STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 94-0966
)
GARY P. SEGRETARIO, )
)
Respondent. )
) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 94-0967
)
GARY P. SEGRETARIO, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on October 19, 1994, in Orlando, Florida
APPEARANCES
For Petitioner: Susan E. Lindgard, Esquire
Senior Attorney
Department of Business and Professional Regulation
1940 North Monroe Street, Suite 60 Northwood Centre
Tallahassee, Florida 32399-0792
For Respondent: William J. Sheaffer, Esquire
Attorney at Law
609 East Central Boulevard Orlando, Florida 32801
STATEMENT OF THE ISSUES
as to DOAH Case Number 94-0966
Whether disciplinary action should be taken against Respondent's license to practice as hearing aid specialist based on a violation of Sections 484.056(1)(g), Florida Statutes (1991) by allegedly selling old, stolen hearing aids as new hearing aids as alleged in the Administrative Complaint.
STATEMENT OF THE ISSUES
as to DOAH Case Number 94-0967
Whether the Respondent has violated Section 484.0501(6), Florida Statutes (1991), by failure to conduct an audiometric test by a licensee or authorized trainee in the fitting and selling of hearing aids in a testing room that has been certified by the Department, or an agent for the Department.
Whether the Respondent has violated Section 484.0501(5), Florida Statutes (1991), by failure of a hearing aid office to have available, or have access to, a selection of hearing aid models, hearing aid supplies, and services complete enough to accommodate the various needs of the hearing aid wearers.
Whether the Respondent has violated Section 484.056(1)(h), Florida Statutes (1991), by violating a rule of the Board, to wit: Rule 22JJ-6.008(1), Florida Administrative Code (1991), by failure of the licensee to display, in a conspicuous place, the availability of itemization of total purchase price of the hearing aid.
Whether the Respondent has violated Section 484.056(1)(h), Florida Statutes (1991), by violating a rule of the Board, to wit: Rule 22JJ-6.002(1), Florida Administrative Code (1991), in that all audiometric testing equipment used by a licensee shall be tested and calibrated acoustically according to current ANSI standards on an annual basis. Records of certification of such testing and calibration from the manufacturer or independent certified testing agent shall be retained by the licensee.
Whether the Respondent has violated Section 484.056(1)(i), Florida Statutes (1991), by violating a lawful order of the Board or Department previously entered in a disciplinary hearing or failure to comply with a lawfully issued subpoena of the Board or Department.
PRELIMINARY STATEMENT
On November 30, 1993, Petitioner filed two Administrative Complaints against the Respondent, Gary P. Segretario, alleging a violations of the Hearing Aid Specialist Practice Act. On December 22, 1993, the Respondent requested a formal hearing by executed election of rights form. This matter was referred to the Division of Administrative Hearings for hearing on February 24, 1994.
Following the substitution of attorneys and a continuance, the formal hearing was held on October 19, 1994, in Orlando, Florida.
The Petitioner presented the testimony of Nancy Martin, and Denson Dingler as an expert witness. Additionally, the Petitioner offered six (6) exhibits into evidence, all of which were admitted. The Petitioner requested the Hearing Officer to take official recognition of Chapter 484, Part II, Florida Statutes, and Chapter 61G-9, Florida Administrative Code, which governs the practice of hearing aid specialists. The Hearing Officer so recognized the statute and rules.
The Respondent testified on his own behalf and offered the testimony of three witnesses: Paul Evans, Dan Culley, and Barbara Segretario. Additionally, the Respondent offered three (3) exhibits into evidence, of which only the first and third were admitted.
Following completion of the first hearing, the second hearing was held.
The Petitioner presented the testimony of Juan Quintana, Investigations Specialist II, and Denson Dingler as an expert witness. Additionally, the Petitioner offered one (1) exhibit into evidence, which was admitted. The Petitioner requested the Hearing Officer to take official recognition of the statutes and rules which govern the practice of hearing aid specialists. The Hearing Officer recognized the statutes and rules. The Respondent testified on his own behalf.
The transcript of the combined hearing was filed on November 28, 1994. The parties filed a motion for extension of time to file proposed findings of fact and conclusions of law, which was granted. Petitioner filed a its proposed recommended order on January 17, 1995 and Respondent filed his proposal on January 18, 1995. Each of the proposals has been given careful consideration and has been adopted when supported by clear and convincing evidence. My specific rulings on each proposal are contained in the Appendix attached hereto.
FINDINGS OF FACT
Respondent is, and has been at all times material hereto, a licensed hearing aid specialist in the State of Florida, having been issued license number AS 0002321.
Respondent is a licensed hearing aid specialist and has been so licensed for approximately seven years.
During the seven-year period as a licensed hearing aid specialist, Respondent has fitted over 2,500 hearing aid devices.
Prior to the instant complaint, Respondent had no disciplinary actions against him relating to customer service.
as to DOAH Case Number 94-0966
Ms. Ola Martin is seventy-two (72) years old and has a hearing problem.
In 1993, Ms. Nancy Martin retained the services of Bob Horine at Hearing World, Inc., in Maitland, Florida, for purposes of purchasing a hearing aid for her mother, Ms. Ola Martin.
On January 6, 1993, Ola Martin came in the offices of Hearing World, Inc., and was examined by Bob Horine, the owner.
Horine did the audio testing on Ola Martin by mechanically checking her hearing and fitting her for hearing aids.
The only persons in the office at that time were Respondent, Ola Martin, Horine, and Mrs. Martin's daughter, Nancy Martin, who had accompanied her mother to Hearing World, Inc.
During the time that Horine was selling and fitting Ola Martin with her hearing aids, Respondent was in and out of the examination room. Respondent was introduced to Martin at that time.
Respondent did not participate in the examination or taking of impressions of Ola Martin's ears for the hearing devices.
The person responsible for fitting and selling the hearing aids to Ola Martin was Bob Horine.
The contract for sale and delivery of the hearing aids to Ola Martin was made between Horine and Ola Martin.
Ola Martin stated that she was returning to Kentucky in two days and asked if she could have rush service. Horine agreed and advised her to pick up her hearing aids the following day, January 7, 1993.
Ola Martin paid $1,295.00 to Horine on the same day that he tested her hearing for hearing aids.
Horine asked Respondent for assistance in obtaining rush service. Respondent agreed that he would take the paperwork to the SonoTone Laboratory in Casselberry. They agreed to expedite the manufacture of the hearing aids for Ola Martin.
Ola Martin arrived the following day with her daughter to retrieve her hearing aids. She was informed that neither Horine, nor Dan Culley, Hearing Aid Specialist, were available for the fitting, and the fitting would be done by Respondent.
After agreeing to perform the final fitting for Martin, Respondent retrieved her file and found hearing aid devices inside.
The file contained two devices, one for each ear.
Respondent took Martin back to the examination area and examined her ears to make sure that they were free of wax.
Respondent then took the hearing aids, installed the batteries, and placed the aids into Martin's ears, asking her how they felt.
Respondent then showed Martin how to work the hearing devices.
Respondent then gave Martin a 25-word discrimination test from a distance of ten feet.
During the fitting, Martin conveyed to Respondent that the hearing aids seemed a little too large. Respondent then took them to another room where he buffed the hearing aids with a drill in order to help them fit properly.
When placed back in the ears of Martin, they seemed to fit properly.
Respondent instructed Martin to leave the hearing aids in place for one hour on the first day, and then gradually to increase the wearing time until she was comfortably wearing the hearing aids at all times except at night.
At no time did Martin communicate her dissatisfaction with the fit or sound of her hearing aids to Respondent.
Martin was in a hurry to conclude her business with Respondent, as she was worried that her daughter was going to be angry with her for taking so long.
The serial numbers on the hearing aid devices delivered to Martin are too small to be viewed by the naked eye and require magnification to be seen.
Respondent did not check the invoice numbers against the numbers on the devices delivered to Martin.
At Hearing World, hearing aids were checked in through the receptionist, who would prepare the hearing aid devices for delivery. The receptionist was responsible for checking the serial numbers against those listed on the invoice.
Respondent assumed when he found the two hearing aids in Martin's file, that they were the hearing aids which had been manufactured by SonoTone for her.
Respondent made a visual inspection of the hearing aids and did not check the serial numbers from the manufacturer against those on the hearing aid devices.
Neither a visual inspection, nor from any communication from Martin, caused Respondent to believe that the hearing aids which he inserted at that time were not those manufactured for Martin.
Respondent received no negative communication from Martin after the fitting of her hearing aids.
Approximately two to three days after Respondent fitted Martin's hearing aid devices, he was informed by the receptionist that two hearing aid devices had arrived from SonoTone for Martin.
Respondent then realized that the hearing aids which were in Ola Martin's possession were not manufactured for her.
When Respondent informed Horine of the error, Horine told Respondent that he had used Respondent's models in testing, and had "stuck" [sic] them in her file by mistake.
Horine told Respondent that he would take care of the matter and straighten out the erroneous delivery.
The standard operating procedure employed at Hearing World, Inc. in fitting a client with hearing aids was as follows:
Hearing aids would be ordered.
The hearing aids would then be manufactured by SonoTone in Longwood and sent to Hearing World, Inc.
The hearing aids would first come to the secretary at Hearing World, Inc.
The secretary would then take the hearing aids out, inspect them, insert batteries, and test their functioning.
The secretary would record the serial numbers on the invoice and check those with the serial numbers on the hearing devices
and place the hearing devices in the client's file.
The person fitting the hearing aids would then pick up the file.
It was not negligent, incompetent or misconduct for Respondent to have picked up Ola Martin's file, and finding two hearing aids therein, place them in the client's ears with a visual check only. After making the slight adjustment for size and with no complaints from the client as to audio or fitting problems, Respondent would not have had cause to double check the manufacturer's number on the hearing aids with the manufacturer's number on the invoice.
Although the hearing aids helped Ola Martin's hearing, upon her return to Lexington, Kentucky, she complained that they seemed too loud even when she turned them down as low as they would go.
Martin went to the Miracle Ear office in Lexington to have her hearing aids examined, and was examined by James McFadden, a hearing aid specialist for
29 years.
Martin complained to McFadden that her hearing aids did not fit properly and that the sound was not clear.
Upon examining Ola Martin's device, McFadden observed that they did not fit properly.
McFadden attempted to adjust the hearing aids to Martin's satisfaction, but was not able to do so.
McFadden obtained the serial number from the hearing device and spoke to a Miracle Ear representative in Minneapolis. He was informed that the hearing aid devices were registered to a woman in the Miami area and were fitted to that woman in March, 1991.
McFadden then retested Martin and made new impressions of her ears for another Miracle Ear hearing device.
The hearing aids brought to McFadden by Martin were originally made for Isabella Miller and were sold through Jean Marohn, a Miracle Ear franchisee based in Fort Myers, Florida. The shipping date was March 27, 1991.
Miracle Ear instructed Martin to return the hearing aids to the original seller, Horine, for a complete refund.
Based upon her conversation with McFadden, Martin returned the hearing aids to her daughter in order to obtain a refund from Hearing World, Inc., in Orlando.
Ola Martin's daughter contacted Hearing World and was reimbursed by Horine for the full amount paid for hearing aids.
Subsequently, Ola Martin filed a complaint with the Florida Department of Business and Professional Regulation against Horine, but not as to Respondent.
Dahlburg is the manufacturer of Miracle Ear. During the manufacturing process, a serial number is placed on the hearing instrument which is unique for that particular hearing instrument. It is registered to the single individual for whom the instrument is made.
Upon construction of the hearing instrument, it is shipped to the franchisee for placement in the consumer's ear.
A franchisee outside the Minneapolis area could not obtain a hearing device from Dahlberg within a 24-hour period.
Miracle Ear replaced Martin's hearing aids with new Miracle Ear hearing instruments at no cost to her.
Jean Burton Marohn is a licensed hearing aid specialist in the State of Florida and owner of a Miracle Ear franchise located in Ft. Myers, Florida.
In the early 1990's, Respondent was employed by Marohn as a manager at the store in Miami that covered South Dade and Monroe Counties.
Respondent was employed in that capacity until approximately September 1992, when the store closed and he lost his home and personal belongs to Hurricane Andrew.
The hearing aids in possession of Ola Martin were, in fact, sold by the Miami store to Isabella Miller.
The hearing aids originally constructed for Isabella Miller were returned by her to Marohn's office in Miami. Miller alleged she was dissatisfied with the product, and could not afford the payments.
Although Marohn attempted to rectify the problem with the hearing aid devices, Miller refused to reclaim possession of the hearing aids. They remained in Marohn's Miami location because the manufacturer's return period had expired.
At the time of the impending Hurricane Andrew, Marohn requested that Respondent remove from the store what items he could: typewriters, telephones, copy machines, fax machines, and audiometers because of the potential for looting after the storm passed through.
Respondent did so and informed Marohn that, in addition to the above items, he also removed stock and merchandise from the store.
None of the items removed by Respondent, including the hearing aid devices, were returned to Marohn after the hurricane.
In March of 1993, Marohn received a telephone call from an attorney calling on behalf of Respondent informing her that Respondent wanted to return the items removed from her store in exchange for commissions that she owed him.
Marohn informed Respondent's attorney that she had replaced the equipment that Respondent had removed and she refused to accept the return of her property.
Marohn tendered a casualty loss to her insurance company, including items that Respondent removed with knowledge, including the hearing aids.
At the time that Respondent discontinued employment with Marohn, he was due a minimum of $3,000.00 in commissions.
Prior to Hurricane Andrew, Marohn provided Respondent with a number of hearing aid devices which were given to him and which he employed as display or demonstrative models.
The hearing aids returned to Marohn by Miller at Miracle Ear were given to Respondent for demonstrative purposes.
Respondent kept approximately 12 pair of canal hearing instruments, including Miller's, of different sizes and frequencies in his display case, which he called Pandora's Box. He took this display case with him when he moved to Central Florida.
After Hurricane Andrew occurred, Respondent left Marohn's employment and moved to Central Florida. He also took with him certain items that he had removed from the store.
Subsequent to Respondent's departure, a dispute arose between him and Jean Marohn over commissions that were due from his employment with her.
Respondent contacted an attorney who attempted to reach a settlement with Marohn as to the items held in Respondent's possession and commissions owed to him by Marohn.
Respondent is currently in litigation with Marohn over the commissions
due.
Upon departing the Miami area, Respondent began employment with
Hearing World, Inc. on Woodcock Road, Orlando, Florida.
Respondent was employed at Hearing World, Inc. by Bob Horine and Tony Andreozzi. Bob Horine was president and manager of the Hearing World facility.
The only compensation received by Respondent was 30 percent of the sale of hearing aids sold by him.
Whenever Respondent completed the final fitting for a customer for hearing aids sold by Horine, Respondent would not receive any compensation.
as to DOAH Case Number 94-0967
On June 21, 1993, the Petitioner conducted an inspection at Respondent's place of employment in Maitland, known as Hearing World, Inc.
The inspection revealed several violations of Florida law, as follows:
The testing room facilities and files were missing waiver forms.
A failure to have hearing aid models, supplies and services available on the premises.
A failure to post prices.
A failure to provide calibration certifi- cates for audiometers in use in the facility.
At the time of the inspection at Hearing World, Respondent introduced himself to Petitioner's inspectors as a vice president of that company.
At the time of the inspection, Respondent was employed at Hearing World located on Woodcock Road in Orlando, Florida as a sales representative. Under his compensation agreement, he was to be paid for 30 percent of his sales.
The owners of the company, Hearing World, Inc., located at Woodcock Road, Orlando, Florida, were Bob Horine and Tony Andreozzi.
Respondent had no ownership interest in Hearing World, and was neither stockholder, officer, director nor minority shareholder in the company.
Respondent received no compensation from the sales of hearing devices sold by other owners, managers, or employees of Hearing World, Inc.
The only agreement between Respondent Horine as to the position of vice president was contingent upon Respondent's buyout of Horine's interest in Hearing World, Inc. A transaction which never came to fruition.
Respondent expended no personal funds in renovating the office; purchasing signs, equipment, advertising or office overhead.
The occupational license for Hearing World, Inc., posted on the premises, did not contain Respondent's name.
Although Horine's Hearing Aid specialist license had been either suspended or revoked, Respondent had no knowledge of that fact until after the June, 1993 inspection.
Respondent at no time agreed or intended to be the licensed person on the premises responsible for the business and training of other employees.
At the time of the June, 1993, inspection, Hearing World had been at that location approximately 30 days.
At the time of the June, 1993, inspection, there was an audiometric testing room on the premises under construction.
An individual, named John Harris, was overseeing the work on the telecoustics and was in the process of doing the final calibration on the audiometric testing room at the time of the inspection. It was completed within a few days thereafter.
At the time of the June 1993 inspection, Hearing World carried its services outside the office location and provided in-home service.
At the time of the inspection, Respondent was not conducting any testing in the office. He was practicing in-home service.
At the time of the inspection, hearing aid models, supplies and services were on the premises but were in the possession of the respective sales representatives. They stored them in their individual display cases (Pandora's Box).
A majority of all supplies were located in the employees' Pandora Boxes, since Hearing World, Inc. was predominantly a field operation. The bags were utilized by the employees when they left the office to make field calls.
The employees would bring their equipment to the office premises. When called into the field, they would take their equipment with them, which included hearing aid models and supplies.
Hearing aid prices were posted in the administrative office at Hearing World, Inc., where the clients would come to pay their bills.
On June 21, 1993, Respondents wife, Barbara Segretario, was employed as an administrator on the premises at Hearing World, Inc.
Barbara Segretario was responsible for handling all the paperwork, accepting money, paying bills, and making financial arrangements for the purchase of hearing aids or to pay for repairs.
All clients who came into the office to pay a bill, make financial arrangements, purchase a hearing aid, or pay for a repair would come into her office at Hearing World, Inc.
There was a price list for hearing aids posted in Barbara Segretario's office in front of her desk, next to the window to her left, said price was posted on June 21, 1993, at the time of the inspection.
Every transaction at Hearing World, Inc. included a visit by the client to the administrative offices for financial arrangements where hearing aid prices were conspicuously posted.
Hearing World employed a service representative on June 21, 1993. When the inspection occurred, the representative was off the premises.
The service representative's service equipment, as well as hearing aid models and supplies, were kept with him so that they were present when he was on the premises. He left with them when he went into the field to do an in- home service on behalf of Hearing World, Inc.
Generally, these services were not conducted on premises, but were carried into clients' homes.
All of the sales personnel at Hearing World, Inc. had their own hearing aid models which were kept with them in a display case, which they had in their possession while on premises and carried with them into the field for in-home services.
There were two audiometers in use on the premises at the time of the June 1993 inspection; however, Horine and Respondent could not provide a certificate of calibration for those instruments to the inspector.
Respondent did not provide the certification to the Petitioner for the audiometer that he employed at the time of the inspection.
There were other audiometers on the premises that were not in use and were not certified at the time of the June 1993 inspection.
A copy of the certifications of the two audiometers being used on the premises on June 21, 1993 were mailed to Petitioner after being requested by the Inspector.
As of the date of this hearing, Petitioner had not received the certifications that were mailed pertaining to the two audiometers employed on the premises at the time of the inspection.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Section 120.57(1), Florida Statutes.
The Department of Business and Professional Regulation, Board of Hearing Aid Specialists, as the party seeking to establish a violation of its rules, regulations and Florida Statutes, has the burden of proving the allegations by clear and convincing evidence. Freeze v. Dept. of Business Regulation, Div. of Alcohol, Beverages & Tobacco, 556 So.2d 1204 (5th DCA 1990). Southpointe Pharmacy v. Dept. of Health and Rehabilitative Services, 596 So.2d 106 (1st DCA 1992).
as to DOAH Case No. 94-0966
Petitioner alleged that Respondent has violated Section 484.056(1)(g), Florida Statutes (1991), by engaging in fraud, deceit, negligence, incompetency, or misconduct in the practice of dispensing hearing aids.
Fraud or deceit is defined as an intentional untruth between parties to a transaction. It is therefore limited generally to misrepresentations, concealments, or other artifices employed to deceive another. Douglas v. Ogle, 85 So. 243 (Fla. 1920).
Negligence is defined as the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances, or the doing of what a reasonable and prudent person would not have done under the circumstances. DeWald v. Quarnstrom, 60 So.2d 919 (Fla. 1952).
Incompetency is defined as a lack of ability, legal qualification, or fitness to discharge a required duty, Black's Law Dictionary, Revised Fourth Edition, West Publishing Company, 1968.
Misconduct is defined as a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior. Black's Law Dictionary, Revised Fourth Edition, West Publishing Company, 1968.
Petitioner failed to present clear and convincing evidence rising to the ordinary understanding and definition of fraud, deceit, or misconduct. The delivery of the wrong hearing aid device to Martin was at worst, a mistake on Respondent's part. Such a mistake does not rise to the level of negligence or incompetency, as comtemplated by the statute or rules.
In addition when Respondent discovered the mistake, he took all reasonable measures to rectify the mistake in a timely manner.
as to DOAH Case No. 94-0967
Petitioner has alleged that Respondent has violated Section 484.0501(6), Florida Statutes (1991), wherein it is stated, inter alia, that:
each audiometric test conducted by a licensee or authorized trainee in the fitting and selling of hearing aids,
shall be made in a testing room that has been certified by the Department,
or by an agent approved by the Department
. . . an exception to this requirement shall be made in the case of a client, after being provided written notice of the benefits and advantages of having
the test conducted in a certified testing room, requests that the test be conducted in a place other than the licensee's certified testing room. . .
Petitioner failed to present clear and convincing evidence that any tests were conducted by Respondent in violation of Section 484.0501(6), Florida Statutes (1991).
At the time of the June 21, 1993 inspection, an audiometric testing room was under construction and it was completed within days of the inspection.
Petitioner has presented no evidence that any test conducted by Respondent was not conducted pursuant to the statute, nor did Respondent conduct an examination of a client who, after being provided written of the benefits and advantages of having the test conducted in a certified testing room, requested that such test be conducted in a place other than the licensee's certified testing room. Section 484.0501(6), Florida Statutes.
Section 484.0501(5), Florida Statutes (1991), which states, in pertinent part, that a hearing aid office must have available, or access to, a selection of hearing aid models, hearing aid supplies, and services complete enough to accommodate the various needs of the hearing aid wearers.
Petitioner failed to adduce clear and convincing evidence that Respondent maintained an ownership or managerial interest in Hearing World, Inc. as of the date of the June 21, 1993 inspection. Indeed, the evidence established that Respondent was only an employee of Hearing World, Inc., and had no ownership or managerial interest in it. Respondent having no ownership or managerial interest in Hearing World, Inc., cannot be held liable for a violation of Section 484.0501(5), Florida Statutes (1991) that relates to equipment which must be possessed by a hearing aid office.
Further, the evidence shows that all hearing aid specialists and service technicians at Hearing World, Inc. had in their possession, or had access to, a full panoply of hearing aid models, hearing aid supplies and services complete enough to accommodate the various needs of hearing aid wearers. This equipment was kept by them in a portable display case (Pandora Box).
Section 484.056(1)(h), Florida Statutes (1991), provides in pertinent part, that the licensee shall display in a conspicuous place the availability of itemization of total purchase price of the hearing aid.
Respondent was merely an employee of Hearing World, Inc. at the time of the inspection and possessed no ownership or managerial interest in the office. Respondent, having no ownership or managerial interest in Hearing World, Inc. cannot be held liable for a violation of Florida Statutes, Chapter 484.056(1)(h), Florida Statutes (1991) and Rule 21JJ-6.008(1), Florida Administrative Code (1991).
Further, the evidence established that, at the time of the June 21, 1993 inspection, a price list was conspicuously posted with the availability of itemization of total purchase price of the hearing aids in the administrative offices located on the premises of Hearing World, Inc.
Rule 21JJ-6.008(1), Florida Administrative Code (1991) provides, in pertinent part, that all audiometric testing equipment used by licensee shall be tested and calibrated acoustically according the current ANSI standards on an annual basis. Records of certification and such testing and calibration from the manufacturer or independent certified testing agent shall be retained by the licensee.
At the time of the June 21, 1993 inspection, Respondent failed to provide to the Inspector certificates of testing and calibration from the manufacturer or independent certified testing agent. Although Respondent offered evidence that a copy of the certification of testing was mailed to Petitioner's office, there was no evidence to show that it was received by Petitioner. Respondent had a duty to produce the certification when requested.
The Petitioner has shown by clear and convincing evidence that Respondent violated Rule 21JJ-6.002(1) Florida Statutes (1991).
Petitioner alleged that Respondent has violated Section 484.056(1)(i), Florida Statutes (1991), which provides, in pertinent part that Respondent has violated a lawful order of the Board or Department previously entered in a disciplinary hearing, or has failed to comply with a lawfully issued subpoena of the Board of Department. At the time of the formal proceedings held October 19, 1994, Petitioner filed an ore tenus voluntary dismissal of that allegation.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative
Complaint as to DOAH Case No. 94-0966. It is further
RECOMMENDED that a Final Order be entered dismissing Counts I, II, III and V of the Administrative Complaint as to DOAH Case No. 94-0967, finding Respondent guilty of violating Count IV of the Complaint and imposing an administrative fine of $100.00 for said offense.
DONE AND ENTERED this 14th day of April, 1995, in Tallahassee, Florida.
DANIEL M. KILBRIDE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1995.
APPENDIX
Petitioner's Proposed Findings of Fact:
Accepted in substance: paragraphs 1, 2 (in part), 3, 4, 5, 6, 7, 8 (in
part), 9 (in part), 10, 11, 13, 14, 17, 18, 19, 21, 22, 24, 25, 26, 28, 30, 31
(in part), 32 (in part), 34, 36, 37, 38 (in part), 39 (in part), 40 (in part),
42, 46, 47, 48 (in part).
Rejected as not proven by clear and convincing evidence: paragraphs 2 (in part), 8 (in part), 9 (in part), 12, 31 (in part), 32 (in part), 33, 38 (in
part), 39 (in part), 40 (in part), 41, 48 (in part).
Rejected as subsumed, irrelevant or immaterial: paragraphs 5, 15, 16, 20,
27, 29, 35, 43, 44, 45.
Respondent's Proposed Findings of Fact for Case No. 94-0966
Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 (in
part), 12, 13, 14, 15 (in part), 16, 17, 18 (in part), 19, 20, 21, 23, 24, 25,
26, 28, 29, 30, 33 (in part), 34, 35, 36 (in part), 38, 39, 40, 41, 42, 43, 44,
45, 46, 47, 48, 49 (in part) 50 (in part), 51 (in part), 52 (in part), 57, 58,
61, 64, 67, 68, 69, 70 (in part), 71, 73, 74, 75, 76, 77, 78, 79, 80, 81 (in
part), 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99,
100, 101, 102, 103, 108 (in part), 109, 110, 111.
Rejected as against the evidence: paragraph 11 (in part), 15 (in part), 18 (in part) 51 (in part), 52 (in part).
Rejected as subsumed, irrelevant or immaterial: paragraphs 22, 27, 31, 32,
33 (in part), 36 (in part), 37, 49 (in part), 50 (in part), 53, 54, 55, 56, 59,
60, 62, 63, 65, 66, 70 (in part), 72, 81 (in part), 104, 105, 106, 107, 108 (in
part), 112, 113, 114, 115, 116, 117.
Respondent's Proposed Findings of Fact for Case No. 94-0967
Accepted in substance: paragraphs 1, 2, 4 (in part), 5, 6, 10, 11, 12, 13,
14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 34, 35,
36, 39, 40, 41, 42, 43, 44, 45, 47 (in part), 48 (in part), 49, 50, 51 (in
part), 53.
Rejected as subsumed or irrelevant or immaterial: paragraphs 3, 31, 37,
38.
Rejeted as not proven by clear and convencing evidence: paragraphs 4 (in
part), 7, 8, 9, 46, 47 (in part), 48 (in part), 51 (in part), 52.
COPIES FURNISHED:
Susan E. Lindgard, Esquire Senior Attorney
Department of Business and Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
William J. Sheaffer, Esquire 609 East Central Boulevard Orlando, Florida 32801
Susan Foster Executive Director
Hearing Aid Specialists Department of Business and Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Lynda L. Goodgame General Counsel
Department of Business and Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Proceedings |
|---|---|
| Dec. 20, 1995 | Final Order filed. |
| May 05, 1995 | Petitioner's Exceptions to Recommended Order filed. |
| Apr. 14, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 10/19/94. |
| Jan. 18, 1995 | Respondent's Proposed Final Order filed. |
| Jan. 17, 1995 | (Petitioner) Proposed Recommended Order filed. |
| Jan. 06, 1995 | (Respondent) Request for Extension of Time in Which to File Proposed Order filed. |
| Dec. 12, 1994 | Order sent out. (motion granted, parties are directed to file their proposed recommended orders by 1/6/95) |
| Dec. 07, 1994 | (Petitioner) Notice Of Cancelling Deposition filed. |
| Nov. 28, 1994 | Transcript of Proceedings filed. |
| Nov. 14, 1994 | (Petitioner) Notice of Taking Deposition filed. |
| Oct. 19, 1994 | CASE STATUS: Hearing Held. |
| Oct. 17, 1994 | (Respondent) Notice of Taking Deposition filed. |
| Oct. 17, 1994 | (Respondent) Notice of Taking Deposition filed. |
| Oct. 13, 1994 | Petitioner's First Set of Interrogatories And Request for Admissions And Request to Produce filed. |
| Sep. 26, 1994 | (Petitioner) Notice of Appearance filed. |
| Sep. 21, 1994 | (Petitioner) Notice of Taking Deposition filed. |
| Sep. 09, 1994 | (Petitioner) Second Notice of Filing filed. |
| Sep. 06, 1994 | (Respondent) Notice of Appearance of Counsel filed. |
| Jul. 27, 1994 | Notice of Hearing sent out. (hearing set for 10/19/94; at 9:00am; in Orlando) |
| Jul. 25, 1994 | (Petitioner) Motion to Set Final Hearing filed. |
| Jun. 08, 1994 | (Petitioner) Notice of Cancellation of Deposition filed. |
| Jun. 07, 1994 | (Respondent) Supplemental Information for Motion for Withdrawal As Counsel for Respondent filed. |
| Jun. 07, 1994 | Order sent out. (attorney of record for respondent may withdraw his appearance and relieved of further responsibility in this cause) |
| Jun. 07, 1994 | Order Continuing Hearing sent out. (hearing date to be rescheduled at a later date) |
| Jun. 03, 1994 | (Petitioner) Notice of Taking Deposition filed. |
| Jun. 03, 1994 | (Petitioner) Response to Respondent's Motions in Limine filed. |
| Jun. 03, 1994 | (Petitioner) Notice of Taking Deposition filed. |
| May 31, 1994 | Respondent's Motion In Limine (2); Notice of Cancellation of Deposition; Notice of Change of Address of Respondent's Counsel filed. |
| May 26, 1994 | (Respondent) Motion for Continuance; Edward R. Alexander, Jr.`s Motion for Withdrawal as Counsel for Respondent filed. |
| May 26, 1994 | Petitioner's Response to Respondent's Motion for Continuance filed. |
| May 20, 1994 | (Petitioner) Notice of Taking Deposition filed. |
| May 16, 1994 | (Petitioner) Notice of Taking Deposition filed. |
| May 09, 1994 | (Petitioner) Notice of Filing; Notice of Taking Deposition filed. |
| Mar. 29, 1994 | Amended Notice of Hearing (as to date and time only) sent out. (hearing set for 6/14/94; 10:00am; Orlando) |
| Mar. 21, 1994 | Notice of Hearing sent out. (hearing set for 06/15/94, 9:00 a.m., Orlando) |
| Mar. 14, 1994 | (Respondent) Answer filed. |
| Mar. 11, 1994 | Joint Response to Initial Order filed. |
| Mar. 03, 1994 | Initial Order issued. |
| Feb. 24, 1994 | Agency referral letter; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 11, 1995 | Agency Final Order | |
| Apr. 14, 1995 | Recommended Order | Hearing aid specialist made mistake in delivering wrong hearing aid device to client; negligence or miscondect not shown. |
