The Issue May a person whose license has been revoked under the provisions of Chapter 468, Florida Statutes, be issued a trainee temporary certificate of registration-by the Department?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 Lindsay's license was revoked by order of the Division of Health on February 12, 1971, and all licenses to hearing aid dealers are under the provisions of Chapter 468, Florida Statutes, I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 The Certificate as a Fitter and Seller of Hearing Aids Registration No. 165-06-68 granted Franklin J. Lindsay was revoked February 12, 1971, for the reason that Mr.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 Lindsay's license was revoked.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
The Issue The issue is whether Respondent, Craig Louis Schuette, committed the violations alleged in the Administrative Complaints in these cases, and if so what is the appropriate penalty to be imposed by the Petitioner.
Findings Of Fact At all times material to this proceeding Respondent has been a licensed hearing aid specialist in the state of Florida, having been issued license No. AS 2553 on June 9, 1994. Case No. 02-0520 On November 5, 1998, hearing impaired patient R.G., a resident of New York and part-time resident of Florida, visited Audiometric Hearing Center (Audiometric), a hearing aid establishment located on Fifth Avenue, North, in St. Petersburg, Florida. R.G. visited Audiometric after being contacted by postcard and telephone about a free hearing test offer. While at the Center on November 5, 1998, R.G. received a hearing test and signed an agreement to purchase a pair of hearing aids for $3,500.00. Respondent signed the sales receipt on behalf of Audiometric as the selling agent. R.G. paid the entire purchase price to Audiometric on November 5, 1998, by charging the entire amount on his Visa credit card. On November 20, 1998, R.G. returned to Audiometric to be fitted with the new hearing aids. At that time, R.G. noticed that the hearing aids he had purchased, as described in his contract, were a different model and smaller than the devices with which he was being fitted. Respondent persuaded R.G. to test the hearing aids, and R.G. took possession of the devices on that date. Twelve days later, on December 2, 1998, upon being dissatisfied with the hearing aids, R.G. returned to Audiometric with the devices and requested a refund. Audiometric accepted the hearing aids back and R.G. was advised for the first time that he would receive a refund within 90 to 120 days. Although R.G. was promised a refund of $3,125.00, on December 2, 1998, he never received it. R.G. made numerous attempts to obtain a refund but never received one. During an investigation of this matter by the Agency for Health Care Administration, Respondent did not accept responsibility for the refund. While Respondent agreed to assist the patient and provide a free refitting, he maintained that Audiometric was responsible for any and all refunds. Case No. 02-0522 Hearing impaired patient E.T., a resident of Canada who also resided in Florida part of the year, visited the Audiometric Hearing Center, a hearing aid establishment located on Walsingham Road, in Largo, Florida, on February 6, 1998. E.T. went to Audiometric for a free hearing test after being called and offered one by a telephone solicitor. E.T. received a hearing test on that date. On February 6, 1998, E.T. purchased a hearing aid for her right ear at Audiometric for $1,980.00. Respondent signed the sales agreement on behalf of Audiometric as the selling agent. He told E.T. she needed a hearing aid and showed E.T. three hearing aids. E.T. paid the entire purchase price on February 6, 1998, by charging it on her Visa credit card. On February 13, 1998, the patient accepted delivery of the hearing aid at Audiometric from someone other than Respondent. Upon experiencing an itching problem, E.T. returned the hearing aid to Audiometric on February 18, 1998, for a refund, stating that she was not satisfied with it. Someone at Audiometric, other than Respondent, accepted the returned hearing aid from E.T. and promised her a refund of $1,980.00. E.T. made numerous attempts to obtain the refund but never received any portion of it. In fact, she even filed a lawsuit and obtained a default judgment against Audiometric, but could not collect any of it. During an investigation of the matter by the Agency for Health Care Administration, Respondent denied responsibility for the matter, and indicated that Audiometric was culpable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Hearing Aid Specialists enter a final order: Dismissing DOAH Case No. 02-0521 (DOH Case No. 98- 19487). Finding Respondent guilty as charged in the Administrative Complaints in DOAH Case Nos. 02-0520 (DOH Case No. 99-03437) and 02-0522 (DOH Case No. 98-20376). Imposing a letter of reprimand. Imposing a total fine of $1,000.00. Assessing costs of the investigation and prosecution not to exceed $500.00, and ordering Respondent to pay as corrective action $3,125.00 to patient R.G. and $1,731.00 to patient E.T., with all monetary payments to be paid within 90 days of entry of a final order. As to the corrective action, the Respondent should be ordered to provide proof thereof to the Board of Hearing Aid Specialists, Department of Health Compliance Unit within 90 days of the date of the final order. DONE AND ENTERED this 26th day of July, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2002. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Mail Stop 39 Tallahassee, Florida 32308 Craig Schuete 12300 Park Boulevard, Unit 220 Seminole, Florida 33772 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701 Gary L. Asbell, Esquire Post Office Box 326 Lloyd, Florida 32337
The Issue 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 in this case is whether Respondent, Kent A. Broy, committed the violations alleged in an Administrative Complaint filed with by Petitioner, the Department of Health, on April 11, 2003, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving hearing aid specialists licensed to practice in Florida. Respondent, Kent A. Broy, is, and was at the times material to this matter, a hearing aid specialist licensed to practice in Florida, having been issued license number AS2169 on April 13, 1989.5 The Administrative Complaint. On April 11, 2003, an Administrative Complaint, DOH Case No. AS 2001-19941, was filed with the Department against Mr. Broy. Mr. Broy disputed the issues of fact alleged in the Administrative Complaint and requested a formal administrative Hearing by a Request for Formal Hearing filed with the Department on Mr. Broy's behalf by counsel. The remaining four counts of the Administrative Complaint, Counts I, II, III, and V, allege violations of subsections of Section 484.056(1), Florida Statutes: Section 484.056(1)(g) (Count I); (j) (Count II); (w) (Count III); and (m) (Count V). All four counts include the following introductory sentence: "Petitioner realleges and incorporates herein by reference the facts alleged in paragraphs 1-16 [of the Administrative Complaint]." Paragraphs 1 through 6 are general allegations which were admitted by Mr. Broy. Patient G.H. Patient G.H., who was 88 years of age at the time, visited a business known as Audibel Hearing Care Center (hereinafter referred to as "Audibel")6 and located at 1620 North U.S. Highway 1, Jupiter, Florida, on October 24, 2001, a Tuesday. G.H. was accompanied by his wife, J.H. G.H. went to Audibel to determine whether he needed hearing aids. Mr. Broy, who G.H. assumed was a licensed hearing aid specialist, assisted G.H.7 As alleged in the Administrative Complaint, G.H. agreed to purchase a pair of "in the ear" hearing aids for $6,810.00. Mr. Broy attempted to make molds of the G.H.'s ear canals so that the hearing aids G.H. had agreed to purchase could be ordered. Molding material was placed in G.H.'s ear, but when it was removed it was found to be covered with wax. Mr. Broy attempted to remove the wax from G.H.'s ear with some type of instrument. This caused pain in G.H.'s ear, so the effort was discontinued. Mr. Broy then gave G.H. some oil to use to attempt to soften the wax, and he scheduled G.H. to return the next week. In furtherance of the sale and purchase of the hearing aids, G.H. signed a Purchase Agreement. The Agreement states that G.H. was purchasing 2 "Merc CIC Dig" hearing aides at $4,200.00 each ($8,400.00 total) less a 20% discount, leaving a discounted price of $6,720.00 plus a $90.00 administration fee. The Purchase Agreement includes, in part, the following regarding return of the hearing aids: Return Policy - . . . . Purchaser may return 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. A return claim form may be obtained from the distributor at the location checked on the face of this agreement. A request for return must be submitted in writing, within 30 days. . . . . The distributor identified on the face of the Purchase Agreement was Audibel. The Purchase Agreement did not identify the guarantor for the refund. No hearings aids, however, were delivered to G.H. at the time he signed the Purchase Agreement or anytime subsequent thereto. G.H. paid the full purchase price, charging the full price to a credit card. Shortly after executing the Purchase Agreement, G.H. decided that he did not want the hearing aids8 and he returned to Audibel. He told Mr. Broy that he no longer wanted the hearing aids.9 G.H., not receiving satisfaction from Mr. Broy, ultimately challenged the amount he paid for the hearing aids with his credit card company. He was refunded the $6,810.00 charge. On January 9, 2002, Mr. Broy charged $630.00 to G.H.'s credit card. That amount has not been refunded. During the investigation of this matter, Neil Bailes, an investigator for the Agency for Health Care Administration, who had never met or spoken to Mr. Broy in person, spoke to someone whom he believed was Mr. Broy. The individual he spoke with told him that records relating to G.H.'s purchase and subsequent return of hearing aids were in G.H.'s possession, and, therefore, he could not provide those records.10
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Hearing Aid Specialist dismissing the April 11, 2003, Administrative Complaint against Kent A. Broy. DONE AND ENTERED this 5th day of February, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 February, 2004.
The Issue Whether Petitioner's application to renew license to dispense hearing aids should be approved. This proceeding involved Petitioner's application to renew an existing license to dispense hearing aids in the State of Florida which was denied by Respondent Department of Health and Rehabilitative Services by letter of January 31, 1980, for failure to establish that the applicant had satisfactorily completed a continuing education course relating to the fitting and selling of hearing aids consisting of a minimum of ten contact hours of classroom instruction. Petitioner requested a hearing by letter, dated February 4, 1980. Petitioner appeared at the hearing unaccompanied by legal counsel and was advised by the Hearing Officer as to her rights in administrative proceedings. She acknowledged understanding such rights and elected to represent herself in the matter.
Findings Of Fact Petitioner Evelyn S. Webster was licensed with Respondent to fit and sell hearing aids in 1979. She owns and operates a firm called Acousticon of Daytona at Daytona Beach, Florida, where she fits and sells hearing aids and also larynx and speech aids. (Testimony of Petitioner) In 1978, the state legislature amended the "Fitting and Selling of Hearing Aids Act," Chapter 468, Florida Statutes, Part III, to require that registrants must show evidence of satisfactory completion of a continuing education course relating to the fitting and selling of hearing aids during the previous calendar year consisting of a minimum of ten contact hours of classroom instruction which course is subject to approval for credit by Respondent. The requirement was to commence beginning with calendar year 1979. Respondent's hearing aid licensure program administrator issued a succession of notices to all registered hearing aid dispensers in 1978 and 1979 advising of the new requirement and providing information as to where and when approved courses could be taken. By further letter of October 1, 1979, Respondent's licensing administrator transmitted applications to registrants for annual renewal of certificates. The letter of transmittal advised all registrants to enclose with their applications proof of successful completion of the ten-hour continuing education course during the calendar year 1979. Petitioner received the various letters issued by Respondent and her application for renewal. (Testimony of Gray, Petitioner, Exhibit 5) Petitioner was in ill health during 1978 and 1979 with various medical problems, and is still under the care of a physician for hypertensive cardiovascular disease. Consequently, she did not take the continuing education course until October 1979. At that time, she successfully completed the five hours of instruction offered by the Florida Hearing Aid Society at Daytona Beach. All hearing aid dispensers were advised in a letter from Respondent dated October 1, 1979, that a ten-hour course would be offered in early November at Brevard Community College, Titusville, Florida. However, Petitioner did not seek to attend this session. She submitted her application for license renewal on January 14, 1980, to Respondent and enclosed proof of completion of the five hours of instruction. Respondent's Director of Licensure and Certification advised her, by letter of January 31, 1980, that her application was denied since she had not completed a minimum of ten contact hours of approved continuing education credits. Thereafter, during March 1980, she attended and satisfactorily completed the full ten-hour course at Brevard Community College. (Testimony of Petitioner, Gray, Exhibits 1-2, 4,6)
Recommendation That Petitioner's application for renewal of her certificate of registration to fit and sell hearing aids be approved. DONE and ENTERED this 8th day of May, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Leo Stellwagen Evelyn S. Webster Assistant District IV Acousticon of Daytona Legal Counsel 222 Magnolia Avenue at Department of HRS Ridgewood Post Office Box 2417-F Daytona Beach, Florida 32014 Jacksonville, Florida 32231 Stephen S. Huss Staff Attorney Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue presented in this case is whether Respondent, Gary Segretario, committed the violations alleged in the Amended Administrative Complaint, and, if so, what penalty should be imposed by Petitioner.
Findings Of Fact Respondent, Gary Segretario, is and at all times material hereto was a licensed hearing aid specialist in the state of Florida, holding license number AS2321. Petitioner, Department of Health, Board of Hearing Aid Specialists, is the state agency charged with the authority and duty to regulate the practice of hearing aid dispensing within the state of Florida. In June 1997, purportedly in response to increasing misconduct by various hearing aid specialists, the Board of Hearing Aid Specialists issued an emergency rule amending Rule 61G-9-6.010, Florida Administrative Code, and changing the justification for the purchaser's refund from a measured improvement in the purchaser's hearing to failure of the purchaser to obtain satisfaction from the hearing aid. In 1999, the Florida Legislature created Section 484.0512(3), Florida Statutes, and added a 30-day refund provision into the Statute when the purchaser has a valid reason as defined by the Board's Rule. On April 24, 1998, in response to a telephone solicitation, patient D.V. presented to Hearing Care 2000 in Daytona, Florida, for the purpose of a hearing examination. On that date, patient D.V. was tested by Respondent and his assistant Eric Collins, a licensed hearing aid specialist trainee. Following the testing, Respondent recommended and patient D.V. agreed to purchase a hearing aid for his left ear. There is insufficient evidence to conclude that Respondent advised patient D.V. that he would lose his hearing if he did not purchase a hearing aid. The contract provided for a 30-day refund of the hearing aid purchase. On or about April 29, 1998, Respondent received the hearing aid from the manufacturer and contacted patient D.V. An appointment for delivery of the hearing aid was scheduled for May 1, 1998. After patient D.V. missed the appointment, another appointment was scheduled for May 15, 1998. On May 15, 1998, Respondent presented the hearing aid to D.V. At the time of delivery, patient D.V. complained of feedback and Respondent immediately placed a vent plug in the hearing aid. Patient D.V. departed Respondent's office with the hearing aid in his possession on May 15, 1998. On or about May 19, 1998, patient D.V. returned to Respondent's office complaining of feedback. To cure the problem, Respondent forwarded the hearing aid to the manufacturer for a soft coat finish. Three days later on May 22, 1998, patient D.V. returned for the hearing aid, was again tested, scored 100 percent without feedback, and took possession of the aid. To ensure satisfaction, a follow-up appointment was scheduled for May 29, 1998; however, patient D.V. failed to appear. On June 29, 1998, patient D.V. entered Respondent's office and demanded a refund. Upon being denied, patient D.V. physically attacked trainee Collins, threw the hearing aid at the receptionist, and eventually departed. The evidence deduced at Hearing indicates that patient D.V. physically maintained possession of the hearing aid from May 15, 1998, through May 19, 1998, and May 22, 1998, through June 29, 1998, a total of 43 days, before requesting a refund. The following day, on June 30, 1998, Respondent's wife, Barbara Segretario, advised patient D.V. via letter that he was no longer permitted within the Daytona office. Shortly thereafter, patient D.V. contacted his credit card company and disputed the hearing aid charge apparently alleging that he never signed the credit card slip. Cathy Gionfriddo, an employee at Hearing Care 2000, forwarded a copy of patient D.V.'s signed credit card slip and signed contract to the credit card company for signature comparison. Following the lengthy dispute process, the credit card company ruled in favor of Hearing Care 2000. Thereafter, patient D.V. filed a small claims action against Respondent, wherein the small claims judge ruled in favor of patient D.V. and awarded him a $450.00 judgment. Patient D.V. received the money in April 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Hearing Aid Specialist issue a Final Order dismissing the Administrative Complaint filed against Respondent. DONE AND ENTERED this 11th day of September, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2002. COPIES FURNISHED: Gary L. Asbell, Esquire Post Office Box 326 Lloyd, Florida 32337 E. Raymond Shope, II, Esquire 1404 Goodlette Road, North Naples, Florida 34102 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Reginald Dixon, Esquire Bureau of Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701
The Issue The issue for consideration in this case is whether Respondent's license as a hearing aid specialist in Florida should be disciplined because of the matters alleged in the Administrative Complaints filed herein.
Findings Of Fact At all times relevant to the issues herein, the Board of Hearing Aid Specialists has been the state agency in Florida responsible for the licensing of hearing aid specialists and the regulation of the hearing aid provider profession in Florida. The Respondent has been a licensed hearing aid specialist in this state, holding license number AS 00010006. Stanley I. Williamson is an 84-year-old blind and arthritic retiree who has worn hearing aids since the early 1980's. He has known Mr. Conley since that time and has purchased his hearing aids from the Respondent both when the Respondent was working for other suppliers and when he went into business for himself. In the summer of 1997, Mr. Williamson went to the Respondent to get the wax cleaned out of his hearing aids. Mr. Williamson did not feel he needed new aids at the time. However, on June 6, 1997 Respondent Mr. Conley called him and tried to sell him some new aids. Mr. Williamson told the respondent he didn't want new aids because his were working well, but Mr. Conley suggested he bring them in anyway. Mr. Williamson went to the Respondent's office and tried the new ones the Respondent showed him but decided he did not want them because he felt they did not work properly. Nonetheless, on that same day, June 6, 1997, Mr. Williamson took them, signed a contract for the new aids, and gave the Respondent a check for $1,095. At that time, the Respondent told Mr. Williamson he could bring the aids back within 30 days if they were not acceptable. The Argosy hearing aids Mr. Williamson got from the Respondent on June 6 did not work properly, and when Mr. Williamson complained, the Respondent agreed to get him another pair. Mr. Williamson picked up this second pair of aids at the Respondent's office, Conley's Hearing Aid Center in Clearwater on June 20, 1997. At that time Mr. Williamson signed a second contract and gave the Respondent a second check for $1,095. On June 24, 1997, the Respondent had Mr. Williamson, who was still not satisfied with the performance of the Argosy aids, sign a third contract with his company under which the Respondent agreed to provide a pair of 3M Single Pro hearing aids for a total price of $3,390. The Respondent gave Mr. Williamson credit for the two prior payments of $1,095 each, and Mr. Williamson gave the Respondent an additional check for $1,200. According to Mr. Williamson, the 3M aids, which the Respondent delivered on July 8, 1997, also did not work to his satisfaction, so after just a few days, on July 10, 1997, he exchanged them for a different pair of 3M aids, Dual Pro. The sales receipt for the aids that the Respondent gave to Mr. Williamson on July 10, 1997 did not contain the buyer's signature, nor did it list the serial numbers for the hearing aids provided. Mr. Williamson thought he was getting the top of the hearing aid line but in fact, the Dual Pro aid was the middle line. According to a pamphlet he saw later, the top of the line is called Multi Pro; the middle, Dual Pro; and the bottom, Single Pro. Though a new contract was signed reflecting the Dual Pro aids, there was no additional charge. The Respondent guaranteed all hearing aids sold to Mr. Williamson to be acceptable or, if returned within 30 days of purchase, a full refund would be given. The Dual Pro aids also did not work to Mr. Williamson's satisfaction, and he returned them to the Respondent on or about August 4, 1997, an act witnessed by the Respondent's associate, Michelle Pfister. None of the hearing aid sets was kept by Mr. Williamson for more than 30 days. Mr. Williamson contends that when he returned the second pair of Argosy aids and received the 3M Single Pro aids in exchange, he asked Mr. Conley for a refund. At that time, Mr. Conley said he didn't have the money. When Mr. Conley delivered the Single Pro aids, and again when he delivered the Dual Pro aids, Mr. Williamson asked for a refund instead. Each time the Respondent claimed he didn't have the money. On October 4, 1997, Mr. Williamson wrote to Conley's Hearing Aid Center, the Respondent's business, and threatened recoupment action if the Respondent did not return the money he had paid for the aids he had returned. The hearing aids Mr. Williamson purchased were all returned to the Respondent, but no refund was ever made. According to Ms. Pfister, the returned hearing aids were subsequently sent back to the manufacturer for credit. The credit was not to her account with the manufacturer, however, and she does not know who received it. Ms. Pfister, also a licensed hearing aid specialist since 1998, bought Conley's Hearing Aid Center from the Respondent on July 27, 1997. At the time of the purchase, Ms. Pfister was not employed by the Respondent, but she had worked for the Respondent on and off since 1995. On June 26, 1997, the Respondent signed a form to sponsor Ms. Pfister as a hearing aid specialist trainee and served as her sponsor until she passed the examination and was licensed on June 23, 1998. Respondent continued to work on the premises after the sale until Ms. Pfister was licensed. When Ms. Pfister took over the business, the sales contract called for all hearing aids on site to be sold to her as inventory, She also received a statement from the Respondent that there were no unresolved issues with clients, and she did not assume any liabilities incurred by the business prior to her take over. When she assumed active management of the practice, Ms. Pfister received all of the Respondent's patient files. Katherine Sadilek is a 93-year-old retiree who purchased a pair of pre-owned 3-M Model 8200 hearing aids from the Respondent on April 8, 1997 for $1,800. The aids were paid for in full on April 9, 1997. The receipt for this sale that the Respondent gave to Ms. Sadilek did not contain the serial numbers of the aids, nor did it describe any of the terms and conditions of the sale or a guarantee. Ms. Sadilek returned the aids to the Respondent exactly 30 days after the purchase date because she was not satisfied with them. The Respondent did not refund her money but agreed to try to re-sell them for her. He offered her $100.00 for them, which she refused. The Respondent retained the aids and never returned them to Ms. Sadilek or paid her for them. A review of the documentation relating to the sales to both clients show them to be devoid of any information showing any improvement to the clients' hearing as a result of the hearing aids sold to them by the Respondent. A showing of improvement is required to form the basis for non-refund of amounts paid for hearing aids. The Respondent filed for bankruptcy in December 1998. The Respondent was licensed as a hearing aid specialist in Indiana in 1970 and in Florida in 1978. He has practiced in Florida for almost 20 years without any complaints being filed against him except those in issue here. The Respondent attributes most of his problems to his marriage dissolution in 1979, the settlement relating to which caused his financial problems and his bankruptcy. He claims he offered to make periodic payments to Mr. Williamson but Mr. Williamson refused that offer. The Respondent is 61 years old and presently receiving worker's compensation. Though he is not presently in the hearing aid business, he hopes to be in the future and needs to keep his license to earn a living.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Hearing Aid Specialists enter a final order suspending the Respondent's license for a period of six months and thereafter placing it under probation for a period of three years under such terms and conditions as may be deemed appropriate by the Board. It is also recommended that the Board impose an administrative fine of $3,000, and assess appropriate costs of investigation and prosecution. DONE AND ENTERED this 12th day of September, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2000. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Stop 39 Tallahassee, Florida 32308 Donald Conley 3377 Southwest Villa Place Palm City, Florida 34990 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue in these cases is whether Respondent committed the violations alleged in three Administrative Complaints, and, if so, what appropriate disciplinary action should be taken against him.
Findings Of Fact Based upon the observation of the witnesses and their demeanor while testifying, the documentary evidence received in evidence and the entire record complied herein, the following relevant facts are made: At all times relevant to the issues herein, the Board of Hearing Aid Specialists has been the state agency in Florida responsible for the licensing of hearing aid specialists and regulation of hearing aid providers in Florida. Section 455, Florida Statutes (1999). Respondent, Robert F. Davidson, has been a licensed hearing aid specialist in this state, holding license number 0000740. From sometime in April and continuing through sometime in December 1998 Respondent was employed as a salaried store manager at Hearite Audiological ("Hearite"), a hearing aid establishment located at 2700 East Bay Drive, Largo, Florida, 33771, and owned by George Richards and Paula Rogers. Respondent engaged in testing the hearing of individuals and engaged in selling hearing aids to individuals for Hearite Audiological, Inc. To each individual Respondent sole a hearing aid, he provided that person with a written notice of the 30-day money back guarantee. Case No. 01-3536PL Patient C. L. D., a hearing impaired-person, visited Hearite on September 9, 1998, and entered an agreement to purchase a pair of hearing aids for $1,795.00, paying $500.00 deposit at that time. Patient C. L. D. was provided a sales receipt for her deposit signed by Respondent. On September 21, 1998, Respondent delivered the hearing aids to patient C. L. D. at Hearite and signed the receipt as the person who delivered the hearing aids to the patient. Patient C. L. D., after using the hearing aids, became dissatisfied with them and returned the hearing aids to Respondent at Hearite on October 8, 1998. Respondent accepted the hearing aids from Patient C. L. D. and, pursuant to the terms of the sales contract, Respondent promised Patient C. L. D. a full refund of her $500.00 deposit. Despite repeated phone calls to Respondent and repeated attempts to obtain the refund, Patient C. L. D. has never received her refund as promised, and Hearite was later sold to a new owner in January 1999. Case No. 01-3537PL On May 26, 1998, hearing-impaired Patient J. C. aged 95 years, and now deceased, along with his daughter, Chris Vidalis, visited Hearite and purchased a hearing aid for $1,345.00, paying $500.00 deposit upon execution of the sales contract. On June 5, 1998, Patient J. C. paid the remaining $845.00 and received his hearing aid. On June 12, 1998, being dissatisfied with its use Patient J. C. returned the hearing aid and requested a refund. Respondent accepted the hearing aid and promised Patient J. C. a refund of $1,345.00 within 120 days. Patient J. C.'s daughter, Chris Vidalis, who was with her father every time he visited Hearite, made numerous telephone calls and visits to Hearite in attempts to obtain the refund. The refund was never paid and Hearite was sold to a new owner in January 1999. Case No 01-3538PL On or about June 10, 1998, Patient R. L., after several unsolicited telephone calls from someone representing Hearite, visited Hearite for the purpose of having his hearing tested and possibly purchasing a hearing aid. After testing, Patient R. L. purchased a pair of hearing aids at Hearite for $3,195.00. A paid in full receipt signed by Al Berg was given to Patient R. L. On or about July 10, 1998, Respondent delivered the hearing aids to Patient R. L. and signed the sales receipt as the licensee who delivered the hearing aids. Upon being dissatisfied with using the hearing aids Patient R. L. returned them to Hearite on July 13, 1998. Kelly Dyson, audiologist employed at Hearite, accepted the hearing aids and promised Patient R. L. a full refund of $2,840.00, pursuant to the terms of the contract. Patient R. L. made repeated attempts to obtain his refund as promised but has not received one. Hearite was sold to a new owner in January 1999. Respondent's position, that each of the three patients herein above was aware or should have been aware that the sale of hearing aids, and, therefore, the guarantor of the refunds was Hearite Audiological, Inc., and, not himself, is disingenuous.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Hearing Aid Specialists enter a final order requiring Respondent to pay the following amounts: to Patient C. L. D., $500.00, DOAH Case No. 01-3536PL; to Patient J. C. (or his estate) $1,345.00, DOAH Case No. 01-3537PL, and to Patient R. L., $2,840.00, DOAH Case 01-3537PL. Further that Respondent be fined $1,000.00 and be required to pay the appropriate costs of investigation and prosecution. Further, ordered that Respondent's license be suspended and not reinstated until after all payments herein ordered are paid in full, and thereafter place Respondent on probation for a period of not less than one year under the terms and conditions deemed appropriate. DONE AND ENTERED this 1st day of February, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2002. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 39 Tallahassee, Florida 32308 E. Raymond Shope, II, Esquire 1404 Goodlette Road, North Naples, Florida 34102 Susan Foster, Executive Director Board of Hearing Aid Specialist Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact 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 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.
