The Issue The issue presented for decision in this case is whether the Petitioner should receive a passing grade on the September 1997 Hearing Aid Specialist examination.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: In September 1997, Petitioner was a trainee and candidate for licensure as a hearing aid specialist, pursuant to Chapter 484, Part II, Florida Statutes, and Chapter 64B6-8, Florida Administrative Code. A trainee studying hearing aid dispensing must do so under the direct supervision of a “sponsor” who is an active Florida licensed hearing aid specialist with an established place of business. Section 484.0445, Florida Statutes; Rule 64B6- 8.003(1), Florida Administrative Code. Petitioner’s sponsor was Gerald Amato, a hearing aid specialist of over 20 years’ experience. Mr. Amato was a franchisee of Beltone, a manufacturer of audiometric equipment, including hearing aids and audiometers. Beltone supplied all of the equipment used by Petitioner. An “audiometer” is a piece of equipment that measures a person’s ability to hear, and is regularly used by hearing aid specialists and trainees. Petitioner testified that, shortly before he commenced his training program, Beltone converted from manual audiometers to computerized audiometers. Petitioner contends that he was placed at an unfair disadvantage because the examination proctors would not allow him to plug in his computerized audiometer for use during the examination. Petitioner argued that the older, manual audiometers provide visual cues such as dials and meters even when they are not plugged in, cues that assist the trainee to successfully complete the examination. The computerized audiometer, on the other hand, presents nothing but a blank screen when it is not plugged in. Petitioner acknowledged that no one taking the exam was allowed to plug in an audiometer. However, he contended that this was a situation in which technology had outpaced the testing procedures, and that Respondent should have made provisions for persons with computerized equipment to take the exam on an even footing with persons using manual equipment. Ms. Wilma Ferrer, a psychometrician familiar with the hearing aid specialist examination procedures, testified that candidates were informed they could not plug in their audiometers at least three times before they sat for the exam. The “Candidate Information Booklet,” sent by mail to candidates about a month before the exam, expressly states: “Each candidate is required to bring an audiometer with recorded speech and/or live voice capability to be used during the candidate’s examination. Do not plug in audiometer during examination.” During the hands-on portion of the exam, candidates demonstrate proper procedures, using the proctors as their subjects. If the audiometers were plugged in, there would be some chance of damaging the proctors’ hearing during the exam. Ms. Mary Lou Lauster, an expert regarding hearing aid specialists, testified that the purpose of the audiometer portion of the exam is to permit candidates to demonstrate they know which buttons to push to perform each audiometer function, and that they know how to properly fit the headset. Ms. Lauster conceded that some of the older audiometers provide visual cues, but stated her opinion that Petitioner would not be disadvantaged by his use of the computerized audiometer, if he knew how to run it. According to Ms. Lauster, the exam is simply an opportunity for the candidate to talk his or her way through the procedures, and it should make no difference whether the audiometer is plugged in. In other words, the candidate should not need visual cues to successfully negotiate the examination. Ms. Lauster denied the implication that the examiners and the agency itself were unprepared to deal with Petitioner’s new equipment. She testified that other candidates have used the same computerized equipment with success and without incident. At the hearing, Petitioner suggested that a better policy might be to require all candidates to be tested on a single, standard audiometer, so that no candidate could be perceived to have an unfair advantage. Ms. Lauster disagreed with this suggestion, stating that candidates are generally more comfortable using the audiometers with which they were trained. It is found that Respondent’s decision not to allow candidates to plug in their audiometers during the examination was rational and supported by legitimate concerns for the proctors’ hearing. Petitioner was given ample notice that he would not be allowed to plug in his audiometer. Other candidates using the same or similar equipment have successfully completed the examination. All candidates were treated equally in this regard, and Petitioner was not entitled to a special exemption from Respondent’s clearly stated testing policy. Respondent was well aware of the trend in the industry away from manual audiometers, and considered the existence of newer, computerized equipment in deciding to maintain its testing policy of not allowing audiometers to be plugged in during the examinations. Petitioner suggested that his equipment presented a brand new situation that Respondent had not anticipated, but this suggestion was not supported by the evidence presented at hearing. Petitioner also claimed that the proctor engaged him in unnecessary conversation regarding his audiometer, and that this conversation distracted him during the examination. Even crediting Petitioner’s version of events, this conversation cannot be found to have caused Petitioner’s poor performance on the practical portion of the examination. For reasons that cannot be attributed to Respondent, Petitioner entered the examination anticipating that he would be allowed to plug in his audiometer. The undersigned does not doubt Petitioner’s assertion that his performance on the examination was adversely affected when he was not allowed to plug in his audiometer. However, the fault lies with Petitioner, not with Respondent. Petitioner is not entitled to the award of any additional points in the practical portion of the examination. In his challenge letter, Petitioner also contested Questions 1 and 20 of the written, multiple choice portion of the examination. At hearing, Petitioner withdrew his challenge of Question 20. Each of the written questions was worth one point. Petitioner failed the examination by three points. Thus, even if it were found that he should be awarded one point for Question 1, Petitioner would not achieve a passing score. Petitioner’s challenge of Question 1 will nonetheless be addressed, to ensure a complete record in this proceeding. Question 1 referred to the effect that the addition of an “air” vent would have on an earmold. Petitioner chose the answer that it would “accentuate the low frequencies.” The correct answer was that it would “reduce the feeling of pressure in the ear canal.” Ms. Lauster testified that, while venting may accentuate frequencies, it does not necessarily relate to high or low frequencies. A vent may accentuate high or low frequencies, depending on the size of the vent. The general tendency is for a vent to enhance high frequencies. Ms. Lauster's opinion was supported by a standard textbook on hearing instrument science and fitting practices. It was undisputed that the addition of an air vent does relieve pressure in the ear canal. Thus, the best answer to Question 1 was “reduce the feeling of pressure in the ear canal.” Respondent correctly found that Petitioner’s response to Question 1 was not the best answer, and correctly denied him credit for that question. Petitioner alleged that Question 1 was of such difficulty that it should either not be counted, or his answer should be counted as correct. Respondent demonstrated that 26 out of 50 candidates answered the question correctly, thus negating Petitioner’s contention in this regard. Question 1 was properly graded as a question of medium difficulty, and is a valid and acceptable item on the examination.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Hearing Aid Specialists, enter a final order denying Petitioner’s challenge to the grade assigned him for the September 1997 Hearing Aid Specialist licensure examination. DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1998. COPIES FURNISHED: Terry L. Allman, pro se 110 St. Lucia Loop Apollo Beach, Florida 33572 Anne Marie Williamson, Esquire Florida Department of Health 1317 Winewood Boulevard Building 6, Suite 240 Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health Building Six, Room 240 1309 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building Six, Room 306 Tallahassee, Florida 32399-0700
The Issue Whether Respondent violated the provisions of chapter 484, Florida Statutes (2010),1/ regulating hearing aid specialists, as alleged in the Third Amended Administrative Complaint, and, if so, what is the appropriate sanction.
Findings Of Fact The Department is the state agency charged with the licensing and regulation of health care professionals pursuant to section 20.43 and chapter 456, Florida Statutes. The Board is the professional licensing board charged with final agency action with respect to discipline against hearing aid specialists pursuant to chapter 484. At all relevant times, Ms. White was licensed to practice as a hearing aid specialist in the state of Florida, holding license number AS 4137. Ms. White was the owner, manager, and operator of a hearing aid dispensing practice known as Serenity Sounds Hearing Care Center, Inc. On or about March 7, 2011, Ms. White fitted Patient B.P. for a set of Audina half-shell hearing aids for which Ms. White billed B.P. $3,200.00. The sales receipt for this purchase did not contain the serial number of the hearing aids. When Ms. White fitted Patient B.P. on March 7, 2011, Patient B.P. was a 93-year-old man. In a Confidential Patient Analysis Chart that B.P. filled out for Serenity Sounds Hearing Care Center, Inc., he admitted that he had noticed changes in his ability to remember. On or about July 13, 2011, Ms. White fitted Patient B.P. with Audina OTE hearing aids for $4,500.00. The sales receipt for this purchase did not contain the serial number of the hearing aids. On or about October 21, 2011, Patient B.P. presented to Ms. White with the Audina OTE hearing aids broken into pieces. The broken Audina OTE hearing aids would have been covered under a loss and damage policy requiring a $100.00 deductible to replace the broken aids. Instead, on or about October 21, 2011, Ms. White sold Patient B.P. a new pair of hearing aids for $3,000.00. On or about December 20, 2011, Ms. White received a loan in the approximate amount of $20,000.00 from B.P. On or about January 25, 2012, Ms. White used Patient B.P.'s Citi Dividends credit card to purchase three round-trip airline tickets. On or about February 14, 2012, Ms. White submitted an application to Citigroup for a Citi Card credit card using Patient B.P.'s personal information. On or about February 14, 2012, Ms. White submitted an application to Capital One for a credit card using Patient B.P.'s personal information. On or about February 14, 2012, a check in the amount of $3,000.00 was written from Patient B.P.'s account and deposited into a PNC Bank account belonging to Ms. White's business, Serenity Sounds Hearing Care Center, Inc. On February 17, 2012, Ms. White wrote a letter on behalf of B.P. The letter confirmed that B.P. had loaned Serenity Sounds Hearing Care Center, Inc., more than $35,000.00 and stated that B.P. was changing this "from a loan into a gift." It stated that Ms. White could use the money without worrying about having to pay it back and that any loan agreements were no longer valid. It went on to state that Ms. White "is a friend of mine and I want nothing but what is best for her." The letter was signed by B.P. and by Ms. White.3/ On or about February 22, 2012, Ms. White submitted an application for an American Express credit card using Patient B.P.'s personal information. On that same day, B.P.'s patient records indicate that a push button was missing on his hearing aid, and it was turning red in the charger. Ms. White sent the aids to Rexton for repair. On or about February 28, 2012, Ms. White submitted an application for a Discover credit card using Patient B.P.'s personal information. On or about March 14, 2012, B.P. entered into a motor vehicle retail installment contract for the purchase of a 2011 Lexus GS350 automobile, obligating him to pay the sum of $43,877.00 over a term of 65 months. He also purchased a vehicle protection etch stencil, a deficiency waiver addendum, 24-hour lockout assistance, insurance, and a vehicle service contract for the automobile. The Lexus GS350 purchased by Patient B.P. was for Ms. White's use. On or about March 16, 2012, Patient B.P. purchased $4,277.87 worth of jewelry from Zales for Ms. White. On or about March 17, 2012, Ms. White charged an additional $693.49 to Patient B.P.'s American Express credit card when she exchanged a watch for a bracelet. On or about March 19, 2012, a charge was made to Patient B.P.'s Discover credit card for $699.58 at Radio Shack for items for Ms. White. On or about March 22, 2012, a charge was made to Patient B.P.'s Citi Card in the amount of $1,100.00 to Progressive Insurance for a policy held by Ms. White. An entry in B.P.'s patient records on March 28, 2012, shows that the Audina hearing aids were broken in many pieces. It is noted that B.P. asked about Starkey hearing aids, saying that his friends wore them. On or about March 31, 2012, a charge was made to Patient B.P.'s Discover credit card in the amount of $133.99 to Macy's in Palm Beach Gardens, Florida, for items for Ms. White, for which she signed the receipt. On or about April 2, 2012, a charge was made to Patient B.P.'s Citi Card in the amount of $492.00 to Siemen's for a patient of Ms. White's that was not B.P. An entry in B.P.'s patient records on April 3, 2012, shows that B.P.'s hearing was retested. The note indicates that Starkey was called and that they suggested the Starkey "X Series 90." The note indicates that B.P. said he would go home and talk to his wife. An entry in B.P.'s patient records on April 4, 2012, shows that B.P. had talked with his wife and that he wanted to get the Starkey hearing aids. His wife wrote a check for $8,600.00 to "Serenity Hearing Aids." On or about April 5, 2012, Ms. White submitted an application for a joint Wells Fargo bank account with Patient B.P. On or about April 5, 2012, Patient B.P. took out a loan from Wells Fargo in the amount of $48,694.75. On or about April 5, 2012, Ms. White received a cashier's check for approximately $48,500.00 from the loan proceeds received by Patient B.P. B.P.'s patient records indicate the Starkey hearing aids were delivered to B.P. on April 10, 2012. On April 27, 2012, Ms. White wrote and signed a note saying that she had returned the 2011 Lexus GS350 with VIN JTHBE1KS4B0052280 to B.P. and indicating the mileage was 8,520. Even assuming that the December 20, 2011, loan was included in the amount mentioned in the February 17, 2012, note, Ms. White or Serenity Sounds Hearing Care Center, Inc., received at least $83,500.00 in loans or gifts from B.P. In addition, Ms. White or Serenity Sounds Hearing Care Center, Inc., received at least $7,000.00 from B.P. in the form of other purchases or gifts from stores or businesses, including jewelry and insurance. No evidence of prior discipline was introduced. There was no evidence that Ms. White was under any legal restraints or constraints at the time of the alleged violations.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Hearing Aid Specialists: Finding Rosalyn Runae Johnson White in violation of sections 484.056(1)(g), 484.056(1)(v), and 484.056(1)(w), Florida Statutes, as charged in the Third Amended Administrative Complaint; directing that she provide restitution to B.P. in the amount of $90,000.00; imposing an administrative fine on her of $8,000.00; assessing reasonable costs related to investigation and prosecution of the case; and revoking her license to practice as a hearing aid specialist. DONE AND ENTERED this 14th day of April, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2016.
The Issue as to DOAH Case Number 94-0966 Whether disciplinary action should be taken against Respondent's license to practice as hearing aid specialist based on a violation of Sections 484.056(1)(g), Florida Statutes (1991) by allegedly selling old, stolen hearing aids as new hearing aids as alleged in the Administrative Complaint.
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed hearing aid specialist in the State of Florida, having been issued license number AS 0002321. Respondent is a licensed hearing aid specialist and has been so licensed for approximately seven years. During the seven-year period as a licensed hearing aid specialist, Respondent has fitted over 2,500 hearing aid devices. Prior to the instant complaint, Respondent had no disciplinary actions against him relating to customer service. as to DOAH Case Number 94-0966 Ms. Ola Martin is seventy-two (72) years old and has a hearing problem. In 1993, Ms. Nancy Martin retained the services of Bob Horine at Hearing World, Inc., in Maitland, Florida, for purposes of purchasing a hearing aid for her mother, Ms. Ola Martin. On January 6, 1993, Ola Martin came in the offices of Hearing World, Inc., and was examined by Bob Horine, the owner. Horine did the audio testing on Ola Martin by mechanically checking her hearing and fitting her for hearing aids. The only persons in the office at that time were Respondent, Ola Martin, Horine, and Mrs. Martin's daughter, Nancy Martin, who had accompanied her mother to Hearing World, Inc. During the time that Horine was selling and fitting Ola Martin with her hearing aids, Respondent was in and out of the examination room. Respondent was introduced to Martin at that time. Respondent did not participate in the examination or taking of impressions of Ola Martin's ears for the hearing devices. The person responsible for fitting and selling the hearing aids to Ola Martin was Bob Horine. The contract for sale and delivery of the hearing aids to Ola Martin was made between Horine and Ola Martin. Ola Martin stated that she was returning to Kentucky in two days and asked if she could have rush service. Horine agreed and advised her to pick up her hearing aids the following day, January 7, 1993. Ola Martin paid $1,295.00 to Horine on the same day that he tested her hearing for hearing aids. Horine asked Respondent for assistance in obtaining rush service. Respondent agreed that he would take the paperwork to the SonoTone Laboratory in Casselberry. They agreed to expedite the manufacture of the hearing aids for Ola Martin. Ola Martin arrived the following day with her daughter to retrieve her hearing aids. She was informed that neither Horine, nor Dan Culley, Hearing Aid Specialist, were available for the fitting, and the fitting would be done by Respondent. After agreeing to perform the final fitting for Martin, Respondent retrieved her file and found hearing aid devices inside. The file contained two devices, one for each ear. Respondent took Martin back to the examination area and examined her ears to make sure that they were free of wax. Respondent then took the hearing aids, installed the batteries, and placed the aids into Martin's ears, asking her how they felt. Respondent then showed Martin how to work the hearing devices. Respondent then gave Martin a 25-word discrimination test from a distance of ten feet. During the fitting, Martin conveyed to Respondent that the hearing aids seemed a little too large. Respondent then took them to another room where he buffed the hearing aids with a drill in order to help them fit properly. When placed back in the ears of Martin, they seemed to fit properly. Respondent instructed Martin to leave the hearing aids in place for one hour on the first day, and then gradually to increase the wearing time until she was comfortably wearing the hearing aids at all times except at night. At no time did Martin communicate her dissatisfaction with the fit or sound of her hearing aids to Respondent. Martin was in a hurry to conclude her business with Respondent, as she was worried that her daughter was going to be angry with her for taking so long. The serial numbers on the hearing aid devices delivered to Martin are too small to be viewed by the naked eye and require magnification to be seen. Respondent did not check the invoice numbers against the numbers on the devices delivered to Martin. At Hearing World, hearing aids were checked in through the receptionist, who would prepare the hearing aid devices for delivery. The receptionist was responsible for checking the serial numbers against those listed on the invoice. Respondent assumed when he found the two hearing aids in Martin's file, that they were the hearing aids which had been manufactured by SonoTone for her. Respondent made a visual inspection of the hearing aids and did not check the serial numbers from the manufacturer against those on the hearing aid devices. Neither a visual inspection, nor from any communication from Martin, caused Respondent to believe that the hearing aids which he inserted at that time were not those manufactured for Martin. Respondent received no negative communication from Martin after the fitting of her hearing aids. Approximately two to three days after Respondent fitted Martin's hearing aid devices, he was informed by the receptionist that two hearing aid devices had arrived from SonoTone for Martin. Respondent then realized that the hearing aids which were in Ola Martin's possession were not manufactured for her. When Respondent informed Horine of the error, Horine told Respondent that he had used Respondent's models in testing, and had "stuck" [sic] them in her file by mistake. Horine told Respondent that he would take care of the matter and straighten out the erroneous delivery. The standard operating procedure employed at Hearing World, Inc. in fitting a client with hearing aids was as follows: Hearing aids would be ordered. The hearing aids would then be manufactured by SonoTone in Longwood and sent to Hearing World, Inc. The hearing aids would first come to the secretary at Hearing World, Inc. The secretary would then take the hearing aids out, inspect them, insert batteries, and test their functioning. The secretary would record the serial numbers on the invoice and check those with the serial numbers on the hearing devices and place the hearing devices in the client's file. The person fitting the hearing aids would then pick up the file. It was not negligent, incompetent or misconduct for Respondent to have picked up Ola Martin's file, and finding two hearing aids therein, place them in the client's ears with a visual check only. After making the slight adjustment for size and with no complaints from the client as to audio or fitting problems, Respondent would not have had cause to double check the manufacturer's number on the hearing aids with the manufacturer's number on the invoice. Although the hearing aids helped Ola Martin's hearing, upon her return to Lexington, Kentucky, she complained that they seemed too loud even when she turned them down as low as they would go. Martin went to the Miracle Ear office in Lexington to have her hearing aids examined, and was examined by James McFadden, a hearing aid specialist for 29 years. Martin complained to McFadden that her hearing aids did not fit properly and that the sound was not clear. Upon examining Ola Martin's device, McFadden observed that they did not fit properly. McFadden attempted to adjust the hearing aids to Martin's satisfaction, but was not able to do so. McFadden obtained the serial number from the hearing device and spoke to a Miracle Ear representative in Minneapolis. He was informed that the hearing aid devices were registered to a woman in the Miami area and were fitted to that woman in March, 1991. McFadden then retested Martin and made new impressions of her ears for another Miracle Ear hearing device. The hearing aids brought to McFadden by Martin were originally made for Isabella Miller and were sold through Jean Marohn, a Miracle Ear franchisee based in Fort Myers, Florida. The shipping date was March 27, 1991. Miracle Ear instructed Martin to return the hearing aids to the original seller, Horine, for a complete refund. Based upon her conversation with McFadden, Martin returned the hearing aids to her daughter in order to obtain a refund from Hearing World, Inc., in Orlando. Ola Martin's daughter contacted Hearing World and was reimbursed by Horine for the full amount paid for hearing aids. Subsequently, Ola Martin filed a complaint with the Florida Department of Business and Professional Regulation against Horine, but not as to Respondent. Dahlburg is the manufacturer of Miracle Ear. During the manufacturing process, a serial number is placed on the hearing instrument which is unique for that particular hearing instrument. It is registered to the single individual for whom the instrument is made. Upon construction of the hearing instrument, it is shipped to the franchisee for placement in the consumer's ear. A franchisee outside the Minneapolis area could not obtain a hearing device from Dahlberg within a 24-hour period. Miracle Ear replaced Martin's hearing aids with new Miracle Ear hearing instruments at no cost to her. Jean Burton Marohn is a licensed hearing aid specialist in the State of Florida and owner of a Miracle Ear franchise located in Ft. Myers, Florida. In the early 1990's, Respondent was employed by Marohn as a manager at the store in Miami that covered South Dade and Monroe Counties. Respondent was employed in that capacity until approximately September 1992, when the store closed and he lost his home and personal belongs to Hurricane Andrew. The hearing aids in possession of Ola Martin were, in fact, sold by the Miami store to Isabella Miller. The hearing aids originally constructed for Isabella Miller were returned by her to Marohn's office in Miami. Miller alleged she was dissatisfied with the product, and could not afford the payments. Although Marohn attempted to rectify the problem with the hearing aid devices, Miller refused to reclaim possession of the hearing aids. They remained in Marohn's Miami location because the manufacturer's return period had expired. At the time of the impending Hurricane Andrew, Marohn requested that Respondent remove from the store what items he could: typewriters, telephones, copy machines, fax machines, and audiometers because of the potential for looting after the storm passed through. Respondent did so and informed Marohn that, in addition to the above items, he also removed stock and merchandise from the store. None of the items removed by Respondent, including the hearing aid devices, were returned to Marohn after the hurricane. In March of 1993, Marohn received a telephone call from an attorney calling on behalf of Respondent informing her that Respondent wanted to return the items removed from her store in exchange for commissions that she owed him. Marohn informed Respondent's attorney that she had replaced the equipment that Respondent had removed and she refused to accept the return of her property. Marohn tendered a casualty loss to her insurance company, including items that Respondent removed with knowledge, including the hearing aids. At the time that Respondent discontinued employment with Marohn, he was due a minimum of $3,000.00 in commissions. Prior to Hurricane Andrew, Marohn provided Respondent with a number of hearing aid devices which were given to him and which he employed as display or demonstrative models. The hearing aids returned to Marohn by Miller at Miracle Ear were given to Respondent for demonstrative purposes. Respondent kept approximately 12 pair of canal hearing instruments, including Miller's, of different sizes and frequencies in his display case, which he called Pandora's Box. He took this display case with him when he moved to Central Florida. After Hurricane Andrew occurred, Respondent left Marohn's employment and moved to Central Florida. He also took with him certain items that he had removed from the store. Subsequent to Respondent's departure, a dispute arose between him and Jean Marohn over commissions that were due from his employment with her. Respondent contacted an attorney who attempted to reach a settlement with Marohn as to the items held in Respondent's possession and commissions owed to him by Marohn. Respondent is currently in litigation with Marohn over the commissions due. Upon departing the Miami area, Respondent began employment with Hearing World, Inc. on Woodcock Road, Orlando, Florida. Respondent was employed at Hearing World, Inc. by Bob Horine and Tony Andreozzi. Bob Horine was president and manager of the Hearing World facility. The only compensation received by Respondent was 30 percent of the sale of hearing aids sold by him. Whenever Respondent completed the final fitting for a customer for hearing aids sold by Horine, Respondent would not receive any compensation. as to DOAH Case Number 94-0967 On June 21, 1993, the Petitioner conducted an inspection at Respondent's place of employment in Maitland, known as Hearing World, Inc. The inspection revealed several violations of Florida law, as follows: The testing room facilities and files were missing waiver forms. A failure to have hearing aid models, supplies and services available on the premises. A failure to post prices. A failure to provide calibration certifi- cates for audiometers in use in the facility. At the time of the inspection at Hearing World, Respondent introduced himself to Petitioner's inspectors as a vice president of that company. At the time of the inspection, Respondent was employed at Hearing World located on Woodcock Road in Orlando, Florida as a sales representative. Under his compensation agreement, he was to be paid for 30 percent of his sales. The owners of the company, Hearing World, Inc., located at Woodcock Road, Orlando, Florida, were Bob Horine and Tony Andreozzi. Respondent had no ownership interest in Hearing World, and was neither stockholder, officer, director nor minority shareholder in the company. Respondent received no compensation from the sales of hearing devices sold by other owners, managers, or employees of Hearing World, Inc. The only agreement between Respondent Horine as to the position of vice president was contingent upon Respondent's buyout of Horine's interest in Hearing World, Inc. A transaction which never came to fruition. Respondent expended no personal funds in renovating the office; purchasing signs, equipment, advertising or office overhead. The occupational license for Hearing World, Inc., posted on the premises, did not contain Respondent's name. Although Horine's Hearing Aid specialist license had been either suspended or revoked, Respondent had no knowledge of that fact until after the June, 1993 inspection. Respondent at no time agreed or intended to be the licensed person on the premises responsible for the business and training of other employees. At the time of the June, 1993, inspection, Hearing World had been at that location approximately 30 days. At the time of the June, 1993, inspection, there was an audiometric testing room on the premises under construction. An individual, named John Harris, was overseeing the work on the telecoustics and was in the process of doing the final calibration on the audiometric testing room at the time of the inspection. It was completed within a few days thereafter. At the time of the June 1993 inspection, Hearing World carried its services outside the office location and provided in-home service. At the time of the inspection, Respondent was not conducting any testing in the office. He was practicing in-home service. At the time of the inspection, hearing aid models, supplies and services were on the premises but were in the possession of the respective sales representatives. They stored them in their individual display cases (Pandora's Box). A majority of all supplies were located in the employees' Pandora Boxes, since Hearing World, Inc. was predominantly a field operation. The bags were utilized by the employees when they left the office to make field calls. The employees would bring their equipment to the office premises. When called into the field, they would take their equipment with them, which included hearing aid models and supplies. Hearing aid prices were posted in the administrative office at Hearing World, Inc., where the clients would come to pay their bills. On June 21, 1993, Respondents wife, Barbara Segretario, was employed as an administrator on the premises at Hearing World, Inc. Barbara Segretario was responsible for handling all the paperwork, accepting money, paying bills, and making financial arrangements for the purchase of hearing aids or to pay for repairs. All clients who came into the office to pay a bill, make financial arrangements, purchase a hearing aid, or pay for a repair would come into her office at Hearing World, Inc. There was a price list for hearing aids posted in Barbara Segretario's office in front of her desk, next to the window to her left, said price was posted on June 21, 1993, at the time of the inspection. Every transaction at Hearing World, Inc. included a visit by the client to the administrative offices for financial arrangements where hearing aid prices were conspicuously posted. Hearing World employed a service representative on June 21, 1993. When the inspection occurred, the representative was off the premises. The service representative's service equipment, as well as hearing aid models and supplies, were kept with him so that they were present when he was on the premises. He left with them when he went into the field to do an in- home service on behalf of Hearing World, Inc. Generally, these services were not conducted on premises, but were carried into clients' homes. All of the sales personnel at Hearing World, Inc. had their own hearing aid models which were kept with them in a display case, which they had in their possession while on premises and carried with them into the field for in-home services. There were two audiometers in use on the premises at the time of the June 1993 inspection; however, Horine and Respondent could not provide a certificate of calibration for those instruments to the inspector. Respondent did not provide the certification to the Petitioner for the audiometer that he employed at the time of the inspection. There were other audiometers on the premises that were not in use and were not certified at the time of the June 1993 inspection. A copy of the certifications of the two audiometers being used on the premises on June 21, 1993 were mailed to Petitioner after being requested by the Inspector. As of the date of this hearing, Petitioner had not received the certifications that were mailed pertaining to the two audiometers employed on the premises at the time of the inspection.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint as to DOAH Case No. 94-0966. It is further RECOMMENDED that a Final Order be entered dismissing Counts I, II, III and V of the Administrative Complaint as to DOAH Case No. 94-0967, finding Respondent guilty of violating Count IV of the Complaint and imposing an administrative fine of $100.00 for said offense. DONE AND ENTERED this 14th day of April, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1995. APPENDIX Petitioner's Proposed Findings of Fact: Accepted in substance: paragraphs 1, 2 (in part), 3, 4, 5, 6, 7, 8 (in part), 9 (in part), 10, 11, 13, 14, 17, 18, 19, 21, 22, 24, 25, 26, 28, 30, 31 (in part), 32 (in part), 34, 36, 37, 38 (in part), 39 (in part), 40 (in part), 42, 46, 47, 48 (in part). Rejected as not proven by clear and convincing evidence: paragraphs 2 (in part), 8 (in part), 9 (in part), 12, 31 (in part), 32 (in part), 33, 38 (in part), 39 (in part), 40 (in part), 41, 48 (in part). Rejected as subsumed, irrelevant or immaterial: paragraphs 5, 15, 16, 20, 27, 29, 35, 43, 44, 45. Respondent's Proposed Findings of Fact for Case No. 94-0966 Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 (in part), 12, 13, 14, 15 (in part), 16, 17, 18 (in part), 19, 20, 21, 23, 24, 25, 26, 28, 29, 30, 33 (in part), 34, 35, 36 (in part), 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 (in part) 50 (in part), 51 (in part), 52 (in part), 57, 58, 61, 64, 67, 68, 69, 70 (in part), 71, 73, 74, 75, 76, 77, 78, 79, 80, 81 (in part), 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 108 (in part), 109, 110, 111. Rejected as against the evidence: paragraph 11 (in part), 15 (in part), 18 (in part) 51 (in part), 52 (in part). Rejected as subsumed, irrelevant or immaterial: paragraphs 22, 27, 31, 32, 33 (in part), 36 (in part), 37, 49 (in part), 50 (in part), 53, 54, 55, 56, 59, 60, 62, 63, 65, 66, 70 (in part), 72, 81 (in part), 104, 105, 106, 107, 108 (in part), 112, 113, 114, 115, 116, 117. Respondent's Proposed Findings of Fact for Case No. 94-0967 Accepted in substance: paragraphs 1, 2, 4 (in part), 5, 6, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 34, 35, 36, 39, 40, 41, 42, 43, 44, 45, 47 (in part), 48 (in part), 49, 50, 51 (in part), 53. Rejected as subsumed or irrelevant or immaterial: paragraphs 3, 31, 37, 38. Rejeted as not proven by clear and convencing evidence: paragraphs 4 (in part), 7, 8, 9, 46, 47 (in part), 48 (in part), 51 (in part), 52. COPIES FURNISHED: Susan E. Lindgard, Esquire Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William J. Sheaffer, Esquire 609 East Central Boulevard Orlando, Florida 32801 Susan Foster Executive Director Hearing Aid Specialists Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue 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 George Selis holds certificate of registration Number 695-04-73 to fit and sell hearing aids in the State of Florida, and this certificate of registration was issued by the Department of Health and Rehabilitative Services. On August 9, 1976, George Selis did fit and sell a hearing aid to Daisy Binder. On that date George Selis examined the ears of Daisy Binder prior to giving her a hearing test and according to his testimony observed a quantity of cerumen, or ear wax, in her ears. At that time, according to Selis, the ear canal was not blocked or impacted by the cerumen. In accordance with his experience and training, it was not improper for Selis to test an individual's hearing when cerumen was observed in the ear canal as long as the ear canal was not blocked. On August 24, 1976, Daisy Binder was examined by Dr. Herbert King, M.D., who determined that both of her ears were impacted with cerumen. In Dr. King's medical opinion, from the quantity of wax present on August 24, 1976, an excessively large quantity of wax would have been present on August 9, 1976, when Daisy Binder's ears were examined by George Selis. Dr. King's medical opinion is buttressed by the medical records of Binder which show she had had her ears irrigated and impacted cerumen removed roughly every two years for four years prior to August, 1976. George Selis sold and fitted a hearing aid to Augusta Miller on or about August 24, 1975. Regarding the testing of hearing of his client, Selis explained that prior to every test he explained to the client the way the test was conducted and what the results meant. The handwritten lines and annotations on the hearing test of Augusta Miller, Exhibit 20, had a diagram on the back of this test relating to Selis' explanation of the test and its operation on the ear. In this explanation Selis explained that a hearing loss of 30 decibels or less is normal, that a hearing loss between 30 decibels and 80 decibels may not be correctable. Selis also explained the fact that hearing aids cannot help certain hearing losses and that certain types of hearing losses can be treated medically. Regarding the type of loss which a hearing aid can help, Selis explained that the use of the hearing aid does not stop the loss and that the loss may continue to the extent that the hearing aid will no longer offer any assistance. Selis represented that it was this explanation which he gave to Augusta Miller on August 24, 1975, when he fitted and sold her a hearing aid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the certificate of registration of George Selis be suspended for a period of 30 days. DONE and ORDERED this 3rd day of August, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert Eisenberg, Esquire Department of Health and Rehabilitative Services Post Office Box 2417 F Jacksonville, Florida 32231 Louis Ossinsky, Jr., Esquire Ossinsky and Krol 411 Main Street Post Office Drawer E Daytona Beach, Florida 32018
The Issue The issue for consideration in this case is whether Respondent's license as a hearing aid specialist in Florida should be disciplined because of the matters alleged in the Administrative Complaints filed herein.
Findings Of Fact At all times relevant to the issues herein, the Board of Hearing Aid Specialists has been the state agency in Florida responsible for the licensing of hearing aid specialists and the regulation of the hearing aid provider profession in Florida. The Respondent has been a licensed hearing aid specialist in this state, holding license number AS 00010006. Stanley I. Williamson is an 84-year-old blind and arthritic retiree who has worn hearing aids since the early 1980's. He has known Mr. Conley since that time and has purchased his hearing aids from the Respondent both when the Respondent was working for other suppliers and when he went into business for himself. In the summer of 1997, Mr. Williamson went to the Respondent to get the wax cleaned out of his hearing aids. Mr. Williamson did not feel he needed new aids at the time. However, on June 6, 1997 Respondent Mr. Conley called him and tried to sell him some new aids. Mr. Williamson told the respondent he didn't want new aids because his were working well, but Mr. Conley suggested he bring them in anyway. Mr. Williamson went to the Respondent's office and tried the new ones the Respondent showed him but decided he did not want them because he felt they did not work properly. Nonetheless, on that same day, June 6, 1997, Mr. Williamson took them, signed a contract for the new aids, and gave the Respondent a check for $1,095. At that time, the Respondent told Mr. Williamson he could bring the aids back within 30 days if they were not acceptable. The Argosy hearing aids Mr. Williamson got from the Respondent on June 6 did not work properly, and when Mr. Williamson complained, the Respondent agreed to get him another pair. Mr. Williamson picked up this second pair of aids at the Respondent's office, Conley's Hearing Aid Center in Clearwater on June 20, 1997. At that time Mr. Williamson signed a second contract and gave the Respondent a second check for $1,095. On June 24, 1997, the Respondent had Mr. Williamson, who was still not satisfied with the performance of the Argosy aids, sign a third contract with his company under which the Respondent agreed to provide a pair of 3M Single Pro hearing aids for a total price of $3,390. The Respondent gave Mr. Williamson credit for the two prior payments of $1,095 each, and Mr. Williamson gave the Respondent an additional check for $1,200. According to Mr. Williamson, the 3M aids, which the Respondent delivered on July 8, 1997, also did not work to his satisfaction, so after just a few days, on July 10, 1997, he exchanged them for a different pair of 3M aids, Dual Pro. The sales receipt for the aids that the Respondent gave to Mr. Williamson on July 10, 1997 did not contain the buyer's signature, nor did it list the serial numbers for the hearing aids provided. Mr. Williamson thought he was getting the top of the hearing aid line but in fact, the Dual Pro aid was the middle line. According to a pamphlet he saw later, the top of the line is called Multi Pro; the middle, Dual Pro; and the bottom, Single Pro. Though a new contract was signed reflecting the Dual Pro aids, there was no additional charge. The Respondent guaranteed all hearing aids sold to Mr. Williamson to be acceptable or, if returned within 30 days of purchase, a full refund would be given. The Dual Pro aids also did not work to Mr. Williamson's satisfaction, and he returned them to the Respondent on or about August 4, 1997, an act witnessed by the Respondent's associate, Michelle Pfister. None of the hearing aid sets was kept by Mr. Williamson for more than 30 days. Mr. Williamson contends that when he returned the second pair of Argosy aids and received the 3M Single Pro aids in exchange, he asked Mr. Conley for a refund. At that time, Mr. Conley said he didn't have the money. When Mr. Conley delivered the Single Pro aids, and again when he delivered the Dual Pro aids, Mr. Williamson asked for a refund instead. Each time the Respondent claimed he didn't have the money. On October 4, 1997, Mr. Williamson wrote to Conley's Hearing Aid Center, the Respondent's business, and threatened recoupment action if the Respondent did not return the money he had paid for the aids he had returned. The hearing aids Mr. Williamson purchased were all returned to the Respondent, but no refund was ever made. According to Ms. Pfister, the returned hearing aids were subsequently sent back to the manufacturer for credit. The credit was not to her account with the manufacturer, however, and she does not know who received it. Ms. Pfister, also a licensed hearing aid specialist since 1998, bought Conley's Hearing Aid Center from the Respondent on July 27, 1997. At the time of the purchase, Ms. Pfister was not employed by the Respondent, but she had worked for the Respondent on and off since 1995. On June 26, 1997, the Respondent signed a form to sponsor Ms. Pfister as a hearing aid specialist trainee and served as her sponsor until she passed the examination and was licensed on June 23, 1998. Respondent continued to work on the premises after the sale until Ms. Pfister was licensed. When Ms. Pfister took over the business, the sales contract called for all hearing aids on site to be sold to her as inventory, She also received a statement from the Respondent that there were no unresolved issues with clients, and she did not assume any liabilities incurred by the business prior to her take over. When she assumed active management of the practice, Ms. Pfister received all of the Respondent's patient files. Katherine Sadilek is a 93-year-old retiree who purchased a pair of pre-owned 3-M Model 8200 hearing aids from the Respondent on April 8, 1997 for $1,800. The aids were paid for in full on April 9, 1997. The receipt for this sale that the Respondent gave to Ms. Sadilek did not contain the serial numbers of the aids, nor did it describe any of the terms and conditions of the sale or a guarantee. Ms. Sadilek returned the aids to the Respondent exactly 30 days after the purchase date because she was not satisfied with them. The Respondent did not refund her money but agreed to try to re-sell them for her. He offered her $100.00 for them, which she refused. The Respondent retained the aids and never returned them to Ms. Sadilek or paid her for them. A review of the documentation relating to the sales to both clients show them to be devoid of any information showing any improvement to the clients' hearing as a result of the hearing aids sold to them by the Respondent. A showing of improvement is required to form the basis for non-refund of amounts paid for hearing aids. The Respondent filed for bankruptcy in December 1998. The Respondent was licensed as a hearing aid specialist in Indiana in 1970 and in Florida in 1978. He has practiced in Florida for almost 20 years without any complaints being filed against him except those in issue here. The Respondent attributes most of his problems to his marriage dissolution in 1979, the settlement relating to which caused his financial problems and his bankruptcy. He claims he offered to make periodic payments to Mr. Williamson but Mr. Williamson refused that offer. The Respondent is 61 years old and presently receiving worker's compensation. Though he is not presently in the hearing aid business, he hopes to be in the future and needs to keep his license to earn a living.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Hearing Aid Specialists enter a final order suspending the Respondent's license for a period of six months and thereafter placing it under probation for a period of three years under such terms and conditions as may be deemed appropriate by the Board. It is also recommended that the Board impose an administrative fine of $3,000, and assess appropriate costs of investigation and prosecution. DONE AND ENTERED this 12th day of September, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2000. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Stop 39 Tallahassee, Florida 32308 Donald Conley 3377 Southwest Villa Place Palm City, Florida 34990 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues in these two consolidated cases concern whether Respondent committed several violations alleged in two separate administrative complaints and, if so, what penalties should be imposed.
Findings Of Fact At all times material to these consolidated cases, Respondent was a licensed hearing aid specialist in the State of Florida, having been issued license number AS 2169. On or about February 8, 2001, S. K. visited Respondent's business located at 3971 Jog Road, Suite 7, Greenacres, Florida, in order to buy hearing aids. On that day S. K. purchased two Audibel brand hearing aids. The invoice provided to S. K. clearly indicates that he was purchasing Audibel brand hearing aids. There is no mention of Beltone anywhere on the invoice. The two hearing aids purchased by S. K. on February 8, 2001, were delivered to S. K. on February 23, 2001. Hearing aids of the type purchased by S. K. are specially manufactured to address the specific needs of each patient. Accordingly, the hearing aids must be manufactured after the contract is entered into. At the time of the delivery of the hearing aids, S. K. was provided with an invoice that contained the name of the manufacturer, the serial numbers of the hearing aids, and the two-year warranty by Audibel. S. K. returned several times for adjustments to the new Audibel brand hearing aids. On March 20, 2001, the hearing aids were sent to the factory to change the volume control to a screw set control. The repair agreement document filled out by Respondent on March 20, 2001, contains the Beltone name and logo in one corner, but does not otherwise mention Beltone. The hearing aids were returned to S. K. on March 29, 2001. Sometime thereafter, S. K. decided to spend the summer in Connecticut. Before leaving for Connecticut, S. K. asked Respondent's secretary for the name of a Beltone dealer near his Connecticut address. The secretary provided the requested information. S. K. mistakenly thought he had purchased Beltone brand hearing aids from Respondent until June 24, 2001, when S. K. visited a Beltone dealer in Connecticut for adjustments. On or about June 24, 2001, a Beltone dealer in Connecticut wrote a letter to Respondent on S. K.'s behalf requesting a refund for S. K. Respondent did not state or imply to S. K. that Respondent was selling Beltone brand hearing aids to S. K. To the contrary, Respondent specifically told S. K. that Respondent was selling Audibel brand hearing aids to S. K.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Hearing Aid Specialists enter a Final Order concluding that all counts in both Administrative Complaints in these two consolidated cases should be dismissed because the evidence is insufficient to prove the violations alleged by clear and convincing evidence. DONE AND ENTERED this 24th day of July, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 July, 2003.
Findings Of Fact Case History This case is presented for consideration based upon the Petition for Determination of the Invalidity of Rule 100-48.27(1) and (2), Florida Administrative Code, and the October 16, 1981, memorandum. This Petition was received by the Division of Administrative Hearings and assigned for consideration to the present Hearing Officer by order of the Acting Director of the Division of Administrative Hearings, dated March 23, 1982. An amendment was allowed on April 7, 1982, which brought about the deletion of George Selis and Harold A. Peck, Jr., as party Petitioners and added the party Petitioner Irene Selis. On April 9, 1982, a Prehearing Conference was held in which oral argument was allowed on Petitioners' Motion to Compel Answers to Interrogatories and Request for Official Recognition and on Respondent's Motion to Dismiss, Motion for More Definite Statement, Motion to Strike the Amended Petition and Motion to Expedite Discovery. An order was entered on April 12, 1982, which took Official Recognition of Items 1 through 6 in the request and reserved ruling on Items 7 through 9. Respondent's Motion to Dismiss, Motion to Strike and Motion for More Definite Statement were denied and the Amended Petition, as acknowledged before, was allowed. Petitioner's Motion to Compel Answers to Interrogatories related to the first set was denied and was denied concerning the second set with the exception of number 5 which was granted. Respondent's Motion to Expedite Compliance with the Amended First Request for Production was granted. At the hearing on April 16, 1982, Item 6 of the Petitioners' Request for Official Recognition was substituted for by stipulation of counsel and Respondent's substitute item was accepted. Items 7 through 9 of the Request for Official Recognition were admitted without objection. In the course of the final hearing, Petitioner presented Jay Alan Bertoch, President of the Florida Hearing Aid Society; George C. Martinez, member of the Board of Directors of the Society and Barbara Stanley, member of the Board of Directors of the Society. Martinez and Stanley also appeared in their individual capacities as registrants who employ and supervise trainees. Benjamin T. Wrubel and Howard Griesdorf, Stage II trainees in hearing aid programs in Florida under the supervision of Irene Selis, a named Petitioner, gave testimony. Respondent presented as a witness, Ralph Gray, Program Administrator, Hearing Aid Licensing, State of Florida, Department of Health and Rehabilitative Services. Substantive Facts Petitioner, Florida Hearing Aid Society, Inc., is a nonprofit corporation duly registered in Florida, composed of approximately 270 of the 435 licensed and regulated fitters and sellers of hearing aids. In addition, there are trainees who are seeking licensure as fitters and sellers and manufacturers of hearing aids who are members of the Society. The licensees/registrants who are members of the Society are authorized to employ and supervise trainees in keeping with the provisions of Chapter 468, Florida Statutes, and Rule 10D- 48.27(1) and (.2), Florida Administrative Code. Trainees who are supervised by Society members and other registrants are required to serve a six-month apprenticeship which is divided into three stages: Stage I is a one month training period; State II is a two month training period and Stage III is a three month training period. Completion of this apprenticeship is necessary before the apprentice is eligible to become a registrant. The purposes of the Society, as set forth in its Articles of Incorporation, are as follows: To promote good will and cooperation among the hearing aid dealers in the State of Florida. To promote the welfare, in so far [sic] as hearing is concerned, of the hard-of-hearing public. To improve the professional standards of the hearing aid dealers of the State of Florida, and to inculcate among the members ethical principles that will lend dignity to the profession and insure [sic] continued public confidence in the profession. To promulgate among the general public knowledge and understanding as to the use and and value of instruments for the aid to hearing. To improve methods of dispensing, fitting and using hearing aids and to improve such aids. To foster and encourage the development of a closer relationship between the members of the general public, hearing aid dealers in the State of Florida, and the medical profession and others working and allied to the field of audiology; and especially by the coordination of professional and lay efforts, services and assistance. To foster the trade, profession and interest of all hearing aid dealers in the State of Florida. To collect and disseminate information of value to members and to the general public. To appear for and on behalf of the members before legislative committees, government bureaus, and other bodies with regard to matters effecting [sic] the heading aid dealers of the State of Florida. To conduct these activities and achieve these objectives without pecuniary profit. Do everything and anything reasonably necessary, suitable, proper, convenient or incidental to the aforesaid purposes or which properly may be done by a corporation not for profit organized for such purposes, under the laws of the State of Florida, and to possess all proper powers, rights and privileges permitted such a corporation not for profit by such law. The Florida Hearing Aid Society in effectuating its purposes participates in legislative activities and interacts with the Respondent with regard to rule making and other regulatory matters. In addition, the Florida Hearing Aid Society has a member who serves on the Hearing Aid Advisory Council of the Respondent, which Council is created by Section 468.1235, Florida Statutes. The Florida Hearing Aid Society conducts educational programs for its members and the Florida Society is a member of the National Hearing Aid Society, its counter part at a national level. The Florida Hearing Aid Society is the only Florida association of general membership representing registrants, trainees and others affiliated with the matters of fitting and selling hearing aids. Jay Alan Bertoch is the current president of the Florida Hearing Aid Society. George C. Martinez and Irene Selis are members of the Board of Directors of that Society. Members of the Society, at all times pertinent, have hired trainees who have undergone or are undergoing apprenticeships in keeping with Rule 10D- 48.27, Florida Administrative Code. Bertoch, Barbara Stanley and Martinez are Society members who are involved in that training process. Those individuals have indicated a reluctance to hire trainees in the future, due to the requirements of Rule 10D-48.27(1) and (2), Florida Administrative Code, which requires immediate supervision of Stage I and II trainees. The aforementioned individuals have also been influenced in their opinion, based upon the October 16, 1981, memorandum from Ralph Gray, Administrative Official with the Respondent, which memorandum is at issue through this rules challenge. This memorandum has contributed to the reluctance on the part of the registrants to utilize trainees. The Florida Hearing Aid Society voted through its Board to bring the rules challenge. The October 16, 1981, memorandum was directed to all licensed registrants in Florida who fit and sell hearing aids. A copy of the full text of that memorandum may be found as Petitioner's Exhibit No. 2, admitted into evidence. The memorandum speaks in terms of an interpretation of Subsection 468.126(2)(a) and (b), Florida Statutes, Part II, and Rule 100-48.27(1) and (2), Florida Administrative Code, and was authored by Ralph Gray, the Program Administrator for the Hearing Aid Licensure Program. Gray's duties, among other matters, include the investigation and decision to prosecute those registrants and trainees who would violate the terms and conditions of the statutes and rules pertaining to the fitting and selling of hearing aids. This so-called interpretation was made on the basis of inquiries that had been made of Respondent concerning testing clients and selling of hearing aids to those clients by Stage I and II trainees, without being in the same physical location as the sponsor/registrant. This refers to the sponsor of the trainee. Barbara Stanley's testimony identified the fact that when she, as registrant, accompanied her Stage I or II trainee in activities outside the office, as opposed to letting the trainee operate alone outside the office, she would lose income opportunities. Stanley and Martinez, in discussing the specific question of hiring trainees in the future, established that they would be bothered by that idea in view of the fact of cost to them as registrants and the financial burden that is placed on trainees. Typically, the trainees are salaried during their apprenticeship or work on commission during that time. The actual training afforded to the Stage I and II participant is not pursuant to a uniform course established by Respondent. The instruction provided by the sponsor/registrant is a matter of individual choice by that sponsor; however, reading and home study courses in the hearing aid fitting and selling field are recommended, together with some courses which are prepared by hearing aid manufacturers. Registrants Bertoch, Stanley, Martinez and Selis have provided instruction to their trainees in keeping with Respondent's guidelines. Benjamin T. Wrubel and Howard Greisdorf, Stage II trainees employed by Irene Selis, testified in the course of the hearing and indicated that in their circumstances, there were no differences in their activities as Stage I and II trainees on the question of their employment and supervision by their sponsor. These two individuals work on a commission basis and indicated that their inability to operate independent of their sponsor in Stage I and II has created an economic imposition for them.
The Issue May a person whose license has been revoked under the provisions of Chapter 468, Florida Statutes, be issued a trainee temporary certificate of registration-by the Department?
Findings Of Fact The Petitioner contends that he is eligible to be issued a trainee temporary certificate of registration to engage in the fitting or selling of hearing aids inasmuch as he is of good moral character and is over the age of twenty-one (21). The Respondent contends that the Petitioner is not eligible to be registered inasmuch as he had his certificate of registration revoked in 1971 and there are no provisions in the statutes for reinstatement once a license is revoked. Petitioner submitted his application for a trainee temporary certificate of registration in March of 1976. The application was returned in April of 1976 for the stated reason that "Since Mr. Lindsay's license was revoked by order of the Division of Health on February 12, 1971, and all licenses to hearing aid dealers are under the provisions of Chapter 468, Florida Statutes, I know of no provisions under these statutes to provide for a reinstatement of a hearing aid dealer's license after revocation. It appears that the hearing aid law statute is silent on this matter, therefore without specific authority to reconsider this application, I am returning to you the check you enclosed, being Check 6483 in the amount of $25.00 drawn on the Florida Bank at Fort Lauderdale, and the original of the application which was enclosed in your letter of March 26, 1976 which was received in this office on March 29." The Certificate as a Fitter and Seller of Hearing Aids Registration No. 165-06-68 granted Franklin J. Lindsay was revoked February 12, 1971, for the reason that Mr. Lindsay was the owner and proprietor of the Professional Hearing Aid Service and was an employing principal of one Mr. John E. Buehler who was found guilty of violating various provisions of Chapter 468, F.S., including the selling of a hearing aid to a customer as new when in fact the hearing aid was secondhand or rebuilt. Mr. Buehler's license was suspended for one year and Mr. Lindsay's license was revoked. The Petitioner has established by witnesses that he is of good moral character and has been rehabilitated and that he comes within the qualification of applicants as required for a trainee under Section 468.126(3)(a).
Recommendation Accept the application together with the required fee of $25 from the Petitioner and allow him to pursue the trainee program as provided in Section 468.126(3)(a). Date October 25, 1976 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. Hodges, Esquire Post Office Box 210 Jacksonville, Florida 32201 John V. Russell, Esquire Suite 205 2 Commercial Boulevard Lauderdale-by-the-Sea, Florida 33308
