Flanagan, Executive Director of the Board of Hearing Aid Specialists, and submitted four exhibits in evidence. Respondent did not call any witnesses, but submitted one exhibit in evidence.

At the commencement of the hearing, the Hearing Officer granted Petitioner's motion to amend its Petition, and also granted Petitioner's request

for official recognition of official records of the Department of State, Division of Elections, concerning the appointment of members of the Board of Hearing Aid Specialists.

The parties agreed that the time for submitting the Final Order in this case would be extended to December 5, 1983.

Proposed Final Orders submitted by the parties have been fully considered, and those portions not adopted herein are considered to be either irrelevant, immaterial, or unsupported in law or fact, and are hereby rejected.

The parties stipulated to certain facts set forth in Petitioner's Exhibit 3 which were accepted by the Hearing Officer, and are made a part of the Findings of Fact hereinafter.

FINDINGS OF FACT

1. Petitioner Martin Keith Donaldson is the party respondent in what was originally styled State of Florida, Department of Health and Rehabilitative Services v. Donaldson, DOAH Case No. 83-2544, but which is presently styled State of Florida, Department of Professional Regulation, Board of Hearing Aid Specialists v. Donaldson, a license disciplinary proceeding. (Joint Stipulation (Petitioner's Exhibit 3))

   
   

2. The licensing and regulation of persons for the fitting and selling of hearing aids was a function of the Department of Health and Rehabilitative Services under Chapter 468, Part II, Florida Statutes, until July 1, 1983. At that time, those functions were transferred to a newly created seven-member Board of Hearing Aid Specialists within the Department of Professional Regulation by Chapter 83-153, Laws of Florida. The Act provided that the Board members were to be appointed by the Governor within 30 days after June 30, 1983, and confirmed by the Senate.

   
   

3. Official records of the Department of State, Division of Elections, reflect that although seven Board members were appointed by the Governor, effective September 8, 1983, the Secretary of State certified that they were duly appointed members of the Board for terms beginning variously on dates from September 22, 1983, to October 7, 1983, subject to confirmation by the Senate during the regular session of the Legislature. (Petitioner's Exhibit 1)

   
   

4. On September 28, 1983, a Certification of Administrative Rules was filed with the Department of State. The certification reflected that Proposed Emergency Rule 21JJER83-7 of the Florida State Board of Hearing Aid Specialists had been approved on September 27, 1983, and the certification was signed by Marcelle Flanagan, Executive Director. Attached to the certification was a Notice of Emergency Rule Adoption and the text of the emergency rule. The Rule stated as follows:

   
   

   21JJ ER83-7 Probable Cause Determination

   
   

   The determination as to whether probable cause exists to believe that a violation

   of the provisions of Chapter 455 or 83-153, F.S., or the rules promulgated thereunder has occurred, shall be made by the Depart- ment of Professional Regulation.

   SPECIFIC AUTHORITY: Section 120.53 (1)(c), 455.225(3), F.S.

   
   

   LAW IMPLEMENTED: 455.225 (.3), F.S. HISTORY: New

   
   

   The Notice of Emergency Rule Adoption stated the basis for finding an immediate danger to public health, safety and welfare, as follows:

   
   

   Emergency Rule 21JJ ER83-7 estab- lishes the procedure for implementation of a probable cause panel.

   
   

   The 1983 Legislature has affirmed the need for licensing Hearing Aid

   Specialists and has expressly noted that unskilled and incompetent Hearing Aid Specialists present a danger to the public health and safety. The Legis- lature has also affirmed the need to protect the public through swift and effective discipline for those prac- titioners who violate the law.

   
   

   The Board must act on an emergency basis to establish the procedure for implementation for a probable cause panel to ensure that those Hearing Aid Specialists who present a danger by their continued practice in violation

   of Chapter 83-153, Laws of Florida, shall be quickly prosecuted. To delay the initiation of disciplinary proceedings would significantly endanger the pub- lic. Thus, in order to avoid this

   danger resulting from the time-consuming process of general rulemaking, the follow- ing Emergency Rule has been adopted which will terminate in ninety (90) days from September 7, 1983.

   
   

   The notice stated the date and time that the rule would be effective as September 27, 1983. (Testimony of Flanagan, Petitioner's Exhibit 5)

   
   

5. The Board of Hearing Aid Specialists did not hold its first meeting until October 6, 1983. It had not approved the Emergency Rule on September 27, 1983, as reflected in the Certification of Administrative Rules. The Executive Director of the Board testified at the hearing that she was unaware as to who had approved the Emergency Rule, although-she speculated that the document that she had signed was given to her by a staff member of the Attorney General's Office. (Testimony of Flanagan, Petitioner's Exhibit 4)

   
   

6. The notice of the adoption of Emergency Rule No. 21JJ ER83-7 was published in the Florida Administrative Weekly, Vol. 9, No. 40, on October 7, 1983, which stated the effective date of the Rule to be September 27, 1983. (Joint Stipulation [Petitioner's Exhibit 3], Petitioner's Exhibit 2)

7. The Board of Hearing Aid Specialists held its initial and organizational meeting on October 6, 1983. During the meeting, an Assistant Attorney General asked the Board to adopt an Emergency Rule which would permit the Department of Professional Regulation to make probable cause determinations in cases arising under Chapter 455, Florida Statutes, and Chapter 83-153, Laws of Florida. He stated that at least seven cases had been transferred from the Department of Health and Rehabilitative Services and that the Department of Professional Regulation was anxious to avoid any undue delay in processing and resolving those cases. The Board was not informed that the emergency rule had been filed prior to October 6, 1983. The Board voted ". . . to follow the recommendation of counsel to promulgate the subject rule to allow the Department to determine probable cause for a period of 90 days." (Testimony of Flanagan, Petitioner's Exhibit 4)

   
   

8. Pursuant to Emergency Rule 21JJ ER83-7, the Department of Professional Regulation found probable cause on or about October 14, 1983, to prosecute the Petitioner. (Joint Stipulation [Petitioner's Exhibit 3] , Respondent's Exhibit 1)

   
   

9. Materials to be published in the Florida Administrative Weekly must be received by the Department of State on or before noon Friday, the week prior to publication. (Testimony of Flanagan)

   
   

   CONCLUSIONS OF LAW

   
   

10. Petitioner seeks an administrative determination, pursuant to Section 120.56, Florida Statutes, that Emergency Rule 21JJ ER83-7 constitutes an invalid exercise of delegated legislative authority.

    
    

11. Respondent contends that the Petitioner is not substantially affected by the emergency rule because another Hearing Officer had previously determined in DOAH Case No. 83-2544 that the Department of Professional Regulation was substituted as Petitioner in the Administrative Complaint that had been filed by the Department of Health and Rehabilitative Services in that case, without the necessity of filing a new Administrative Complaint. The facts reveal, however, that the Department of Professional Regulation nevertheless proceeded to make a probable cause determination against Petitioner under the emergency rule in question. This being so, it is clear that Petitioner has the requisite standing to challenge the rule.

    
    

12. Petitioner contends that the challenged rule is invalid because it was promulgated on a date prior to the commencement of the terms of office of the majority of the Board membership, and that the Board lacked jurisdiction to later attempt to ratify the prior approval of the rule at its organizational meeting held on October 6, 1983. Petitioner also claims that the alleged emergency situation prompting the rule could have been dealt with under the emergency license disciplinary authority of Section 120.60(7), Florida Statutes, and, having chose not to invoke that provision, the absence of a true emergency was demonstrated.

    
    

13. Respondent concedes that the rule was filed by mistake and prematurely, and that it could not have come into effect until October 6, 1983, when the Board first met. However, it contends that this was a harmless error and that the rule is necessary to protect the public.

14. Section 120.54(9), Florida Statutes, provides as follows:

120.54 Rulemaking; adoption procedures.--

* * *

(9)(a) If an agency finds that an immedi- ate danger to the public health, safety, or

welfare requires emergency action, the agency may adopt any rule necessitated by the immedi- ate danger by any procedure which is fair under the circumstances and necessary to protect the public interest, provided that:

1. The procedure provides at least the procedural protection given by other statutes, the Florida Constitution, or the United States Constitution.

2. The agency takes only that action neces- sary to protect the public interest under the emergency procedure.

3. The agency publishes in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or wel- fare and its reasons for concluding that the

procedure used is fair under the circumstances. In any event, notice of emergency rules, other than those of educational units or units of government with jurisdiction in only one county or a part thereof, shall be published in the first available issue of the Florida Adminis- trative Weekly. The agency's findings of immediate danger, necessity, and procedural fairness shall be judicially reviewable.

1. Rules pertaining to the public health, safety, or welfare shall include, but not be limited to, those rules pertaining to perish- able agricultural commodities.

2. An emergency rule adopted under this subsection may not be effective for a period longer than 90 days and shall not be renewable. However, the agency may take identical action by normal rulemaking procedures.

3. Subject to applicable constitutional and statutory provisions, an emergency rule becomes effective immediately on filing, or at a date less than 20 days thereafter if

specified in the rule, if the adopting agency finds that such effective date is necessary because of immediate danger to the public health, safety, or welfare.

The above-statutory provision provides that if an "agency" finds that an immediate danger to the public health, safety, or wel- fare requires emergency action, the "agency" may adopt any rule necessitated thereby. It is thus clear that the adoption of an emergency rule necessarily must be preceded by the requisite finding by the agency in question of the necessity of such emergency action. Here, the pertinent agency, which is the Board of Hearing Aid Specialists, did not make such a finding or otherwise approve the adoption of

the rule prior to its purported promulgation, and, therefore, it follows that the rule is null and void. The "harmless error" doctrine is deemed inapplicable under such circumstances. The Board's later action in approving a recommendation to promulgate the rule cannot, even if intended, serve to retroactively validate the prior, unauthorized actions of others.

In view of the foregoing, it is unncesssary to address the question of whether the purported emergency rule was justified in that an immediate danger to the public health, safety, or welfare required such emergency action.

It is therefore ORDERED:

Emergency Rule 21JJ ER83-7 constitutes an invalid exercise of delegated legislative authority.

DONE AND ENTERED this 5th day of December, 1983, at Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 5th day of December, 1983.

COPIES FURNISHED:

George L. Waas, Esquire Slepin, Slepin, Lambert & Waas 1114 East Park Avenue Tallahassee, Florida 32301

Marcella Flanagan, Executive Director Board of Hearing Aid Specialists Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Randall A. Holland, Esquire Assistant Attorney General Department of Legal Affairs 1601 The Capitol

Tallahassee, Florida 32301

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Capitol, Room 1802 Tallahassee, Florida 32301

Carroll Webb, Executive Director Joint Administrative Procedures

Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 83-003331RX

Orders for Case No: 83-003331RX