Aug 30 2005 13:11 AUG-30-24@5 13:20 P.@3 a — STATE OF FLORIDA BOARD OF HEARING AID SPECIALISTS DEPARTMENT OF HEALTH, Petitioner, ' vs. Case No. AS 2002-27975 DUDLEY R. HURST, Respondent. _/ ADMINISTRATIVE COMPLAINT COMES NOW Petitioner, Department of Health, (hereinafter “Petitioner") by and through its undersigned attorneys and files its Administrative Complaint against Respondent, DUDLEY R. HURST, (hereinafter "Respondent”) and alleges: NATURE OF THE ACTION 1. This is an action to impose administrative penalties and assess costs related to the investigation and prosecution of the allegations against Respondent pursuant to Sections 456.072 and 484.056, Florida Statutes. | JURISDICTION AND VENUE 2. This tribunal has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes. 3. Venue shall be determined pursuant to Rule 28-106.207, Florida Administrative Code. Aug 30 2005 13:12 AUG-38-2885 13:21 P.a4 =~ -— PARTIES 4. Effective July 1, 1997, Petitioner is the state agency charged with regulating the practice of hearing aid specialists pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 484, Part Il, Florida Statutes. 5. At all times material hereto Respondent has been licensed as a hearing aid specialist, having been issued license number AS2664 on July 17, 1996. 6. Respondent's last known address is 5219 Abbey Park Ave., Tampa, FL 33647. COUNT! 7. Petitioner realleges and incorporates herein by reference the allegations contained in paragraphs 1-6. 8. At all times material to this Count of this Administrative Complaint, Respondent was the president and director of DRH & Associates, Corp., a Florida profit corporation. 9. At all times material to this Count of this Administrative Complaint, Respondent's company, DRH & Associates, Corp., was the registered owner of the fictitious name “Polk Hearing Centers.” 10. On August 1, 2002, Respondent, doing business as Polk Hearing Center, sold patient A.H., a 78-year-old man, a pair of Qualitone digital CIC hearing aids for a total purchase price of $4,194.00 at Respondent's place of business in Winter Haven, Florida. Aug 30 2005 13:22 AUG-30-2085 13:21 P.@S o™ ro 11. At the time of the sale on August 1, 2002, patient A.H. paid Respondent's company a $2,097.00 deposit, leaving a balance of $2,097.00 of the purchase price due upon delivery of the hearing aids. 12. On August 14 or August 15, 2002, Respondent delivered the pair of hearing aids to patient A.H. at Respondent's place of business in Winter Haven, Florida, and patient A.H. paid the $2,097.00 balance of the purchase price to Respondent's company. 13. in connection with the sale of the two hearing aids to patient A.H. on August 1, 2002, Respondent and patient A.H. signed a written purchase agreement. 14. At all times material to this Count, Section 484.0512(1), Florida Statutes, provided that: A person selling a hearing aid in this state must provide the buyer with written notice of a 30-day trial period and money-back guarantee. The guarantee must permit the purchaser to cancel the purchase for a valid reason as defined by rule of the board within 30 days after receiving the hearing aid, by returning the hearing aid or mailing written notice of cancellation to the seller. . . . 15. At all times material to this Count, Section 484.0512(2), Florida Statutes, provided that the Board of Hearing Aid Specialists shall prescribe by rule the terms and conditions to be contained in the money-back guarantee and any exceptions thereto. Section 484.0512(2), Florida Statutes, further provided that the terms and conditions of the guarantee shall be provided in writing to the purchaser prior to the signing of the contract. 16. At all times material to this Count, Rule 64B6-6.001, Florida Administrative Code, promulgated by the Board of Hearing Aid Specialists pursuant to Section Aug 30 2005 13:12 AUG-38-2085 13:21 P.@6 —_~ oo 484.0512, Florida Statutes, required that the guarantee required by Section 484.0512, Florida Statutes, shall permit the purchaser to cancel the purchase for a valid reason and that a valid reason shall be defined as failure by the purchaser to achieve satisfaction from use of the hearing aid(s), so long as the hearing aid is returned to the seller within the 30-day trial period in good working condition. 47. The front of the written purchase agreement dated August 1, 2002 that Respondent provided to patient A.H. states the following concerning the terms and conditions of the 30 day trial period and money back guarantee: The purchaser agrees to wear the hearing aid(s) for a period of 30 days from the date of delivery. In the event that the purchaser decides to return the hearing aid(s), they must be retumed to the specialist of record in new working order on or before the 30th day of possession. Upon receipt of the hearing aid(s), DRH & Associates, Inc. will refund the purchase price, less mold and dispensing fees. (Mold fee $150 for one aid, $200 for a set; in addition, a 5% of the purchase price-dispensing fee may be retained.) Total amount available for refund. _3784_ [The 3784 amount was handwritten on the line provided on the purchase agreement form.] 18. Respondent's condition stated on the front of the purchase agreement that “The purchaser agrees to wear the hearing aid(s) for a period of 30 days from the date of delivery” violated Section 484.0512, Florida Statutes, and Rule 64B6-6.001, Florida Administrative Code, because Section 484.0512, Florida Statutes, and Rule 64B6- 6.001, Florida Administrative Code, require that the 30-day trial period and money-back guarantee provided to the purchaser in writing prior to the signing of the contract must permit the purchaser to cancel the purchase by returning the hearing aids or mailing written notice of cancellation to the seller in the event that the purchaser does not achieve satisfaction from use of the hearing aids. The condition imposed by Aug 30 2005 13:13 QUG-38-2085 13:22 P.Qa? os an Respondent that "The purchaser agrees to wear the hearing aid(s) for a period of 30 days from the date of delivery" unlawfully imposed an additional condition which contradicted the purchaser's right to cancel the purchase if the purchaser failed to achieve satisfaction from use of the hearing aid(s) at any time during the trial period even if the purchaser did not wear the hearing aid(s) for an entire period of 30 days. 19. Respondent is subject to disciplinary action pursuant to Section 484.056(1)(a), Florida Statutes, for violating Section 484.0512, Florida Statutes, by including the unlawful condition that "The purchaser agrees to wear the hearing aid(s) for a period of 30 days from the date of delivery" in the terms and conditions of the 30- day trial period and money-back guarantee provided in writing by Respondent to patient AH. COUNT Il 20. Petitioner realleges and incorporates herein by reference the allegations contained in paragraphs 1-6. 21. Atall times material to this Count of this Administrative Complaint, Respondent was the president and director of DRH & Associates, Corp., a Florida profit corporation. 22. At all times material to this Count of this Administrative Complaint, Respondent's company, DRH & Associates, Corp., was the registered owner of the fictitious name “Polk Hearing Centers." 23. On August 1, 2002, Respondent, doing business as Polk Hearing Center, sold patient A.H., a 78-year-old man, a pair of Qualitone digital CIC hearing aids for a total purchase price of $4,194.00 at Respondent's place of business in Winter Haven, 5 Aug 30 2005 13:13 AUG-368-2085 13:22 P.@8 —. i Florida. 24. At the time of the sale on August 1, 2002, patient A.H. paid Respondent's company a $2,097.00 deposit, leaving a balance of $2,097.00 of the purchase price due upon delivery of the hearing aids. 25. On August 14 or August 15, 2002, Respondent delivered the pair of hearing aids to patient A.H. at Respondent's place of business in Winter Haven, Florida, and patient A.H. paid the $2,097.00 balance of the purchase price to Respondent's company. 26. In connection with the sale of the two hearing aids to patient A.H. on August 1, 2002, Respondent and patient A.H. signed a written purchase agreernent. 27. At all times material to this Count, Section 484.0512(1), Florida Statutes, provided that: A person selling a hearing aid in this state must provide the buyer with written notice of a 30-day trial period and money-back guarantee. The guarantee must permit the purchaser to cancel the purchase for a valid reason as defined by rule of the board within 30 days after receiving the hearing aid, by returning the hearing aid or mailing written notice of cancellation to the seller. . . . 28. At all times material to this Count, Section 484.0512(2), Florida Statutes, provided that the Board of Hearing Aid Specialists shall prescribe by rule the terms and conditions to be contained in the money-back guarantee and any exceptions thereto. Section 484.051 2(2), Florida Statutes, further provided that the terms and conditions of the guarantee shall be provided in writing to the purchaser prior to the signing of the contract. 29. At all times material to this Count, Rule 64B6-6.001, Florida Administrative Aug 30 2005 13:13 AUG-30-2885 13:22 P.a@9g — ™. Code, promulgated by the Board of Hearing Aid Specialists pursuant to Section 484.0512, Florida Statutes, required that the guarantee required by Section 484.0512, Florida Statutes, shall permit the purchaser to cancel the purchase for a valid reason and that a valid reason shall be defined as failure by the purchaser to achieve satisfaction fram use of the hearing aid(s), so long as the hearing aid is returned to the seller within the 30-day trial period in good working condition. 30. The front of the written purchase agreement dated August 1, 2002 that Respondent provided to patient A.H. states the following concerning the terms and conditions of the 30 day trial period and money back guarantee: The purchaser agrees to wear the hearing aid(s) for a period of 30 days from the date of delivery. In the event that the purchaser decides to return the hearing aid(s), they must be returned to the specialist of record in new working order on or before the 30th day of possession. Upon receipt of the hearing aid(s), ORH & Associates, Inc. will refund the purchase price, less mold and dispensing fees. (Mold fee $150 for one aid, $200 for a set; in addition, a 5% of the purchase price-dispensing fee may be retained.) Total amount available for refund. _3784_ [The 3784 amount was handwritten on the line provided on the purchase agreement form.] 31. Respondent's condition stated on the front of the purchase agreement that “In the event that the purchaser decides to return the hearing aid(s), they must be retumed . . . in new working order . . .” violated Section 484.0512, Florida Statutes, and Rule 64B6-6.001, Florida Administrative Code, because it contradicted the right of the purchaser under Section 484.0512, Florida Statutes, and Rule 6486-6.001, Florida Administrative Code, to return the hearing aids in “good working condition,” which is a less stringent requirement than “new working order” (italics on the words “new” and "good" added here to show contrast between the two different standards). Aug 30 2005 13:14 AUG-38-2885 13:23 P. oo om. ‘ 32. Respondent is subject to disciplinary action pursuant to Section 484 _056(1)(a), Florida Statutes, for violating Section 484.0512, Florida Statutes, by including the unlawful condition that “In the event that the purchaser decides to return the hearing aid(s), they must be retumed . . . in new working order .. . “ in the terms and conditions of the 30-day trial period and money-back guarantee provided in writing by Respondent to patient A.H. (italics on the word “new” added here). COUNT Ul 33. Petitioner realleges and incorporates herein by reférence the allegations contained in paragraphs 1-6. 34. At all times material to this Count of this Administrative Complaint, Respondent was the president and director of DRH & Associates, Corp., a Florida profit corporation. 35. At all times material to this Count of this Administrative Complaint, Respondent's company, DRH & Associates, Corp., was the registered owner of thé fictitious name "Polk Hearing Centers.” 36. On August 1, 2002, Respondent, doing business as Polk Hearing Center, sold patient A.H., a 78-year-old man, a pair of Qualitone digital CIC hearing aids for a total purchase price of $4,194.00 at Respondent's place of business in Winter Haven, Florida. 37. At the time of the sale on August 1, 2002, patient A.H. paid Respondent's company a $2,097.00 deposit, leaving a balance of $2,097.00 of the purchase price due upon delivery of the hearing aids. 38. On August 14 or August 15, 2002, Respondent delivered the pair of hearing 8 18 Aug 30 2005 13:14 AUG-38-2885 13:23 P. —_ o™ aids to patient A.H. at Respondent's place of business in Winter Haven, Florida, and patient A.H. paid the $2,097.00 balance of the purchase price to Respondent's company. 39. In connection with the sale of the two hearing aids to patient A.H. on August 1, 2002, Respondent and patient A.H. signed a written purchase agreement. 40. Atall times material to this Count, Section 484.0512, Florida Statutes, required that a person selling a hearing aid in this state must provide the buyer with written notice of a 30-day trial period and money-back guarantee and that the terms and conditions of the guarantee shall be provided in writing to the purchaser prior to the signing of the contract. 41. The front of the written purchase agreement dated August 1, 2002 that Respondent provided to patient A.H. states the following concerning the terms and conditions of the 30 day trial period and money back guarantee: The purchaser agrees to wear the hearing aid(s) for a period of 30 days from the date of delivery. \n the event that the purchaser decides to return the hearing aid(s), they must be returned to the specialist of record in new working order on or before the 30th day of possession. Upon receipt of the hearing aid(s), DRH & Associates, Inc. will refund the purchase price, less mold and dispensing fees. (Mold fee $150 for one aid, $200 for a set; in addition, a 5% of the purchase price-dispensing fee may be retained.) Total amount available for refund. _3784 [The 3784 amount was handwritten on the line provided on the purchase agreement form.]} 42. Respondent's use of the guarantee or representation on the front of the purchase agreement that "(u)pon receipt of the hearing aid(s), DRH & Associates, Inc. will refund the purchase price, less mold and dispensing fees” (italics added here) was misleading, deceiving, or untruthful, in light of the fact that the reverse side of the it Aug 30 2005 13:14 AUG- 36-2885 13:23 P. =~ “~ purchase agreement stated the following: In the event cancellation is granted, any property traded in, any refunds owed to you under the contract or sale, and any negotiable instrument executed by you will be returned within 10 business days following receipt by the seller of your cancellation notice, and any security interest arising out of the transaction will be cancelled. Hence, the front of the purchase agreement guaranteed or represented that a refund would be issued “upon receipt" of the hearing aids for return, while the reverse side of the purchase agreement negated such guarantee or representation by stating that refunds would be issued "within 10 business days.” 43. Additionally, Respondent's use of the guarantee or representation on the front of the purchase agreement that "(u)pon receipt of the hearing aid(s), DRH & Associates, Inc. will refund the purchase price, less mold and dispensing fees" was misleading, deceiving, or untruthful because patient A.H., relying on the guarantee or representation, did in fact attempt to return the hearing aids and to cance! the purchase before the expiration of the 30 day trial period, but Respondent refused to accept the return of the hearing aids and refused to refund any portion of the purchase price. 44. Pursuant to Section 484.056(1){j), Florida Statutes, the following act constitutes grounds for disciplinary action against a hearing aid specialist's license: Using, or causing or promoting the use of, any advertising matter, promotional literature, testimonial, guarantee, warranty, label, brand, insignia, or other representation, however disseminated or published, which is misleading, deceiving, or untruthful. 45. Respondent is subject to disciplinary action pursuant to Section 484 056(1)(j), Florida Statutes, for using the guarantee or representation on the front of the purchase agreement that "(u)pon receipt of the hearing aid(s), DRH & Associates, 10 12 Aug 30 2005 13:15 AUG-30-2885 13:24 P. “~ “~ inc. will refund the purchase price, less mold and dispensing fees," which was misleading, deceiving, or untruthful for the reasons stated in this Count. COUNT IV 46. Petitioner realleges and incorporates herein by reference the allegations contained in paragraphs 1-6. 47. Atall times material to this Count of this Administrative Complaint, Respondent was the president and director of DRH & Associates, Corp,, a Florida profit corporation. 48. At all times material to this Count of this Administrative Complaint, Respondent's company, DRH & Associates, Corp., was the registered owner of the fictitious name "Polk Hearing Centers.” 49. On August 1, 2002, Respondent, doing business as Polk Hearing Center, sold patient A.H., a 78-year-old man, a pair of Qualitone digital CIC hearing aids for a total purchase price of $4,194.00 at Respondent's place of business in Winter Haven, Florida. 50. At the time of the sale on August 1, 2002, patient A.H. paid Respondent's company a $2,097.00 deposit, leaving a balance of $2,097.00 of the purchase price due upon delivery of the hearing aids. 51. On August 14 or August 15, 2002, Respondent delivered the pair of hearing aids to patient A.H. at Respondent's place of business in Winter Haven, Florida, and patient A.H. paid the $2,097.00 balance of the purchase price to Respondent's company. 52. In connection with the sale of the two hearing aids to patient A.H. on August 11 13 Aug 30 2005 13:15 QUG-38-2885 13:24 -s oN 1, 2002, Respondent and patient A.H. signed a written purchase agreement. 53. The written purchase agreement dated August 1, 2002 that Respondent provided to patient A.H. provided lines or spaces for the following specific items of information (in addition to other items of information) to be filled in: serial number for the left hearing aid, serial number for the right hearing aid, the delivery date, the signature and license number of the person delivering the hearing aids, and the signature and license number of the hearing aid specialist selling the hearing aids. 54. At all times relevant to this Count, Section 484.051(2), Florida Statutes, required that: Any person who fits and sells a hearing aid shall, at the time of delivery, provide the purchaser with a receipt containing the seller's signature, the address of her or his regular place of business, and her or his license or trainee registration number, if applicable, together with the brand, model, manufacturer or manufacturer's identification code, and serial number of the hearing aid furnished and the amount charged for the hearing aid. The receipt also shall specify whether the hearing aid is new, used, or rebuilt and shall specify the length of time and other terms of the guarantee and by whom the hearing aid is guaranteed... . The receipt also shall state 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 Department of Health. The address and telephone number of such office shall be stated on the receipt. 55. On the written purchase agreement that Respondent provided to patient A.H. at the time of the sale of the hearing aids on August 1, 2002, the line above the printed words “Delivered By” was left blank (as were the spaces provided for the serial numbers of the hearing aids and the line above the printed words “Delivery Date”). At the time of delivery of the hearing aids on August 14, 2002, Respondent provided to patient A.H. another copy of the purchase agreement, intended to function as the 12 Aug 30 2005 13:15 AUG-38-2885 13:24 P. om. o™ delivery receipt required by Section 484.051(2), Florida Statutes, which included the serial numbers of the left and right hearing aids, the delivery date, Respondent's signature, and Respondent's correct license number 2664. 56. The written purchase agreement that Respondent provided to patient A.H. at the time of the sale of the hearing aids on August 1, 2002, which did not have Respondent's signature and correct license number 2664 filled in on the line over the words "Delivered By,” had Respondent's signature and the number 2607 filled in on the line over the word "Specialist". The number 2607 was not Respondent's correct license number. 57. The receipt that Respondent provided to patient A.H. at the time of delivery of the hearing aids on August 14, 2002 did not contain the address of Respondent's regular place of business as required by Section 484.051(2), Florida Statutes. 58. Pursuant to Section 484.056(1)(g), Florida Statutes, a licensee is subject to disciplinary action upon proof that the licensee is guilty of fraud or deceit or of negligence, incompetency, or misconduct in the practice of dispensing hearing aids. 59. By providing patient A.H. with a purchase agreement on the date of the sale that contained a false or incorrect license number, Respondent is guilty of fraud or deceit or of negligence, incompetency, or misconduct in the practice of dispensing hearing aids, and is therefore subject to disciplinary action pursuant to Section 484 056(1)(g), Florida Statutes. 60. Additionally, as a separate offense, by failing to provide patient A.H. at the time of delivery of the hearing aids with a receipt containing the address of Respondent's regular place of business as required by Section 484.051(2), Florida 13 is Aug 30 2005 13:16 AUG-30-2085 13:25 P. o~ 7™. Statutes, Respondent is guilty of fraud or deceit or of negligence, incompetency, or misconduct in the practice of dispensing hearing aids, and is therefore subject to disciplinary action pursuant to Section 484.056(1)(q), Florida Statutes. Alternatively, with respect to Respondent's failure to provide patient A.H. at the time of delivery of the hearing aids with a receipt containing the address of Respondent's regular place of business as required by Section 484.051(2), Florida Statutes, Respondent is-subject to disciplinary action pursuant to Section 484.056(1)(w), Florida Statutes, for violating Section 484.051(2), Florida Statutes. COUNT V 61. Petitioner realleges and incorporates herein by reference the allegations contained in paragraphs 1-6. 62. At all times material to this Count of this Administrative Complaint, Respondent was the president and director of DRH & Associates, Corp., a Florida profit corporation. 63. At all times material to this Count of this Administrative Complaint, Respondent's company, DRH & Associates, Corp., was the registered owner of the fictitious name “Polk Hearing Centers." 64. On August 1, 2002, Respondent, doing business as Polk Hearing Center, sold patient A.H., a 78-year-old man, a pair of Qualitone digital CIC hearing aids for a total purchase price of $4,194.00 at Respondent's piace of business in Winter Haven, Florida. 65. At the time of the sale on August 1, 2002, patient A.H. paid Respondent's company a $2,097.00 deposit, leaving a balance of $2,097.00 of the purchase price 14 16 Aug 30 2005 13:16 AUG-38-28@5 13:25 P.1? = 7™~ due upon delivery of the hearing aids. 66. On August 14 or August 15, 2002, Respondent delivered the pair of hearing aids to patient A.H. at Respondent's place of business in Winter Haven, Florida, and patient A.H. paid the $2,097.00 balance of the purchase price to Respondent's company. 67. In connection with the sale of the two hearing aids to patient A.H. on August 1, 2002, Respondent and patient A.H. signed a written purchase agreement. 68. Pursuant to Section 484.0512, Florida Statutes (2002), and Rule 64B6- 6.001, Florida Administrative Code, patient A.H. had the right to cance! the purchase of the hearing aids within the 30-day trial period required by Section 484.0512, Florida Statutes (2002), and Rule 64B6-6.001, Florida Administrative Code, if patient A.H. failed to achieve satisfaction from use of the hearing aids. 69. Within the 30-day trial period required by Section 484.0512, Florida Statutes (2002), and Rule 64B6-6.001, Florida Administrative Code, patient A.H. expressed his failure to achieve satisfaction from use of the hearing aids to Respondent and attempted to retum the hearing aids to Respondent. However, Respondent refused to accept patient A.H.’s attempted return of the hearing aids, in violation of patient A.H.'s rights under Section 484.0512, Florida Statutes (2002), and Rule 64B6-6.001, Florida Administrative Code. 70. At all times material to this Count, Section 484.0512(3), Florida Statutes (2002), provided that: Within 30 days after the return or attempted return of the hearing aid, the seller shall refund all moneys that must be refunded to a purchaser pursuant to [Section 484.0512, Florida Statutes (2002)] [italics and 15 Aug 30 2005 13:16 AUG-30-2085 13:25 P. os s™ boldface added here]. 71. Respondent failed to refund any of the moneys that he was required to refund to patient A.H. within 30 days after patient A.H 's attempted return of the heanng aids, in violation of Section 484.0512(3), Florida Statutes (2002). 72. Respondent is subject to disciplinary action pursuant to Section 484 .056(1)(a), Florida Statutes (2002), for violating Section 484.0512, Florida Statutes (2002), by unlawfully refusing to accept patient A.H.'s attempted return of the hearing aids within the 30-day trial period required by Section 484.0512, Florida Statutes (2002), and Rule 64B6-6.001, Florida Administrative Code, and by failing to issue a refund to patient A.H. within 30 days after patient A.H.'s attempted return of the hearing aids as required by Section 484.0512(3), Florida Statutes (2002). COUNT VI 73. Petitioner realleges and incorporates herein by reference the allegations contained in paragraphs 1-6. 74. At all times material to this Count of this Administrative Complaint, Respondent was the president and director of DRH & Associates, Corp., a Florida profit corporation. 75. At all times material to this Count of this Administrative Complaint, Respondent's company, ODRH & Associates, Corp., was the registered owner of the fictitious name “Polk Hearing Centers." 76. On August 1, 2002, Respondent, doing business as Polk Hearing Center, sold patient A.H., a 78-year-old man, a pair of Qualitone digital CIC hearing aids for a total purchase price of $4,194.00 at Respondent's place of business in Winter Haven, 16 18 Aug 30 2005 13:17 AUG-30-2085 13:25 P. ~. “oN Florida. 77. At the time of the sale on August 1, 2002, patient A.H. paid Respondent's company 2 $2,097.00 deposit, leaving a balance of $2,097.00 of the purchase price due upon delivery of the hearing aids. 78. On August 14 or August 15, 2002, Respondent delivered the pair of hearing aids to patient A.H. at Respondent's place of business in Winter Haven, Florida, and patient A.H. paid the $2,097.00 balance of the purchase price to Respondent's company. 79. In connection with the sale of the two hearing aids to patient A.H. on August 1, 2002, Respondent and patient A.H. signed a written purchase agreement. 80. Pursuant to Section 484.0512, Florida Statutes (2002), and Rule 64B6- 6.001, Florida Administrative Code, patient A.H. had the right to cancel the purchase of the hearing aids within the 30-day trial period required by Section 484.0512, Florida Statutes (2002), and Rule 64B6-6.001, Florida Administrative Code, if patient A.H. failed to achieve satisfaction from use of the hearing aids. 81. During the 30-day trial period, patient A.H. experienced numerous problems with the hearing aids, expressed his dissatisfaction with the hearing aids numerous times to Respondent, and told Respondent that he would like to return the hearing aids for a refund. Each time, however, that patient A.H. expressed his dissatisfaction with the hearing aids and attempted to return them for a refund during the 30-day trial period, Respondent insisted on performing adjustments to the hearing aids and assured patient A.H. that the adjustments would remedy the problems A.H. was experiencing with the hearing aids. Most of the adjustments performed by Respondent did not 17 19 Aug 30 2005 13:17 AUG-38-2825 13:26 P.28 >™~ o™. succeed at making the hearing aids perform satisfactorily for patient A.H. The influence that Respondent exercised on patient A.H. to allow Respondent to perform adjustments rather than simply accepting the hearing aids for return went beyond the bounds of ethical and reasonable salesmanship, they were coercive, manipulative tactics intended to influence patient A.H. to keep the hearing aids beyond the statutory 30-day trial period so that Respondent would not have to refund any of patient A.H.'s money pursuant to the statutory 30-day trial period and money-back guarantee. On one particular occasion during the 30-day trial period when patient A.H. made it clear to Respondent that he wanted to return the hearing aids for a refund, the Respondent pounded his fist on the table and dramatically shouted at patient A.H., "My taking back these hearing aids and giving you your money back isn't going to help you hear better! For God's sake, please let me help you!” But despite the Respondent's feigned caring for the patient's well-being and best interests, as exemplified by the drarnatic, coercive act described above and verbal assurances given to the patient that what was of "first and foremost importance” to Respondent was patient A.H.'s satisfaction and his ability to hear better, once the Respondent believed the 30-day trial period to have expired the Respondent refused to allow the still-dissatisfied patient to retum the hearing aids for a refund and he spoke belligerently to patient A.H. 82. Based on Respondent's manner of dealing with patient A.H., Respondent is subject to disciplinary action pursuant to Section 484.056(1 )(v), Florida Statutes, for exercising influence on a client in such a manner as to exploit the client for financial gain of the licensee or of a third party. 18 AUG- 38-2885 Aug 30 2005 13:17 13:26 P.2i o~ “™ CLAIM FOR RELIEF WHEREFORE, Petitioner respectfully requests the BOARD OF HEARING AID SPECIALISTS to enter an order imposing one or more of the following penalties pursuan t to Section 456.072, Florida Statutes and Rule 6486-7 .002, Florida Administrative Code: a b. h. . Revocation or suspension of Respondent's license; Restriction of Respondent's practice; An administrative fine; . Areprimand; . Probation; Corrective action, including but not limited to Restitution where applicable; . Refund of fees billed and collected from the patient or a third party on behalf of the patient: Requirement that the practitioner undergo remedial education; and/or Any other penalty the Board deems appropriate. 19 Aug 30 2005 13:17 AUG- 38-2805 13:26 P.22 os rm TH ~ Dated this 7° day of OCTOGER , 2004. Respectfully submitted, CHARLES J. CRIST, JR. FILED nto a ARTMENT OF H DEP DEPUTY CLERK CLERK sod Clima Steven Graham Assistant Attorney General DATE 10-29-04 —— Florida Bar Number 0689408 ~ Department of Legal Affairs 110 SE 6" Street, 9" Floor Fort Lauderdale, FL 33301 (954) 712-4600 PCP: Smith, Bolanos DATE: July 29, 2004 NOTICE OF HEARING RIGHTS AND ASSESSMENT OF COSTS RESPONDENT IS HEREBY NOTIFIED THAT HE/SHE HAS THE RIGHT TO REQUEST AN ADMINISTRATIVE HEARING PURSUANT TO SECTIONS 120.569 AND 120.57, FLORIDA STATUTES. SPECIFIC OPTIONS FOR ADMINISTRATIVE ACTION ARE SET OUT IN THE ATTACHED EXPLANATION OF RIGHTS. ALL REQUESTS FOR HEARING MUST BE MADE WITHIN 21 DAYS OF RECEIPT AND SENT TO REGINALD DB. DIXON, CHIEF ATTORNEY, DEPARTMENT OF HEALTH, PROSECUTION SERVICES UNIT, 4052 BALD CYPRESS WAY, BIN C-65, TALLAHASSEE, FLORIDA 32399. RESPONDENT IS PLACED ON NOTICE THAT PETITIONER HAS INCURRED COSTS RELATED TO THE INVESTIGATION AND PROSECUTION OF THIS MATTER. PURSUANT TO SECTION 456.072(4), FLORIDA STATUTES, THE BOARD SHALL ASSESS COSTS RELATED TO THE INVESTIGATION AND PROSECUTION OF A DISCIPLINARY MATTER, WHICH MAY INCLUDE ATTORNEY HOURS AND COSTS, ON THE RESPONDENT IN ADDITION TO ANY OTHER DISCIPLINE IMPOSED. 20 Aug 30 2005 13:18 AUG-3@-2085 13:27 P.23 7 mom. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy has been servea by certified mail this “2-0 day of © C706é 2004 to: DUDLEY R. HURST, 5219 Abbey Sa Steven Graham Assistant Attorney General Florida Bar Number 0689408 Department of Legal Affairs 110 SE 6” Street, 9" Floor Fort Lauderdale, FL 33301 (954) 712-4600 Park Ave., Tampa, FL 33647. 21 TOTAL P.23

Docket for Case No: 05-003146PL