The Issue The issue in this case is whether Respondent, Kent A. Broy, committed the violations alleged in an Administrative Complaint filed with by Petitioner, the Department of Health, on April 11, 2003, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving hearing aid specialists licensed to practice in Florida. Respondent, Kent A. Broy, is, and was at the times material to this matter, a hearing aid specialist licensed to practice in Florida, having been issued license number AS2169 on April 13, 1989.5 The Administrative Complaint. On April 11, 2003, an Administrative Complaint, DOH Case No. AS 2001-19941, was filed with the Department against Mr. Broy. Mr. Broy disputed the issues of fact alleged in the Administrative Complaint and requested a formal administrative Hearing by a Request for Formal Hearing filed with the Department on Mr. Broy's behalf by counsel. The remaining four counts of the Administrative Complaint, Counts I, II, III, and V, allege violations of subsections of Section 484.056(1), Florida Statutes: Section 484.056(1)(g) (Count I); (j) (Count II); (w) (Count III); and (m) (Count V). All four counts include the following introductory sentence: "Petitioner realleges and incorporates herein by reference the facts alleged in paragraphs 1-16 [of the Administrative Complaint]." Paragraphs 1 through 6 are general allegations which were admitted by Mr. Broy. Patient G.H. Patient G.H., who was 88 years of age at the time, visited a business known as Audibel Hearing Care Center (hereinafter referred to as "Audibel")6 and located at 1620 North U.S. Highway 1, Jupiter, Florida, on October 24, 2001, a Tuesday. G.H. was accompanied by his wife, J.H. G.H. went to Audibel to determine whether he needed hearing aids. Mr. Broy, who G.H. assumed was a licensed hearing aid specialist, assisted G.H.7 As alleged in the Administrative Complaint, G.H. agreed to purchase a pair of "in the ear" hearing aids for $6,810.00. Mr. Broy attempted to make molds of the G.H.'s ear canals so that the hearing aids G.H. had agreed to purchase could be ordered. Molding material was placed in G.H.'s ear, but when it was removed it was found to be covered with wax. Mr. Broy attempted to remove the wax from G.H.'s ear with some type of instrument. This caused pain in G.H.'s ear, so the effort was discontinued. Mr. Broy then gave G.H. some oil to use to attempt to soften the wax, and he scheduled G.H. to return the next week. In furtherance of the sale and purchase of the hearing aids, G.H. signed a Purchase Agreement. The Agreement states that G.H. was purchasing 2 "Merc CIC Dig" hearing aides at $4,200.00 each ($8,400.00 total) less a 20% discount, leaving a discounted price of $6,720.00 plus a $90.00 administration fee. The Purchase Agreement includes, in part, the following regarding return of the hearing aids: Return Policy - . . . . Purchaser may return the hearing aid(s), so long as the hearing aid(s) is returned to the seller within the 30 day trial period in good working condition. A return claim form may be obtained from the distributor at the location checked on the face of this agreement. A request for return must be submitted in writing, within 30 days. . . . . The distributor identified on the face of the Purchase Agreement was Audibel. The Purchase Agreement did not identify the guarantor for the refund. No hearings aids, however, were delivered to G.H. at the time he signed the Purchase Agreement or anytime subsequent thereto. G.H. paid the full purchase price, charging the full price to a credit card. Shortly after executing the Purchase Agreement, G.H. decided that he did not want the hearing aids8 and he returned to Audibel. He told Mr. Broy that he no longer wanted the hearing aids.9 G.H., not receiving satisfaction from Mr. Broy, ultimately challenged the amount he paid for the hearing aids with his credit card company. He was refunded the $6,810.00 charge. On January 9, 2002, Mr. Broy charged $630.00 to G.H.'s credit card. That amount has not been refunded. During the investigation of this matter, Neil Bailes, an investigator for the Agency for Health Care Administration, who had never met or spoken to Mr. Broy in person, spoke to someone whom he believed was Mr. Broy. The individual he spoke with told him that records relating to G.H.'s purchase and subsequent return of hearing aids were in G.H.'s possession, and, therefore, he could not provide those records.10
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Hearing Aid Specialist dismissing the April 11, 2003, Administrative Complaint against Kent A. Broy. DONE AND ENTERED this 5th day of February, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 5th day of February, 2004.
The Issue The issue presented in this case is whether Respondent, Gary Segretario, committed the violations alleged in the Amended Administrative Complaint, and, if so, what penalty should be imposed by Petitioner.
Findings Of Fact Respondent, Gary Segretario, is and at all times material hereto was a licensed hearing aid specialist in the state of Florida, holding license number AS2321. Petitioner, Department of Health, Board of Hearing Aid Specialists, is the state agency charged with the authority and duty to regulate the practice of hearing aid dispensing within the state of Florida. In June 1997, purportedly in response to increasing misconduct by various hearing aid specialists, the Board of Hearing Aid Specialists issued an emergency rule amending Rule 61G-9-6.010, Florida Administrative Code, and changing the justification for the purchaser's refund from a measured improvement in the purchaser's hearing to failure of the purchaser to obtain satisfaction from the hearing aid. In 1999, the Florida Legislature created Section 484.0512(3), Florida Statutes, and added a 30-day refund provision into the Statute when the purchaser has a valid reason as defined by the Board's Rule. On April 24, 1998, in response to a telephone solicitation, patient D.V. presented to Hearing Care 2000 in Daytona, Florida, for the purpose of a hearing examination. On that date, patient D.V. was tested by Respondent and his assistant Eric Collins, a licensed hearing aid specialist trainee. Following the testing, Respondent recommended and patient D.V. agreed to purchase a hearing aid for his left ear. There is insufficient evidence to conclude that Respondent advised patient D.V. that he would lose his hearing if he did not purchase a hearing aid. The contract provided for a 30-day refund of the hearing aid purchase. On or about April 29, 1998, Respondent received the hearing aid from the manufacturer and contacted patient D.V. An appointment for delivery of the hearing aid was scheduled for May 1, 1998. After patient D.V. missed the appointment, another appointment was scheduled for May 15, 1998. On May 15, 1998, Respondent presented the hearing aid to D.V. At the time of delivery, patient D.V. complained of feedback and Respondent immediately placed a vent plug in the hearing aid. Patient D.V. departed Respondent's office with the hearing aid in his possession on May 15, 1998. On or about May 19, 1998, patient D.V. returned to Respondent's office complaining of feedback. To cure the problem, Respondent forwarded the hearing aid to the manufacturer for a soft coat finish. Three days later on May 22, 1998, patient D.V. returned for the hearing aid, was again tested, scored 100 percent without feedback, and took possession of the aid. To ensure satisfaction, a follow-up appointment was scheduled for May 29, 1998; however, patient D.V. failed to appear. On June 29, 1998, patient D.V. entered Respondent's office and demanded a refund. Upon being denied, patient D.V. physically attacked trainee Collins, threw the hearing aid at the receptionist, and eventually departed. The evidence deduced at Hearing indicates that patient D.V. physically maintained possession of the hearing aid from May 15, 1998, through May 19, 1998, and May 22, 1998, through June 29, 1998, a total of 43 days, before requesting a refund. The following day, on June 30, 1998, Respondent's wife, Barbara Segretario, advised patient D.V. via letter that he was no longer permitted within the Daytona office. Shortly thereafter, patient D.V. contacted his credit card company and disputed the hearing aid charge apparently alleging that he never signed the credit card slip. Cathy Gionfriddo, an employee at Hearing Care 2000, forwarded a copy of patient D.V.'s signed credit card slip and signed contract to the credit card company for signature comparison. Following the lengthy dispute process, the credit card company ruled in favor of Hearing Care 2000. Thereafter, patient D.V. filed a small claims action against Respondent, wherein the small claims judge ruled in favor of patient D.V. and awarded him a $450.00 judgment. Patient D.V. received the money in April 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Hearing Aid Specialist issue a Final Order dismissing the Administrative Complaint filed against Respondent. DONE AND ENTERED this 11th day of September, 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 11th day of September, 2002. COPIES FURNISHED: Gary L. Asbell, Esquire Post Office Box 326 Lloyd, Florida 32337 E. Raymond Shope, II, Esquire 1404 Goodlette Road, North Naples, Florida 34102 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Reginald Dixon, Esquire Bureau of Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 William W. Large, General Counsel 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
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
Findings Of Fact At all times relevant hereto Respondent was licensed as a Hearing Aid Specialist having been issued license number 0000804. During the period 1985-1986 the license of T. Ray Black was displayed on the wall at East Pasco Hearing Aid Center in Zephyrhills, Florida, but Respondent never worked at this address. East Pasco Hearing Aid Center is owned and operated by Arvina Hines whose license as a Hearing Aid Specialist was revoked circa 1981. Ms. Hines hired people to work at East Pasco Hearing Aid Center and trained them in selling and fitting hearing aids. Pamela Strife worked at the East Pasco Hearing Aid Center from 1981 until 1986 and never met Respondent nor did she ever see him at the center. She did see Raymond J. Black and Cynthia Sue Bennett, the father and sister of Respondent, working at the center. Raymond J. Black's license was revoked January 26, 1981. Arvina Hines submitted an application for training program for Hearing Aid Specialist on April 21, 1986. (Exhibit 5), in which Respondent signed the sponsor affidavit as the sponsor of Ms. Hines. He did not provide any supervision to Hines. Sheila Louise Thomas submitted as application February 25, 1985, for a training program as a Hearing Aid Specialist (Exhibit 4), on which Respondent signed as sponsor. Ms. Thomas was trained by Ms. Hines. Thomas does not recall completing the application for training, but identified her signature thereon. She has never met Respondent. Peggy Goodman worked at East Pasco Hearing Aid Center for three weeks in 1985. During the time she was employed she never saw Respondent at the center.
The Issue Has Respondent violated Section 484.056(1)(g), Florida Statutes as alleged in the Administrative Complaint? If so, what, if any, disciplinary action is appropriate?
Findings Of Fact In September of 1989, Mrs. Mary Louise Gibson, then in her late seventies, purchased "full-shell" Sonotone hearing aids at Hearing Aid Services in Temecula, California. The hearing aids were manufactured by TelStar Electronics, Inc., located in Longwood, Florida. The manufacturer's warranty covering the hearing aids expired on December 22, 1990. Some time after the purchase of the hearing aids, members of Mrs. Gibson's family began to tell her that she was not hearing well despite use of the hearing aids. In August, 1991, some eight months or so after the warranty had expired, Mrs. Gibson, thinking the hearing aids were still under warranty, visited the TelStar manufacturing facility in Longwood to see what could be done about her poor "hearing aid-assisted" hearing. At the manufacturing facility, Mrs. Gibson was referred to the manufacturer's retail store in an adjoining part of the building housing the manufacturer's operation. With Mrs. Gibson was her husband, who was also having trouble with his hearing aids, and her daughter, Mary A. Gibson. By virtue of the referral, the Gibsons and her husband went from the manufacturing end of the building to the manufacturer's retail store. Working as a hearing aid specialist in the manufacturing facility's retail store was Respondent, Nick Joseph Spina. At the time of Mrs. Gibson's visit, Mr. Spina was licensed by the Board of Hearing Aid Specialists as a hearing aid specialist in the state of Florida. His license number is AS 0001750. Mr. Spina continues to be and has been at all times material to this proceeding the holder of the hearing aid specialist license. Not a salaried employee of TelStar, Mr. Spina's pay at the TelStar retail store was based entirely on commissions from new sales. In any given sale, the commission was thirty per cent of the gross amount of the sale. Mr. Spina conducted an audiogram of Mrs. Gibson. He concluded that Mrs. Gibson needed a type of shell for her hearing aids different from the style she had been using: a "full-shell," which occludes the ear canal entirely. In Mr. Spina's professional opinion, Mrs. Gibson needed a helix-type shell which fills only the top of the ear and leaves the ear canal unoccluded. The Purchase Agreement executed by Mr. Gibson shows on the day the Gibsons consulted with Mr. Spina that Mrs. Gibson's husband, Horace Gibson, agreed to pay $450.00 for a recasing of Mrs. Gibson's hearing aids. The comments section of the order form states "Recased to helix aids," and shows a charge of $139.00. On August 28, 1991, Mrs. Gibson picked up the recased hearing aids. The invoice of the same date shows that TelStar Electronics, Inc., charged $139.00 for the recasing. Mrs. Gibson, as was agreed under the terms of the Purchase Agreement, paid $450.00 for the recasing. Approximately five months later, in January of 1992, Mrs. Gibson visited Mr. Spina again. Based on a second audiogram, Mr. Spina told her that she had experienced a dramatic change in her hearing since the August testing and needed another type of hearing aid. A purchase order form signed January 16, 1992, with an order date of January 13, 1992, shows that Mrs. Gibson agreed to pay $1078 for a hearing system described as "NEW" and being a Sonotone Model ITE, colored pink, with a warranty period from 1/16/92 to 1/16/94, a two-year warranty. The serial numbers for the new hearing aids are listed on the purchase agreements as 92F24064 for the hearing aid for the left ear and 92F24065 for the hearing aid for the right ear. The purchase order form is signed by Nick Spina. On the same date the "new" hearing system was ordered, January 13, 1994, Mr. Spina executed a second form, a repair order form. The repair order form ordered that M. L. Gibson's hearing aids bearing serial numbers 91F13666 and 91F13665, the helix-type hearing aids provided her the previous August by Respondent, be remade as "full shell" hearing aids. The order form for the repair of the helix hearing aids shows that Respondent ordered them to be assigned new serial numbers identical to those listed on the purchase order form for the new hearing aids, 92F24064 for the left ear and 92F24065 for the right ear, and be shipped back on January 15, 1992. This same form shows that a 2 year warranty was to be added to the hearing aids for the repair. An invoice dated January 15, 1994, shows a shipment by Sonotone Corporation, TelStar Division in Longwood, Florida, of Purchase Order number "Gibson TS R/M" of Order Number 60864, the order executed by Respondent on January 13, 1994. The hearing aids were remade to full shell hearing aids, reassigned the serial numbers ordered by respondent, and the circuit, microphone and receiver were changed. No charge was made for the remake of the helix hearing aids back into full shell hearing aids because the hearing aids were under warranty from the recasing accomplished the previous August. The remade hearing aids were not given an additional two-year warranty. It is not customary in the industry to give two-year warranties for remade hearing aids. A warranty for remade hearing aids is much less than two years, typically 6 months. Two-year warranties are reserved for new hearing aids. Mrs. Gibson picked up the hearing aids and paid $1078 for them, believing them to be new hearing aids. Mrs. Gibson's daughter, who accompanied her mother to all the transactions with Respondent, also was under the impression that brand new hearing aids had been provided her mother in January of 1992. Less than two months later, on March 10, 1992, Mrs. Gibson consulted Freddi M. Catlett, of the Arkansas Hearing Aid Center in Hot Springs, Arkansas, because her hearing aids were rubbing her ear so as to make it sore. Ms. Catlett sent impressions of Mrs. Gibson's ears as well as the hearing aids to the Sonotone factory in Florida. Instead of 92F24065, the serial number of Mrs. Gibson's right hearing aid, the order form lists the serial number of the hearing aids as 92-24065, substituting a "-" for the "F", the third digit in the serial number. Otherwise the number on the order form is identical to the serial number of the right hearing aid purchased by Mrs. Gibson in January of 1992 from Respondent. Both Mrs. Gibson and her daughter, despite the fact that Mrs. Gibson had two pairs of hearing aids, were sure that the hearing aids examined by Ms. Catlett were the "new" hearing aids purchased from Respondent in January of 1992. The hearing aids were returned to Mrs. Catlett from the Sonotone factory with an invoice charging $74.50 for a replating and recasing of the hearing aids. The service department notes on the order form shows that the warranty on the hearing aids, which should have been good until January of 1994 had the hearing aids been new in January of 1992, had expired on January 28, 1992. Upon being noticed that the warranty had expired, Ms. Catlett contacted Sonotone to inquire further. She was told that the hearing aids had been purchased in 1989 and that the warranty was no longer in effect. Ms. Catlett then questioned Mrs. Gibson and was assured that the hearing aids were the "new" hearing aids purchased from Respondent the previous January. The hearing aids examined by Ms. Catlett were the hearing aids purchased in January of 1992 from Respondent. The serial number listed on Ms. Catlett's order form mistakenly listed "-" as the third digit instead of "F". Contrary to Mr. Spina's representation, the hearing aids he sold to Mrs. Gibson in January of 1992 were not new, despite his marking on the order form that they would have a two-year warranty. The hearing aids sold as new hearing aids by Respondent in January of 1992 were simply a remake of the helix-type hearing aids that Mr. Spina had remade the August before. These hearing aids were new in 1989 not in 1992.
Recommendation It is, accordingly, and in keeping with Section 484.056(1) and (2), Florida Statutes, RECOMMENDED: That Respondent Nick Joseph Spina's license to practice as a hearing aid specialist be revoked and that Nick Joseph Spina be fined $1000. DONE and ENTERED this 18th day of August, 1994, in Tallahassee, Florida. DAVID M. MALONEY 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 18th day of August, 1994. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Findings of fact in Petitioner's Proposed Recommended Order 1, 3-19 are accepted. Finding of fact #2 in Petitioner's Proposed Recommended Order is rejected to the extent it implies Mrs. Gibson was 83 in August of 1991. She was 83 at the time of her deposition in April of 1994. Otherwise the finding is accepted. COPIES FURNISHED: Susan E. Landward Senior Attorney Department of Business and Professional Regulation Suite 60, Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nick Joseph Spina, Jr. P. O. Box 214 Chipley, FL 32428 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Suzanne Lee Executive Director Hearing Aid Specialists 1940 North Monroe Street Tallahassee, FL 32399-0759
The Issue The issue in these cases is whether Respondent committed the violations alleged in three Administrative Complaints, and, if so, what appropriate disciplinary action should be taken against him.
Findings Of Fact Based upon the observation of the witnesses and their demeanor while testifying, the documentary evidence received in evidence and the entire record complied herein, the following relevant facts are made: 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 regulation of hearing aid providers in Florida. Section 455, Florida Statutes (1999). Respondent, Robert F. Davidson, has been a licensed hearing aid specialist in this state, holding license number 0000740. From sometime in April and continuing through sometime in December 1998 Respondent was employed as a salaried store manager at Hearite Audiological ("Hearite"), a hearing aid establishment located at 2700 East Bay Drive, Largo, Florida, 33771, and owned by George Richards and Paula Rogers. Respondent engaged in testing the hearing of individuals and engaged in selling hearing aids to individuals for Hearite Audiological, Inc. To each individual Respondent sole a hearing aid, he provided that person with a written notice of the 30-day money back guarantee. Case No. 01-3536PL Patient C. L. D., a hearing impaired-person, visited Hearite on September 9, 1998, and entered an agreement to purchase a pair of hearing aids for $1,795.00, paying $500.00 deposit at that time. Patient C. L. D. was provided a sales receipt for her deposit signed by Respondent. On September 21, 1998, Respondent delivered the hearing aids to patient C. L. D. at Hearite and signed the receipt as the person who delivered the hearing aids to the patient. Patient C. L. D., after using the hearing aids, became dissatisfied with them and returned the hearing aids to Respondent at Hearite on October 8, 1998. Respondent accepted the hearing aids from Patient C. L. D. and, pursuant to the terms of the sales contract, Respondent promised Patient C. L. D. a full refund of her $500.00 deposit. Despite repeated phone calls to Respondent and repeated attempts to obtain the refund, Patient C. L. D. has never received her refund as promised, and Hearite was later sold to a new owner in January 1999. Case No. 01-3537PL On May 26, 1998, hearing-impaired Patient J. C. aged 95 years, and now deceased, along with his daughter, Chris Vidalis, visited Hearite and purchased a hearing aid for $1,345.00, paying $500.00 deposit upon execution of the sales contract. On June 5, 1998, Patient J. C. paid the remaining $845.00 and received his hearing aid. On June 12, 1998, being dissatisfied with its use Patient J. C. returned the hearing aid and requested a refund. Respondent accepted the hearing aid and promised Patient J. C. a refund of $1,345.00 within 120 days. Patient J. C.'s daughter, Chris Vidalis, who was with her father every time he visited Hearite, made numerous telephone calls and visits to Hearite in attempts to obtain the refund. The refund was never paid and Hearite was sold to a new owner in January 1999. Case No 01-3538PL On or about June 10, 1998, Patient R. L., after several unsolicited telephone calls from someone representing Hearite, visited Hearite for the purpose of having his hearing tested and possibly purchasing a hearing aid. After testing, Patient R. L. purchased a pair of hearing aids at Hearite for $3,195.00. A paid in full receipt signed by Al Berg was given to Patient R. L. On or about July 10, 1998, Respondent delivered the hearing aids to Patient R. L. and signed the sales receipt as the licensee who delivered the hearing aids. Upon being dissatisfied with using the hearing aids Patient R. L. returned them to Hearite on July 13, 1998. Kelly Dyson, audiologist employed at Hearite, accepted the hearing aids and promised Patient R. L. a full refund of $2,840.00, pursuant to the terms of the contract. Patient R. L. made repeated attempts to obtain his refund as promised but has not received one. Hearite was sold to a new owner in January 1999. Respondent's position, that each of the three patients herein above was aware or should have been aware that the sale of hearing aids, and, therefore, the guarantor of the refunds was Hearite Audiological, Inc., and, not himself, is disingenuous.
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 requiring Respondent to pay the following amounts: to Patient C. L. D., $500.00, DOAH Case No. 01-3536PL; to Patient J. C. (or his estate) $1,345.00, DOAH Case No. 01-3537PL, and to Patient R. L., $2,840.00, DOAH Case 01-3537PL. Further that Respondent be fined $1,000.00 and be required to pay the appropriate costs of investigation and prosecution. Further, ordered that Respondent's license be suspended and not reinstated until after all payments herein ordered are paid in full, and thereafter place Respondent on probation for a period of not less than one year under the terms and conditions deemed appropriate. DONE AND ENTERED this 1st day of February, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 1st day of February, 2002. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 39 Tallahassee, Florida 32308 E. Raymond Shope, II, Esquire 1404 Goodlette Road, North Naples, Florida 34102 Susan Foster, Executive Director Board of Hearing Aid Specialist Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 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
The Issue The issues posed for decision herein are whether the license to dispense hearing aids issued to the Respondent should be suspended or revoked, or whether the Respondent should be otherwise disciplined for reasons which will be set forth hereinafter in detail as contained in the Administrative Complaint issued by the Department of Health and Rehabilitative Services on or about May 7, 1979.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint filed on or about May 7, 1979, the Department of Health and Rehabilitative Services (Department), Petitioner, alleged that Ralph F. Heller, Respondent, violated certain provisions of the Florida Hearing Aid Law, Chapter 468, Florida Statutes, and regulations promulgated thereto, and that he violated the terms and conditions of a Stipulation and Final Order entered in a previous administrative proceeding before this Division, Case No. 78-1222, involving the same parties. During the final hearing herein, Respondent admitted that he was the Respondent in Case No. 78-1222 and that copies of that Final Order and Stipulation were properly received and admitted without objection (Petitioner's Composite Exhibit 1). The Stipulation incorporated into the Final Order in Case No. 78-1222 provided in pertinent part that Respondent admitted that he had been or is currently in violation of Chapter 468, Part III, Florida Statutes, and that he (Respondent) would be suspended from the fitting and selling of hearing aids in the State of Florida for a period of forty-five (45) days commencing twenty (20) days after the entry of the Final Order by the Department of Health and Rehabilitative Services, and that Respondent would be on a period of supervision and/or probation by the Department for a period of two (2) years beginning at the end of the forty-five (45) day suspension period during which time Respondent was to furnish to the Department copies of all contracts for hearing aids sold by him in the State and audiograms performed on any person, whether a hearing aid is sold or not, and that contracts were to comply with the provisions of Chapter 468, Part III, Florida Statutes. Such reports were to be submitted monthly commencing on the tenth day of the month succeeding the commencement of the probation and supervision period. That Stipulation provided further that Respondent's failure to comply with the requirements imposed during the period of supervision and probation would be grounds for cancellation of his license to sell and fit hearing aids in the State. The Final Order was adopted by the Secretary of the Department of Health and Rehabilitative Services on November 27, 1978. Respondent's testimony reflects that he performed an audiogram and sold a hearing aid on January 17, 1979, to a Beatrice K. Patterson of Dunnellon, Florida. (Petitioner's Exhibit No. 2.) Respondent also performed a hearing test on Mrs. Alfred E. Hull, Sr., on or about February 18, 1979, in his office. Respondent did not report the results of these audiograms and/or hearing tests to the Department, nor did he report the sale of the hearing aid to Mrs. Patterson to the Department. In this regard, Respondent attempted to defend his actions on the basis that the Hull test was not reported because it was not a complete hearing test and that the Patterson test and sale were not reported because prior to the reporting time the Department had independently learned of the Patterson transaction and that the sale to Mrs. Patterson had been rescinded. During the month of August, 1979, Respondent performed an audiogram and sold a hearing aid to a Mr. A. J. Bullinger, of Dunnellon, Florida, and rescinded the sale after Mr. Bullinger developed an ear infection from certain foreign material left in his ear during the fitting. Respondent voluntarily paid Mr. Bullinger's medical expenses incidental to the ear infection and although he (Respondent) claimed that the test and sale were reported to the Department, an examination of the reports submitted to the Department and Mr. Gray's testimony show that this was untrue. Mr. Ralph Gray, Director of the Hearing Aid Licensure Program, testified during the hearing and indicated that he received some of the required monthly reports from Respondent on audiograms and sales of hearing aids. Pursuant to the parties' agreement during the hearing, these reports were not introduced into evidence en masse although the evidence reveals that the Respondent failed to file reports for the months of November and December, 1979. Additionally, an examination of the report submitted by the Respondent for the month of August, 1979, reveals that Respondent failed to report the hearing examination and sale to Mr. A. J. Bullinger. As to these events, Respondent's defense is that he instructed his secretary to file such reports with the Department although when questioned by the undersigned, Respondent was evasive and was unable to recall the secretary to whom he gave such instruction. During the hearing, Respondent also evidenced a policy of not reporting to the Department those hearing tests and audiograms conducted by himself which did not result in a sale. The Department's Administrative Complaint also alleged that the Respondent violated specified sections of Chapter 468, Florida Statutes, in connection with the sale of a hearing aid to Mr. Alfred E. Hull, Sr., on or about June 24, 1977. Mr. Hull has died since the inception of these proceedings; however, the transaction was testified to by the Respondent and by Mrs. Alfred E. Hull, Sr. An examination of the contract of sale introduced into evidence fails to indicate whether the hearing aids were new, used or reconditioned although the Respendent represented that the hearing aids were new when sold to Mr. Hull. (Petitioner's Composite Exhibit 3 and the testimony of Respondent and Mrs. Hull.) The deposition of Ellery L. Childers, taken pursuant to notice at a distance of more than one hundred (100) miles from the place of hearing, was introduced into evidence by the Department. Mr. Childers has a background in the manufacturer's history of sale and warranty of the Hull hearing aids. Some of this information is also recited in a letter-affidavit of Mr. George A. Shymanik, Sales Manager of Beltone Electronics Corporation, which letter was introduced into evidence without objection. (Petitioner's Exhibit 5.) The evidence reveals that a certain Beltone Rondo hearing aid, Serial No. 95898, was sold in April, 1975, to one Lloyd Jennings, a Beltone dealer in Meridian, Mississippi, and was subsequently registered for warranty to a Lucille Wortham of Louisville, Mississippi. The contract of sale between Respondent and Mr. Hull, dated June 24, 1977, recites the sale of the same Beltone hearing aid to Mr. Hull. Evidence also reveals that the Beltone company did not use the same serial number on more than one instrument. (Deposition of Ellery L. Childers.) 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the State of Florida, Department of Health and Rehabilitative Services, forwith REVOKE the license of Respondent, Ralph F. Heller, to fit and sell hearing aids within the State of Florida. ENTERED this 13th day of March, 1980, in Tallahassee, Florida. James E. Bradwell, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675
