STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) HEARING AID SPECIALISTS, )

)

Petitioner, )

)

vs. )

)

EDWARD LEEDS, )

)

Respondent. )

Case No. 03-1435PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on July 25, 2003, in Fort Lauderdale, Florida, before Florence Snyder Rivas, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Diane L. Guillemette, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

For Respondent: Barry L. Halpern, Esquire

Law Offices of Barry L. Halpern 2650 Biscayne Boulevard

Miami, Florida 33137

STATEMENT OF THE ISSUES

The issues for determination are whether Respondent committed the violations set forth in the administrative

complaint dated May 16, 2003, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By administrative complaint dated May 16, 2003, Petitioner seeks to revoke the professional license of Respondent, Edward Leeds (Respondent or Leeds) on the grounds of incompetence.

Leeds timely asserted his right to contest the proposed grounds for discipline, and a final hearing was scheduled in due course.

The identity of witnesses, exhibits, and attendant rulings is set forth in the record of the proceedings.

No transcript was provided. The parties submitted proposed recommended orders which have been carefully considered.

FINDINGS OF FACT

1. At all times material to this case, Leeds has been a licensed hearing aid specialist practicing in Coconut Creek, Florida.

2. In 1997, Leeds, then age 77, contracted with patient

   
   

   M. M. to dispense and deliver patient M. M. a hearing aid.

   
   

3. The hearing aid failed to perform in a satisfactory manner. The failure occurred because Leeds failed to discharge his professional duties in accordance with minimum performance standards for persons providing hearing aid services in Florida.

4. In particular, Leeds failed to take an appropriate

   patient history; failed to conduct a physical examination which conformed to the minimum standards and procedures called for by the statutes and rules regulating persons licensed to dispense hearing aids; and failed to create and maintain an adequate patient record.

5. By way of defense, Leeds testified that he performed certain tests which were not reflected in his patient records. This testimony was not credible. Even if Leeds had performed the tests he claimed to have performed, his failure to document them is, standing alone, a serious departure from minimal professional standards.

6. Respondent has been reprimanded by the Board of Hearing Aid Specialists on three prior occasions.

   CONCLUSION OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Section 120.57(1).

8. At all times material to this case, Petitioner is the state agency responsible for the licensing and discipline of hearing aid specialists. Because Petitioner seeks to revoke Leeds' license, it must prove the material allegations of the administrative complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company Inc., 670 So. 2d 932 (Fla 1996).

9. The evidence clearly and convincingly established that Respondent's treatment of M. M. constituted incompetence within the meaning of Section 484.056(1)(g).

10. The record as a whole, including Leeds' lengthening disciplinary history, suggests that Leeds' deficient performance is the product of his advancing years, rather than malicious intent. The state's compelling interest in protecting the public from unskilled providers of hearing aid services compels the conclusion that if Respondent is not willing to voluntarily surrender his license, it must be revoked.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be entered revoking Respondent's license to dispense hearing aids.

DONE AND ENTERED this 5th day of September, 2003, in Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2003.

COPIES FURNISHED:

Susan Foster, Executive Director Board of Hearing Aid Specialist Department of Health

4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Diane L. Guillemette, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Barry L. Halpern, Esquire

Law Offices of Barry L. Halpern 2650 Biscayne Boulevard

Miami, Florida 33137

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 03-001435PL

Orders for Case No: 03-001435PL