STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT PAUL MURPHY,

vs.

Petitioner,

Case No. 15-4337

BOARD OF HEARING AID SPECIALISTS,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held by video teleconference between sites in Sarasota and Tallahassee, Florida, on October 12, 2015, before Linzie F. Bogan, Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: H. Richard Bisbee, Esquire

Law Office of H. Richard Bisbee, P.A. Suite 206

1882 Capital Circle, Northeast Tallahassee, Florida 32308

For Respondent: Marlene Katherine Stern, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner’s application to enter into a hearing aid specialist training program should be approved.

PRELIMINARY STATEMENT

On April 15, 2014, Respondent, the Board of Hearing Aid Specialists (Respondent/Board), filed a Notice of Intent to Deny, which advised that the Board intended to deny Petitioner Robert Paul Murphy’s (Petitioner) application to enter into a hearing aid specialist training program on the grounds that Petitioner was convicted or found guilty of crimes related to the practice of dispensing hearing aids and that Petitioner has not completed his rehabilitation because he is still serving probation.

Petitioner timely requested a disputed-fact hearing and the Board transmitted the matter to the Division of Administrative Hearings (DOAH) on May 7, 2014, for assignment of an administrative law judge. On July 25, 2014, the parties filed a joint motion to relinquish jurisdiction, which was granted. The Board reconsidered its previous denial of Petitioner’s Application and again voted to deny the same. The case was again transmitted to DOAH for a disputed-fact hearing and re-assignment of an administrative law judge.

At the hearing, Petitioner presented the testimony of Denise Parrish, Randy Morton, and testified on his own behalf.

Respondent presented, through deposition transcripts, the testimony of Susan Foster, executive director of the Board, and Sharon Yordon, its expert witness.

Joint Exhibits 1 through 11 were admitted into evidence.

Petitioner’s Exhibit 1 and Respondent’s Exhibit 1 were each admitted into evidence.

The Transcript from the disputed-fact hearing was filed with DOAH on November 13, 2015. The parties’ request for additional time to file proposed recommended orders was granted, and each party filed a proposed recommended order.

FINDINGS OF FACT

1. On or about October 16, 2013, Petitioner submitted to the Board a Hearing Aid Specialists Training Program Registration Application (Application). In response to section 6 of the Application, Petitioner answered “yes” to the question regarding his criminal history.

2. Respondent determined that Petitioner’s Application should be denied. Respondent believes that denial of Petitioner’s Application is appropriate because Petitioner was convicted of crimes which relate to the practice of, or the ability to practice, dispensing hearing aids. In support of its denial of Petitioner’s application, Respondent notes that Petitioner “was found guilty of 92 felonies including racketeering, grand theft, and sale of unregistered securities, . . . was sentenced to prison time and probation covering a time period of 30 years, . . . and [Petitioner] has not completed his rehabilitation in that he is still serving probation.”

   
   

3. On or about December 2, 1999, Petitioner entered a plea of nolo contendere to 92 felony counts. The Circuit Court, Twelfth Judicial Circuit, in and for Manatee County, Florida, accepted Petitioner’s plea and adjudicated him guilty of:

   1. One felony count of racketeering (§§ 895.02(3) and 895.03, Fla. Stat. (1996));

      
      

   2. 31 felony counts of grand theft (§ 812.014, Fla. Stat. (1996));

      
      

   3. 30 felony counts of sale of unregistered securities (§§ 517.12 and 517.301, Fla. Stat. (1996)); and

      
      

   4. 30 felony counts of sale of securities by an unregistered dealer (§§ 517.12 and 517.302, Fla. Stat. (1996)).

      
      

4. Petitioner served three years in prison and was placed on probation for a period of 27 years. Petitioner will be on probation until 2029, and he owes $898,000 dollars in restitution.

5. Sharon Yordon was accepted as Respondent’s expert for purposes of providing an opinion as to how Mr. Murphy’s criminal background relates to the ability to dispense hearing aids.

   Ms. Yordon has been a licensed hearing aid specialist in Florida since 1984. She has also been licensed by the National Board for Certification in Hearing Instrument Sciences (NBC-HIS) since 1993. Ms. Yordon has been on the board of the Florida Society of Hearing Healthcare Professionals for 22 years, and she is also a member of the International Hearing Society. She has worked as a hearing

   
   

   aid specialist in the Tampa Bay area, Daytona Beach, New Smyrna Beach, and the panhandle of Florida. Currently, in addition to dispensing hearing aids, she is the north Florida retail manager for the hearing aid company Beltone, which requires her to manage eight offices in 11 counties.

6. Ms. Yordon has participated in the training of six hearing aid specialists, and she has also trained three hearing aid specialists to take the NBC-HIS examination. She has fit thousands of people with hearing aids over the course of her career.

7. According to Ms. Yordon, the elderly comprise a majority of hearing impaired individuals in Florida. Ms. Yordon’s opinion in this regard is bolstered by the fact that the Legislature, in recognition of the important role that the elderly play in the hearing aid industry, requires that the Board of Hearing Aid Specialists include a lay member who “shall be an individual age 65 or over.” § 484.042(2), Fla. Stat. (2015).1/

8. According to Ms. Yordon, hearing loss due to aging, called presbycusis, is one of the most common causes of hearing loss, and in the elderly hearing loss is often linked with cognitive dysfunction. Ms. Yordon opined that based on her years of experience, it is common for a hearing aid specialist to fit for hearing aids elderly individuals who are cognitively impaired. The Legislature has recognized that elderly individuals who suffer

   
   

   from cognitive impairment may be vulnerable and in need of protection. See, gen., §§ 415.101-415.113, Fla. Stat.

9. An examination to determine the need for a hearing aid must be conducted in a closed room, separated from any outer offices, because the examination must meet certain requirements for sound. The hearing aid specialist or trainee is often alone in the examination room with the client where sensitive information is often secured from the client.

10. If the hearing aid specialist determines that a hearing aid is needed, he or she goes over all the options available to the particular client. According to Ms. Yordon, elderly clients cannot always decide which hearing aid to purchase, and they may not have a sound understanding of their own finances. These factors could allow an untrustworthy hearing aid specialist to take advantage of elderly individuals by selling them a more expensive hearing aid than what they need, can afford, or have the ability to use. Because of the interaction between hearing aid specialists and clients (especially the elderly), it is necessary that a hearing aid specialist be trustworthy.

11. Section 484.0401, Florida Statutes, provides as follows:

    
    

    The Legislature recognizes that a poorly selected or fitted hearing aid not only will give little satisfaction but may interfere with hearing ability and, therefore, deems it necessary in the interest of the public health, safety, and welfare to regulate the dispensing of

    
    

    hearing aids in this state. Restrictions on the fitting and selling of hearing aids shall be imposed only to the extent necessary to protect the public from physical and economic harm, and restrictions shall not be imposed in a manner which will unreasonably affect the competitive market.

    
    

12. Section 484.056(1)(d) provides that an application for licensure as a hearing aid specialist may be denied on the following grounds:

    Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of dispensing hearing aids or the ability to practice dispensing hearing aids, including violations of any federal laws or regulations regarding hearing aids.

    
    

13. Consistent with the legislative goal of protecting the public from possible economic harm, the screening requirements found in section 484.056 help to ensure that individuals who are authorized to dispense hearing aids are trustworthy.

14. As previously noted, Petitioner was found guilty of committing 36 felony violations of section 812.014 (1996), which provides in part, as follows:

    1. A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

       
       

       1. Deprive the other person of a right to the property or a benefit from the property.

          
          

       2. Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

    
    

15. Section 812.014 is grounded in principles of trust, and a person who “knowingly” acts with the requisite “intent” to deprive another of his or her property in violation of the same, is, by definition, untrustworthy.

16. Petitioner was convicted of racketeering under sections 895.02(3) and 895.03, Florida Statutes (1996). Petitioner’s conviction for racketeering was based on the fact that he was involved in a criminal enterprise that stole money from a number of individuals. Sections 895.02 and 895.03 are grounded in principles of trust, and anyone who violates these statutes is untrustworthy.

17. Petitioner was found guilty of committing numerous violations of sections 517.301, 517.302, and 517.12, Florida Statutes (1996).

18. Section 517.12 requires that any “dealer, associated person, or issuer of securities” in this state must register with the appropriate state department and the failure to do so, as provided in section 517.302, is a felony of the third degree.

19. Section 517.301 prohibits fraud or deceit in connection with securities transactions and any person who engages in such

    
    

    conduct, as provided in section 517.302, commits a felony of the third degree. Section 517.301 is grounded in principles of trust, and a person who engages in fraudulent conduct in violation of section 517.301 is untrustworthy.

20. A violation of the registration requirements found in section 517.12 does not, in itself, suggest untrustworthiness. When, however, the failure to register as a securities dealer is coupled with fraudulent conduct, as was done by Petitioner, then the otherwise benign conduct of failing to register as a securities dealer takes on the character of untrustworthiness because of its relatedness to the fraud.

21. Petitioner was incarcerated until 2002. Since his release from incarceration, Petitioner has remained compliant with the terms of his probation. One of the conditions of Petitioner’s probation is that any violation of the conditions of probation could subject him to arrest, revocation of probation, and further sentencing.

22. With his Application, Petitioner provided three letters of support from neighbors who each believe that Petitioner is a person of integrity. Petitioner also holds a private pilot’s license, which suggests that Petitioner can be trusted to operate certain types of aircraft.

23. Denise Parrish is a licensed audiologist at the Manatee Ear Center in Bradenton, Florida, the facility where Petitioner is

    
    

    currently employed. Dr. Parrish has supervised Petitioner for approximately two years, and she believes that Petitioner is an “honest” person. Dr. Parrish testified that during the time that she has supervised Petitioner, he has handled sensitive patient information, including money, without incident.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

25. As the applicant for a license, Petitioner is asserting the affirmative, and therefore bears the ultimate burden of proving his entitlement to a license. Fla. Dep't of Transp. v.

    J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981).

    
    

26. The standard of proof that Petitioner must meet is by a preponderance of the evidence. § 120.57(1)(j), Fla. Stat. The preponderance of the evidence standard requires proof by "the greater weight of the evidence" or evidence that "more likely than not" tends to prove a certain proposition. Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla. 2000).

27. Section 484.045, Florida Statutes (2013), provides as follows:

    1. Any person desiring to be licensed as a hearing aid specialist shall apply to the department on a form approved by the department.

       
       

    2. The department shall license each applicant who the board certifies: (a) Has completed the application form and remitted the required fees;

       
       

       1. Is of good moral character;

          
          

       2. Is 18 years of age or older;

          
          

       3. Is a graduate of an accredited high school or its equivalent;

          
          

       4. 1. Has met the requirements of the training program; or

          
          

          2.a. Has a valid, current license as a hearing aid specialist or its equivalent from another state and has been actively practicing in such capacity for at least

          12 months; or

          
          

          b. Is currently certified by the National Board for Certification in Hearing Instrument Sciences and has been actively practicing for at least 12 months;

          
          

       5. Has passed an examination, as prescribed by board rule; and

          
          

       6. Has demonstrated, in a manner designated by rule of the board, knowledge of state laws and rules relating to the fitting and dispensing of hearing aids.

       
       

    3. A person who fails the examination may make application for reexamination to the appropriate examining entity, as prescribed by board rule.

    
    

28. Section 484.0445, Florida Statutes (2013), provides as follows:

    1. The board shall establish by rule a training program for a minimum 6 months

       
       

       in length, which may include a board- approved home study course.

       
       

    2. A trainee shall perform the functions of a hearing aid specialist in accordance with board rules only under the direct supervision of a licensed hearing aid specialist. The term "direct supervision" means that the sponsor is responsible for all work being performed by the trainee. The sponsor or a hearing aid specialist designated by the sponsor shall give final approval to work performed by the trainee and shall be physically present at the time the hearing aid is delivered to the client.

       
       

    3. The board may limit pursuant to rule the number of trainees a hearing aid specialist may supervise.

       
       

    4. The board may, by rule, require that a licensed hearing aid specialist acting as a sponsor or as the designee of a sponsor under this section be certified by the National Board for Certification in Hearing Instrument Sciences.

    
    

29. Florida Administrative Code Rule 64B6-8.002, which pertains to the qualifications needed for the hearing aid specialists training program, provides that “the applicant must not have been found to have violated Chapter 484, Part II, F.S. [and] [i]f the applicant has been found to have violated Chapter 484, Part II F.S., then the Board shall determine whether the applicant may enter the training program.”

30. Section 484.056(1), Florida Statutes (2013), provides, in part, as follows:

    
    

    (1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

    
    

    * * * *

    
    

    (d) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of dispensing hearing aids or the ability to practice dispensing hearing aids, including violations of any federal laws or regulations regarding hearing aids.

    
    

31. “Where possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Forsythe v. Longboat Key Beach and Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992). In

    harmonizing section 484.0445 with sections 484.045 and 484.056, it is evident that the eligibility requirements for the training program are a part of the overall licensure scheme for hearing aid specialists.

32. One of the requirements for enrollment into the hearing aid specialist training program is that an applicant must not have been found guilty of a crime which directly relates to the practice of dispensing hearing aids or the ability to practice dispensing hearing aids. This is the crux of the instant dispute.

    
    

33. Subsection (4) of section 484.042, Florida Statutes, creating the Board, provides that “[a]ll provisions of Chapter

    456 relating to the activities of regulatory boards apply to the [B]oard.” Section 456.072(2)(a), in turn, authorizes the Board to deny a license application for any violation found in section 456.072(1).

34. In construing whether a crime is “related to” a licensee’s “practice” within the meaning of section 456.072(1), the First District Court of Appeal, in a case involving revocation of a chiropractor’s license where the burden was on the agency (as opposed to an application for a license where the burden is on the Petitioner), observed:

    Several cases demonstrate that, although the statutory definition of a particular profession does not specifically refer to acts involved in the crime committed, the crime may nevertheless relate to the profession. In Greenwald v. Department of Professional Regulation, the court affirmed the revocation of a medical doctor’s license after the doctor was convicted of solicitation to commit

    first-degree murder. 501 So. 2d 740 (Fla. 3d DCA 1987). The Fifth District Court of Appeal has held that although an accountant’s fraudulent acts involving gambling did not relate to his technical ability to practice public accounting, the acts did justify revocation of the accountant’s license for being convicted of a crime that directly relates to the practice of public accounting. Ashe v.

    Dep’t of Prof’l Regulation, Bd. of Accountancy, 467 So. 2d 814 (Fla. 5th DCA 1985). We held in Rush v. Department of

    
    

    Professional Regulation, Board of Podiatry, that a conviction for conspiracy to import marijuana is directly related to the practice or ability to practice podiatry. 448 So. 2d

    26 (Fla. 1st DCA 1984). These cases demonstrate, in our view, that appellee did not err by concluding Doll’s conviction was “related to” the practice of chiropractic medicine or the ability to practice chiropractic medicine. We therefore affirm appellee’s actions finding appellant in violation of section 456.072(1)(c) and revoking appellant’s license.

    
    

    Doll v. Dep’t of Health, 969 So. 2d 1103, 1106 (Fla. 1st DCA 2007).

35. Considering the duties of a hearing aid specialist as described by Ms. Yordon, together with the probationary terms imposed upon Petitioner for his 92 felony convictions, as well as the nature of the offense and holding in Doll, supra, it is

    concluded that Petitioner’s crimes directly relate to his ability to practice as a hearing aid specialist. Being a trustworthy person is essential to the practice of being a hearing aid specialist, and Petitioner’s 92 felony convictions, all of which directly relate to his ability to practice dispensing hearing aids, demonstrate that he is not trustworthy.

36. In the Notice of Intent to Deny, Respondent noted that Petitioner “was sentenced to prison time and probation covering a time period of 30 years [and that he] has not completed his rehabilitation in that he is still serving probation.” While

    
    

    there is evidence of record which demonstrates that Petitioner is making positive movement towards becoming a trustworthy individual (to wit, of good moral character), the undersigned is of the opinion that Petitioner’s showing of rehabilitation is insufficient to overcome the complete loss of trustworthiness resulting from his numerous felony convictions and lengthy period of probation.2/

37. In sum, Petitioner failed to prove that his Application to enter into a hearing aid specialist training program should be approved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Hearing Aid Specialists enter a final order denying Robert Paul Murphy’s application for licensure as a hearing aid specialist.

DONE AND ENTERED this 22nd day of January, 2016, in Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2016.

ENDNOTES

1/ All subsequent references to Florida Statutes will be to 2015, unless otherwise indicated.

2/ Counsel for Respondent asserts that because Petitioner is merely seeking entry into the training program, the issue of whether Petitioner is of “good moral character” is irrelevant at this stage of the process. In other words, according to Respondent’s counsel, the only issue is whether the crimes committed by Petitioner relate to the practice of being a hearing aid specialist. Counsel’s assertion is inconsistent with the Board’s Notice of Intent to Deny which clearly indicates that the Board considered post-conviction issues related to Petitioner’s lack of rehabilitation. The Board’s action was consistent with rule 64B6-8.005 which provides, in part, that “the legal requirements which apply to licensees apply with equal force to trainees.” It stands to reason, therefore, that if licensees are legally required to be of “good moral character,” then trainees must be also.

COPIES FURNISHED:

Marlene Katherine Stern, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed)

H. Richard Bisbee, Esquire

Law Office of H. Richard Bisbee, P.A. Suite 206

1882 Capital Circle, Northeast Tallahassee, Florida 32308 (eServed)

Susan Foster, Executive Director Department of Health

Board of Hearing Aid Specialists 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-3257 (eServed)

Nichole C. Geary, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)

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: 15-004337

Orders for Case No: 15-004337