STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRY A. SMITH, )

)

Petitioner, )

)

vs. ) Case No. 98-4147

)

DEPARTMENT OF HEALTH, )

BOARD OF HEARING AID )

SPECIALISTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by telephone in Tallahassee, Florida, with the parties, witnesses, attorneys, and court reporter in Naples, Florida, on January 27, 1999.

APPEARANCES

For Petitioner: E. Raymond Shope, Attorney

1404 Goodlette Road, North Naples, Florida 34102

For Respondent: Donna Erlich

Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue is whether Respondent lawfully denied Petitioner's application to sit for the September 1997 hearing aid specialists' examination.

PRELIMINARY STATEMENT

By Application dated June 10, 1997, Petitioner requested a license as a hearing aid specialist. By Order filed

September 24, 1997, Respondent denied the application. Petitioner requested a hearing.

At the hearing, Petitioner called two witnesses and offered into evidence nine exhibits. Respondent called no witnesses and offered into evidence seven exhibits. All exhibits were admitted.

The court reporter filed the Transcript on February 22, 1999.

FINDINGS OF FACT

1. By Application dated October 31, 1996, Petitioner requested a license as a hearing aid specialist.

2. The 1996 application answers no to questions asking if Petitioner ever had a hearing-aid "license" disciplined or application denied by another state. The application leaves blank a question asking for the identification of the states in which the applicant is or has been "licensed" to dispense hearing aids.

3. Based on the information contained in the 1996 application, Respondent approved the application, on November 8, 1996, so that Petitioner could take the laws and rules examination on January 10, 1997. Due to past experience, this was the only part of the examination that he was required to take in order to obtain a Florida license.

4. Subsequently, Respondent learned that Illinois had revoked a hearing aid specialist certificate held by Petitioner. Respondent's board members discussed this issue with Petitioner at the Board Meeting of January 31, 1997. After a full discussion of he facts, the Respondent's board members decided not to deny Petitioner's 1996 application, but to issue a probationary license, if he passed the laws and rules examination.

5. The Board's favorable decision was made in the presence of Petitioner and confirmed by letter to him dated March 12, 1997. The letter states in part:

   The Board met on January 31, 1997 and re- considered your application for examination and licensure as a hearing aid specialist.

   
   

   After discussion the Board voted to allow you to take the examination and gave approval for licensure pending a passing score on the examination. They also as a condition for licensure voted for one (1) year of probation once you become licensed and for you to [in]cur any cost involved in this issue.

   
   

6. Although unknown by all parties at the January 31 Board Meeting, Petitioner had failed the January 10 examination, as he was informed by letter dated February 17, 1997.

7. By Application dated June 10, 1997, Petitioner again requested a license as a hearing aid specialist. This 1997 application is the subject of the present case.

8. The 1997 application states that Illinois had revoked his license to dispense hearing aids and, rather than providing

   the requested details, states, "in file." The 1997 application adds no additional information in response to the question asking whether other states have disciplined Petitioner's licenses or denied his applications to dispense hearing aids.

9. However, by letter dated February 20, 1997, Colorado had denied Petitioner's application for a "registration" to sell hearing aids, and Petitioner had retained an attorney to contest that decision.

10. Petitioner claims that a material distinction exists between licenses, on the one hand, and registrations or certificates, on the other hand. His contention is that Respondent's application form inquires only about licenses and not registrations or certificates. However, Petitioner understood from his past dealings with the Board that they viewed his history in Illinois as material, and the Illinois final and recommended orders revoke Petitioner's "certification," not his "license."

11. By Order filed September 24, 1997, Respondent denied the 1997 application because of the discipline in another state, in violation of Section 484.056(1)(c), Florida Statutes, and misrepresentations in the application, in violation of Section 484.056(1)(b), Florida Statutes.

12. By Amended Order filed August 4, 1998, Respondent added two reasons for denial. First, Petitioner was convicted of a crime related to the practice of dispensing hearing aids or the

    ability to practice dispensing hearing aids, in violation of Section 484.056(1)(d), Florida Statutes. Second, Petitioner did not meet the requirement of good moral character, in violation of Section 484.045(1)(b), Florida Statutes.

13. Petitioner has pleaded no contest three times to an attempt to purchase a controlled substance or possession of a controlled substance--twice in 1995 and once in 1998. Each time, the court withheld adjudication and sentenced him to probation. In December 1997, Petitioner was arrested for resisting arrest, obstructing an officer without violence, and fleeing and attempting to elude the police. He pleaded no contest and the court withheld adjudication and fined him $250.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

15. Petitioner bears the burden of proving his entitlement to sit for the laws and rules examination. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

16. Section 484.056(2)(a)1 authorizes Respondent to deny an application for licensure for any violation of Section 484.056(1).

17. Section 484.056(1) prohibits, among other things:

    
    

    1. Attempting to procure a license to dispense hearing aids by bribery, by

       fraudulent misrepresentations, or through an error of the department or the board.

    2. Having a license to dispense hearing aids revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country.

    3. Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of dispensing hearing aids or the ability to practice dispensing hearing aids, including violations of any federal laws or regulations regarding hearing aids.

18. Additionally, Section 484.045(1)(b) requires that applicants possess "good moral character" prior to being allowed to sit for the examination for licensure to dispense hearing aids.

19. Petitioner's failure to disclose the Colorado action against his license is particularly egregious, given Respondent's willingness to overlook omissions from the first application. It is impossible to credit Petitioner's argument that he viewed Colorado as a certification jurisdiction, not a licensing jurisdiction; therefore, he felt that he did not need to disclose this matter on his 1997 application. He had already seen how Respondent treated his problems in Illinois, which is also a certification jurisdiction. On the basis of this misrepresentation in the application, Respondent was justified in denying the application. Together with the deceptive failure to disclose the Colorado action on the application, the criminal

activity also constitutes independent grounds for denial for the failure to maintain good moral character.

RECOMMENDATION

It is

RECOMMENDED that the Board of Hearing Aid Specialists deny Petitioner's application for licensure.

DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999.

COPIES FURNISHED:

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

Pete Peterson, General Counsel Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

Joe Baker, Executive Director Board of Hearing Aid Specialists Department of Health

1940 North Monroe Street Tallahassee, Florida 32399-0750

E. Raymond Shope, Attorney 1404 Goodlette Road, North Naples, Florida 34102

Donna Erlich

Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-004147

Orders for Case No: 98-004147