The Issue The issue is whether Respondent lawfully denied Petitioner's application to sit for the September 1997 hearing aid specialists' examination.
Findings Of Fact By Application dated October 31, 1996, Petitioner requested a license as a hearing aid specialist. The 1996 application answers no to questions asking if Petitioner ever had a hearing-aid "license" disciplined or application denied by another state. The application leaves blank a question asking for the identification of the states in which the applicant is or has been "licensed" to dispense hearing aids. Based on the information contained in the 1996 application, Respondent approved the application, on November 8, 1996, so that Petitioner could take the laws and rules examination on January 10, 1997. Due to past experience, this was the only part of the examination that he was required to take in order to obtain a Florida license. Subsequently, Respondent learned that Illinois had revoked a hearing aid specialist certificate held by Petitioner. Respondent's board members discussed this issue with Petitioner at the Board Meeting of January 31, 1997. After a full discussion of he facts, the Respondent's board members decided not to deny Petitioner's 1996 application, but to issue a probationary license, if he passed the laws and rules examination. The Board's favorable decision was made in the presence of Petitioner and confirmed by letter to him dated March 12, 1997. The letter states in part: The Board met on January 31, 1997 and re- considered your application for examination and licensure as a hearing aid specialist. After discussion the Board voted to allow you to take the examination and gave approval for licensure pending a passing score on the examination. They also as a condition for licensure voted for one (1) year of probation once you become licensed and for you to [in]cur any cost involved in this issue. Although unknown by all parties at the January 31 Board Meeting, Petitioner had failed the January 10 examination, as he was informed by letter dated February 17, 1997. By Application dated June 10, 1997, Petitioner again requested a license as a hearing aid specialist. This 1997 application is the subject of the present case. The 1997 application states that Illinois had revoked his license to dispense hearing aids and, rather than providing the requested details, states, "in file." The 1997 application adds no additional information in response to the question asking whether other states have disciplined Petitioner's licenses or denied his applications to dispense hearing aids. However, by letter dated February 20, 1997, Colorado had denied Petitioner's application for a "registration" to sell hearing aids, and Petitioner had retained an attorney to contest that decision. Petitioner claims that a material distinction exists between licenses, on the one hand, and registrations or certificates, on the other hand. His contention is that Respondent's application form inquires only about licenses and not registrations or certificates. However, Petitioner understood from his past dealings with the Board that they viewed his history in Illinois as material, and the Illinois final and recommended orders revoke Petitioner's "certification," not his "license." By Order filed September 24, 1997, Respondent denied the 1997 application because of the discipline in another state, in violation of Section 484.056(1)(c), Florida Statutes, and misrepresentations in the application, in violation of Section 484.056(1)(b), Florida Statutes. By Amended Order filed August 4, 1998, Respondent added two reasons for denial. First, Petitioner was convicted of a crime related to the practice of dispensing hearing aids or the ability to practice dispensing hearing aids, in violation of Section 484.056(1)(d), Florida Statutes. Second, Petitioner did not meet the requirement of good moral character, in violation of Section 484.045(1)(b), Florida Statutes. Petitioner has pleaded no contest three times to an attempt to purchase a controlled substance or possession of a controlled substance--twice in 1995 and once in 1998. Each time, the court withheld adjudication and sentenced him to probation. In December 1997, Petitioner was arrested for resisting arrest, obstructing an officer without violence, and fleeing and attempting to elude the police. He pleaded no contest and the court withheld adjudication and fined him $250.
Recommendation It is RECOMMENDED that the Board of Hearing Aid Specialists deny Petitioner's application for licensure. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Joe Baker, Executive Director Board of Hearing Aid Specialists Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 E. Raymond Shope, Attorney 1404 Goodlette Road, North Naples, Florida 34102 Donna Erlich Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Findings Of Fact prior to the regulation of hearing aid dispensers in Florida in 1967, the National Hearing Aid Society and its Florida chapter, the Florida Hearing Aid Society, were voluntary nonprofit organizations established to provide information to, and establish certain standards for, its members. In 1951 the National Hearing Aid Society inaugurated the title Certified Hearing Aid Audiologist and established certain criteria for certification. These included two years experience dispensing hearing aids, a letter from a doctor of medicine that he had observed a fitting that had been done by the ,applicant, credit reference, complete the National Hearing Aid Society's certified exam or its equivalent, and submit a fee to the National Hearing Aid Society. Subsequent to 1967, passing of the Florida exam for licensure as a hearing aid specialist was deemed equivalent to the National Hearing Aid Society's exam. The term Certified Hearing Aid Audiologist was patented by the National Bearing Aid Society in 1970. Those hearing aid dispensers certified by the National Hearing Aid Society (NHAS) were authorized by NHAS to advertise and hold themselves out at CHAA's. Webster's New Collegiate Dictionary (1977) defines audiology as: A branch of science dealing with hearing; specif. therapy of individuals having impaired hearing. Audiologists are licensed in Florida pursuant to Section 468.139 et seq. Florida Statutes (1979) which requires formal education and training before the applicant for licensure becomes qualified to take the examination which must be passed before certification is granted. Most audiologists are designated as clinical audiologists apparently because their testing and diagnosing of clients occurs in a clinic equipped with machines designed to test and diagnose hearing difficulties. Many audiologists dispense and fit hearing aids as do some otologists. The latter are exempted from hearing aid regulation by Section 468.137(2) , Florida Statutes. The average person is unaware that a CHAA does not have equal (and some people believe greater) qualifications respecting hearing disorders than does an audiologist. Few people know there is any difference between the two. Even one of Petitioner's witnesses acknowledged that a lot of physicians are confused about the term certified hearing aid audiologist. Accordingly, holding oneself out as a CHAA tends to mislead the general public when one so holding himself out is not, in fact, a qualified audiologist.
Findings Of Fact At all times relevant hereto Respondent was licensed as a Hearing Aid Specialist having been issued license number 0000804. During the period 1985-1986 the license of T. Ray Black was displayed on the wall at East Pasco Hearing Aid Center in Zephyrhills, Florida, but Respondent never worked at this address. East Pasco Hearing Aid Center is owned and operated by Arvina Hines whose license as a Hearing Aid Specialist was revoked circa 1981. Ms. Hines hired people to work at East Pasco Hearing Aid Center and trained them in selling and fitting hearing aids. Pamela Strife worked at the East Pasco Hearing Aid Center from 1981 until 1986 and never met Respondent nor did she ever see him at the center. She did see Raymond J. Black and Cynthia Sue Bennett, the father and sister of Respondent, working at the center. Raymond J. Black's license was revoked January 26, 1981. Arvina Hines submitted an application for training program for Hearing Aid Specialist on April 21, 1986. (Exhibit 5), in which Respondent signed the sponsor affidavit as the sponsor of Ms. Hines. He did not provide any supervision to Hines. Sheila Louise Thomas submitted as application February 25, 1985, for a training program as a Hearing Aid Specialist (Exhibit 4), on which Respondent signed as sponsor. Ms. Thomas was trained by Ms. Hines. Thomas does not recall completing the application for training, but identified her signature thereon. She has never met Respondent. Peggy Goodman worked at East Pasco Hearing Aid Center for three weeks in 1985. During the time she was employed she never saw Respondent at the center.
Findings Of Fact George Selis holds certificate of registration Number 695-04-73 to fit and sell hearing aids in the State of Florida, and this certificate of registration was issued by the Department of Health and Rehabilitative Services. On August 9, 1976, George Selis did fit and sell a hearing aid to Daisy Binder. On that date George Selis examined the ears of Daisy Binder prior to giving her a hearing test and according to his testimony observed a quantity of cerumen, or ear wax, in her ears. At that time, according to Selis, the ear canal was not blocked or impacted by the cerumen. In accordance with his experience and training, it was not improper for Selis to test an individual's hearing when cerumen was observed in the ear canal as long as the ear canal was not blocked. On August 24, 1976, Daisy Binder was examined by Dr. Herbert King, M.D., who determined that both of her ears were impacted with cerumen. In Dr. King's medical opinion, from the quantity of wax present on August 24, 1976, an excessively large quantity of wax would have been present on August 9, 1976, when Daisy Binder's ears were examined by George Selis. Dr. King's medical opinion is buttressed by the medical records of Binder which show she had had her ears irrigated and impacted cerumen removed roughly every two years for four years prior to August, 1976. George Selis sold and fitted a hearing aid to Augusta Miller on or about August 24, 1975. Regarding the testing of hearing of his client, Selis explained that prior to every test he explained to the client the way the test was conducted and what the results meant. The handwritten lines and annotations on the hearing test of Augusta Miller, Exhibit 20, had a diagram on the back of this test relating to Selis' explanation of the test and its operation on the ear. In this explanation Selis explained that a hearing loss of 30 decibels or less is normal, that a hearing loss between 30 decibels and 80 decibels may not be correctable. Selis also explained the fact that hearing aids cannot help certain hearing losses and that certain types of hearing losses can be treated medically. Regarding the type of loss which a hearing aid can help, Selis explained that the use of the hearing aid does not stop the loss and that the loss may continue to the extent that the hearing aid will no longer offer any assistance. Selis represented that it was this explanation which he gave to Augusta Miller on August 24, 1975, when he fitted and sold her a hearing aid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the certificate of registration of George Selis be suspended for a period of 30 days. DONE and ORDERED this 3rd day of August, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert Eisenberg, Esquire Department of Health and Rehabilitative Services Post Office Box 2417 F Jacksonville, Florida 32231 Louis Ossinsky, Jr., Esquire Ossinsky and Krol 411 Main Street Post Office Drawer E Daytona Beach, Florida 32018
Findings Of Fact The Respondent Martin K. Donaldson is licensed to fit and sell hearing aids in Florida, and operates a hearing aid business in Pinellas Park, Florida under the corporate name, West Coast Hearing Aid Services, Inc. The Respondent employed Sanders Glass from 1978 until June, 1980, to fit and sell hearing aids. During his employment, Glass sold more hearing aids than any other employee of Respondent. He averaged approximately ten sales per month and was second only to the Respondent in the number of sales. Evidence of the sales record was posted by the Respondent on a chart in his office where all employees could see and compare their monthly sales totals. Glass took the State Qualifying Examination for hearing aid fitters and sellers twice while registered as a trainee. He failed the examination in March, 1979 and September, 1979. The Department notified both the Respondent and Glass by letters dated March 23, 1979 and September 20, 1979, that due to Glass' failure, he could no longer fit or sell heading aids after September 30, 1979. However, the Respondent permitted Glass to continue as an employee after September 30, 1979. On June 9, 1980, Glass fitted a hearing aid for Sarah Funk of Clearwater, Florida. This hearing aid was delivered by Carl Henzel, an employee of the Respondent, on or about June 30, 1980. Henzel and Robert Nason worked for the Respondent contemporaneously with Glass. Nason, a trainee, worked from March, 1979, until April 7, 1980. Henzel was a licensed hearing aid dispenser who worked for the Respondent from September, 1979 until August, 1980. Both worked with Glass in the Respondent's office and observed him fitting hearing aids after October 1, 1979. The Respondent knew of Glass' failures on the qualifying examinations but kept him on to fit and sell hearing aids until he could secure another position. From October 1, 1979 through June 9, 1980, Glass' duties under the Respondent were the same as Henzel's and Nason's and included the fitting and selling of hearing aids. Both Nason and Henzel subsequently left the employ of Respondent and have sought counsel to secure commissions allegedly due them for selling hearing aids while in the employ of the Respondent. Nason, the complaining party in this case, remained in Respondent's employ until April 7, 1980, because he needed the Respondent's sponsorship to obtain his license. The complaint which was filed against the Respondent by Nason was part of an effort to secure disputed commissions and avoid a non-competition agreement which was signed with the Respondent and which the Respondent through counsel had indicated he intended to enforce. No evidence was presented that any consumer had complained concerning Glass' activities while in the employ of the Respondent or suffered any injury as a result of Glass' or the Respondent's actions.
Recommendation Accordingly, it is REC0MMENDED: That a final order be entered suspending the certificate of registration of Respondent Martin K. Donaldson for a period of ninety days and imposing a $500 administrative fine. DONE and ORDERED this 9th day of February, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1982. COPIES FURNISHED: Robert P. Daniti, Esquire Licensure and Certification Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 308 Tallahassee, Florida 32301 George L. Waas, Esquire SLEPIN SLEPIN LAMBERT & WAAS 1114 East Park Avenue Tallahassee, Florida 32301
The Issue May a person whose license has been revoked under the provisions of Chapter 468, Florida Statutes, be issued a trainee temporary certificate of registration-by the Department?
Findings Of Fact The Petitioner contends that he is eligible to be issued a trainee temporary certificate of registration to engage in the fitting or selling of hearing aids inasmuch as he is of good moral character and is over the age of twenty-one (21). The Respondent contends that the Petitioner is not eligible to be registered inasmuch as he had his certificate of registration revoked in 1971 and there are no provisions in the statutes for reinstatement once a license is revoked. Petitioner submitted his application for a trainee temporary certificate of registration in March of 1976. The application was returned in April of 1976 for the stated reason that "Since Mr. Lindsay's license was revoked by order of the Division of Health on February 12, 1971, and all licenses to hearing aid dealers are under the provisions of Chapter 468, Florida Statutes, I know of no provisions under these statutes to provide for a reinstatement of a hearing aid dealer's license after revocation. It appears that the hearing aid law statute is silent on this matter, therefore without specific authority to reconsider this application, I am returning to you the check you enclosed, being Check 6483 in the amount of $25.00 drawn on the Florida Bank at Fort Lauderdale, and the original of the application which was enclosed in your letter of March 26, 1976 which was received in this office on March 29." The Certificate as a Fitter and Seller of Hearing Aids Registration No. 165-06-68 granted Franklin J. Lindsay was revoked February 12, 1971, for the reason that Mr. Lindsay was the owner and proprietor of the Professional Hearing Aid Service and was an employing principal of one Mr. John E. Buehler who was found guilty of violating various provisions of Chapter 468, F.S., including the selling of a hearing aid to a customer as new when in fact the hearing aid was secondhand or rebuilt. Mr. Buehler's license was suspended for one year and Mr. Lindsay's license was revoked. The Petitioner has established by witnesses that he is of good moral character and has been rehabilitated and that he comes within the qualification of applicants as required for a trainee under Section 468.126(3)(a).
Recommendation Accept the application together with the required fee of $25 from the Petitioner and allow him to pursue the trainee program as provided in Section 468.126(3)(a). Date October 25, 1976 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. Hodges, Esquire Post Office Box 210 Jacksonville, Florida 32201 John V. Russell, Esquire Suite 205 2 Commercial Boulevard Lauderdale-by-the-Sea, Florida 33308
Findings Of Fact Petitioner Horrigan has owned Better Hearing Aid Services, St. Petersburg, Florida since the company was started in 1957. Be is a certified hearing aid specialist and has been licensed each year through 1979. Petitioner Whittington has been a certified hearing aid specialist since 1957 and has managed Better Hearing Aid Services since 1968. During the early part of 1979 Petitioner Horrigan decided to sell his business and Whittington decided to retire at the end of 1979. Both Petitioners are well past 65 and Horrigan has had more than one heart attack. To seek buyers for the business an ad was placed in the June 1979 issue of the Hearing Aid Journal (Exhibit 1) Both Petitioners were aware of the requirement for completion of the continuing education course for renewal of certificates hut since both of them planned to retire in 1979 neither intended to renew his license for 1980. Bulletins reminding registrants of this requirement were sent to all certificate holders by Respondent on February 13, August 8 and October 1, 1979. Attempts to sell the hearing aid business in 1979 were unsuccessful. Accordingly, late in 1979, Horrigan decided it would be necessary for him to renew his certificate to keep the business open until he could find a buyer. Continuing education courses were given at various places in Florida during 1979 and Horrigan planned to go to Daytona Beach to take the course given 2 December 1979. On 27 November 1979 Horrigan was hospitalized for 9 days for a condition related to his previous heart attacks and was unable to take the course. Whittington was not aware that Horrigan was hospitalized until after the 2 December continuing education course was given. Had he known Horrigan couldn't attend, Whittington testified he would have attended so he could qualify for renewal of his certificate and keep the business open until a buyer was found. The next continuing education course given in Florida after 2 December 1979 was on January 24-25, 1980 at St. Petersburg, Florida. Both Petitioners attended this course and immediately upon completion submitted their applications for renewal of their certificates. Both applications for renewal were denied because they had not taken the continuing education course in calendar year 1979. Both Petitioners are highly qualified to sell hearing aids and denial of their applications for renewal of certificates is not in the public interest.
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
