STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1753

)

JACK L. BECKWITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on October 5, 1994, in New Smyrna Beach, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Susan E. Lindgard, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: E. Raymond Shope, II, Esquire

ROBINSON & SHOPE

Northern Trust Bank Building

4001 Tamiami Trail North, Suite 225

Naples, Florida 33940 STATEMENT OF THE ISSUE

Whether Respondent is guilty and subject to discipline for violating Sections 484.053(1)(f), 484.053(1)(g), 484.056(1)(h), and 484.056(1)(t), F.S.

[1989], in that he knowingly employed unlicensed persons, knowingly concealed information relative to violations of the hearing aid specialist act, violated any part of Chapters 484 or 455 F.S. or the applicable rules, or canvassed by telephone through an agent for the purpose of selling a hearing aid.

PRELIMINARY STATEMENT

The December 8, 1992 administrative complaint was referred to the Division of Administrative Hearings on or about April 8, 1994. Formal hearing was convened on October 5, 1994.

The parties filed a joint prehearing stipulation that was entered in evidence as Hearing Officer's Exhibit A.

Official recognition was requested of Chapter 484, F.S. [1989], and the disciplinary rules in effect at all times material to the administrative complaint. Chapter 484 F.S. [1989], was officially recognized at formal hearing. Petitioner was required to attach a copy of the applicable rules to its post-hearing proposal, and Chapter 21JJ-7 F.A.C. [1989] is now officially recognized because Respondent filed no timely objection or correction pursuant to oral instructions and agreements upon the record.

Prior to the presentation of any evidence, Respondent orally challenged the constitutionality of Section 484.056(1)(t) F.S. regarding "canvassing" and was advised that the undersigned has neither power, authority, nor jurisdiction to invalidate a statute.

Petitioner presented the oral testimony of Theresa L. Skelton, David R. Dewey, Jean L. Dewey, George Selas, Joan Westhrin, and David L. Jenkins and had six out of seven exhibits admitted in evidence.

Respondent's oral motion to dismiss, made at the close of Petitioner's case-in-chief, was taken under advisement for resolution in this recommended order. (TR-134-135)

Respondent presented the oral testimony of David F. Lyons and testified in his own behalf. Respondent had eight exhibits admitted in evidence, one of which was the deposition of Michael T. Cady. Dr. Cady's deposition was after- filed pursuant to oral stipulation of the parties and has been considered.

In the course of formal hearing, Respondent raised the issue that since testimony had revealed a professional connection between one of the Petitioner's witnesses, George Selas, and George Martinez, a member of the probable cause panel which ordered the administrative complaint herein, some impropriety had occurred. However, no impropriety was clearly demonstrated, and no specific relief was requested. The undersigned ordered that formal hearing proceed.

A transcript was filed in due course, and all timely-filed proposed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2), F.S.

FINDINGS OF FACT

1. Ms. Joan Westhrin was accepted, over objection, as an expert hearing aid specialist, and her testimony as follows, is also accepted and adopted as findings of fact. Hearing aid specialists are licensed to perform audiometric testing. Audiometric testing is the function of presenting pure tones through headphones to establish a threshold of hearing. A threshold of hearing is the basis for the smallest amount of sound which the human ear can perceive. The testing is done by using air conduction by way of headphones and bone conduction. A comparison is made between the air conduction and the bone conduction results on the audiogram to determine if the client has a sensory neural hearing loss, meaning a loss in the nerve, or a mechanical function that would indicate that it is something that should be referred to a medical doctor for medical attention. During hearing examinations, the hearing aid specialist must also do an audioscopic examination, or a physical look into the ear canal, to rule out any anomaly that might be developing in order to determine whether the client is a candidate for medical testing. Ear mold impressions provide an exact duplicate of the ear canal so that a hearing aid may have an exact fit in the ear. A cotton block is used in the ear to prevent the impression material, silicone, from traveling down to the ear drum, and the material is left in the

   ear about five or six minutes to set properly. A hearing aid specialist must perform a complete audiological examination in order to provide a client with an appropriate hearing aid. Specific training is required for an individual to provide a safe examination, testing, ear mold impressions, and selection of a hearing aid for a client. Otherwise, an untrained individual may adversely impact on the client when performing the hearing test and providing a hearing aid.

   
   

2. The parties' joint prehearing statement stipulated that the following are "facts which are admitted":

   
   

   1. The Respondent's name is Jack Lee Beckwith.

   2. The Respondent has been, at all times material hereto, a licensed hearing aid specialist in the State of Florida.

   3. The Respondent's hearing aid license number is AS 0001775.

   4. The Respondent's address is 14 Wildwood Trail, Ormond Beach, Florida 32174-4343.

   5. The Respondent is listed as a sponsor on the application of Jean Dewey for a hearing aid trainee and did not sponsor her until December 5, 1989.

   6. The Respondent is listed as a sponsor for David Dewey as a hearing aid specialist trainee and did not sponsor him until December 5, 1989.

   7. When Respondent became the Deweys' sponsor, he assumed responsibility for supervision of them as trainees.

   8. David Dewey is not guilty of canvassing, as set forth in Chapter 484.

   9. Jean Dewey is not guilty of canvassing, as set forth in Chapter 484.

      
      

3. Despite the stipulations contained in sub-8 and sub-9 above, Petitioner presented, without objection, evidence geared to the issue of Respondent telling Mrs. Dewey to canvass. After Petitioner had rested, Respondent moved to dismiss the administrative complaint in part upon grounds that there had been no showing that Respondent had told Mrs. Dewey to canvass and upon the language of the stipulation, which was worded similarly to a prior request for admission. In response, Petitioner's counsel asserted that there had been no meeting of the minds in the stipulation because she thought she was only agreeing that Mr. and Mrs. Dewey had never been adjudicated guilty of canvassing. The motion to dismiss was taken under advisement for resolution in this recommended order (TR 134-135).

   
   

4. The Jeanne Lyons Trust bought Brill's Hearing Aid Center in Daytona Beach in June, 1989. At that time, Jeanne Lyons was 100 percent owner of the Jeanne Lyons Trust and the Trust owned 100 percent of Brill's Hearing Aid Center, Inc. Jeanne Lyons is married to David F. Lyons. Mr. Lyons was not employed by the trust or by the hearing aid center corporation or by his wife in any capacity, but at all times material to this administrative complaint, he acted as "go-between" for all three. From 1988 to 1992, Mr. Lyons served on the Board of Hearing Aid Specialists. He is, and at all times material has been, a licensed hearing aid specialist.

5. Respondent Jack Beckwith was an employee of the corporation, Brill's Hearing Aid Center, Inc., in Daytona Beach, Florida. He formed a separate management corporation with his wife, who is also a licensed hearing aid specialist. The management corporation was hired by the Jeanne Lyons Trust to manage Brill's in Daytona Beach and to help expand Brill's operations south into New Smyrna Beach and north into Palm Coast. The purpose of the management corporation was to avoid paying the Beckwiths as employees for the expansion work. In each of the new locations, a lease within an optometrist's office was negotiated by Mr. Lyons in approximately July, 1989.

   
   

6. Respondent Beckwith is married to Kim Beckwith. Karen Martin was Mr. Beckwith's office manager at the Daytona Beach Brill's Hearing Aid Center.

   David James Jenkins is the son-in-law of David and Jean Dewey, a married couple.

   
   

7. Mr. and Mrs. Lyons, Mrs. Beckwith, Ms. Martin, Mr. Jenkins and Mr. and Mrs. Dewey were not charged in the administrative complaint herein.

   
   

8. Karen Martin had known Jean Dewey through prior employment. In July or August 1989, Ms. Martin set up a luncheon meeting for Mrs. Dewey and her husband, David Dewey, with Jack Beckwith. Mr. Beckwith ultimately introduced Mr. Dewey to Mr. Lyons sometime in August, 1989. The Deweys seemed good prospects to manage one of Brill's branch centers. On behalf of his wife and her trust and corporation, Mr. Lyons approved Mr. Beckwith's hiring the Deweys and becoming their sponsor to train as hearing aid specialists. At all times material, Mr. and Mrs. Dewey believed themselves to be in the employ of Respondent Beckwith and Mr. Lyons, operating as partners in Brill's.

   
   

9. In negotiations with the Deweys, Mr. Beckwith estimated that Mr. Dewey could make $60,000.00 a year and Mrs. Dewey could make $40,000.00 a year based upon a 20 percent commission on gross deposits from hearing aid sales out of the New Smyrna Beach office after the Deweys became fully licensed as hearing aid specialists. He explained that licensure as a trainee and training were prerequisites to becoming fully licensed as hearing aid specialists.

   
   

10. Both Mr. and Mrs. Dewey had a background in sales. Their testimony clearly reveals that they saw the selling of hearing aids from the perspective of marketing a product on a lucrative commission basis rather than from the viewpoint of a health care technologist. The commission arrangement proposed by Mr. Beckwith on behalf of the Jeanne Lyons Trust d/b/a Brill's Hearing Aid Center, Inc. was very attractive to them. They wanted to get started as soon as possible to make an increased commission over what they were being paid in other employments at the time they interviewed with Mr. Beckwith. They also found it attractive that they could work together near their home. Another factor motivating the Deweys to get started as soon as possible was that Mr. Dewey was employed at a marina which was about to close, and the marina closing would entirely eliminate Mr. Dewey's income.

    
    

11. The Deweys were so enthusiastic about Mr. Beckwith's proposal that they nominated their son-in-law, David James Jenkins, to work in Brill's new Palm Coast office.

    
    

12. During September 1989, Mr. and Mrs. Beckwith, with the approval of David F. Lyons, provided some free informal training sessions for Ms. Martin, Mr. Jenkins, and Mr. and Mrs. Dewey, just to see if they would really like hearing aid work and be adaptable to it before the Deweys and Mr. Jenkins quit their existing employments. This was not intended by Mr. Beckwith to be a real apprentice-type program. These sessions occurred twice a week and involved

    playing an instructional tape, handing out some printed statutes, rules, and technical materials, practicing with an audiometer, and learning to make ear molds. Each potential trainee was given his own audiometer to take home just for practice.

    
    

13. On or about October 1, 1989, David Dewey signed an application to the Board of Hearing Aid Specialists to become a hearing aid trainee. His application for the trainee license listed Jack Beckwith as his sponsor.

    
    

14. On or about October 1, 1989, Jean Dewey signed an application to the Board of Hearing Aid Specialists to become a hearing aid trainee. Her application for the trainee license listed Jack Beckwith as her sponsor.

    
    

15. On or about October 2, 1989, Mr. Beckwith sent Mr. and Mrs. Dewey to operate Brill's Hearing Aid Center in space leased from Cady and Timko, optometrists, in New Smyrna Beach, Florida. The Deweys had precipitously quit their previous employment and had no income. Mr. Beckwith established what days of the week and hours they worked at Brill's, what they wore, and how they should be paid. He told them they could not be paid as employees until they were accepted and issued trainee numbers by the Department as trainees.

    
    

16. Mr. and Mrs. Dewey were not paid any wages between October 1, 1989 and December 12, 1989. Due to the delay in receiving trainee licenses and numbers from the licensing agency and their lack of income, Mr. Dewey became infuriated and pressed both Mr. Beckwith and Mr. Lyons for action on licensing. As a result, he received sporadic checks from Brill's Hearing Aid Center. The amount of the checks apparently did not amount to projected commissions. The checks were signed by Jack Beckwith with the permission of David and Jeanne Lyons. The checks were referenced on their face as "loans". Mr. Dewey claimed that the purpose of this notation was so that Mr. Beckwith or others could avoid paying employee-related taxes. Mr. Lyons and Mr. Beckwith asserted that the notation was to insure that Mr. Dewey paid back Mrs. Lyons' advances after Mr. and Mrs. Dewey received their trainee licenses and went on the regular payroll. Mrs. Dewey received no checks.

    
    

17. The lease Mr. Lyons had negotiated with Cady-Timko, O.D., P.A. provided for Brill's Hearing Aid Center, New Smyrna Beach to have ". . . [a]ccess to patient files to contact patients to tell them of hearing aid services available . . . [and] opportunity to confirm optometrist appointments and ask if they would like hearing test also."

    
    

18. Sometime in October 1989, Mr. Beckwith also sent Mr. Jenkins to operate the newly leased office of Brill's Hearing Aid Center, Palm Coast, Florida. Mr. Jenkins claimed to have worked briefly at a Brill's Center in Ormond Beach, but there is no other evidence that there even was a Brill's Center in Ormond Beach. Mr. Jenkins quit the Palm Coast office approximately November 1, 1989 because no clients came there and he was "starving to death." He testified that he was instructed by Mr. and Mrs. Beckwith to make cold calls to potential hearing aid customers from all of the files in the adjacent optometrist's office in Palm Coast, but that he, Mr. Jenkins, so feared rejection that he asked his wife, Mrs. Jenkins, to make the calls. Mr. Jenkins also testified that he did some audiometric testing and that Mrs. Beckwith checked all the audiometric testing he did, but he was vague as to whether this was done at Brill's office in Palm Coast or during his pre-training. His testimony was unclear as to whether Mrs. Beckwith also personally supervised all his audiometric testing. Mrs. Beckwith was not charged with any violations.

    Respondent Beckwith was not charged in the pending administrative complaint with anything done by Mr. Jenkins. Mr. and Mrs. Jenkins were not charged with any violations.

    
    

19. On or about October 15, 1989, Jack Beckwith signed and mailed to the Department of Professional Regulation a Brill's Hearing Aid Center, Daytona Beach check for $400.00 to cover trainee applications for Mr. and Mrs. Dewey, Mr. Jenkins, and Ms. Martin, at $100 apiece. The applications and check were not received or processed by the Department until December 1, 1989. The actual trainee licenses were issued for Mr. and Mrs. Dewey on December 5, 1989. Mr. Beckwith's clear testimony that he submitted the check and four applications together by mail on October 15, 1989 is credible and compelling as opposed to other witnesses' inferences of a December 1, 1989 submittal date because the check face references the four applications specifically, including Mr. Jenkins' application, and the evidence is unrefuted that Mr. Jenkins quit his association with Brill's on or about November 1, 1989. No motive or reasonable rationale was advanced as to why Respondent should mail in $100 of Brill's money to register Mr. Jenkins as a trainee on December 1, 1989, thirty days after Mr. Jenkins had already quit.

    
    

20. As noted above, the parties have stipulated as fact that Jack Beckwith did not become the Deweys' sponsor until December 5, 1989.

    
    

21. At all times material, the training course and apprenticeship program under a sponsor approved by the licensing agency took approximately six months to complete before the applicant could sit for the hearing aid specialist licensure exam. From all accounts, it appears that it was standard operating procedure in the industry for sponsors to allow trainees to perform all services under direct supervision of their sponsor from the date the application for trainee status was mailed to the licensing agency. In this case, that date would have been October 15, 1989. David Dewey and Jean Dewey were not registered as trainees with the Board of Hearing Aid Specialists until December 5, 1989. According to the testimony of Theresa L. Skelton, the Department's policy was to treat applicants as trainees as soon as it received their checks, which in this case was December 1, 1989. Apparently in 1989, the agency did no extensive background check on applicants, and trainee licensing was largely a ministerial act if the proposed sponsor was legitimate. As far as the Department was concerned, trainees could legally perform all services under sponsor supervision as soon as their application and check were processed. See also, Sections 484.0445(1) and (2) F.S. infra.

    
    

22. In October 1989, when Mr. Beckwith sent Mr. and Mrs. Dewey to the Brill's office in New Smyrna Beach, he instructed them to sell batteries and make appointments for persons who answered a newspaper advertisement he had placed to announce opening that branch office. He also told them to telephone current patients of the Daytona Beach Brill's Hearing Aid Center who lived in New Smyrna Beach and tell them that they no longer had to travel to Daytona Beach but could be serviced more conveniently at the new New Smyrna Beach location.

    
    

23. Mr. Beckwith testified that he also told Mrs. Dewey to telephone "recall patients" for the optometry office. Recall patients were patients of the optometry office who needed to be reminded to come in to pick up glasses already ordered or who were due for a new eye appointment. Mrs. Dewey was also told to announce the opening of the hearing aid center to any of the optometry recall patients whose records bore Dr. Cady's notation, "HL" for "hearing loss", and also simultaneously make appointments for hearing tests. Mr. Beckwith

    intended that all appointments would be made for Wednesdays when he would come to New Smyrna Beach to do hearing tests and fit and deliver hearing aids. This testimony is in accord with the conditions of Brill's lease with Cady-Timko O.D. P.A., negotiated by Mr. Lyons.

    
    

24. Mrs. Dewey testified credibly that Mr. Beckwith approved a script for her use for these telephone calls. Nothing in the script clearly shows that she was calling exclusively optometric recalls, Brill's old patients, or making "cold" calls. However, it mentions nothing about existing eyewear or appointments, and it does offer a free hearing test. Mrs. Dewey further testified that Ms. Martin instructed her how to use Dr. Cady's files to make a list and call all of Dr. Cady's patients over a certain age, regardless of an "HL" notation, paying special attention to those with insurance coverage. Mrs. Dewey understood these instructions also came from Mr. Beckwith and made telephone calls pursuant to the method outlined by Ms. Martin. Mr. Beckwith denied giving these instructions or approving the script.

    
    

25. Mrs. Dewey's testimony and the list show that after the first two pages going through Dr. Cady's files with names beginning with the B's and C's of the alphabet had been prepared by Ms. Martin and one appointment scheduled on Tuesday, October 17, 1989 and one on Wednesday, October 18, 1989, Mrs. Dewey started back at the A's and prepared a more extensive list of names. This suggests that Mrs. Dewey went behind Ms. Martin's work and selected from Dr. Cady's files some names which Ms. Martin had excluded. Comparison of the list with a 1989 calendar shows that Mrs. Dewey booked approximately 35 appointments for dates between October 2, 1989 and December 12, 1989, without regard to whether they fell on Wednesdays. Most of the appointments she booked were for days other than Wednesdays. They included days between December 5, 1989 and December 12, 1989 while Mr. Beckwith was listed as the Deweys' sponsor. Mrs. Dewey, whose background was in sales, considered what she was doing to be "telemarketing".

    
    

26. Neither Dr. Cady's files nor Mrs. Dewey's list showed that any person she telephoned had expressed an interest in hearing aids before Ms. Martin or Mrs. Dewey contacted them. Mrs. Dewey's list clearly shows that most of the people called either did not acknowledge that they had a hearing loss or were not interested in a hearing test and/or hearing aids.

    
    

27. Mr. Dewey testified that between October 2, 1989 and December 12, 1989, he performed unsupervised audiometric testing, the taking of ear mold impressions, and the sale and dispensing of hearing aids to 20-24 persons and that he did so either with the instructions or knowledge of Mr. Beckwith and outside Mr. Beckwith's presence because Mr. Beckwith remained in Daytona Beach except on Wednesdays. Mr. Lyons and Mr. Beckwith denied issuing such instructions and denied even any knowledge that this had occurred until Mr. Beckwith was served with the administrative complaint.

    
    

28. Mr. Beckwith testified that when he was present on Wednesdays, Mr. Dewey would sit in with him and observe testing and delivery and that whatever he allowed Mr. Dewey to do in his presence was overseen by him and he signed the appropriate documentation. He denied knowing that Mr. Dewey was also practicing as a hearing aid specialist when he was not present.

    
    

29. Mr. Dewey conceded that Mr. Lyons specifically instructed him not to make any deliveries, and it is clear from Mr. Dewey's testimony that he thought Mr. Lyons' instruction meant "no home deliveries to patients", instead of "no

    delivery of finished hearing aids to clients anywhere, including the office," which would be a partial definition of "no dispensing."

    
    

30. Although Mr. Dewey has claimed to make sales of hearing aids, he also has, since 1989, consistently maintained that he never "delivered" a hearing aid to a client. His testimony at formal hearing does not render clear whether or not he actually fitted a completed hearing aid on a client or ever actually collected money for a "sale" without supervision by Mr. or Mrs. Beckwith.

    
    

31. Mr. Dewey testified that Mr. Beckwith or Mrs. Beckwith signed all paperwork as being responsible for the tests, etc. which he performed in their absence. No documentation of hearing tests or hearing aid sales by Mr. Dewey were submitted; no clients Mr. Dewey allegedly serviced testified; no bank deposits showing income from the New Smyrna Beach location were offered; and Mrs. Beckwith did not testify.

    
    

32. Mr. Beckwith testified he personally delivered no hearing aids from the New Smyrna Beach office.

    
    

33. On or about December 6, 1989, but before the Deweys had received their trainee licenses or been informed that they had been licensed as of December 5, 1989, they invited George Selas, a competitor and a licensed hearing aid specialist, whom Mrs. Dewey had known for some time, into the New Smyrna Beach office of Brill's Hearing Aid Center. When they explained the "telemarketing" that Mrs. Dewey was doing, Mr. Selas informed them that it was illegal and that they should not be practicing as hearing aid specialists before trainee numbers were issued to them by the Department. The Deweys immediately notified the Department by telephone on December 6 and in writing on December 7, 1989 of everything they had been doing and disassociated themselves from Respondent Beckwith, Mr. and Mrs. Lyons, and Brill's. That would mean that after December

    6 they no longer operated out of their sponsorship situation with Mr. Beckwith, despite any booked appointments. As of December 12 or 13, 1989, they formally changed their sponsorship to Mr. Selas. They finished their training and apprenticeship under his sponsorship and were licensed as hearing aid specialists in 1990.

    
    

34. As a result of information received from Mr. Dewey and Mr. Selas, Dr. Cady gave notice he was terminating the lease for Brill's New Smyrna Beach office.

    
    

35. Mr. Selas and Brill's, represented by Mr. Beckwith, were competing for the same contract with an HMO in 1989-1990. Respondent attributes all of Mr. Dewey's actions to collusion with Mr. Selas in order to obtain the HMO contract and rent the space occupied by Brill's in New Smyrna Beach. These inferences are based upon inadmissible hearsay from someone at the HMO who allegedly got an anonymous phone call, and Dr. Cady's understanding of something Mr. Dewey may have said either to Dr. Cady or to his office manager.

    
    

    CONCLUSIONS OF LAW

    
    

36. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. See, Sections 120.57(1) and 455.056, F.S.

    
    

37. The Board of Hearing Aid Specialists is empowered to revoke, suspend, or otherwise discipline licensees found guilty of any act enumerated in Section 484.056(1), F.S. [1989]. See, Section 484.056(2), F.S.

38. In a license disciplinary proceeding, the Petitioner bears the duty to go forward and the burden to establish by clear and convincing evidence the facts upon which its allegations of misconduct are based. See, Ferris v. Turlington, 570 So.2d 292 (Fla. 1987).

    
    

39. Respondent herein is charged with violating Sections 484.053(1)(f) and (1)(g) and Sections 484.056(1)(h) and (1)(t), F.S. [1989].

    
    

40. Section 484.053(1)(f) F.S. provides that no person shall knowingly employ unlicensed persons in the practice of dispensing hearing aids. Subsection (1)(g) provides that no person shall knowingly conceal information relative to violations of this part. For purposes of this case, that means Respondent is charged with knowingly concealing information relative to telephone canvassing or the practice of dispensing hearing aids by unlicensed persons.

    
    

41. Section 484.056(1)(a) F.S. makes any violation of Section 484.053

    F.S. a subject of discipline.

    
    

42. Sections 484.056(1)(h) and (1)(t) prohibit the following:

    
    

    (h) Violation or repeated violations of this part or Chapter 455, or any rules promulgated pursuant thereto.

    ***

    (t) Canvassing from house to house or by telephone either in person or by an agent for the purpose of selling a hearing aid, except that contacting persons who have evidenced an interest in hearing aids, or have been referred

    as in need of hearing aids, shall not be considered canvassing. (Emphasis supplied)

    
    

43. Section 484.041(3), F.S. [1989], defines "dispensing hearing aids", as follows:

    
    

    1. Conducting and interpreting hearing tests for purposes of selected suitable hearing aids, making earmolds or ear impressions, and providing appropriate counseling.

    2. All acts pertaining to the selling, renting, leasing, pricing, delivery, and warranty of hearing aids.

44. Section 484.041(6), F.S. [1989], defines a "trainee" as follows: 'Trainee' means a person studying hearing aid

    dispensing under the direct supervision of an

    active licensed hearing aid specialist for the purpose of qualifying for certification to sit for the licensure examination.

    
    

45. Section 484.041(8), F.S., defines "sponsor" as follows:

    
    

    'Sponsor' means an active, licensed hearing aid specialist under whose direct supervision one or

    more trainees are studying hearing aid dispensing for the purpose of qualifying for certification to sit for the licensure examination.

    
    

46. Also of note are Sections 484.0445(1) and (2), F.S. [1989], which define when one becomes a trainee and those functions a trainee may legally perform:

    
    

    1. . . . Upon submitting to the department the registration fee, the applicant may register and enter the training program. . . .

    2. A trainee shall perform the functions of a hearing aid specialist in accordance with board rules only under the direct supervision of a

    licensed hearing aid specialist. The term "direct supervision" means that the sponsor is responsible for all work being performed by the trainee. The sponsor or a hearing aid specialist designated by the sponsor shall give final approval to work per-

    formed by the trainee and shall be physically present at the time the hearing aid is delivered to the client. (Emphasis supplied)

    
    

47. Respondent's argument that he cannot be held responsible as an employer because the Jeanne Lyons Trust d/b/a Brill's was the real employer is not compelling. A corporate labyrinth designed to obfusticate ultimate responsibility for hiring unlicensed persons is frowned on in professional disciplinary cases and will not be recognized here. Respondent exercised all indicia of an employer and should be bound accordingly.

    
    

48. Likewise, Respondent's argument that he cannot be held responsible as the Deweys' sponsor because he did not become the Deweys' sponsor until December 5, 1989 is not compelling. He was the de facto sponsor as soon as he submitted the trainee applications on their behalf and/or deployed them to work under his instructions. The parties' peculiar stipulation to the effect that Respondent's sponsorship did not begin until it was recognized by the agency seems contrary to the spirit, if not also the letter, of Section 484.0445(1) F.S.. In any case, the Deweys performed some acts on December 5th and 6th.

    
    

49. Having said that, the evidence is not clear and convincing that Sections 484.053(1)(f) or 484.053(1)(g) F.S. have been violated because the evidence is not clear that Respondent Beckwith had actual knowledge that Mr. Dewey was doing tests, molds, and sales for real patients/clients on days Respondent was not in New Smyrna Beach. See Poirier v. Division of Health, Department of Health and Rehabilitative Services, 351 So.2d 50 (Fla 1st DCA 1977) requiring clear evidence that licensee knew or should have known of the violation of an employee. Mr. Dewey's candor and demeanor while testifying was clearly antagonistic because he had not been paid, and he was unsupported by any impartial witness or documentary evidence. Mr. Jenkins testified about his own experiences with Respondent which were very similar to Mr. Dewey's experiences. However, Mr. Jenkins seems to have been in two different offices, one of which may not have existed, over only a few days' time. It is hard to tell whether or not he meant Mrs. Beckwith was present with him for audiometric tests, or even if he made such tests on real clients.

    
    

50. More importantly, if a trainee may, under the 1989 statute, do anything that constitutes dispensing, provided his sponsor or any hearing aid

    specialist designated by his sponsor gives final approval to, and takes ultimate responsibility for, the trainee's work and the sponsor or his licensed designee must be physically present with the trainee only when the hearing aid is delivered to the client, and all testimony herein is to the effect that no deliveries were made by anyone at any time material, Respondent cannot be held to have violated Section 484.053(1)(f) F.S. as to improper employment of unlicensed persons.

    
    

51. On the issue of concealment, there would have to be clear evidence that the canvassing and/or the trainee status was concealed; it was not. It would also have to be proven as a threshold matter that Mr. Dewey did all that he claimed, including unsupervised delivering of hearing aids to clients and that Respondent both knew about it and concealed it. It was not proven by clear and convincing evidence, that Respondent knew about all of Mr. Dewey's activities and even Mr. Dewey denied delivering any final product to a client.

    
    

52. Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of allegations sought to be established. That situation does not exist here. See, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988); Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1993).

    
    

53. The evidence adduced at formal hearing does clearly show that Respondent's instructions to Mrs. Dewey with regard to telephoning Dr. Cady's "HL" clients constituted prohibited canvassing under the definition contained in Section 484.056(1)(t) F.S.. It is not necessary for a licensee who uses an agent to canvass to be the employer or sponsor of the canvasser in order to be found guilty of the offense. The lease and the instructions that Respondent admitted-to do not constitute what is normally considered a "referral." The fact that the people Mrs. Dewey telephoned had hearing loss noticeable to an optometrist does not equate with their having evidenced an interest in hearing aids, nor does it equate with what is normally understood by health care professionals as a "referral." A referral occurs on a case by case basis when a patient is examined by one health care professional and an arrangement is made, with the patient's consent, to send that patient to another professional for supplemental specialized diagnosis or treatment. It does not contemplate a cold call to people who do not acknowledge their own hearing loss and most of whom, according to the notations on Mrs. Dewey's list, clearly found the calls annoying.

    
    

54. Since the instructions admittedly given by the Respondent resulted in repeated violations of Sections 484.056(1)(h) and (t) F.S., it is not necessary to pursue the issue of whether or not Mrs. Dewey got additional bad information from Ms. Martin as Respondent's agent or went off on her own tangent based on her past education, training, and experience in sales promotions.

    
    

55. That brings us to the parties' prehearing stipulation and the Respondent's motion to dismiss. Respondent's pending motion to dismiss was based upon what seemed to be a clearly worded stipulation to the effect that neither Mr. or Mrs. Dewey had done any canvassing. Since the parties stipulated that neither Mr. or Mrs. Dewey is guilty of canvassing, how can Respondent be found guilty of using them as agents to canvass? Petitioner's attorney asserted that the stipulation did not contain a meeting of the minds. Despite the prehearing stipulation and before any evidence was adduced, Respondent had

    raised the issue of constitutionality of the canvassing statute. Also, Respondent made no objections to the admission of factual evidence of canvassing in the course of hearing and presented his own testimony and that of Mr. Lyons on this issue. Respondent did object to testimony proffered through Ms.

    Westhrin as to the definition of canvassing, which objection was sustained and the evidence of her opinion on what the statute meant was excluded. Upon the foregoing, there has been no surprise to Respondent on the basis of the prehearing stipulation.

    
    

56. Where evidence at formal hearing is at variance with the facts recited in the stipulation, the trier of fact is not bound by the stipulation. See, Espada Enterprises, Inc., et al. v. Spiro, 481 So.2d 1265 (Fla. 1st DCA 1986), and Woods v. Greater Naples Care Center, 406 So.2d 1172 (Fla. 1st DCA 1981).

    
    

57. The Respondent's motion to dismiss is denied and Respondent is concluded to be guilty of violating Sections 484.056(1)(h) and (t) F.S. with regard to canvassing.

    
    

58. The only penalty provided by 21JJ-7.005(1)(ff) for canvassing is mandatory revocation of Respondent's license, regardless of any harm to a client. It is noted that no harm to any client has been proven herein, and under the circumstances, the penalty assigned is unduly harsh, but revocation remains the penalty deemed proper in the Board's expertise and it may be invoked.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Hearing Aid Specialists enter a final order

finding Respondent guilty of violating Sections 484.056(1)(h) and (t) F.S., not guilty of all other charges, and revoking his license.

DONE AND ENTERED this 6th day of January, 1995, in Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1995.

APPENDIX TO RECOMMENDED ORDER

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1-3 Accepted, except as to the use of the word "employed." See the Conclusions of Law.

4 Rejected upon contrary evidence of greater weight and credibility in Finding of Fact 33.

5-7 Accepted.

8 Accepted as modified in Finding of Fact 21 to better conform to the record and statute.

9-10 Accepted, except that receipt of the check was testified to be December 1, 1989.

1. Rejected in part as a conclusion of law. See Finding of Fact 21 and the Conclusions of Law.

2. Rejected because misleading as stated. See Finding of Fact 33 upon the greater weight of the credible evidence.

3. Accepted.

14-16 Rejected only upon the word "employment" as a word of art. See Findings of Fact 15, 27-31 and the Conclusions of Law.

17 Rejected as a conclusion of law. See Findings of Fact 21, 27-31 and the Conclusions of Law.

18-22 Accepted, except for unnecessary, subordinate, and/or cumulative material and legal argument.

1. Rejected as a conclusion of law. Covered in Findings of Fact 21, 27-33 and the Conclusions of Law.

2. Accepted.

25-26 Covered only as necessary in Finding of Fact 22-25.

27-29 Accepted except as to word "employee." See Conclusions of Law. 30-31 Rejected as unnecessary or subordinate.

1. Rejected as a finding of fact; see the Conclusions of Law.

2. Rejected because misleading as stated. See Finding of Fact 9 and

15.

34-35 Rejected upon the greater weight of the credible evidence in

Findings of Fact 15-16.

1. Rejected as a mere recitation of nondispositive testimony.

2. Rejected as not proven.

Respondent's PFOF:

1-7 Accepted.

1. Rejected as a conclusion of law. See Finding of Fact 20-21 and the Conclusions of Law.

2. Sentence 1 is rejected as a legal conclusion. Sentence 2 is accepted in part in Finding of Fact 15-16 and 21 and otherwise rejected as a legal conclusion. The remaining sentences are accepted except that unnecessary, subordinate or cumulative material has not been adopted.

10-12 Accepted except that unnecessary, subordinate or cumulative material has not been adopted.

1. The first sentence is rejected a mischaracterizing Mrs. Dewey's testimony. The second sentence is rejected upon the greater weight of the credible evidence as a whole.

2. Accepted.

First 15 Rejected as not proven. Dr. Cady's deposition is vague on this point. See Findings of Fact 34-35.

Second 14 The first sentence is accepted. The second sentence is rejected as a mischaracterization. The third sentence is accepted.

Second 15 Rejected as legal argument.

16 Rejected as legal argument.

COPIES FURNISHED:

Raymond Shope, Esquire

Northern Trust Bank Building, Suite 225 4001 Tamiami Trail North

Naples, FL 33940

Susan E. Lindgard, Esquire Department of Business and Professional Regulation

1940 North Monroe Street, Ste 60

Tallahassee, FL 32399-0792

Jack McRay, Esquire General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street, Ste 60

Tallahassee, FL 32399-0792

Suzanne Lee, Executive Director Board of Hearing Aid Specialists Department of Business and

Professional Regulation

1940 North Monroe Street, Ste 60

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION BOARD OF HEARING AID SPECIALIST

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner, DBPR CASE NO. 89-13722 DOAH CASE NO. 94-1753

vs. LICENSE NO. AS 0001775

JACK L. BECKWITH,

/

FINAL ORDER

THIS MATTER was heard by the Board of Hearing Aid Specialist (hereinafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, on March 31, 1995, in Key West, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is attached) in the case of Department of Business and Professional Regulation v. Jack L. Beckwith. At the hearing before the Board, Petitioner was represented by Susan E. Lindgard, Senior Attorney. Respondent was not present but was represented by E. Raymond Shope, II, Attorney at Law.

Upon consideration of the Hearing Officer's Recommended Order, after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following rulings, findings and conclusions:

RULINGS ON EXCEPTIONS

1. The Board rejects exception number 1 filed by Respondent concluding that the findings of fact of the Hearing Officer as adopted constitute a violation of Section 484.056(1)(t), Florida Statutes. Respondent cites no authority to support the position that Hearing Officer's Conclusion of Law is contrary to the interpretation of the Board.

   
   

2. The Board rejects exception number 2 and finds that based on the facts as adopted, constitute a violation of Section 484.056(1)(t), Florida Statutes. Specifically, the Board finds that findings of fact 23, and 24, support Conclusion of Law 53 made by the Hearing Officer.

During the course of Respondent's presentation regarding exception number 1 and number 2, Respondent waived the recusal of a board member who participated in the finding of probable cause pursuant to 455.225(4), F.S., and requested he participate in the disposition of this matter. Pursuant to Section 455.225(6), Florida Statutes, the Board concluded such a request is prohibited by law.

Respondent cited no authority which would permit his request.

FINDINGS OF FACT

1. The Hearing Officer's Recommended Findings of Fact are approved and adopted and are incorporated herein by reference as the findings of fact of the Board.

   
   

2. There is competent, substantial evidence to support the Board's findings herein.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 484, Florida Statutes.

   
   

2. The Hearing Officer's Recommended Conclusions of Law are approved and adopted and are incorporated by reference as the Conclusions of Law of the Board.

   
   

3. The findings of fact set forth above clearly establish that Respondent has violated Section 484.056(1)(h) and (t), Florida Statutes (1989), as charged in the Administrative Complaint.

DISPOSITION

In light of the foregoing findings of fact and conclusions of law the Board finds that the disposition recommended by the Hearing Officer is appropriate.

WHEREFORE, it is found, ordered and adjudged that the Respondent has violated Section 484.056(1)(t), F.S., and pursuant to Rule 2155-7.005(1)(ff), Florida Administrative Code, Respondent's license is hereby REVOKED.

NOTICE

The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.

DONE AND ORDERED this 11th day of May, 1995

BOARD OF HEARING AID SPECIALISTS

DENNEY DINGLER ACTING CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to E. Raymond Shope, II, Attorney at Law, Robinson & Shope, Northern Trust Bank Building, 4001 Tamiami Trail North, Suite 625, Naples, Florida 33940 and to Ella Jane P. Davis, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230

Apalachee Parkway, Tallahassee, Florida 32399- 1550, and hand delivery to Susan

E. Lindgard, Senior Attorney, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0992 on this 23rd day of May, 1995.

THREASA SKELTON

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

JACK L. BECKWITH, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 95-1954

DOAH CASE NO. 94-1753

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF HEARING AID SPECIALISTS,

Appellee.

/ Opinion filed January 30, 1996.

An appeal from a Final Order of the Department of Business and Professional Regulation, Board of Hearing Aid Specialists.

J. Craig Myrick of Shope & Myrick, Naples, for Appellant.

Lisa S. Nelson and Susan E. Lindgard of Department of Business and Professional Regulation, Tallahassee, for Appellee.

ALLEN, J.

The appellant challenges a final order of the Board of Hearing Aid Specialists (the board) by which his license was revoked due to his violations of section 484.056(1)(t), Florida Statutes (1989), which prohibits canvassing for the purpose of selling a hearing aid. we set aside the order because the statute unlawfully infringes upon the appellant's First Amendment right to engage in commercial speech.

The appellant, who was a licensed hearing aid specialist, was provided access to patient files of an optometrist. The optometrist had made "HL" notations on the files of those patients who suffered from hearing loss. The appellant instructed one of his employees to telephone each of the patients with "HL" file notations and offer them a free hearing test at the appellant's place of business. After numerous calls were placed and several hearing tests were conducted, the Department of Business and Professional Regulation (the department) filed an administrative complaint against the appellant asserting that he had violated section 484.056(1)(t), which provides, in relevant part, that disciplinary action may be taken against a licensee for "[c]anvassing from house to house or by telephone either in person or by an agent for the purpose of selling a hearing aid." Following an administrative hearing, the hearing officer recommended that the board find the appellant guilty of repeated violations of section 484.056(1)(t), and that the board revoke the appellant's license. The board thereafter entered its final order whereby it adopted the hearing officer's findings of fact and conclusions of law and revoked the appellant's license.

The parties agree that the appellant's First Amendment challenge to the statute's limitation of his right to commercial speech is subject to "intermediate" scrutiny and must be analyzed under the test set forth in Central Hudson Gas & Electric Cord. v. Public Service Commission of New York, 477 U.S.

557, 100 S.Ct. 2343, 65 L.Ed.2d 341(1980), and more recently reiterated in Florida Bar v. Went For It Inc., U.S. , 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995); Rubin v. Coors Brewing Co., U.S. , 115 S.Ct. 1585, 131 L.Ed.2d

532 (1995); and Edenfield v. Fane, 507 U.S. 761, 113 S.Ct. 1792, 123 L.Ed.2d 543

(1993) . These cases indicate that the government may freely regulate commercial speech that concerns unlawful activity or is misleading. But commercial speech that falls into neither of those categories may be regulated only if the government satisfies a test consisting of three related prongs: (1) the government must assert a substantial interest in ;support of its regulation;

(2) the government bust demonstrate that the restriction on commercial speech directly and materially advances that interest; and (3) the regulation must be narrowly drawn. The parties agree that telephoning prospective hearing aid purchasers and offering them a free hearing test is not illegal outside the context of the subject statute and is not misleading, so we must determine whether the Central Hudson test has been satisfied. Although we conclude that the asserted governmental interest is substantial, the department has failed t demonstrate that section 484.056(1)(t) advances that interest.

Citing section 464.0401, Florida Statutes (1989), the department argues that the state has a substantial interest in regulating the sale of hearing aids, and that prevention of "intimidation, harassment, or coercion by a hearing aid specialist or his agent," the asserted purpose for section 484.056(1)(t), is a significant element of such regulation. We agree that the first prong of the Central Hudson test is satisfied.

Although the second prong of the Central Hudson test requires a showing that the restriction on commercial speech directly and materially advances the substantial interest of the state, the department offers on evidence in support of its contention that section 484.056(1)(t) so advances the governmental purpose of preventing intimidation, harassment, or coercion by hearing aid specialists or their agents. The department acknowledges "the need for the free flow of information about hearing aid specialist services to be disseminated to the public in order that intelligent, well informed decisions may be make

regarding the purchase and use of a hearing aid," But, without evidentiary support, the department asserts that "<w>ith person to person contact . . . the [possibility] for intimidation and over reaching [is] greatly enhanced." [Emphasis added.]

We recognize that hearing aid specialists who are precluded from canvassing are thereby denied an opportunity to intimidate, harass, or coerce prospective hearing aid purchasers. But the First Amendment right to engage in commercial speech may not be so significantly limited on mere speculation that such behavior might possibly occur. As the United States Supreme Court has explained, Central Hudson's second prong "is not satisfied by mere speculation and conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.'" Rubin,

U.S. at ,115 S.Ct. at 1592, 131 L.Ed.2d at 541-42 (quoting Edenfield, 507

U.S. at , 113 S.Ct. at 1800, 123 LEd.2d at 555). See also Florida Bar, U.S. at , 115 S.Ct. at 2377, 132 L.Ed.2d at 550.

Speculation as to possibilities is the exclusive basis for the department's contention that Central Hudson's second prong is satisfied. The department has presented no studies that suggest that allowing personal solicitation by hearing aid specialists or their agents would create any real danger of fraud, intimidation, overreaching, harassment, or coercion. The department has not even provided anecdotal evidence, from Florida or elsewhere, to validate the department's assumptions that such behavior by hearing aid specialists is likely to occur. Indeed, the hearing officer in this case made a specific finding that no harm to any client had been proven. The department's defense of the statute here is closely analogous to the speculative and unsuccessful defense of a similar limitation on accountants in Edenfield, and markedly contrasts with the successful defense founded upon extensive statistical and anecdotal evidence in Florida Bar.

Because the department has not demonstrated that the asserted state interest is advanced by the statutory limitation on commercial speech, the appealed order is set aside and this case is remanded.

BARFIELD and DAVIS, JJ., CONCUR.

=================================================================

SECOND AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION BOARD OF HEARING AID SPECIALIST

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner, DBPR CASE NO. 89-13722 DOAH CASE NO. 94-1753

vs. LICENSE NO. AS 0001775

JACK L. BECKWITH,

Respondent.

/

FINAL ORDER

THIS MATTER was heard by the Board of Hearing Aid Specialist (hereinafter Board) pursuant to Section 120.57(1)(b) 10., Florida Statutes, and remand from the First District Court of Appeal, State of Florida, on March 29,1996, in Miami, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is attached as Exhibit 1) in the case of Department of Business and Professional Regulation v. Jack L. Beckwith. At the hearing before the Board, Petitioner was represented by Jim Manning, Senior Attorney. Respondent was present and represented by E. Raymond Shope, II, Attorney at Law. This matter was initially heard by the Board of Hearing Aid Specialist (hereinafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, on March 31,1995, in Key West, Florida, for consideration of the Hearing Officer's Recommended Order in the case of Department of Business and Professional Regulation v. Jack

1. Beckwith. At the initial bearing before the Board, Petitioner was represented by Susan E. Lindgard, Senior Attorney. Respondent was not present but was represented by E. Raymond Shope, II, Attorney at Law.

   
   

   The Respondent filed exceptions to Conclusion of Law number 53 set forth in the Hearing Officers Recommended Order, as well as an exception which challenged the constitutionality of Section 484.056(1)(t), Florida Statutes, on grounds that said section infringed upon the Respondent's First Amendment guarantee of free speech. The Board denied Respondent's exceptions to the Hearing Officer's Recommended Order, and specifically concluded that it had no authority to determine the constitutionality of Section 484.056(1)(t), Florida Statutes.

   
   

   Respondent filed an appeal to the Final Order issued on May 23,1995 by the Board which challenged the constitutionality of Section 484.056(1)(t), Florida Statutes, to the First District Court of Appeal, State of Florida. On January 30,1996, the Court issued an opinion which set aside the Final Order concluding that the Department of Professional Business and Professional Regulation failed to demonstrate that the asserted state interest (the prevention of intimidation, harassment or coercion by Hearing Aid Specialists or their agents) was advanced

   by the statutory limitation on commercial speech. The Court remanded this case to the Board for final disposition. A copy of the Court's opinion is attached as Exhibit 3.

   
   

   This Final Order is issued in compliance with the Court's directions. Upon consideration of the Opinion issued by the First District Court of Appeal on January 30, 1996, the Hearing Officer's Recommended Order, after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following rulings, findings and conclusions:

   
   

   RULINGS ON EXCEPTIONS

   
   

   The Board finds that it is not necessary to rule on Respondent's exceptions in that the First District Court of Appeal has determined that the evidence in the record was insufficient to establish that the harm Section 484.056(1)(t), Florida Statutes, is intended to prevent occurred Florida Statutes in this case. Moreover, Respondent's exceptions are to the Conclusions of Law reached by the Hearing Officer and were superseded by the Court's opinion issued on January 30,1996.

   
   

   FINDINGS OF FACT

   
   

   1. The Hearing Officer's Recommended Findings of Fact are approved and adopted and are incorporated herein by reference as the findings of fact of the Board.

      
      

   2. There is competent, substantial evidence to support the Board's findings herein.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 484, Florida Statutes.

   
   

2. The Board concludes that Conclusion of Law number 53 set forth in the Recommended Order should be rejected. In its place the Board finds that the record failed to establish by clear and convincing evidence that Respondent violated Section 484.056(1)(t), Florida Statutes.

   
   

3. The Board concludes that Conclusion of Law number 57 should be amended by placing a period after the word denied and that the remainder of the Hearing Officer's conclusion be rejected.

   
   

4. The Board concludes that Conclusion of Law number 58 be rejected in total as no violation of Section 484.056(1)(t), Florida Statutes, has been established by the record before the Board.

   
   

5. The Hearing Officer's Recommended Conclusions of Law as modified are approved and adopted and are incorporated by reference as the Conclusions of Law of the Board.

   
   

6. The findings of fact set forth above fail to establish by clear and convincing evidence that Respondent has violated Section 484.056(1)(h) and (t), Florida Statutes (1989), as charged in the Administrative Complaint.

DISPOSITION

In light of the foregoing findings of fact, the conclusions of law, and the appellate decision issued concerning this matter the Board finds that there is insufficient evidence to establish a violation of Section 484.056(1)(t), Florida Statutes.

WHEREFORE, it is ordered that this matter be DISMISSED.

This Final Order becomes effective upon its filing with the Clerk of the Department of Business and Professional Regulation.

NOTICE

The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.

DONE AND ORDERED this 22nd day of April,1996.

BOARD OF HEARING AID SPECIALISTS

SUE FOSTER

Executive Director

CERTIFICATE OF SERVICE

HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to E. Raymond Shope, II, Attorney at Law, Robinson & Shope, Northern Trust Bank Building, 4001 Tamiami Trail North, Suite 625, Naples, Florida 33940 and to Ella Jane P. Davis, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and hand delivery to Jim Manning, Senior Attorney, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0992 on this 24th day of April,1996.

Theresa Skelton

Docket for Case No: 94-001753

Orders for Case No: 94-001753