The Issue The issues in this case are whether Respondent violated Subsections 484.056(1)(g) and (h), Florida Statutes (1999), respectively, by committing fraud, deceit, negligence, incompetence, or misconduct in the dispensing of a hearing aid and by failing to provide a sales receipt and other required information; and, if so, what penalty, if any, should be imposed against Respondent's license as a hearing aid specialist. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of hearing aid specialists in Florida pursuant to Chapter 484. Respondent is licensed as a hearing aid specialist in Florida pursuant to license number AS0002712. The Administrative Complaint involves the sale and service of an original pair of hearing aids and replacement hearing aids to a single customer. The record identifies the customer as C.P. in order to preserve the customer's confidentiality. C.P. is an elderly gentleman who is hearing impaired. C.P.'s wife accompanied and assisted C.P. in most of his dealings with Respondent. On February 16, 1999, Respondent performed a free hearing test on C.P. at Elfers Optical and Hearing Company (Elfers). Elfers is located on State Road 54 in New Port Richey, Florida. C.P. had heard of Respondent from a friend and responded to a newspaper advertisement by Elfers for a free hearing test. Respondent advised C.P. that C.P. needed two hearing aids. Respondent concluded that C.P. needed a hearing aid for each ear for balance. Respondent recommended programmable hearing aids for several reasons. Respondent represented that programmable hearing aids could be programmed for hearing needs that change over time and therefore would not have to be replaced. However, programmable hearing aids are more expensive than others. C.P. stated that he wanted to think about it. C.P. left the office and subsequently made an appointment for a return visit on February 19, 1999. When C.P. returned to Elfers on February 19, 1999, Respondent was sick and not in the office. Ms. Phillys Strand (Strand), Respondent's employee, saw C.P. and his wife. C.P. stated that he had decided to purchase the programmable hearing aids recommended by Respondent. Strand fitted C.P. for two hearing aids and had C.P. execute a contract for the purchase of two Philips Encanto II programmable hearing aids (Encantos) at the total price of $3,832 (the contract). C.P. paid $3,832 on February 19, 1999. The contract states that there was a one-year warranty on the hearing aids. The one-year warranty covered replacement or repair but not a refund of the purchase price. The contract specifically states that C.P. had only 30 days from the date of delivery (the 30-day trial period) in which to obtain a refund of the purchase price. Respondent delivered the Encantos to C.P. on March 1, 1999. C.P. returned to Elfers on March 3, 1999, complaining that the hearing aids hurt his ears. Respondent ground down the hearing aids, and C.P. left Elfers with the modified hearing aids. C.P. returned to Elfers on March 10, 1999, and requested a refund from Respondent. C.P. explained that he had recently learned that he needed surgery on one of his ears to remove a cancerous legion and would be unable to use the hearing aids before the expiration of the 30-day trial period for obtaining a refund. On March 10, 1999, Respondent stated to C.P. that under Florida law C.P. had one year in which to obtain a refund. Neither Florida law nor the manufacturer provides a warranty that authorizes a refund for one year. The provisions in the contract pertaining to a refund of the purchase price merely reflect the terms of the applicable section of Florida Statutes. In relevant part, the purchase contract provides: Unless otherwise stated, the hearing aid is new and warranted for one year by dispenser . . . . The guarantee shall permit the purchaser to cancel for a valid reason within 30 days of the receipt of the hearing aid(s). A valid reason shall be defined as failure by the purchaser to achieve satisfaction from use of the hearing aid(s), so long as the hearing aid(s) is returned to the seller within the 30-day trial period in good working condition. In the event of cancellation within the 30-day trial period, [Elfers] will retain $150 plus 5% of total purchase price on monaural fitting, or $200 plus 5% of total purchase price on binaural fitting for ear molds and services provided to fit the hearing aids, pursuant to 484.0512FS. . . . On March 10, 1999, C.P. properly tendered the Encantos to Respondent in accordance with the requirements of the contract and Section 484.0512. C.P. had a valid reason, within the meaning of the contract and applicable law, for the failure to achieve satisfaction with the Encantos. C.P. properly requested a refund within the 30-day trial period that began on March 1, 1999, when Respondent delivered the Encantos to C.P. On March 10, 1999, Respondent had actual knowledge that C.P. had properly tendered the Encantos for a valid reason and properly requested a refund. Respondent had actual knowledge of the falsity of the statement that Florida law allowed C.P. one year in which to obtain a refund. Respondent had actual knowledge that neither Florida law nor any warranty amends the 30-day trial period prescribed in the contract and Section 484.0512 for obtaining a refund. In any event, Respondent had constructive knowledge that his statements to C.P. were false. The misrepresentation by Respondent on March 10, 1999, induced C.P. to retain the Encantos. The false statements by Respondent on March 10, 1999, induced C.P. to unknowingly allow the lapse of his statutory and contractual right to a refund. Respondent had actual, or constructive knowledge, of the effect of Respondent's false statement to C.P. C.P. underwent surgery on March 24, 1999, and could not wear the Encantos again until May 21, 1999. When C.P. began wearing the Encantos again on May 21, 1999, the left hearing aid hurt his ear. C.P. compared the two hearing aids and discovered that the left hearing aid was longer than the right. On May 27, 1999, C.P. and his wife returned to Respondent. Respondent made a new impression, using a substance different from that used by Strand for the initial impression, and told C.P. that Respondent would send the impression to the manufacturer for a new set of hearing aids. C.P. and his wife would be traveling in New York when Respondent received the new hearing aids, and Respondent agreed to mail the new hearing aids to C.P. in New York. C.P. received the new hearing aids while he was in New York. C.P. heard a "swishing" noise in the new hearing aids when people around him were talking. C.P. advised Respondent of the bothersome noise. Pursuant to Respondent's instructions, C.P. returned the hearing aids to Respondent. C.P. received hearing aids directly from the manufacturer on July 21, 1999, while C.P. was still in New York. The hearing aids created a pulsating sound. The volume wheel did not work, and the left hearing aid fell out of C.P.'s ear on at least one occasion. Respondent told C.P. that Respondent would have Betty Lou Gage (Gage), Respondent's assistant, locate a hearing aid specialist in New York where C.P. could take the hearing aids. On August 6, 1999, C.P. took the hearing aids to Genesee Hearing Aid in Buffalo, New York (Genesee), pursuant to Gage's instructions. Genesee advised C.P. that they did not work on Phillips programmable hearing aids and charged C.P. $15. On September 30, 1999, C.P. and his wife went to Respondent's office. C.P. complained that the hearing aids were whistling and falling out of his ears. While C.P. was in Respondent's office on September 30, 1999, C.P. requested a refund of the purchase price for a valid reason and tendered the hearing aids to Respondent in good condition. The tender and request for refund was within the one-year period previously represented by Respondent as required by Florida law. Respondent advised C.P. that the warranty was over. Respondent asked C.P. if C.P. wanted Respondent to send the hearing aids back to the manufacturer and have the manufacturer make the hearing aids automatic. C.P. agreed. On October 21, 1999, C.P. returned to Respondent's office for the new hearing aids. The toggle switch used for adjusting hearing aids was still on the outside of the hearing aids, but C.P. accepted the hearing aids anyway. Respondent advised C.P. not to wear the hearing aids while hunting. C.P. did not wear the hearing aids in November 1999 because he was hunting in New York. In December 1999, C.P. asked his wife to check the serial numbers on the hearing aids. C.P. and his wife discovered that the hearing aids were not Encantos. When C.P. and his wife returned to Florida, they went to Hearx, the provider of hearing aids under C.P.'s new insurance policy with Humana. A specialist at Hearx examined the hearing aids and confirmed that the hearing aids were not Phillips programmable hearing aids. Rather, they were half- shell conventional hearing aids with a retail value that ranged from $700 to $900. C.P. telephoned Elfers on January 19, 2000. A representative at Elfers advised C.P. that C.P. would need to speak to Respondent and that Respondent was no longer employed at that location. The representative advised C.P. to try reaching Respondent at the Holiday office. C.P. and his wife found Respondent at the Holiday office. C.P. advised Respondent that the hearing aids were not the Encantos C.P. had purchased and requested a refund. The request for refund was made within the one-year period represented by Respondent on March 10, 1999, in which C.P. could request a refund. C.P. also requested the telephone number for Phillips. Respondent told C.P. that Phillips was out of business and left the office. Jeff Ruff, another employee at the Holiday office, offered to try a new substance to put a seal around the hearing aids for a better fit. C.P. left the hearing aids with Ruff and obtained a receipt. C.P.'s wife telephoned Phillips, provided the serial numbers for the Encantos, and asked whether Respondent had returned the Encantos. The representative for Phillips stated that Respondent had returned the Encantos on October 8, 1999, and that Phillips had sent the half-shell conventional hearing aids back to Respondent. The serial numbers of the half-shell conventional hearing aids sent to Respondent matched those on the hearing aids that C.P.'s wife checked in December 1999. The market value of the half-shell conventional hearing aids is more than $2,000 less than that of the Encantos. Respondent should have refunded the difference in market value to C.P. Respondent did not refund the difference in market price to C.P. Respondent did not provide C.P. with any written documentation, including a sales receipt, for the half-shell conventional hearing aids; did not provide C.P. with a warranty for the half-shell conventional hearing aids; did not advise C.P. that Respondent had changed the hearing aids provided to C.P.; and did not advise C.P. of the difference in market value between the Encantos and half-shell conventional hearing aids. Respondent has not refunded any money to C.P. Respondent has not otherwise made restitution for the harm suffered by C.P. This is not Respondent's first offense. Petitioner has previously disciplined Respondent's license in two cases in which Respondent either allowed the 30-day trial period to lapse before taking action requested by the customer or refused to refund the entire amount of the purchase price. Petitioner imposed administrative fines in those two cases that totaled $1,000; required Respondent to pay costs of $805; and required Respondent pay a refund to the customer in the amount $544. A substantial period of time has not lapsed since Respondent's previous discipline. Petitioner entered a final order in the previous two cases on April 15, 2002.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Subsections 484.056(1)(g) and (h); revoking Respondent's license; assessing an administrative fine of $2,000 and the costs of investigation and prosecution; requiring Respondent to make restitution to C.P. in the amount of $3,832; and requiring Respondent to pay all fines, costs, and restitution within 30 days of the date of the Final Order. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 2002. COPIES FURNISHED: Kathryn E. Price, Esquire Bureau of Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Gage Davey 6521 Berea Lane New Port Richey, Florida 34653 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues for determination are whether Respondent committed the violations set forth in the administrative complaint dated May 16, 2003, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Leeds has been a licensed hearing aid specialist practicing in Coconut Creek, Florida. In 1997, Leeds, then age 77, contracted with patient M. M. to dispense and deliver patient M. M. a hearing aid. The hearing aid failed to perform in a satisfactory manner. The failure occurred because Leeds failed to discharge his professional duties in accordance with minimum performance standards for persons providing hearing aid services in Florida. In particular, Leeds failed to take an appropriate patient history; failed to conduct a physical examination which conformed to the minimum standards and procedures called for by the statutes and rules regulating persons licensed to dispense hearing aids; and failed to create and maintain an adequate patient record. By way of defense, Leeds testified that he performed certain tests which were not reflected in his patient records. This testimony was not credible. Even if Leeds had performed the tests he claimed to have performed, his failure to document them is, standing alone, a serious departure from minimal professional standards. Respondent has been reprimanded by the Board of Hearing Aid Specialists on three prior occasions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be entered revoking Respondent's license to dispense hearing aids. DONE AND ENTERED this 5th day of September, 2003, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2003. COPIES FURNISHED: Susan Foster, Executive Director Board of Hearing Aid Specialist Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Diane L. Guillemette, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Barry L. Halpern, Esquire Law Offices of Barry L. Halpern 2650 Biscayne Boulevard Miami, Florida 33137
The Issue The issue presented is whether Petitioner achieved a passing grade on the September 1991 hearing aid specialist examination.
Findings Of Fact Petitioner took the September 1991 hearing aid specialist examination. He achieved a passing score on the practical portion of that examination but failed to achieve a passing score on the written portion. He challenged ten questions from the written portion of that examination. Just prior to the commencement of the final hearing in this cause, Respondent determined that it could not defend three of the questions challenged by Petitioner. Respondent therefore gave Petitioner credit for his answers to those three questions. Accordingly, Petitioner's score on the written portion of the examination is 74.2 after the adjustment made for the additional credit. Question numbered 40 referenced situations necessitating factory repair. The Department contends that answer "A" is the correct answer. Petitioner chose answer "C." In order to defend answer "A," it was necessary for the Department's expert to assume facts not contained in the question. Due to the wording of the question, answer "C" is just as correct as answer "A." Accordingly, Petitioner should be given credit for his answer to question numbered 40. Question numbered 97 referenced Florida's statutory requirement for medical clearance prior to fitting some persons with hearing aids. Petitioner chose answer "B." The experts testifying in this proceeding agreed that the correct answer was answer "A." Question numbered 102 referenced minimal procedures. Petitioner chose answer "D." The Department's answer "B" is a comprehensive recital of the minimal procedures set forth by statute. One would not fit and sell a hearing aid based only on an otoscopic examination of the ear. Question numbered 114 referenced the required contents of hearing aid packaging. Petitioner chose answer "D." Petitioner's answer reveals that he is confused about the requirements for packaging as opposed to the requirements for receipts. The correct answer is answer "B." Question numbered 124 referenced a buyer's right to a refund. Petitioner chose answer "A." The correct answer was answer "B." Question numbered 33 involved troubleshooting. Petitioner chose answer "B." The experts who testified in this cause agree that answer "A" is the correct answer. Question numbered 66 involved the necessity for masking. Both Petitioner's answer "B" and the Department's answer "C" are correct answers. Further, Petitioner's answer "B" is a better answer than the Department's answer "C." The Department's position is not supported by the treatise on which it relies, and the Department's answer involves a testing procedure which is seldom used currently. Accordingly, Petitioner should be given credit for his answer to question numbered 66.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Dismissing Petitioner's challenge to questions numbered 33, 97, 102, 114, and 124; Giving Petitioner credit for his correct answers to questions numbered 40 and 66; and Finding that Petitioner achieved a passing score on the September 1991 hearing aid specialist examination if his recalculated score is now 75 or higher. DONE and ENTERED this 22nd day of May, 1992, at Tallahassee, Florida. COPIES FURNISHED: Don Floyd Kutik, pro se 9297 Gettysburg Road Boca Raton, FL 33434 LINDA M. RIGOT 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 22nd day of May, 1992. Vytas J. Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Kaye Howerton, Executive Director Department of Professional Regulation Board of Hearing Aid Specialists 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
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 Has Respondent violated Section 484.056(1)(g), Florida Statutes as alleged in the Administrative Complaint? If so, what, if any, disciplinary action is appropriate?
Findings Of Fact In September of 1989, Mrs. Mary Louise Gibson, then in her late seventies, purchased "full-shell" Sonotone hearing aids at Hearing Aid Services in Temecula, California. The hearing aids were manufactured by TelStar Electronics, Inc., located in Longwood, Florida. The manufacturer's warranty covering the hearing aids expired on December 22, 1990. Some time after the purchase of the hearing aids, members of Mrs. Gibson's family began to tell her that she was not hearing well despite use of the hearing aids. In August, 1991, some eight months or so after the warranty had expired, Mrs. Gibson, thinking the hearing aids were still under warranty, visited the TelStar manufacturing facility in Longwood to see what could be done about her poor "hearing aid-assisted" hearing. At the manufacturing facility, Mrs. Gibson was referred to the manufacturer's retail store in an adjoining part of the building housing the manufacturer's operation. With Mrs. Gibson was her husband, who was also having trouble with his hearing aids, and her daughter, Mary A. Gibson. By virtue of the referral, the Gibsons and her husband went from the manufacturing end of the building to the manufacturer's retail store. Working as a hearing aid specialist in the manufacturing facility's retail store was Respondent, Nick Joseph Spina. At the time of Mrs. Gibson's visit, Mr. Spina was licensed by the Board of Hearing Aid Specialists as a hearing aid specialist in the state of Florida. His license number is AS 0001750. Mr. Spina continues to be and has been at all times material to this proceeding the holder of the hearing aid specialist license. Not a salaried employee of TelStar, Mr. Spina's pay at the TelStar retail store was based entirely on commissions from new sales. In any given sale, the commission was thirty per cent of the gross amount of the sale. Mr. Spina conducted an audiogram of Mrs. Gibson. He concluded that Mrs. Gibson needed a type of shell for her hearing aids different from the style she had been using: a "full-shell," which occludes the ear canal entirely. In Mr. Spina's professional opinion, Mrs. Gibson needed a helix-type shell which fills only the top of the ear and leaves the ear canal unoccluded. The Purchase Agreement executed by Mr. Gibson shows on the day the Gibsons consulted with Mr. Spina that Mrs. Gibson's husband, Horace Gibson, agreed to pay $450.00 for a recasing of Mrs. Gibson's hearing aids. The comments section of the order form states "Recased to helix aids," and shows a charge of $139.00. On August 28, 1991, Mrs. Gibson picked up the recased hearing aids. The invoice of the same date shows that TelStar Electronics, Inc., charged $139.00 for the recasing. Mrs. Gibson, as was agreed under the terms of the Purchase Agreement, paid $450.00 for the recasing. Approximately five months later, in January of 1992, Mrs. Gibson visited Mr. Spina again. Based on a second audiogram, Mr. Spina told her that she had experienced a dramatic change in her hearing since the August testing and needed another type of hearing aid. A purchase order form signed January 16, 1992, with an order date of January 13, 1992, shows that Mrs. Gibson agreed to pay $1078 for a hearing system described as "NEW" and being a Sonotone Model ITE, colored pink, with a warranty period from 1/16/92 to 1/16/94, a two-year warranty. The serial numbers for the new hearing aids are listed on the purchase agreements as 92F24064 for the hearing aid for the left ear and 92F24065 for the hearing aid for the right ear. The purchase order form is signed by Nick Spina. On the same date the "new" hearing system was ordered, January 13, 1994, Mr. Spina executed a second form, a repair order form. The repair order form ordered that M. L. Gibson's hearing aids bearing serial numbers 91F13666 and 91F13665, the helix-type hearing aids provided her the previous August by Respondent, be remade as "full shell" hearing aids. The order form for the repair of the helix hearing aids shows that Respondent ordered them to be assigned new serial numbers identical to those listed on the purchase order form for the new hearing aids, 92F24064 for the left ear and 92F24065 for the right ear, and be shipped back on January 15, 1992. This same form shows that a 2 year warranty was to be added to the hearing aids for the repair. An invoice dated January 15, 1994, shows a shipment by Sonotone Corporation, TelStar Division in Longwood, Florida, of Purchase Order number "Gibson TS R/M" of Order Number 60864, the order executed by Respondent on January 13, 1994. The hearing aids were remade to full shell hearing aids, reassigned the serial numbers ordered by respondent, and the circuit, microphone and receiver were changed. No charge was made for the remake of the helix hearing aids back into full shell hearing aids because the hearing aids were under warranty from the recasing accomplished the previous August. The remade hearing aids were not given an additional two-year warranty. It is not customary in the industry to give two-year warranties for remade hearing aids. A warranty for remade hearing aids is much less than two years, typically 6 months. Two-year warranties are reserved for new hearing aids. Mrs. Gibson picked up the hearing aids and paid $1078 for them, believing them to be new hearing aids. Mrs. Gibson's daughter, who accompanied her mother to all the transactions with Respondent, also was under the impression that brand new hearing aids had been provided her mother in January of 1992. Less than two months later, on March 10, 1992, Mrs. Gibson consulted Freddi M. Catlett, of the Arkansas Hearing Aid Center in Hot Springs, Arkansas, because her hearing aids were rubbing her ear so as to make it sore. Ms. Catlett sent impressions of Mrs. Gibson's ears as well as the hearing aids to the Sonotone factory in Florida. Instead of 92F24065, the serial number of Mrs. Gibson's right hearing aid, the order form lists the serial number of the hearing aids as 92-24065, substituting a "-" for the "F", the third digit in the serial number. Otherwise the number on the order form is identical to the serial number of the right hearing aid purchased by Mrs. Gibson in January of 1992 from Respondent. Both Mrs. Gibson and her daughter, despite the fact that Mrs. Gibson had two pairs of hearing aids, were sure that the hearing aids examined by Ms. Catlett were the "new" hearing aids purchased from Respondent in January of 1992. The hearing aids were returned to Mrs. Catlett from the Sonotone factory with an invoice charging $74.50 for a replating and recasing of the hearing aids. The service department notes on the order form shows that the warranty on the hearing aids, which should have been good until January of 1994 had the hearing aids been new in January of 1992, had expired on January 28, 1992. Upon being noticed that the warranty had expired, Ms. Catlett contacted Sonotone to inquire further. She was told that the hearing aids had been purchased in 1989 and that the warranty was no longer in effect. Ms. Catlett then questioned Mrs. Gibson and was assured that the hearing aids were the "new" hearing aids purchased from Respondent the previous January. The hearing aids examined by Ms. Catlett were the hearing aids purchased in January of 1992 from Respondent. The serial number listed on Ms. Catlett's order form mistakenly listed "-" as the third digit instead of "F". Contrary to Mr. Spina's representation, the hearing aids he sold to Mrs. Gibson in January of 1992 were not new, despite his marking on the order form that they would have a two-year warranty. The hearing aids sold as new hearing aids by Respondent in January of 1992 were simply a remake of the helix-type hearing aids that Mr. Spina had remade the August before. These hearing aids were new in 1989 not in 1992.
Recommendation It is, accordingly, and in keeping with Section 484.056(1) and (2), Florida Statutes, RECOMMENDED: That Respondent Nick Joseph Spina's license to practice as a hearing aid specialist be revoked and that Nick Joseph Spina be fined $1000. DONE and ENTERED this 18th day of August, 1994, in Tallahassee, Florida. DAVID M. MALONEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1994. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Findings of fact in Petitioner's Proposed Recommended Order 1, 3-19 are accepted. Finding of fact #2 in Petitioner's Proposed Recommended Order is rejected to the extent it implies Mrs. Gibson was 83 in August of 1991. She was 83 at the time of her deposition in April of 1994. Otherwise the finding is accepted. COPIES FURNISHED: Susan E. Landward Senior Attorney Department of Business and Professional Regulation Suite 60, Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nick Joseph Spina, Jr. P. O. Box 214 Chipley, FL 32428 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Suzanne Lee Executive Director Hearing Aid Specialists 1940 North Monroe Street Tallahassee, FL 32399-0759
The Issue Whether Petitioner’s application to enter into a hearing aid specialist training program should be approved.
Findings Of Fact On or about October 16, 2013, Petitioner submitted to the Board a Hearing Aid Specialists Training Program Registration Application (Application). In response to section 6 of the Application, Petitioner answered “yes” to the question regarding his criminal history. Respondent determined that Petitioner’s Application should be denied. Respondent believes that denial of Petitioner’s Application is appropriate because Petitioner was convicted of crimes which relate to the practice of, or the ability to practice, dispensing hearing aids. In support of its denial of Petitioner’s application, Respondent notes that Petitioner “was found guilty of 92 felonies including racketeering, grand theft, and sale of unregistered securities, . . . was sentenced to prison time and probation covering a time period of 30 years, . . . and [Petitioner] has not completed his rehabilitation in that he is still serving probation.” On or about December 2, 1999, Petitioner entered a plea of nolo contendere to 92 felony counts. The Circuit Court, Twelfth Judicial Circuit, in and for Manatee County, Florida, accepted Petitioner’s plea and adjudicated him guilty of: One felony count of racketeering (§§ 895.02(3) and 895.03, Fla. Stat. (1996)); 31 felony counts of grand theft (§ 812.014, Fla. Stat. (1996)); 30 felony counts of sale of unregistered securities (§§ 517.12 and 517.301, Fla. Stat. (1996)); and 30 felony counts of sale of securities by an unregistered dealer (§§ 517.12 and 517.302, Fla. Stat. (1996)). Petitioner served three years in prison and was placed on probation for a period of 27 years. Petitioner will be on probation until 2029, and he owes $898,000 dollars in restitution. Sharon Yordon was accepted as Respondent’s expert for purposes of providing an opinion as to how Mr. Murphy’s criminal background relates to the ability to dispense hearing aids. Ms. Yordon has been a licensed hearing aid specialist in Florida since 1984. She has also been licensed by the National Board for Certification in Hearing Instrument Sciences (NBC-HIS) since 1993. Ms. Yordon has been on the board of the Florida Society of Hearing Healthcare Professionals for 22 years, and she is also a member of the International Hearing Society. She has worked as a hearing aid specialist in the Tampa Bay area, Daytona Beach, New Smyrna Beach, and the panhandle of Florida. Currently, in addition to dispensing hearing aids, she is the north Florida retail manager for the hearing aid company Beltone, which requires her to manage eight offices in 11 counties. Ms. Yordon has participated in the training of six hearing aid specialists, and she has also trained three hearing aid specialists to take the NBC-HIS examination. She has fit thousands of people with hearing aids over the course of her career. According to Ms. Yordon, the elderly comprise a majority of hearing impaired individuals in Florida. Ms. Yordon’s opinion in this regard is bolstered by the fact that the Legislature, in recognition of the important role that the elderly play in the hearing aid industry, requires that the Board of Hearing Aid Specialists include a lay member who “shall be an individual age 65 or over.” § 484.042(2), Fla. Stat. (2015).1/ According to Ms. Yordon, hearing loss due to aging, called presbycusis, is one of the most common causes of hearing loss, and in the elderly hearing loss is often linked with cognitive dysfunction. Ms. Yordon opined that based on her years of experience, it is common for a hearing aid specialist to fit for hearing aids elderly individuals who are cognitively impaired. The Legislature has recognized that elderly individuals who suffer from cognitive impairment may be vulnerable and in need of protection. See, gen., §§ 415.101-415.113, Fla. Stat. An examination to determine the need for a hearing aid must be conducted in a closed room, separated from any outer offices, because the examination must meet certain requirements for sound. The hearing aid specialist or trainee is often alone in the examination room with the client where sensitive information is often secured from the client. If the hearing aid specialist determines that a hearing aid is needed, he or she goes over all the options available to the particular client. According to Ms. Yordon, elderly clients cannot always decide which hearing aid to purchase, and they may not have a sound understanding of their own finances. These factors could allow an untrustworthy hearing aid specialist to take advantage of elderly individuals by selling them a more expensive hearing aid than what they need, can afford, or have the ability to use. Because of the interaction between hearing aid specialists and clients (especially the elderly), it is necessary that a hearing aid specialist be trustworthy. Section 484.0401, Florida Statutes, provides as follows: The Legislature recognizes that a poorly selected or fitted hearing aid not only will give little satisfaction but may interfere with hearing ability and, therefore, deems it necessary in the interest of the public health, safety, and welfare to regulate the dispensing of hearing aids in this state. Restrictions on the fitting and selling of hearing aids shall be imposed only to the extent necessary to protect the public from physical and economic harm, and restrictions shall not be imposed in a manner which will unreasonably affect the competitive market. Section 484.056(1)(d) provides that an application for licensure as a hearing aid specialist may be denied on the following grounds: Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of dispensing hearing aids or the ability to practice dispensing hearing aids, including violations of any federal laws or regulations regarding hearing aids. Consistent with the legislative goal of protecting the public from possible economic harm, the screening requirements found in section 484.056 help to ensure that individuals who are authorized to dispense hearing aids are trustworthy. As previously noted, Petitioner was found guilty of committing 36 felony violations of section 812.014 (1996), which provides in part, as follows: A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: Deprive the other person of a right to the property or a benefit from the property. Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property. Section 812.014 is grounded in principles of trust, and a person who “knowingly” acts with the requisite “intent” to deprive another of his or her property in violation of the same, is, by definition, untrustworthy. Petitioner was convicted of racketeering under sections 895.02(3) and 895.03, Florida Statutes (1996). Petitioner’s conviction for racketeering was based on the fact that he was involved in a criminal enterprise that stole money from a number of individuals. Sections 895.02 and 895.03 are grounded in principles of trust, and anyone who violates these statutes is untrustworthy. Petitioner was found guilty of committing numerous violations of sections 517.301, 517.302, and 517.12, Florida Statutes (1996). Section 517.12 requires that any “dealer, associated person, or issuer of securities” in this state must register with the appropriate state department and the failure to do so, as provided in section 517.302, is a felony of the third degree. Section 517.301 prohibits fraud or deceit in connection with securities transactions and any person who engages in such conduct, as provided in section 517.302, commits a felony of the third degree. Section 517.301 is grounded in principles of trust, and a person who engages in fraudulent conduct in violation of section 517.301 is untrustworthy. A violation of the registration requirements found in section 517.12 does not, in itself, suggest untrustworthiness. When, however, the failure to register as a securities dealer is coupled with fraudulent conduct, as was done by Petitioner, then the otherwise benign conduct of failing to register as a securities dealer takes on the character of untrustworthiness because of its relatedness to the fraud. Petitioner was incarcerated until 2002. Since his release from incarceration, Petitioner has remained compliant with the terms of his probation. One of the conditions of Petitioner’s probation is that any violation of the conditions of probation could subject him to arrest, revocation of probation, and further sentencing. With his Application, Petitioner provided three letters of support from neighbors who each believe that Petitioner is a person of integrity. Petitioner also holds a private pilot’s license, which suggests that Petitioner can be trusted to operate certain types of aircraft. Denise Parrish is a licensed audiologist at the Manatee Ear Center in Bradenton, Florida, the facility where Petitioner is currently employed. Dr. Parrish has supervised Petitioner for approximately two years, and she believes that Petitioner is an “honest” person. Dr. Parrish testified that during the time that she has supervised Petitioner, he has handled sensitive patient information, including money, without incident.
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 denying Robert Paul Murphy’s application for licensure as a hearing aid specialist. DONE AND ENTERED this 22nd day of January, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2016.
Findings Of Fact Ms. Joan Westhrin was accepted, over objection, as an expert hearing aid specialist, and her testimony as follows, is also accepted and adopted as findings of fact. Hearing aid specialists are licensed to perform audiometric testing. Audiometric testing is the function of presenting pure tones through headphones to establish a threshold of hearing. A threshold of hearing is the basis for the smallest amount of sound which the human ear can perceive. The testing is done by using air conduction by way of headphones and bone conduction. A comparison is made between the air conduction and the bone conduction results on the audiogram to determine if the client has a sensory neural hearing loss, meaning a loss in the nerve, or a mechanical function that would indicate that it is something that should be referred to a medical doctor for medical attention. During hearing examinations, the hearing aid specialist must also do an audioscopic examination, or a physical look into the ear canal, to rule out any anomaly that might be developing in order to determine whether the client is a candidate for medical testing. Ear mold impressions provide an exact duplicate of the ear canal so that a hearing aid may have an exact fit in the ear. A cotton block is used in the ear to prevent the impression material, silicone, from traveling down to the ear drum, and the material is left in the ear about five or six minutes to set properly. A hearing aid specialist must perform a complete audiological examination in order to provide a client with an appropriate hearing aid. Specific training is required for an individual to provide a safe examination, testing, ear mold impressions, and selection of a hearing aid for a client. Otherwise, an untrained individual may adversely impact on the client when performing the hearing test and providing a hearing aid. The parties' joint prehearing statement stipulated that the following are "facts which are admitted": The Respondent's name is Jack Lee Beckwith. The Respondent has been, at all times material hereto, a licensed hearing aid specialist in the State of Florida. The Respondent's hearing aid license number is AS 0001775. The Respondent's address is 14 Wildwood Trail, Ormond Beach, Florida 32174-4343. The Respondent is listed as a sponsor on the application of Jean Dewey for a hearing aid trainee and did not sponsor her until December 5, 1989. The Respondent is listed as a sponsor for David Dewey as a hearing aid specialist trainee and did not sponsor him until December 5, 1989. When Respondent became the Deweys' sponsor, he assumed responsibility for supervision of them as trainees. David Dewey is not guilty of canvassing, as set forth in Chapter 484. Jean Dewey is not guilty of canvassing, as set forth in Chapter 484. Despite the stipulations contained in sub-8 and sub-9 above, Petitioner presented, without objection, evidence geared to the issue of Respondent telling Mrs. Dewey to canvass. After Petitioner had rested, Respondent moved to dismiss the administrative complaint in part upon grounds that there had been no showing that Respondent had told Mrs. Dewey to canvass and upon the language of the stipulation, which was worded similarly to a prior request for admission. In response, Petitioner's counsel asserted that there had been no meeting of the minds in the stipulation because she thought she was only agreeing that Mr. and Mrs. Dewey had never been adjudicated guilty of canvassing. The motion to dismiss was taken under advisement for resolution in this recommended order (TR 134-135). The Jeanne Lyons Trust bought Brill's Hearing Aid Center in Daytona Beach in June, 1989. At that time, Jeanne Lyons was 100 percent owner of the Jeanne Lyons Trust and the Trust owned 100 percent of Brill's Hearing Aid Center, Inc. Jeanne Lyons is married to David F. Lyons. Mr. Lyons was not employed by the trust or by the hearing aid center corporation or by his wife in any capacity, but at all times material to this administrative complaint, he acted as "go-between" for all three. From 1988 to 1992, Mr. Lyons served on the Board of Hearing Aid Specialists. He is, and at all times material has been, a licensed hearing aid specialist. Respondent Jack Beckwith was an employee of the corporation, Brill's Hearing Aid Center, Inc., in Daytona Beach, Florida. He formed a separate management corporation with his wife, who is also a licensed hearing aid specialist. The management corporation was hired by the Jeanne Lyons Trust to manage Brill's in Daytona Beach and to help expand Brill's operations south into New Smyrna Beach and north into Palm Coast. The purpose of the management corporation was to avoid paying the Beckwiths as employees for the expansion work. In each of the new locations, a lease within an optometrist's office was negotiated by Mr. Lyons in approximately July, 1989. Respondent Beckwith is married to Kim Beckwith. Karen Martin was Mr. Beckwith's office manager at the Daytona Beach Brill's Hearing Aid Center. David James Jenkins is the son-in-law of David and Jean Dewey, a married couple. Mr. and Mrs. Lyons, Mrs. Beckwith, Ms. Martin, Mr. Jenkins and Mr. and Mrs. Dewey were not charged in the administrative complaint herein. Karen Martin had known Jean Dewey through prior employment. In July or August 1989, Ms. Martin set up a luncheon meeting for Mrs. Dewey and her husband, David Dewey, with Jack Beckwith. Mr. Beckwith ultimately introduced Mr. Dewey to Mr. Lyons sometime in August, 1989. The Deweys seemed good prospects to manage one of Brill's branch centers. On behalf of his wife and her trust and corporation, Mr. Lyons approved Mr. Beckwith's hiring the Deweys and becoming their sponsor to train as hearing aid specialists. At all times material, Mr. and Mrs. Dewey believed themselves to be in the employ of Respondent Beckwith and Mr. Lyons, operating as partners in Brill's. In negotiations with the Deweys, Mr. Beckwith estimated that Mr. Dewey could make $60,000.00 a year and Mrs. Dewey could make $40,000.00 a year based upon a 20 percent commission on gross deposits from hearing aid sales out of the New Smyrna Beach office after the Deweys became fully licensed as hearing aid specialists. He explained that licensure as a trainee and training were prerequisites to becoming fully licensed as hearing aid specialists. Both Mr. and Mrs. Dewey had a background in sales. Their testimony clearly reveals that they saw the selling of hearing aids from the perspective of marketing a product on a lucrative commission basis rather than from the viewpoint of a health care technologist. The commission arrangement proposed by Mr. Beckwith on behalf of the Jeanne Lyons Trust d/b/a Brill's Hearing Aid Center, Inc. was very attractive to them. They wanted to get started as soon as possible to make an increased commission over what they were being paid in other employments at the time they interviewed with Mr. Beckwith. They also found it attractive that they could work together near their home. Another factor motivating the Deweys to get started as soon as possible was that Mr. Dewey was employed at a marina which was about to close, and the marina closing would entirely eliminate Mr. Dewey's income. The Deweys were so enthusiastic about Mr. Beckwith's proposal that they nominated their son-in-law, David James Jenkins, to work in Brill's new Palm Coast office. During September 1989, Mr. and Mrs. Beckwith, with the approval of David F. Lyons, provided some free informal training sessions for Ms. Martin, Mr. Jenkins, and Mr. and Mrs. Dewey, just to see if they would really like hearing aid work and be adaptable to it before the Deweys and Mr. Jenkins quit their existing employments. This was not intended by Mr. Beckwith to be a real apprentice-type program. These sessions occurred twice a week and involved playing an instructional tape, handing out some printed statutes, rules, and technical materials, practicing with an audiometer, and learning to make ear molds. Each potential trainee was given his own audiometer to take home just for practice. On or about October 1, 1989, David Dewey signed an application to the Board of Hearing Aid Specialists to become a hearing aid trainee. His application for the trainee license listed Jack Beckwith as his sponsor. On or about October 1, 1989, Jean Dewey signed an application to the Board of Hearing Aid Specialists to become a hearing aid trainee. Her application for the trainee license listed Jack Beckwith as her sponsor. On or about October 2, 1989, Mr. Beckwith sent Mr. and Mrs. Dewey to operate Brill's Hearing Aid Center in space leased from Cady and Timko, optometrists, in New Smyrna Beach, Florida. The Deweys had precipitously quit their previous employment and had no income. Mr. Beckwith established what days of the week and hours they worked at Brill's, what they wore, and how they should be paid. He told them they could not be paid as employees until they were accepted and issued trainee numbers by the Department as trainees. Mr. and Mrs. Dewey were not paid any wages between October 1, 1989 and December 12, 1989. Due to the delay in receiving trainee licenses and numbers from the licensing agency and their lack of income, Mr. Dewey became infuriated and pressed both Mr. Beckwith and Mr. Lyons for action on licensing. As a result, he received sporadic checks from Brill's Hearing Aid Center. The amount of the checks apparently did not amount to projected commissions. The checks were signed by Jack Beckwith with the permission of David and Jeanne Lyons. The checks were referenced on their face as "loans". Mr. Dewey claimed that the purpose of this notation was so that Mr. Beckwith or others could avoid paying employee-related taxes. Mr. Lyons and Mr. Beckwith asserted that the notation was to insure that Mr. Dewey paid back Mrs. Lyons' advances after Mr. and Mrs. Dewey received their trainee licenses and went on the regular payroll. Mrs. Dewey received no checks. The lease Mr. Lyons had negotiated with Cady-Timko, O.D., P.A. provided for Brill's Hearing Aid Center, New Smyrna Beach to have ". . . [a]ccess to patient files to contact patients to tell them of hearing aid services available . . . [and] opportunity to confirm optometrist appointments and ask if they would like hearing test also." Sometime in October 1989, Mr. Beckwith also sent Mr. Jenkins to operate the newly leased office of Brill's Hearing Aid Center, Palm Coast, Florida. Mr. Jenkins claimed to have worked briefly at a Brill's Center in Ormond Beach, but there is no other evidence that there even was a Brill's Center in Ormond Beach. Mr. Jenkins quit the Palm Coast office approximately November 1, 1989 because no clients came there and he was "starving to death." He testified that he was instructed by Mr. and Mrs. Beckwith to make cold calls to potential hearing aid customers from all of the files in the adjacent optometrist's office in Palm Coast, but that he, Mr. Jenkins, so feared rejection that he asked his wife, Mrs. Jenkins, to make the calls. Mr. Jenkins also testified that he did some audiometric testing and that Mrs. Beckwith checked all the audiometric testing he did, but he was vague as to whether this was done at Brill's office in Palm Coast or during his pre-training. His testimony was unclear as to whether Mrs. Beckwith also personally supervised all his audiometric testing. Mrs. Beckwith was not charged with any violations. Respondent Beckwith was not charged in the pending administrative complaint with anything done by Mr. Jenkins. Mr. and Mrs. Jenkins were not charged with any violations. On or about October 15, 1989, Jack Beckwith signed and mailed to the Department of Professional Regulation a Brill's Hearing Aid Center, Daytona Beach check for $400.00 to cover trainee applications for Mr. and Mrs. Dewey, Mr. Jenkins, and Ms. Martin, at $100 apiece. The applications and check were not received or processed by the Department until December 1, 1989. The actual trainee licenses were issued for Mr. and Mrs. Dewey on December 5, 1989. Mr. Beckwith's clear testimony that he submitted the check and four applications together by mail on October 15, 1989 is credible and compelling as opposed to other witnesses' inferences of a December 1, 1989 submittal date because the check face references the four applications specifically, including Mr. Jenkins' application, and the evidence is unrefuted that Mr. Jenkins quit his association with Brill's on or about November 1, 1989. No motive or reasonable rationale was advanced as to why Respondent should mail in $100 of Brill's money to register Mr. Jenkins as a trainee on December 1, 1989, thirty days after Mr. Jenkins had already quit. As noted above, the parties have stipulated as fact that Jack Beckwith did not become the Deweys' sponsor until December 5, 1989. At all times material, the training course and apprenticeship program under a sponsor approved by the licensing agency took approximately six months to complete before the applicant could sit for the hearing aid specialist licensure exam. From all accounts, it appears that it was standard operating procedure in the industry for sponsors to allow trainees to perform all services under direct supervision of their sponsor from the date the application for trainee status was mailed to the licensing agency. In this case, that date would have been October 15, 1989. David Dewey and Jean Dewey were not registered as trainees with the Board of Hearing Aid Specialists until December 5, 1989. According to the testimony of Theresa L. Skelton, the Department's policy was to treat applicants as trainees as soon as it received their checks, which in this case was December 1, 1989. Apparently in 1989, the agency did no extensive background check on applicants, and trainee licensing was largely a ministerial act if the proposed sponsor was legitimate. As far as the Department was concerned, trainees could legally perform all services under sponsor supervision as soon as their application and check were processed. See also, Sections 484.0445(1) and (2) F.S. infra. In October 1989, when Mr. Beckwith sent Mr. and Mrs. Dewey to the Brill's office in New Smyrna Beach, he instructed them to sell batteries and make appointments for persons who answered a newspaper advertisement he had placed to announce opening that branch office. He also told them to telephone current patients of the Daytona Beach Brill's Hearing Aid Center who lived in New Smyrna Beach and tell them that they no longer had to travel to Daytona Beach but could be serviced more conveniently at the new New Smyrna Beach location. Mr. Beckwith testified that he also told Mrs. Dewey to telephone "recall patients" for the optometry office. Recall patients were patients of the optometry office who needed to be reminded to come in to pick up glasses already ordered or who were due for a new eye appointment. Mrs. Dewey was also told to announce the opening of the hearing aid center to any of the optometry recall patients whose records bore Dr. Cady's notation, "HL" for "hearing loss", and also simultaneously make appointments for hearing tests. Mr. Beckwith intended that all appointments would be made for Wednesdays when he would come to New Smyrna Beach to do hearing tests and fit and deliver hearing aids. This testimony is in accord with the conditions of Brill's lease with Cady-Timko O.D. P.A., negotiated by Mr. Lyons. Mrs. Dewey testified credibly that Mr. Beckwith approved a script for her use for these telephone calls. Nothing in the script clearly shows that she was calling exclusively optometric recalls, Brill's old patients, or making "cold" calls. However, it mentions nothing about existing eyewear or appointments, and it does offer a free hearing test. Mrs. Dewey further testified that Ms. Martin instructed her how to use Dr. Cady's files to make a list and call all of Dr. Cady's patients over a certain age, regardless of an "HL" notation, paying special attention to those with insurance coverage. Mrs. Dewey understood these instructions also came from Mr. Beckwith and made telephone calls pursuant to the method outlined by Ms. Martin. Mr. Beckwith denied giving these instructions or approving the script. Mrs. Dewey's testimony and the list show that after the first two pages going through Dr. Cady's files with names beginning with the B's and C's of the alphabet had been prepared by Ms. Martin and one appointment scheduled on Tuesday, October 17, 1989 and one on Wednesday, October 18, 1989, Mrs. Dewey started back at the A's and prepared a more extensive list of names. This suggests that Mrs. Dewey went behind Ms. Martin's work and selected from Dr. Cady's files some names which Ms. Martin had excluded. Comparison of the list with a 1989 calendar shows that Mrs. Dewey booked approximately 35 appointments for dates between October 2, 1989 and December 12, 1989, without regard to whether they fell on Wednesdays. Most of the appointments she booked were for days other than Wednesdays. They included days between December 5, 1989 and December 12, 1989 while Mr. Beckwith was listed as the Deweys' sponsor. Mrs. Dewey, whose background was in sales, considered what she was doing to be "telemarketing". Neither Dr. Cady's files nor Mrs. Dewey's list showed that any person she telephoned had expressed an interest in hearing aids before Ms. Martin or Mrs. Dewey contacted them. Mrs. Dewey's list clearly shows that most of the people called either did not acknowledge that they had a hearing loss or were not interested in a hearing test and/or hearing aids. Mr. Dewey testified that between October 2, 1989 and December 12, 1989, he performed unsupervised audiometric testing, the taking of ear mold impressions, and the sale and dispensing of hearing aids to 20-24 persons and that he did so either with the instructions or knowledge of Mr. Beckwith and outside Mr. Beckwith's presence because Mr. Beckwith remained in Daytona Beach except on Wednesdays. Mr. Lyons and Mr. Beckwith denied issuing such instructions and denied even any knowledge that this had occurred until Mr. Beckwith was served with the administrative complaint. Mr. Beckwith testified that when he was present on Wednesdays, Mr. Dewey would sit in with him and observe testing and delivery and that whatever he allowed Mr. Dewey to do in his presence was overseen by him and he signed the appropriate documentation. He denied knowing that Mr. Dewey was also practicing as a hearing aid specialist when he was not present. Mr. Dewey conceded that Mr. Lyons specifically instructed him not to make any deliveries, and it is clear from Mr. Dewey's testimony that he thought Mr. Lyons' instruction meant "no home deliveries to patients", instead of "no delivery of finished hearing aids to clients anywhere, including the office," which would be a partial definition of "no dispensing." Although Mr. Dewey has claimed to make sales of hearing aids, he also has, since 1989, consistently maintained that he never "delivered" a hearing aid to a client. His testimony at formal hearing does not render clear whether or not he actually fitted a completed hearing aid on a client or ever actually collected money for a "sale" without supervision by Mr. or Mrs. Beckwith. Mr. Dewey testified that Mr. Beckwith or Mrs. Beckwith signed all paperwork as being responsible for the tests, etc. which he performed in their absence. No documentation of hearing tests or hearing aid sales by Mr. Dewey were submitted; no clients Mr. Dewey allegedly serviced testified; no bank deposits showing income from the New Smyrna Beach location were offered; and Mrs. Beckwith did not testify. Mr. Beckwith testified he personally delivered no hearing aids from the New Smyrna Beach office. On or about December 6, 1989, but before the Deweys had received their trainee licenses or been informed that they had been licensed as of December 5, 1989, they invited George Selas, a competitor and a licensed hearing aid specialist, whom Mrs. Dewey had known for some time, into the New Smyrna Beach office of Brill's Hearing Aid Center. When they explained the "telemarketing" that Mrs. Dewey was doing, Mr. Selas informed them that it was illegal and that they should not be practicing as hearing aid specialists before trainee numbers were issued to them by the Department. The Deweys immediately notified the Department by telephone on December 6 and in writing on December 7, 1989 of everything they had been doing and disassociated themselves from Respondent Beckwith, Mr. and Mrs. Lyons, and Brill's. That would mean that after December 6 they no longer operated out of their sponsorship situation with Mr. Beckwith, despite any booked appointments. As of December 12 or 13, 1989, they formally changed their sponsorship to Mr. Selas. They finished their training and apprenticeship under his sponsorship and were licensed as hearing aid specialists in 1990. As a result of information received from Mr. Dewey and Mr. Selas, Dr. Cady gave notice he was terminating the lease for Brill's New Smyrna Beach office. Mr. Selas and Brill's, represented by Mr. Beckwith, were competing for the same contract with an HMO in 1989-1990. Respondent attributes all of Mr. Dewey's actions to collusion with Mr. Selas in order to obtain the HMO contract and rent the space occupied by Brill's in New Smyrna Beach. These inferences are based upon inadmissible hearsay from someone at the HMO who allegedly got an anonymous phone call, and Dr. Cady's understanding of something Mr. Dewey may have said either to Dr. Cady or to his office manager.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Hearing Aid Specialists enter a final order finding Respondent guilty of violating Sections 484.056(1)(h) and (t) F.S., not guilty of all other charges, and revoking his license. DONE AND ENTERED this 6th day of January, 1995, in Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1995. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-3 Accepted, except as to the use of the word "employed." See the Conclusions of Law. 4 Rejected upon contrary evidence of greater weight and credibility in Finding of Fact 33. 5-7 Accepted. 8 Accepted as modified in Finding of Fact 21 to better conform to the record and statute. 9-10 Accepted, except that receipt of the check was testified to be December 1, 1989. Rejected in part as a conclusion of law. See Finding of Fact 21 and the Conclusions of Law. Rejected because misleading as stated. See Finding of Fact 33 upon the greater weight of the credible evidence. Accepted. 14-16 Rejected only upon the word "employment" as a word of art. See Findings of Fact 15, 27-31 and the Conclusions of Law. 17 Rejected as a conclusion of law. See Findings of Fact 21, 27-31 and the Conclusions of Law. 18-22 Accepted, except for unnecessary, subordinate, and/or cumulative material and legal argument. Rejected as a conclusion of law. Covered in Findings of Fact 21, 27-33 and the Conclusions of Law. Accepted. 25-26 Covered only as necessary in Finding of Fact 22-25. 27-29 Accepted except as to word "employee." See Conclusions of Law. 30-31 Rejected as unnecessary or subordinate. Rejected as a finding of fact; see the Conclusions of Law. Rejected because misleading as stated. See Finding of Fact 9 and 15. 34-35 Rejected upon the greater weight of the credible evidence in Findings of Fact 15-16. Rejected as a mere recitation of nondispositive testimony. Rejected as not proven. Respondent's PFOF: 1-7 Accepted. Rejected as a conclusion of law. See Finding of Fact 20-21 and the Conclusions of Law. Sentence 1 is rejected as a legal conclusion. Sentence 2 is accepted in part in Finding of Fact 15-16 and 21 and otherwise rejected as a legal conclusion. The remaining sentences are accepted except that unnecessary, subordinate or cumulative material has not been adopted. 10-12 Accepted except that unnecessary, subordinate or cumulative material has not been adopted. The first sentence is rejected a mischaracterizing Mrs. Dewey's testimony. The second sentence is rejected upon the greater weight of the credible evidence as a whole. Accepted. First 15 Rejected as not proven. Dr. Cady's deposition is vague on this point. See Findings of Fact 34-35. Second 14 The first sentence is accepted. The second sentence is rejected as a mischaracterization. The third sentence is accepted. Second 15 Rejected as legal argument. 16 Rejected as legal argument. COPIES FURNISHED: Raymond Shope, Esquire Northern Trust Bank Building, Suite 225 4001 Tamiami Trail North Naples, FL 33940 Susan E. Lindgard, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792 Suzanne Lee, Executive Director Board of Hearing Aid Specialists Department of Business and Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792
