Department of Professional Regulation, Bd. of Dentistry v. Florida Dental Hygienist Ass'n, Inc., 90-3401

• Decision Date: 14 January 1993
• Docket Number: No. 90-3401,90-3401
• Parties: 80 Ed. Law Rep. 1150, 18 Fla. L. Week. D326 DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF DENTISTRY, Appellant, Cross-Appellee, v. FLORIDA DENTAL HYGIENIST ASSOCIATION, INC., Appellee, Cross-Appellant.
• Court: Florida District Court of Appeals

Page 646

612 So.2d 646

80 Ed. Law Rep. 1150, 18 Fla. L. Week. D326

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF DENTISTRY Appellant, Cross-Appellee, v. FLORIDA DENTAL HYGIENIST ASSOCIATION, INC., Appellee Cross-Appellant.

No. 90-3401.

District Court of Appeal of Florida First District.

Jan. 14, 1993.

Robert A. Butterworth, Atty. Gen., Allen R. Grossman, Asst. Atty. Gen., Tallahassee, for appellant.

Paul Watson Lambert, Tallahassee, for appellee.

PER CURIAM.

The Department of Professional Regulation, Board of Dentistry (Board), appeals a final order of a hearing officer of the Division of Administrative Hearings holding invalid two proposed rules promulgated by the Board. The appellee, Florida Dental Hygienist Association, Inc. (hygienists or hygienist association) cross-appeals, asserting error in the hearing officer's ruling that the Board may validly approve schools or colleges by rule, rather than by order. We affirm the issue on cross-appeal without discussion. Finding no error in the hearing officer's ruling that the hygienists have standing to 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 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." Rule 21G-8.004(2), Fla.Admin.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 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. If otherwise interpreted, the hygienists argued, the statute, under which the rules were promulgated, would be unconstitutional as an unlawful delegation of legislative authority, citing Florida State Board of Architecture v. 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. This appeal followed.

The issue of standing on the part of the hygienists was raised below in the Board's motion to dismiss both petitions. For purposes of ruling on the standing issue, the Board agreed the allegations of the hygienists' petitions should be accepted as true, without the necessity for further proof. The hearing officer denied the motions to dismiss, concluding, albeit not without some difficulty, that the hygienist association had standing. The Board contends, as it did below, that the hygienists' petitions and supporting evidence failed to demonstrate the hygienists status as a "substantially affected person," under section 120.54(4)(a), Florida Statutes (1989), as interpreted by the courts. We disagree.

The petitions claimed injury in fact based upon allegations that the proposed amendments would allow graduates of the ADHP or other dental hygiene colleges or schools which do not meet the standards of accreditation of the Commission on Accreditation of the American Dental Association, to sit for examination as licensed dental hygienists, without meeting the minimum educational and training requirements of the Florida Statutes. This, according to the petitions, would immediately dilute the quality of licensed dental hygienists available to practice dental hygiene in the state of Florida. The petitions also allege that the proposed rules would have irremediable effects by allowing less than fully qualified persons to practice dental hygiene in derogation of the legislative purpose and intent of chapter 466, Florida Statutes, to the detriment of the public safety and welfare. It is also alleged that the proposed rule amendments are within the hygienists' "zone of interest" in that it is the purpose of the Florida Dental Hygienist Association to ensure, on behalf of its members, that the quality of dental hygiene practice is maintained in the best public interest, and further, to ensure that persons licensed as dental hygienists meet stated minimal education and training requirements under the applicable law.

The hygienists' brief cites a number of cases in support of its contention that it has standing to maintain the rule challenges. The hearing officer's final order cites and accurately analyzes each of these cases, pointing out the distinguishing features of each, finally concluding that since the cases relied upon by the hygienists do not involve facts that are the same as, or analogous to the facts of the present case, "it is possible that none of them afford a firm basis for reaching a decision on standing in this case." ¹ Nevertheless, the hearing officer concluded that the hygienist association, "an association of dental hygienists, one purpose of which is to maintain the standards of the profession, has standing when the challenged proposed rules will open its profession to persons whom it considers to be unqualified or less qualified."

Although the hygienists' petition alleges injury-in-fact, the petitions do not specifically allege a prospective or threatened economic injury. The evidence establishes that dental hygienists are employed almost exclusively by dentists, and are subject to their control attendant to such employment. The association argues that the licensing of lesser qualified individuals lowers the standing of dental hygiene practice in Florida, thereby producing a lesser-qualified pool of competitors. Accordingly, the hygienist association contends, the employment of dental hygienists with higher qualifications will be adversely affected. The hygienist association points to no evidence in the record establishing to what extent dentists, given the choice, will opt to employ an ADHP-trained dental hygienist in preference to an arguably more highly trained and educated member of the hygienist association. That some dentists will so choose appears likely, however, given the enthusiastic endorsement of the ADHP by the dentists who testified in favor of the rules. It requires no flight of imagination to reason that if the rule would produce a flood of lesser-trained hygienists, presumably available for employment for less compensation, this would have an economic impact on the existing pool of more highly-trained individuals.

The issue, so far as standing is concerned, therefore may be viewed as whether, considered in the light most favorable to the hygienist association, the petitions' references to the effect of the proposed rules as "diluting the quality of licensed dental hygienists available," and "allowing less than fully qualified persons [to] practice dental hygiene," in derogation of the Florida Statutes and "detrimental the public safety and welfare," coupled with the allegations concerning the association's purpose to ensure that persons licensed as dental hygienists meet the educational and training requirements established by law, are sufficient to satisfy the statutory requirement of stating "facts sufficient to show that the person challenging the proposed rule would be substantially affected by it." Section 120.54(4)(b), Florida Statutes. These allegations suggest, however vaguely, that the hygienists' concern is motivated by its desire to lessen competition for its members in the field. Additionally when considered in context, they also suggest that by allowing licensure, as dental hygienists, persons who do not meet the educational and training standards established by law, the rule has the effect of depriving the association's members of the value of their investment in the additional education and training they acquired, under existing law, in order to become licensed. The issue of standing in this case, as the hearing officer obviously recognized, is not easily...