STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF HEARING AID SPECIALISTS,

Petitioner,

vs.

WILLIAM D. WILLISTON,

Respondent.

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) Case No. 02-0223PL

) DOH No. 99-02122

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RECOMMENDED ORDER

Notice was provided and on March 21, 2002, a formal hearing was held in this case. The hearing location was the Sumter County Courthouse, 201 North Florida Street, Bushnell, Florida. Authority for conducting the hearing is set forth in Sections

120.569 and 120.57(1), Florida Statutes. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Gary L. Asbell, Senior Attorney

Agency for Health Care Administration 2727 Mahan Drive

Building Three, Mail Station 39 Tallahassee, Florida 32308

For Respondent: William D. Williston, pro se

1072 Southeast 155th Street Summerfield, Florida 34491

and

3131 Southwest College Road, Suite 302

Ocala, Florida 34474

STATEMENT OF THE ISSUE

Should Petitioner discipline Respondent's hearing aid specialist license for reasons alleged in the Amended Administrative Complaint?

PRELIMINARY STATEMENT

On May 3, 2001, the State of Florida, Department of Health, Board of Hearing Aid Specialists brought an Administrative Complaint, Case No. 99-02122, against Respondent. On May 30, 2001, Respondent availed himself of the opportunity to contest the issues of material fact alleged in the Administrative Complaint. The request for formal hearing was in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

On January 15, 2002, the case was forwarded to Sharyn L. Smith, Director and Chief Judge, Division of Administrative Hearings, for the assignment of an Administrative Law Judge to conduct a formal hearing. The case was assigned and the formal hearing conducted on the hearing date described.

Prior to hearing Petitioner moved to amend the Administrative Complaint. That motion was granted and the case proceeded on the basis of the Amended Administrative Complaint. Count I to the Amended Administrative Complaint accuses Respondent of violating Section 484.0512, Florida Statutes, thereby violating Section 484.056(1)(h), Florida Statutes, by failing to provide a refund for a hearing aid returned within 30

days of the delivery, by failing to allow cancellation of the agreement, and by retaining more of the purchase price amount than allowed by Florida law, all in relation to the patient C.D. Count II to the Amended Administrative Complaint alleges that Respondent has violated Section 484.056(1)(h), Florida Statutes, by failing to include his signature and license number on the sales receipt in violation of Rule 64B6-8.003(1)(c), Florida Administrative Code, pertaining to the sale of a hearing aid to C.D., and by knowingly employing an unlicensed person in the practice of hearing aid dispensing, allowing the sale of a hearing aid by that unlicensed person, and assisting or aiding that unlicensed person, in violation of Section 455.624(1)(j), Florida Statutes; Section 484.053(1)(f) and (3), Florida Statutes; and Section 484.0445(2), Florida Statutes. Count III to the Amended Administrative Complaint accuses Respondent of being guilty of misconduct in the practice of hearing aid dispensing in violation of Section 484.056(1)(g), Florida Statutes, in failing to act responsibly for the hearing aid dispensing work performed by Darleen Sherman, his trainee, including ensuring that Ms. Sherman provided a refund if warranted. Count IV to the Amended Administrative Complaint alleges that Respondent violated Section 484.056(1)(h), Florida Statutes, and Section 484.051(2), Florida Statutes, by failing to provide the terms and conditions of the "statutory guarantee"

in writing on the sales receipt prior to delivery of the hearing aid in question.

The reference in Paragraph 10 to the Amended Administrative Complaint to Rule 64B-6.9003, Florida Administrative Code, was corrected to reflect Rule 64B6-8.003, Florida Administrative Code.

Petitioner presented the testimony of Kathy L. Redfearn; C.D.; V.D., C.D.'s wife; Theresa Skelton; and Darleen Sherman. Petitioner's Composite Exhibits numbered 1 through 4 and 6, and Exhibits numbered 5 and 7 through 9 were admitted. Respondent testified in his own behalf. Respondent's Composite Exhibit numbered 1 and Exhibit 2 were admitted.

Petitioner requested Respondent to admit 18 facts. All but Numbers 13 and 15 were admitted. Those admissions by Respondent are available for fact finding.

Official recognition was made of Chapters 455, Part II, 456, and 484, Part II, Florida Statutes, together with Chapters 61G-9 and 64B-6, Florida Administrative Code, in effect at times relevant to the case.

A hearing transcript was filed on April 18, 2002.

Petitioner submitted a proposed recommended order. Respondent submitted a written response and rebuttal to the proposed recommended order. The submissions by the parties have been considered in preparing the recommended order.

FINDINGS OF FACT

1. At all times relevant to this proceeding Respondent William D. Williston has been a licensed hearing aid specialist in Florida, having been issued license no. 1439 by the Florida Board of Hearing Aid Specialist, commencing April 1, 1983.

2. At all times relevant to the inquiry Respondent operated a business known as the Sumter Hearing Center in Wildwood, Florida, from which hearing aids were sold and dispensed.

3. At times relevant to the inquiry Respondent sponsored Darleen L. Sherman as a trainee at his business. Respondent also served as the designated hearing aid specialist to assist in the training of Ms. Sherman. Respondent served in the capacity of direct supervisor to Ms. Sherman in her attempt to learn the necessary skills to become a licensed hearing aid specialist.

4. Respondent's initial sponsorship and supervision of Ms. Sherman's training, wherein Respondent had been designated to serve, was for the training period June 24, 1997 through December 23, 1997. Ms. Sherman completed that training program. Following the completion of her training she took the hearing aid specialist examination. She failed the written theory portion of the examination taken May 1, 1998 through May 3, 1998. Ms. Sherman and Respondent were made aware of those

   results by notice mailed to the candidate for licensure on June 4, 1998.

5. On June 6, 1998, Ms. Sherman reapplied to participate in a training program sponsored and supervised by Respondent. This was a request to repeat the training. Ms. Sherman's application form submitted to Petitioner was accompanied by a form completed by Respondent as sponsor, also dated June 6, 1998. On June 8, 1998, a check was written by Ms. Sherman to Petitioner in the amount of $105 for the stated purpose of participation in the "second training program."

6. On June 13, 1998, Ms. Sherman was officially registered for the repeat training program with Respondent serving as sponsor and a prospective examination date to gain her license as hearing aid specialist was provided. That date for examination was sometime in January 1999. The training program registration identified the repeat training program period as running from June 12, 1998 through December 11, 1998. Stage I to that training program was June 12, 1998 through July 11, 1998; Stage II July 12, 1998 through September 11, 1998, and Stage III September 12, 1998 through December 11, 1998.

7. During the hiatus between being notified that Ms. Sherman had failed the May 1998 examination and the

   beginning date for the repeat training program, Ms. Sherman, with Respondent's knowledge, acted in behalf of Respondent's

   hearing aid specialist business in Wildwood, Florida. This took place on June 9, 1998, involving the patient C.D., outside Respondent's presence. On that date Ms. Sherman performed hearing aid testing on C.D. and sold C.D. new hearing aids manufactured by Rexton for a total price of $4,000. The first

   $2,000 to purchase was paid on that date. The sales receipt provided C.D. was signed by Ms. Sherman indicating that she was a hearing aid specialist, which she was not. C.D. also signed the receipt form. The receipt provided C.D. on June 9, 1998, indicated that the hearing aids were guaranteed by Rexton for a period of one year with a loss and damage provision available with a 25% deductible.

8. C.D. was provided another document which he signed and dated June 9, 1998. That document was entitled "30-day trial agreement." By its terms it said:

   I agree to wear my new hearing aid for the full 30-day trial period, and will come in at least once a week for consultation and any adjustments that may be needed. If the hearing aids are returned to the laboratory for any modification, my trial period will resume upon refitting of the hearing aids. I realize that hearing aid fittings are individual in nature and that it is normal to expect adjustments to be made. It has taken a long time for my hearing loss to develop, and will take some time to once again begin to enjoy the sound of life.

   Respondent was aware of the use of this type form in his business and the type of sales receipt form utilized in the transaction with C.D.

9. Contrary to Respondent's testimony it is not found that

   
   

   C.D. was provided a form with information entitled "30-day trial agreement terms and conditions" as of the purchase date June 9, 1998, or upon any other date. C.D. in his testimony disclaimed being presented the form "30-day trial agreement terms and conditions." His testimony is supported by his wife, V.D.

   Ms. Sherman does not recall whether the form "30-day trial agreement terms and conditions" was provided to C.D.

10. The "30-day trial agreement terms and conditions" was used on occasion by Respondent and Ms. Sherman but not here. The form is similar to the notice requirements set forth in Section 484.0512, Florida Statutes, dealing with the statutory requirement for a 30-day trial period and money back guarantee, together with the opportunity to return the hearing aids or mail written notice of cancellation to the seller and Rule 64B-6.001, Florida Administrative Code, which further describes written notice requirements.

11. On June 19, 1998, Ms. Sherman received from the factory the hearing aids purchased by C.D. They had the wrong circuitry. As a consequence Ms. Sherman returned the hearing

    aids for correction. On June 29, 1998, Ms. Sherman received the hearing aids a second time.

12. On June 30, 1998, C.D. returned to Respondent's business and was provided the hearing aids and paid the $2,000 balance for the purchase. Respondent was in attendance on this occasion. No further documentation was provided C.D. concerning his purchase when he took delivery of the hearing aids.

13. Shortly after receiving the hearing aids C.D. and his wife took a vacation in north Georgia.

14. On July 14, 1998, C.D. wrote Ms. Sherman concerning the hearing aids in question. In that correspondence he said "Sorry, but these hearing aids just don't meet my needs. Please refund my $4,000." On that same date by registered delivery, return receipt requested, C.D. sent the hearing aids back to Respondent's Wildwood, Florida, business address. The hearing aids were received at that address on July 20, 1998. The hearing aids were eventually returned to the manufacturer for credit on Respondent's account with Rexton. This disposition occurred around August 10, 1998.

15. On July 20, 1998, the same day that the hearing aids were received by Respondent's business, Ms. Sherman wrote C.D. at his Florida address in Lake Panasoffkee, Florida. In that correspondence she identified herself as being a hearing aid specialist and an office manager for Respondent's Sumter Hearing

    Centers, one of which was at the Wildwood, Florida, address. In this correspondence she stated:

    We are in receipt of your hearing aid. As we agreed when you purchased the hearing aid you would give the hearing aid a 30-day trial basis, therefore I would suggest that we delay canceling this order. My suggestion is again a 30-day trial basis effective upon your return. It is important that I know what kind of problems, 'not loud enough, too much background noise, whistling, fit uncomfortable or etc.' you are having so that I can make adjustments and have you try them again. I am confident that we can get you to hear better. Please contact me at 352-793-4422 regarding the above matter.

    
    

16. On August 6, 1998, C.D. responded to the July 20, 1998 letter from Ms. Sherman by writing to her and saying:

    In reference to your letter of July 20th; be advised that I have purchased another hearing aid and I am happy with them

    [sic]. Please return the $4,000 I paid for the Rexton aids.

    
    

    In fact, C.D. had not purchased another hearing aid. He made this false statement as a further attempt to be reimbursed the purchase price for the Rexton hearing aids.

17. C.D. made numerous attempts to obtain a refund for the hearing aids purchased, to no avail. Respondent was aware of these attempts. Among the efforts was contact by Randall M. Thornton, Esquire, C.D.'s attorney, who wrote to the Respondent's business address at Wildwood, Florida, and another business address in Bushnell, Florida, requesting a refund in

    the amount of $4,000. This correspondence from the attorney was dated October 9, 1998. Respondent's uncorroborated testimony that he refunded the $4,000 to C.D. is not credible.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

19. In this administrative prosecution, Petitioner must prove that Respondent is guilty of the alleged misconduct charged in the Amended Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987).

20. Count I charges that Respondent, as Ms. Sherman's sponsor, was responsible to ensure that a refund was made to C.D., if it was warranted in relation to the transaction wherein Ms. Sherman was principally responsible for the sale. It is alleged that Respondent violated Section 484.0512, Florida Statutes, and in turn violated Section 484.056(1)(h), Florida Statutes, when Respondent failed to provide a refund for the hearing aids within 30 days of delivery, by failing to allow cancellation of the agreement, and by retaining more of the purchase price than allowed by Florida law. Ms. Sherman acted

    as Respondent's trainee in his behalf concerning the transaction with C.D. Following cancellation of the agreement and return of the hearing aids on July 14, 1998, neither Ms. Sherman nor Respondent provided a refund for the hearing aids that had been delivered on June 30, 1998. There was a valid reason for the return in that C.D. was not satisfied with the hearing aids following his use of the hearing aids. The record does not reflect that the hearing aids that were returned were in other than good working condition when they were received at Respondent's business on July 20, 1998. Not only has Respondent retained money from the sale authorized under Rule 64B6- 6.001(4), Florida Administrative Code, he has retained the entire $4,000 which is disallowed by Florida law. Respondent, in his person and through his trainee, Ms. Sherman, has acted inconsistent with Section 484.0512, Florida Statutes, and Rule 64B6-6.001, Florida Administrative Code, thereby violating Section 484.056(1)(h), Florida Statutes, which addresses violations of other provisions of Chapter 484, Florida Statutes, and rules promulgated pursuant to that statute.

21. Count II charges Respondent with a violation of Section 484.056(1)(h), Florida Statutes, by failing to include his signature and license number on the sales receipt in violation of Rule 64B6-8.003(1)(c), Florida Administrative Code. Rule 64B6-8.003(1)(c), Florida Administrative Code, describes

    the opportunities which a trainee has in Stage III of the training program, subject to the hearing aid specialist, here the Respondent, being physically present in the same room at the time that a hearing aid is delivered to the client and the need to provide the receipt required under Section 484.051, Florida Statutes, in that setting, with the signature and license number of the sponsor or hearing aid specialist designated by the sponsor. This rule provision is not pertinent to the circumstances in which Ms. Sherman was operating during her involvement with C.D. Ms. Sherman was not a trainee on June 9, 1998. Therefore, Respondent could not be held to violate Rule 64B6-8.003(1)(c), Florida Administrative Code, and thereby violate Section 484.056(1)(h), Florida Statutes, concerning the need to include the signature and license number of Respondent on the sales receipt when the June 9, 1998 sale was made to C.D.

22. Count II goes on to charge Respondent with knowingly employing an unlicensed person in the practice of hearing aid dispensing, allowing the sale of the hearing aid by an unlicensed person, and assisting and aiding that unlicensed person in violation of Section 455.624(1)(j), Florida Statutes (1997), now Section 456.072(1)(j), Florida Statutes; Section 484.053(1)(f) and (3), Florida Statutes; and Section 484.0445(2), Florida Statutes, thereby violating Section 484.056(1)(h), Florida Statutes.

23. Contrary to Section 484.053(1)(f), Florida Statutes, Respondent knowingly employed Ms. Sherman, who was neither licensed as a hearing aid specialist or in trainee status on June 9, 1998, when she was involved with dispensing hearing aids to C.D. at Respondent's business premises in Wildwood, Florida. For knowingly employing Ms. Sherman on June 9, 1998, in the practice of dispensing hearing aids when she was unlicensed or other than in a trainee capacity, Respondent has consequently violated Section 484.056(1)(h), Florida Statutes. Respondent also knowingly employed Ms. Sherman on that date in violation of Section 455.624(1)(j), Florida Statutes (1997), now Section 456.072(1)(j), Florida Statutes. In addition, Petitioner should order the full refund of monies paid by C.D., given his return of the hearing aids to Respondent's place of business. This is in accordance with Section 484.053(3), Florida Statutes. Given that Ms. Sherman's status was not that of trainee on June 9, 1998, the expectations of Section 484.0445(2), Florida Statutes, pertaining to Respondent's supervisory responsibilities as sponsor do not apply. Ms. Sherman was under Respondent's direct supervision when the hearing aids were delivered on June 20, 1998, consistent with Section 484.0445(2), Florida Statutes. With the conclusions related to Section 484.0445(2), Florida Statutes, there is no violation in association with that provision under Section 484.056(1)(h), Florida Statutes.

24. Count III charges Respondent, as Ms. Sherman's licensed sponsor, with being responsible with all hearing aid dispensing work being performed by Ms. Sherman, as trainee, including ensuring that a refund be made if warranted. To fail to make certain that Ms. Sherman carried forward in providing

    C.D. a refund when warranted, is alleged to violate Section 484.056(1)(g), Florida Statutes, concerning misconduct in the practice of dispensing hearing aids. As already concluded, a refund was in order. As Ms. Sherman's sponsor, Respondent should have made certain that the refund was provided on its merits. The failure to require Ms. Sherman to work toward the processing of the refund in a setting where Ms. Sherman was fostering delay in that process constitutes misconduct by Respondent in violation of Section 484.056(1)(g), Florida Statutes.

25. Count IV charges Respondent with violation of Section 484.056(1)(h), Florida Statutes, for failure to provide the terms and conditions of the "statutory guarantee" in writing on the sales receipt prior to delivery of the hearing aids.

    Section 484.051(2), Florida Statutes, pertains to the "manufacturer's guarantee," not the statutory guarantee found in Section 484.0512, Florida Statutes and supporting rules. The manufacturer's guarantee was provided by the June 9, 1998 receipt prior to the delivery of the hearing aids. No violation

    of Count IV has been shown.

    
    

26. For the violations proven, discipline may be imposed consistent with Section 484.056(2), Florida Statutes and the guidelines for discipline set forth in Rule 64B6-7.002, Florida Administrative Code. In determining the proper punishment, the recommendation is made with the knowledge of the prior disciplinary action on January 17, 1984, by final order, in Department of Professional Regulation Case No. 0041605/DOAH Case No. 83-2738, in which Respondent received 120 days' probation. Notably, this final order which accepted the stipulated disposition between the parties was one in which Respondent did not admit or deny that the stipulated facts constituted violations of law.

27. Pursuant to Section 455.624(3), Florida Statutes (1997) now amended and codified in Section 456.072(4), Florida Statutes, Petitioner is entitled to costs of investigation and prosecution. The record remains open to entertain a fact- finding hearing if there is a dispute as to the amount.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered which imposes an administrative fine of $2,000, assesses costs of investigation and prosecution, orders Respondent to refund $4,000 to C.D., and otherwise dismisses the Amended Administrative Complaint.

DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2002.

COPIES FURNISHED:

Gary L. Asbell, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Building Three, Mail Station 39 Tallahassee, Florida 32308

William D. Williston

3131 Southwest College Road Suite 302

Ocala, Florida 34474

William D. Williston

1072 Southeast 155th Street Summerfield, Florida 34491

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way Tallahassee, Florida 32399-1701

Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health

4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 02-000221PL

Orders for Case No: 02-000221PL