vs. ) CASE NO. 84-2332RP
Respondent. )
This matter came on for hearing in Tallahassee, Florida, on August 9, 1984, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:
For Petitioner: George L. Waas, Esquire
For Respondent: Randall A. Holland, Esquire
This case arose on Petitioner's challenge to Respondent's proposed amendment of Rule 21JJ-8.01(3), Florida Administrative Code (F.A.C.).
Petitioner contends that the proposed rule amendment is an invalid exercise of delegated legislative authority. See Subsection 120.54(4), Florida Statutes (1983) (F.S.).
The parties submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.
Petitioner is a non-profit corporation registered in Florida. It is a professional association whose membership constitutes a majority of licensed Florida hearing aid dispensers.
Respondent regulates the dispensing of hearing aids (and thus Petitioner's members) pursuant to Chapter 484, Part II, F.S. Under Section 484.044, F.S., Respondent is required to establish an apprenticeship program by rule.
Rule 21JJ-8.01, F.A.C., established such a program. Subsection (3) of this rule now provides:
(3) Direct Supervision: A relationship in which the sponsor is responsible for all work being done and gives final approval to work performed by the trainee.
The proposed amendment, which is herein challenged, would add the following language to the above provision:
The sponsor or designee must be physically present at the time a hearing aid is delivered to the client.
Rule 21JJ-8.03, F.A.C., divides the six month training program into Stages I and II, each of three month's duration. The functions of dispensing hearing aids and counseling clients may be performed only by Stage II (advanced) trainees.
Respondent considers the installation and delivery of the hearing aid to be the most critical step in the process of hearing aid dispensing, and believes it is necessary for the sponsor or another licensed individual to be present. Petitioner argues that this is unnecessary if the apprentice has been properly trained, and that the decision of the sponsor to be present or elsewhere should be within the sponsor's discretion.
Both parties called duly qualified expert witnesses who are familiar with the apprenticeship program. All witnesses are currently licensed hearing aid specialists. Petitioner's three witnesses are present or former presidents of its society. Respondent's two witnesses are current members of its beard.
Petitioner points out that under the present rule, even with the proposed amendment, a trainee can interview, test, take ear mold impressions, sell and discuss financing without the sponsor being physically present. Petitioner argues that such steps are as critical as final delivery, and that mandatory sponsor presence at the last stage is not required to protect the public. Further, Petitioner claims that sponsor presence may destroy the confidence of the client who perceives that his fitting must be approved by a third party. Finally, Petitioner contends that the requirement for sponsor presence will prevent him from conducting essential business elsewhere to his economic detriment.
Respondent established that delivery is the last scheduled contact with the client, and is therefore more critical than earlier steps such as testing and taking impressions since any mistake or omission must be detected and corrected at this point. Respondent also established that an improperly fitted hearing aid can cause client dissatisfaction or further damage to the client's hearing.
Respondent noted that 20 percent to 40 percent of applicants fail the hearing aid specialist license examination. Thus, Stage II trainees cannot be
considered qualified and require close supervision. Additionally, Respondent correctly points out that clients who are assigned to trainees should be aware of that fact and therefore should not be surprised by the presence of the sponsor during their fitting, or at any other stage in this process. Finally, the sponsor's presence at the fitting will permit him to observe the trainee's work directly and thereby facilitate instruction.
No study was conducted to determine whether or not the public is being injured by improperly supervised trainees installing hearing aids. Neither has Respondent conducted a detailed economic impact study. The subject of direct supervision and the proposed rule amendment were, however, discussed at Respondent's April 28, 1984, board meeting. Petitioner's members who were present raised objections at that time and pointed out the possible financial detriment of requiring the sponsors or licensed dispensers to be physically present.
Petitioner's assertions of adverse economic impact were not supported by any survey, study or other evidence of a substantial nature. Rather, Petitioner established only that scheduling inconvenience (rather than direct economic loss) could result from adoption of the proposed rule amendment. The requirement for a sponsor to be physically present when the trainee is fitting a client would indeed prevent him from working elsewhere at that precise time. However, it does not follow that a business or financial loss would result from this inconvenience. Finally, it must be recognized that the apprenticeship program is voluntary and participation by licensed hearing aid dispensers is not required. In fact, two of Petitioner's three witnesses do not currently participate in this program.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this proceeding pursuant to Subsection 120.54(4), F.S. Petitioner is a trade association whose membership constitutes a majority of Florida's regulated hearing aid dispensers. Many of these license holders will be substantially affected by the proposed rule amendment. Petitioner therefore has standing to bring this rule challenge on behalf of its members. Florida Home Builders Association v. Dept. of Labor, 412 So. 2d 351 (Fla. 1982).
Respondent's authority to promulgate rules on the hearing aid apprenticeship program is established in Section 484.044, F.S., which provides:
The board shall establish by rule an apprenticeship program not to exceed 12 months in length; and the board is authorized to make such other rules not inconsistent with law as may be necessary to carry out the duties and authority conferred upon the board by this part and as may be necessary to protect the health, safety, and welfare of the public.
The above-quoted provision also delegates authority to promulgate rules which are necessary to protect public health, safety and welfare. Respondent's obligations and authority are further delineated in Section 484.0401, F.S., which provides:
The Legislature recognizes that the dispensing of hearing aids requires particularized knowledge and skill to ensure that the interests of the hearing-impaired public will be adequately served and safely protected. It recognizes that a poorly selected or fitted hearing aid not only will give little satisfaction but may interfere with hearing ability and, therefore, deems it necessary in the interest of the public health and safety to regulate the dispensing of hearing aids in this state. Restrictions on the fitting and selling of hearing aids shall be imposed only to the extent necessary to protect the public from harm and damage, and restrictions shall not be imposed in a manner which will unreasonably affect the competitive market.
The standards for determining the validity of rules proposed or promulgated by State agencies is set forth in the recent case of Dept. of Professional Regulation, Beard of Medical Examiners v. Durrani, So. 2d (Fla. 1st DCA 1984). As stated by the Court:
The well recognized general rule is that agencies are to be accorded wide discretion in the exercise of their lawful rulemaking authority, clearly conferred or fairly implied and consistent with the agencies' general statutory duties. Florida Commission on Human Relations v. Human Development Center, 413 So. 2d 1251 (Fla. 1st DCA 1982). An agency's construction of the statute it administers is entitled to great weight and is not to be overturned unless clearly erroneous. Pan American World Airways, Inc.
v. Florida Public Service Commission, 427 So. 2d 716 (Fla. 1983); Barker v. Board of Medical Examiners, 428 So. 2d 720 (Fla. 1st DCA 1983). Where, as here, the agency's interpretation of a statute has been promulgated in rulemaking proceedings, the validity of such rule must be upheld if it is reasonably related to the purposes of the legislation interpreted and it is not arbitrary and capricious. The burden is upon petitioner in a rule challenge to show by a preponderance of the evidence that the rule or its requirements are arbitrary and capricious. Agrico Chemical Co. v. State,
Dept. of Environmental Regulation, 365 So. 2d 759 (Fla. 1st DCA 1978); Florida Beverage
Corp. v. Wynne, 306 So. 2d 200 (Fla. 1st DCA 1974). Moreover, the agency's interpretation of a statute need not be the sole possible interpretation or even the most desirable one; it need only be within the range of possible interpretations. Department of Health and Rehabilitative Services v. Wright,
439 So. 2d 937 (Fla. 1st DCA 1982). (Ervin, C.J., dissenting); Department of Administration v. Nelson, 424 So. 2d 852 (Fla. 1st DCA 1982); Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So. 2d 238 (Fla. 1st DCA 1981).
. . .
Respondent's proposed rule amendment, measured against the above standards, must be upheld. The purpose of the rule is to protect the health and safety of hearing impaired members of the public who seek the services of licensed hearing aid specialists, by ensuring that a licensed specialist insects and approves the fitting and final delivery of the hearing aid. As such, the purpose of the rule is directly related to the enabling legislation (Section 484.044, F.S., quoted above).
Although Petitioner argues with some persuasiveness that the sponsor is qualified to determine the necessity for his presence in a given situation, and that the decision to be physically present or not should be discretionary. However, as stated by the Court, the agency's interpretation "need not be the sole possible interpretation or even the most desirable one."
Petitioner argues further that it is unreasonable to impose any restrictions on the sale or delivery of hearing aids by its members since such devices are sold by mail in Florida with no restrictions whatsoever. However, Section 484.054, F.S. states:
It is unlawful for any person to offer for sale or distribution hearing aids through the mail . . .
Respondent's ability to enforce this provision across state lines is apparently in doubt. However, the legislative intent to prohibit such sales is clear.
Petitioner further argues that Respondent's economic impact statement is not adequate within the meaning of Subsection 120.54(2)(a), F.S. Respondent concedes that it did not perform a detailed economic analysis, but claims that this omission is harmless error.
These proceedings involve a determination of whether or not the proposed rule is a valid exercise of delegated legislative authority. The fairness of the proceedings in reaching a determination on this issue was not affected by the absence of a comprehensive financial impact statement. The omission is therefore harmless error and is not grounds for holding the proposed rule amendment invalid. See Department of Health and Rehabilitative Services v. Wright, 439 So. 2d 937, 940 (Fla. 1st DCA 1983).
Finally, Petitioner seeks to challenge the proposed rule under the provisions of Subsection 455.211(1), F.S., which provides:
The secretary of the department [of professional regulation] shall have standing to challenge any rule or proposed rule of a board pursuant to ss. 120.54 and 120.56. In addition to challenges for any invalid exercise of delegated legislative authority, the hearing officer, upon such a challenge by the secretary, may declare all or part of a rule or proposed rule invalid if it:
Does not protect the public from any significant and discernible harm or damages;
Unreasonably restricts competition or the availability of professional services in the state or in a significant part of the state; or
Unnecessarily increases the cost of professional services without a corresponding or equivalent public benefit.
Petitioner's arguments that the proposed rule does not meet the above criteria are rejected. Respondent established that an improperly fitted hearing aid could damage client hearing. Further, Petitioner made no showing that the proposed rule would unreasonably restrict competition or unnecessarily increase the cost of professional services. Further, Petitioner lacks the requisite standing to challenge the proposed rule amendment on these additional grounds. Rather, the above authority is legislatively delegated to the Secretary of the Department of Professional Regulation to facilitate his administration of regulatory boards such as the Board of Hearing Aid Specialists. See Sections
20.05 and 20.30, F.S.
Petitioner has failed to establish that Respondent's proposed amendment to Rule 21JJ-8.01(3), F.A.C., constitutes an invalid exercise of delegated legislative authority. Accordingly, the petition is DISMISSED.
DONE and ORDERED this 12th day of September, 1984, in Tallahassee, Florida.
R. T. CARPENTER Hearing Officer
FILED with the Clerk of the Division of Administrative Hearings this 12th day of September, 1984.
George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301
Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301
Randall A. Holland, Esquire Department of Legal Affairs 1601, The Capitol
Ms. Liz Cloud, Chief Administrative Code Bureau Department of State
