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 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
Findings Of Fact Petitioner is a non-profit corporation registered in Florida. It is a professional association whose membership constitutes a majority of licensed Florida hearing aid dispensers. Respondent regulates the dispensing of hearing aids (and thus Petitioner's members) pursuant to Chapter 484, Part II, F.S. Under Section 484.044, F.S., Respondent is required to establish an apprenticeship program by rule. Rule 21JJ-8.01, F.A.C., established such a program. Subsection (3) of this rule now provides: (3) Direct Supervision: A relationship in which the sponsor is responsible for all work being done and gives final approval to work performed by the trainee. The proposed amendment, which is herein challenged, would add the following language to the above provision: The sponsor or designee must be physically present at the time a hearing aid is delivered to the client. Rule 21JJ-8.03, F.A.C., divides the six month training program into Stages I and II, each of three month's duration. The functions of dispensing hearing aids and counseling clients may be performed only by Stage II (advanced) trainees. Respondent considers the installation and delivery of the hearing aid to be the most critical step in the process of hearing aid dispensing, and believes it is necessary for the sponsor or another licensed individual to be present. Petitioner argues that this is unnecessary if the apprentice has been properly trained, and that the decision of the sponsor to be present or elsewhere should be within the sponsor's discretion. Both parties called duly qualified expert witnesses who are familiar with the apprenticeship program. All witnesses are currently licensed hearing aid specialists. Petitioner's three witnesses are present or former presidents of its society. Respondent's two witnesses are current members of its beard. Petitioner points out that under the present rule, even with the proposed amendment, a trainee can interview, test, take ear mold impressions, sell and discuss financing without the sponsor being physically present. Petitioner argues that such steps are as critical as final delivery, and that mandatory sponsor presence at the last stage is not required to protect the public. Further, Petitioner claims that sponsor presence may destroy the confidence of the client who perceives that his fitting must be approved by a third party. Finally, Petitioner contends that the requirement for sponsor presence will prevent him from conducting essential business elsewhere to his economic detriment. Respondent established that delivery is the last scheduled contact with the client, and is therefore more critical than earlier steps such as testing and taking impressions since any mistake or omission must be detected and corrected at this point. Respondent also established that an improperly fitted hearing aid can cause client dissatisfaction or further damage to the client's hearing. Respondent noted that 20 percent to 40 percent of applicants fail the hearing aid specialist license examination. Thus, Stage II trainees cannot be considered qualified and require close supervision. Additionally, Respondent correctly points out that clients who are assigned to trainees should be aware of that fact and therefore should not be surprised by the presence of the sponsor during their fitting, or at any other stage in this process. Finally, the sponsor's presence at the fitting will permit him to observe the trainee's work directly and thereby facilitate instruction. No study was conducted to determine whether or not the public is being injured by improperly supervised trainees installing hearing aids. Neither has Respondent conducted a detailed economic impact study. The subject of direct supervision and the proposed rule amendment were, however, discussed at Respondent's April 28, 1984, board meeting. Petitioner's members who were present raised objections at that time and pointed out the possible financial detriment of requiring the sponsors or licensed dispensers to be physically present. Petitioner's assertions of adverse economic impact were not supported by any survey, study or other evidence of a substantial nature. Rather, Petitioner established only that scheduling inconvenience (rather than direct economic loss) could result from adoption of the proposed rule amendment. The requirement for a sponsor to be physically present when the trainee is fitting a client would indeed prevent him from working elsewhere at that precise time. However, it does not follow that a business or financial loss would result from this inconvenience. Finally, it must be recognized that the apprenticeship program is voluntary and participation by licensed hearing aid dispensers is not required. In fact, two of Petitioner's three witnesses do not currently participate in this program.
The Issue The issue is whether Respondent lawfully denied Petitioner's application to sit for the September 1997 hearing aid specialists' examination.
Findings Of Fact By Application dated October 31, 1996, Petitioner requested a license as a hearing aid specialist. The 1996 application answers no to questions asking if Petitioner ever had a hearing-aid "license" disciplined or application denied by another state. The application leaves blank a question asking for the identification of the states in which the applicant is or has been "licensed" to dispense hearing aids. Based on the information contained in the 1996 application, Respondent approved the application, on November 8, 1996, so that Petitioner could take the laws and rules examination on January 10, 1997. Due to past experience, this was the only part of the examination that he was required to take in order to obtain a Florida license. Subsequently, Respondent learned that Illinois had revoked a hearing aid specialist certificate held by Petitioner. Respondent's board members discussed this issue with Petitioner at the Board Meeting of January 31, 1997. After a full discussion of he facts, the Respondent's board members decided not to deny Petitioner's 1996 application, but to issue a probationary license, if he passed the laws and rules examination. The Board's favorable decision was made in the presence of Petitioner and confirmed by letter to him dated March 12, 1997. The letter states in part: The Board met on January 31, 1997 and re- considered your application for examination and licensure as a hearing aid specialist. After discussion the Board voted to allow you to take the examination and gave approval for licensure pending a passing score on the examination. They also as a condition for licensure voted for one (1) year of probation once you become licensed and for you to [in]cur any cost involved in this issue. Although unknown by all parties at the January 31 Board Meeting, Petitioner had failed the January 10 examination, as he was informed by letter dated February 17, 1997. By Application dated June 10, 1997, Petitioner again requested a license as a hearing aid specialist. This 1997 application is the subject of the present case. The 1997 application states that Illinois had revoked his license to dispense hearing aids and, rather than providing the requested details, states, "in file." The 1997 application adds no additional information in response to the question asking whether other states have disciplined Petitioner's licenses or denied his applications to dispense hearing aids. However, by letter dated February 20, 1997, Colorado had denied Petitioner's application for a "registration" to sell hearing aids, and Petitioner had retained an attorney to contest that decision. Petitioner claims that a material distinction exists between licenses, on the one hand, and registrations or certificates, on the other hand. His contention is that Respondent's application form inquires only about licenses and not registrations or certificates. However, Petitioner understood from his past dealings with the Board that they viewed his history in Illinois as material, and the Illinois final and recommended orders revoke Petitioner's "certification," not his "license." By Order filed September 24, 1997, Respondent denied the 1997 application because of the discipline in another state, in violation of Section 484.056(1)(c), Florida Statutes, and misrepresentations in the application, in violation of Section 484.056(1)(b), Florida Statutes. By Amended Order filed August 4, 1998, Respondent added two reasons for denial. First, Petitioner was convicted of a crime related to the practice of dispensing hearing aids or the ability to practice dispensing hearing aids, in violation of Section 484.056(1)(d), Florida Statutes. Second, Petitioner did not meet the requirement of good moral character, in violation of Section 484.045(1)(b), Florida Statutes. Petitioner has pleaded no contest three times to an attempt to purchase a controlled substance or possession of a controlled substance--twice in 1995 and once in 1998. Each time, the court withheld adjudication and sentenced him to probation. In December 1997, Petitioner was arrested for resisting arrest, obstructing an officer without violence, and fleeing and attempting to elude the police. He pleaded no contest and the court withheld adjudication and fined him $250.
Recommendation It is RECOMMENDED that the Board of Hearing Aid Specialists deny Petitioner's application for licensure. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 2nd day of April, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Joe Baker, Executive Director Board of Hearing Aid Specialists Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 E. Raymond Shope, Attorney 1404 Goodlette Road, North Naples, Florida 34102 Donna Erlich Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
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 At all times relevant hereto Respondent was licensed as a Hearing Aid Specialist having been issued license number 0000804. During the period 1985-1986 the license of T. Ray Black was displayed on the wall at East Pasco Hearing Aid Center in Zephyrhills, Florida, but Respondent never worked at this address. East Pasco Hearing Aid Center is owned and operated by Arvina Hines whose license as a Hearing Aid Specialist was revoked circa 1981. Ms. Hines hired people to work at East Pasco Hearing Aid Center and trained them in selling and fitting hearing aids. Pamela Strife worked at the East Pasco Hearing Aid Center from 1981 until 1986 and never met Respondent nor did she ever see him at the center. She did see Raymond J. Black and Cynthia Sue Bennett, the father and sister of Respondent, working at the center. Raymond J. Black's license was revoked January 26, 1981. Arvina Hines submitted an application for training program for Hearing Aid Specialist on April 21, 1986. (Exhibit 5), in which Respondent signed the sponsor affidavit as the sponsor of Ms. Hines. He did not provide any supervision to Hines. Sheila Louise Thomas submitted as application February 25, 1985, for a training program as a Hearing Aid Specialist (Exhibit 4), on which Respondent signed as sponsor. Ms. Thomas was trained by Ms. Hines. Thomas does not recall completing the application for training, but identified her signature thereon. She has never met Respondent. Peggy Goodman worked at East Pasco Hearing Aid Center for three weeks in 1985. During the time she was employed she never saw Respondent at the center.
The Issue The factual issues presented for determination are as follow: Are the allegations of the Administrative Complaint true? Did Respondent have the required scienter with respect to the violations alleged in the Administrative Complaint? Various legal and procedural issues were raised and previously disposed of by written order prior to the final hearing. This order will not contain a recital of those interlocutory actions. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact At all times relevant to this proceeding, the Respondent was employed by and president of Gainesville Hearing Aid Company, and registered by the Department of Health and Rehabilitative Services for the fitting and sale of hearing aids. On or about September 13, 1979, Respondent sold to Lawrence J. Murphy a certain Dahlberg hearing aid, serial #VEI7AA, while representing to Mr. Murphy that the hearing aid was new, when in fact the hearing aid had been previously owned by Peter Fancher. The written contract of sale for this hearing aid did not indicate whether the hearing aid was new or used. The Dahlberg hearing aid sold to Murphy had been sold to P. D. Fancher on April 25, 1977, by Respondent. The hearing aid was returned to Gainesville Hearing Aid Company on May 17, 1977, by Mr. Fancher for full refund. The inventory records of Gainesville Hearing Aid Company show the sale and the return for refund. This hearing aid was used. On or about September 12, 1979, Respondent sold to Oran Ledbetter a certain Audiotone hearing aid, serial #28S-7963102, while representing to Mr. Ledbetter that the hearing aid was new and indicating on the written contract of sale that it was new, when in fact that same hearing aid had previously been owned by D. L. Bentley. The Audiotone hearing aid sold to Ledbetter had been sold to D. L. Bentley on March 27, 1979, by Gainesville Hearing Aid Company together with another hearing aid not material to these proceedings. These hearing aids were delivered to Mr. Bentley on April 16, 1979. The subject hearing aid was returned to Gainesville Hearing Aid Company by Bentley some four to five months later and was returned to the inventory of the company as a used hearing aid. This hearing aid was used. On or about February 2, 1978, Respondent sold to Virginia Collette a Dahlberg hearing aid, serial #TW22AH7, representing to Ms. Collette and showing on the contract of sale for the hearing aid that it was new, when in fact the hearing aid had been previously owned by Joseph E. McIntire. This hearing aid was used. The Dahlberg hearing aid sold to Ms. Collette had been sold to J. C. McIntire by Gainesville Hearing Aid Company on October 14, 1977, on an installment contract calling for $95 down and monthly payments of $43 per month for 24 months. Mr. McIntire fell behind in his monthly payments and subsequently died. An unidentified member of the family returned the hearing aid to Gainesville Hearing Aid Company, and the company subsequently collected some $989 from McIntire's estate. While the inventory records reflected that the hearing aids above were used, there is no evidence that Respondent was aware of this information in the cases of Murphy and Ledbetter. At the time Respondent left the offices of Gainesville Hearing Aid Company to make the sale of the Dahlberg hearing aid to Ms. Collette, he requested his employee, William Glance, to bring him a hearing aid from inventory. Mr. Glance brought Respondent the Dahlberg hearing aid and at that time advised him it was a used hearing aid. Respondent permitted his daughter, Angie Gardner, who did not hold a certificate of registration or a learner's permit, to conduct audiograms, to fit and sell hearing aids, and to conduct hearing aid examinations at various times during 1979. This included in particular November 2, 1979, when Angie Gardner was permitted to run a hearing test on a Mrs. Jones, who objected to the performance of the examination by Respondent's daughter. Respondent subsequently sought the advice of Ralph Gray as to the legality of permitting Angie Gardner to conduct these tests and, on being advised that it was contrary to law, discontinued this practice.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Respondent, William Hunter Gardner, be fined administratively $500 for each violation of the statute for the three violations of Section 468.130(1) and thereby Section 468.129(3), Florida Statutes, and have his license suspended for a period of two years for the violation of Section 468.130(2), Florida Statutes, the enforcement of the suspension to be suspended upon Respondent's demonstrated good conduct and adherence to the statutes, rules and regulations during that period. DONE and ORDERED this 28th day of September, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1982. COPIES FURNISHED: Joseph E. Hodges, Esquire Department of HRS 2002 North West 13th Street Oak Park Executive Square Gainesville, Florida 32601 George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 David H. Pingree, Secretary Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Raymond J. Black is registered to fit and sell hearing aids in Florida and at all times here relevant he was so registered. He has been a registrant for several years, has been a dealer since 1976 and operates two offices, one in Tampa, Florida, and the second in Zephyrhills, Florida. Mr. Black spends most of his time in the Tampa office. Arvena Hines is the office manager in the Zephyrhills office and has managed that office for Respondent since about 1973. She has qualified for, taken and failed the examination for registration as a hearing aid specialist in Florida three times. Following her second failure her application for a third examination was initially disapproved, but after judicial proceedings were instituted she was authorized to retake the examination after again completing the trainee program. As office manager Ms. Hines was the supervisor of all other employees at the Zephyrhills office including hearing aid specialists and trainees. She received thirty-five percent of the profits on all hearing aids and hearing aid supplies sold in the Zephyrhills office. Other employees authorized to sell hearing aids received approximately fifteen to twenty-five percent commission on the sale of hearing aids depending on where the sale was made. In 1977 Arvena Hines pleaded nolo contendere in the County Court in and for Pasco County to the charge of fitting and selling a hearing aid without being licensed or registered to do so. Adjudication of guilt was withheld and she was placed on probation for six months. (Exhibit 16) In 1977 Respondent Black pleaded nolo contendere in the County Court in and for Pasco County to a charge of employing Arvena lines, an unregistered person, for the purpose of fitting and selling hearing aids. Adjudication of guilt was withheld and Respondent was placed on probation for six months. (Exhibit 14) In 1977 Respondent's registration was suspended for ninety days by Petitioner upon a stipulation of settlement in the revocation proceedings that had been referred to the Division of Administrative Hearings. In August 1979 Edward J. Greenough went into Respondent's Zephyrhills office accompanied by his wife for the purpose of having his hearing checked. He was waited on by Frances Wilkes who at the time was a trainee, Class III. Ms. Wilkes tested Greenough's hearing and then said Ms. Hines had to check the results because "she (Wilkes) didn't have her license. Although Ms. Wilkes testified that Ms. Hines conducted no tests or performed any services connected with selling or fitting a hearing aid on Greenough, the testimony of Mrs. Greenough that Ms. Hines repeated the testing procedure that had been done lay Ms. Wilkes, prepared the ear molds and subsequently fitted the hearing aid on Mr. Greenough, is the more credible. In October 1978 Margaret Lamb, an octogenarian, visited the Zephyrhills hearing aid office to see why her hearing aid was not "giving me success." Ms. Hines took an ear mold for her but a man conducted the audio test. Although Ms. Lamb exhibited some of the frailties of age her recollection of events was clear including the "terrific noise" that almost took her head off during the hearing test. That error left her somewhat confused and anxious to get out of the office. Robert Ayer visited the Zephyrhills hearing aid office of Respondent in December 1978 to have checked a hearing aid he had dropped. Ms. Hines waited on him, suggested he get a new "all in the ear" hearing aid, gave him a hearing test, and made an ear mold. When asked for a down payment on the hearing aid Ms. Hines said he needed, Ayer stated he had not expected to purchase a hearing aid that day and was unprepared to make a deposit. When Ayer returned to Zephyrhills after the new year he went to the hearing aid office, was told his hearing aid was in, and paid Ms. Hines $250. Exhibit 10 is the receipt for this payment. Jim Spear, a licensed hearing aid specialist who was working for Respondent at this time signed the audiogram (Exhibit 19) and testified that he conducted the hearing aid test done on Ayer December 11, 1978. Spear also denied ever seeing Hines sell or fit hearing aids or do any work in connection therewith. For several reasons Mr. Ayer's testimony is more credible than the conflicting testimony. Apart from the demeanor of the witnesses and personal reasons of the registrants for denying unlawful acts were committed by Ms. Hines in their presence and to their knowledge, Mr. Ayer is the precise and meticulous type of individual who keeps a diary of his daily activities, even in retirement. These diaries were in his possession at the hearing, and were shown to and perused by Respondent's attorney at the latter's request. No conflicts or omissions between the diary entries and Ayer's testimony were presented. Mrs. Maidee Carr's deposition was admitted as Exhibit 15. Mrs. Carr is a nonagenarian who was sold a hearing aid by Ms. Hines around December 1978 or January 1979. The audiogram was taken by a man (Jim Spear signed Exhibit 17, the audiogram taken on Mrs. Carr January 22, 1979), but Ms. Hines took the ear mold and Mrs. Carr gave Ms. Hines a check in full payment when the hearing aid was delivered to Mrs. Carr's home by Ms. Hines who then put the hearing aid in Mrs. Carr's ear. In January 1980 Douglas Yacinich, who had worked as a hearing aid salesman in Iowa for several years, visited Respondent with the view of employment when he moved to Florida. Respondent sponsored Yacinich's application for Trainee Temporary Certificate of Registration which was submitted January 28, 1980. Yacinich then returned to Iowa to settle his affairs. This application to enter the trainee program was approved in a letter dated March 26, 1980 (Exhibit 6). The application was approved effective March 24, 1980 (Exhibit 5), and Yacinich was issued a Certificate of Registration (Exhibit 23). At this time Yacinich was in Iowa and, according to his testimony, he moved to Florida around May 1980. Respondent submitted Exhibit 7 notifying Petitioner that Yacinich entered into the training program March 24, 1980, completed Stage I on April 24, 1980, and completed Stage II on June 24, 1980. Yacinich left Respondent's employ "around June or July" 1980 and has made no further effort to become registered as a hearing aid specialist. Yacinich set up an appointment with Mr. Chastain, a hearing aid user, and on May 9, 1980, did an audiogram on him (Exhibit 21). He also sold Chastain a used hearing aid the same day but it was not delivered until later. Mrs. Chastain gave Yacinich a check for part payment of the hearing aid on May 9, 1980, when the invoice for the hearing aid was prepared (Exhibit 12). This invoice does not contain the serial number of the hearing aid subsequently delivered to Chastain. When the final fitting of his hearing aid was made on June 2, 1980, Respondent accompanied Yacinich to Chastain's home and was present when the hearing aid was fitted by Yacinich. The testimony is conflicting whether Respondent was in the yard or in the room with Yacinich when the hearing aid was placed in Chastain's ear; However, it is clear that when Yacinich delivered the hearing aid to Chastain, Respondent was present. Respondent attributed the preferring of the charges against him, which are contained in the Administrative Complaint and Amended Administrative Complaint, to the animosity of Ralph Gray, the Administrator of the Hearing Aid Licensing Program in HRS, and to his belief that Gray has a vendetta against him. No evidence to support these beliefs was submitted other than Respondent's opinion. Respondent denied that he was aware that Ms. Hines ever took ear impressions in the Zephyrhills office on any of the complaining witnesses or that she ever performed any of those functions in dispensing hearing aids which require certification. Respondent acknowledged that Ms. Hines is manager of the Zephyrhills office and that she receives thirty-five percent of the funds coming into the office, and that salesmen are paid a commission of about twenty-five percent on the hearing aids they sell depending upon where the hearing aid is sold. Ms. Wilkes who does little work outside the office received a commission of around fifteen percent for those hearing aids she sold. Respondent testified that his belief that no audiograms were taken nor hearing aids sold by Ms. Hines was based upon the fact that the audiograms were signed by someone other than Ms. Hines and the word of these people that they conducted the tests. No evidence was presented to show the commissions paid to the various salesmen for the hearing aids dispensed to those witnesses who testified in these proceedings. Respondent allowed Yacinich to work unsupervised in the selling and dispensing of hearing aids before he had actually worked fur Respondent for thirty days. This determination is reached from the evidence that Yacinich was probably well qualified by his previous experience in Iowa, by Respondent's testimony that he considered Yacinich to have been in his employ since January 28, 1980, when Yacinich's application was submitted, and by Yacinich's testimony that he did not actually relocate to Florida until May or June.
