STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-519

)

MARTIN K. DONALDSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on September 4, 1981, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner Robert P. Daniti, Esquire

Licensure and Certification Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 308 Tallahassee, Florida 32301

For Respondent George L. Waas, Esquire

SLEPIN SLEPIN LAMBERT & WAAS

1114 East Park Avenue Tallahassee, Florida 32301

The issue presented in this case is whether Respondent Martin K. Donaldson's license to fit and sell hearing aids should be revoked, suspended or other disciplinary action imposed for permitting an unlicensed person to fit and sell hearing aids as alleged in the Administrative Complaint filed March 2, 1981.

At the hearing Petitioner's Exhibits 1, 2, 3, 4, 5, 5A-C, 6, 6A-H, 7, 8,

8A-D, 9, 10, 11, 12, and 13 were offered into evidence. Objections to Petitioner's Exhibits 1 and 9 were sustained and the remaining exhibits were admitted. Ralph Gray, Health Program Specialist III and Eleanor Blamer, Administrator of the Petitioner's Office of Licensure and Certification, testified for the Petitioner. Respondent's Exhibit 1 was offered and admitted into evidence.

At the request of the Respondent, official recognition was taken of the following documents: (1) Petitioner's Motion to Dismiss Petition in Donaldson

v. HRS, DOAH Case No. 81-63OR, (2) Revised Delegation of Authority dated November 30, 1978, from Oliver Boorde to Joe Dowless, (3) trip reports of Ralph

1. Gray, August 19-22 and September 3-5 and 15-18, 1980, and (4) orders in the cases of Ralph Heller, William L. Hester, Wynn E. Walters, George Selis and George H. Poirier III. Petitioner requested and official recognition was taken of Chapter 10D-48, Florida Administrative Code, and a final order dated January 26, 1981, in Department of Health and Rehabilitative Services v. Block, Case Nos. 80-1021 and 80-2007.

   
   

   Proposed Findings of Fact and Conclusions of Law were filed by the parties.

   Those findings not included in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence or were considered immaterial to the results reached.

   
   

   PRELIMINARY STATEMENT

   
   

   By letter dated November 7, 1980, the Department notified Respondent Donaldson of its intent to revoke his license to fit and sell hearing aids. The Respondent timely filed a written response and requested an informal conference. An informal conference was held on January 23, 1981, and the Respondent appeared through counsel.

   
   

   Following the informal conference, the Department filed an Administrative Complaint dated March 2, 1981, which sought to revoke the Respondent's license in that he allegedly allowed an unregistered person to fit and sell hearing aids from October 1, 1979 to June 15, 1980, knowing that the person allegedly fitting and selling hearing aids had failed the qualifying examination two times and was neither eligible nor licensed to perform such activities.

   
   

   On March 27, 1981, Respondent filed a Motion to Strike or Dismiss the Administrative Complaint and on April 21, 1981, a Supplemental Motion to Dismiss. On April 15, 1981, the case was stayed in order to complete discovery for purposes of all pending motions. Following a hearing on the Motions to Dismiss, an order was entered denying the Motions for lack of a factual predicate in the record. On August 17, 1981, the Motions to Dismiss were renewed. On August 20, 1981, the Respondent moved for a protective order from a subpoena which directed the Respondent to produce certain documents at the final hearing. The Hearing Officer entered an Order on August 31, 1981 requiring the Respondent to furnish the Hearing Officer the records requested in the subpoena on or before September 1, 1981, for an in camera inspection, but did not order the Respondent to testify at the final hearing. The Respondent failed to produce the records for inspection as ordered and the case proceeded to final hearing.

   
   

   RESPONDENT'S MOTION TO STRIKE OR DISMISS ADMINISTRATIVE COMPLAINT

   
   

   At the close of the hearing, the Respondent renewed his Motions to Dismiss or Strike which were previously filed in this case and denied by the Hearing Officer for lack of a record foundation on which to determine the validity of the matters alleged.

   The Respondent asserted that the Department committed numerous procedural errors during the course of its investigation of the Respondent including, (1) failing to inform him of his constitutional and statutory right to remain silent and right to counsel, (2) failing to comply with Section 120.60(6), Florida Statutes, (3) failing to follow prior agency practice in seeking revocation of his license, (4) failing to comply with Section 120.62, Florida Statutes, (5) failing to properly execute the administrative complaint by permitting an individual without delegated authority to issue the complaint, (6) failing to file the administrative complaint within one year as required by Section 775.12(2)(d), Florida Statutes and (7) failing to refuse to renew the Respondent's license during the pendency of these proceedings.

   
   

   Additionally, the Respondent requested that the Hearing Officer order the Department to make certain documents available to the Respondent following the entry of the Recommended Order.

   
   

   1. The Respondent's Constitutional and Statutory Right To Remain Silent and Right To Counsel

      
      

      Donaldson has asserted throughout this proceeding that the Federal and State Constitution require the Department to inform a licensee of a constitutional right to remain silent during the course of an agency investigation and the failure to so inform a licensee requires dismissal of an Administrative Complaint.

      
      

      In the instant case the Respondent did not testify at the final hearing and did not produce documents as required by a subpoena issued by the Hearing Officer. Additionally, the Hearing Officer sustained an objection to Petitioner's Exhibit 12, a letter from Respondent's counsel to the Department concerning the Respondent's activities, and admitted the documents solely for purposes of establishing the fact that the letter was sent and not the facts asserted therein. In sum there is no evidence presently in the record in this case that the Respondent has been required to testify against himself.

      
      

      The Respondent's argument that Spevack v. Klein, 385 U.S. 511 (1967) and State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla.

      1973) require dismissal of the complaint is unpersuasive. Both Spevack and Vining stand for the proposition that one should not be penalized for choosing to exercise the right to remain silent. The Respondent, however, has not been penalized in this proceeding for exercising his privilege against self- incrimination and no documents are contained in the record in which the Respondent, either directly or indirectly, was compelled to be a witness against himself.

      
      

      Regarding the Respondent's assertion that a licensee has a right to be informed of the right to remain silent and have counsel present during the investigative phase of a license revocation proceeding, no case law in Florida has been cited which places such a duty on government agencies.

      
      

      Section 120.62(2), Florida Statutes does not place an affirmative duty on an agency to inform licensees of its provisions. Pursuant to this section, a person who appears before a Hearing Officer or agency in any investigation or proceeding has the statutory right to be accompanied and advised by counsel or other qualified representative at his own expense and nothing more.

      
      

   2. The Respondent's Right to Hearing Pursuant To Section 120.60(6), Florida Statutes

      Section 120.60(6), Florida Statutes requires that any agency seeking to discipline a licensee must prior to the filing of an administrative complaint afford the licensee a fair opportunity to show that he has complied with all the lawful requirements for the retention of his license. The record establishes that the Department followed this procedure in this case and a pre-filing conference was held at which time the Respondent was given the opportunity through counsel to inform the Department of information which would refute the charges in the complaint and conclusively demonstrate his innocence. Pilcher v. Peeples, 402 So.2d 1290, 1292 (Fla. 5th DCA 1981). The final probable cause determination was made after a review of the informal conference and prior to the ailing of the administrative complaint. It is concluded that the Department followed the requirements of Section 120.60(6), Florida Statutes as construed in Pilcher. See also Sheppard, Chavers v. Florida Real Estate Commission, 384 So.2d 963 (Fla. 1st DCA 1980), and Florida Real Estate Commission v. Frost, 373 So.2d 939 (Fla. 4th DCA 1979).

      
      

   3. The Department's Decision To Revoke Contravenes Prior Agency Policy and Practice

      
      

      The position urged by the Department in this case has been that revocation is the appropriate penalty if the allegations against the Respondent are found to be supported by a preponderance of competent, substantial evidence. The Respondent argues that by seeking revocation of a license for a first and singular offense under Section 468.130(2), Florida Statutes, the Department has deviated from a non-rule policy that such conduct does not justify the maximum penalty of revocation of a license.

      
      

      During the course of this proceeding representatives of the Department stated that although they believed revocation was the appropriate penalty in this case, they did not intend to nor could they limit the options available to the Hearing Officer in regard to a possible penalty if the allegations in the administrative complaint were found to be supported by the record. It must be presumed that the Department will act fairly and responsibly in this case and give due consideration to its prior agency precedents as well as the recommendation of the independent and objective fact finder, the Hearing Officer. Nothing in the record indicates that the Department has conclusively determined that the Respondent's license should be revoked or that a recommendation of a penalty less than revocation by the Hearing Officer will be disregarded.

      
      

   4. The Department's Failure to Follow Section 120.62, Florida Statutes

      
      

      The Respondent has asserted that the Department violated Section 120.62, Florida Statutes since it has no statutory authority to investigate complaints against hearing aid fitters and sellers. According to the Respondent, pursuant to Section 468.123(11), Florida Statutes, the Department's powers are limited to investigating persons making application for licensure as a hearing aid fitter and seller and once a person is licensed, the Department has no authority to investigate complaints against such licensees. Such a construction of Chapter 468, Part II, Florida Statutes, renders the penalty provisions contained in Chapter 468, which unquestionably apply to all licensees, meaningless. Under such circumstances, the power to impose sanctions against a licensee by necessary implication includes the authority to investigate to ascertain if a violation has occurred. Compare State Board of Education v. Nelson, 372 So.2d

      114 (Fla. 1st DCA 1979).

      
      

      The investigation and inspection of a licensee's premises, see Section 468.123(10), Florida Statutes, are authorized pursuant to Chapter 468, Part II, Florida Statutes, and therefore, the requirements of Section 120.62(1), Florida Statutes were met in this case.

      
      

   5. The Execution of the Administrative Complaint

      
      

      Pursuant to Section 20.05(1)(a), Florida Statutes, an agency head has the authority to delegate the execution of any power, duty or function vested in his Department to assistants and deputies he designates from time to time, unless the head of the Department is specifically required by law to perform the duty without delegation. The authority to seek administrative sanctions in cases involving Chapter 468, Part II, Florida Statutes is the responsibility of the Director of the Office of Licensure and Certification. The delegation has been made a part of the job and position description of the Director. The delegation has not been given to a particular individual but rather vests in whomever is filling the position. As the Petitioner notes, there is no prescribed form or format for delegations of authority pursuant to Sections 20.05 and 468.129, Florida Statutes and Chapters 12 and 28, Florida Administrative Code.

      
      

      Moreover, the filing of an administrative complaint is not final agency action which requires a determination by an agency head. See and compare AGO 075-306 which authorizes the Governor and Cabinet, as head of the Department of Revenue, to delegate final agency action to the Executive Director of the Department pursuant to Section 20.05(1)(b), Florida Statutes. While it can be argued that the delegation of authority by job description is an unusual method of delegation, no authority has been cited to demonstrate that it is prohibited by law.

      
      

   6. The Applicability Of Section 775.12(2)(d), Florida Statutes To License Revocation Proceedings

      
      

      Section 468.138, Florida Statutes provides that any violation of Part II, Chapter 468, is a misdemeanor of the second degree. Section 775.12(2)(d), Florida Statutes requires a prosecution for a second degree misdemeanor to be commenced within one year from the time it is committed. The Respondent argues that since license revocation proceedings are penal in nature, Section 775.12(2)(d), Florida Statutes is applicable to the instant case through the operation of Section 468.138, Florida Statutes and requires that all charges against the Respondent prior to October 1, 1979, be dismissed.

      
      

      Chapter 468, Part II is a dual statute containing civil as well as criminal provisions. The fact that the statute contains a criminal provision does not make the entire statute penal. See Board of Public Instruction of Broward County v. Doran, 224 So.2d 693, 699 (Fla. 1969). License revocation proceedings are neither criminal nor civil proceedings. As a general rule, civil or criminal statutes of limitations are inapplicable to administrative license revocation proceedings in the absence of specific legislative authorization.

      See 2 Am Jur.2d, Administrative Law, at Section 323 and Stone v. Board of Examiners and Registrars, 126 A 2d 157, 159 at n.4, (Md Ct. App. 1956).

   7. Petitioner's Renewal of Respondent's License

Respondent's final argument is based on the Department's renewal of Donaldson's license while the instant proceedings were pending. The Department renewed the license in order to permit the Respondent to lawfully operate an ongoing business while administrative charges were decided. Under such circumstances, the renewal did not constitute an implied withdrawal of the administrative complaint.

The Respondent's request for an order requiring the Petitioner to make certain documents available prior to the issuance of a final order is denied. The Hearing Officer has no jurisdiction to order an agency to produce records or documents following the entry of a Recommended Order.

All other pending motions, both oral and written, raised by the parties during this proceeding and in proposed Recommended Orders are hereby denied.

FINDINGS OF FACT

1. The Respondent Martin K. Donaldson is licensed to fit and sell hearing aids in Florida, and operates a hearing aid business in Pinellas Park, Florida under the corporate name, West Coast Hearing Aid Services, Inc.

   
   

2. The Respondent employed Sanders Glass from 1978 until June, 1980, to fit and sell hearing aids.

   
   

3. During his employment, Glass sold more hearing aids than any other employee of Respondent. He averaged approximately ten sales per month and was second only to the Respondent in the number of sales. Evidence of the sales record was posted by the Respondent on a chart in his office where all employees could see and compare their monthly sales totals.

   
   

4. Glass took the State Qualifying Examination for hearing aid fitters and sellers twice while registered as a trainee. He failed the examination in March, 1979 and September, 1979.

   
   

5. The Department notified both the Respondent and Glass by letters dated March 23, 1979 and September 20, 1979, that due to Glass' failure, he could no longer fit or sell heading aids after September 30, 1979. However, the Respondent permitted Glass to continue as an employee after September 30, 1979.

   
   

6. On June 9, 1980, Glass fitted a hearing aid for Sarah Funk of Clearwater, Florida. This hearing aid was delivered by Carl Henzel, an employee of the Respondent, on or about June 30, 1980.

   
   

7. Henzel and Robert Nason worked for the Respondent contemporaneously with Glass. Nason, a trainee, worked from March, 1979, until April 7, 1980. Henzel was a licensed hearing aid dispenser who worked for the Respondent from September, 1979 until August, 1980. Both worked with Glass in the Respondent's office and observed him fitting hearing aids after October 1, 1979.

   
   

8. The Respondent knew of Glass' failures on the qualifying examinations but kept him on to fit and sell hearing aids until he could secure another position.

9. From October 1, 1979 through June 9, 1980, Glass' duties under the Respondent were the same as Henzel's and Nason's and included the fitting and selling of hearing aids.

   
   

10. Both Nason and Henzel subsequently left the employ of Respondent and have sought counsel to secure commissions allegedly due them for selling hearing aids while in the employ of the Respondent.

    
    

11. Nason, the complaining party in this case, remained in Respondent's employ until April 7, 1980, because he needed the Respondent's sponsorship to obtain his license.

    
    

12. The complaint which was filed against the Respondent by Nason was part of an effort to secure disputed commissions and avoid a non-competition agreement which was signed with the Respondent and which the Respondent through counsel had indicated he intended to enforce.

    
    

13. No evidence was presented that any consumer had complained concerning Glass' activities while in the employ of the Respondent or suffered any injury as a result of Glass' or the Respondent's actions.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this dispute.

    
    

15. The Respondent is charged with violating Section 468.130(2), Florida Statutes, (1979), by employing Sanders Glass from October, 1979 through June 9, 1980, with knowledge that Glass was unlicensed and unregistered and could not act as a trainee apprentice pursuant to Chapter 468, Part II, Florida Statutes after September 30, 1979.

    
    

16. Section 468.130(2), Florida Statutes (1979) defines "unethical conduct" to include, inter alia,

    
    

    ... [employing directly or indirectly any suspended or unregistered person to perform any work covered by this part....

    
    

    Section 468.134(1), Florida Statutes, prohibits a person from selling or fitting hearing aids in this state unless such person has complied with the requirements of Chapter 468, as to registration and licensing.

    
    

17. By knowingly employing Glass from October, 1979 through June 9, 1980, and permitting him to fit and sell hearing aids during this period, the Respondent violated Section 468.130(2), Florida Statutes. See also Sections 468.122(1)(e)(1)(2), Florida Statutes, defining "selling" and "fitting" of hearing aids for purposes of Chapter 468, Part II, Florida Statutes.

    
    

18. In regard to the appropriate penalty to be imposed in this case, counsel have furnished the Hearing Officer with prior orders of the Department concerning licensees who were subject to disciplinary action for violations of Chapter 468, Part II, Florida Statutes.

19. In each case in which a license was revoked, an element of fraud, repeated conduct violative of law or conduct directly harmful to a consumer was present. Of those cases in which a license was suspended, the licensee either sold used or rebuilt hearing aids as new, used misleading advertising, failed to give proper guarantees and/or receipts, and/or failed to refer a client to a physician or attempted to diagnose a medical condition. One case in which a licensee allowed an unregistered employee to fit and sell hearing aids ultimately resulted in a ninety-day suspension. See Poirier v. Department of Health and Rehabilitative Services, 351 So.2d 50 (Fla. 1st DCA 1977). However, Poirier was also found to have sold used hearing aids as new and failed to give proper receipts to all his customers.

    
    

20. In the instant case, no element of fraud or harm to a consumer was alleged or proven. Instead, the complaint was initiated following a disagreement between the Respondent and a former employee over the existence of a one year non-competition clause in an employment contract allegedly executed by the employee and conflicting positions between the two concerning commissions due on sales which occurred from September 15, 1980 through November 10, 1980. Under these circumstances, revocation is an extreme and inappropriate penalty. Compare State of Florida, Department of Health and Rehabilitative Services v. Block, DOAH Case Nos. 80-1021 and 80-2007, final order entered January 26, 1981 in which a license was revoked for repeated violations which occurred over a substantial period of time coupled with an implied inability to rehabilitate the licensee. The admissible evidence established only one specific instance of Glass fitting and selling a hearing aid and testing a consumer when he was unlicensed; significantly, no evidence was introduced that this consumer or any other consumer had experienced problems with their hearing aids fitted or sold by Glass. See Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). By law, the range of available penalties in this case is limited to revocation, suspension and/or an administrative fine not to exceed 500 per day for each occurrence. See Sections 468.123(6) and 468.129, Florida Statutes.

RECOMMENDATION

Accordingly, it is REC0MMENDED:

That a final order be entered suspending the certificate of registration of Respondent Martin K. Donaldson for a period of ninety days and imposing a $500 administrative fine.

DONE and ORDERED this 9th day of February, 1982, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1982.

COPIES FURNISHED:

Robert P. Daniti, Esquire Licensure and Certification Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 308 Tallahassee, Florida 32301

George L. Waas, Esquire SLEPIN SLEPIN LAMBERT & WAAS

1114 East Park Avenue Tallahassee, Florida 32301

Docket for Case No: 81-000519

Orders for Case No: 81-000519