STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-575

)

WILLIAM HUNTER GARDNER, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on August 25, 1982, in Gainesville, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on the filing of an Administrative Complaint by the Department of Health and Rehabilitative Services against the Respondent, William Hunter Gardner, seeking to revoke his Certificate of Registration for alleged violations of the statutes and rules governing the fitting and selling of hearing aids.

APPEARANCES

For Petitioner: Joseph E. Hodges, Esquire

Department of Health and Rehabilitative Services

2002 North West 13th Street Oak Park Executive Square Gainesville, Florida 32601

For Respondent: George L. Waas, Esquire

1114 East Park Avenue Tallahassee, Florida 32301

ISSUES

The factual issues presented for determination are as follow:

1. Are the allegations of the Administrative Complaint true?

   
   

2. Did Respondent have the required scienter with respect to the violations alleged in the Administrative Complaint?

Various legal and procedural issues were raised and previously disposed of by written order prior to the final hearing. This order will not contain a recital of those interlocutory actions.

Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically

rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

1. At all times relevant to this proceeding, the Respondent was employed by and president of Gainesville Hearing Aid Company, and registered by the Department of Health and Rehabilitative Services for the fitting and sale of hearing aids.

   
   

2. On or about September 13, 1979, Respondent sold to Lawrence J. Murphy a certain Dahlberg hearing aid, serial #VEI7AA, while representing to Mr. Murphy that the hearing aid was new, when in fact the hearing aid had been previously owned by Peter Fancher. The written contract of sale for this hearing aid did not indicate whether the hearing aid was new or used.

   
   

3. The Dahlberg hearing aid sold to Murphy had been sold to P. D. Fancher on April 25, 1977, by Respondent. The hearing aid was returned to Gainesville Hearing Aid Company on May 17, 1977, by Mr. Fancher for full refund. The inventory records of Gainesville Hearing Aid Company show the sale and the return for refund. This hearing aid was used.

   
   

4. On or about September 12, 1979, Respondent sold to Oran Ledbetter a certain Audiotone hearing aid, serial #28S-7963102, while representing to Mr. Ledbetter that the hearing aid was new and indicating on the written contract of sale that it was new, when in fact that same hearing aid had previously been owned by D. L. Bentley.

   
   

5. The Audiotone hearing aid sold to Ledbetter had been sold to D. L. Bentley on March 27, 1979, by Gainesville Hearing Aid Company together with another hearing aid not material to these proceedings. These hearing aids were delivered to Mr. Bentley on April 16, 1979. The subject hearing aid was returned to Gainesville Hearing Aid Company by Bentley some four to five months later and was returned to the inventory of the company as a used hearing aid. This hearing aid was used.

   
   

6. On or about February 2, 1978, Respondent sold to Virginia Collette a Dahlberg hearing aid, serial #TW22AH7, representing to Ms. Collette and showing on the contract of sale for the hearing aid that it was new, when in fact the hearing aid had been previously owned by Joseph E. McIntire. This hearing aid was used.

   
   

7. The Dahlberg hearing aid sold to Ms. Collette had been sold to J. C. McIntire by Gainesville Hearing Aid Company on October 14, 1977, on an installment contract calling for $95 down and monthly payments of $43 per month for 24 months. Mr. McIntire fell behind in his monthly payments and subsequently died. An unidentified member of the family returned the hearing aid to Gainesville Hearing Aid Company, and the company subsequently collected some $989 from McIntire's estate.

   
   

8. While the inventory records reflected that the hearing aids above were used, there is no evidence that Respondent was aware of this information in the cases of Murphy and Ledbetter.

   
   

9. At the time Respondent left the offices of Gainesville Hearing Aid Company to make the sale of the Dahlberg hearing aid to Ms. Collette, he requested his employee, William Glance, to bring him a hearing aid from

   inventory. Mr. Glance brought Respondent the Dahlberg hearing aid and at that time advised him it was a used hearing aid.

   
   

10. Respondent permitted his daughter, Angie Gardner, who did not hold a certificate of registration or a learner's permit, to conduct audiograms, to fit and sell hearing aids, and to conduct hearing aid examinations at various times during 1979. This included in particular November 2, 1979, when Angie Gardner was permitted to run a hearing test on a Mrs. Jones, who objected to the performance of the examination by Respondent's daughter. Respondent subsequently sought the advice of Ralph Gray as to the legality of permitting Angie Gardner to conduct these tests and, on being advised that it was contrary to law, discontinued this practice.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Department of Health and Rehabilitative Services has authority to discipline the Respondent pursuant to Chapter 468, Part II, Florida Statutes. The Division of Administrative Hearings has authority to hear this case and enter a recommended order pursuant to Section 120.57(1), Florida Statutes.

    
    

12. The Administrative Complaint charges that Respondent violated Section 468.130(1), Florida Statutes, by selling a used hearing aid as a new one on three occasions contrary to Rule 10D-48.25(2) and (3)(a), Florida Administrative Code. Section 468.130(1), supra, provides:

    
    

    [Unethical conduct shall include:]

    1. The obtaining of any fee or the making of any sale by fraud or misrepresentation.

       
       

13. Rule 10D-48.25(2) and (3)(a), Florida Administrative Code, provides as follows:

    
    

    1. It is unethical to represent, directly or indirectly, that any hearing aid product or part thereof is new, or rebuilt, when such is not the fact.

    2. In the advertising or marketing of hearing aid products which are second-hand or rebuilt, or which contain second-hand or rebuilt parts, it is unethical to fail to make full and nondeceptive disclosure in writing to the purchaser and by a conspicuous tag or label firmly attached to the product, and in all advertising and promotional literature relating thereto, of the fact

       1. that such products are second-hand, rebuilt, or contain second-hand or rebuilt parts, as the case may be,. . .

    
    

14. The provisions of Section 468.129(3), Florida Statutes, provide that the Department may discipline a registrant for, among other things, unethical conduct.

    
    

15. The sale of a used hearing aid as a new hearing aid is a violation of Section 468.130(1), Florida Statutes, without reference to Rule 10D-48.25(2), Florida Administrative Code. The sale of any product as new when it is used is a fraud. Rule 10D-48.25(3)(a), Florida Administrative Code, and Section

    468.136, Florida Statutes, mandate that hearing aid products will be sold and advertised as new, used or rebuilt. It is incumbent upon the registrant to fully disclose the nature of the product sold and not to conceal or misrepresent the product during a sale. Respondent sold all three of the subject used hearing aids as new hearing aids.

    
    

16. Respondent defends based upon his lack of knowledge that the products sold were used. The testimony of his employee, Mr. Glance, was to the contrary regarding the Collette sale. With regard to the other two sales, the hearing aids were sold by the Respondent as new while the inventory records reflected they were used. It is concluded that Respondent is chargeable with knowledge of the nature of the product which he sells. Lack of specific knowledge is not a defense to violation of the statutes. Respondent is guilty of three counts of violation of Section 468.130(1), Florida Statutes, and thereby violation on three occasions of Section 468.129(3), Florida Statutes.

    
    

17. Further, Respondent is charged with violation of Section 468.136, Florida Statutes, by failing to record on the receipt for the Murphy sale that the hearing aid was used. The receipt does not reflect that the hearing aid was used, when it was in fact a used hearing aid. Section 468.136, supra, provides specifically that a receipt will specify whether the hearing aid is new, used or rebuilt. Respondent is guilty of one violation of Section 468.136(1), Florida Statutes, as alleged, and thereby of violating Section 468.129(4), Florida Statutes, which makes it a disciplinary offense to violate any provision of Part

    II. Because this offense is an inseparable part of the sale to Murphy, it is considered as one offense with the violation of Section 468.130, Florida Statutes.

    
    

18. The Respondent is further charged with violation of Section 468.130(2), Florida Statutes, by permitting his daughter to conduct audiographs. The record shows that Respondent's daughter, who was not registered or licensed, performed such audiographs. Section 468.122(1)(e)1, Florida Statutes, includes within the definition of fitting of hearing aids the taking of audiographs. Respondent is guilty of violating Section 468.130(2), Florida Statutes, and thereby Section 468.129(3), Florida Statutes.

    
    

19. The testimony regarding the allegations that Respondent immersed hearing aids in water to make them inoperable was not corroborated by any additional evidence. The Respondent denied having done this. Insufficient evidence exists to support a finding of guilty on this allegation of violation of Section 468.130(1), Florida Statutes.

    
    

20. It further appears from the record that at the time in question Respondent was not diligently attending to his duties as a hearing aid fitter and salesman, but was engaged in worthy and beneficial civic functions. To the extent that his involvement in these activities prevented him from performing his duties in the manner they should have been performed, they mitigate but do not excuse his conduct. The Respondent is, according to his employees, an experienced and capable registrant.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Respondent, William Hunter Gardner, be fined administratively $500 for each violation of the statute for the three violations of Section 468.130(1) and thereby Section 468.129(3), Florida Statutes, and have his license suspended for a period of two years for the violation of Section

468.130(2), Florida Statutes, the enforcement of the suspension to be suspended upon Respondent's demonstrated good conduct and adherence to the statutes, rules and regulations during that period.

DONE and ORDERED this 28th day of September, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1982.

COPIES FURNISHED:

Joseph E. Hodges, Esquire Department of HRS

2002 North West 13th Street Oak Park Executive Square Gainesville, Florida 32601

George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301

David H. Pingree, Secretary Department of HRS

1317 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-000575

Orders for Case No: 82-000575