CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1993 WL 5057
...challenge the validity of the proposed rules pursuant to section
120.54(4), Administrative Procedure Act, and that the proposed rules are an invalid exercise of delegated legislative authority, we affirm both as to the appeal and cross-appeal. Under section
466.007(2)(b), Florida Statutes, (1989), a person desiring to be licensed as a dental hygienist may apply to the Department of Professional Regulation to take the licensure examination if, among other things, the person "is a graduate of a de...
...Code, in its existing form, provides: "(2) Only those dental hygiene colleges or schools accredited by the Commission on Dental Accreditation of the American Dental Association or its successor agency are deemed approved by the Board for the purposes of section 466.007(2)(b), F.S." In July 1989, the Board published notice of its intent to amend the rule so that, as *648 amended, the rule would read in part as follows: (2) Dental hygiene or dental colleges or schools accredited by the Commission on Dental Accreditation of the American Dental Association or its successor agency are deemed approved by the Board for the purpose of section 466.007(2)(b), F.S. The Alabama Dental Hygiene Program sponsored by the Alabama Board of Dental Examiners is determined to be a dental hygiene college or school within the meaning of 466.007, F.S., and is hereby approved by the Board. Subsequently, the Board proposed a second rule, an amendment to rule 21G-8.004(3), Fla. Admin. Code, which would establish criteria for approval of a dental hygiene college or school under section 466.007, Florida Statutes. The hygienists filed a petition challenging the proposed amendment designating the Alabama Dental Hygiene Program (ADHP) as an approved dental hygiene college or school within the meaning of section 466.007, and subsequently filed a second rule challenge petition attacking the validity of the proposed amendment setting up criteria to be used by the Board in approving a dental hygiene school or college. The hygienists' attack focused on the contention that although the statute authorized the Board to approve dental hygiene colleges or schools, the legislative intent of section 466.007(2)(b) was to allow Board approval only as to dental hygiene schools or colleges meeting the educational standards of institutions accredited by the Commission on Accreditation of the American Dental Association....
...Wasserman,
377 So.2d 653 (Fla. 1979). The two petitions were consolidated, and after an evidentiary hearing, the hearing officer entered a final order agreeing, in essence, with petitioner's contentions that the proposed rules would modify, enlarge or contravene section
466.007(2)(b), and thus constituted an invalid exercise of delegated legislative authority....
...e in the health care professions, the "zone of interest" component of the standing requirement was satisfied. Florida Medical Association,
426 So.2d at 117. Applying an analysis similar to that used by the court in Florida Medical Association, under section
466.007(2)(b), only hygienists who are graduates of a "dental hygiene college or school" approved by the Board or accredited by the Commission on Accreditation of the American Dental Association or its successor agency are currently eligible for licensure as dental hygienists in Florida....
...Based upon the facts alleged by the hygienists, the truth of which the Board conceded, it logically follows that by allowing previously unqualified persons to enter the field, the proposed *651 rule substantially impacts upon the rights of qualified Florida dental hygienists derived from section 466.007....
...In our view, under the facts presented here, such a result would thwart the purposes of section
120.54(4). We therefore affirm the hearing officer's standing decision. Turning to the merits, the issue may be best brought into focus by first examining the hearing officer's analysis of the controlling statute, section
466.007(2)(b)....
...In addition, the Board would not be constrained to approve only unaccredited schools or colleges that are the equivalent of accredited schools or colleges. The hearing officer next turned to the hygienists' argument, based in part upon the legislative history of section 466.007(2)(b), that the legislature intended to restrict the Board, in its designation of approved institutions under section 466.007(2)(b), to schools or colleges providing traditional post-secondary college education, and more particularly, to schools or colleges that are either accredited by the Commission on Accreditation of the American *653 Dental Association,...
...he Board. See Section 466.37, Fla. Stat. (1955). (e) In 1961, the Legislature made use of the phrase "dental hygiene school or college" in connection with the requirements for licensure. Section 466.37, Fla. Stat. (1961). (f) The current language in Section 466.007(2)(b), specifically the reference to accreditation by the Commission on Accreditation of the American Dental Association or its successor agency, is the result of a 1986 amendment to the statutes....
...Richardson-Greenshields Securities, Inc., supra ; Vildabill [Vildibill] v. Johnson,
492 So.2d 1047 (Fla. 1986); Parker v. State,
406 So.2d 1089 (Fla. 1981); Griffis v. State,
356 So.2d 297 (Fla. 1978). This is one of those cases. Even though the Legislature chose to use the disjunctive "or" in Section
466.007(2)(b), the Legislature also is presumed to know the legislative history and the Wasserman decision....
...lent of schools or colleges approved by the Commission on Accreditation of the American Dental Association. 27. The Board's policy choices in proposing the two proposed rules under challenge in this case go beyond the range of possible choices under Section
466.007(2)(b), as construed in light of the legislative history and the Wasserman decision. Contrast Dept. of Prof. Reg., etc., v. Durrani,
455 So.2d 515, 517 (Fla. 1st DCA 1984). As such, they would modify, enlarge, or contravene Section
466.007(2)(b) and must be invalidated....
...ed in the proposed criteria rule (which are comparable to those for the ADHP) are equivalent to those of the accreditation agencies. With respect to the hearing officer's application of Wasserman, the Board urges that Wasserman does not require that section 466.007(2)(b) be read as requiring the schools or colleges approved by the Board to be equivalent to those accredited by the Dental Accreditation Commission....
...P and similar programs, and the Florida and other accredited school and college programs for dental hygienists. [3] We have determined, after careful review, that the hearing officer's findings that the proposed rules do not meet the requirements of section 466.007(2)(b), Florida Statutes (1989), are supported by competent substantial evidence and therefore must be affirmed....
...In particular, the Board takes issue with the hearing officer's finding that ADHP graduates are not eligible to sit for the National Board of Dental Hygiene examination, which applicants for licensure in Florida must successfully complete within ten years of the date of their application. Section 466.007(2)(c), Florida Statutes....
