Findings Of Fact prior to the regulation of hearing aid dispensers in Florida in 1967, the National Hearing Aid Society and its Florida chapter, the Florida Hearing Aid Society, were voluntary nonprofit organizations established to provide information to, and establish certain standards for, its members. In 1951 the National Hearing Aid Society inaugurated the title Certified Hearing Aid Audiologist and established certain criteria for certification. These included two years experience dispensing hearing aids, a letter from a doctor of medicine that he had observed a fitting that had been done by the ,applicant, credit reference, complete the National Hearing Aid Society's certified exam or its equivalent, and submit a fee to the National Hearing Aid Society. Subsequent to 1967, passing of the Florida exam for licensure as a hearing aid specialist was deemed equivalent to the National Hearing Aid Society's exam. The term Certified Hearing Aid Audiologist was patented by the National Bearing Aid Society in 1970. Those hearing aid dispensers certified by the National Hearing Aid Society (NHAS) were authorized by NHAS to advertise and hold themselves out at CHAA's. Webster's New Collegiate Dictionary (1977) defines audiology as: A branch of science dealing with hearing; specif. therapy of individuals having impaired hearing. Audiologists are licensed in Florida pursuant to Section 468.139 et seq. Florida Statutes (1979) which requires formal education and training before the applicant for licensure becomes qualified to take the examination which must be passed before certification is granted. Most audiologists are designated as clinical audiologists apparently because their testing and diagnosing of clients occurs in a clinic equipped with machines designed to test and diagnose hearing difficulties. Many audiologists dispense and fit hearing aids as do some otologists. The latter are exempted from hearing aid regulation by Section 468.137(2) , Florida Statutes. The average person is unaware that a CHAA does not have equal (and some people believe greater) qualifications respecting hearing disorders than does an audiologist. Few people know there is any difference between the two. Even one of Petitioner's witnesses acknowledged that a lot of physicians are confused about the term certified hearing aid audiologist. Accordingly, holding oneself out as a CHAA tends to mislead the general public when one so holding himself out is not, in fact, a qualified audiologist.
Findings Of Fact Petitioner Horrigan has owned Better Hearing Aid Services, St. Petersburg, Florida since the company was started in 1957. Be is a certified hearing aid specialist and has been licensed each year through 1979. Petitioner Whittington has been a certified hearing aid specialist since 1957 and has managed Better Hearing Aid Services since 1968. During the early part of 1979 Petitioner Horrigan decided to sell his business and Whittington decided to retire at the end of 1979. Both Petitioners are well past 65 and Horrigan has had more than one heart attack. To seek buyers for the business an ad was placed in the June 1979 issue of the Hearing Aid Journal (Exhibit 1) Both Petitioners were aware of the requirement for completion of the continuing education course for renewal of certificates hut since both of them planned to retire in 1979 neither intended to renew his license for 1980. Bulletins reminding registrants of this requirement were sent to all certificate holders by Respondent on February 13, August 8 and October 1, 1979. Attempts to sell the hearing aid business in 1979 were unsuccessful. Accordingly, late in 1979, Horrigan decided it would be necessary for him to renew his certificate to keep the business open until he could find a buyer. Continuing education courses were given at various places in Florida during 1979 and Horrigan planned to go to Daytona Beach to take the course given 2 December 1979. On 27 November 1979 Horrigan was hospitalized for 9 days for a condition related to his previous heart attacks and was unable to take the course. Whittington was not aware that Horrigan was hospitalized until after the 2 December continuing education course was given. Had he known Horrigan couldn't attend, Whittington testified he would have attended so he could qualify for renewal of his certificate and keep the business open until a buyer was found. The next continuing education course given in Florida after 2 December 1979 was on January 24-25, 1980 at St. Petersburg, Florida. Both Petitioners attended this course and immediately upon completion submitted their applications for renewal of their certificates. Both applications for renewal were denied because they had not taken the continuing education course in calendar year 1979. Both Petitioners are highly qualified to sell hearing aids and denial of their applications for renewal of certificates is not in the public interest.
Findings Of Fact Until August 24, 1974, Petitioner was holder of Certificate of Registration No. 173-06-68, and Renewal Certificate No. 466, which authorized him to act as a hearing aid fitter and salesman in the State of Florida. In 1974, as a result of investigations and conferences conducted by representatives of HRS, it was determined that Petitioner had falsified his application for the above referenced licenses in 1968 when he failed to reveal that in 1955 he had been arrested and convicted of armed robbery, and had served one year in confinement for that offese. Petitioner was duly served with notice (Hearing Officer's Exhibit #3) that proceedings had been commenced to revoke his license to fit and sell hearing aids. In the course of proceedings to revoke his license, Petitioner and HRS entered into a Consent Order (Hearing Officer's Exhibit #1) dated March 19, 1974. In that order, Petitioner agreed to a suspension of his license for a period commencing February 1, 1974, and ending May 2, 1974, and further agreed that thereafter he would be "on a period of supervision for a five-year period. The conditions of this "supervisory period were that Petitioner would submit quarterly reports to HRS containing copies of all contracts for hearing aids sold by him in the State of Florida, the name and address of his employer, and Petitioner's residence address. Under the terms of the Consent Order, any failure by Petitioner to comply with the terms of the agreement constituted grounds for cancellation of his license. Petitioner failed to file the necessary report due on August 1, 1974, with HRS, and, on August 21, 1974, HRS served a Notice of Revocation (Hearing Officers Exhibit #2) advising him that his license had been cancelled for noncompliance with the Consent Order. At the time Petitioner's initial report was due under the terms of the Consent Order he had left Florida to seek other employment in California. At the time of the entry of the Consent Order, Petitioner was employed by Lunex, Inc. in St. Petersburg. He left that position shortly after entry of the order, and was unemployed for a period of approximately six months. Since Petitioner was unemployed, and had made no sales of hearing aids during the period covered by the report which was to have been filed August 1, 1974, his only technical violation of the Consent Order was failure to report his residence address to HRS. Even so, when the August 1, 1974, report became due, Petitioner had no permanent residence address in Florida or elsewhere in that he was actively engaged in seeking employment, both in Florida and in California. Petitioner is now a legal resident of the State of Florida, and has had over ten years experience in the fitting and selling of hearing aids. He is presently employed by Ray Black, Inc., a company qualified to engage in the fitting and selling of hearing aids in Florida. Since his license was revoked in 1974, Petitioners's activities with his present employer are necessarily limited to hiring and training hearing aid salesmen. Ray Black, Inc. is an established hearing aid business, open during normal business hours with a permanent business address at 8001 North Dale Mabry, Tampa, Florida. A representative of Petitioner's current employer testified that his work had been very satisfactory since joining Ray Black, Inc. in March, 1978. Petitioner is now 42 years old. The reasons for the initial revocation of his license were his failure to disclose an arrest and conviction for armed robbery which occurred when he was 18 years old, and his subsequent failure to abide by the terms of the Consent Order (Hearing Officer's Exhibit #1). There has been no evidence of any violation of the laws of this or any other state since his conviction in 1955, and his failure to disclose that conviction in 1968. Neither is there any evidence that Petitioner''s performance as a fitter and seller of hearing aids prior to revocation of his license, and as a teacher of salesmen since that time has been less than satisfactory.
Findings Of Fact Petitioner, Donna A. Benoit, is a candidate for licensure as a hearing aid specialist. Her examination date was September 10-12, 1993. There were two sections to the examination for licensure: a practical portion that consisted of several subparts, and a written portion for which the minimum passing grade was 75.00. In order to achieve an "overall examination status" of passing, Petitioner was required to pass both sections. While Petitioner obtained a passing grade on the practical section, her grade on the written section was 74.00. Upon receipt of her test scores, Petitioner timely challenged the examination results. Initially, Petitioner listed twenty-two questions for which she received no credit as those to be challenged. At hearing, however, Petitioner elected to only challenge one: Question 10. The format for the written examination was multiple choice, and the instructions directed candidates to choose the best answer from among those suggested. Approximately 79 percent of the candidates taking the examination got Question 10 correct. Therefore, for statistical purposes, Question 10 should not be considered vague or ambiguous. An audiometric evaluation is required before a hearing aid can be fitted or sold. An audiometric evaluation consists of the following: puretone testing by air and bone conduction, effective masking when indicated, speech reception thresholds, speech discrimination scores, MCL and UCL, and selection of best fitting arrangement. An otoscopic examination of the ear is performed before the audiometric evaluation can be performed. An otoscopic examination does not, of itself, allow a hearing aid to be fitted or sold. Once the otoscopic examination is successfully completed such that a hearing aid may be fitted and sold, the audiometric evaluation must be performed. An audiometric evaluation as described in Section 484.0501, Florida Statutes, provides the minimal procedures in the fitting and selling of hearing aids. Petitioner's answer to Question 10, "D", was not the best selection from those available; consequently, the Department correctly scored Petitioner's response.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Board of Hearing Aid Specialists, enter a final order denying Petitioner's challenge to Question 10 of the hearing aid specialists examination administered September 10-12, 1993. DONE AND RECOMMENDED this 21st day of April, 1994, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 21st day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0303 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Petitioner's one page letter filed March 28, 1994, has been considered argument and not in a format to allow rulings on specific facts. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1 through 3, and 6 are accepted. The first two sentences and the last sentence of paragraph 4 are accepted; the remainder is rejected as irrelevant. The last sentence of paragraph 5 is accepted; the remainder is rejected as unnecessary or irrelevant. COPIES FURNISHED: Donna A. Benoit 100 St. George Boulevard Apt. 402 Savannah, Georgia 31419 Vytas J. Urba Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Suzanne Lee, Executive Director Board of Hearing Aid Specialists Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Raymond J. Black is registered to fit and sell hearing aids in Florida and at all times here relevant he was so registered. He has been a registrant for several years, has been a dealer since 1976 and operates two offices, one in Tampa, Florida, and the second in Zephyrhills, Florida. Mr. Black spends most of his time in the Tampa office. Arvena Hines is the office manager in the Zephyrhills office and has managed that office for Respondent since about 1973. She has qualified for, taken and failed the examination for registration as a hearing aid specialist in Florida three times. Following her second failure her application for a third examination was initially disapproved, but after judicial proceedings were instituted she was authorized to retake the examination after again completing the trainee program. As office manager Ms. Hines was the supervisor of all other employees at the Zephyrhills office including hearing aid specialists and trainees. She received thirty-five percent of the profits on all hearing aids and hearing aid supplies sold in the Zephyrhills office. Other employees authorized to sell hearing aids received approximately fifteen to twenty-five percent commission on the sale of hearing aids depending on where the sale was made. In 1977 Arvena Hines pleaded nolo contendere in the County Court in and for Pasco County to the charge of fitting and selling a hearing aid without being licensed or registered to do so. Adjudication of guilt was withheld and she was placed on probation for six months. (Exhibit 16) In 1977 Respondent Black pleaded nolo contendere in the County Court in and for Pasco County to a charge of employing Arvena lines, an unregistered person, for the purpose of fitting and selling hearing aids. Adjudication of guilt was withheld and Respondent was placed on probation for six months. (Exhibit 14) In 1977 Respondent's registration was suspended for ninety days by Petitioner upon a stipulation of settlement in the revocation proceedings that had been referred to the Division of Administrative Hearings. In August 1979 Edward J. Greenough went into Respondent's Zephyrhills office accompanied by his wife for the purpose of having his hearing checked. He was waited on by Frances Wilkes who at the time was a trainee, Class III. Ms. Wilkes tested Greenough's hearing and then said Ms. Hines had to check the results because "she (Wilkes) didn't have her license. Although Ms. Wilkes testified that Ms. Hines conducted no tests or performed any services connected with selling or fitting a hearing aid on Greenough, the testimony of Mrs. Greenough that Ms. Hines repeated the testing procedure that had been done lay Ms. Wilkes, prepared the ear molds and subsequently fitted the hearing aid on Mr. Greenough, is the more credible. In October 1978 Margaret Lamb, an octogenarian, visited the Zephyrhills hearing aid office to see why her hearing aid was not "giving me success." Ms. Hines took an ear mold for her but a man conducted the audio test. Although Ms. Lamb exhibited some of the frailties of age her recollection of events was clear including the "terrific noise" that almost took her head off during the hearing test. That error left her somewhat confused and anxious to get out of the office. Robert Ayer visited the Zephyrhills hearing aid office of Respondent in December 1978 to have checked a hearing aid he had dropped. Ms. Hines waited on him, suggested he get a new "all in the ear" hearing aid, gave him a hearing test, and made an ear mold. When asked for a down payment on the hearing aid Ms. Hines said he needed, Ayer stated he had not expected to purchase a hearing aid that day and was unprepared to make a deposit. When Ayer returned to Zephyrhills after the new year he went to the hearing aid office, was told his hearing aid was in, and paid Ms. Hines $250. Exhibit 10 is the receipt for this payment. Jim Spear, a licensed hearing aid specialist who was working for Respondent at this time signed the audiogram (Exhibit 19) and testified that he conducted the hearing aid test done on Ayer December 11, 1978. Spear also denied ever seeing Hines sell or fit hearing aids or do any work in connection therewith. For several reasons Mr. Ayer's testimony is more credible than the conflicting testimony. Apart from the demeanor of the witnesses and personal reasons of the registrants for denying unlawful acts were committed by Ms. Hines in their presence and to their knowledge, Mr. Ayer is the precise and meticulous type of individual who keeps a diary of his daily activities, even in retirement. These diaries were in his possession at the hearing, and were shown to and perused by Respondent's attorney at the latter's request. No conflicts or omissions between the diary entries and Ayer's testimony were presented. Mrs. Maidee Carr's deposition was admitted as Exhibit 15. Mrs. Carr is a nonagenarian who was sold a hearing aid by Ms. Hines around December 1978 or January 1979. The audiogram was taken by a man (Jim Spear signed Exhibit 17, the audiogram taken on Mrs. Carr January 22, 1979), but Ms. Hines took the ear mold and Mrs. Carr gave Ms. Hines a check in full payment when the hearing aid was delivered to Mrs. Carr's home by Ms. Hines who then put the hearing aid in Mrs. Carr's ear. In January 1980 Douglas Yacinich, who had worked as a hearing aid salesman in Iowa for several years, visited Respondent with the view of employment when he moved to Florida. Respondent sponsored Yacinich's application for Trainee Temporary Certificate of Registration which was submitted January 28, 1980. Yacinich then returned to Iowa to settle his affairs. This application to enter the trainee program was approved in a letter dated March 26, 1980 (Exhibit 6). The application was approved effective March 24, 1980 (Exhibit 5), and Yacinich was issued a Certificate of Registration (Exhibit 23). At this time Yacinich was in Iowa and, according to his testimony, he moved to Florida around May 1980. Respondent submitted Exhibit 7 notifying Petitioner that Yacinich entered into the training program March 24, 1980, completed Stage I on April 24, 1980, and completed Stage II on June 24, 1980. Yacinich left Respondent's employ "around June or July" 1980 and has made no further effort to become registered as a hearing aid specialist. Yacinich set up an appointment with Mr. Chastain, a hearing aid user, and on May 9, 1980, did an audiogram on him (Exhibit 21). He also sold Chastain a used hearing aid the same day but it was not delivered until later. Mrs. Chastain gave Yacinich a check for part payment of the hearing aid on May 9, 1980, when the invoice for the hearing aid was prepared (Exhibit 12). This invoice does not contain the serial number of the hearing aid subsequently delivered to Chastain. When the final fitting of his hearing aid was made on June 2, 1980, Respondent accompanied Yacinich to Chastain's home and was present when the hearing aid was fitted by Yacinich. The testimony is conflicting whether Respondent was in the yard or in the room with Yacinich when the hearing aid was placed in Chastain's ear; However, it is clear that when Yacinich delivered the hearing aid to Chastain, Respondent was present. Respondent attributed the preferring of the charges against him, which are contained in the Administrative Complaint and Amended Administrative Complaint, to the animosity of Ralph Gray, the Administrator of the Hearing Aid Licensing Program in HRS, and to his belief that Gray has a vendetta against him. No evidence to support these beliefs was submitted other than Respondent's opinion. Respondent denied that he was aware that Ms. Hines ever took ear impressions in the Zephyrhills office on any of the complaining witnesses or that she ever performed any of those functions in dispensing hearing aids which require certification. Respondent acknowledged that Ms. Hines is manager of the Zephyrhills office and that she receives thirty-five percent of the funds coming into the office, and that salesmen are paid a commission of about twenty-five percent on the hearing aids they sell depending upon where the hearing aid is sold. Ms. Wilkes who does little work outside the office received a commission of around fifteen percent for those hearing aids she sold. Respondent testified that his belief that no audiograms were taken nor hearing aids sold by Ms. Hines was based upon the fact that the audiograms were signed by someone other than Ms. Hines and the word of these people that they conducted the tests. No evidence was presented to show the commissions paid to the various salesmen for the hearing aids dispensed to those witnesses who testified in these proceedings. Respondent allowed Yacinich to work unsupervised in the selling and dispensing of hearing aids before he had actually worked fur Respondent for thirty days. This determination is reached from the evidence that Yacinich was probably well qualified by his previous experience in Iowa, by Respondent's testimony that he considered Yacinich to have been in his employ since January 28, 1980, when Yacinich's application was submitted, and by Yacinich's testimony that he did not actually relocate to Florida until May or June.
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 Whether Petitioner's application to renew license to dispense hearing aids should be approved. This proceeding involved Petitioner's application to renew an existing license to dispense hearing aids in the State of Florida which was denied by Respondent Department of Health and Rehabilitative Services by letter of January 31, 1980, for failure to establish that the applicant had satisfactorily completed a continuing education course relating to the fitting and selling of hearing aids consisting of a minimum of ten contact hours of classroom instruction. Petitioner requested a hearing by letter, dated February 4, 1980. Petitioner appeared at the hearing unaccompanied by legal counsel and was advised by the Hearing Officer as to her rights in administrative proceedings. She acknowledged understanding such rights and elected to represent herself in the matter.
Findings Of Fact Petitioner Evelyn S. Webster was licensed with Respondent to fit and sell hearing aids in 1979. She owns and operates a firm called Acousticon of Daytona at Daytona Beach, Florida, where she fits and sells hearing aids and also larynx and speech aids. (Testimony of Petitioner) In 1978, the state legislature amended the "Fitting and Selling of Hearing Aids Act," Chapter 468, Florida Statutes, Part III, to require that registrants must show evidence of satisfactory completion of a continuing education course relating to the fitting and selling of hearing aids during the previous calendar year consisting of a minimum of ten contact hours of classroom instruction which course is subject to approval for credit by Respondent. The requirement was to commence beginning with calendar year 1979. Respondent's hearing aid licensure program administrator issued a succession of notices to all registered hearing aid dispensers in 1978 and 1979 advising of the new requirement and providing information as to where and when approved courses could be taken. By further letter of October 1, 1979, Respondent's licensing administrator transmitted applications to registrants for annual renewal of certificates. The letter of transmittal advised all registrants to enclose with their applications proof of successful completion of the ten-hour continuing education course during the calendar year 1979. Petitioner received the various letters issued by Respondent and her application for renewal. (Testimony of Gray, Petitioner, Exhibit 5) Petitioner was in ill health during 1978 and 1979 with various medical problems, and is still under the care of a physician for hypertensive cardiovascular disease. Consequently, she did not take the continuing education course until October 1979. At that time, she successfully completed the five hours of instruction offered by the Florida Hearing Aid Society at Daytona Beach. All hearing aid dispensers were advised in a letter from Respondent dated October 1, 1979, that a ten-hour course would be offered in early November at Brevard Community College, Titusville, Florida. However, Petitioner did not seek to attend this session. She submitted her application for license renewal on January 14, 1980, to Respondent and enclosed proof of completion of the five hours of instruction. Respondent's Director of Licensure and Certification advised her, by letter of January 31, 1980, that her application was denied since she had not completed a minimum of ten contact hours of approved continuing education credits. Thereafter, during March 1980, she attended and satisfactorily completed the full ten-hour course at Brevard Community College. (Testimony of Petitioner, Gray, Exhibits 1-2, 4,6)
Recommendation That Petitioner's application for renewal of her certificate of registration to fit and sell hearing aids be approved. DONE and ENTERED this 8th day of May, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Leo Stellwagen Evelyn S. Webster Assistant District IV Acousticon of Daytona Legal Counsel 222 Magnolia Avenue at Department of HRS Ridgewood Post Office Box 2417-F Daytona Beach, Florida 32014 Jacksonville, Florida 32231 Stephen S. Huss Staff Attorney Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Case History This case is presented for consideration based upon the Petition for Determination of the Invalidity of Rule 100-48.27(1) and (2), Florida Administrative Code, and the October 16, 1981, memorandum. This Petition was received by the Division of Administrative Hearings and assigned for consideration to the present Hearing Officer by order of the Acting Director of the Division of Administrative Hearings, dated March 23, 1982. An amendment was allowed on April 7, 1982, which brought about the deletion of George Selis and Harold A. Peck, Jr., as party Petitioners and added the party Petitioner Irene Selis. On April 9, 1982, a Prehearing Conference was held in which oral argument was allowed on Petitioners' Motion to Compel Answers to Interrogatories and Request for Official Recognition and on Respondent's Motion to Dismiss, Motion for More Definite Statement, Motion to Strike the Amended Petition and Motion to Expedite Discovery. An order was entered on April 12, 1982, which took Official Recognition of Items 1 through 6 in the request and reserved ruling on Items 7 through 9. Respondent's Motion to Dismiss, Motion to Strike and Motion for More Definite Statement were denied and the Amended Petition, as acknowledged before, was allowed. Petitioner's Motion to Compel Answers to Interrogatories related to the first set was denied and was denied concerning the second set with the exception of number 5 which was granted. Respondent's Motion to Expedite Compliance with the Amended First Request for Production was granted. At the hearing on April 16, 1982, Item 6 of the Petitioners' Request for Official Recognition was substituted for by stipulation of counsel and Respondent's substitute item was accepted. Items 7 through 9 of the Request for Official Recognition were admitted without objection. In the course of the final hearing, Petitioner presented Jay Alan Bertoch, President of the Florida Hearing Aid Society; George C. Martinez, member of the Board of Directors of the Society and Barbara Stanley, member of the Board of Directors of the Society. Martinez and Stanley also appeared in their individual capacities as registrants who employ and supervise trainees. Benjamin T. Wrubel and Howard Griesdorf, Stage II trainees in hearing aid programs in Florida under the supervision of Irene Selis, a named Petitioner, gave testimony. Respondent presented as a witness, Ralph Gray, Program Administrator, Hearing Aid Licensing, State of Florida, Department of Health and Rehabilitative Services. Substantive Facts Petitioner, Florida Hearing Aid Society, Inc., is a nonprofit corporation duly registered in Florida, composed of approximately 270 of the 435 licensed and regulated fitters and sellers of hearing aids. In addition, there are trainees who are seeking licensure as fitters and sellers and manufacturers of hearing aids who are members of the Society. The licensees/registrants who are members of the Society are authorized to employ and supervise trainees in keeping with the provisions of Chapter 468, Florida Statutes, and Rule 10D- 48.27(1) and (.2), Florida Administrative Code. Trainees who are supervised by Society members and other registrants are required to serve a six-month apprenticeship which is divided into three stages: Stage I is a one month training period; State II is a two month training period and Stage III is a three month training period. Completion of this apprenticeship is necessary before the apprentice is eligible to become a registrant. The purposes of the Society, as set forth in its Articles of Incorporation, are as follows: To promote good will and cooperation among the hearing aid dealers in the State of Florida. To promote the welfare, in so far [sic] as hearing is concerned, of the hard-of-hearing public. To improve the professional standards of the hearing aid dealers of the State of Florida, and to inculcate among the members ethical principles that will lend dignity to the profession and insure [sic] continued public confidence in the profession. To promulgate among the general public knowledge and understanding as to the use and and value of instruments for the aid to hearing. To improve methods of dispensing, fitting and using hearing aids and to improve such aids. To foster and encourage the development of a closer relationship between the members of the general public, hearing aid dealers in the State of Florida, and the medical profession and others working and allied to the field of audiology; and especially by the coordination of professional and lay efforts, services and assistance. To foster the trade, profession and interest of all hearing aid dealers in the State of Florida. To collect and disseminate information of value to members and to the general public. To appear for and on behalf of the members before legislative committees, government bureaus, and other bodies with regard to matters effecting [sic] the heading aid dealers of the State of Florida. To conduct these activities and achieve these objectives without pecuniary profit. Do everything and anything reasonably necessary, suitable, proper, convenient or incidental to the aforesaid purposes or which properly may be done by a corporation not for profit organized for such purposes, under the laws of the State of Florida, and to possess all proper powers, rights and privileges permitted such a corporation not for profit by such law. The Florida Hearing Aid Society in effectuating its purposes participates in legislative activities and interacts with the Respondent with regard to rule making and other regulatory matters. In addition, the Florida Hearing Aid Society has a member who serves on the Hearing Aid Advisory Council of the Respondent, which Council is created by Section 468.1235, Florida Statutes. The Florida Hearing Aid Society conducts educational programs for its members and the Florida Society is a member of the National Hearing Aid Society, its counter part at a national level. The Florida Hearing Aid Society is the only Florida association of general membership representing registrants, trainees and others affiliated with the matters of fitting and selling hearing aids. Jay Alan Bertoch is the current president of the Florida Hearing Aid Society. George C. Martinez and Irene Selis are members of the Board of Directors of that Society. Members of the Society, at all times pertinent, have hired trainees who have undergone or are undergoing apprenticeships in keeping with Rule 10D- 48.27, Florida Administrative Code. Bertoch, Barbara Stanley and Martinez are Society members who are involved in that training process. Those individuals have indicated a reluctance to hire trainees in the future, due to the requirements of Rule 10D-48.27(1) and (2), Florida Administrative Code, which requires immediate supervision of Stage I and II trainees. The aforementioned individuals have also been influenced in their opinion, based upon the October 16, 1981, memorandum from Ralph Gray, Administrative Official with the Respondent, which memorandum is at issue through this rules challenge. This memorandum has contributed to the reluctance on the part of the registrants to utilize trainees. The Florida Hearing Aid Society voted through its Board to bring the rules challenge. The October 16, 1981, memorandum was directed to all licensed registrants in Florida who fit and sell hearing aids. A copy of the full text of that memorandum may be found as Petitioner's Exhibit No. 2, admitted into evidence. The memorandum speaks in terms of an interpretation of Subsection 468.126(2)(a) and (b), Florida Statutes, Part II, and Rule 100-48.27(1) and (2), Florida Administrative Code, and was authored by Ralph Gray, the Program Administrator for the Hearing Aid Licensure Program. Gray's duties, among other matters, include the investigation and decision to prosecute those registrants and trainees who would violate the terms and conditions of the statutes and rules pertaining to the fitting and selling of hearing aids. This so-called interpretation was made on the basis of inquiries that had been made of Respondent concerning testing clients and selling of hearing aids to those clients by Stage I and II trainees, without being in the same physical location as the sponsor/registrant. This refers to the sponsor of the trainee. Barbara Stanley's testimony identified the fact that when she, as registrant, accompanied her Stage I or II trainee in activities outside the office, as opposed to letting the trainee operate alone outside the office, she would lose income opportunities. Stanley and Martinez, in discussing the specific question of hiring trainees in the future, established that they would be bothered by that idea in view of the fact of cost to them as registrants and the financial burden that is placed on trainees. Typically, the trainees are salaried during their apprenticeship or work on commission during that time. The actual training afforded to the Stage I and II participant is not pursuant to a uniform course established by Respondent. The instruction provided by the sponsor/registrant is a matter of individual choice by that sponsor; however, reading and home study courses in the hearing aid fitting and selling field are recommended, together with some courses which are prepared by hearing aid manufacturers. Registrants Bertoch, Stanley, Martinez and Selis have provided instruction to their trainees in keeping with Respondent's guidelines. Benjamin T. Wrubel and Howard Greisdorf, Stage II trainees employed by Irene Selis, testified in the course of the hearing and indicated that in their circumstances, there were no differences in their activities as Stage I and II trainees on the question of their employment and supervision by their sponsor. These two individuals work on a commission basis and indicated that their inability to operate independent of their sponsor in Stage I and II has created an economic imposition for them.
The Issue May a person whose license has been revoked under the provisions of Chapter 468, Florida Statutes, be issued a trainee temporary certificate of registration-by the Department?
Findings Of Fact The Petitioner contends that he is eligible to be issued a trainee temporary certificate of registration to engage in the fitting or selling of hearing aids inasmuch as he is of good moral character and is over the age of twenty-one (21). The Respondent contends that the Petitioner is not eligible to be registered inasmuch as he had his certificate of registration revoked in 1971 and there are no provisions in the statutes for reinstatement once a license is revoked. Petitioner submitted his application for a trainee temporary certificate of registration in March of 1976. The application was returned in April of 1976 for the stated reason that "Since Mr. Lindsay's license was revoked by order of the Division of Health on February 12, 1971, and all licenses to hearing aid dealers are under the provisions of Chapter 468, Florida Statutes, I know of no provisions under these statutes to provide for a reinstatement of a hearing aid dealer's license after revocation. It appears that the hearing aid law statute is silent on this matter, therefore without specific authority to reconsider this application, I am returning to you the check you enclosed, being Check 6483 in the amount of $25.00 drawn on the Florida Bank at Fort Lauderdale, and the original of the application which was enclosed in your letter of March 26, 1976 which was received in this office on March 29." The Certificate as a Fitter and Seller of Hearing Aids Registration No. 165-06-68 granted Franklin J. Lindsay was revoked February 12, 1971, for the reason that Mr. Lindsay was the owner and proprietor of the Professional Hearing Aid Service and was an employing principal of one Mr. John E. Buehler who was found guilty of violating various provisions of Chapter 468, F.S., including the selling of a hearing aid to a customer as new when in fact the hearing aid was secondhand or rebuilt. Mr. Buehler's license was suspended for one year and Mr. Lindsay's license was revoked. The Petitioner has established by witnesses that he is of good moral character and has been rehabilitated and that he comes within the qualification of applicants as required for a trainee under Section 468.126(3)(a).
Recommendation Accept the application together with the required fee of $25 from the Petitioner and allow him to pursue the trainee program as provided in Section 468.126(3)(a). Date October 25, 1976 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. Hodges, Esquire Post Office Box 210 Jacksonville, Florida 32201 John V. Russell, Esquire Suite 205 2 Commercial Boulevard Lauderdale-by-the-Sea, Florida 33308
