STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) HEARING AID SPECIALISTS, )

)

Petitioner, )

)

vs. )

)

CRAIG SCHUETTE, )

)

Respondent. )

Case Nos. 02-0520PL

02-0521PL

02-0522PL

)

RECOMMENDED ORDER

Pursuant to notice a final consolidated hearing was held in the above-referenced cases at 9:00 a.m., on April 16, 2002, at the Pinellas County Judicial Building, Fourth Floor,

Courtroom C, 545 First Avenue, North, St. Petersburg, Florida, before Administrative Law Judge William R. Pfeiffer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gary L. Asbell, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Mail Stop 39 Tallahassee, Florida 32308

For Respondent: Craig Louis Schuette, pro se

12300 Park Boulevard, Unit 220

Seminole, Florida 33772

STATEMENT OF THE ISSUE

The issue is whether Respondent, Craig Louis Schuette, committed the violations alleged in the Administrative Complaints in these cases, and if so what is the appropriate penalty to be imposed by the Petitioner.

PRELIMINARY STATEMENT

Petitioner, Department of Health, in DOAH Case No. 02-0520, filed a one-count Administrative Complaint against Respondent on April 25, 2001. In DOAH Case No. 02-0521, Petitioner filed a one-count Administrative Complaint against Respondent on February 9, 2001. In DOAH Case No. 02-0522, Petitioner filed a two-count Administrative Complaint on April 11, 2000.

Respondent disputed the facts in each case and requested an administrative hearing. By letters dated February 12, 2002, all three cases were transmitted to the Division of Administrative Hearings (DOAH). By orders dated February 26, 2002, and

March 5, 2002, the cases were consolidated and scheduled for hearing on April 16, 2002. Respondent's counsel filed an unopposed motion to withdraw as counsel and the motion was granted. Prior to final hearing, Petitioner dismissed DOAH Case No. 02-0521, which corresponds to Department of Health Case

No. 98-19487.

At final hearing on April 16, 2002, Petitioner called three witnesses and offered three exhibits into evidence. Respondent

was present but did not offer any evidence, call any witnesses or testify. He did, however, make various un-sworn statements throughout the hearing. Official Recognition was taken of Chapter 64B6, Florida Administrative Code, and Chapters 455 Part II (now Chapter 456) and 484 Part II, Florida Statutes.

FINDINGS OF FACT

1. At all times material to this proceeding Respondent has been a licensed hearing aid specialist in the state of Florida, having been issued license No. AS 2553 on June 9, 1994.

   Case No. 02-0520

   
   

2. On November 5, 1998, hearing impaired patient R.G., a resident of New York and part-time resident of Florida, visited Audiometric Hearing Center (Audiometric), a hearing aid establishment located on Fifth Avenue, North, in St. Petersburg, Florida. R.G. visited Audiometric after being contacted by postcard and telephone about a free hearing test offer.

3. While at the Center on November 5, 1998, R.G. received a hearing test and signed an agreement to purchase a pair of hearing aids for $3,500.00. Respondent signed the sales receipt on behalf of Audiometric as the selling agent.

4. R.G. paid the entire purchase price to Audiometric on November 5, 1998, by charging the entire amount on his Visa credit card.

5. On November 20, 1998, R.G. returned to Audiometric to be fitted with the new hearing aids. At that time, R.G. noticed that the hearing aids he had purchased, as described in his contract, were a different model and smaller than the devices with which he was being fitted. Respondent persuaded R.G. to test the hearing aids, and R.G. took possession of the devices on that date.

6. Twelve days later, on December 2, 1998, upon being dissatisfied with the hearing aids, R.G. returned to Audiometric with the devices and requested a refund. Audiometric accepted the hearing aids back and R.G. was advised for the first time that he would receive a refund within 90 to 120 days.

7. Although R.G. was promised a refund of $3,125.00, on December 2, 1998, he never received it. R.G. made numerous attempts to obtain a refund but never received one.

8. During an investigation of this matter by the Agency for Health Care Administration, Respondent did not accept responsibility for the refund. While Respondent agreed to assist the patient and provide a free refitting, he maintained that Audiometric was responsible for any and all refunds.

   Case No. 02-0522

   
   

9. Hearing impaired patient E.T., a resident of Canada who also resided in Florida part of the year, visited the Audiometric Hearing Center, a hearing aid establishment located

   on Walsingham Road, in Largo, Florida, on February 6, 1998.

   
   

   E.T. went to Audiometric for a free hearing test after being called and offered one by a telephone solicitor. E.T. received a hearing test on that date.

10. On February 6, 1998, E.T. purchased a hearing aid for her right ear at Audiometric for $1,980.00. Respondent signed the sales agreement on behalf of Audiometric as the selling agent. He told E.T. she needed a hearing aid and showed E.T. three hearing aids. E.T. paid the entire purchase price on February 6, 1998, by charging it on her Visa credit card.

11. On February 13, 1998, the patient accepted delivery of the hearing aid at Audiometric from someone other than Respondent. Upon experiencing an itching problem, E.T. returned the hearing aid to Audiometric on February 18, 1998, for a refund, stating that she was not satisfied with it.

12. Someone at Audiometric, other than Respondent, accepted the returned hearing aid from E.T. and promised her a refund of $1,980.00.

13. E.T. made numerous attempts to obtain the refund but never received any portion of it. In fact, she even filed a lawsuit and obtained a default judgment against Audiometric, but could not collect any of it.

14. During an investigation of the matter by the Agency for Health Care Administration, Respondent denied responsibility for the matter, and indicated that Audiometric was culpable.

    CONCLUSIONS OF LAW

    
    

15. Petitioner, Department of Health, is the state agency charged with the authority and duty to prosecute licensure disciplinary cases against Florida licensed Hearing Aid Specialists before the Florida Board of Hearing Aid Specialists.

16. The Florida Board of Hearing Aid Specialists is the agency that has authority and jurisdiction to take disciplinary action against Respondent's hearing aid specialist license.

17. The Division of Administrative Hearings has jurisdiction over the parties and this controversy pursuant to Chapter 120.57, Florida Statutes.

18. Petitioner has the burden of establishing Respondent's guilt of the offenses charged in the Administrative Complaints by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1998)

19. Section 484.056(1) and (2), Florida Statutes, and Section 456.072(1), (2), (3), and (4), Florida Statutes (formerly codified at Section 455.624(1), (2), (3), and (4)), authorize the Board of Hearing Aid Specialists to take disciplinary action against Respondent for a violation of any provision of Section 484.056(1)(a) through (w), Florida Statutes

    (1997). Specifically, Section 484.056(1)(h), Florida Statutes, authorizes discipline for any violation of Chapter 484, Part II, Florida Statutes, or Chapter 64B6, Florida Administrative Code.

20. In the single-count Administrative Complaint in DOAH Case No. 02-0520, Respondent is charged with violating Section 484.056(1)(h), Florida Statutes, by failing to pay a refund for a hearing aid returned within 30 days of delivery. Petitioner has proven the violation by clear and convincing evidence. The patient, R.G., was not allowed to have the benefit of canceling the agreement, and, in fact, was deprived of both the hearing aids and the refund.

21. In count one of the two-count Administrative Complaint in DOAH Case No. 02-0522, Respondent is charged with violating Section 484.056(1)(h), Florida Statutes, for failing to provide a refund. Petitioner has proven this violation by clear and convincing evidence.

22. In count two of the Administrative Complaint in DOAH Case No. 02-0522, Respondent is charged with having violated Section 484.056(1)(g), Florida Statutes, by being guilty of fraud or deceit or of negligence, incompetence, or misconduct in the practice of dispensing hearing aids. Petitioner has proven Respondent is guilty of misconduct and negligence in the practice of hearing aid dispensing by clear and convincing evidence. The uncontroverted facts indicate Respondent sold the

    hearing aid with a promise of a refund guarantee, a refund was appropriately requested and the refund was never paid.

23. The statutory scheme in Chapter 484, Part II, Florida Statutes, does not provide for the licensing and regulation of hearing aid establishments by the Board of Hearing Aid Specialists. Establishments may only dispense hearing aids through the means of licensed agents such as Respondent. Respondent was the seller within the meaning of Section 484.0512, Florida Statutes, and Rule 64B6-6.001(1), (2), (3), and (4), Florida Administrative Code. See Department of Health,

    Board of Hearing Aid Specialists v. Conley, DOAH Case No. 00- 1208, 00-1209, 00-1443 (Recommended Order entered September 12, 2000, adopted totally by Final Order dated December 15, 2000).

24. Rule 64B6-7.002, Florida Administrative Code (as amended 1994), contains the disciplinary guidelines for the violations charged in this proceeding. In addition to the normal penalty guidelines, Rule 64B6-7.002(3), Florida Administrative Code, provides aggravating and mitigating circumstances that authorize the Board of Hearing Aid Specialists to deviate above or below the specified guideline penalties. The undersigned finds that the

    exposure of patients to financial injury is an aggravating circumstance found to exist in this proceeding.

25. Rule 64B6-7.002(2)(v), Florida Administrative Code, provides the penalty range for a violation of Section 484.056(1)(h), Florida Statutes. Subrule 64B6-7.002(2)(u), Florida Administrative Code, provides the penalty range for a violation of Section 484.056(1)(g), Florida Statutes. For each offense the penalty range includes a fine of $500.00 to

    $1,000.00, and a reprimand to revocation of the license.

    
    

26. Section 456.072(4), Florida Statutes (previously Section 455.624(3), Florida Statutes, until July 1, 2000), authorizes the Board of Hearing Aid Specialists to impose costs of investigation and prosecution against Respondent if he is found guilty of one of the charges made in this proceeding.

27. Section 455.072(2), Florida Statutes (formerly Section 455.624(2), until July 1, 2000), authorizes the Board of Hearing Aid Specialists to impose corrective action against Respondent's license to correct a violation of Chapter 484, Part II, Florida Statutes. See Jonas v. DBPR, 746 So. 2d 1261 (Fla. 3d DCA 2000). Section 64B6-6.001(4), Florida Administrative Code (as amended September 14, 1997) specifies the maximum amount the seller is allowed to retain in the transactions at issue in this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Board of Hearing Aid Specialists enter a final order:

1. Dismissing DOAH Case No. 02-0521 (DOH Case No. 98- 19487).

2. Finding Respondent guilty as charged in the Administrative Complaints in DOAH Case Nos. 02-0520 (DOH Case No. 99-03437) and 02-0522 (DOH Case No. 98-20376).

3. Imposing a letter of reprimand.

   
   

4. Imposing a total fine of $1,000.00.

   
   

5. Assessing costs of the investigation and prosecution not to exceed $500.00, and ordering Respondent to pay as corrective action $3,125.00 to patient R.G. and $1,731.00 to patient E.T., with all monetary payments to be paid within 90 days of entry of a final order. As to the corrective action, the Respondent should be ordered to provide proof thereof to the Board of Hearing Aid Specialists, Department of Health Compliance Unit within 90 days of the date of the final order.

DONE AND ENTERED this 26th day of July, 2002, in Tallahassee, Leon County, Florida.

WILLIAM R. PFEIFFER

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 26th day of July, 2002.

COPIES FURNISHED:

Gary L. Asbell, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Mail Stop 39 Tallahassee, Florida 32308

Craig Schuete

12300 Park Boulevard, Unit 220

Seminole, Florida 33772

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 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

Gary L. Asbell, Esquire Post Office Box 326 Lloyd, Florida 32337

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: 02-000521PL

Orders for Case No: 02-000521PL