STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1021

) 80-2007

RAYMOND J. BLACK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cases on December 3, 1980, in Tampa, Florida.

APPEARANCES

For Petitioner: Janice Sortor, Esquire

District VI Assistant Legal Counsel Department of Health and

Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614

For Respondent: Joseph R. Kalish, Esquire

Route 1, Box 488A Lutz, Florida 33549

By Administrative Complaints, as amended, the Department of Health and Rehabilitative Services (HRS), Petitioner, seeks to revoke, suspend or otherwise discipline the registration of Raymond J. Black, Respondent, to fit and sell hearing aids. As grounds therefor it is alleged in Case No. 80-1021 that Respondent employed an unregistered person to sell and fit hearing aids, and in Case No. 80-2007 that Respondent allowed a trainee to perform acts relating to the selling and fitting of hearing aids which are not authorized for trainees to do. Inasmuch as these allegations Involve similar issues of fact and law and the same parties are involved, the cases were consolidated by Order entered November 6, 1980.

At the commencement of the hearing, Respondent's motion to sever these cases was denied. Thereafter Petitioner called six witnesses, Respondent called four witnesses including Respondent and twenty-eight exhibits were offered into evidence. Objections to numerous exhibits on grounds of relevance were overruled at the hearing with the caveat that unless relevancy was shown during the proceedings these exhibits would be disregarded in arriving at findings of fact. Objection to Exhibit 27 on the ground of hearsay was sustained. All other exhibits were admitted into evidence.

With respect to the acts performed by Arvena Hines and Douglas Yacinich which constituted the bases for the charges against Respondent, the testimony of Petitioner's and Respondent's witnesses was generally in direct conflict. After considering the motives of the various witnesses, their demeanor on the witness stand and logical conclusions to be drawn from specific factual situations in which the disputed events occurred, I submit the following. Proposed findings submitted by the parties and not included herein were not supported by the evidence presented or were deemed immaterial to the findings reached.

FINDINGS OF FACT

1. Raymond J. Black is registered to fit and sell hearing aids in Florida and at all times here relevant he was so registered. He has been a registrant for several years, has been a dealer since 1976 and operates two offices, one in Tampa, Florida, and the second in Zephyrhills, Florida. Mr. Black spends most of his time in the Tampa office.

   
   

2. Arvena Hines is the office manager in the Zephyrhills office and has managed that office for Respondent since about 1973. She has qualified for, taken and failed the examination for registration as a hearing aid specialist in Florida three times. Following her second failure her application for a third examination was initially disapproved, but after judicial proceedings were instituted she was authorized to retake the examination after again completing the trainee program.

   
   

3. As office manager Ms. Hines was the supervisor of all other employees at the Zephyrhills office including hearing aid specialists and trainees. She received thirty-five percent of the profits on all hearing aids and hearing aid supplies sold in the Zephyrhills office. Other employees authorized to sell hearing aids received approximately fifteen to twenty-five percent commission on the sale of hearing aids depending on where the sale was made.

   
   

4. In 1977 Arvena Hines pleaded nolo contendere in the County Court in and for Pasco County to the charge of fitting and selling a hearing aid without being licensed or registered to do so. Adjudication of guilt was withheld and she was placed on probation for six months. (Exhibit 16)

   
   

5. In 1977 Respondent Black pleaded nolo contendere in the County Court in and for Pasco County to a charge of employing Arvena lines, an unregistered person, for the purpose of fitting and selling hearing aids. Adjudication of guilt was withheld and Respondent was placed on probation for six months. (Exhibit 14)

   
   

6. In 1977 Respondent's registration was suspended for ninety days by Petitioner upon a stipulation of settlement in the revocation proceedings that had been referred to the Division of Administrative Hearings.

   
   

7. In August 1979 Edward J. Greenough went into Respondent's Zephyrhills office accompanied by his wife for the purpose of having his hearing checked. He was waited on by Frances Wilkes who at the time was a trainee, Class III. Ms. Wilkes tested Greenough's hearing and then said Ms. Hines had to check the results because "she (Wilkes) didn't have her license. Although Ms. Wilkes testified that Ms. Hines conducted no tests or performed any services connected with selling or fitting a hearing aid on Greenough, the testimony of Mrs. Greenough that Ms. Hines repeated the testing procedure that had been done lay

   Ms. Wilkes, prepared the ear molds and subsequently fitted the hearing aid on Mr. Greenough, is the more credible.

   
   

8. In October 1978 Margaret Lamb, an octogenarian, visited the Zephyrhills hearing aid office to see why her hearing aid was not "giving me success." Ms. Hines took an ear mold for her but a man conducted the audio test. Although Ms. Lamb exhibited some of the frailties of age her recollection of events was clear including the "terrific noise" that almost took her head off during the hearing test. That error left her somewhat confused and anxious to get out of the office.

   
   

9. Robert Ayer visited the Zephyrhills hearing aid office of Respondent in December 1978 to have checked a hearing aid he had dropped. Ms. Hines waited on him, suggested he get a new "all in the ear" hearing aid, gave him a hearing test, and made an ear mold. When asked for a down payment on the hearing aid Ms. Hines said he needed, Ayer stated he had not expected to purchase a hearing aid that day and was unprepared to make a deposit. When Ayer returned to Zephyrhills after the new year he went to the hearing aid office, was told his hearing aid was in, and paid Ms. Hines $250. Exhibit 10 is the receipt for this payment. Jim Spear, a licensed hearing aid specialist who was working for Respondent at this time signed the audiogram (Exhibit 19) and testified that he conducted the hearing aid test done on Ayer December 11, 1978. Spear also denied ever seeing Hines sell or fit hearing aids or do any work in connection therewith. For several reasons Mr. Ayer's testimony is more credible than the conflicting testimony. Apart from the demeanor of the witnesses and personal reasons of the registrants for denying unlawful acts were committed by Ms. Hines in their presence and to their knowledge, Mr. Ayer is the precise and meticulous type of individual who keeps a diary of his daily activities, even in retirement. These diaries were in his possession at the hearing, and were shown to and perused by Respondent's attorney at the latter's request. No conflicts or omissions between the diary entries and Ayer's testimony were presented.

   
   

10. Mrs. Maidee Carr's deposition was admitted as Exhibit 15. Mrs. Carr is a nonagenarian who was sold a hearing aid by Ms. Hines around December 1978 or January 1979. The audiogram was taken by a man (Jim Spear signed Exhibit 17, the audiogram taken on Mrs. Carr January 22, 1979), but Ms. Hines took the ear mold and Mrs. Carr gave Ms. Hines a check in full payment when the hearing aid was delivered to Mrs. Carr's home by Ms. Hines who then put the hearing aid in Mrs. Carr's ear.

    
    

11. In January 1980 Douglas Yacinich, who had worked as a hearing aid salesman in Iowa for several years, visited Respondent with the view of employment when he moved to Florida. Respondent sponsored Yacinich's application for Trainee Temporary Certificate of Registration which was submitted January 28, 1980. Yacinich then returned to Iowa to settle his affairs. This application to enter the trainee program was approved in a letter dated March 26, 1980 (Exhibit 6). The application was approved effective March 24, 1980 (Exhibit 5), and Yacinich was issued a Certificate of Registration (Exhibit 23).

    
    

12. At this time Yacinich was in Iowa and, according to his testimony, he moved to Florida around May 1980. Respondent submitted Exhibit 7 notifying Petitioner that Yacinich entered into the training program March 24, 1980, completed Stage I on April 24, 1980, and completed Stage II on June 24, 1980. Yacinich left Respondent's employ "around June or July" 1980 and has made no further effort to become registered as a hearing aid specialist.

1. Yacinich set up an appointment with Mr. Chastain, a hearing aid user, and on May 9, 1980, did an audiogram on him (Exhibit 21). He also sold Chastain a used hearing aid the same day but it was not delivered until later. Mrs. Chastain gave Yacinich a check for part payment of the hearing aid on May 9, 1980, when the invoice for the hearing aid was prepared (Exhibit 12). This invoice does not contain the serial number of the hearing aid subsequently delivered to Chastain. When the final fitting of his hearing aid was made on June 2, 1980, Respondent accompanied Yacinich to Chastain's home and was present when the hearing aid was fitted by Yacinich. The testimony is conflicting whether Respondent was in the yard or in the room with Yacinich when the hearing aid was placed in Chastain's ear; However, it is clear that when Yacinich delivered the hearing aid to Chastain, Respondent was present.

   
   

2. Respondent attributed the preferring of the charges against him, which are contained in the Administrative Complaint and Amended Administrative Complaint, to the animosity of Ralph Gray, the Administrator of the Hearing Aid Licensing Program in HRS, and to his belief that Gray has a vendetta against him. No evidence to support these beliefs was submitted other than Respondent's opinion. Respondent denied that he was aware that Ms. Hines ever took ear impressions in the Zephyrhills office on any of the complaining witnesses or that she ever performed any of those functions in dispensing hearing aids which require certification. Respondent acknowledged that Ms. Hines is manager of the Zephyrhills office and that she receives thirty-five percent of the funds coming into the office, and that salesmen are paid a commission of about twenty-five percent on the hearing aids they sell depending upon where the hearing aid is sold. Ms. Wilkes who does little work outside the office received a commission of around fifteen percent for those hearing aids she sold. Respondent testified that his belief that no audiograms were taken nor hearing aids sold by Ms. Hines was based upon the fact that the audiograms were signed by someone other than Ms. Hines and the word of these people that they conducted the tests. No evidence was presented to show the commissions paid to the various salesmen for the hearing aids dispensed to those witnesses who testified in these proceedings.

   
   

3. Respondent allowed Yacinich to work unsupervised in the selling and dispensing of hearing aids before he had actually worked fur Respondent for thirty days. This determination is reached from the evidence that Yacinich was probably well qualified by his previous experience in Iowa, by Respondent's testimony that he considered Yacinich to have been in his employ since January 28, 1980, when Yacinich's application was submitted, and by Yacinich's testimony that he did not actually relocate to Florida until May or June.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

5. Section 468.134, Florida Statutes, provides in pertinent part:

   
   

   1. No person shall fit or sell hearing aids in this state unless such person has complied with the requirements hereof as to registration and licensing.

      
      

6. Section 468.129, Florida Statutes, provides in pertinent part:

   The Department of Health and Rehabilitative Services may refuse to issue or to renew or may suspend or revoke any certificate of registration or may impose an administrative fine not to exceed $500 per day for each violation, after notification of the right to a hearing under Ch. 120, for any of the following causes:

   * * *

   1. For unethical conduct or for gross malpractice in the fitting or selling of hearing aids.

   2. Violation of any of the provisions of this part . . . .

   
   

7. Section 468.130, Florida Statutes, defines unethical conduct to include:

   
   

   (2) Employing directly or indirectly any suspended or unregistered person to perform any work covered by this part.

   
   

8. Section 460.126, Florida Statutes, establishes qualifications for registration which include a training program into which applicants are registered under a sponsoring certificate holder. In addition to setting qualifications for a trainee, the statute also provides:

   
   

   1. An applicant, after receiving a temporary trainee certificate of registration, shall begin trainee apprenticeship for a period of 6 months as follows:

      1. Stage I. A period of work for 1 month under the direct control and supervision of a sponsor. During this period a trainee shall not fit a purchaser or user with a hearing aid, but may administer practice audiograms.

      2. Stage II. A period of work for 2 months under the direct control and supervision of a sponsor. During this period, trainee may perform such testing as is necessary for the proper selection and fitting of a hearing aid and may perform any function required for the making of ear impressions, but shall not deliver a hearing aid to the purchaser or user and shall not perform the final fitting of a hearing aid.

      3. Stage III. A period of work for 3 months during which, in addition to activities performed in Stage II, a trainee may deliver a hearing aid to a purchaser or user while in the presence of his sponsor or a designated registrant. During this period the trainee shall work for and be responsible to a sponsor.

9. With respect to those allegations in Case No. 80-1021 involving Ms. Hines it is concluded that Respondent is guilty as alleged. That conclusion is reached from the facts that Ms. Hines has managed this office for some seven years; that she has been through the trainee program at least two times, during which periods she was authorized to perform functions authorized for trainees to perform; that this amount of experience has perhaps made her better qualified to test customers and to fit hearing aids than others with only six months experience who did pass the examination; that the commission she receives on hearing aids sold exceeds that of other salesmen in that office who have passed the exam and have been certified; and that the previous administrative complaints, and disciplinary actions resulting therefrom are fully consistent with the misconduct here alleged. Respondent obviously was aware of the selling of hearing aids by Ms. Hines because he paid the commissions to other salesmen and would certainly know how many hearing aids were sold and by when each was sold. Ledger entries showing that someone other than Ms. Hines received a commission on every hearing aid sold through the Zephyrhills office would have more effectively rebutted the testimony of the complaining witnesses than Respondent's and his witnesses' denials of any wrongdoing.

   
   

10. With respect to those allegations in Case No. 80-2007 involving unauthorized acts performed by Yacinich it is noted that Yacinich was alleged to be in Stage II of the trainee program at the time of the commission of the acts complained of.

    
    

11. Stage II trainees are specifically proscribed, by the above-quoted statutory provisions, from delivering a hearing aid to a purchaser. By allowing Yacinich to deliver the hearing aid to Chastain, even though accompanied by Respondent who may have supervised the fitting, Respondent was guilty of a technical violation of those statutory provisions.

    
    

12. With respect to the allegations contained in paragraph 3 of the Amended Administrative Complaint those alleged actions, viz, perform audiometric tests and take ear impressions, are authorized by Section 468.126(2)(b), Florida Statutes, above quoted, when done under the direct supervision and the control of the sponsor. This contemplates that those functions be performed in the presence of the sponsor and not at a customer's home several miles distant from the office as Yacinich did in connection with the sale of a hearing aid to Chastain.

    
    

13. Section 468.136, Florida Statutes, provides in pertinent part:

    
    

    1. Each person who fits and sells hearing aids shall deliver to each person he supplies with a hearing aid a receipt which shall contain his signature and show the address of his regular place of business and the number of his certificate of registration, together with the brand, model, and serial number of the hearing aid furnished and amount charged therefor.

       
       

14. When the sale was made to Chastain and receipt was given to Chastain for the down payment received by Yacinich, the latter did not have in his possession the hearing aid sold and could not put the serial number on the customer's copy of the invoice . When the hearing aid was subsequently delivered to Chastain no effort was made to put the serial number of the hearing aid on the customer's copy of the purchase order previously given. Instead the

    serial number was placed in the Beltone book delivered to Chastain with the hearing aid. I find this omission to be a technical violation of the statute above quoted.

    
    

15. From the foregoing it is concluded that Respondent is guilty as alleged in the Administrative Complaint and the Amended Administrative Complaint. However, in submitting the recommended action to be taken those charges involving Yacinich, except for the work he did when not under the direct supervision of Respondent, have been treated as technical violations of the statute and accorded little, if any, weight.

    
    

16. The charge involving performance of work described as fitting and selling hearing aids by a Stage II trainee not under the direct control and supervision of the sponsor appears typical of Respondent's approach to the statutes and regulations for the hearing aid business. That is, he will permit an employee, be it a trainee or otherwise, to perform any function Respondent believes the employee is capable of performing in the fitting and selling of hearing aids whether or not the employer is properly licensed. It is therefore

RECOMMENDED that the Certificate of Registration of Raymond J. Black be revoked.

ENTERED this 19th day of December, 1980, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1980.

COPIES FURNISHED:

Janice Sortor, Esquire

Assistant District VI Legal Counsel Department of Health and

Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614

Joseph R. Kalish, Esquire Route 1, Box 488A

Lutz, Florida 33549

Mr. Alvin J. Taylor, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 80-001021

Orders for Case No: 80-001021