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
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 factual issues presented for determination are as follow: Are the allegations of the Administrative Complaint true? Did Respondent have the required scienter with respect to the violations alleged in the Administrative Complaint? Various legal and procedural issues were raised and previously disposed of by written order prior to the final hearing. This order will not contain a recital of those interlocutory actions. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact At all times relevant to this proceeding, the Respondent was employed by and president of Gainesville Hearing Aid Company, and registered by the Department of Health and Rehabilitative Services for the fitting and sale of hearing aids. On or about September 13, 1979, Respondent sold to Lawrence J. Murphy a certain Dahlberg hearing aid, serial #VEI7AA, while representing to Mr. Murphy that the hearing aid was new, when in fact the hearing aid had been previously owned by Peter Fancher. The written contract of sale for this hearing aid did not indicate whether the hearing aid was new or used. The Dahlberg hearing aid sold to Murphy had been sold to P. D. Fancher on April 25, 1977, by Respondent. The hearing aid was returned to Gainesville Hearing Aid Company on May 17, 1977, by Mr. Fancher for full refund. The inventory records of Gainesville Hearing Aid Company show the sale and the return for refund. This hearing aid was used. On or about September 12, 1979, Respondent sold to Oran Ledbetter a certain Audiotone hearing aid, serial #28S-7963102, while representing to Mr. Ledbetter that the hearing aid was new and indicating on the written contract of sale that it was new, when in fact that same hearing aid had previously been owned by D. L. Bentley. The Audiotone hearing aid sold to Ledbetter had been sold to D. L. Bentley on March 27, 1979, by Gainesville Hearing Aid Company together with another hearing aid not material to these proceedings. These hearing aids were delivered to Mr. Bentley on April 16, 1979. The subject hearing aid was returned to Gainesville Hearing Aid Company by Bentley some four to five months later and was returned to the inventory of the company as a used hearing aid. This hearing aid was used. On or about February 2, 1978, Respondent sold to Virginia Collette a Dahlberg hearing aid, serial #TW22AH7, representing to Ms. Collette and showing on the contract of sale for the hearing aid that it was new, when in fact the hearing aid had been previously owned by Joseph E. McIntire. This hearing aid was used. The Dahlberg hearing aid sold to Ms. Collette had been sold to J. C. McIntire by Gainesville Hearing Aid Company on October 14, 1977, on an installment contract calling for $95 down and monthly payments of $43 per month for 24 months. Mr. McIntire fell behind in his monthly payments and subsequently died. An unidentified member of the family returned the hearing aid to Gainesville Hearing Aid Company, and the company subsequently collected some $989 from McIntire's estate. While the inventory records reflected that the hearing aids above were used, there is no evidence that Respondent was aware of this information in the cases of Murphy and Ledbetter. At the time Respondent left the offices of Gainesville Hearing Aid Company to make the sale of the Dahlberg hearing aid to Ms. Collette, he requested his employee, William Glance, to bring him a hearing aid from inventory. Mr. Glance brought Respondent the Dahlberg hearing aid and at that time advised him it was a used hearing aid. Respondent permitted his daughter, Angie Gardner, who did not hold a certificate of registration or a learner's permit, to conduct audiograms, to fit and sell hearing aids, and to conduct hearing aid examinations at various times during 1979. This included in particular November 2, 1979, when Angie Gardner was permitted to run a hearing test on a Mrs. Jones, who objected to the performance of the examination by Respondent's daughter. Respondent subsequently sought the advice of Ralph Gray as to the legality of permitting Angie Gardner to conduct these tests and, on being advised that it was contrary to law, discontinued this practice.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Respondent, William Hunter Gardner, be fined administratively $500 for each violation of the statute for the three violations of Section 468.130(1) and thereby Section 468.129(3), Florida Statutes, and have his license suspended for a period of two years for the violation of Section 468.130(2), Florida Statutes, the enforcement of the suspension to be suspended upon Respondent's demonstrated good conduct and adherence to the statutes, rules and regulations during that period. DONE and ORDERED this 28th day of September, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1982. COPIES FURNISHED: Joseph E. Hodges, Esquire Department of HRS 2002 North West 13th Street Oak Park Executive Square Gainesville, Florida 32601 George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 David H. Pingree, Secretary Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301
The Issue There are two issues in these consolidated matters. First, in Case No. 86- 4708, the issue is whether the Respondent, Samy H. Helmy, D.V.M. (Helmy), committed fraud, deceit, negligence, incompetency or misconduct in the practice of veterinary medicine by his conduct toward Karen Scalzi, in violation of Section 474.214(1)(p), Florida Statutes. The issue in Case No. 87-0525 is whether Helmy is unable to practice veterinary medicine with reasonable skill and safety to patients by reason of illness, drunkenness, use of drugs, narcotics, chemicals or any other material or substance or as a result of any mental or physical condition, in violation of Section 474.214(1)(h), Florida Statutes. Immediately upon convening of the formal hearing, the Respondent moved for a continuance. The motion was denied. The Petitioner, Department of Professional Regulation, Board of Veterinary Medicine, presented the testimony of Christine Stewart, Karen Scalzi, Charles L. Ivey, John Sebring, Lisa Ellis, Faith Kendrick, John Chaney, James Adams, Patricia Stoltz, Gustave Galik, Joanne Keegan, Joann Mulroy, and Dr. Michael Gutman. Petitioner had two exhibits admitted in evidence. Helmy presented the testimony of Dr. William Corwin, Susan Burns, Marie Alexander, Anne Alexander, Anne Lorne, Ralph Benfield, Joyce D. Andrea, Juanita Anderson, Mary Ann Thomas, Mohammed Helmy, and Samy Helmy. Respondent also had three exhibits admitted into evidence. The parties submitted proposed findings of fact and conclusions of law. All proposed findings of facts and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part of this Recommended Order.
Findings Of Fact At all times material to these proceedings, Samy H. Helmy, D.V.M., was a licensed veterinarian in the State of Florida, having been issued license No. VM-2884. Helmy operated the Citrus Fair Animal Hospital in Inverness, Florida. On August 4, 1986, Karen Scalzi took her cat to Helmy to be spayed. Helmy quoted her a price of $25 for spaying, plus $15 for shots. Scalzi agreed, paid the price, and left her cat. Later that same day, Helmy called Scalzi and said the cat was pregnant, he had aborted six kittens and there would be an additional charge of $5. Scalzi agreed to pay the additional price. On August 5, 1986, Scalzi went to Helmy's office at 12:05 p.m. to pick up her cat. The office was closed and a signon the door indicated that the clinic was closed for lunch between 12 and 2:00 p.m. Scalzi went back to the clinic at 2:00 p.m. that afternoon and waited until 3:30 p.m. No one opened the clinic. Scalzi returned to her employment and called Helmy at his home. Helmy advised her that he was out sick and that she could pick up her cat the following day. The following day, August 6, 1986, Scalzi returned to Helmy's clinic to pick up her cat. Scalzi placed $5 on the counter and asked for her cat. Helmy advised her that there was an additional charge of $20 for the extra day of boarding the cat. Scalzi questioned the extra charge and Helmy went to the back of the clinic. He returned with a clear plastic bag in his hand containing dead kitten fetuses. He began yelling at Scalzi that she was going to pay for this and he drew back his arm as if to throw the plastic bag at her. Scalzi ran from the clinic and called the police. The police advised Scalzi to return to the clinic, pay the money, get a receipt, retrieve her cat, and then file a complaint. Scalzi returned to the clinic, placed $25 on the counter and asked for her cat. At that time, Helmy began screaming obscenities at Scalzi, spitting and making choking motions with his hands. Finally, Helmy returned the cat to Scalzi and eventually Scalzi did get a receipt from Helmy. Throughout this incident, Helmy made such statements to Scalzi as follows: "You F'ing Bitch," "I'm going to remember your F'ing face," "You ought to be kissing my ass," and "I don't need to hear your F'ing bullshit." On another occasion, Christine Stewart took her puppies to Helmy for a vaccine. While she was there, Helmy took her into his office and showed her a list of his patients, bragging to her how many patients he had. Following that, he began drawing out vaccines into a needle from two or three different bottles. Stewart became concerned because she raises toy animals and they are quite fragile. When she asked what she was giving the puppies, Helmy became "violently enraged." He grabbed Stewart by the arm, left a bruise and an abrasion, grabbed the crate with the puppies in it and took them away. He insisted that she must pay for the vaccine before he would return her puppies. Stewart left and called the police. A police officer went into Helmy's clinic and arranged for the return of Stewart's puppies. At some time during the course of Helmy's violent outburst, he "slammed" Stewart against the wall. In early June 1986, Charles L. Ivey, Jr., an investigation manager for the Department of Professional Regulation, went to Helmy's new animal clinic to advise Helmy that he did not have the appropriate permit for the new establishment and that he heeded to get a permit. Ivey entered the building, eventually spoke with Helmy, and discussed the premises permit with him. As Ivey left, he placed one of his business cards on the counter. Ivey exited the building and got into his automobile. Helmy came screaming out of the building. He began beating on the glass of the car window with his fist, after hitting the car glass several times, Helmy screamed, "F You, F You, F You." Ivey drove away. John Sebring, a Vice President at First Federal Savings and Loan Association of Citrus County, encountered Helmy's violent and obscene behavior on two occasions. On the first occasion, Helmy came to the bank regarding a loan application which had been denied. He began using oaths and obscenities and making gestures with his hand and arm. He was asked to leave but refused. Sebring called the Inverness Police Department and an officer attempted to escort Helmy from the building. Helmy began threatening and shouting in a loud voice at which time he was handcuffed and forcibly removed from the building. In fact, Helmy was charged with disorderly conduct, pleaded no contest and was fined $250. After the incident in the bank, Mr. Sebring was on foot walking toward the bank building when an automobile driven by Helmy pulled up along side him and Helmy began shouting oaths, obscenities, "including the slang colloquialism for sexual intercourse complete with hand gestures," directed at Sebring. Sebring continued to walk and Helmy drove his vehicle at a slow rate along side of Sebring for approximately one-half block. Helmy continued yelling, screaming, swearing, and using hand gestures. Patrolman Lisa Ellis was one of the police officers called to the First Federal Savings Loan Building on October 31, 1985, in response to the bank's telephone call regarding the disturbance. When patrolman Ellis entered the bank, she could hear someone screaming at the top of his lungs on the second floor. She went to that floor and observed Helmy screaming at an officer of the bank. She asked Helmy to be quiet and he started screaming at her at the top of his lungs. Patrolman Ellis asked Helmy to be quiet on more than three occasions and eventually placed him under arrest. She handcuffed him and escorted him from the bank. During this time, Helmy told Officer Ellis not to touch him because she was a female and he addressed her using the same types of obscenities described above including the "F word." He also told her not to touch him because it was against his religion. In 1985, Helmy became involved in a disagreement with the Citrus County Chronicle, the local newspaper. The dispute was over a bill for advertising. Helmy talked to Faith Kendrick by telephone four or five times. During each telephone conversation Helmy became upset and used a lot of obscenities. He screamed and told Kendrick that all she and the girls in her department needed "was a good -- it starts with a F." John Adams is the Service Manager for a major automotive dealership. The dealership did some repairs on Helmy's automobile and he refused to pay the bill for the repair service on July 16, 1984. After Helmy refused to pay his bill, he and Mr. Adams got into an argument. Helmy tried to leave without paying and Adams stepped in front of the automobile, asking him to give him the keys until the bill was taken care of. Helmy refused, put the car in gear and moved it forward, toward Adams. Adams jumped out of the way. In late summer or fall 1986, Patricia Stoltz took her dog to Helmy to have it put to sleep, after having called Helmy's office and been advised that the cost would be $35. Upon her arrival, Helmy told her if she wanted the dog disposed of it would be $50. When Stoltz mentioned that she hadn't been told of the extra charge, Helmy started shouting at her. By the tone of his shouting, she thought he was hard of hearing, but then "could see that he was enjoying himself." She then asked Helmy for someone to help carry the dog in from her oar. Helmy asked her why she didn't bring someone with her. Helmy eventually went out to the car and gave the dog a shot inside the car. The dog began to shake all over and foam at the mouth. The dog then died and Stoltz left. Later that day, her son called Helmy with Stoltz listening to the conversation. Helmy was abrupt and harsh, and he used obscenities. According to Stoltz, "he had a favorite four-letter word that he was using quite often." In March 1986, Helmy called Gustave Galik, President of the Citrus County Humane Society. Helmy asked about getting the spay and neuter business from that group. Galik told Helmy that it wasn't the business of that organization to tell people where to take their animals. Helmy became very angry, starting called Galik obscene names. Helmy threatened Galik with bodily harm "starting with F in the rear." Galik was frightened and reported the matter to the Sheriff's Department and the District Attorney. Joanne Keegan went to Helmy's office to retrieve a dog which her mother left there following a fight. Keegan did not want Helmy to treat the dog. When she demanded the return of the dog, Helmy became belligerent and demanded that she pay a bill that was astronomical. The bill reflected numerous tests which had not been requested. The dog was only at Helmy's office for approximately ten minutes. Keegan got the dog and took the dog to her own veterinarian. She was upset and returned to Helmy's office later that afternoon to tell Helmy that she didn't "think he was much of a Vet." Helmy started using very obscene language. Helmy told Keegan "F your Vet" and "you should get down on your hands and knees and kiss my feet." Helmy then came out from behind his desk and followed Keegan out to her car "screaming and carrying out like a lunatic." During the summer of 1985, Joann Mulroy had a dog neutered by Helmy. She returned to Helmy a few days later because the dog was swollen and purple and she wanted to ask some questions. Helmy told her to wait a few weeks and she did. However, the dog remained swollen and purple. When she returned to Helmy with the dog, Helmy got "very obnoxious." Mulroy left and took her dog to another veterinarian. Based upon what she was told by the other veterinarian, she returned to Helmy's office and tried to talk to Helmy about the situation. Helmy began swearing and threatening Mulroy. Mulroy thought Helmy was becoming very violent and she left his office. Helmy has a different version of each of the incidents described in the foregoing Findings of Fact. Based upon Helmy's demeanor and testimony which was clearly false, no credibility is given to his testimony. Without detailing every inaccuracy and distortion offered by Helmy, his blatant untruths on the stand are as follows: Helmy told his attorney, the psychiatrist who evaluated him, and the Hearing Officer while Helmy was testifying under oath, that he had never failed a licensing examination. After trying in every way to avoid giving a truthful answer, and when faced with his own application for licensure in Florida, which showed that he failed two licensing examinations in West Virginia and Maryland, Helmy finally admitted that he did in fact fail those examination. Despite admissions to the contrary to both his attorney and the psychiatrist who evaluated him at his request, Helmy testified twice in the proceeding that he had never used profanity, that he had never used obscene language, that he had never used the "F" word and that he had never used the words attributed to him by the witnesses in this case. Even after Helmy had been forced to admit that he had provided false testimony in denying that he had failed two licensing examinations, he again testified under oath that he has never told a lie in his life. Helmy offered the testimony of his son, Mohammed Helmy, to disprove the testimony of Ms. Scalzi. However, the testimony of Mohammed Helmy is also rejected as not credible. Mohammed testified that his father was not "excited" during the discussion with Ms. Scalzi and the confrontation Investigator Ivey. Helmy himself acknowledged that he was very upset during these incidents. Mohammed also testified that he had not talked to anyone about his testimony. However, earlier he acknowledged that his father had told him to "say the truth" and clearly he had discussed his testimony with his father. Two psychiatrists evaluated Helmy in regard to his mental condition and his ability to practice safely. E. Michael Gutman, M.D., a psychiatrist licensed since 1960, Board certified since 1968 and practicing a subspecialty of neurology since 1964, evaluated Helmy on November 19, 1986, pursuant to an order issued by the Department of Professional Regulation. Dr. Gutman was accepted as an expert in psychiatry and has testified approximately 1,500 times as an expert witness. William Corwin, M.D., a licensed psychiatrist who is Board certified in psychiatry, neurology, and forensic psychiatry, was tendered and accepted as an expert in psychiatry and neurology. Dr. Corwin examined Helmy at Helmy's request on February 5, 12, and 20, 1987. Dr. Gutman reviewed the investigative file of the Petitioner and materials which Helmy provided, such as newspaper articles. At Helmy's request, his wife was present throughout the evaluation. Dr. Gutman prepared a report and concluded that Helmy was "an impaired and disruptive veterinarian" and that he was not "safe to practice his skill or profession." Dr. Gutman was present throughout the hearing in this proceeding and heard the testimony of the witnesses regarding Dr. Helmy's behavior. He testified that the behavior described was consistent with his diagnosis of Helmy's mental problems. Dr. Gutman's report included observations and opinions concerning Helmy's behavior which were consistent with Helmy's behavior during this proceeding. Gutman characterized Helmy's behaviors as including expectation of trickery, hyper- vigilance, guardedness and secretiveness, avoidance of accepting blame, intense narrowly-focused searching for confirmation of bias with loss of appreciation for total contact, over concern with hidden motives and special meanings, tendency to be easily slighted and quick to take offense, readiness to counterattack when any threat is perceived, inability to relax, inflated self- esteem, exaggeration of past accomplishments, expansiveness, and trends toward exaggeration. A review of Helmy's testimony during this proceeding shows just how accurate Dr. Gutman's characterizations are. For example, Helmy stated that he thinks investigator Ivey hates him and has something in his heart against Helmy; Helmy believes that the car dealer with whom he had a problem is cheating people all over the country; Helmy believes that the newspaper printed articles about him and the complaints against him in order to sell newspapers; Helmy believes that there is a conspiracy from the newspaper; Helmy believes that every witness who testified against him fabricated their testimony to support the attorney for DPR; and finally Helmy believes that the attorney for DPR hates him. Additionally, Helmy testified that he did nothing wrong in any of these incidents. A review of Helmy's responses to many questions during the proceeding reflects evasiveness, verbosity, and refusal to answer simple questions where the answer may reflect negatively on him. Helmy also stated that the entire incident at the bank was a "trick" and that he asked for his papers "very gently" and the bank never asked him to leave. Dr. Gutman's observations that Helmy is apt to exaggerate, avoid blame, and be overly concerned with hidden motives is found to be an accurate assessment of Helmy's attitude. Dr. Gutman diagnosed Helmy as having a Mixed Character Behavior Disorder With Paranoid Passive-Aggressive Features, together with Atypical Bipolar Disorder, Hypomanic Type. He also found Helmy to be experiencing Cultural Dissonance. According to Gutman, "Helmy shows evidence of significant psychiatric symptomatology referable to both a long-standing character and behavior disorder characterized by passive-aggressive personality traits including stubbornness, inefficiency, self-sabotage, inability to see the other's person's point of view and aggressivity." Based upon his evaluation, Gutman found Helmy to be an "impaired and disruptive veterinarian who cannot exercise the proper control over his behavior, decorum and understanding of what is necessary to work within the system in his cultural and professional community. He has cognitive defects that do not allow him to take advice or see what other people see in him and about what he is doing. He has flaws, both in understanding and knowing as well as in choosing and volitional acting." Dr. Gutman sees these as signs of a mental illness that requires psychiatric treatment. Gutman believes Helmy may be a candidate for the use of lithium. Treatment of Helmy's mental disorders "will be absolutely necessary if this man is to be able to conduct himself in the practice of veterinarian medicine." Finally, Gutman does not feel that Helmy "is capable of the unsupervised practice of veterinarian medicine at this time." "Until he undergoes treatment, supervision, and further instruction and then is re-evaluated following that course of rehabilitation, [Gutman does] not believe that he is safe to practice his skill or profession." According to Gutman, Helmy is a disruptive person in his wild and threatening behavior. Based upon his previous threatening behavior and the fact that Helmy comes so close to "losing it," Gutman feels that there is a potential for Helmy to actually lose it and physically carry out a threat. Dr. Corwin supplied a four-page report following his evaluations of Helmy. Corwin's opinions is that Helmy is safe to practice even though he has some emotional problems. In reaching his opinion, Dr. Corwin reviewed documents furnished to him by Helmy. Additionally, Corwin heard some of the testimony in this proceeding, but did not hear of some of Helmy's actions and did not hear the testimony of Christine Stewart regarding the physical violence against her. Dr. Corwin also reviewed Dr. Gutman's report. Dr. Corwin's evaluation and opinion is given less weight because it was based on incorrect information and assumptions. Dr. Corwin assumed that Helmy was being truthful about the facts concerning the complaints against him. Helmy told Corwin that he was not an argumentative or hostile person and provided factual explanations for the events. Corwin accepted Helmy's statements as true and accurate, when in fact the subsequent testimony in this proceeding revealed that Helmy did not provide accurate information. Corwin stated that he did not believe Helmy would consciously distort the truth, yet Corwin accepted Helmy's statement that he had done nothing wrong and that the witnesses against him fabricated their stories. Based upon Helmy's statements to him, Corwin did find that Helmy was suffering from some type of mental problem, but that it was not a major mental illness. Corwin acknowledged that Helmy has "emotional patterns which may interfere, particularly when he feels threatened and disturbed." In regard to his opinion that Helmy was safe to practice, Corwin did acknowledge that there could be facts which would change his position. Eight witnesses for Helmy, who are either clients or former employees, testified that each had never seen Helmy engage in bizarre behavior or misconduct, however, none were actually present during the events described above. By evaluating the underlying information upon which each doctor reached his opinion, the opinion expressed by each psychiatrist, and Helmy's behavior in the course of this proceeding, it is found that Dr. Gutman's opinion more directly squares with the facts and is entitled to greater weight. Accordingly, it is also found that Helmy is suffering from a mental condition and a mental illness which renders him unable to practice veterinarian medicine with reasonable skill and safety. Dr. Helmy is unsafe to practice veterinary medicine because of his character and behavior disorders which cause violent, disruptive, threatening and dangerous behavior when he becomes upset. Based upon his actions in regard to Scalzi, it is found that Helmy has engaged in misconduct in the practice of veterinary medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Veterinary Medicine, enter a Final Order and therein: Suspend the license of Samy H. Helmy, D.V.M., until such time as he has demonstrated that he can resume the competent practice of veterinary medicine with reasonable skill and safety to patients as specified in Section 474.214(1)(h). Upon reinstatement, Helmy should serve a reasonable period of probation in which he shall satisfy reasonable conditions of probation imposed by the Board of Veterinary Medicine, including, but not limited to, refraining from violent and disruptive behavior, appearing before the Board on a regular basis, and submitting regular reports from a licensed psychologist or psychiatrist regarding his mental condition. The license of Samy H. Helmy be suspended for thirty (30) days and fined $1,000 based upon his violation of Section 474.214(1)(p), Florida Statutes. DONE AND ENTERED this 13th day of April, 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of April 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NOs. 86-4708 and 87-0525 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF VETERINARY MEDICINE Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(1); 3(2); 4(2); 5(2); 6(3); 7(3); 8(3); 9(4); 10(4); 11(4); 12(5); 13(5); 15(19); 16(20); 17(20); 18(24); 19(24); 20(26); and 21(26) Proposed finding of fact 14 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, SAMY HELMY, D.V.M. Proposed findings of fact A-I, K-M, R-T, W, AA, BB, JJ-MN, GO, PP, TT, UU, YY, c-o, s-dd, and gg are subordinate to the facts actually found in the Recommended Order. Proposed findings of fact O-Q, ZZ, a, b, g, and kk are rejected as unnecessary. Proposed finding of fact ee is rejected as unsupported by the record. Proposed findings of fact ff, hh, and ii are rejected as being irrelevant. Proposed finding of fact jj is rejected as being argument. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: J(7); N(7); U(9); V(9); X(11); Y(12); Z(13); CC(13); DD(13); EE(13); FF(13); GG(14); HH(15); 11(15); NN(16); QQ(19); RR(19); 55(20); VV(22); WW(22); p(19); and r(19 & 23). COPIES FURNISHED: William M. Furlow, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Douglas A. Walker, Esquire P. O. Box 24 Southeast First Avenue at Broadway Ocala, Florida 32678 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mildred Gardner, Executive Director Board of Veterinary Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Should Petitioner discipline Respondent's hearing aid specialist license for reasons alleged in the Amended Administrative Complaint?
Findings Of Fact At all times relevant to this proceeding Respondent William D. Williston has been a licensed hearing aid specialist in Florida, having been issued license no. 1439 by the Florida Board of Hearing Aid Specialist, commencing April 1, 1983. At all times relevant to the inquiry Respondent operated a business known as the Sumter Hearing Center in Wildwood, Florida, from which hearing aids were sold and dispensed. At times relevant to the inquiry Respondent sponsored Darleen L. Sherman as a trainee at his business. Respondent also served as the designated hearing aid specialist to assist in the training of Ms. Sherman. Respondent served in the capacity of direct supervisor to Ms. Sherman in her attempt to learn the necessary skills to become a licensed hearing aid specialist. Respondent's initial sponsorship and supervision of Ms. Sherman's training, wherein Respondent had been designated to serve, was for the training period June 24, 1997 through December 23, 1997. Ms. Sherman completed that training program. Following the completion of her training she took the hearing aid specialist examination. She failed the written theory portion of the examination taken May 1, 1998 through May 3, 1998. Ms. Sherman and Respondent were made aware of those results by notice mailed to the candidate for licensure on June 4, 1998. On June 6, 1998, Ms. Sherman reapplied to participate in a training program sponsored and supervised by Respondent. This was a request to repeat the training. Ms. Sherman's application form submitted to Petitioner was accompanied by a form completed by Respondent as sponsor, also dated June 6, 1998. On June 8, 1998, a check was written by Ms. Sherman to Petitioner in the amount of $105 for the stated purpose of participation in the "second training program." On June 13, 1998, Ms. Sherman was officially registered for the repeat training program with Respondent serving as sponsor and a prospective examination date to gain her license as hearing aid specialist was provided. That date for examination was sometime in January 1999. The training program registration identified the repeat training program period as running from June 12, 1998 through December 11, 1998. Stage I to that training program was June 12, 1998 through July 11, 1998; Stage II July 12, 1998 through September 11, 1998, and Stage III September 12, 1998 through December 11, 1998. During the hiatus between being notified that Ms. Sherman had failed the May 1998 examination and the beginning date for the repeat training program, Ms. Sherman, with Respondent's knowledge, acted in behalf of Respondent's hearing aid specialist business in Wildwood, Florida. This took place on June 9, 1998, involving the patient C.D., outside Respondent's presence. On that date Ms. Sherman performed hearing aid testing on C.D. and sold C.D. new hearing aids manufactured by Rexton for a total price of $4,000. The first $2,000 to purchase was paid on that date. The sales receipt provided C.D. was signed by Ms. Sherman indicating that she was a hearing aid specialist, which she was not. C.D. also signed the receipt form. The receipt provided C.D. on June 9, 1998, indicated that the hearing aids were guaranteed by Rexton for a period of one year with a loss and damage provision available with a 25% deductible. C.D. was provided another document which he signed and dated June 9, 1998. That document was entitled "30-day trial agreement." By its terms it said: I agree to wear my new hearing aid for the full 30-day trial period, and will come in at least once a week for consultation and any adjustments that may be needed. If the hearing aids are returned to the laboratory for any modification, my trial period will resume upon refitting of the hearing aids. I realize that hearing aid fittings are individual in nature and that it is normal to expect adjustments to be made. It has taken a long time for my hearing loss to develop, and will take some time to once again begin to enjoy the sound of life. Respondent was aware of the use of this type form in his business and the type of sales receipt form utilized in the transaction with C.D. Contrary to Respondent's testimony it is not found that C.D. was provided a form with information entitled "30-day trial agreement terms and conditions" as of the purchase date June 9, 1998, or upon any other date. C.D. in his testimony disclaimed being presented the form "30-day trial agreement terms and conditions." His testimony is supported by his wife, V.D. Ms. Sherman does not recall whether the form "30-day trial agreement terms and conditions" was provided to C.D. The "30-day trial agreement terms and conditions" was used on occasion by Respondent and Ms. Sherman but not here. The form is similar to the notice requirements set forth in Section 484.0512, Florida Statutes, dealing with the statutory requirement for a 30-day trial period and money back guarantee, together with the opportunity to return the hearing aids or mail written notice of cancellation to the seller and Rule 64B-6.001, Florida Administrative Code, which further describes written notice requirements. On June 19, 1998, Ms. Sherman received from the factory the hearing aids purchased by C.D. They had the wrong circuitry. As a consequence Ms. Sherman returned the hearing aids for correction. On June 29, 1998, Ms. Sherman received the hearing aids a second time. On June 30, 1998, C.D. returned to Respondent's business and was provided the hearing aids and paid the $2,000 balance for the purchase. Respondent was in attendance on this occasion. No further documentation was provided C.D. concerning his purchase when he took delivery of the hearing aids. Shortly after receiving the hearing aids C.D. and his wife took a vacation in north Georgia. On July 14, 1998, C.D. wrote Ms. Sherman concerning the hearing aids in question. In that correspondence he said "Sorry, but these hearing aids just don't meet my needs. Please refund my $4,000." On that same date by registered delivery, return receipt requested, C.D. sent the hearing aids back to Respondent's Wildwood, Florida, business address. The hearing aids were received at that address on July 20, 1998. The hearing aids were eventually returned to the manufacturer for credit on Respondent's account with Rexton. This disposition occurred around August 10, 1998. On July 20, 1998, the same day that the hearing aids were received by Respondent's business, Ms. Sherman wrote C.D. at his Florida address in Lake Panasoffkee, Florida. In that correspondence she identified herself as being a hearing aid specialist and an office manager for Respondent's Sumter Hearing Centers, one of which was at the Wildwood, Florida, address. In this correspondence she stated: We are in receipt of your hearing aid. As we agreed when you purchased the hearing aid you would give the hearing aid a 30-day trial basis, therefore I would suggest that we delay canceling this order. My suggestion is again a 30-day trial basis effective upon your return. It is important that I know what kind of problems, 'not loud enough, too much background noise, whistling, fit uncomfortable or etc.' you are having so that I can make adjustments and have you try them again. I am confident that we can get you to hear better. Please contact me at 352-793-4422 regarding the above matter. On August 6, 1998, C.D. responded to the July 20, 1998 letter from Ms. Sherman by writing to her and saying: In reference to your letter of July 20th; be advised that I have purchased another hearing aid and I am happy with them [sic]. Please return the $4,000 I paid for the Rexton aids. In fact, C.D. had not purchased another hearing aid. He made this false statement as a further attempt to be reimbursed the purchase price for the Rexton hearing aids. C.D. made numerous attempts to obtain a refund for the hearing aids purchased, to no avail. Respondent was aware of these attempts. Among the efforts was contact by Randall M. Thornton, Esquire, C.D.'s attorney, who wrote to the Respondent's business address at Wildwood, Florida, and another business address in Bushnell, Florida, requesting a refund in the amount of $4,000. This correspondence from the attorney was dated October 9, 1998. Respondent's uncorroborated testimony that he refunded the $4,000 to C.D. is not credible.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which imposes an administrative fine of $2,000, assesses costs of investigation and prosecution, orders Respondent to refund $4,000 to C.D., and otherwise dismisses the Amended Administrative Complaint. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 May, 2002. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building Three, Mail Station 39 Tallahassee, Florida 32308 William D. Williston 3131 Southwest College Road Suite 302 Ocala, Florida 34474 William D. Williston 1072 Southeast 155th Street Summerfield, Florida 34491 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way 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
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.
