STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3343

)

ROBERT L. DEVLIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing on May 6, 1983, in Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: Harold L. Braynon, Esquire

Department of Health and Rehabilitative Services

201 West Broward Boulevard

Ft. Lauderdale, Florida 33301-1885

For Respondent: Welcom H. Watson, Jr., Esquire

Watson, Hubert & Clark Post Office Box 11959

Ft. Lauderdale, Florida 33339 ISSUES

The issues presented for decision herein are whether or not the Respondent, Robert L. Devlin, employed an unregistered person, Phillip C. Kribbs; whether Phillip C. Kribbs, tested, fitted and sold William Jellison a hearing aid on December 3, 1981 and whether Respondent allowed a hearing aid to be sold to William Jellison without providing a receipt containing the brand name, model and serial number of the hearing aid, the signature of the dispenser and other requirements as set forth in Section 486.136(1), Florida Statutes.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the parties pre-hearing stipulation and the entire record compiled herein, I hereby make the following relevant findings of fact.

1. By its Administrative Complaint filed November 5, 1982, Petitioner seeks to suspend the Respondent, Robert L. Devlin, from the right to operate and practice the fitting and selling of hearing aids for a period of thirty days and

   to place his license on probation for a period of one year with the licensee's customer record subject to monthly audit by the Petitioner. Alternatively, Petitioner seeks to impose any other penalty authorized by law.

   
   

2. During times material, Robert L. Devlin, Respondent, was the holder of a Certificate of Registration (number 244-10-68) for the fitting and selling of hearing aids. On December 3, 1981, Respondent was employed by Better Hearing Aid Services located at 2430 East Commercial Boulevard, Ft. Lauderdale, Florida.

   
   

3. William Jellison was tested for a hearing aid on December 3, 1981, at the Ft. Lauderdale location of Better Hearing Aid Services.

   
   

4. Someone in a position of authority accepted fifty dollars ($50.00) cash from William Jellison as a deposit on a hearing aid and gave him a receipt therefor on December 3, 1981. (stipulated facts)

   
   

5. Phillip C. Kribbs 1/ is not licensed to test, fit or sell hearing aids the Petitioner during times material herein.

   
   

6. William F. Jellison visited the offices of Better Hearing Aid Services on December 3, 1981 for the purpose of purchasing a hearing aid mold. Jellison spoke to Kribbs who advised him that he needed a hearing aid test. Kribbs called out certain words and requested Jellison to repeat the words that Kribbs called out. During that testing procedure, the Respondent was present, although he was taking care of other chores in the Better Hearing Aid Services office. Kribbs gave Mr. Jellison a receipt which reflected that it was a new hearing aid to be purchased; a customer discount of one hundred ($100.00) dollars was reflected on that receipt; a cash downpayment of fifty ($50.00) dollars was reflected and a balance due of five hundred forty nine (549.00) dollars was shown as the amount remaining due.

   
   

7. On the following day, Mr. Jellison was curious as to what he could purchase the hearing aid for at another company and determined that he could purchase the same hearing aid at another store for approximately two hundred ($200.00) dollars less. With that knowledge, Mr. Jellison attempted to cancel his purchase of the hearing aid from Better Hearing Aid Services by serving notice of his intent to cancel in the form of a telegram on the offices of Better Hearing Aid Services which was followed that same day by a telephone communique. Mr. Jellison did not take delivery of the hearing aid which he was tested for by Better Hearing Aid Services on December 3, 1981.

   
   

8. Phillip Kribbs was employed as an apprentice by Better Hearing Aid Services during the period June, 1980 through February, 1983. During his employment as an apprentice for Better Hearing Aid Services, part of his duties included giving a "pure tone and word test" Kribbs twice sat for the registration examination and was unsuccessful on both sittings.

   
   

9. Kribbs conducted all of his duties respecting testing under the direction and supervision of the Respondent while employed as an apprentice for Better Hearing Aid Services.

   
   

10. Finally, Kribbs acknowledged tendering Mr. Jellison a receipt for the deposit for a hearing aid which was completely written by him (Petitioner's Exhibit Number 3).

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

    
    

12. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

13. The authority of the Petitioner is derived from Chapter 468, Florida Statutes and Rule Chapter 10D-48, Florida Administrative Code.

    
    

14. Respondent, Robert L. Devlin, is a certified registrant licensed to fit and sell hearing aids pursuant to Chapter 468, Part 2, Florida Statutes and Chapter 10D-48, Florida Administrative Code, and is subject to the disciplinary guides of Chapter 468, Florida Statutes.

    
    

15. Competent and substantial evidence was offered to establish that the Respondent, Robert L. Devlin, employed an unregistered person, Phillip C. Kribbs, who tested and fitted William Jellison for a hearing aid.

    
    

16. Phillip C. Kribbs, having failed to pass the examination for the testing, fitting, and selling of hearing aids on two (2) occasions is ineligible to be admitted, or readmitted, to the apprenticeship program. The apprenticeship program allows a person who has not twice failed the registration exam, to work under the guidance and supervision of a certified registrant who is licensed to fit and sell hearing aids. Based on the above conduct, Respondent violated Section 468.130(2), Florida Statutes.

    
    

17. Section 468.136(1), Florida Statutes, requires that "each person who fits and sells hearing aids shall deliver to each person he supplies with a hearing aid a receipt which shall contain. . . ". (emphasis added) Based on the facts found herein above which reveal that the Respondent did not "supply" a hearing aid to William Jellison, there is no requirement that, in this instance, Respondent comply with the protections contained in Section 468.136(1), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby

RECOMMENDED:

That the Respondent's license for the fitting and selling of hearing aids and his right to operate and practice thereunder be placed on probation for a one (1) year period with the licensee's customer records subject to monthly audit by the Department.

RECOMMENDED this 29th day of September, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL

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 29th day of September, 1983.

ENDNOTE

1/ During times material herein, Kribbs was employed by Respondent Devlin. (Paragraph 8)

COPIES FURNISHED:

Harold L. Braynon, Esquire Department of Health and

Rehabilitative Services

201 West Broward Boulevard

Ft. Lauderdale, Florida 33301

Welcom H. Watson, Jr., Esquire Watson, Hubert & Clark

Post Office Box 11959

Ft. Lauderdale, Florida 33339

Docket for Case No: 82-003343

Orders for Case No: 82-003343