The Issue Whether Petitioner’s application to enter into a hearing aid specialist training program should be approved.
Findings Of Fact On or about October 16, 2013, Petitioner submitted to the Board a Hearing Aid Specialists Training Program Registration Application (Application). In response to section 6 of the Application, Petitioner answered “yes” to the question regarding his criminal history. Respondent determined that Petitioner’s Application should be denied. Respondent believes that denial of Petitioner’s Application is appropriate because Petitioner was convicted of crimes which relate to the practice of, or the ability to practice, dispensing hearing aids. In support of its denial of Petitioner’s application, Respondent notes that Petitioner “was found guilty of 92 felonies including racketeering, grand theft, and sale of unregistered securities, . . . was sentenced to prison time and probation covering a time period of 30 years, . . . and [Petitioner] has not completed his rehabilitation in that he is still serving probation.” On or about December 2, 1999, Petitioner entered a plea of nolo contendere to 92 felony counts. The Circuit Court, Twelfth Judicial Circuit, in and for Manatee County, Florida, accepted Petitioner’s plea and adjudicated him guilty of: One felony count of racketeering (§§ 895.02(3) and 895.03, Fla. Stat. (1996)); 31 felony counts of grand theft (§ 812.014, Fla. Stat. (1996)); 30 felony counts of sale of unregistered securities (§§ 517.12 and 517.301, Fla. Stat. (1996)); and 30 felony counts of sale of securities by an unregistered dealer (§§ 517.12 and 517.302, Fla. Stat. (1996)). Petitioner served three years in prison and was placed on probation for a period of 27 years. Petitioner will be on probation until 2029, and he owes $898,000 dollars in restitution. Sharon Yordon was accepted as Respondent’s expert for purposes of providing an opinion as to how Mr. Murphy’s criminal background relates to the ability to dispense hearing aids. Ms. Yordon has been a licensed hearing aid specialist in Florida since 1984. She has also been licensed by the National Board for Certification in Hearing Instrument Sciences (NBC-HIS) since 1993. Ms. Yordon has been on the board of the Florida Society of Hearing Healthcare Professionals for 22 years, and she is also a member of the International Hearing Society. She has worked as a hearing aid specialist in the Tampa Bay area, Daytona Beach, New Smyrna Beach, and the panhandle of Florida. Currently, in addition to dispensing hearing aids, she is the north Florida retail manager for the hearing aid company Beltone, which requires her to manage eight offices in 11 counties. Ms. Yordon has participated in the training of six hearing aid specialists, and she has also trained three hearing aid specialists to take the NBC-HIS examination. She has fit thousands of people with hearing aids over the course of her career. According to Ms. Yordon, the elderly comprise a majority of hearing impaired individuals in Florida. Ms. Yordon’s opinion in this regard is bolstered by the fact that the Legislature, in recognition of the important role that the elderly play in the hearing aid industry, requires that the Board of Hearing Aid Specialists include a lay member who “shall be an individual age 65 or over.” § 484.042(2), Fla. Stat. (2015).1/ According to Ms. Yordon, hearing loss due to aging, called presbycusis, is one of the most common causes of hearing loss, and in the elderly hearing loss is often linked with cognitive dysfunction. Ms. Yordon opined that based on her years of experience, it is common for a hearing aid specialist to fit for hearing aids elderly individuals who are cognitively impaired. The Legislature has recognized that elderly individuals who suffer from cognitive impairment may be vulnerable and in need of protection. See, gen., §§ 415.101-415.113, Fla. Stat. An examination to determine the need for a hearing aid must be conducted in a closed room, separated from any outer offices, because the examination must meet certain requirements for sound. The hearing aid specialist or trainee is often alone in the examination room with the client where sensitive information is often secured from the client. If the hearing aid specialist determines that a hearing aid is needed, he or she goes over all the options available to the particular client. According to Ms. Yordon, elderly clients cannot always decide which hearing aid to purchase, and they may not have a sound understanding of their own finances. These factors could allow an untrustworthy hearing aid specialist to take advantage of elderly individuals by selling them a more expensive hearing aid than what they need, can afford, or have the ability to use. Because of the interaction between hearing aid specialists and clients (especially the elderly), it is necessary that a hearing aid specialist be trustworthy. Section 484.0401, Florida Statutes, provides as follows: The Legislature recognizes that a poorly selected or fitted hearing aid not only will give little satisfaction but may interfere with hearing ability and, therefore, deems it necessary in the interest of the public health, safety, and welfare to regulate the dispensing of hearing aids in this state. Restrictions on the fitting and selling of hearing aids shall be imposed only to the extent necessary to protect the public from physical and economic harm, and restrictions shall not be imposed in a manner which will unreasonably affect the competitive market. Section 484.056(1)(d) provides that an application for licensure as a hearing aid specialist may be denied on the following grounds: Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of dispensing hearing aids or the ability to practice dispensing hearing aids, including violations of any federal laws or regulations regarding hearing aids. Consistent with the legislative goal of protecting the public from possible economic harm, the screening requirements found in section 484.056 help to ensure that individuals who are authorized to dispense hearing aids are trustworthy. As previously noted, Petitioner was found guilty of committing 36 felony violations of section 812.014 (1996), which provides in part, as follows: A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: Deprive the other person of a right to the property or a benefit from the property. Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property. Section 812.014 is grounded in principles of trust, and a person who “knowingly” acts with the requisite “intent” to deprive another of his or her property in violation of the same, is, by definition, untrustworthy. Petitioner was convicted of racketeering under sections 895.02(3) and 895.03, Florida Statutes (1996). Petitioner’s conviction for racketeering was based on the fact that he was involved in a criminal enterprise that stole money from a number of individuals. Sections 895.02 and 895.03 are grounded in principles of trust, and anyone who violates these statutes is untrustworthy. Petitioner was found guilty of committing numerous violations of sections 517.301, 517.302, and 517.12, Florida Statutes (1996). Section 517.12 requires that any “dealer, associated person, or issuer of securities” in this state must register with the appropriate state department and the failure to do so, as provided in section 517.302, is a felony of the third degree. Section 517.301 prohibits fraud or deceit in connection with securities transactions and any person who engages in such conduct, as provided in section 517.302, commits a felony of the third degree. Section 517.301 is grounded in principles of trust, and a person who engages in fraudulent conduct in violation of section 517.301 is untrustworthy. A violation of the registration requirements found in section 517.12 does not, in itself, suggest untrustworthiness. When, however, the failure to register as a securities dealer is coupled with fraudulent conduct, as was done by Petitioner, then the otherwise benign conduct of failing to register as a securities dealer takes on the character of untrustworthiness because of its relatedness to the fraud. Petitioner was incarcerated until 2002. Since his release from incarceration, Petitioner has remained compliant with the terms of his probation. One of the conditions of Petitioner’s probation is that any violation of the conditions of probation could subject him to arrest, revocation of probation, and further sentencing. With his Application, Petitioner provided three letters of support from neighbors who each believe that Petitioner is a person of integrity. Petitioner also holds a private pilot’s license, which suggests that Petitioner can be trusted to operate certain types of aircraft. Denise Parrish is a licensed audiologist at the Manatee Ear Center in Bradenton, Florida, the facility where Petitioner is currently employed. Dr. Parrish has supervised Petitioner for approximately two years, and she believes that Petitioner is an “honest” person. Dr. Parrish testified that during the time that she has supervised Petitioner, he has handled sensitive patient information, including money, without incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Hearing Aid Specialists enter a final order denying Robert Paul Murphy’s application for licensure as a hearing aid specialist. DONE AND ENTERED this 22nd day of January, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2016.
The Issue The issues in this case are whether Respondent violated Subsections 484.056(1)(g) and (h), Florida Statutes (1999), respectively, by committing fraud, deceit, negligence, incompetence, or misconduct in the dispensing of a hearing aid and by failing to provide a sales receipt and other required information; and, if so, what penalty, if any, should be imposed against Respondent's license as a hearing aid specialist. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of hearing aid specialists in Florida pursuant to Chapter 484. Respondent is licensed as a hearing aid specialist in Florida pursuant to license number AS0002712. The Administrative Complaint involves the sale and service of an original pair of hearing aids and replacement hearing aids to a single customer. The record identifies the customer as C.P. in order to preserve the customer's confidentiality. C.P. is an elderly gentleman who is hearing impaired. C.P.'s wife accompanied and assisted C.P. in most of his dealings with Respondent. On February 16, 1999, Respondent performed a free hearing test on C.P. at Elfers Optical and Hearing Company (Elfers). Elfers is located on State Road 54 in New Port Richey, Florida. C.P. had heard of Respondent from a friend and responded to a newspaper advertisement by Elfers for a free hearing test. Respondent advised C.P. that C.P. needed two hearing aids. Respondent concluded that C.P. needed a hearing aid for each ear for balance. Respondent recommended programmable hearing aids for several reasons. Respondent represented that programmable hearing aids could be programmed for hearing needs that change over time and therefore would not have to be replaced. However, programmable hearing aids are more expensive than others. C.P. stated that he wanted to think about it. C.P. left the office and subsequently made an appointment for a return visit on February 19, 1999. When C.P. returned to Elfers on February 19, 1999, Respondent was sick and not in the office. Ms. Phillys Strand (Strand), Respondent's employee, saw C.P. and his wife. C.P. stated that he had decided to purchase the programmable hearing aids recommended by Respondent. Strand fitted C.P. for two hearing aids and had C.P. execute a contract for the purchase of two Philips Encanto II programmable hearing aids (Encantos) at the total price of $3,832 (the contract). C.P. paid $3,832 on February 19, 1999. The contract states that there was a one-year warranty on the hearing aids. The one-year warranty covered replacement or repair but not a refund of the purchase price. The contract specifically states that C.P. had only 30 days from the date of delivery (the 30-day trial period) in which to obtain a refund of the purchase price. Respondent delivered the Encantos to C.P. on March 1, 1999. C.P. returned to Elfers on March 3, 1999, complaining that the hearing aids hurt his ears. Respondent ground down the hearing aids, and C.P. left Elfers with the modified hearing aids. C.P. returned to Elfers on March 10, 1999, and requested a refund from Respondent. C.P. explained that he had recently learned that he needed surgery on one of his ears to remove a cancerous legion and would be unable to use the hearing aids before the expiration of the 30-day trial period for obtaining a refund. On March 10, 1999, Respondent stated to C.P. that under Florida law C.P. had one year in which to obtain a refund. Neither Florida law nor the manufacturer provides a warranty that authorizes a refund for one year. The provisions in the contract pertaining to a refund of the purchase price merely reflect the terms of the applicable section of Florida Statutes. In relevant part, the purchase contract provides: Unless otherwise stated, the hearing aid is new and warranted for one year by dispenser . . . . The guarantee shall permit the purchaser to cancel for a valid reason within 30 days of the receipt of the hearing aid(s). A valid reason shall be defined as failure by the purchaser to achieve satisfaction from use of the hearing aid(s), so long as the hearing aid(s) is returned to the seller within the 30-day trial period in good working condition. In the event of cancellation within the 30-day trial period, [Elfers] will retain $150 plus 5% of total purchase price on monaural fitting, or $200 plus 5% of total purchase price on binaural fitting for ear molds and services provided to fit the hearing aids, pursuant to 484.0512FS. . . . On March 10, 1999, C.P. properly tendered the Encantos to Respondent in accordance with the requirements of the contract and Section 484.0512. C.P. had a valid reason, within the meaning of the contract and applicable law, for the failure to achieve satisfaction with the Encantos. C.P. properly requested a refund within the 30-day trial period that began on March 1, 1999, when Respondent delivered the Encantos to C.P. On March 10, 1999, Respondent had actual knowledge that C.P. had properly tendered the Encantos for a valid reason and properly requested a refund. Respondent had actual knowledge of the falsity of the statement that Florida law allowed C.P. one year in which to obtain a refund. Respondent had actual knowledge that neither Florida law nor any warranty amends the 30-day trial period prescribed in the contract and Section 484.0512 for obtaining a refund. In any event, Respondent had constructive knowledge that his statements to C.P. were false. The misrepresentation by Respondent on March 10, 1999, induced C.P. to retain the Encantos. The false statements by Respondent on March 10, 1999, induced C.P. to unknowingly allow the lapse of his statutory and contractual right to a refund. Respondent had actual, or constructive knowledge, of the effect of Respondent's false statement to C.P. C.P. underwent surgery on March 24, 1999, and could not wear the Encantos again until May 21, 1999. When C.P. began wearing the Encantos again on May 21, 1999, the left hearing aid hurt his ear. C.P. compared the two hearing aids and discovered that the left hearing aid was longer than the right. On May 27, 1999, C.P. and his wife returned to Respondent. Respondent made a new impression, using a substance different from that used by Strand for the initial impression, and told C.P. that Respondent would send the impression to the manufacturer for a new set of hearing aids. C.P. and his wife would be traveling in New York when Respondent received the new hearing aids, and Respondent agreed to mail the new hearing aids to C.P. in New York. C.P. received the new hearing aids while he was in New York. C.P. heard a "swishing" noise in the new hearing aids when people around him were talking. C.P. advised Respondent of the bothersome noise. Pursuant to Respondent's instructions, C.P. returned the hearing aids to Respondent. C.P. received hearing aids directly from the manufacturer on July 21, 1999, while C.P. was still in New York. The hearing aids created a pulsating sound. The volume wheel did not work, and the left hearing aid fell out of C.P.'s ear on at least one occasion. Respondent told C.P. that Respondent would have Betty Lou Gage (Gage), Respondent's assistant, locate a hearing aid specialist in New York where C.P. could take the hearing aids. On August 6, 1999, C.P. took the hearing aids to Genesee Hearing Aid in Buffalo, New York (Genesee), pursuant to Gage's instructions. Genesee advised C.P. that they did not work on Phillips programmable hearing aids and charged C.P. $15. On September 30, 1999, C.P. and his wife went to Respondent's office. C.P. complained that the hearing aids were whistling and falling out of his ears. While C.P. was in Respondent's office on September 30, 1999, C.P. requested a refund of the purchase price for a valid reason and tendered the hearing aids to Respondent in good condition. The tender and request for refund was within the one-year period previously represented by Respondent as required by Florida law. Respondent advised C.P. that the warranty was over. Respondent asked C.P. if C.P. wanted Respondent to send the hearing aids back to the manufacturer and have the manufacturer make the hearing aids automatic. C.P. agreed. On October 21, 1999, C.P. returned to Respondent's office for the new hearing aids. The toggle switch used for adjusting hearing aids was still on the outside of the hearing aids, but C.P. accepted the hearing aids anyway. Respondent advised C.P. not to wear the hearing aids while hunting. C.P. did not wear the hearing aids in November 1999 because he was hunting in New York. In December 1999, C.P. asked his wife to check the serial numbers on the hearing aids. C.P. and his wife discovered that the hearing aids were not Encantos. When C.P. and his wife returned to Florida, they went to Hearx, the provider of hearing aids under C.P.'s new insurance policy with Humana. A specialist at Hearx examined the hearing aids and confirmed that the hearing aids were not Phillips programmable hearing aids. Rather, they were half- shell conventional hearing aids with a retail value that ranged from $700 to $900. C.P. telephoned Elfers on January 19, 2000. A representative at Elfers advised C.P. that C.P. would need to speak to Respondent and that Respondent was no longer employed at that location. The representative advised C.P. to try reaching Respondent at the Holiday office. C.P. and his wife found Respondent at the Holiday office. C.P. advised Respondent that the hearing aids were not the Encantos C.P. had purchased and requested a refund. The request for refund was made within the one-year period represented by Respondent on March 10, 1999, in which C.P. could request a refund. C.P. also requested the telephone number for Phillips. Respondent told C.P. that Phillips was out of business and left the office. Jeff Ruff, another employee at the Holiday office, offered to try a new substance to put a seal around the hearing aids for a better fit. C.P. left the hearing aids with Ruff and obtained a receipt. C.P.'s wife telephoned Phillips, provided the serial numbers for the Encantos, and asked whether Respondent had returned the Encantos. The representative for Phillips stated that Respondent had returned the Encantos on October 8, 1999, and that Phillips had sent the half-shell conventional hearing aids back to Respondent. The serial numbers of the half-shell conventional hearing aids sent to Respondent matched those on the hearing aids that C.P.'s wife checked in December 1999. The market value of the half-shell conventional hearing aids is more than $2,000 less than that of the Encantos. Respondent should have refunded the difference in market value to C.P. Respondent did not refund the difference in market price to C.P. Respondent did not provide C.P. with any written documentation, including a sales receipt, for the half-shell conventional hearing aids; did not provide C.P. with a warranty for the half-shell conventional hearing aids; did not advise C.P. that Respondent had changed the hearing aids provided to C.P.; and did not advise C.P. of the difference in market value between the Encantos and half-shell conventional hearing aids. Respondent has not refunded any money to C.P. Respondent has not otherwise made restitution for the harm suffered by C.P. This is not Respondent's first offense. Petitioner has previously disciplined Respondent's license in two cases in which Respondent either allowed the 30-day trial period to lapse before taking action requested by the customer or refused to refund the entire amount of the purchase price. Petitioner imposed administrative fines in those two cases that totaled $1,000; required Respondent to pay costs of $805; and required Respondent pay a refund to the customer in the amount $544. A substantial period of time has not lapsed since Respondent's previous discipline. Petitioner entered a final order in the previous two cases on April 15, 2002.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Subsections 484.056(1)(g) and (h); revoking Respondent's license; assessing an administrative fine of $2,000 and the costs of investigation and prosecution; requiring Respondent to make restitution to C.P. in the amount of $3,832; and requiring Respondent to pay all fines, costs, and restitution within 30 days of the date of the Final Order. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 2002. COPIES FURNISHED: Kathryn E. Price, Esquire Bureau of Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Gage Davey 6521 Berea Lane New Port Richey, Florida 34653 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue May a person whose license has been revoked under the provisions of Chapter 468, Florida Statutes, be issued a trainee temporary certificate of registration-by the Department?
Findings Of Fact The Petitioner contends that he is eligible to be issued a trainee temporary certificate of registration to engage in the fitting or selling of hearing aids inasmuch as he is of good moral character and is over the age of twenty-one (21). The Respondent contends that the Petitioner is not eligible to be registered inasmuch as he had his certificate of registration revoked in 1971 and there are no provisions in the statutes for reinstatement once a license is revoked. Petitioner submitted his application for a trainee temporary certificate of registration in March of 1976. The application was returned in April of 1976 for the stated reason that "Since Mr. Lindsay's license was revoked by order of the Division of Health on February 12, 1971, and all licenses to hearing aid dealers are under the provisions of Chapter 468, Florida Statutes, I know of no provisions under these statutes to provide for a reinstatement of a hearing aid dealer's license after revocation. It appears that the hearing aid law statute is silent on this matter, therefore without specific authority to reconsider this application, I am returning to you the check you enclosed, being Check 6483 in the amount of $25.00 drawn on the Florida Bank at Fort Lauderdale, and the original of the application which was enclosed in your letter of March 26, 1976 which was received in this office on March 29." The Certificate as a Fitter and Seller of Hearing Aids Registration No. 165-06-68 granted Franklin J. Lindsay was revoked February 12, 1971, for the reason that Mr. Lindsay was the owner and proprietor of the Professional Hearing Aid Service and was an employing principal of one Mr. John E. Buehler who was found guilty of violating various provisions of Chapter 468, F.S., including the selling of a hearing aid to a customer as new when in fact the hearing aid was secondhand or rebuilt. Mr. Buehler's license was suspended for one year and Mr. Lindsay's license was revoked. The Petitioner has established by witnesses that he is of good moral character and has been rehabilitated and that he comes within the qualification of applicants as required for a trainee under Section 468.126(3)(a).
Recommendation Accept the application together with the required fee of $25 from the Petitioner and allow him to pursue the trainee program as provided in Section 468.126(3)(a). Date October 25, 1976 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. Hodges, Esquire Post Office Box 210 Jacksonville, Florida 32201 John V. Russell, Esquire Suite 205 2 Commercial Boulevard Lauderdale-by-the-Sea, Florida 33308
Findings Of Fact At all times relevant hereto Respondent was licensed as a Hearing Aid Specialist having been issued license number 0000804. During the period 1985-1986 the license of T. Ray Black was displayed on the wall at East Pasco Hearing Aid Center in Zephyrhills, Florida, but Respondent never worked at this address. East Pasco Hearing Aid Center is owned and operated by Arvina Hines whose license as a Hearing Aid Specialist was revoked circa 1981. Ms. Hines hired people to work at East Pasco Hearing Aid Center and trained them in selling and fitting hearing aids. Pamela Strife worked at the East Pasco Hearing Aid Center from 1981 until 1986 and never met Respondent nor did she ever see him at the center. She did see Raymond J. Black and Cynthia Sue Bennett, the father and sister of Respondent, working at the center. Raymond J. Black's license was revoked January 26, 1981. Arvina Hines submitted an application for training program for Hearing Aid Specialist on April 21, 1986. (Exhibit 5), in which Respondent signed the sponsor affidavit as the sponsor of Ms. Hines. He did not provide any supervision to Hines. Sheila Louise Thomas submitted as application February 25, 1985, for a training program as a Hearing Aid Specialist (Exhibit 4), on which Respondent signed as sponsor. Ms. Thomas was trained by Ms. Hines. Thomas does not recall completing the application for training, but identified her signature thereon. She has never met Respondent. Peggy Goodman worked at East Pasco Hearing Aid Center for three weeks in 1985. During the time she was employed she never saw Respondent at the center.
The Issue Has Respondent violated Section 484.056(1)(g), Florida Statutes as alleged in the Administrative Complaint? If so, what, if any, disciplinary action is appropriate?
Findings Of Fact In September of 1989, Mrs. Mary Louise Gibson, then in her late seventies, purchased "full-shell" Sonotone hearing aids at Hearing Aid Services in Temecula, California. The hearing aids were manufactured by TelStar Electronics, Inc., located in Longwood, Florida. The manufacturer's warranty covering the hearing aids expired on December 22, 1990. Some time after the purchase of the hearing aids, members of Mrs. Gibson's family began to tell her that she was not hearing well despite use of the hearing aids. In August, 1991, some eight months or so after the warranty had expired, Mrs. Gibson, thinking the hearing aids were still under warranty, visited the TelStar manufacturing facility in Longwood to see what could be done about her poor "hearing aid-assisted" hearing. At the manufacturing facility, Mrs. Gibson was referred to the manufacturer's retail store in an adjoining part of the building housing the manufacturer's operation. With Mrs. Gibson was her husband, who was also having trouble with his hearing aids, and her daughter, Mary A. Gibson. By virtue of the referral, the Gibsons and her husband went from the manufacturing end of the building to the manufacturer's retail store. Working as a hearing aid specialist in the manufacturing facility's retail store was Respondent, Nick Joseph Spina. At the time of Mrs. Gibson's visit, Mr. Spina was licensed by the Board of Hearing Aid Specialists as a hearing aid specialist in the state of Florida. His license number is AS 0001750. Mr. Spina continues to be and has been at all times material to this proceeding the holder of the hearing aid specialist license. Not a salaried employee of TelStar, Mr. Spina's pay at the TelStar retail store was based entirely on commissions from new sales. In any given sale, the commission was thirty per cent of the gross amount of the sale. Mr. Spina conducted an audiogram of Mrs. Gibson. He concluded that Mrs. Gibson needed a type of shell for her hearing aids different from the style she had been using: a "full-shell," which occludes the ear canal entirely. In Mr. Spina's professional opinion, Mrs. Gibson needed a helix-type shell which fills only the top of the ear and leaves the ear canal unoccluded. The Purchase Agreement executed by Mr. Gibson shows on the day the Gibsons consulted with Mr. Spina that Mrs. Gibson's husband, Horace Gibson, agreed to pay $450.00 for a recasing of Mrs. Gibson's hearing aids. The comments section of the order form states "Recased to helix aids," and shows a charge of $139.00. On August 28, 1991, Mrs. Gibson picked up the recased hearing aids. The invoice of the same date shows that TelStar Electronics, Inc., charged $139.00 for the recasing. Mrs. Gibson, as was agreed under the terms of the Purchase Agreement, paid $450.00 for the recasing. Approximately five months later, in January of 1992, Mrs. Gibson visited Mr. Spina again. Based on a second audiogram, Mr. Spina told her that she had experienced a dramatic change in her hearing since the August testing and needed another type of hearing aid. A purchase order form signed January 16, 1992, with an order date of January 13, 1992, shows that Mrs. Gibson agreed to pay $1078 for a hearing system described as "NEW" and being a Sonotone Model ITE, colored pink, with a warranty period from 1/16/92 to 1/16/94, a two-year warranty. The serial numbers for the new hearing aids are listed on the purchase agreements as 92F24064 for the hearing aid for the left ear and 92F24065 for the hearing aid for the right ear. The purchase order form is signed by Nick Spina. On the same date the "new" hearing system was ordered, January 13, 1994, Mr. Spina executed a second form, a repair order form. The repair order form ordered that M. L. Gibson's hearing aids bearing serial numbers 91F13666 and 91F13665, the helix-type hearing aids provided her the previous August by Respondent, be remade as "full shell" hearing aids. The order form for the repair of the helix hearing aids shows that Respondent ordered them to be assigned new serial numbers identical to those listed on the purchase order form for the new hearing aids, 92F24064 for the left ear and 92F24065 for the right ear, and be shipped back on January 15, 1992. This same form shows that a 2 year warranty was to be added to the hearing aids for the repair. An invoice dated January 15, 1994, shows a shipment by Sonotone Corporation, TelStar Division in Longwood, Florida, of Purchase Order number "Gibson TS R/M" of Order Number 60864, the order executed by Respondent on January 13, 1994. The hearing aids were remade to full shell hearing aids, reassigned the serial numbers ordered by respondent, and the circuit, microphone and receiver were changed. No charge was made for the remake of the helix hearing aids back into full shell hearing aids because the hearing aids were under warranty from the recasing accomplished the previous August. The remade hearing aids were not given an additional two-year warranty. It is not customary in the industry to give two-year warranties for remade hearing aids. A warranty for remade hearing aids is much less than two years, typically 6 months. Two-year warranties are reserved for new hearing aids. Mrs. Gibson picked up the hearing aids and paid $1078 for them, believing them to be new hearing aids. Mrs. Gibson's daughter, who accompanied her mother to all the transactions with Respondent, also was under the impression that brand new hearing aids had been provided her mother in January of 1992. Less than two months later, on March 10, 1992, Mrs. Gibson consulted Freddi M. Catlett, of the Arkansas Hearing Aid Center in Hot Springs, Arkansas, because her hearing aids were rubbing her ear so as to make it sore. Ms. Catlett sent impressions of Mrs. Gibson's ears as well as the hearing aids to the Sonotone factory in Florida. Instead of 92F24065, the serial number of Mrs. Gibson's right hearing aid, the order form lists the serial number of the hearing aids as 92-24065, substituting a "-" for the "F", the third digit in the serial number. Otherwise the number on the order form is identical to the serial number of the right hearing aid purchased by Mrs. Gibson in January of 1992 from Respondent. Both Mrs. Gibson and her daughter, despite the fact that Mrs. Gibson had two pairs of hearing aids, were sure that the hearing aids examined by Ms. Catlett were the "new" hearing aids purchased from Respondent in January of 1992. The hearing aids were returned to Mrs. Catlett from the Sonotone factory with an invoice charging $74.50 for a replating and recasing of the hearing aids. The service department notes on the order form shows that the warranty on the hearing aids, which should have been good until January of 1994 had the hearing aids been new in January of 1992, had expired on January 28, 1992. Upon being noticed that the warranty had expired, Ms. Catlett contacted Sonotone to inquire further. She was told that the hearing aids had been purchased in 1989 and that the warranty was no longer in effect. Ms. Catlett then questioned Mrs. Gibson and was assured that the hearing aids were the "new" hearing aids purchased from Respondent the previous January. The hearing aids examined by Ms. Catlett were the hearing aids purchased in January of 1992 from Respondent. The serial number listed on Ms. Catlett's order form mistakenly listed "-" as the third digit instead of "F". Contrary to Mr. Spina's representation, the hearing aids he sold to Mrs. Gibson in January of 1992 were not new, despite his marking on the order form that they would have a two-year warranty. The hearing aids sold as new hearing aids by Respondent in January of 1992 were simply a remake of the helix-type hearing aids that Mr. Spina had remade the August before. These hearing aids were new in 1989 not in 1992.
Recommendation It is, accordingly, and in keeping with Section 484.056(1) and (2), Florida Statutes, RECOMMENDED: That Respondent Nick Joseph Spina's license to practice as a hearing aid specialist be revoked and that Nick Joseph Spina be fined $1000. DONE and ENTERED this 18th day of August, 1994, in Tallahassee, Florida. DAVID M. MALONEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1994. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Findings of fact in Petitioner's Proposed Recommended Order 1, 3-19 are accepted. Finding of fact #2 in Petitioner's Proposed Recommended Order is rejected to the extent it implies Mrs. Gibson was 83 in August of 1991. She was 83 at the time of her deposition in April of 1994. Otherwise the finding is accepted. COPIES FURNISHED: Susan E. Landward Senior Attorney Department of Business and Professional Regulation Suite 60, Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nick Joseph Spina, Jr. P. O. Box 214 Chipley, FL 32428 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Suzanne Lee Executive Director Hearing Aid Specialists 1940 North Monroe Street Tallahassee, FL 32399-0759
The Issue 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
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 issue in these cases is whether Respondent committed the violations alleged in three Administrative Complaints, and, if so, what appropriate disciplinary action should be taken against him.
Findings Of Fact Based upon the observation of the witnesses and their demeanor while testifying, the documentary evidence received in evidence and the entire record complied herein, the following relevant facts are made: At all times relevant to the issues herein, the Board of Hearing Aid Specialists has been the state agency in Florida responsible for the licensing of hearing aid specialists and regulation of hearing aid providers in Florida. Section 455, Florida Statutes (1999). Respondent, Robert F. Davidson, has been a licensed hearing aid specialist in this state, holding license number 0000740. From sometime in April and continuing through sometime in December 1998 Respondent was employed as a salaried store manager at Hearite Audiological ("Hearite"), a hearing aid establishment located at 2700 East Bay Drive, Largo, Florida, 33771, and owned by George Richards and Paula Rogers. Respondent engaged in testing the hearing of individuals and engaged in selling hearing aids to individuals for Hearite Audiological, Inc. To each individual Respondent sole a hearing aid, he provided that person with a written notice of the 30-day money back guarantee. Case No. 01-3536PL Patient C. L. D., a hearing impaired-person, visited Hearite on September 9, 1998, and entered an agreement to purchase a pair of hearing aids for $1,795.00, paying $500.00 deposit at that time. Patient C. L. D. was provided a sales receipt for her deposit signed by Respondent. On September 21, 1998, Respondent delivered the hearing aids to patient C. L. D. at Hearite and signed the receipt as the person who delivered the hearing aids to the patient. Patient C. L. D., after using the hearing aids, became dissatisfied with them and returned the hearing aids to Respondent at Hearite on October 8, 1998. Respondent accepted the hearing aids from Patient C. L. D. and, pursuant to the terms of the sales contract, Respondent promised Patient C. L. D. a full refund of her $500.00 deposit. Despite repeated phone calls to Respondent and repeated attempts to obtain the refund, Patient C. L. D. has never received her refund as promised, and Hearite was later sold to a new owner in January 1999. Case No. 01-3537PL On May 26, 1998, hearing-impaired Patient J. C. aged 95 years, and now deceased, along with his daughter, Chris Vidalis, visited Hearite and purchased a hearing aid for $1,345.00, paying $500.00 deposit upon execution of the sales contract. On June 5, 1998, Patient J. C. paid the remaining $845.00 and received his hearing aid. On June 12, 1998, being dissatisfied with its use Patient J. C. returned the hearing aid and requested a refund. Respondent accepted the hearing aid and promised Patient J. C. a refund of $1,345.00 within 120 days. Patient J. C.'s daughter, Chris Vidalis, who was with her father every time he visited Hearite, made numerous telephone calls and visits to Hearite in attempts to obtain the refund. The refund was never paid and Hearite was sold to a new owner in January 1999. Case No 01-3538PL On or about June 10, 1998, Patient R. L., after several unsolicited telephone calls from someone representing Hearite, visited Hearite for the purpose of having his hearing tested and possibly purchasing a hearing aid. After testing, Patient R. L. purchased a pair of hearing aids at Hearite for $3,195.00. A paid in full receipt signed by Al Berg was given to Patient R. L. On or about July 10, 1998, Respondent delivered the hearing aids to Patient R. L. and signed the sales receipt as the licensee who delivered the hearing aids. Upon being dissatisfied with using the hearing aids Patient R. L. returned them to Hearite on July 13, 1998. Kelly Dyson, audiologist employed at Hearite, accepted the hearing aids and promised Patient R. L. a full refund of $2,840.00, pursuant to the terms of the contract. Patient R. L. made repeated attempts to obtain his refund as promised but has not received one. Hearite was sold to a new owner in January 1999. Respondent's position, that each of the three patients herein above was aware or should have been aware that the sale of hearing aids, and, therefore, the guarantor of the refunds was Hearite Audiological, Inc., and, not himself, is disingenuous.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Hearing Aid Specialists enter a final order requiring Respondent to pay the following amounts: to Patient C. L. D., $500.00, DOAH Case No. 01-3536PL; to Patient J. C. (or his estate) $1,345.00, DOAH Case No. 01-3537PL, and to Patient R. L., $2,840.00, DOAH Case 01-3537PL. Further that Respondent be fined $1,000.00 and be required to pay the appropriate costs of investigation and prosecution. Further, ordered that Respondent's license be suspended and not reinstated until after all payments herein ordered are paid in full, and thereafter place Respondent on probation for a period of not less than one year under the terms and conditions deemed appropriate. DONE AND ENTERED this 1st day of February, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2002. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 39 Tallahassee, Florida 32308 E. Raymond Shope, II, Esquire 1404 Goodlette Road, North Naples, Florida 34102 Susan Foster, Executive Director Board of Hearing Aid Specialist Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether the Petitioner is entitled to an award of additional points sufficient to achieve a passing score on the July 1997 optometry exam.
Findings Of Fact Susan J. Summerton-Madison (Petitioner) took the July 1997 examination for licensure as an optometrist in the State of Florida. A portion of the examination tests the clinical skills of the applicant for licensure. Each applicant performs a number of tasks while two examiners observe. Prior to administration of the test, all examiners receive standardization training providing a baseline for grading the individual performance of each applicant. Examiners grade each applicant independently of each other. During the clinical part of the test, a viewing system known as a "teaching tube" is attached to the optometrist's equipment used by the applicant. The applicant performs each task twice because only one examiner at a time can observe the performance through the tube. Prior to beginning the clinical portion of the exam, the applicant and the examiners set the tube focusing mechanism so that both the applicant and the examiner have a clear view of the procedures being demonstrated. By grade report dated August 27, 1997, the Petitioner was advised that she had scored 68.80 on the clinical portion of the examination. A score of at least 75 points is required to pass the clinical portion of the examination for licensure as an optometrist. The Petitioner challenges the grading of the following questions: Section 1, questions 4a and 4b. Section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 11a, 11b, 12a, 12b, 13a, 14a, 15a, 18a, 18b, 21a, 21b, 24a, 25a, and 26a. The Petitioner asserts that her pregnancy during the examination resulted in ocular changes which caused focusing anomalies. The anomalies allegedly caused the viewing equipment through which the examiners observed her performance to be out of focus. The Petitioner received score deductions related to lack of focus on numerous questions; specifically section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 13a, 14a, 15a, 18a, 21a, 24a, 25a, and 26a. There are multiple causes of temporary ocular changes, including nervousness. Although there is evidence that pregnancy can result in ocular changes, the evidence fails to establish that any focusing problems which occurred during the Petitioner's performance on the July 1997 examination were related to pregnancy. Refocusing the viewing mechanism takes approximately five seconds. There is no evidence that an applicant is prevented from refocusing the equipment during the clinical examination. Although examiners are under no obligation to advise applicants during the test, one of the examiners observing the Petitioner suggested that she refocus the equipment. The Petitioner asserts that the request caused her to run out of time on section 2, questions 11a, 11b, 12a, and 12b. The evidence fails to establish that any problems related to insufficient time for the examination were related to the examiner's suggestion. The Petitioner asserts that points were deducted for poor focus on tasks which did not include focus as grading criteria. The evidence establishes that because the clinical portion of the test involves examination of ocular systems in a patient, almost all procedures require correct focus. The Petitioner asserts that on section 2, question 21b, ("foveal reflex") she received no points, but that another optometrist's examination of the test patient indicated that the foveal reflex was acceptable. Review of the examination indicates that the Petitioner's score was lowered because of focusing problems. The fact that a qualified optometrist determined the patient to be normal does not entitle the Petitioner to additional points or indicate that the scoring of her performance was unfair. Because examiners view separate procedures, it is not unlikely that examiners may award different scores. It is possible to evaluate the performance of examiners through use of "agreement ratings." Agreement ratings indicate the frequency of which each examiner agrees with the other examiner in testing the same applicant. The Petitioner notes that the examiners grading her performance differed in grading section 1, questions 4a and section 2, questions 3a, 3b, 7b, 10a, 13a, 14a, 15a, 18b, 21a, 21b, and 25a, and asserts that such indicates she was graded unfairly. Although the agreement ratings of the examiners who observed the Petitioner were slightly lower than average, the examiner agreement ratings fail to establish that she was graded arbitrarily or unfairly. The sample size is so small as to be subject to influence by borderline candidates, where one examiner believes an applicant's performance to be more acceptable than does the other examiner. The Petitioner asserts that on section 2, question 18b, the lack of agreement between the examiners reflects arbitrary grading because both supposedly view the same procedure through the viewing tube. The evidence fails to establish that the Petitioner is entitled to additional points or that the scoring of her performance was unfair. The Petitioner asserts that she informed the examiners that she was pregnant prior to administration of the clinical portion of the exam and that she should have received special accommodation of some type based on her condition. Procedures set forth in Rule 61-11.008, Florida Administrative Code, address special assistance to certain persons submitting to examination by the Department of Business and Professional Regulation, Office of Examination Services, which administered the examination in the instant case. Such assistance is available to persons with learning disabilities or physical handicap as defined in the rule. There is no evidence that the Petitioner sought to utilize such procedures. There is no evidence that the Petitioner's condition would have been regarded as a learning disability or physical handicap by the agency. The Petitioner asserts that an examiner exited the room while she was addressing section 1, questions 4a and 4b, and that the confusion of the departure caused the examiners to err. The evidence establishes that the scores reflect the inappropriate performance of the task involved, which involved measurement of the patient's pupil.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Health enter a Final Order dismissing the Petitioner's challenge to the grading of the July 1997 examination for licensure as an optometrist. DONE AND ENTERED this 22nd day of May, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1998. COPIES FURNISHED: Susan J. Summerton-Madison 559 99th Avenue North Naples, Florida 34108 Anne Marie Williamson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health Building 6, Room 136 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director Board of Optometry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
