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 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 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 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.
The Issue The issue presented in this case is whether Respondent, Gary Segretario, committed the violations alleged in the Amended Administrative Complaint, and, if so, what penalty should be imposed by Petitioner.
Findings Of Fact Respondent, Gary Segretario, is and at all times material hereto was a licensed hearing aid specialist in the state of Florida, holding license number AS2321. Petitioner, Department of Health, Board of Hearing Aid Specialists, is the state agency charged with the authority and duty to regulate the practice of hearing aid dispensing within the state of Florida. In June 1997, purportedly in response to increasing misconduct by various hearing aid specialists, the Board of Hearing Aid Specialists issued an emergency rule amending Rule 61G-9-6.010, Florida Administrative Code, and changing the justification for the purchaser's refund from a measured improvement in the purchaser's hearing to failure of the purchaser to obtain satisfaction from the hearing aid. In 1999, the Florida Legislature created Section 484.0512(3), Florida Statutes, and added a 30-day refund provision into the Statute when the purchaser has a valid reason as defined by the Board's Rule. On April 24, 1998, in response to a telephone solicitation, patient D.V. presented to Hearing Care 2000 in Daytona, Florida, for the purpose of a hearing examination. On that date, patient D.V. was tested by Respondent and his assistant Eric Collins, a licensed hearing aid specialist trainee. Following the testing, Respondent recommended and patient D.V. agreed to purchase a hearing aid for his left ear. There is insufficient evidence to conclude that Respondent advised patient D.V. that he would lose his hearing if he did not purchase a hearing aid. The contract provided for a 30-day refund of the hearing aid purchase. On or about April 29, 1998, Respondent received the hearing aid from the manufacturer and contacted patient D.V. An appointment for delivery of the hearing aid was scheduled for May 1, 1998. After patient D.V. missed the appointment, another appointment was scheduled for May 15, 1998. On May 15, 1998, Respondent presented the hearing aid to D.V. At the time of delivery, patient D.V. complained of feedback and Respondent immediately placed a vent plug in the hearing aid. Patient D.V. departed Respondent's office with the hearing aid in his possession on May 15, 1998. On or about May 19, 1998, patient D.V. returned to Respondent's office complaining of feedback. To cure the problem, Respondent forwarded the hearing aid to the manufacturer for a soft coat finish. Three days later on May 22, 1998, patient D.V. returned for the hearing aid, was again tested, scored 100 percent without feedback, and took possession of the aid. To ensure satisfaction, a follow-up appointment was scheduled for May 29, 1998; however, patient D.V. failed to appear. On June 29, 1998, patient D.V. entered Respondent's office and demanded a refund. Upon being denied, patient D.V. physically attacked trainee Collins, threw the hearing aid at the receptionist, and eventually departed. The evidence deduced at Hearing indicates that patient D.V. physically maintained possession of the hearing aid from May 15, 1998, through May 19, 1998, and May 22, 1998, through June 29, 1998, a total of 43 days, before requesting a refund. The following day, on June 30, 1998, Respondent's wife, Barbara Segretario, advised patient D.V. via letter that he was no longer permitted within the Daytona office. Shortly thereafter, patient D.V. contacted his credit card company and disputed the hearing aid charge apparently alleging that he never signed the credit card slip. Cathy Gionfriddo, an employee at Hearing Care 2000, forwarded a copy of patient D.V.'s signed credit card slip and signed contract to the credit card company for signature comparison. Following the lengthy dispute process, the credit card company ruled in favor of Hearing Care 2000. Thereafter, patient D.V. filed a small claims action against Respondent, wherein the small claims judge ruled in favor of patient D.V. and awarded him a $450.00 judgment. Patient D.V. received the money in April 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Hearing Aid Specialist issue a Final Order dismissing the Administrative Complaint filed against Respondent. DONE AND ENTERED this 11th day of September, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2002. COPIES FURNISHED: Gary L. Asbell, Esquire Post Office Box 326 Lloyd, Florida 32337 E. Raymond Shope, II, Esquire 1404 Goodlette Road, North Naples, Florida 34102 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Reginald Dixon, Esquire Bureau of Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701
The Issue The 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
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 Whether Respondent violated Subsections 484.051(2), 484.056(1)(g), 484.056(1)(h), 484.056(1)(k), 484.053(1)(f), 484.053(3), 455.624(1)(j), and 484.0512(l), Florida Statutes,1 and Rule 64B6-6.010, Florida Administrative Code, and, if so, what discipline should be imposed.
Findings Of Fact Stephens is and has been, at least since March 1999, a licensed Hearing Aid Specialist. His license number is AS 0002599. On April 26, 1999, O.G. purchased a pair of hearing aids from Stephens. The total price of the hearing aids was $3200. O.G. paid $1600 using his Visa credit card on April 26. The hearing aids were delivered by Stephens to O.G. on May 14, 1999, at which time O.G. paid the remaining $1600 by Visa credit card. O.G. was not happy with the hearing aids and returned to Stephens' place of business, Hearing World, sometime in June 1999. Stephens convinced O.G. to try a different pair of hearing aids instead of getting a refund. O.G. agreed, and Stephens ordered a new pair of hearing aids, which Stephens delivered on June 30, 1999. O.G. was not happy with the second pair of hearing aids and again returned them to Hearing World. Stephens persuaded O.G. to try another set of hearings aids. By letter dated July 26, 1999, Stephens advised as follows: This letter is to confirm that: When you receive your remade instruments on or before August 15, 1999, you will have 30 days to try them without penalty. Should you decide that you wish to return them for a refund you may do so and receive a full refund of your investment. Further, should you need an extension of the trial it will be granted based on your request before the original trial expires. O.G. agreed to Stephens' proposition. The third set was delivered on August 14, 1999. The third set of hearing aids was also unacceptable to O.G. Stephens ordered a fourth pair and delivered them to O.G. on October 1, 1999. O.G. was not satisfied with the fourth pair and asked for a refund. On November 19, 1999, O.G. received a letter from Stephens stating: We are in receipt of your request for cancellation. I do accept this letter as your notice. We are very sorry that we were not able to satisfy your hearing needs. We are having a very difficult time financially at this time and will not be able to refund your money as timely as you would like. However, we do owe you a refund and will take care of it as soon as we are financially able to do so. The refund time is running about 8 weeks. O.G. did receive $300 from Stephens as part of the refund. Stephens made no further payments to O.G. On February 15, 1999, Joseph Wright (Wright) applied to the Department for admittance to the hearing aid specialist training program and was approved for the training program period March 12, 1999, through September 11, 1999. The notice from the Department to Wright advising him that he was approved for the training program stated: "A trainee may continue to function as a trainee until receipt of the examination grade results." Stephens was Wright's sponsor. As part of the training program, Stephens taught Wright, using text books and hands-on training. Stephens showed Wright how to make molds and do fittings. As Wright progressed, he was allowed to make the molds and do fittings by himself. Wright would show the molds to Stephens after Wright completed them. If Wright had trouble fitting a client, Stephens would come and assist Wright. Generally Stephens was in the office when Wright did fittings. After completing the six-month training program, Wright took the Hearing Aid Specialist Examination in September 1999. Wright did not pass the examination. On October 29, 1999, the Department mailed Wright the notice that he had not passed the examination. The evidence did not establish when Wright received the notification that he had failed the examination. Nor did the evidence establish when Stephens became aware that Wright had failed the examination. At least by April 14, 2000, Wright was aware that he had failed the examination because on that date he again applied with the Department to enter the hearing aid specialist program under Stephens' sponsorship. Stephens was also aware by April 14, 2000, that Wright had failed the examination because Wright's application included a signed statement from Stephens dated April 14, 2000, indicating that he would be Wright's sponsor. The Department admitted Wright to the training program for the period April 22, 2000, through October 21, 2000. The dates for his examination were January 19 and 20, 2001. In February 2000, J.F. received an advertisement from Hearing World, advertising free hearing examinations. On March 2, 2000, J.F. went to Hearing World for the free examination. He did not see Stephens and was helped by Wright. J.F. signed a written purchase agreement to purchase two hearing aids from Hearing World for $5,700. Wright performed the examination, made the molds for the hearing aids, and signed the purchase agreement on behalf of Hearing World. J.F. gave Wright a check for $5,700 on March 2, 2000, as payment in full for the hearing aids. On March 23, 2000, Wright delivered the hearing aids to J.F. and signed the purchase agreement as having delivered the hearing aids. Stephens was not physically present in the room with Wright and J.F. at the time the delivery was made. The purchase agreement did not contain the signature and license number of Stephens. The written purchase agreement provided: The purchaser agrees to wear the hearing aid(s) for a period of 30 days from the date of delivery. In the event that the purchaser decides to return the hearing aid(s), they must be returned to the specialist of record in new working order, on or before the 30th day of possession. Upon receipt of the hearing aid(s) Hearing World will refund the purchase price, less mold and dispensing fees (mold fee $150 for one aid, $200 for a set. In addition, a 5% of the purchase price-dispensing fee may be retained). J.F. tried wearing the hearing aids but experienced vertigo when using them. He talked to Wright on April 3 and explained the problem he was having with the hearing aids and indicating he wanted to return the hearing aids for a refund. Wright explained to J.F. that only Stephens had the authority to make a refund. J.F. met with Stephens on April 12, 2000. Stephens explained that he had a cash flow problem and could not make a full refund at that time. It was agreed that J.F. would return one of the hearing aids and try to wear the other one. On April 14, 2000, J.F. returned to Hearing World and explained to Stephens that the use of one hearing aid did not solve the vertigo problem that he was experiencing. J.F. returned the other hearing aid and asked for a complete refund. Stephens told J.F. that he did not have the funds to make a full refund and gave J.F. $100. Stephens made no further payments to J.F. for the refund on the hearing aids. Stephens filed a petition for bankruptcy on September 27, 2000. A Discharge of Debtor was entered on January 8, 2001, in In Re: Stephens, Donald Lane, Case No. 00-14949-8W7, United States Bankruptcy Court Middle District of Florida, Tampa Division. J.F. and O.G. were listed as creditors holding unsecured nonpriority claims.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: In Case No. 03-0404PL, finding that Donald Stephens violated Subsections 484.0512(1) and 484.056(1)(h), Florida Statutes, as set forth in Count I of the Administrative Complaint; Subsection 484.051(2), Florida Statutes, as set forth in Count II of the Administrative Complaint; and Subsection 484.056(1)(h), Florida Statutes, and Rule 64B6-6.010, Florida Administrative Code, as set forth in Count IV of the Administrative Complaint. In Case No. 03-0404PL, dismissing Count III of the Administrative Complaint. In Case No. 03-0404PL, issuing a reprimand and imposing administrative fines of $1,000 for the violations set forth in Count I, $500 for the violations set forth in Count II, and $500 for the violations set forth in Count IV. In Case No. 03-0405PL dismissing the Administrative Complaint. DONE AND ENTERED this 25th day of June, 2003, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2003.
