STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1284

)

RALPH HELLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on February 1, 1980, in Ocala, Florida. Thereafter, the parties were allowed ten (10) days subsequent to the close of hearing to submit memoranda supportive of their respective positions which have been received and considered by me in the issuance of this Recommended Order. 1/

APPEARANCES

For Petitioner: James A. Sawyer, Jr., Esquire

Counsel, Sub-district III-B Department of Health and

Rehabilitative Services

1515 East Silver Springs Boulevard Suite 118 West - The Cascades Ocala, Florida 32670

For Respondent: Ralph F. Heller, in proper person

1637 South Page Drive Deltona, Florida 32725

ISSUES

The issues posed for decision herein are whether the license to dispense hearing aids issued to the Respondent should be suspended or revoked, or whether the Respondent should be otherwise disciplined for reasons which will be set forth hereinafter in detail as contained in the Administrative Complaint issued by the Department of Health and Rehabilitative Services on or about May 7, 1979.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found.

1. By its Administrative Complaint filed on or about May 7, 1979, the Department of Health and Rehabilitative Services (Department), Petitioner, alleged that Ralph F. Heller, Respondent, violated certain provisions of the Florida Hearing Aid Law, Chapter 468, Florida Statutes, and regulations promulgated thereto, and that he violated the terms and conditions of a Stipulation and Final Order entered in a previous administrative proceeding before this Division, Case No. 78-1222, involving the same parties.

   
   

2. During the final hearing herein, Respondent admitted that he was the Respondent in Case No. 78-1222 and that copies of that Final Order and Stipulation were properly received and admitted without objection (Petitioner's Composite Exhibit 1).

   
   

3. The Stipulation incorporated into the Final Order in Case No. 78-1222 provided in pertinent part that Respondent admitted that he had been or is currently in violation of Chapter 468, Part III, Florida Statutes, and that he (Respondent) would be suspended from the fitting and selling of hearing aids in the State of Florida for a period of forty-five (45) days commencing twenty (20) days after the entry of the Final Order by the Department of Health and Rehabilitative Services, and that Respondent would be on a period of supervision and/or probation by the Department for a period of two (2) years beginning at the end of the forty-five (45) day suspension period during which time Respondent was to furnish to the Department copies of all contracts for hearing aids sold by him in the State and audiograms performed on any person, whether a hearing aid is sold or not, and that contracts were to comply with the provisions of Chapter 468, Part III, Florida Statutes. Such reports were to be submitted monthly commencing on the tenth day of the month succeeding the commencement of the probation and supervision period. That Stipulation provided further that Respondent's failure to comply with the requirements imposed during the period of supervision and probation would be grounds for cancellation of his license to sell and fit hearing aids in the State. The Final Order was adopted by the Secretary of the Department of Health and Rehabilitative Services on November 27, 1978.

   
   

4. Respondent's testimony reflects that he performed an audiogram and sold a hearing aid on January 17, 1979, to a Beatrice K. Patterson of Dunnellon, Florida. (Petitioner's Exhibit No. 2.) Respondent also performed a hearing test on Mrs. Alfred E. Hull, Sr., on or about February 18, 1979, in his office. Respondent did not report the results of these audiograms and/or hearing tests to the Department, nor did he report the sale of the hearing aid to Mrs. Patterson to the Department. In this regard, Respondent attempted to defend his actions on the basis that the Hull test was not reported because it was not a complete hearing test and that the Patterson test and sale were not reported because prior to the reporting time the Department had independently learned of the Patterson transaction and that the sale to Mrs. Patterson had been rescinded.

   
   

5. During the month of August, 1979, Respondent performed an audiogram and sold a hearing aid to a Mr. A. J. Bullinger, of Dunnellon, Florida, and rescinded the sale after Mr. Bullinger developed an ear infection from certain foreign material left in his ear during the fitting. Respondent voluntarily paid Mr. Bullinger's medical expenses incidental to the ear infection and although he (Respondent) claimed that the test and sale were reported to the Department, an examination of the reports submitted to the Department and Mr. Gray's testimony show that this was untrue.

6. Mr. Ralph Gray, Director of the Hearing Aid Licensure Program, testified during the hearing and indicated that he received some of the required monthly reports from Respondent on audiograms and sales of hearing aids. Pursuant to the parties' agreement during the hearing, these reports were not introduced into evidence en masse although the evidence reveals that the Respondent failed to file reports for the months of November and December, 1979. Additionally, an examination of the report submitted by the Respondent for the month of August, 1979, reveals that Respondent failed to report the hearing examination and sale to Mr. A. J. Bullinger. As to these events, Respondent's defense is that he instructed his secretary to file such reports with the Department although when questioned by the undersigned, Respondent was evasive and was unable to recall the secretary to whom he gave such instruction.

   
   

7. During the hearing, Respondent also evidenced a policy of not reporting to the Department those hearing tests and audiograms conducted by himself which did not result in a sale.

   
   

8. The Department's Administrative Complaint also alleged that the Respondent violated specified sections of Chapter 468, Florida Statutes, in connection with the sale of a hearing aid to Mr. Alfred E. Hull, Sr., on or about June 24, 1977. Mr. Hull has died since the inception of these proceedings; however, the transaction was testified to by the Respondent and by Mrs. Alfred E. Hull, Sr. An examination of the contract of sale introduced into evidence fails to indicate whether the hearing aids were new, used or reconditioned although the Respendent represented that the hearing aids were new when sold to Mr. Hull. (Petitioner's Composite Exhibit 3 and the testimony of Respondent and Mrs. Hull.)

   
   

9. The deposition of Ellery L. Childers, taken pursuant to notice at a distance of more than one hundred (100) miles from the place of hearing, was introduced into evidence by the Department. Mr. Childers has a background in the manufacturer's history of sale and warranty of the Hull hearing aids. Some of this information is also recited in a letter-affidavit of Mr. George A. Shymanik, Sales Manager of Beltone Electronics Corporation, which letter was introduced into evidence without objection. (Petitioner's Exhibit 5.) The evidence reveals that a certain Beltone Rondo hearing aid, Serial No. 95898, was sold in April, 1975, to one Lloyd Jennings, a Beltone dealer in Meridian, Mississippi, and was subsequently registered for warranty to a Lucille Wortham of Louisville, Mississippi. The contract of sale between Respondent and Mr. Hull, dated June 24, 1977, recites the sale of the same Beltone hearing aid to Mr. Hull. Evidence also reveals that the Beltone company did not use the same serial number on more than one instrument. (Deposition of Ellery L. Childers.) 2/

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

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

    
    

12. The authority of the Petitioner is derived from Chapter 468, Florida Statutes, and the rules and regulations promulgated thereunder.

13. Competent and substantial evidence was offered to establish that:

    
    

    1. Respondent, by selling a used hearing aid, Beltone Rondo 95898, to Alfred F. Hull, Sr., while representing said hearing aid to be a new hearing aid, engaged in conduct violative of Section 468.130(1), Florida Statutes (1979).

       
       

    2. Respondent violated paragraph 7 of the Stipulation incorporated in the Final Order of November 27, 1978, in administrative case No. 78-1222, by testing the hearing of Mrs. Alfred E. Hull, Sr., while his license to fit and sell hearing aids was suspended.

       Additionally, Respondent violated the

       same paragraph of the above Stipulation by performing an audiogram and selling a hearing aid to Beatrice K. Patterson on January 17, 1979, while his license was under suspension.

       
       

    3. Respondent violated the provisions of paragraph 8 of the Stipulation by selling a hearing aid to Mr. A. J. Bullinger during the month of August, 1979, and failing to report either the audiogram or the sale to the Department as required by paragraph 8.

       
       

    4. Respondent also violated the terms of paragraph 8 of the aforementioned Stipulation by his failure to report to the Department audiograms and sales of hearing aids made during the months of November and December of 1978 and other unspecified periods as testified by him during the period of his supervision and probation.

       
       

    5. Respondent's representation to Alfred E. Hull, Sr., on January 24, 1977, that Beltone Rondo Serial No. 95898 was a new hearing aid when in fact said hearing aid was used amounted to a misrepresentation in violation of Florida Statutes 468.130(1), and warrants the revocation of his license to fit and sell hearing aids in the State of Florida.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the State of Florida, Department of Health and Rehabilitative Services, forwith REVOKE the license of Respondent, Ralph F. Heller, to fit and sell hearing aids within the State of Florida.

ENTERED this 13th day of March, 1980, in Tallahassee, Florida.

James E. Bradwell, Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

ENDNOTES

1/ To the extent that the Proposed Findings are not incorporated herein, such Proposed Findings are specifically rejected or are otherwise deemed not relevant to the outcome of the proceedings herein.

2/ Respondent submitted, post-hearing, a letter which purports to be a representation from Starkey Labs to the effect that two of the hearing aids in question were new when sold to Respondent. Petitioner's counsel objected to the Introduction of this letter into evidence. In view of this objection and Respondent's failure to request leave to submit this document post-hearing, it was not considered by me. However, it was noted that Respondent introduced an invoice from .Starkey Labs which seemed to reflect that the hearing aid sold to Mr. Hull was a new aid. The weight of evidence surrounding this conflict supports a conclusion that the hearing aid sold to Mr. Hull was not new and it is so found.

COPIES FURNISHED:

James A. Sawyer, Jr., Esquire Counsel, Sub-district III-B Department of Health and Rehabilitative Services

1515 East Silver Springs Boulevard Suite 118 West - The Cascades Ocala, Florida 32670

Ralph F. Heller

1637 South Page Drive Deltona, Florida 32725

J. E. Hodges, Esquire District III Legal Counsel Department of Health and Rehabilitative Services

2002 N.W. 13th Street, 4th Floor Gainesville, Florida 32601

David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 79-001284

Orders for Case No: 79-001284