The Issue The factual issues presented for determination are as follow: Are the allegations of the Administrative Complaint true? Did Respondent have the required scienter with respect to the violations alleged in the Administrative Complaint? Various legal and procedural issues were raised and previously disposed of by written order prior to the final hearing. This order will not contain a recital of those interlocutory actions. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact At all times relevant to this proceeding, the Respondent was employed by and president of Gainesville Hearing Aid Company, and registered by the Department of Health and Rehabilitative Services for the fitting and sale of hearing aids. On or about September 13, 1979, Respondent sold to Lawrence J. Murphy a certain Dahlberg hearing aid, serial #VEI7AA, while representing to Mr. Murphy that the hearing aid was new, when in fact the hearing aid had been previously owned by Peter Fancher. The written contract of sale for this hearing aid did not indicate whether the hearing aid was new or used. The Dahlberg hearing aid sold to Murphy had been sold to P. D. Fancher on April 25, 1977, by Respondent. The hearing aid was returned to Gainesville Hearing Aid Company on May 17, 1977, by Mr. Fancher for full refund. The inventory records of Gainesville Hearing Aid Company show the sale and the return for refund. This hearing aid was used. On or about September 12, 1979, Respondent sold to Oran Ledbetter a certain Audiotone hearing aid, serial #28S-7963102, while representing to Mr. Ledbetter that the hearing aid was new and indicating on the written contract of sale that it was new, when in fact that same hearing aid had previously been owned by D. L. Bentley. The Audiotone hearing aid sold to Ledbetter had been sold to D. L. Bentley on March 27, 1979, by Gainesville Hearing Aid Company together with another hearing aid not material to these proceedings. These hearing aids were delivered to Mr. Bentley on April 16, 1979. The subject hearing aid was returned to Gainesville Hearing Aid Company by Bentley some four to five months later and was returned to the inventory of the company as a used hearing aid. This hearing aid was used. On or about February 2, 1978, Respondent sold to Virginia Collette a Dahlberg hearing aid, serial #TW22AH7, representing to Ms. Collette and showing on the contract of sale for the hearing aid that it was new, when in fact the hearing aid had been previously owned by Joseph E. McIntire. This hearing aid was used. The Dahlberg hearing aid sold to Ms. Collette had been sold to J. C. McIntire by Gainesville Hearing Aid Company on October 14, 1977, on an installment contract calling for $95 down and monthly payments of $43 per month for 24 months. Mr. McIntire fell behind in his monthly payments and subsequently died. An unidentified member of the family returned the hearing aid to Gainesville Hearing Aid Company, and the company subsequently collected some $989 from McIntire's estate. While the inventory records reflected that the hearing aids above were used, there is no evidence that Respondent was aware of this information in the cases of Murphy and Ledbetter. At the time Respondent left the offices of Gainesville Hearing Aid Company to make the sale of the Dahlberg hearing aid to Ms. Collette, he requested his employee, William Glance, to bring him a hearing aid from inventory. Mr. Glance brought Respondent the Dahlberg hearing aid and at that time advised him it was a used hearing aid. Respondent permitted his daughter, Angie Gardner, who did not hold a certificate of registration or a learner's permit, to conduct audiograms, to fit and sell hearing aids, and to conduct hearing aid examinations at various times during 1979. This included in particular November 2, 1979, when Angie Gardner was permitted to run a hearing test on a Mrs. Jones, who objected to the performance of the examination by Respondent's daughter. Respondent subsequently sought the advice of Ralph Gray as to the legality of permitting Angie Gardner to conduct these tests and, on being advised that it was contrary to law, discontinued this practice.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Respondent, William Hunter Gardner, be fined administratively $500 for each violation of the statute for the three violations of Section 468.130(1) and thereby Section 468.129(3), Florida Statutes, and have his license suspended for a period of two years for the violation of Section 468.130(2), Florida Statutes, the enforcement of the suspension to be suspended upon Respondent's demonstrated good conduct and adherence to the statutes, rules and regulations during that period. DONE and ORDERED this 28th day of September, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1982. COPIES FURNISHED: Joseph E. Hodges, Esquire Department of HRS 2002 North West 13th Street Oak Park Executive Square Gainesville, Florida 32601 George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 David H. Pingree, Secretary Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Daniel C. Throneburg, Sr. (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-0000675. On January 30, 1985, Opal Holbrook agreed to purchase two "Nu Ear" rechargeable hearing aids from Respondent after he had tested her hearing and recommended this hearing aid. The total price of the hearing aid was $1,990. The following was included on the order form signed by both Respondent and Holbrook: If within 7 days of the date of delivery you are not completely satisfied, you will receive a refund less $50.00 fee provided you have kept a scheduled appointment within 72 hours of the date of delivery, to allow the specialist to make necessary adjustments for fit, comfort and personal listening pleasure. Respondent received the "Nu Ear" hearing aids from the manufacturer on or about February 26, 1985, and Holbrook thereafter kept her scheduled appointment within 72 hours of delivery, was fitted, and completed payment in full on February 26, 1985 in the amount of $1,990. Four days after receiving the hearing aids, Holbrook returned to Respondent because she still could not hear. Respondent made some adjustments, and told her to try them for another three or four days. She still could not hear, however, and therefore Holbrook requested a refund from Respondent after attempting to use the hearing aids for about a week. Respondent again asked that she try them a little longer. Holbrook returned numerous times during March, 1985 because her hearing aids had not improved her hearing. Respondent referred her to Mark Krywko for counseling, and adjustments, and she asked Krywko for a refund. Instead, he took an impression of her ears, and made some adjustments in the hearing aids, including boring a hole in them and adding an air hose. Respondent was usually not present when Krywko made these adjustments, counseled her on the use of hearing aids, or when Krywko took the impressions. After numerous attempts to adjust the Nu Ear hearing aids had failed, Respondent agreed to "remake" the hearing aids. Basically, he agreed to exchange the Nu Ear aids for another make. On or about April 19, 1985 Holbrook signed a receipt for Electone hearing aids which she received as replacement for the Nu Ear aids. This receipt states: Any modifications necessary will be performed based upon acceptable industry standards and the manufacturers' warranty. I understand the specialists' responsibility is fitting the hearing instrument(s) and to counsel me in the use of the aid and to mail any aid to the manufacturer for custom modifications. In the unlikely event, I am not happy with the instrument, I understand, I can request and receive another instrument from a different manufacturer at no additional charge within 60 days. Requests for any and all refunds are not allowed. I also understand that if my hearing loss has been progressive and has deteriorated, it will be necessary to return to the office for counseling which will be provided by the hearing aid specialist at "NO EXTRA COST". Holbrook was still unable to hear with the Electone hearing aids and requested a refund. To date, no refund has been provided by Respondent to Holbrook. Respondent stipulated that Holbrook received his business card at his place of business. The card represents that Respondent is a certified hearing aid audiologist, which he is not. Mark Krywko is not a licensed hearing aid specialist in the State of Florida, but at all times material hereto he was in an approved trainee program. At the request of Respondent, he repeatedly made adjustments on Holbrook's hearing aids, took an impression of her ears, gave her the receipt referred to in Finding of Fact 6 when the replacement hearing aids were delivered to her, and counseled her on the use of hearing aids. As such, he engaged in dispensing hearing aids, as defined by Section 484.041(3), Florida Statutes, at the request of Respondent who knew that Krywko was not licensed at the time. Respondent was not present most of the time Krywko performed these services for Holbrook. The receipts which Respondent provided to Holbrook for the Nu Ear and Electone hearing aids did not refer the buyer to the Board of Hearing Aid Specialists for the resolution of complaints, and also did not contain the disclaimer required by Section 484.051(2), Florida Statutes.
Recommendation Based on the foregoing, it is recommended that Petitioner enter a Final Order imposing an administrative fine on Respondent in the amount of $1,000, and placing Respondent on probation for a period of six months, conditioned upon his refunding to Opal Holbrook $1940, the full amount she paid for the hearing aids less a $50.00 fee; in the event Respondent does not pay the administrative fine and complete the refund required herein within thirty days of entry of the Final Order, it is further recommended that Respondent's license be suspended for one year in lieu of the six month period of probation and administrative fine. DONE and ENTERED this 18th day of December, 1986 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1986. COPIES FURNISHED: Ray Shope, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 2301 Daniel C. Throneberg 8104 Brit Drive Orlando, Florida Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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.
Findings Of Fact 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 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. 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. R.G. paid the entire purchase price to Audiometric on November 5, 1998, by charging the entire amount on his Visa credit card. 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. 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. 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. 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 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. 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. 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. Someone at Audiometric, other than Respondent, accepted the returned hearing aid from E.T. and promised her a refund of $1,980.00. 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. 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.
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: Dismissing DOAH Case No. 02-0521 (DOH Case No. 98- 19487). 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). Imposing a letter of reprimand. Imposing a total fine of $1,000.00. 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
The Issue 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.
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.
Recommendation 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
The Issue Whether Petitioner's application for renewal of his certificate of registration to fit and sell hearing aids should be denied here he establishes that he satisfactorily completed the required continuing education course during the year of his application, rather than during the previous calendar year.
Findings Of Fact On January 29, 1980, the Applicant submitted to the Department a completed application for renewal of his 1979 Certificate of Registration to Dispense Hearing Aids in Florida. (Petitioner's Exhibit 1). At the time of his application (January, 1980) the Applicant was unable to provide evidence of having completed at least ten hours of an approved continuing education course relating to the fitting and selling of hearing aids. He was, however, in the process of attending such a course at the University of Central Florida, which he successfully completed during February, 1980. (Petitioner's Exhibits 1 and 2, Testimony of G. L. BOOTHE) The Department proposed to deny the applicant's request for renewal on the sole ground that his application failed to show that the required continuing education course had been completed prior to his application, and during the prior calendar year 1979. (Testimony of G. L. Boothe) On July 21, 1978, and again on October 1, 1979 the Department notified all registered hearing aid dispensers, including the Applicant, of the new continuing education requirement enacted by the 1978 Florida Legislature. The Applicant received such notice, and was aware of this new requirement. (Respondent's Exhibits 1 and 2, Testimony of G. L. BOOTHE) Between 1969 and February, 1979, the Applicant was licensed by the State to fit and sell hearing aids, and was employed by the Beltone Hearing Aid Company. In February, 1979, he left the company and was considering retirement. (Testimony of G. L. BOOTHE) The Applicant failed to take the required continuing education course during 1979 because, from February 1979 through January, 980, he was uncertain whether he would surrender his license or continue in the business of fitting and selling hearing aids. During January and February, 1980, he entered the employment of the Orange Hearing Aid Center, Orlando, Florida for the purpose of fitting and selling hearing aids. He, therefore, applied far the renewal of his license, and successfully completed the required continuing education course. (Testimony of G. L. Boothe)
Findings Of Fact During the period from September 3 through September 7, 1974, the Respondent, Dr. Thomas A. Mullin, undertook to perform audiological testing on various patients and staff at University Convalescent Center West (UCCW) and University Convalescent Center East (UCCE) in Deland, Florida. These two convalescent centers, although owned by the same corporation, were at that time separate and distinct facilities, each having its own administrator. UCCW was located at 545 West Euclid Avenue in Deland, Florida, and its administrator was Arthur Anderson. UCCE was at that located at 991 East New York Avenue in Deland, Florida, and its administrator was Gelatha Koranda. Dr. Mullin obtained permission from Arthur Anderson to conduct audiological tests at DCCW and through Anderson's recommendation obtained access to UCCE. Anderson's permission was obtained by Dr. Mullin subsequent to a discussion between Mullin and Anderson in which Dr. Mullin discussed audiological screening of the convalescent center's patients by audiology students from Florida Technological University under Dr. Mullin's supervision. In addition, Dr. Mullin and Andersen discussed a new Medicaid program under which hearing testing and hearing aids could be provided to Medicaid patients. The acquisition of hearing aids under this program was dependent upon the recommendation of an audiologist approved by Medicaid. Dr. Mullin advised Anderson that he wad so approved by MedicaId and would be glad to provide this service to patients of the nursing home at the time the audiological screening was done. Mullin told Anderson at this initial conference that he would test Medicaid patients and bill Medicaid for his professional services and that the nursing home would not be billed. It was further agreed that Dr. Mullin would provide Anderson a report on the patients. These audiological tests were subsequently conducted on Anderson's authority and without the permission and knowledge of Dr. Rauschenberger, house physician for the two nursing homes and in some instances personal physician of some of the patients. Prior medical authorization is not required for audiological testing in general practice or under the Medicaid program. After the testing program was completed, Dr. Mullin reported in writing to Mr. Anderson the results of the residents and staff at UCCW. Koranda, the administrator at UCE, had not requested a report be filed with her regarding Dr. Mullin's findings, and no report was rendered to her by Dr. Mullin. In neither instance did the administrators request or authorize Dr. Mullin to enter his findings in the patient's medical records maintained at the centers and no such entries were made. Expert testimony varied regarding the obligation of an audiologist to make entries in a patient's record. How ever, it was generally agreed that an audiologist would not make entries on a patient's record without authorization by the administration of the health care facility when testing was not the result of medical referral. As a result of his testing at UCCW, Dr. Mullin prescribed hearing aids for Alfred Miller, Sallie Porter, Ruby Allen, Minnie Jennings, Florence Rogers, and Agnes Flowers, all of whom were Medicaid patients. As a result of audiological testing at UCCE, Dr. Mullin prescribed hearing aids for Jessie Robinson, Maggie Smith, Clara Brown, Emma Van Landingham, Emily Burkhart, Della Stone, and Lenora Gell, all of whom were Medicaid patients. Dr. Mullin prepared prescriptions for hearing aids on the persons named above, and forwarded these prescriptions to Orange Hearing Aid Center in Orlando, Florida which provided and fitted the hearing aids to the individuals. Dr. Mullin submitted the bill directly to the Department of Health and Rehabilitative Services for his professional services in screening Medicaid patients' hearing and for his professional services in screening and prescribing heading aids for Medicaid patients. Dr. Mullin's basic hearing evaluation test consisted of a pure tone air conduction test. Dr. Mullin conducted further testing if necessary to include a pure tone bone conduction test, speech discrimination test, and speech reception threshold test. A master hearing aid was used for the hearing aid selection process and an audiometer used for the basic testing. Dr. Mullin prescribed hearing aids on the basis of these latter tests Dr. Mullin had planned to conduct all testing in a specially adapted trailer, but was unable to use this trailer because of the immobility of the patients. A bathing facility or "tub room" in each of the nursing homes was provided by the nursing home administration for conducting the tests, and represented to be the only facility available for the testing. These facilities were not ideal in terms of their construction and location for conducting audiological testing. However, Dr. Mullin took what measures he could to reduce ambient noise levels, to include the use of aural domes. No clear and convincing evidence was introduced that the noise conditions during Dr. Mullin's tests were so bad that his test results were invalid. In fact, subsequent tests made by the Board revealed that the patients tested by Dr. Mullin were hard of hearing, although some of the results differed slightly in degree of loss. Subsequent to the testing, as mentioned above, Dr. Mullin filed a written report with Arthur Anderson, administrator of UCCW. This report was rendered on the letterhead of Florida Technological University. This report revealed that Rogers, Silfies, Bowen, Covington, Peppett, Trodden Turner, Farrow, Howard, and Tidson had normal hearing. The report contained specific comments with regard to Rolle, Rigsbee, Goodrich, Rosato, VonDohler, Shalhoub, Thompson, Owens, Murkinson, Tholl, and Hocker. Silfries, Rolle, Owens, Peppett, Goodrich, and Hocker were Medicaid patients upon whom Mullin submitted billings to Medicaid through the Department of Health and Rehabilitative services. The comments on Thompson, Owens, Murkinson and Tholl indicate referral to otolaryngologists. The specific comments with regard to Rolle, Goodrich, Rosato, and Shalhoub indicate a hearing loss but no recommendation for a hearing aid due to some specific contra-indication. The billings submitted to Medicaid through the Department of Health and Rehabilitative Services are consistent with the findings reported in Exhibit 3. The billings were for basic hearing evaluations on those Medicaid paie:ts who were determined to have normal hearing and for selective amplification procedures in addition to basic evaluation for those patients whose hearing was not normal. The billings are substantiated by the report filed with Anderson and the audiograms prepared. However, the report does reveal that Herman Owens, who was referred to an otolaryngologist for removal of impacted cerumen in the right ear, received both basic hearing tests and selective hearing amplification procedures, both of which were billed to Medicaid; and J. L. Hocker received selective amplification testing although Mullin's comments indicated that Hocker's right ear had recently undergone surgery for removal of a carcinoma. However, Medicaid's criteria for testing were not introduced and no evidence was introduced, that a patient with impacted ears should not be tested. Also this report contains no reference to the patients for whom Dr. Mullin had prescribed a hearing aid. The report does reveal that where contra-indicated, whether because of the nature of the hearing loss, as indicated with Rolle and Rosato, or patient attitude, as in the case of Goodrich, Dr. Mullin did not prescribe a hearing aid. This relates particularly to the allegation that Dr. Mullin prescribed hearing aids for certain patients who did not want hearing aids, and an implication made that Dr. Mullin recommended hearing aids for patients who could not benefit from them. This report which is on Florida Technological University letterhead is the sole support of the charge that Dr. Mullin misused his connection with Florida Technological University. It is clear that this report was rendered after the testing had been concluded. Clearly, his report rendered after the testing on the letterhead of Florida Technological University could not have been an inducement to Anderson to permit Mullin access to the convalescent center. However, the fact is clear that Dr. Mullin did make a personal profit for a venture undertaken in connection with an otherwise authorized university activity. The evidence indicates that the hearing aids prescribed by Dr. Mullin and provided by Orange Hearing Aid Center were fitted by Merrill Schwartz. Schwartz fitted these hearing aids at UCCW and UCCE. There is no indication that UCCE or UCCW failed to cooperate in any way with Schwartz gaining access to the patients and fitting them with aids. To the contrary, the evidence indicates that both centers cooperated fully in providing Schwartz the opportunity and facilities to fit the hearing aids. The fact that both centers did not question the fitting of the hearing aids substantiates Dr. Mullin's assertion that Anderson expected hearing aids to be fitted to patients under the Medicaid program. Expert testimony was received that the only positive evaluation of the utility of the hearing aid to a patient is a trial by the patient using the aid to include counselling on the use and benefits of the hearing aid to overcome a patient's possible aversion to the aid. Dr. Mullin testified that he had prescribed the aids on a thirty day trial basis, and his audiograms substantiate this. However, his prescriptions to Orange Hearing Aid Center did not reflect any trial period. Merrill Schwartz, the hearing aid salesman for Orange Hearing Aid Center, stated that he fitted the aids from the prescriptions and no trial period was stated. However, the current owner, Irwin Pensack, stated that during his transitional period in taking over Orange Hearing Aid Center from Emmanuel Gitles, that Gitles had impressed upon him the importance of maintaining good customer relationships and providing trial periods routinely when requested. Why the 30 day trial was not included in the prescription was not explained by Dr. Mullin, who stated it was his understanding they were for a 30 day trial. However, in this same regard, the evidence further reveals that none of the staff at UCCW or UCCE contacted Dr. Mullin or Orange Hearing Aid Center with regard to followup counseling or return of the hearing aids when the patients failed to properly use them. It is questionable how effective a 30 trial period would have bean under the circumstances. No evidence was presented to show hat Dr. Mullin received any type of "kickback" or other benefit from Orange Hearing Aid Center. Although substantial and competent evidence was introduced that some of the patients who were fitted with the hearing aids were senile, expert testimony was received that such a condition is not a contra-indication of the need and benefit to the patient of the use of a hearing aid. This is particularly true since the effects of deafness and senility subjectively reinforce one another. Expert testimony was also received that an audiologist would not routinely provide followup services subsequent to audiological testing and the prescription of a hearing aid unless requested to do so by the patient or the hearing aid dealer. The evidence indicates that Dr. Mullin did not receive any requests for followup from either UCC er UCC on behalf of any of the patients for whom hearing aids were prescribed, from patients themselves, or the dealer. The one call made from a patient who had received a hearing aid was made to Orange County Hearing Aid for followup services or repair. Said services were provided by Orange Hearing Aid Center, and indicates that this patient was using the hearing aid. The bills submitted to Medicaid through the Department of Health and Rehabilitative Services were in accord with Medicaid's published schedules for the professional services rendered by Dr. Mullin. There is no substantial and competent evidence that Mullin charged for work he did not do or overcharged for the work that he did.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, the Hearing Officer recommends that no action be taken against the certificate of Thomas A. Mullin as a speech pathologist and audiologist. DONE and ORDERED this 26th day of October, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Howard R. Marsee, Esquire Post Office Box 20154 Orlando, Florida 32814 Gene Sellers, Esquire General Counsel's Office Department of Education Knott Building Tallahassee, Florida 32304 James M. Russ, Esquire 441 First Federal Building 109 East Church Street Orlando, Florida 32801
The Issue Should Petitioner discipline Respondent's hearing aid specialist license for reasons alleged in the Amended Administrative Complaint?
Findings Of Fact 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. 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. 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. 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. 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." 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. 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. 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. 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. 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. 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. 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. Shortly after receiving the hearing aids C.D. and his wife took a vacation in north Georgia. 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. 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. 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. 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.
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
The Issue The issue for consideration in this case is whether Respondent's license as a hearing aid specialist in Florida should be disciplined because of the matters alleged in the Administrative Complaints filed herein.
Findings Of Fact At all times relevant to the issues herein, the Board of Hearing Aid Specialists has been the state agency in Florida responsible for the licensing of hearing aid specialists and the regulation of the hearing aid provider profession in Florida. The Respondent has been a licensed hearing aid specialist in this state, holding license number AS 00010006. Stanley I. Williamson is an 84-year-old blind and arthritic retiree who has worn hearing aids since the early 1980's. He has known Mr. Conley since that time and has purchased his hearing aids from the Respondent both when the Respondent was working for other suppliers and when he went into business for himself. In the summer of 1997, Mr. Williamson went to the Respondent to get the wax cleaned out of his hearing aids. Mr. Williamson did not feel he needed new aids at the time. However, on June 6, 1997 Respondent Mr. Conley called him and tried to sell him some new aids. Mr. Williamson told the respondent he didn't want new aids because his were working well, but Mr. Conley suggested he bring them in anyway. Mr. Williamson went to the Respondent's office and tried the new ones the Respondent showed him but decided he did not want them because he felt they did not work properly. Nonetheless, on that same day, June 6, 1997, Mr. Williamson took them, signed a contract for the new aids, and gave the Respondent a check for $1,095. At that time, the Respondent told Mr. Williamson he could bring the aids back within 30 days if they were not acceptable. The Argosy hearing aids Mr. Williamson got from the Respondent on June 6 did not work properly, and when Mr. Williamson complained, the Respondent agreed to get him another pair. Mr. Williamson picked up this second pair of aids at the Respondent's office, Conley's Hearing Aid Center in Clearwater on June 20, 1997. At that time Mr. Williamson signed a second contract and gave the Respondent a second check for $1,095. On June 24, 1997, the Respondent had Mr. Williamson, who was still not satisfied with the performance of the Argosy aids, sign a third contract with his company under which the Respondent agreed to provide a pair of 3M Single Pro hearing aids for a total price of $3,390. The Respondent gave Mr. Williamson credit for the two prior payments of $1,095 each, and Mr. Williamson gave the Respondent an additional check for $1,200. According to Mr. Williamson, the 3M aids, which the Respondent delivered on July 8, 1997, also did not work to his satisfaction, so after just a few days, on July 10, 1997, he exchanged them for a different pair of 3M aids, Dual Pro. The sales receipt for the aids that the Respondent gave to Mr. Williamson on July 10, 1997 did not contain the buyer's signature, nor did it list the serial numbers for the hearing aids provided. Mr. Williamson thought he was getting the top of the hearing aid line but in fact, the Dual Pro aid was the middle line. According to a pamphlet he saw later, the top of the line is called Multi Pro; the middle, Dual Pro; and the bottom, Single Pro. Though a new contract was signed reflecting the Dual Pro aids, there was no additional charge. The Respondent guaranteed all hearing aids sold to Mr. Williamson to be acceptable or, if returned within 30 days of purchase, a full refund would be given. The Dual Pro aids also did not work to Mr. Williamson's satisfaction, and he returned them to the Respondent on or about August 4, 1997, an act witnessed by the Respondent's associate, Michelle Pfister. None of the hearing aid sets was kept by Mr. Williamson for more than 30 days. Mr. Williamson contends that when he returned the second pair of Argosy aids and received the 3M Single Pro aids in exchange, he asked Mr. Conley for a refund. At that time, Mr. Conley said he didn't have the money. When Mr. Conley delivered the Single Pro aids, and again when he delivered the Dual Pro aids, Mr. Williamson asked for a refund instead. Each time the Respondent claimed he didn't have the money. On October 4, 1997, Mr. Williamson wrote to Conley's Hearing Aid Center, the Respondent's business, and threatened recoupment action if the Respondent did not return the money he had paid for the aids he had returned. The hearing aids Mr. Williamson purchased were all returned to the Respondent, but no refund was ever made. According to Ms. Pfister, the returned hearing aids were subsequently sent back to the manufacturer for credit. The credit was not to her account with the manufacturer, however, and she does not know who received it. Ms. Pfister, also a licensed hearing aid specialist since 1998, bought Conley's Hearing Aid Center from the Respondent on July 27, 1997. At the time of the purchase, Ms. Pfister was not employed by the Respondent, but she had worked for the Respondent on and off since 1995. On June 26, 1997, the Respondent signed a form to sponsor Ms. Pfister as a hearing aid specialist trainee and served as her sponsor until she passed the examination and was licensed on June 23, 1998. Respondent continued to work on the premises after the sale until Ms. Pfister was licensed. When Ms. Pfister took over the business, the sales contract called for all hearing aids on site to be sold to her as inventory, She also received a statement from the Respondent that there were no unresolved issues with clients, and she did not assume any liabilities incurred by the business prior to her take over. When she assumed active management of the practice, Ms. Pfister received all of the Respondent's patient files. Katherine Sadilek is a 93-year-old retiree who purchased a pair of pre-owned 3-M Model 8200 hearing aids from the Respondent on April 8, 1997 for $1,800. The aids were paid for in full on April 9, 1997. The receipt for this sale that the Respondent gave to Ms. Sadilek did not contain the serial numbers of the aids, nor did it describe any of the terms and conditions of the sale or a guarantee. Ms. Sadilek returned the aids to the Respondent exactly 30 days after the purchase date because she was not satisfied with them. The Respondent did not refund her money but agreed to try to re-sell them for her. He offered her $100.00 for them, which she refused. The Respondent retained the aids and never returned them to Ms. Sadilek or paid her for them. A review of the documentation relating to the sales to both clients show them to be devoid of any information showing any improvement to the clients' hearing as a result of the hearing aids sold to them by the Respondent. A showing of improvement is required to form the basis for non-refund of amounts paid for hearing aids. The Respondent filed for bankruptcy in December 1998. The Respondent was licensed as a hearing aid specialist in Indiana in 1970 and in Florida in 1978. He has practiced in Florida for almost 20 years without any complaints being filed against him except those in issue here. The Respondent attributes most of his problems to his marriage dissolution in 1979, the settlement relating to which caused his financial problems and his bankruptcy. He claims he offered to make periodic payments to Mr. Williamson but Mr. Williamson refused that offer. The Respondent is 61 years old and presently receiving worker's compensation. Though he is not presently in the hearing aid business, he hopes to be in the future and needs to keep his license to earn a living.
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 suspending the Respondent's license for a period of six months and thereafter placing it under probation for a period of three years under such terms and conditions as may be deemed appropriate by the Board. It is also recommended that the Board impose an administrative fine of $3,000, and assess appropriate costs of investigation and prosecution. DONE AND ENTERED this 12th day of September, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2000. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Stop 39 Tallahassee, Florida 32308 Donald Conley 3377 Southwest Villa Place Palm City, Florida 34990 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Ms. Joan Westhrin was accepted, over objection, as an expert hearing aid specialist, and her testimony as follows, is also accepted and adopted as findings of fact. Hearing aid specialists are licensed to perform audiometric testing. Audiometric testing is the function of presenting pure tones through headphones to establish a threshold of hearing. A threshold of hearing is the basis for the smallest amount of sound which the human ear can perceive. The testing is done by using air conduction by way of headphones and bone conduction. A comparison is made between the air conduction and the bone conduction results on the audiogram to determine if the client has a sensory neural hearing loss, meaning a loss in the nerve, or a mechanical function that would indicate that it is something that should be referred to a medical doctor for medical attention. During hearing examinations, the hearing aid specialist must also do an audioscopic examination, or a physical look into the ear canal, to rule out any anomaly that might be developing in order to determine whether the client is a candidate for medical testing. Ear mold impressions provide an exact duplicate of the ear canal so that a hearing aid may have an exact fit in the ear. A cotton block is used in the ear to prevent the impression material, silicone, from traveling down to the ear drum, and the material is left in the ear about five or six minutes to set properly. A hearing aid specialist must perform a complete audiological examination in order to provide a client with an appropriate hearing aid. Specific training is required for an individual to provide a safe examination, testing, ear mold impressions, and selection of a hearing aid for a client. Otherwise, an untrained individual may adversely impact on the client when performing the hearing test and providing a hearing aid. The parties' joint prehearing statement stipulated that the following are "facts which are admitted": The Respondent's name is Jack Lee Beckwith. The Respondent has been, at all times material hereto, a licensed hearing aid specialist in the State of Florida. The Respondent's hearing aid license number is AS 0001775. The Respondent's address is 14 Wildwood Trail, Ormond Beach, Florida 32174-4343. The Respondent is listed as a sponsor on the application of Jean Dewey for a hearing aid trainee and did not sponsor her until December 5, 1989. The Respondent is listed as a sponsor for David Dewey as a hearing aid specialist trainee and did not sponsor him until December 5, 1989. When Respondent became the Deweys' sponsor, he assumed responsibility for supervision of them as trainees. David Dewey is not guilty of canvassing, as set forth in Chapter 484. Jean Dewey is not guilty of canvassing, as set forth in Chapter 484. Despite the stipulations contained in sub-8 and sub-9 above, Petitioner presented, without objection, evidence geared to the issue of Respondent telling Mrs. Dewey to canvass. After Petitioner had rested, Respondent moved to dismiss the administrative complaint in part upon grounds that there had been no showing that Respondent had told Mrs. Dewey to canvass and upon the language of the stipulation, which was worded similarly to a prior request for admission. In response, Petitioner's counsel asserted that there had been no meeting of the minds in the stipulation because she thought she was only agreeing that Mr. and Mrs. Dewey had never been adjudicated guilty of canvassing. The motion to dismiss was taken under advisement for resolution in this recommended order (TR 134-135). The Jeanne Lyons Trust bought Brill's Hearing Aid Center in Daytona Beach in June, 1989. At that time, Jeanne Lyons was 100 percent owner of the Jeanne Lyons Trust and the Trust owned 100 percent of Brill's Hearing Aid Center, Inc. Jeanne Lyons is married to David F. Lyons. Mr. Lyons was not employed by the trust or by the hearing aid center corporation or by his wife in any capacity, but at all times material to this administrative complaint, he acted as "go-between" for all three. From 1988 to 1992, Mr. Lyons served on the Board of Hearing Aid Specialists. He is, and at all times material has been, a licensed hearing aid specialist. Respondent Jack Beckwith was an employee of the corporation, Brill's Hearing Aid Center, Inc., in Daytona Beach, Florida. He formed a separate management corporation with his wife, who is also a licensed hearing aid specialist. The management corporation was hired by the Jeanne Lyons Trust to manage Brill's in Daytona Beach and to help expand Brill's operations south into New Smyrna Beach and north into Palm Coast. The purpose of the management corporation was to avoid paying the Beckwiths as employees for the expansion work. In each of the new locations, a lease within an optometrist's office was negotiated by Mr. Lyons in approximately July, 1989. Respondent Beckwith is married to Kim Beckwith. Karen Martin was Mr. Beckwith's office manager at the Daytona Beach Brill's Hearing Aid Center. David James Jenkins is the son-in-law of David and Jean Dewey, a married couple. Mr. and Mrs. Lyons, Mrs. Beckwith, Ms. Martin, Mr. Jenkins and Mr. and Mrs. Dewey were not charged in the administrative complaint herein. Karen Martin had known Jean Dewey through prior employment. In July or August 1989, Ms. Martin set up a luncheon meeting for Mrs. Dewey and her husband, David Dewey, with Jack Beckwith. Mr. Beckwith ultimately introduced Mr. Dewey to Mr. Lyons sometime in August, 1989. The Deweys seemed good prospects to manage one of Brill's branch centers. On behalf of his wife and her trust and corporation, Mr. Lyons approved Mr. Beckwith's hiring the Deweys and becoming their sponsor to train as hearing aid specialists. At all times material, Mr. and Mrs. Dewey believed themselves to be in the employ of Respondent Beckwith and Mr. Lyons, operating as partners in Brill's. In negotiations with the Deweys, Mr. Beckwith estimated that Mr. Dewey could make $60,000.00 a year and Mrs. Dewey could make $40,000.00 a year based upon a 20 percent commission on gross deposits from hearing aid sales out of the New Smyrna Beach office after the Deweys became fully licensed as hearing aid specialists. He explained that licensure as a trainee and training were prerequisites to becoming fully licensed as hearing aid specialists. Both Mr. and Mrs. Dewey had a background in sales. Their testimony clearly reveals that they saw the selling of hearing aids from the perspective of marketing a product on a lucrative commission basis rather than from the viewpoint of a health care technologist. The commission arrangement proposed by Mr. Beckwith on behalf of the Jeanne Lyons Trust d/b/a Brill's Hearing Aid Center, Inc. was very attractive to them. They wanted to get started as soon as possible to make an increased commission over what they were being paid in other employments at the time they interviewed with Mr. Beckwith. They also found it attractive that they could work together near their home. Another factor motivating the Deweys to get started as soon as possible was that Mr. Dewey was employed at a marina which was about to close, and the marina closing would entirely eliminate Mr. Dewey's income. The Deweys were so enthusiastic about Mr. Beckwith's proposal that they nominated their son-in-law, David James Jenkins, to work in Brill's new Palm Coast office. During September 1989, Mr. and Mrs. Beckwith, with the approval of David F. Lyons, provided some free informal training sessions for Ms. Martin, Mr. Jenkins, and Mr. and Mrs. Dewey, just to see if they would really like hearing aid work and be adaptable to it before the Deweys and Mr. Jenkins quit their existing employments. This was not intended by Mr. Beckwith to be a real apprentice-type program. These sessions occurred twice a week and involved playing an instructional tape, handing out some printed statutes, rules, and technical materials, practicing with an audiometer, and learning to make ear molds. Each potential trainee was given his own audiometer to take home just for practice. On or about October 1, 1989, David Dewey signed an application to the Board of Hearing Aid Specialists to become a hearing aid trainee. His application for the trainee license listed Jack Beckwith as his sponsor. On or about October 1, 1989, Jean Dewey signed an application to the Board of Hearing Aid Specialists to become a hearing aid trainee. Her application for the trainee license listed Jack Beckwith as her sponsor. On or about October 2, 1989, Mr. Beckwith sent Mr. and Mrs. Dewey to operate Brill's Hearing Aid Center in space leased from Cady and Timko, optometrists, in New Smyrna Beach, Florida. The Deweys had precipitously quit their previous employment and had no income. Mr. Beckwith established what days of the week and hours they worked at Brill's, what they wore, and how they should be paid. He told them they could not be paid as employees until they were accepted and issued trainee numbers by the Department as trainees. Mr. and Mrs. Dewey were not paid any wages between October 1, 1989 and December 12, 1989. Due to the delay in receiving trainee licenses and numbers from the licensing agency and their lack of income, Mr. Dewey became infuriated and pressed both Mr. Beckwith and Mr. Lyons for action on licensing. As a result, he received sporadic checks from Brill's Hearing Aid Center. The amount of the checks apparently did not amount to projected commissions. The checks were signed by Jack Beckwith with the permission of David and Jeanne Lyons. The checks were referenced on their face as "loans". Mr. Dewey claimed that the purpose of this notation was so that Mr. Beckwith or others could avoid paying employee-related taxes. Mr. Lyons and Mr. Beckwith asserted that the notation was to insure that Mr. Dewey paid back Mrs. Lyons' advances after Mr. and Mrs. Dewey received their trainee licenses and went on the regular payroll. Mrs. Dewey received no checks. The lease Mr. Lyons had negotiated with Cady-Timko, O.D., P.A. provided for Brill's Hearing Aid Center, New Smyrna Beach to have ". . . [a]ccess to patient files to contact patients to tell them of hearing aid services available . . . [and] opportunity to confirm optometrist appointments and ask if they would like hearing test also." Sometime in October 1989, Mr. Beckwith also sent Mr. Jenkins to operate the newly leased office of Brill's Hearing Aid Center, Palm Coast, Florida. Mr. Jenkins claimed to have worked briefly at a Brill's Center in Ormond Beach, but there is no other evidence that there even was a Brill's Center in Ormond Beach. Mr. Jenkins quit the Palm Coast office approximately November 1, 1989 because no clients came there and he was "starving to death." He testified that he was instructed by Mr. and Mrs. Beckwith to make cold calls to potential hearing aid customers from all of the files in the adjacent optometrist's office in Palm Coast, but that he, Mr. Jenkins, so feared rejection that he asked his wife, Mrs. Jenkins, to make the calls. Mr. Jenkins also testified that he did some audiometric testing and that Mrs. Beckwith checked all the audiometric testing he did, but he was vague as to whether this was done at Brill's office in Palm Coast or during his pre-training. His testimony was unclear as to whether Mrs. Beckwith also personally supervised all his audiometric testing. Mrs. Beckwith was not charged with any violations. Respondent Beckwith was not charged in the pending administrative complaint with anything done by Mr. Jenkins. Mr. and Mrs. Jenkins were not charged with any violations. On or about October 15, 1989, Jack Beckwith signed and mailed to the Department of Professional Regulation a Brill's Hearing Aid Center, Daytona Beach check for $400.00 to cover trainee applications for Mr. and Mrs. Dewey, Mr. Jenkins, and Ms. Martin, at $100 apiece. The applications and check were not received or processed by the Department until December 1, 1989. The actual trainee licenses were issued for Mr. and Mrs. Dewey on December 5, 1989. Mr. Beckwith's clear testimony that he submitted the check and four applications together by mail on October 15, 1989 is credible and compelling as opposed to other witnesses' inferences of a December 1, 1989 submittal date because the check face references the four applications specifically, including Mr. Jenkins' application, and the evidence is unrefuted that Mr. Jenkins quit his association with Brill's on or about November 1, 1989. No motive or reasonable rationale was advanced as to why Respondent should mail in $100 of Brill's money to register Mr. Jenkins as a trainee on December 1, 1989, thirty days after Mr. Jenkins had already quit. As noted above, the parties have stipulated as fact that Jack Beckwith did not become the Deweys' sponsor until December 5, 1989. At all times material, the training course and apprenticeship program under a sponsor approved by the licensing agency took approximately six months to complete before the applicant could sit for the hearing aid specialist licensure exam. From all accounts, it appears that it was standard operating procedure in the industry for sponsors to allow trainees to perform all services under direct supervision of their sponsor from the date the application for trainee status was mailed to the licensing agency. In this case, that date would have been October 15, 1989. David Dewey and Jean Dewey were not registered as trainees with the Board of Hearing Aid Specialists until December 5, 1989. According to the testimony of Theresa L. Skelton, the Department's policy was to treat applicants as trainees as soon as it received their checks, which in this case was December 1, 1989. Apparently in 1989, the agency did no extensive background check on applicants, and trainee licensing was largely a ministerial act if the proposed sponsor was legitimate. As far as the Department was concerned, trainees could legally perform all services under sponsor supervision as soon as their application and check were processed. See also, Sections 484.0445(1) and (2) F.S. infra. In October 1989, when Mr. Beckwith sent Mr. and Mrs. Dewey to the Brill's office in New Smyrna Beach, he instructed them to sell batteries and make appointments for persons who answered a newspaper advertisement he had placed to announce opening that branch office. He also told them to telephone current patients of the Daytona Beach Brill's Hearing Aid Center who lived in New Smyrna Beach and tell them that they no longer had to travel to Daytona Beach but could be serviced more conveniently at the new New Smyrna Beach location. Mr. Beckwith testified that he also told Mrs. Dewey to telephone "recall patients" for the optometry office. Recall patients were patients of the optometry office who needed to be reminded to come in to pick up glasses already ordered or who were due for a new eye appointment. Mrs. Dewey was also told to announce the opening of the hearing aid center to any of the optometry recall patients whose records bore Dr. Cady's notation, "HL" for "hearing loss", and also simultaneously make appointments for hearing tests. Mr. Beckwith intended that all appointments would be made for Wednesdays when he would come to New Smyrna Beach to do hearing tests and fit and deliver hearing aids. This testimony is in accord with the conditions of Brill's lease with Cady-Timko O.D. P.A., negotiated by Mr. Lyons. Mrs. Dewey testified credibly that Mr. Beckwith approved a script for her use for these telephone calls. Nothing in the script clearly shows that she was calling exclusively optometric recalls, Brill's old patients, or making "cold" calls. However, it mentions nothing about existing eyewear or appointments, and it does offer a free hearing test. Mrs. Dewey further testified that Ms. Martin instructed her how to use Dr. Cady's files to make a list and call all of Dr. Cady's patients over a certain age, regardless of an "HL" notation, paying special attention to those with insurance coverage. Mrs. Dewey understood these instructions also came from Mr. Beckwith and made telephone calls pursuant to the method outlined by Ms. Martin. Mr. Beckwith denied giving these instructions or approving the script. Mrs. Dewey's testimony and the list show that after the first two pages going through Dr. Cady's files with names beginning with the B's and C's of the alphabet had been prepared by Ms. Martin and one appointment scheduled on Tuesday, October 17, 1989 and one on Wednesday, October 18, 1989, Mrs. Dewey started back at the A's and prepared a more extensive list of names. This suggests that Mrs. Dewey went behind Ms. Martin's work and selected from Dr. Cady's files some names which Ms. Martin had excluded. Comparison of the list with a 1989 calendar shows that Mrs. Dewey booked approximately 35 appointments for dates between October 2, 1989 and December 12, 1989, without regard to whether they fell on Wednesdays. Most of the appointments she booked were for days other than Wednesdays. They included days between December 5, 1989 and December 12, 1989 while Mr. Beckwith was listed as the Deweys' sponsor. Mrs. Dewey, whose background was in sales, considered what she was doing to be "telemarketing". Neither Dr. Cady's files nor Mrs. Dewey's list showed that any person she telephoned had expressed an interest in hearing aids before Ms. Martin or Mrs. Dewey contacted them. Mrs. Dewey's list clearly shows that most of the people called either did not acknowledge that they had a hearing loss or were not interested in a hearing test and/or hearing aids. Mr. Dewey testified that between October 2, 1989 and December 12, 1989, he performed unsupervised audiometric testing, the taking of ear mold impressions, and the sale and dispensing of hearing aids to 20-24 persons and that he did so either with the instructions or knowledge of Mr. Beckwith and outside Mr. Beckwith's presence because Mr. Beckwith remained in Daytona Beach except on Wednesdays. Mr. Lyons and Mr. Beckwith denied issuing such instructions and denied even any knowledge that this had occurred until Mr. Beckwith was served with the administrative complaint. Mr. Beckwith testified that when he was present on Wednesdays, Mr. Dewey would sit in with him and observe testing and delivery and that whatever he allowed Mr. Dewey to do in his presence was overseen by him and he signed the appropriate documentation. He denied knowing that Mr. Dewey was also practicing as a hearing aid specialist when he was not present. Mr. Dewey conceded that Mr. Lyons specifically instructed him not to make any deliveries, and it is clear from Mr. Dewey's testimony that he thought Mr. Lyons' instruction meant "no home deliveries to patients", instead of "no delivery of finished hearing aids to clients anywhere, including the office," which would be a partial definition of "no dispensing." Although Mr. Dewey has claimed to make sales of hearing aids, he also has, since 1989, consistently maintained that he never "delivered" a hearing aid to a client. His testimony at formal hearing does not render clear whether or not he actually fitted a completed hearing aid on a client or ever actually collected money for a "sale" without supervision by Mr. or Mrs. Beckwith. Mr. Dewey testified that Mr. Beckwith or Mrs. Beckwith signed all paperwork as being responsible for the tests, etc. which he performed in their absence. No documentation of hearing tests or hearing aid sales by Mr. Dewey were submitted; no clients Mr. Dewey allegedly serviced testified; no bank deposits showing income from the New Smyrna Beach location were offered; and Mrs. Beckwith did not testify. Mr. Beckwith testified he personally delivered no hearing aids from the New Smyrna Beach office. On or about December 6, 1989, but before the Deweys had received their trainee licenses or been informed that they had been licensed as of December 5, 1989, they invited George Selas, a competitor and a licensed hearing aid specialist, whom Mrs. Dewey had known for some time, into the New Smyrna Beach office of Brill's Hearing Aid Center. When they explained the "telemarketing" that Mrs. Dewey was doing, Mr. Selas informed them that it was illegal and that they should not be practicing as hearing aid specialists before trainee numbers were issued to them by the Department. The Deweys immediately notified the Department by telephone on December 6 and in writing on December 7, 1989 of everything they had been doing and disassociated themselves from Respondent Beckwith, Mr. and Mrs. Lyons, and Brill's. That would mean that after December 6 they no longer operated out of their sponsorship situation with Mr. Beckwith, despite any booked appointments. As of December 12 or 13, 1989, they formally changed their sponsorship to Mr. Selas. They finished their training and apprenticeship under his sponsorship and were licensed as hearing aid specialists in 1990. As a result of information received from Mr. Dewey and Mr. Selas, Dr. Cady gave notice he was terminating the lease for Brill's New Smyrna Beach office. Mr. Selas and Brill's, represented by Mr. Beckwith, were competing for the same contract with an HMO in 1989-1990. Respondent attributes all of Mr. Dewey's actions to collusion with Mr. Selas in order to obtain the HMO contract and rent the space occupied by Brill's in New Smyrna Beach. These inferences are based upon inadmissible hearsay from someone at the HMO who allegedly got an anonymous phone call, and Dr. Cady's understanding of something Mr. Dewey may have said either to Dr. Cady or to his office manager.
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 finding Respondent guilty of violating Sections 484.056(1)(h) and (t) F.S., not guilty of all other charges, and revoking his license. DONE AND ENTERED this 6th day of January, 1995, in Tallahassee, Florida. ELLA JANE P. DAVIS, 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 6th day of January, 1995. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-3 Accepted, except as to the use of the word "employed." See the Conclusions of Law. 4 Rejected upon contrary evidence of greater weight and credibility in Finding of Fact 33. 5-7 Accepted. 8 Accepted as modified in Finding of Fact 21 to better conform to the record and statute. 9-10 Accepted, except that receipt of the check was testified to be December 1, 1989. Rejected in part as a conclusion of law. See Finding of Fact 21 and the Conclusions of Law. Rejected because misleading as stated. See Finding of Fact 33 upon the greater weight of the credible evidence. Accepted. 14-16 Rejected only upon the word "employment" as a word of art. See Findings of Fact 15, 27-31 and the Conclusions of Law. 17 Rejected as a conclusion of law. See Findings of Fact 21, 27-31 and the Conclusions of Law. 18-22 Accepted, except for unnecessary, subordinate, and/or cumulative material and legal argument. Rejected as a conclusion of law. Covered in Findings of Fact 21, 27-33 and the Conclusions of Law. Accepted. 25-26 Covered only as necessary in Finding of Fact 22-25. 27-29 Accepted except as to word "employee." See Conclusions of Law. 30-31 Rejected as unnecessary or subordinate. Rejected as a finding of fact; see the Conclusions of Law. Rejected because misleading as stated. See Finding of Fact 9 and 15. 34-35 Rejected upon the greater weight of the credible evidence in Findings of Fact 15-16. Rejected as a mere recitation of nondispositive testimony. Rejected as not proven. Respondent's PFOF: 1-7 Accepted. Rejected as a conclusion of law. See Finding of Fact 20-21 and the Conclusions of Law. Sentence 1 is rejected as a legal conclusion. Sentence 2 is accepted in part in Finding of Fact 15-16 and 21 and otherwise rejected as a legal conclusion. The remaining sentences are accepted except that unnecessary, subordinate or cumulative material has not been adopted. 10-12 Accepted except that unnecessary, subordinate or cumulative material has not been adopted. The first sentence is rejected a mischaracterizing Mrs. Dewey's testimony. The second sentence is rejected upon the greater weight of the credible evidence as a whole. Accepted. First 15 Rejected as not proven. Dr. Cady's deposition is vague on this point. See Findings of Fact 34-35. Second 14 The first sentence is accepted. The second sentence is rejected as a mischaracterization. The third sentence is accepted. Second 15 Rejected as legal argument. 16 Rejected as legal argument. COPIES FURNISHED: Raymond Shope, Esquire Northern Trust Bank Building, Suite 225 4001 Tamiami Trail North Naples, FL 33940 Susan E. Lindgard, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792 Suzanne Lee, Executive Director Board of Hearing Aid Specialists Department of Business and Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792
