The Issue Whether Rules 21JJ-7.007(2), (3) and (3)(a), Florida Administrative Code, are invalid pursuant to Sections 120.54(2) and 120.56, Florida Statutes (1987)?
Findings Of Fact Section 484.0401, Florida Statutes (1987), provides the following: The Legislature recognizes that the dispensing of hearing aids requires particularized knowledge and skill to ensure that the interests of the hearing-impaired public will be adequately served and safely protected. It recognizes that a poorly selected or fitted hearing aid not only will give little satisfaction but may interfere with hearing ability and, therefore, deems it necessary in the interest of the public health, safety, and welfare to regulate the dispensing of hearing aids in this state. Restrictions on the fitting and selling of hearing aids shall be imposed only to the extent necessary to *protect the public from physical and economic harm*, and restrictions shall not be imposed in a manner which will unreasonably affect the competitive market. [Emphasis added]. The Legislature amended Section 484.0401, Florida Statutes (1987), during the 1986 Session to provide for the protection of the public against economic harm and to include the public welfare within the scope of the protection of Chapter 484, Florida Statutes. Section 484.044, Florida Statutes (1987), authorizes the Board of Hearing Aid Specialists (hereinafter referred to as the "Board"), to adopt rules it deems necessary to carry out the provisions of Chapter 484, Florida Statutes. On April 24, 1987, the Board caused to be published Rule 21JJ-7.007, Florida Administrative Code, in Volume 13, Number 17, Florida Administrative Weekly. On May 20, 1987, a public hearing was held to allow comments concerning the challenged rule. Following this meeting and a meeting before the Board on July 10 and 11, 1987, a Notice of Change, changing the challenged rules was published in the July 24, 1987, edition of the Volume 13, Number 30, Florida Administrative Weekly. Rule 21JJ-7.007, Florida Administrative Code, was filed with the Department of State on July 23, 1987. Volume 13, Number 31, Florida Administrative Weekly. It was effective August 12, 1987. Rule 21JJ-7.007(2), Florida Administrative Code, provides the following: Fraudulent, False, Deceptive or Misleading Advertising. An advertisement or advertising is fraudulent, false, deceptive or misleading, if it: (2) Conveys the impression that the licensee or trainee possesses qualifications, skills, or other attributes which are false, other than a simple listing of earned professional achievements and degrees. Rule 21JJ-7.007(3) and (3)(a), Florida Administrative Code, provide the following: Fraudulent, False, Deceptive or Misleading Advertising. An advertisement or advertising is fraudulent, false, deceptive or misleading, if it: Is misleading or deceptive because its content or the context in which it is presented makes only a partial disclosure of relevant facts. Specifically, it is misleading and deceptive to advertise a discounted price, without identifying the specific product or service against which the discounted price applies, and without specifying the usual price for the product or service identified. Advertising is an extremely important part of the hearing aid business. It is the principal manner in which hearing aid licensees attract clients. Advertising may assist consumers in making an educated decision about hearing aid products and services. It is common for licensed hearing aid specialists and businesses employing licensed hearing aid specialists to include information such as the following in advertisements: The length of service in a particular community or in the hearing aid profession. Such advertisements can be an indication of the stability of a hearing aid business; Statements such as the following: "trust your hearing to the professionals", "ethical professional practice", "ask the expert" and "factory- trained"; Other types of training, such as factory training; and Educational experiences, including research and teaching experiences. The type of information listed in finding of fact 10 may be beneficial to the public and is not necessarily false, deceptive or misleading. Advertisements used by licensed hearing aid specialists do not include every bit of information about a product. For example, the following type of information may be included in an advertisement: One of the smallest hearing aids, designed for nerve deafness to 40 db. Model E-50 complete with one year warranty. This type of advertisement is not false, deceptive or misleading. It does not, however, contain all the relevant facts concerning the product advertised. Additional relevant information concerning the product may be voluminous, technical and of no use to a consumer. To include all information which may be relevant could require a very large advertisement which would be expensive. Advertisements used by licensed hearing aid specialists commonly indicate a reduction of a certain dollar amount or a percentage reduction for individual hearing aids, lines of hearing aids or all products carried by a specialist. Such advertisements do not necessarily list the specific product or service to which a discount applies or the price for each product or service before the discount. Where discounts apply to several products or services, to list each product and the price before discount would require a large advertisement which would be expensive. As of May 15, 1987, there were 1,016 licensed hearing aid specialists in the State of Florida. Two hundred and forty-four of the total number of licensed hearing aid specialists were on inactive status. Of the 772 active licensed specialists, 670 were members of the Petitioner as of December 4, 1987, or approximately 88 percent of all active licensed practitioners. The Petitioner has an ethics committee and a grievance committee which are active in reviewing advertising used by hearing aid specialists. Members of the Petitioner are subject to discipline, including expulsion from the Petitioner, for improper advertising. The following Summary of Estimate of Economic Impact of the Rule was published by the Department: The implementation of this proposal will have minimal impact upon the Board or the Department other than the costs involved in promulgation. There should be no adverse economic impact or benefit to current licensees or potential applicants as a direct result of the proposed rules. The Board feels the rule is imperative to clarify statutory provisions within Section 484.056(1)(f), F.S., by delineating for the activities which constitute fraudulent, false, deceptive or misleading advertising. It is therefore impossible to determine exactly what impact the proposed rule will have upon current or potential licensees. It is not foreseeable that the proposal will place an economic impact upon competition among current licensees, the open market for employment, or upon entities falling within the definition of "small entities" as defined in Section 288.703(1), F.S.
The Issue The issue is whether Respondent, Craig Louis Schuette, committed the violations alleged in the Administrative Complaints in these cases, and if so what is the appropriate penalty to be imposed by the Petitioner.
Findings Of Fact At all times material to this proceeding Respondent has been a licensed hearing aid specialist in the state of Florida, having been issued license No. AS 2553 on June 9, 1994. Case No. 02-0520 On November 5, 1998, hearing impaired patient R.G., a resident of New York and part-time resident of Florida, visited Audiometric Hearing Center (Audiometric), a hearing aid establishment located on Fifth Avenue, North, in St. Petersburg, Florida. R.G. visited Audiometric after being contacted by postcard and telephone about a free hearing test offer. While at the Center on November 5, 1998, R.G. received a hearing test and signed an agreement to purchase a pair of hearing aids for $3,500.00. Respondent signed the sales receipt on behalf of Audiometric as the selling agent. R.G. paid the entire purchase price to Audiometric on November 5, 1998, by charging the entire amount on his Visa credit card. On November 20, 1998, R.G. returned to Audiometric to be fitted with the new hearing aids. At that time, R.G. noticed that the hearing aids he had purchased, as described in his contract, were a different model and smaller than the devices with which he was being fitted. Respondent persuaded R.G. to test the hearing aids, and R.G. took possession of the devices on that date. Twelve days later, on December 2, 1998, upon being dissatisfied with the hearing aids, R.G. returned to Audiometric with the devices and requested a refund. Audiometric accepted the hearing aids back and R.G. was advised for the first time that he would receive a refund within 90 to 120 days. Although R.G. was promised a refund of $3,125.00, on December 2, 1998, he never received it. R.G. made numerous attempts to obtain a refund but never received one. During an investigation of this matter by the Agency for Health Care Administration, Respondent did not accept responsibility for the refund. While Respondent agreed to assist the patient and provide a free refitting, he maintained that Audiometric was responsible for any and all refunds. Case No. 02-0522 Hearing impaired patient E.T., a resident of Canada who also resided in Florida part of the year, visited the Audiometric Hearing Center, a hearing aid establishment located on Walsingham Road, in Largo, Florida, on February 6, 1998. E.T. went to Audiometric for a free hearing test after being called and offered one by a telephone solicitor. E.T. received a hearing test on that date. On February 6, 1998, E.T. purchased a hearing aid for her right ear at Audiometric for $1,980.00. Respondent signed the sales agreement on behalf of Audiometric as the selling agent. He told E.T. she needed a hearing aid and showed E.T. three hearing aids. E.T. paid the entire purchase price on February 6, 1998, by charging it on her Visa credit card. On February 13, 1998, the patient accepted delivery of the hearing aid at Audiometric from someone other than Respondent. Upon experiencing an itching problem, E.T. returned the hearing aid to Audiometric on February 18, 1998, for a refund, stating that she was not satisfied with it. Someone at Audiometric, other than Respondent, accepted the returned hearing aid from E.T. and promised her a refund of $1,980.00. E.T. made numerous attempts to obtain the refund but never received any portion of it. In fact, she even filed a lawsuit and obtained a default judgment against Audiometric, but could not collect any of it. During an investigation of the matter by the Agency for Health Care Administration, Respondent denied responsibility for the matter, and indicated that Audiometric was culpable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Hearing Aid Specialists enter a final order: Dismissing DOAH Case No. 02-0521 (DOH Case No. 98- 19487). Finding Respondent guilty as charged in the Administrative Complaints in DOAH Case Nos. 02-0520 (DOH Case No. 99-03437) and 02-0522 (DOH Case No. 98-20376). Imposing a letter of reprimand. Imposing a total fine of $1,000.00. Assessing costs of the investigation and prosecution not to exceed $500.00, and ordering Respondent to pay as corrective action $3,125.00 to patient R.G. and $1,731.00 to patient E.T., with all monetary payments to be paid within 90 days of entry of a final order. As to the corrective action, the Respondent should be ordered to provide proof thereof to the Board of Hearing Aid Specialists, Department of Health Compliance Unit within 90 days of the date of the final order. DONE AND ENTERED this 26th day of July, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2002. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Mail Stop 39 Tallahassee, Florida 32308 Craig Schuete 12300 Park Boulevard, Unit 220 Seminole, Florida 33772 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701 Gary L. Asbell, Esquire Post Office Box 326 Lloyd, Florida 32337
The Issue The issues in this case are whether Respondent violated Subsections 484.056(1)(g) and (h), Florida Statutes (1999), respectively, by committing fraud, deceit, negligence, incompetence, or misconduct in the dispensing of a hearing aid and by failing to provide a sales receipt and other required information; and, if so, what penalty, if any, should be imposed against Respondent's license as a hearing aid specialist. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of hearing aid specialists in Florida pursuant to Chapter 484. Respondent is licensed as a hearing aid specialist in Florida pursuant to license number AS0002712. The Administrative Complaint involves the sale and service of an original pair of hearing aids and replacement hearing aids to a single customer. The record identifies the customer as C.P. in order to preserve the customer's confidentiality. C.P. is an elderly gentleman who is hearing impaired. C.P.'s wife accompanied and assisted C.P. in most of his dealings with Respondent. On February 16, 1999, Respondent performed a free hearing test on C.P. at Elfers Optical and Hearing Company (Elfers). Elfers is located on State Road 54 in New Port Richey, Florida. C.P. had heard of Respondent from a friend and responded to a newspaper advertisement by Elfers for a free hearing test. Respondent advised C.P. that C.P. needed two hearing aids. Respondent concluded that C.P. needed a hearing aid for each ear for balance. Respondent recommended programmable hearing aids for several reasons. Respondent represented that programmable hearing aids could be programmed for hearing needs that change over time and therefore would not have to be replaced. However, programmable hearing aids are more expensive than others. C.P. stated that he wanted to think about it. C.P. left the office and subsequently made an appointment for a return visit on February 19, 1999. When C.P. returned to Elfers on February 19, 1999, Respondent was sick and not in the office. Ms. Phillys Strand (Strand), Respondent's employee, saw C.P. and his wife. C.P. stated that he had decided to purchase the programmable hearing aids recommended by Respondent. Strand fitted C.P. for two hearing aids and had C.P. execute a contract for the purchase of two Philips Encanto II programmable hearing aids (Encantos) at the total price of $3,832 (the contract). C.P. paid $3,832 on February 19, 1999. The contract states that there was a one-year warranty on the hearing aids. The one-year warranty covered replacement or repair but not a refund of the purchase price. The contract specifically states that C.P. had only 30 days from the date of delivery (the 30-day trial period) in which to obtain a refund of the purchase price. Respondent delivered the Encantos to C.P. on March 1, 1999. C.P. returned to Elfers on March 3, 1999, complaining that the hearing aids hurt his ears. Respondent ground down the hearing aids, and C.P. left Elfers with the modified hearing aids. C.P. returned to Elfers on March 10, 1999, and requested a refund from Respondent. C.P. explained that he had recently learned that he needed surgery on one of his ears to remove a cancerous legion and would be unable to use the hearing aids before the expiration of the 30-day trial period for obtaining a refund. On March 10, 1999, Respondent stated to C.P. that under Florida law C.P. had one year in which to obtain a refund. Neither Florida law nor the manufacturer provides a warranty that authorizes a refund for one year. The provisions in the contract pertaining to a refund of the purchase price merely reflect the terms of the applicable section of Florida Statutes. In relevant part, the purchase contract provides: Unless otherwise stated, the hearing aid is new and warranted for one year by dispenser . . . . The guarantee shall permit the purchaser to cancel for a valid reason within 30 days of the receipt of the hearing aid(s). A valid reason shall be defined as failure by the purchaser to achieve satisfaction from use of 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. In the event of cancellation within the 30-day trial period, [Elfers] will retain $150 plus 5% of total purchase price on monaural fitting, or $200 plus 5% of total purchase price on binaural fitting for ear molds and services provided to fit the hearing aids, pursuant to 484.0512FS. . . . On March 10, 1999, C.P. properly tendered the Encantos to Respondent in accordance with the requirements of the contract and Section 484.0512. C.P. had a valid reason, within the meaning of the contract and applicable law, for the failure to achieve satisfaction with the Encantos. C.P. properly requested a refund within the 30-day trial period that began on March 1, 1999, when Respondent delivered the Encantos to C.P. On March 10, 1999, Respondent had actual knowledge that C.P. had properly tendered the Encantos for a valid reason and properly requested a refund. Respondent had actual knowledge of the falsity of the statement that Florida law allowed C.P. one year in which to obtain a refund. Respondent had actual knowledge that neither Florida law nor any warranty amends the 30-day trial period prescribed in the contract and Section 484.0512 for obtaining a refund. In any event, Respondent had constructive knowledge that his statements to C.P. were false. The misrepresentation by Respondent on March 10, 1999, induced C.P. to retain the Encantos. The false statements by Respondent on March 10, 1999, induced C.P. to unknowingly allow the lapse of his statutory and contractual right to a refund. Respondent had actual, or constructive knowledge, of the effect of Respondent's false statement to C.P. C.P. underwent surgery on March 24, 1999, and could not wear the Encantos again until May 21, 1999. When C.P. began wearing the Encantos again on May 21, 1999, the left hearing aid hurt his ear. C.P. compared the two hearing aids and discovered that the left hearing aid was longer than the right. On May 27, 1999, C.P. and his wife returned to Respondent. Respondent made a new impression, using a substance different from that used by Strand for the initial impression, and told C.P. that Respondent would send the impression to the manufacturer for a new set of hearing aids. C.P. and his wife would be traveling in New York when Respondent received the new hearing aids, and Respondent agreed to mail the new hearing aids to C.P. in New York. C.P. received the new hearing aids while he was in New York. C.P. heard a "swishing" noise in the new hearing aids when people around him were talking. C.P. advised Respondent of the bothersome noise. Pursuant to Respondent's instructions, C.P. returned the hearing aids to Respondent. C.P. received hearing aids directly from the manufacturer on July 21, 1999, while C.P. was still in New York. The hearing aids created a pulsating sound. The volume wheel did not work, and the left hearing aid fell out of C.P.'s ear on at least one occasion. Respondent told C.P. that Respondent would have Betty Lou Gage (Gage), Respondent's assistant, locate a hearing aid specialist in New York where C.P. could take the hearing aids. On August 6, 1999, C.P. took the hearing aids to Genesee Hearing Aid in Buffalo, New York (Genesee), pursuant to Gage's instructions. Genesee advised C.P. that they did not work on Phillips programmable hearing aids and charged C.P. $15. On September 30, 1999, C.P. and his wife went to Respondent's office. C.P. complained that the hearing aids were whistling and falling out of his ears. While C.P. was in Respondent's office on September 30, 1999, C.P. requested a refund of the purchase price for a valid reason and tendered the hearing aids to Respondent in good condition. The tender and request for refund was within the one-year period previously represented by Respondent as required by Florida law. Respondent advised C.P. that the warranty was over. Respondent asked C.P. if C.P. wanted Respondent to send the hearing aids back to the manufacturer and have the manufacturer make the hearing aids automatic. C.P. agreed. On October 21, 1999, C.P. returned to Respondent's office for the new hearing aids. The toggle switch used for adjusting hearing aids was still on the outside of the hearing aids, but C.P. accepted the hearing aids anyway. Respondent advised C.P. not to wear the hearing aids while hunting. C.P. did not wear the hearing aids in November 1999 because he was hunting in New York. In December 1999, C.P. asked his wife to check the serial numbers on the hearing aids. C.P. and his wife discovered that the hearing aids were not Encantos. When C.P. and his wife returned to Florida, they went to Hearx, the provider of hearing aids under C.P.'s new insurance policy with Humana. A specialist at Hearx examined the hearing aids and confirmed that the hearing aids were not Phillips programmable hearing aids. Rather, they were half- shell conventional hearing aids with a retail value that ranged from $700 to $900. C.P. telephoned Elfers on January 19, 2000. A representative at Elfers advised C.P. that C.P. would need to speak to Respondent and that Respondent was no longer employed at that location. The representative advised C.P. to try reaching Respondent at the Holiday office. C.P. and his wife found Respondent at the Holiday office. C.P. advised Respondent that the hearing aids were not the Encantos C.P. had purchased and requested a refund. The request for refund was made within the one-year period represented by Respondent on March 10, 1999, in which C.P. could request a refund. C.P. also requested the telephone number for Phillips. Respondent told C.P. that Phillips was out of business and left the office. Jeff Ruff, another employee at the Holiday office, offered to try a new substance to put a seal around the hearing aids for a better fit. C.P. left the hearing aids with Ruff and obtained a receipt. C.P.'s wife telephoned Phillips, provided the serial numbers for the Encantos, and asked whether Respondent had returned the Encantos. The representative for Phillips stated that Respondent had returned the Encantos on October 8, 1999, and that Phillips had sent the half-shell conventional hearing aids back to Respondent. The serial numbers of the half-shell conventional hearing aids sent to Respondent matched those on the hearing aids that C.P.'s wife checked in December 1999. The market value of the half-shell conventional hearing aids is more than $2,000 less than that of the Encantos. Respondent should have refunded the difference in market value to C.P. Respondent did not refund the difference in market price to C.P. Respondent did not provide C.P. with any written documentation, including a sales receipt, for the half-shell conventional hearing aids; did not provide C.P. with a warranty for the half-shell conventional hearing aids; did not advise C.P. that Respondent had changed the hearing aids provided to C.P.; and did not advise C.P. of the difference in market value between the Encantos and half-shell conventional hearing aids. Respondent has not refunded any money to C.P. Respondent has not otherwise made restitution for the harm suffered by C.P. This is not Respondent's first offense. Petitioner has previously disciplined Respondent's license in two cases in which Respondent either allowed the 30-day trial period to lapse before taking action requested by the customer or refused to refund the entire amount of the purchase price. Petitioner imposed administrative fines in those two cases that totaled $1,000; required Respondent to pay costs of $805; and required Respondent pay a refund to the customer in the amount $544. A substantial period of time has not lapsed since Respondent's previous discipline. Petitioner entered a final order in the previous two cases on April 15, 2002.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Subsections 484.056(1)(g) and (h); revoking Respondent's license; assessing an administrative fine of $2,000 and the costs of investigation and prosecution; requiring Respondent to make restitution to C.P. in the amount of $3,832; and requiring Respondent to pay all fines, costs, and restitution within 30 days of the date of the Final Order. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 6th day of September, 2002. COPIES FURNISHED: Kathryn E. Price, Esquire Bureau of Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Gage Davey 6521 Berea Lane New Port Richey, Florida 34653 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 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent violated Subsections 484.051(2), 484.056(1)(g), 484.056(1)(h), 484.056(1)(k), 484.053(1)(f), 484.053(3), 455.624(1)(j), and 484.0512(l), Florida Statutes,1 and Rule 64B6-6.010, Florida Administrative Code, and, if so, what discipline should be imposed.
Findings Of Fact Stephens is and has been, at least since March 1999, a licensed Hearing Aid Specialist. His license number is AS 0002599. On April 26, 1999, O.G. purchased a pair of hearing aids from Stephens. The total price of the hearing aids was $3200. O.G. paid $1600 using his Visa credit card on April 26. The hearing aids were delivered by Stephens to O.G. on May 14, 1999, at which time O.G. paid the remaining $1600 by Visa credit card. O.G. was not happy with the hearing aids and returned to Stephens' place of business, Hearing World, sometime in June 1999. Stephens convinced O.G. to try a different pair of hearing aids instead of getting a refund. O.G. agreed, and Stephens ordered a new pair of hearing aids, which Stephens delivered on June 30, 1999. O.G. was not happy with the second pair of hearing aids and again returned them to Hearing World. Stephens persuaded O.G. to try another set of hearings aids. By letter dated July 26, 1999, Stephens advised as follows: This letter is to confirm that: When you receive your remade instruments on or before August 15, 1999, you will have 30 days to try them without penalty. Should you decide that you wish to return them for a refund you may do so and receive a full refund of your investment. Further, should you need an extension of the trial it will be granted based on your request before the original trial expires. O.G. agreed to Stephens' proposition. The third set was delivered on August 14, 1999. The third set of hearing aids was also unacceptable to O.G. Stephens ordered a fourth pair and delivered them to O.G. on October 1, 1999. O.G. was not satisfied with the fourth pair and asked for a refund. On November 19, 1999, O.G. received a letter from Stephens stating: We are in receipt of your request for cancellation. I do accept this letter as your notice. We are very sorry that we were not able to satisfy your hearing needs. We are having a very difficult time financially at this time and will not be able to refund your money as timely as you would like. However, we do owe you a refund and will take care of it as soon as we are financially able to do so. The refund time is running about 8 weeks. O.G. did receive $300 from Stephens as part of the refund. Stephens made no further payments to O.G. On February 15, 1999, Joseph Wright (Wright) applied to the Department for admittance to the hearing aid specialist training program and was approved for the training program period March 12, 1999, through September 11, 1999. The notice from the Department to Wright advising him that he was approved for the training program stated: "A trainee may continue to function as a trainee until receipt of the examination grade results." Stephens was Wright's sponsor. As part of the training program, Stephens taught Wright, using text books and hands-on training. Stephens showed Wright how to make molds and do fittings. As Wright progressed, he was allowed to make the molds and do fittings by himself. Wright would show the molds to Stephens after Wright completed them. If Wright had trouble fitting a client, Stephens would come and assist Wright. Generally Stephens was in the office when Wright did fittings. After completing the six-month training program, Wright took the Hearing Aid Specialist Examination in September 1999. Wright did not pass the examination. On October 29, 1999, the Department mailed Wright the notice that he had not passed the examination. The evidence did not establish when Wright received the notification that he had failed the examination. Nor did the evidence establish when Stephens became aware that Wright had failed the examination. At least by April 14, 2000, Wright was aware that he had failed the examination because on that date he again applied with the Department to enter the hearing aid specialist program under Stephens' sponsorship. Stephens was also aware by April 14, 2000, that Wright had failed the examination because Wright's application included a signed statement from Stephens dated April 14, 2000, indicating that he would be Wright's sponsor. The Department admitted Wright to the training program for the period April 22, 2000, through October 21, 2000. The dates for his examination were January 19 and 20, 2001. In February 2000, J.F. received an advertisement from Hearing World, advertising free hearing examinations. On March 2, 2000, J.F. went to Hearing World for the free examination. He did not see Stephens and was helped by Wright. J.F. signed a written purchase agreement to purchase two hearing aids from Hearing World for $5,700. Wright performed the examination, made the molds for the hearing aids, and signed the purchase agreement on behalf of Hearing World. J.F. gave Wright a check for $5,700 on March 2, 2000, as payment in full for the hearing aids. On March 23, 2000, Wright delivered the hearing aids to J.F. and signed the purchase agreement as having delivered the hearing aids. Stephens was not physically present in the room with Wright and J.F. at the time the delivery was made. The purchase agreement did not contain the signature and license number of Stephens. The written purchase agreement provided: The purchaser agrees to wear the hearing aid(s) for a period of 30 days from the date of delivery. In the event that the purchaser decides to return the hearing aid(s), they must be returned to the specialist of record in new working order, on or before the 30th day of possession. Upon receipt of the hearing aid(s) Hearing World will refund the purchase price, less mold and dispensing fees (mold fee $150 for one aid, $200 for a set. In addition, a 5% of the purchase price-dispensing fee may be retained). J.F. tried wearing the hearing aids but experienced vertigo when using them. He talked to Wright on April 3 and explained the problem he was having with the hearing aids and indicating he wanted to return the hearing aids for a refund. Wright explained to J.F. that only Stephens had the authority to make a refund. J.F. met with Stephens on April 12, 2000. Stephens explained that he had a cash flow problem and could not make a full refund at that time. It was agreed that J.F. would return one of the hearing aids and try to wear the other one. On April 14, 2000, J.F. returned to Hearing World and explained to Stephens that the use of one hearing aid did not solve the vertigo problem that he was experiencing. J.F. returned the other hearing aid and asked for a complete refund. Stephens told J.F. that he did not have the funds to make a full refund and gave J.F. $100. Stephens made no further payments to J.F. for the refund on the hearing aids. Stephens filed a petition for bankruptcy on September 27, 2000. A Discharge of Debtor was entered on January 8, 2001, in In Re: Stephens, Donald Lane, Case No. 00-14949-8W7, United States Bankruptcy Court Middle District of Florida, Tampa Division. J.F. and O.G. were listed as creditors holding unsecured nonpriority claims.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: In Case No. 03-0404PL, finding that Donald Stephens violated Subsections 484.0512(1) and 484.056(1)(h), Florida Statutes, as set forth in Count I of the Administrative Complaint; Subsection 484.051(2), Florida Statutes, as set forth in Count II of the Administrative Complaint; and Subsection 484.056(1)(h), Florida Statutes, and Rule 64B6-6.010, Florida Administrative Code, as set forth in Count IV of the Administrative Complaint. In Case No. 03-0404PL, dismissing Count III of the Administrative Complaint. In Case No. 03-0404PL, issuing a reprimand and imposing administrative fines of $1,000 for the violations set forth in Count I, $500 for the violations set forth in Count II, and $500 for the violations set forth in Count IV. In Case No. 03-0405PL dismissing the Administrative Complaint. DONE AND ENTERED this 25th day of June, 2003, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 25th day of June, 2003.
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
The Issue Should Petitioner discipline Respondent's hearing aid specialist license for reasons alleged in the Amended Administrative Complaint?
Findings Of Fact At all times relevant to this proceeding Respondent William D. Williston has been a licensed hearing aid specialist in Florida, having been issued license no. 1439 by the Florida Board of Hearing Aid Specialist, commencing April 1, 1983. At all times relevant to the inquiry Respondent operated a business known as the Sumter Hearing Center in Wildwood, Florida, from which hearing aids were sold and dispensed. At times relevant to the inquiry Respondent sponsored Darleen L. Sherman as a trainee at his business. Respondent also served as the designated hearing aid specialist to assist in the training of Ms. Sherman. Respondent served in the capacity of direct supervisor to Ms. Sherman in her attempt to learn the necessary skills to become a licensed hearing aid specialist. Respondent's initial sponsorship and supervision of Ms. Sherman's training, wherein Respondent had been designated to serve, was for the training period June 24, 1997 through December 23, 1997. Ms. Sherman completed that training program. Following the completion of her training she took the hearing aid specialist examination. She failed the written theory portion of the examination taken May 1, 1998 through May 3, 1998. Ms. Sherman and Respondent were made aware of those results by notice mailed to the candidate for licensure on June 4, 1998. On June 6, 1998, Ms. Sherman reapplied to participate in a training program sponsored and supervised by Respondent. This was a request to repeat the training. Ms. Sherman's application form submitted to Petitioner was accompanied by a form completed by Respondent as sponsor, also dated June 6, 1998. On June 8, 1998, a check was written by Ms. Sherman to Petitioner in the amount of $105 for the stated purpose of participation in the "second training program." On June 13, 1998, Ms. Sherman was officially registered for the repeat training program with Respondent serving as sponsor and a prospective examination date to gain her license as hearing aid specialist was provided. That date for examination was sometime in January 1999. The training program registration identified the repeat training program period as running from June 12, 1998 through December 11, 1998. Stage I to that training program was June 12, 1998 through July 11, 1998; Stage II July 12, 1998 through September 11, 1998, and Stage III September 12, 1998 through December 11, 1998. During the hiatus between being notified that Ms. Sherman had failed the May 1998 examination and the beginning date for the repeat training program, Ms. Sherman, with Respondent's knowledge, acted in behalf of Respondent's hearing aid specialist business in Wildwood, Florida. This took place on June 9, 1998, involving the patient C.D., outside Respondent's presence. On that date Ms. Sherman performed hearing aid testing on C.D. and sold C.D. new hearing aids manufactured by Rexton for a total price of $4,000. The first $2,000 to purchase was paid on that date. The sales receipt provided C.D. was signed by Ms. Sherman indicating that she was a hearing aid specialist, which she was not. C.D. also signed the receipt form. The receipt provided C.D. on June 9, 1998, indicated that the hearing aids were guaranteed by Rexton for a period of one year with a loss and damage provision available with a 25% deductible. C.D. was provided another document which he signed and dated June 9, 1998. That document was entitled "30-day trial agreement." By its terms it said: I agree to wear my new hearing aid for the full 30-day trial period, and will come in at least once a week for consultation and any adjustments that may be needed. If the hearing aids are returned to the laboratory for any modification, my trial period will resume upon refitting of the hearing aids. I realize that hearing aid fittings are individual in nature and that it is normal to expect adjustments to be made. It has taken a long time for my hearing loss to develop, and will take some time to once again begin to enjoy the sound of life. Respondent was aware of the use of this type form in his business and the type of sales receipt form utilized in the transaction with C.D. Contrary to Respondent's testimony it is not found that C.D. was provided a form with information entitled "30-day trial agreement terms and conditions" as of the purchase date June 9, 1998, or upon any other date. C.D. in his testimony disclaimed being presented the form "30-day trial agreement terms and conditions." His testimony is supported by his wife, V.D. Ms. Sherman does not recall whether the form "30-day trial agreement terms and conditions" was provided to C.D. The "30-day trial agreement terms and conditions" was used on occasion by Respondent and Ms. Sherman but not here. The form is similar to the notice requirements set forth in Section 484.0512, Florida Statutes, dealing with the statutory requirement for a 30-day trial period and money back guarantee, together with the opportunity to return the hearing aids or mail written notice of cancellation to the seller and Rule 64B-6.001, Florida Administrative Code, which further describes written notice requirements. On June 19, 1998, Ms. Sherman received from the factory the hearing aids purchased by C.D. They had the wrong circuitry. As a consequence Ms. Sherman returned the hearing aids for correction. On June 29, 1998, Ms. Sherman received the hearing aids a second time. On June 30, 1998, C.D. returned to Respondent's business and was provided the hearing aids and paid the $2,000 balance for the purchase. Respondent was in attendance on this occasion. No further documentation was provided C.D. concerning his purchase when he took delivery of the hearing aids. Shortly after receiving the hearing aids C.D. and his wife took a vacation in north Georgia. On July 14, 1998, C.D. wrote Ms. Sherman concerning the hearing aids in question. In that correspondence he said "Sorry, but these hearing aids just don't meet my needs. Please refund my $4,000." On that same date by registered delivery, return receipt requested, C.D. sent the hearing aids back to Respondent's Wildwood, Florida, business address. The hearing aids were received at that address on July 20, 1998. The hearing aids were eventually returned to the manufacturer for credit on Respondent's account with Rexton. This disposition occurred around August 10, 1998. On July 20, 1998, the same day that the hearing aids were received by Respondent's business, Ms. Sherman wrote C.D. at his Florida address in Lake Panasoffkee, Florida. In that correspondence she identified herself as being a hearing aid specialist and an office manager for Respondent's Sumter Hearing Centers, one of which was at the Wildwood, Florida, address. In this correspondence she stated: We are in receipt of your hearing aid. As we agreed when you purchased the hearing aid you would give the hearing aid a 30-day trial basis, therefore I would suggest that we delay canceling this order. My suggestion is again a 30-day trial basis effective upon your return. It is important that I know what kind of problems, 'not loud enough, too much background noise, whistling, fit uncomfortable or etc.' you are having so that I can make adjustments and have you try them again. I am confident that we can get you to hear better. Please contact me at 352-793-4422 regarding the above matter. On August 6, 1998, C.D. responded to the July 20, 1998 letter from Ms. Sherman by writing to her and saying: In reference to your letter of July 20th; be advised that I have purchased another hearing aid and I am happy with them [sic]. Please return the $4,000 I paid for the Rexton aids. In fact, C.D. had not purchased another hearing aid. He made this false statement as a further attempt to be reimbursed the purchase price for the Rexton hearing aids. C.D. made numerous attempts to obtain a refund for the hearing aids purchased, to no avail. Respondent was aware of these attempts. Among the efforts was contact by Randall M. Thornton, Esquire, C.D.'s attorney, who wrote to the Respondent's business address at Wildwood, Florida, and another business address in Bushnell, Florida, requesting a refund in the amount of $4,000. This correspondence from the attorney was dated October 9, 1998. Respondent's uncorroborated testimony that he refunded the $4,000 to C.D. is not credible.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which imposes an administrative fine of $2,000, assesses costs of investigation and prosecution, orders Respondent to refund $4,000 to C.D., and otherwise dismisses the Amended Administrative Complaint. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2002. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building Three, Mail Station 39 Tallahassee, Florida 32308 William D. Williston 3131 Southwest College Road Suite 302 Ocala, Florida 34474 William D. Williston 1072 Southeast 155th Street Summerfield, Florida 34491 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701
The Issue The issue 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
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.
