The Issue May a person whose license has been revoked under the provisions of Chapter 468, Florida Statutes, be issued a trainee temporary certificate of registration-by the Department?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 Lindsay's license was revoked by order of the Division of Health on February 12, 1971, and all licenses to hearing aid dealers are under the provisions of Chapter 468, Florida Statutes, I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 The Certificate as a Fitter and Seller of Hearing Aids Registration No. 165-06-68 granted Franklin J. Lindsay was revoked February 12, 1971, for the reason that Mr.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 Lindsay's license was revoked.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 Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since February 15, 1993, a Florida-licensed hearing aid specialist. He holds license number AS2453. For the past seven years, Respondent has owned Advanced Hearing Center, Inc. (Advanced Hearing), a hearing aid business located in North Palm Beach, Florida. W. J. is a hearing impaired hearing aid wearer. He and his wife of 32 years, F. J., reside in Florida (on Singer Island in Palm Beach County) part of the year (generally, January through the middle of April) and in New Jersey the remainder of the year. In late March of 1997, toward the end of their stay in Florida that year, W. J. contacted Respondent by telephone at Advanced Hearing to inquire about getting the hearing aid for his left ear repaired. W. J. had not had any previous dealings with Respondent. He had learned that Respondent was a hearing aid specialist upon reading the advertisement for Advanced Hearing in the Yellow Pages, and was "impressed" that Respondent had a Ph.D. During their telephone conversation, Respondent invited W. J. to visit Advanced Hearing with his wife. He told W. J. that, during the visit, he would look at the hearing aid that needed repair and, in addition, give W. J. a free hearing test. W. J., accompanied by his wife, visited Advanced Hearing on Tuesday, April 1, 1997. While waiting to see Respondent, W. J. was asked to read written "testimonials" from satisfied patients of Respondent's. W. J. and his wife were subsequently escorted to Respondent's office, where they remained for the duration of the visit. While in Respondent's office, W. J. filled out a medical history form. The information that W. J. provided on the form indicated that he did not have any significant medical problems warranting referral to a medical doctor. Respondent then used a video otoscope to examine W. J.'s ear canals. The ear canals were "normal looking" and, although there was some wax buildup, the eardrums were visible. As he performed the otoscope examination, Respondent explained to the J.s what he saw. He told them about the wax buildup and cautioned that the lack of adequate "cerumen management" could lead to "abnormalities or infections or a fungus c[ould] grow," conditions which would require medical attention. Inasmuch as W. J. had not reported any recent history of infection and the otoscope examination had not revealed any observable abnormality, Respondent proceeded to test W. J.'s hearing. He performed pure tone audiometric testing by air and by bone and recorded the results of such testing. Respondent's office, where the testing was done, was a "certified testing room," within the meaning of Section 484.0501(6), Florida Statutes. The air and bone tests revealed no significant difference or "gap" between W. J.'s air conduction hearing and his bone conduction hearing. After the testing, Respondent informed the J.s that he was unable to repair W. J.'s old hearing aid (for his left ear), and he suggested that they purchase new, "upgrade[d]" hearing aids for W. J. if they could afford to do so. Respondent recommended the Starkey Sequel Circuit, the "pinnacle product" of "one of the largest [hearing aid] manufacturers in the world" (Starkey), because he believed that it would help alleviate the "problems with distortion and loud noise" that W. J. had reported that he was experiencing. Respondent informed the J.s that he could sell them this Starkey product at a "great price." The J.s told Respondent that they were reluctant to purchase new hearing aids in Florida because they were planning on returning to their residence in New Jersey shortly, and that, in any event, they were interested in Siemens Music, not Starkey Sequel Circuit, hearing aids. Respondent replied that the Starkey Sequel Circuit was comparable to the Siemens Music and that any Starkey dealer would be able to service Starkey Sequel Circuit hearing aids purchased from his business. After considering Respondent's comments and discussing the matter with his wife, W. J. signed a written agreement to purchase Starkey Sequel Circuit hearing aids from Advanced Hearing for $3,800.00. W. J. paid the full purchase price, by credit card, before leaving. On the credit card receipt that W. J. received were written the words, "no refunds." The "purchase agreement" that W. J. signed had a "guarantee date" of "2 yrs." and contained the following provisions: Within a period of one year after delivery patient may have these instruments serviced at Advanced Hearing Center, Inc. without any cost under the terms of the guarantee issued by the manufacturer. As the degree of satisfaction is dependent upon user, motivation, diligent adherence to instructions, and proper use of this prosthesis, all warranties are confined to those issued by the manufacturer. Examination, test, and other representations are non-medical and for the sole purpose of fitting hearing aids. I hereby acknowledge that I have been provided information concerning the advantages of telecoils, "t" coils, or "t" switches; which included the increased access to telephones and assistive listening systems. I have been provided in writing with the terms and conditions of the 30-day trial period and money back guarantee; with notice of my right to cancel the purchase within 30 days of receipt of the hearing aid(s) for a valid reason based on a failure to achieve a specific measured performance such as sound improvements or improved word discrimination. It shall be the responsibility of the person selling the hearing aid(s) to maintain the audiometric documentation necessary to establish the measured improvement. If the hearing aid must be repaired, or adjusted during the 30- day[] trial period, the running of the 30- day trial period is suspended one day for each 24 hour period that the hearing aid is not in the purchaser's possession. A repaired, remade, or adjusted hearing aid must be claimed by the purchaser within three working days after notification of availability. In the event of cancellation within the 30-day trial period, the seller may retain a charge not to exceed $150.00 on a monaural fitting (one hearing aid) and $200.00 on a binaural fitting (two hearing aids) for earmolds and services provided to fit the hearing aids. In addition, the purchaser may be charged a cancellation fee not to exceed 5% of the total purchase price. If the hearing system improves word discrimination, which the seller has the right to test and document, no refund will be issued. If a problem arises you should return immediately to the office listed above. In the event a complaint concerning a hearing aid and/or guarantee cannot be reconciled, you may contact the Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, FL 32399-0783. Telephone Number (904) 488-6602. I understand that this purchase agreement comprises the entire agreement and no other agreement of any kind, verbal understanding or promise whatsoever will be recognized or be binding upon Advanced Hearing Center, Inc. THE USE OF A HEARING AID WILL NOT RESTORE NORMAL HEARING, NOR WILL IT PREVENT FURTHER HEARING LOSS. After the "purchase agreement" was signed, Respondent made earmolds to send to Starkey. The earmolds, along with a manufacturer's order form that Respondent had completed, were subsequently sent to Starkey. On the order form, Respondent provided information concerning the results of the air conduction testing, but not of the bone conduction testing, he had performed on W. J. The J.s left Advanced Hearing following their April 1, 1997, visit without taking a copy of the signed "purchase agreement" with them. At their request, Respondent mailed them a copy of the "purchase agreement," which they received sometime on or about Saturday, April 5, 1997, along with the following cover letter, dated April 1, 1997: Thank you both for coming to Advanced Hearing Center and mutually deciding to purchase your new hearing system. I am confident that the Starkey Sequels will improve your hearing, especially since it minimizes distortion of louder sounds as we thoroughly discussed. Your custom order is being processed and we will notify you when it comes in to set an appointment for the fitting and pick up of your new instruments. Also enclosed please find another copy of the purchase agreement. It was not long after the J.s had left Advanced Hearing on April 1, 1997, that they started having second thoughts about the purchase they had made. The next morning (April 2, 1997), they telephoned Respondent and advised him of their "doubts" and concerns regarding the purchase. Respondent "talked it out" with them, and, at the end of the conversation, the J.s expressed their willingness to "accept the delivery" of the hearing aids. W. J., again accompanied by his wife, returned to Advanced Hearing on Tuesday, April 8, 1997, to be fitted with the new hearing aids. He had not seen a medical doctor since his last visit to Advanced Hearing. When Respondent first fitted W. J. with the new hearing aids, W. J. told Respondent that he heard a whistling noise. Respondent thereupon removed the hearing aids and, using a "metal probe," took wax out of both of W. J.'s ears. He then again fitted W. J. with the new hearing aids. This time W. J. did not hear any whistling noise or other feedback. Respondent proceeded to test and measure W. J.'s hearing. The audiometric test results, which were reduced to writing and placed in the patient file Respondent maintained on W. J., revealed that, with the new hearing aids, W. J. enjoyed a significant improvement in hearing. Following the testing, the J.s accepted delivery of new hearing aids. Respondent provided the J.s with a copy of the "purchase agreement" that W. J. had signed during his previous visit to Advanced Hearing, on which Respondent had added the serial numbers of the new hearing aids and the date of delivery (April 8, 1997). W. J. left Advanced Hearing on April 8, 1997, wearing the new hearing aids. Sometime after leaving Advanced Hearing, W. J. began hearing the same whistling noises that he had heard when Respondent had first fitted him. After returning to New Jersey on April 9, 1997, the J.s brought the new hearing aids to a New Jersey audiologist to be serviced. The New Jersey audiologist told the J.s that to correct the whistling problem new earmolds would have to be made. She further advised the J.s that she "would have to charge [them] a considerable amount of money" to make these earmolds. Respondent was not furnished a signed written request from W. J. requesting that Respondent release to the New Jersey audiologist the records in the file Respondent maintained on W. J. Accordingly, Respondent never sent the New Jersey audiologist these records. On May 1, 1997, the J.s shipped the new hearing aids back to Respondent, along with a letter (dated that same day, May 1, 1997), in which they demanded a "full refund" based upon their claim that the hearing aids neither fit nor worked properly. On May 5, 1997, Respondent refused delivery of the package containing the hearing aids and the letter. Thereafter, on or about May 6, 1997, W. J. filed a complaint against Respondent with Petitioner. The J.s re-sent to Respondent the May 1, 1997, letter requesting a "full refund." The letter was delivered to Respondent on May 9, 1997. Respondent refused to provide the refund that the J.s had demanded because he believed that, inasmuch as he had the audiometric documentation necessary to establish that the hearing aids significantly improved W. J.'s hearing, the J.s did not have a "valid reason," under the existing law, to void their purchase of the hearing aids. Respondent did agree, however, to pay for a qualified person in New Jersey to make earmolds for W. J. so that the problem with the hearing aids could be corrected. He also offered to take the hearing aids back and exchange them for Siemens Music hearing aids. Neither of these offers, though, was acceptable to the J.s. Unsuccessful in their efforts to obtain a refund from Respondent, the J.s sought redress from their credit card company. The credit card company sent the J.s the following letter, dated May 30, 1997: This is in reference to the billing error from ADVANCED HEARING CTR in the amount(s) of $3,800.00. Based on the information you have provided, we have removed the item(s) from dispute and issued a credit to your current account. Please be advised that the merchant has the opportunity for rebuttal. If this occurs, we may need to contact you for further information if deemed necessary to support your case. However, if the merchant can provide documentation that proves the charge(s) to be valid, we will have no alternative but to place the charge(s) back on your account. If this is necessary, we will send you a written explanation. . . . Respondent, on behalf of Advanced Hearing, took advantage of the "opportunity for rebuttal" provided by the credit card company. The matter was finally resolved in October of 1997, with the credit card company siding with the J.s. The end result of the dispute resolution process was that the J.s were made whole and $3,800.00 was "charged back" to Advanced Hearing's account. In early December of 1997, Respondent discovered that there were several files missing from his office. He suspected a disgruntled former employee whom he had recently terminated. (The employee's personnel file was among the missing files.) Respondent contacted the Palm Beach County Sheriff's Office, which investigated the matter. The deputy that conducted the investigation found no signs of forced entry. No arrests were made as a result of the investigation. Following the completion of the investigation, Respondent found that there were other files, including W. J.'s patient file, that were missing. Respondent made an effort to recreate the documentation that was in W. J.'s file. He contacted Starkey and obtained, over the telephone, the test result information that he had included on the manufacturer's order form he had sent to Starkey. He recorded this information on an Audiometric Case History and Tests form that he uses in his practice. On the form, he wrote that this was "partial information obtained from manufacturer." In January of 1998, Respondent's secretary inadvertently charged the J.s' credit card account $3,800.00. The mistake was subsequently rectified. Sometime in 1998, the J.s mailed to Respondent the hearing aids they had purchased from Advanced Hearing the year before. This time Respondent accepted delivery. The hearing aids were "not in working order" when they were received by Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order dismissing the Administrative Complaint issued against Respondent in its entirety. DONE AND ENTERED this 29th day of May, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 29th day of May, 2001.
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
Findings Of Fact During the period from September 3 through September 7, 1974, the Respondent, Dr. Thomas A. Mullin, undertook to perform audiological testing on various patients and staff at University Convalescent Center West (UCCW) and University Convalescent Center East (UCCE) in Deland, Florida. These two convalescent centers, although owned by the same corporation, were at that time separate and distinct facilities, each having its own administrator. UCCW was located at 545 West Euclid Avenue in Deland, Florida, and its administrator was Arthur Anderson. UCCE was at that located at 991 East New York Avenue in Deland, Florida, and its administrator was Gelatha Koranda. Dr. Mullin obtained permission from Arthur Anderson to conduct audiological tests at DCCW and through Anderson's recommendation obtained access to UCCE. Anderson's permission was obtained by Dr. Mullin subsequent to a discussion between Mullin and Anderson in which Dr. Mullin discussed audiological screening of the convalescent center's patients by audiology students from Florida Technological University under Dr. Mullin's supervision. In addition, Dr. Mullin and Andersen discussed a new Medicaid program under which hearing testing and hearing aids could be provided to Medicaid patients. The acquisition of hearing aids under this program was dependent upon the recommendation of an audiologist approved by Medicaid. Dr. Mullin advised Anderson that he wad so approved by MedicaId and would be glad to provide this service to patients of the nursing home at the time the audiological screening was done. Mullin told Anderson at this initial conference that he would test Medicaid patients and bill Medicaid for his professional services and that the nursing home would not be billed. It was further agreed that Dr. Mullin would provide Anderson a report on the patients. These audiological tests were subsequently conducted on Anderson's authority and without the permission and knowledge of Dr. Rauschenberger, house physician for the two nursing homes and in some instances personal physician of some of the patients. Prior medical authorization is not required for audiological testing in general practice or under the Medicaid program. After the testing program was completed, Dr. Mullin reported in writing to Mr. Anderson the results of the residents and staff at UCCW. Koranda, the administrator at UCE, had not requested a report be filed with her regarding Dr. Mullin's findings, and no report was rendered to her by Dr. Mullin. In neither instance did the administrators request or authorize Dr. Mullin to enter his findings in the patient's medical records maintained at the centers and no such entries were made. Expert testimony varied regarding the obligation of an audiologist to make entries in a patient's record. How ever, it was generally agreed that an audiologist would not make entries on a patient's record without authorization by the administration of the health care facility when testing was not the result of medical referral. As a result of his testing at UCCW, Dr. Mullin prescribed hearing aids for Alfred Miller, Sallie Porter, Ruby Allen, Minnie Jennings, Florence Rogers, and Agnes Flowers, all of whom were Medicaid patients. As a result of audiological testing at UCCE, Dr. Mullin prescribed hearing aids for Jessie Robinson, Maggie Smith, Clara Brown, Emma Van Landingham, Emily Burkhart, Della Stone, and Lenora Gell, all of whom were Medicaid patients. Dr. Mullin prepared prescriptions for hearing aids on the persons named above, and forwarded these prescriptions to Orange Hearing Aid Center in Orlando, Florida which provided and fitted the hearing aids to the individuals. Dr. Mullin submitted the bill directly to the Department of Health and Rehabilitative Services for his professional services in screening Medicaid patients' hearing and for his professional services in screening and prescribing heading aids for Medicaid patients. Dr. Mullin's basic hearing evaluation test consisted of a pure tone air conduction test. Dr. Mullin conducted further testing if necessary to include a pure tone bone conduction test, speech discrimination test, and speech reception threshold test. A master hearing aid was used for the hearing aid selection process and an audiometer used for the basic testing. Dr. Mullin prescribed hearing aids on the basis of these latter tests Dr. Mullin had planned to conduct all testing in a specially adapted trailer, but was unable to use this trailer because of the immobility of the patients. A bathing facility or "tub room" in each of the nursing homes was provided by the nursing home administration for conducting the tests, and represented to be the only facility available for the testing. These facilities were not ideal in terms of their construction and location for conducting audiological testing. However, Dr. Mullin took what measures he could to reduce ambient noise levels, to include the use of aural domes. No clear and convincing evidence was introduced that the noise conditions during Dr. Mullin's tests were so bad that his test results were invalid. In fact, subsequent tests made by the Board revealed that the patients tested by Dr. Mullin were hard of hearing, although some of the results differed slightly in degree of loss. Subsequent to the testing, as mentioned above, Dr. Mullin filed a written report with Arthur Anderson, administrator of UCCW. This report was rendered on the letterhead of Florida Technological University. This report revealed that Rogers, Silfies, Bowen, Covington, Peppett, Trodden Turner, Farrow, Howard, and Tidson had normal hearing. The report contained specific comments with regard to Rolle, Rigsbee, Goodrich, Rosato, VonDohler, Shalhoub, Thompson, Owens, Murkinson, Tholl, and Hocker. Silfries, Rolle, Owens, Peppett, Goodrich, and Hocker were Medicaid patients upon whom Mullin submitted billings to Medicaid through the Department of Health and Rehabilitative services. The comments on Thompson, Owens, Murkinson and Tholl indicate referral to otolaryngologists. The specific comments with regard to Rolle, Goodrich, Rosato, and Shalhoub indicate a hearing loss but no recommendation for a hearing aid due to some specific contra-indication. The billings submitted to Medicaid through the Department of Health and Rehabilitative Services are consistent with the findings reported in Exhibit 3. The billings were for basic hearing evaluations on those Medicaid paie:ts who were determined to have normal hearing and for selective amplification procedures in addition to basic evaluation for those patients whose hearing was not normal. The billings are substantiated by the report filed with Anderson and the audiograms prepared. However, the report does reveal that Herman Owens, who was referred to an otolaryngologist for removal of impacted cerumen in the right ear, received both basic hearing tests and selective hearing amplification procedures, both of which were billed to Medicaid; and J. L. Hocker received selective amplification testing although Mullin's comments indicated that Hocker's right ear had recently undergone surgery for removal of a carcinoma. However, Medicaid's criteria for testing were not introduced and no evidence was introduced, that a patient with impacted ears should not be tested. Also this report contains no reference to the patients for whom Dr. Mullin had prescribed a hearing aid. The report does reveal that where contra-indicated, whether because of the nature of the hearing loss, as indicated with Rolle and Rosato, or patient attitude, as in the case of Goodrich, Dr. Mullin did not prescribe a hearing aid. This relates particularly to the allegation that Dr. Mullin prescribed hearing aids for certain patients who did not want hearing aids, and an implication made that Dr. Mullin recommended hearing aids for patients who could not benefit from them. This report which is on Florida Technological University letterhead is the sole support of the charge that Dr. Mullin misused his connection with Florida Technological University. It is clear that this report was rendered after the testing had been concluded. Clearly, his report rendered after the testing on the letterhead of Florida Technological University could not have been an inducement to Anderson to permit Mullin access to the convalescent center. However, the fact is clear that Dr. Mullin did make a personal profit for a venture undertaken in connection with an otherwise authorized university activity. The evidence indicates that the hearing aids prescribed by Dr. Mullin and provided by Orange Hearing Aid Center were fitted by Merrill Schwartz. Schwartz fitted these hearing aids at UCCW and UCCE. There is no indication that UCCE or UCCW failed to cooperate in any way with Schwartz gaining access to the patients and fitting them with aids. To the contrary, the evidence indicates that both centers cooperated fully in providing Schwartz the opportunity and facilities to fit the hearing aids. The fact that both centers did not question the fitting of the hearing aids substantiates Dr. Mullin's assertion that Anderson expected hearing aids to be fitted to patients under the Medicaid program. Expert testimony was received that the only positive evaluation of the utility of the hearing aid to a patient is a trial by the patient using the aid to include counselling on the use and benefits of the hearing aid to overcome a patient's possible aversion to the aid. Dr. Mullin testified that he had prescribed the aids on a thirty day trial basis, and his audiograms substantiate this. However, his prescriptions to Orange Hearing Aid Center did not reflect any trial period. Merrill Schwartz, the hearing aid salesman for Orange Hearing Aid Center, stated that he fitted the aids from the prescriptions and no trial period was stated. However, the current owner, Irwin Pensack, stated that during his transitional period in taking over Orange Hearing Aid Center from Emmanuel Gitles, that Gitles had impressed upon him the importance of maintaining good customer relationships and providing trial periods routinely when requested. Why the 30 day trial was not included in the prescription was not explained by Dr. Mullin, who stated it was his understanding they were for a 30 day trial. However, in this same regard, the evidence further reveals that none of the staff at UCCW or UCCE contacted Dr. Mullin or Orange Hearing Aid Center with regard to followup counseling or return of the hearing aids when the patients failed to properly use them. It is questionable how effective a 30 trial period would have bean under the circumstances. No evidence was presented to show hat Dr. Mullin received any type of "kickback" or other benefit from Orange Hearing Aid Center. Although substantial and competent evidence was introduced that some of the patients who were fitted with the hearing aids were senile, expert testimony was received that such a condition is not a contra-indication of the need and benefit to the patient of the use of a hearing aid. This is particularly true since the effects of deafness and senility subjectively reinforce one another. Expert testimony was also received that an audiologist would not routinely provide followup services subsequent to audiological testing and the prescription of a hearing aid unless requested to do so by the patient or the hearing aid dealer. The evidence indicates that Dr. Mullin did not receive any requests for followup from either UCC er UCC on behalf of any of the patients for whom hearing aids were prescribed, from patients themselves, or the dealer. The one call made from a patient who had received a hearing aid was made to Orange County Hearing Aid for followup services or repair. Said services were provided by Orange Hearing Aid Center, and indicates that this patient was using the hearing aid. The bills submitted to Medicaid through the Department of Health and Rehabilitative Services were in accord with Medicaid's published schedules for the professional services rendered by Dr. Mullin. There is no substantial and competent evidence that Mullin charged for work he did not do or overcharged for the work that he did.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, the Hearing Officer recommends that no action be taken against the certificate of Thomas A. Mullin as a speech pathologist and audiologist. DONE and ORDERED this 26th day of October, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Howard R. Marsee, Esquire Post Office Box 20154 Orlando, Florida 32814 Gene Sellers, Esquire General Counsel's Office Department of Education Knott Building Tallahassee, Florida 32304 James M. Russ, Esquire 441 First Federal Building 109 East Church Street Orlando, Florida 32801
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 issues in these two consolidated cases concern whether Respondent committed several violations alleged in two separate administrative complaints and, if so, what penalties should be imposed.
Findings Of Fact At all times material to these consolidated cases, Respondent was a licensed hearing aid specialist in the State of Florida, having been issued license number AS 2169. On or about February 8, 2001, S. K. visited Respondent's business located at 3971 Jog Road, Suite 7, Greenacres, Florida, in order to buy hearing aids. On that day S. K. purchased two Audibel brand hearing aids. The invoice provided to S. K. clearly indicates that he was purchasing Audibel brand hearing aids. There is no mention of Beltone anywhere on the invoice. The two hearing aids purchased by S. K. on February 8, 2001, were delivered to S. K. on February 23, 2001. Hearing aids of the type purchased by S. K. are specially manufactured to address the specific needs of each patient. Accordingly, the hearing aids must be manufactured after the contract is entered into. At the time of the delivery of the hearing aids, S. K. was provided with an invoice that contained the name of the manufacturer, the serial numbers of the hearing aids, and the two-year warranty by Audibel. S. K. returned several times for adjustments to the new Audibel brand hearing aids. On March 20, 2001, the hearing aids were sent to the factory to change the volume control to a screw set control. The repair agreement document filled out by Respondent on March 20, 2001, contains the Beltone name and logo in one corner, but does not otherwise mention Beltone. The hearing aids were returned to S. K. on March 29, 2001. Sometime thereafter, S. K. decided to spend the summer in Connecticut. Before leaving for Connecticut, S. K. asked Respondent's secretary for the name of a Beltone dealer near his Connecticut address. The secretary provided the requested information. S. K. mistakenly thought he had purchased Beltone brand hearing aids from Respondent until June 24, 2001, when S. K. visited a Beltone dealer in Connecticut for adjustments. On or about June 24, 2001, a Beltone dealer in Connecticut wrote a letter to Respondent on S. K.'s behalf requesting a refund for S. K. Respondent did not state or imply to S. K. that Respondent was selling Beltone brand hearing aids to S. K. To the contrary, Respondent specifically told S. K. that Respondent was selling Audibel brand hearing aids to S. K.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Hearing Aid Specialists enter a Final Order concluding that all counts in both Administrative Complaints in these two consolidated cases should be dismissed because the evidence is insufficient to prove the violations alleged by clear and convincing evidence. DONE AND ENTERED this 24th day of July, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2003.
Findings Of Fact Until August 24, 1974, Petitioner was holder of Certificate of Registration No. 173-06-68, and Renewal Certificate No. 466, which authorized him to act as a hearing aid fitter and salesman in the State of Florida. In 1974, as a result of investigations and conferences conducted by representatives of HRS, it was determined that Petitioner had falsified his application for the above referenced licenses in 1968 when he failed to reveal that in 1955 he had been arrested and convicted of armed robbery, and had served one year in confinement for that offese. Petitioner was duly served with notice (Hearing Officer's Exhibit #3) that proceedings had been commenced to revoke his license to fit and sell hearing aids. In the course of proceedings to revoke his license, Petitioner and HRS entered into a Consent Order (Hearing Officer's Exhibit #1) dated March 19, 1974. In that order, Petitioner agreed to a suspension of his license for a period commencing February 1, 1974, and ending May 2, 1974, and further agreed that thereafter he would be "on a period of supervision for a five-year period. The conditions of this "supervisory period were that Petitioner would submit quarterly reports to HRS containing copies of all contracts for hearing aids sold by him in the State of Florida, the name and address of his employer, and Petitioner's residence address. Under the terms of the Consent Order, any failure by Petitioner to comply with the terms of the agreement constituted grounds for cancellation of his license. Petitioner failed to file the necessary report due on August 1, 1974, with HRS, and, on August 21, 1974, HRS served a Notice of Revocation (Hearing Officers Exhibit #2) advising him that his license had been cancelled for noncompliance with the Consent Order. At the time Petitioner's initial report was due under the terms of the Consent Order he had left Florida to seek other employment in California. At the time of the entry of the Consent Order, Petitioner was employed by Lunex, Inc. in St. Petersburg. He left that position shortly after entry of the order, and was unemployed for a period of approximately six months. Since Petitioner was unemployed, and had made no sales of hearing aids during the period covered by the report which was to have been filed August 1, 1974, his only technical violation of the Consent Order was failure to report his residence address to HRS. Even so, when the August 1, 1974, report became due, Petitioner had no permanent residence address in Florida or elsewhere in that he was actively engaged in seeking employment, both in Florida and in California. Petitioner is now a legal resident of the State of Florida, and has had over ten years experience in the fitting and selling of hearing aids. He is presently employed by Ray Black, Inc., a company qualified to engage in the fitting and selling of hearing aids in Florida. Since his license was revoked in 1974, Petitioners's activities with his present employer are necessarily limited to hiring and training hearing aid salesmen. Ray Black, Inc. is an established hearing aid business, open during normal business hours with a permanent business address at 8001 North Dale Mabry, Tampa, Florida. A representative of Petitioner's current employer testified that his work had been very satisfactory since joining Ray Black, Inc. in March, 1978. Petitioner is now 42 years old. The reasons for the initial revocation of his license were his failure to disclose an arrest and conviction for armed robbery which occurred when he was 18 years old, and his subsequent failure to abide by the terms of the Consent Order (Hearing Officer's Exhibit #1). There has been no evidence of any violation of the laws of this or any other state since his conviction in 1955, and his failure to disclose that conviction in 1968. Neither is there any evidence that Petitioner''s performance as a fitter and seller of hearing aids prior to revocation of his license, and as a teacher of salesmen since that time has been less than satisfactory.
Findings Of Fact Daniel C. Throneburg, Sr. (Respondent) is, and has been at all times material hereto, a licensed hearing aid specialist in the State of Florida, having been issued license number AS-0000675. On January 30, 1985, Opal Holbrook agreed to purchase two "Nu Ear" rechargeable hearing aids from Respondent after he had tested her hearing and recommended this hearing aid. The total price of the hearing aid was $1,990. The following was included on the order form signed by both Respondent and Holbrook: If within 7 days of the date of delivery you are not completely satisfied, you will receive a refund less $50.00 fee provided you have kept a scheduled appointment within 72 hours of the date of delivery, to allow the specialist to make necessary adjustments for fit, comfort and personal listening pleasure. Respondent received the "Nu Ear" hearing aids from the manufacturer on or about February 26, 1985, and Holbrook thereafter kept her scheduled appointment within 72 hours of delivery, was fitted, and completed payment in full on February 26, 1985 in the amount of $1,990. Four days after receiving the hearing aids, Holbrook returned to Respondent because she still could not hear. Respondent made some adjustments, and told her to try them for another three or four days. She still could not hear, however, and therefore Holbrook requested a refund from Respondent after attempting to use the hearing aids for about a week. Respondent again asked that she try them a little longer. Holbrook returned numerous times during March, 1985 because her hearing aids had not improved her hearing. Respondent referred her to Mark Krywko for counseling, and adjustments, and she asked Krywko for a refund. Instead, he took an impression of her ears, and made some adjustments in the hearing aids, including boring a hole in them and adding an air hose. Respondent was usually not present when Krywko made these adjustments, counseled her on the use of hearing aids, or when Krywko took the impressions. After numerous attempts to adjust the Nu Ear hearing aids had failed, Respondent agreed to "remake" the hearing aids. Basically, he agreed to exchange the Nu Ear aids for another make. On or about April 19, 1985 Holbrook signed a receipt for Electone hearing aids which she received as replacement for the Nu Ear aids. This receipt states: Any modifications necessary will be performed based upon acceptable industry standards and the manufacturers' warranty. I understand the specialists' responsibility is fitting the hearing instrument(s) and to counsel me in the use of the aid and to mail any aid to the manufacturer for custom modifications. In the unlikely event, I am not happy with the instrument, I understand, I can request and receive another instrument from a different manufacturer at no additional charge within 60 days. Requests for any and all refunds are not allowed. I also understand that if my hearing loss has been progressive and has deteriorated, it will be necessary to return to the office for counseling which will be provided by the hearing aid specialist at "NO EXTRA COST". Holbrook was still unable to hear with the Electone hearing aids and requested a refund. To date, no refund has been provided by Respondent to Holbrook. Respondent stipulated that Holbrook received his business card at his place of business. The card represents that Respondent is a certified hearing aid audiologist, which he is not. Mark Krywko is not a licensed hearing aid specialist in the State of Florida, but at all times material hereto he was in an approved trainee program. At the request of Respondent, he repeatedly made adjustments on Holbrook's hearing aids, took an impression of her ears, gave her the receipt referred to in Finding of Fact 6 when the replacement hearing aids were delivered to her, and counseled her on the use of hearing aids. As such, he engaged in dispensing hearing aids, as defined by Section 484.041(3), Florida Statutes, at the request of Respondent who knew that Krywko was not licensed at the time. Respondent was not present most of the time Krywko performed these services for Holbrook. The receipts which Respondent provided to Holbrook for the Nu Ear and Electone hearing aids did not refer the buyer to the Board of Hearing Aid Specialists for the resolution of complaints, and also did not contain the disclaimer required by Section 484.051(2), Florida Statutes.
Recommendation Based on the foregoing, it is recommended that Petitioner enter a Final Order imposing an administrative fine on Respondent in the amount of $1,000, and placing Respondent on probation for a period of six months, conditioned upon his refunding to Opal Holbrook $1940, the full amount she paid for the hearing aids less a $50.00 fee; in the event Respondent does not pay the administrative fine and complete the refund required herein within thirty days of entry of the Final Order, it is further recommended that Respondent's license be suspended for one year in lieu of the six month period of probation and administrative fine. DONE and ENTERED this 18th day of December, 1986 in Tallahassee, Florida. DONALD D. CONN 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 18th day of December, 1986. COPIES FURNISHED: Ray Shope, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 2301 Daniel C. Throneberg 8104 Brit Drive Orlando, Florida Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner's application for renewal of his certificate of registration to fit and sell hearing aids should be denied here he establishes that he satisfactorily completed the required continuing education course during the year of his application, rather than during the previous calendar year.
Findings Of Fact On January 29, 1980, the Applicant submitted to the Department a completed application for renewal of his 1979 Certificate of Registration to Dispense Hearing Aids in Florida. (Petitioner's Exhibit 1). At the time of his application (January, 1980) the Applicant was unable to provide evidence of having completed at least ten hours of an approved continuing education course relating to the fitting and selling of hearing aids. He was, however, in the process of attending such a course at the University of Central Florida, which he successfully completed during February, 1980. (Petitioner's Exhibits 1 and 2, Testimony of G. L. BOOTHE) The Department proposed to deny the applicant's request for renewal on the sole ground that his application failed to show that the required continuing education course had been completed prior to his application, and during the prior calendar year 1979. (Testimony of G. L. Boothe) On July 21, 1978, and again on October 1, 1979 the Department notified all registered hearing aid dispensers, including the Applicant, of the new continuing education requirement enacted by the 1978 Florida Legislature. The Applicant received such notice, and was aware of this new requirement. (Respondent's Exhibits 1 and 2, Testimony of G. L. BOOTHE) Between 1969 and February, 1979, the Applicant was licensed by the State to fit and sell hearing aids, and was employed by the Beltone Hearing Aid Company. In February, 1979, he left the company and was considering retirement. (Testimony of G. L. BOOTHE) The Applicant failed to take the required continuing education course during 1979 because, from February 1979 through January, 980, he was uncertain whether he would surrender his license or continue in the business of fitting and selling hearing aids. During January and February, 1980, he entered the employment of the Orange Hearing Aid Center, Orlando, Florida for the purpose of fitting and selling hearing aids. He, therefore, applied far the renewal of his license, and successfully completed the required continuing education course. (Testimony of G. L. Boothe)
