STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD McGOHAN, )

)

Petitioner, )

)

v. ) CASE NO. 78-1354

)

STATE OF FLORIDA, ) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on September 7, 1978, in Largo, Florida.

APPEARANCES

For Petitioner: Richard M. McGohan

8001 North Dale Mabry Tampa, Florida 33614

For Respondent: Barbara McPherson, Esquire

DHRS District V Legal Counsel Post Office Box 5046 Clearwater, Florida 33518

The Petitioner, Richard M. McGohan, filed a written request dated July 10, 1979, with Respondent seeking to prove his rehabilitation pursuant to Section 468.134, Florida Statutes, as amended, in order to take an examination to qualify to fit and sell hearing aids in the State of Florida. Thereafter, in accordant with the provisions of Section 120.57(1)(b)(3), Florida Statutes, the Department of Health and Rehabilitative Services ("HRS") requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct the hearing. The final hearing was scheduled by notice dated August 21, 1978.

At the final hearing, Petitioner testified in his own behalf, and also called Ray Black as a witness. Respondent called Thomas D. Eliezer as its witness. Various documents were offered and received into evidence as Hearing Officer's Exhibits 1, 2, 3, 4 and 5.

FINDINGS OF FACT

1. Until August 24, 1974, Petitioner was holder of Certificate of Registration No. 173-06-68, and Renewal Certificate No. 466, which authorized him to act as a hearing aid fitter and salesman in the State of Florida. In 1974, as a result of investigations and conferences conducted by representatives

   of HRS, it was determined that Petitioner had falsified his application for the above referenced licenses in 1968 when he failed to reveal that in 1955 he had been arrested and convicted of armed robbery, and had served one year in confinement for that offese. Petitioner was duly served with notice (Hearing Officer's Exhibit #3) that proceedings had been commenced to revoke his license to fit and sell hearing aids.

   
   

2. In the course of proceedings to revoke his license, Petitioner and HRS entered into a Consent Order (Hearing Officer's Exhibit #1) dated March 19, 1974. In that order, Petitioner agreed to a suspension of his license for a period commencing February 1, 1974, and ending May 2, 1974, and further agreed that thereafter he would be "on a period of supervision for a five-year period. The conditions of this "supervisory period were that Petitioner would submit quarterly reports to HRS containing copies of all contracts for hearing aids sold by him in the State of Florida, the name and address of his employer, and Petitioner's residence address. Under the terms of the Consent Order, any failure by Petitioner to comply with the terms of the agreement constituted grounds for cancellation of his license.

   
   

3. Petitioner failed to file the necessary report due on August 1, 1974, with HRS, and, on August 21, 1974, HRS served a Notice of Revocation (Hearing Officers Exhibit #2) advising him that his license had been cancelled for noncompliance with the Consent Order.

   
   

4. At the time Petitioner's initial report was due under the terms of the Consent Order he had left Florida to seek other employment in California. At the time of the entry of the Consent Order, Petitioner was employed by Lunex, Inc. in St. Petersburg. He left that position shortly after entry of the order, and was unemployed for a period of approximately six months. Since Petitioner was unemployed, and had made no sales of hearing aids during the period covered by the report which was to have been filed August 1, 1974, his only technical violation of the Consent Order was failure to report his residence address to HRS. Even so, when the August 1, 1974, report became due, Petitioner had no permanent residence address in Florida or elsewhere in that he was actively engaged in seeking employment, both in Florida and in California.

   
   

5. Petitioner is now a legal resident of the State of Florida, and has had over ten years experience in the fitting and selling of hearing aids. He is presently employed by Ray Black, Inc., a company qualified to engage in the fitting and selling of hearing aids in Florida. Since his license was revoked in 1974, Petitioners's activities with his present employer are necessarily limited to hiring and training hearing aid salesmen. Ray Black, Inc. is an established hearing aid business, open during normal business hours with a permanent business address at 8001 North Dale Mabry, Tampa, Florida. A representative of Petitioner's current employer testified that his work had been very satisfactory since joining Ray Black, Inc. in March, 1978.

   
   

6. Petitioner is now 42 years old. The reasons for the initial revocation of his license were his failure to disclose an arrest and conviction for armed robbery which occurred when he was 18 years old, and his subsequent failure to abide by the terms of the Consent Order (Hearing Officer's Exhibit #1). There has been no evidence of any violation of the laws of this or any other state since his conviction in 1955, and his failure to disclose that conviction in 1968. Neither is there any evidence that Petitioner''s performance as a fitter and seller of hearing aids prior to revocation of his license, and as a teacher of salesmen since that time has been less than satisfactory.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this cause. Sections 120.57(1), 120.60, Florida Statutes.

8. Section 468.134(6) Florida Statutes, as amended, provides that: Any registrant whose certificate of regis-

   tration has been revoked, but who, pursuant

   to a hearing under chapter 120, has successfully proven rehabilitation and who is otherwise qualified as provided in this part, may apply to take the qualifying examination,and, upon successfully passing

   the examination, shall be granted a certificate of registration.

   
   

9. Petitioner's demonstration that he has violated no laws since his arrest and conviction for armed robbery in 1955 and his failure to disclose that fact in 1968, together with his explanation of the extenuating circumstances surrounding his failure to comply with the 1974 Consent Order and the absence of any complaints regarding his performance as a fitter and seller of hearing aids in Florida from 1966 through 1974 constitute sufficient proof of rehabilitation under Section 468.13(6), Florida Statutes, to allow him to apply for and take the qualifying examination provided for in Chapter 468, Florida Statutes.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That Petitioner be allowed to apply for and take the examination provided for in Chapter 468, Florida Statutes, to attempt to qualify as a fitter and seller of hearing aids.

DONE and ORDERED this 15th day of September, 1978.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building

MAILING ADDRESS: Room 530,

Carlton Building Tallahassee, Florida 32304 904/488-9675

COPIES FURNISHED:

Mr. Richard McGohan 2019 Anata Dr.

Zephyrhills, Florida 33599

Barbara McPherson, Esquire DHRS District V Legal Counsel

P.O. Box 5046

Clearwater, Florida 33518

Docket for Case No: 78-001354

Orders for Case No: 78-001354