vs. ) CASE NO. 86-3773
DANIEL C. THRONEBURG, SR., )
Respondent. )
A final hearing was held in this case on November 18, 1986 in Orlando, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:
Respondent: Daniel C. Throneburg, Sr., pro se 8104 Britt Dr.
At the hearing Petitioner called three witnesses, and Respondent called one witness in addition to testifying on his own behalf. Petitioner introduced six exhibits, and Respondent introduced two exhibits. A transcript of the hearing was filed on December 3, 1986. The parties were allowed to submit proposed findings of fact and conclusions of law following the hearing, and a ruling on timely filed proposed findings of fact is included in the Appendix to this Recommended Order.
Daniel C. Throneburg, Sr. (Respondent) is, and has been at all times material hereto, a licensed hearing aid specialist in the State of Florida, having been issued license number AS-0000675.
On January 30, 1985, Opal Holbrook agreed to purchase two "Nu Ear" rechargeable hearing aids from Respondent after he had tested her hearing and recommended this hearing aid. The total price of the hearing aid was $1,990. The following was included on the order form signed by both Respondent and Holbrook:
If within 7 days of the date of delivery you are not completely satisfied, you will receive a refund less $50.00 fee provided
you have kept a scheduled appointment within 72 hours of
the date of delivery, to allow the specialist to make necessary adjustments for fit, comfort and personal listening pleasure.
Respondent received the "Nu Ear" hearing aids from the manufacturer on or about February 26, 1985, and Holbrook thereafter kept her scheduled appointment within 72 hours of delivery, was fitted, and completed payment in full on February 26, 1985 in the amount of $1,990.
Four days after receiving the hearing aids, Holbrook returned to Respondent because she still could not hear. Respondent made some adjustments, and told her to try them for another three or four days. She still could not hear, however, and therefore Holbrook requested a refund from Respondent after attempting to use the hearing aids for about a week. Respondent again asked that she try them a little longer.
Holbrook returned numerous times during March, 1985 because her hearing aids had not improved her hearing. Respondent referred her to Mark Krywko for counseling, and adjustments, and she asked Krywko for a refund. Instead, he took an impression of her ears, and made some adjustments in the hearing aids, including boring a hole in them and adding an air hose.
Respondent was usually not present when Krywko made these adjustments, counseled her on the use of hearing aids, or when Krywko took the impressions.
After numerous attempts to adjust the Nu Ear hearing aids had failed, Respondent agreed to "remake" the hearing aids. Basically, he agreed to exchange the Nu Ear aids for another make. On or about April 19, 1985 Holbrook signed a receipt for Electone hearing aids which she received as replacement for the Nu Ear aids. This receipt states:
Any modifications necessary will be performed based upon acceptable industry standards and the manufacturers' warranty.
I understand the specialists' responsibility is fitting the hearing instrument(s) and to counsel me in the use of the aid and to mail any aid to the manufacturer for custom modifications. In the unlikely event, I am not happy with the instrument, I understand, I can request and receive another instrument from a different manufacturer at no additional charge within 60 days. Requests for any and all refunds are not allowed. I also understand that if my hearing loss has been progressive and has deteriorated, it will be necessary to return to the office for counseling which will be provided by
the hearing aid specialist at "NO EXTRA COST".
Holbrook was still unable to hear with the Electone hearing aids and requested a refund. To date, no refund has been provided by Respondent to Holbrook.
Respondent stipulated that Holbrook received his business card at his place of business. The card represents that Respondent is a certified hearing aid audiologist, which he is not.
Mark Krywko is not a licensed hearing aid specialist in the State of Florida, but at all times material hereto he was in an approved trainee program. At the request of Respondent, he repeatedly made adjustments on Holbrook's hearing aids, took an impression of her ears, gave her the receipt referred to in Finding of Fact 6 when the replacement hearing aids were delivered to her, and counseled her on the use of hearing aids. As such, he engaged in dispensing hearing aids, as defined by Section 484.041(3), Florida Statutes, at the request of Respondent who knew that Krywko was not licensed at the time. Respondent was not present most of the time Krywko performed these services for Holbrook.
The receipts which Respondent provided to Holbrook for the Nu Ear and Electone hearing aids did not refer the buyer to the Board of Hearing Aid Specialists for the resolution of complaints, and also did not contain the disclaimer required by Section 484.051(2), Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administration Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
As defined in Section 484.041(3), Florida Statutes, "dispensing hearing aids" means and includes:
Conducting and interpreting hearing tests for purposes of selecting suitable hearing aids, making ear molds or impressions, and providing appropriate counseling.
All acts pertaining to the selling, renting, leasing, pricing, delivery, and warranty of hearing aids.
The evidence establishes that Mark Krywko engaged in dispensing hearing aids, as defined above, by making ear impressions for Opal Holbrook, counseling her on the use of hearing aids, making adjustments in her hearing aids, and delivering a receipt to her for the replacement aids. Krywko is not a licensed hearing aid specialist in Florida, but was in an approved trainee program in early 1985. He performed these dispensing services at the direction of, and for, Respondent at a time when Respondent knew he was not licensed, and when Respondent was usually not present. For these reasons, it has been established that Respondent violated Section 484.053(1)(f), Florida Statutes, which prohibits knowingly employing unlicensed persons in the practice of dispensing hearing aids.
It has also been established that Holbrook received Respondent's business card during her visits to his place of business in early 1985, and that said card represents that Respondent is a certified hearing aid audiologist, which he is not. This is a misrepresentation of professional services, and constitutes the use of the term "audiologist" in a way which connotes the availability of services which are not, in fact, available. As such, Respondent is in violation of Section 484. 484.056(1)(m), Florida Statutes.
Petitioner has also charged that Respondent is guilty of practice of dispensing hearing aids in violation of Section 484.056(1)(g), Florida Statutes. By failing to honor the terms of the sale of the Nu Ear hearing aids to Holbrook which provided for a refund, less a $50.00 fee, under conditions with which Holbrook did comply, Respondent clearly engaged in misconduct in the practice of dispensing hearing aids. Requiring Holbrook to repeatedly return for counseling, adjustments, additional ear impressions, replacement of the Nu Ear aids, and then further repeated adjustments on the Electone aids, all of which still left Holbrook unable to hear despite her payment of $1,990, amounts to incompetence in the practice of dispensing hearing aids. It has therefore been established that Respondent violated Section 484.056(1)(g), Florida Statutes.
Section 484.051(1), Florida Statutes, requires that persons dispensing hearing aids provide their buyers with a receipt which states:
. . . . that any complaint concerning the hearing aid and guarantee therefor, if not reconciled with the licensee from whom
the hearing aid was purchased, should be directed by the purchaser to the Board of Hearing Aid Specialists of the Department of Professional Regulation. The address and telephone number of such office shall be stated on the receipt.
Section 484.051(2) also provides:
No hearing aid may be sold to any person unless both the packaging containing the hearing aid and the itemized receipt provided pursuant to subsection (1) carry the following disclaimer in 10-point or larger type: "This hearing aid will not restore normal hearing, nor will it prevent further hearing loss."
The receipts which Respondent provided to Holbrook did not comply with the requirements of Section 484.051(1) and (2), as set forth above.
Finally, having established the above violations, Petitioner has also established Respondent's violation of Chapter 484, Florida Statutes, which is itself a violation under Section 484.056(1)(h), Florida Statutes. For these reasons, Petitioner has met its burden of proof, and may take appropriate disciplinary action. Bowling v. Dept. of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Robinson v. Board of Dentistry, 447 So. 2d 930 (Fla. 3rd DCA 1984); Sneij v. Dept. of Professional Regulation, 454 So. 2d 795 (Fla. 3rd DCA 1984).
There is no evidence in the record of prior disciplinary action against Respondent. The violations all involve one buyer, and a transaction in early 1985. This is not a case wherein Respondent has dealt improperly with several buyers or repeatedly with the same buyer involving several transactions. Therefore, while disciplinary action is appropriate, the severity of that discipline must be measured to fit the facts of this case. Pauline v. Borer,
274 So. 2d 1 (Fla. 1973); Bowling v. Department of Insurance, supra at 172.
Section 484.056(2), Florida Statutes, sets forth the penalties which Petitioner may impose for violations of Chapter 484, including the imposition of
an administrative fine not to exceed $1,000 for each violation, and probation subject to such conditions as may be specified.
Based on the foregoing, it is recommended that Petitioner enter a Final Order imposing an administrative fine on Respondent in the amount of $1,000, and placing Respondent on probation for a period of six months, conditioned upon his refunding to Opal Holbrook $1940, the full amount she paid for the hearing aids less a $50.00 fee; in the event Respondent does not pay the administrative fine and complete the refund required herein within thirty days of entry of the Final Order, it is further recommended that Respondent's license be suspended for one year in lieu of the six month period of probation and administrative fine.
DONE and ENTERED this 18th day of December, 1986 in Tallahassee, Florida.
DONALD D. CONN
Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1986.
Daniel C. Throneberg 8104 Brit Drive Orlando, Florida
Wings S. Benton, Esquire General Counsel
