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 Petitioner's application for renewal of his certificate of registration to fit and sell hearing aids should be denied here he establishes that he satisfactorily completed the required continuing education course during the year of his application, rather than during the previous calendar year.
Findings Of Fact On January 29, 1980, the Applicant submitted to the Department a completed application for renewal of his 1979 Certificate of Registration to Dispense Hearing Aids in Florida. (Petitioner's Exhibit 1). At the time of his application (January, 1980) the Applicant was unable to provide evidence of having completed at least ten hours of an approved continuing education course relating to the fitting and selling of hearing aids. He was, however, in the process of attending such a course at the University of Central Florida, which he successfully completed during February, 1980. (Petitioner's Exhibits 1 and 2, Testimony of G. L. BOOTHE) The Department proposed to deny the applicant's request for renewal on the sole ground that his application failed to show that the required continuing education course had been completed prior to his application, and during the prior calendar year 1979. (Testimony of G. L. Boothe) On July 21, 1978, and again on October 1, 1979 the Department notified all registered hearing aid dispensers, including the Applicant, of the new continuing education requirement enacted by the 1978 Florida Legislature. The Applicant received such notice, and was aware of this new requirement. (Respondent's Exhibits 1 and 2, Testimony of G. L. BOOTHE) Between 1969 and February, 1979, the Applicant was licensed by the State to fit and sell hearing aids, and was employed by the Beltone Hearing Aid Company. In February, 1979, he left the company and was considering retirement. (Testimony of G. L. BOOTHE) The Applicant failed to take the required continuing education course during 1979 because, from February 1979 through January, 980, he was uncertain whether he would surrender his license or continue in the business of fitting and selling hearing aids. During January and February, 1980, he entered the employment of the Orange Hearing Aid Center, Orlando, Florida for the purpose of fitting and selling hearing aids. He, therefore, applied far the renewal of his license, and successfully completed the required continuing education course. (Testimony of G. L. Boothe)
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 Whether Petitioner's application to renew license to dispense hearing aids should be approved. This proceeding involved Petitioner's application to renew an existing license to dispense hearing aids in the State of Florida which was denied by Respondent Department of Health and Rehabilitative Services by letter of January 31, 1980, for failure to establish that the applicant had satisfactorily completed a continuing education course relating to the fitting and selling of hearing aids consisting of a minimum of ten contact hours of classroom instruction. Petitioner requested a hearing by letter, dated February 4, 1980. Petitioner appeared at the hearing unaccompanied by legal counsel and was advised by the Hearing Officer as to her rights in administrative proceedings. She acknowledged understanding such rights and elected to represent herself in the matter.
Findings Of Fact Petitioner Evelyn S. Webster was licensed with Respondent to fit and sell hearing aids in 1979. She owns and operates a firm called Acousticon of Daytona at Daytona Beach, Florida, where she fits and sells hearing aids and also larynx and speech aids. (Testimony of Petitioner) In 1978, the state legislature amended the "Fitting and Selling of Hearing Aids Act," Chapter 468, Florida Statutes, Part III, to require that registrants must show evidence of satisfactory completion of a continuing education course relating to the fitting and selling of hearing aids during the previous calendar year consisting of a minimum of ten contact hours of classroom instruction which course is subject to approval for credit by Respondent. The requirement was to commence beginning with calendar year 1979. Respondent's hearing aid licensure program administrator issued a succession of notices to all registered hearing aid dispensers in 1978 and 1979 advising of the new requirement and providing information as to where and when approved courses could be taken. By further letter of October 1, 1979, Respondent's licensing administrator transmitted applications to registrants for annual renewal of certificates. The letter of transmittal advised all registrants to enclose with their applications proof of successful completion of the ten-hour continuing education course during the calendar year 1979. Petitioner received the various letters issued by Respondent and her application for renewal. (Testimony of Gray, Petitioner, Exhibit 5) Petitioner was in ill health during 1978 and 1979 with various medical problems, and is still under the care of a physician for hypertensive cardiovascular disease. Consequently, she did not take the continuing education course until October 1979. At that time, she successfully completed the five hours of instruction offered by the Florida Hearing Aid Society at Daytona Beach. All hearing aid dispensers were advised in a letter from Respondent dated October 1, 1979, that a ten-hour course would be offered in early November at Brevard Community College, Titusville, Florida. However, Petitioner did not seek to attend this session. She submitted her application for license renewal on January 14, 1980, to Respondent and enclosed proof of completion of the five hours of instruction. Respondent's Director of Licensure and Certification advised her, by letter of January 31, 1980, that her application was denied since she had not completed a minimum of ten contact hours of approved continuing education credits. Thereafter, during March 1980, she attended and satisfactorily completed the full ten-hour course at Brevard Community College. (Testimony of Petitioner, Gray, Exhibits 1-2, 4,6)
Recommendation That Petitioner's application for renewal of her certificate of registration to fit and sell hearing aids be approved. DONE and ENTERED this 8th day of May, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Leo Stellwagen Evelyn S. Webster Assistant District IV Acousticon of Daytona Legal Counsel 222 Magnolia Avenue at Department of HRS Ridgewood Post Office Box 2417-F Daytona Beach, Florida 32014 Jacksonville, Florida 32231 Stephen S. Huss Staff Attorney Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues in these two consolidated cases concern whether Respondent committed several violations alleged in two separate administrative complaints and, if so, what penalties should be imposed.
Findings Of Fact At all times material to these consolidated cases, Respondent was a licensed hearing aid specialist in the State of Florida, having been issued license number AS 2169. On or about February 8, 2001, S. K. visited Respondent's business located at 3971 Jog Road, Suite 7, Greenacres, Florida, in order to buy hearing aids. On that day S. K. purchased two Audibel brand hearing aids. The invoice provided to S. K. clearly indicates that he was purchasing Audibel brand hearing aids. There is no mention of Beltone anywhere on the invoice. The two hearing aids purchased by S. K. on February 8, 2001, were delivered to S. K. on February 23, 2001. Hearing aids of the type purchased by S. K. are specially manufactured to address the specific needs of each patient. Accordingly, the hearing aids must be manufactured after the contract is entered into. At the time of the delivery of the hearing aids, S. K. was provided with an invoice that contained the name of the manufacturer, the serial numbers of the hearing aids, and the two-year warranty by Audibel. S. K. returned several times for adjustments to the new Audibel brand hearing aids. On March 20, 2001, the hearing aids were sent to the factory to change the volume control to a screw set control. The repair agreement document filled out by Respondent on March 20, 2001, contains the Beltone name and logo in one corner, but does not otherwise mention Beltone. The hearing aids were returned to S. K. on March 29, 2001. Sometime thereafter, S. K. decided to spend the summer in Connecticut. Before leaving for Connecticut, S. K. asked Respondent's secretary for the name of a Beltone dealer near his Connecticut address. The secretary provided the requested information. S. K. mistakenly thought he had purchased Beltone brand hearing aids from Respondent until June 24, 2001, when S. K. visited a Beltone dealer in Connecticut for adjustments. On or about June 24, 2001, a Beltone dealer in Connecticut wrote a letter to Respondent on S. K.'s behalf requesting a refund for S. K. Respondent did not state or imply to S. K. that Respondent was selling Beltone brand hearing aids to S. K. To the contrary, Respondent specifically told S. K. that Respondent was selling Audibel brand hearing aids to S. K.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Hearing Aid Specialists enter a Final Order concluding that all counts in both Administrative Complaints in these two consolidated cases should be dismissed because the evidence is insufficient to prove the violations alleged by clear and convincing evidence. DONE AND ENTERED this 24th day of July, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2003.
Findings Of Fact Ms. Joan Westhrin was accepted, over objection, as an expert hearing aid specialist, and her testimony as follows, is also accepted and adopted as findings of fact. Hearing aid specialists are licensed to perform audiometric testing. Audiometric testing is the function of presenting pure tones through headphones to establish a threshold of hearing. A threshold of hearing is the basis for the smallest amount of sound which the human ear can perceive. The testing is done by using air conduction by way of headphones and bone conduction. A comparison is made between the air conduction and the bone conduction results on the audiogram to determine if the client has a sensory neural hearing loss, meaning a loss in the nerve, or a mechanical function that would indicate that it is something that should be referred to a medical doctor for medical attention. During hearing examinations, the hearing aid specialist must also do an audioscopic examination, or a physical look into the ear canal, to rule out any anomaly that might be developing in order to determine whether the client is a candidate for medical testing. Ear mold impressions provide an exact duplicate of the ear canal so that a hearing aid may have an exact fit in the ear. A cotton block is used in the ear to prevent the impression material, silicone, from traveling down to the ear drum, and the material is left in the ear about five or six minutes to set properly. A hearing aid specialist must perform a complete audiological examination in order to provide a client with an appropriate hearing aid. Specific training is required for an individual to provide a safe examination, testing, ear mold impressions, and selection of a hearing aid for a client. Otherwise, an untrained individual may adversely impact on the client when performing the hearing test and providing a hearing aid. The parties' joint prehearing statement stipulated that the following are "facts which are admitted": The Respondent's name is Jack Lee Beckwith. The Respondent has been, at all times material hereto, a licensed hearing aid specialist in the State of Florida. The Respondent's hearing aid license number is AS 0001775. The Respondent's address is 14 Wildwood Trail, Ormond Beach, Florida 32174-4343. The Respondent is listed as a sponsor on the application of Jean Dewey for a hearing aid trainee and did not sponsor her until December 5, 1989. The Respondent is listed as a sponsor for David Dewey as a hearing aid specialist trainee and did not sponsor him until December 5, 1989. When Respondent became the Deweys' sponsor, he assumed responsibility for supervision of them as trainees. David Dewey is not guilty of canvassing, as set forth in Chapter 484. Jean Dewey is not guilty of canvassing, as set forth in Chapter 484. Despite the stipulations contained in sub-8 and sub-9 above, Petitioner presented, without objection, evidence geared to the issue of Respondent telling Mrs. Dewey to canvass. After Petitioner had rested, Respondent moved to dismiss the administrative complaint in part upon grounds that there had been no showing that Respondent had told Mrs. Dewey to canvass and upon the language of the stipulation, which was worded similarly to a prior request for admission. In response, Petitioner's counsel asserted that there had been no meeting of the minds in the stipulation because she thought she was only agreeing that Mr. and Mrs. Dewey had never been adjudicated guilty of canvassing. The motion to dismiss was taken under advisement for resolution in this recommended order (TR 134-135). The Jeanne Lyons Trust bought Brill's Hearing Aid Center in Daytona Beach in June, 1989. At that time, Jeanne Lyons was 100 percent owner of the Jeanne Lyons Trust and the Trust owned 100 percent of Brill's Hearing Aid Center, Inc. Jeanne Lyons is married to David F. Lyons. Mr. Lyons was not employed by the trust or by the hearing aid center corporation or by his wife in any capacity, but at all times material to this administrative complaint, he acted as "go-between" for all three. From 1988 to 1992, Mr. Lyons served on the Board of Hearing Aid Specialists. He is, and at all times material has been, a licensed hearing aid specialist. Respondent Jack Beckwith was an employee of the corporation, Brill's Hearing Aid Center, Inc., in Daytona Beach, Florida. He formed a separate management corporation with his wife, who is also a licensed hearing aid specialist. The management corporation was hired by the Jeanne Lyons Trust to manage Brill's in Daytona Beach and to help expand Brill's operations south into New Smyrna Beach and north into Palm Coast. The purpose of the management corporation was to avoid paying the Beckwiths as employees for the expansion work. In each of the new locations, a lease within an optometrist's office was negotiated by Mr. Lyons in approximately July, 1989. Respondent Beckwith is married to Kim Beckwith. Karen Martin was Mr. Beckwith's office manager at the Daytona Beach Brill's Hearing Aid Center. David James Jenkins is the son-in-law of David and Jean Dewey, a married couple. Mr. and Mrs. Lyons, Mrs. Beckwith, Ms. Martin, Mr. Jenkins and Mr. and Mrs. Dewey were not charged in the administrative complaint herein. Karen Martin had known Jean Dewey through prior employment. In July or August 1989, Ms. Martin set up a luncheon meeting for Mrs. Dewey and her husband, David Dewey, with Jack Beckwith. Mr. Beckwith ultimately introduced Mr. Dewey to Mr. Lyons sometime in August, 1989. The Deweys seemed good prospects to manage one of Brill's branch centers. On behalf of his wife and her trust and corporation, Mr. Lyons approved Mr. Beckwith's hiring the Deweys and becoming their sponsor to train as hearing aid specialists. At all times material, Mr. and Mrs. Dewey believed themselves to be in the employ of Respondent Beckwith and Mr. Lyons, operating as partners in Brill's. In negotiations with the Deweys, Mr. Beckwith estimated that Mr. Dewey could make $60,000.00 a year and Mrs. Dewey could make $40,000.00 a year based upon a 20 percent commission on gross deposits from hearing aid sales out of the New Smyrna Beach office after the Deweys became fully licensed as hearing aid specialists. He explained that licensure as a trainee and training were prerequisites to becoming fully licensed as hearing aid specialists. Both Mr. and Mrs. Dewey had a background in sales. Their testimony clearly reveals that they saw the selling of hearing aids from the perspective of marketing a product on a lucrative commission basis rather than from the viewpoint of a health care technologist. The commission arrangement proposed by Mr. Beckwith on behalf of the Jeanne Lyons Trust d/b/a Brill's Hearing Aid Center, Inc. was very attractive to them. They wanted to get started as soon as possible to make an increased commission over what they were being paid in other employments at the time they interviewed with Mr. Beckwith. They also found it attractive that they could work together near their home. Another factor motivating the Deweys to get started as soon as possible was that Mr. Dewey was employed at a marina which was about to close, and the marina closing would entirely eliminate Mr. Dewey's income. The Deweys were so enthusiastic about Mr. Beckwith's proposal that they nominated their son-in-law, David James Jenkins, to work in Brill's new Palm Coast office. During September 1989, Mr. and Mrs. Beckwith, with the approval of David F. Lyons, provided some free informal training sessions for Ms. Martin, Mr. Jenkins, and Mr. and Mrs. Dewey, just to see if they would really like hearing aid work and be adaptable to it before the Deweys and Mr. Jenkins quit their existing employments. This was not intended by Mr. Beckwith to be a real apprentice-type program. These sessions occurred twice a week and involved playing an instructional tape, handing out some printed statutes, rules, and technical materials, practicing with an audiometer, and learning to make ear molds. Each potential trainee was given his own audiometer to take home just for practice. On or about October 1, 1989, David Dewey signed an application to the Board of Hearing Aid Specialists to become a hearing aid trainee. His application for the trainee license listed Jack Beckwith as his sponsor. On or about October 1, 1989, Jean Dewey signed an application to the Board of Hearing Aid Specialists to become a hearing aid trainee. Her application for the trainee license listed Jack Beckwith as her sponsor. On or about October 2, 1989, Mr. Beckwith sent Mr. and Mrs. Dewey to operate Brill's Hearing Aid Center in space leased from Cady and Timko, optometrists, in New Smyrna Beach, Florida. The Deweys had precipitously quit their previous employment and had no income. Mr. Beckwith established what days of the week and hours they worked at Brill's, what they wore, and how they should be paid. He told them they could not be paid as employees until they were accepted and issued trainee numbers by the Department as trainees. Mr. and Mrs. Dewey were not paid any wages between October 1, 1989 and December 12, 1989. Due to the delay in receiving trainee licenses and numbers from the licensing agency and their lack of income, Mr. Dewey became infuriated and pressed both Mr. Beckwith and Mr. Lyons for action on licensing. As a result, he received sporadic checks from Brill's Hearing Aid Center. The amount of the checks apparently did not amount to projected commissions. The checks were signed by Jack Beckwith with the permission of David and Jeanne Lyons. The checks were referenced on their face as "loans". Mr. Dewey claimed that the purpose of this notation was so that Mr. Beckwith or others could avoid paying employee-related taxes. Mr. Lyons and Mr. Beckwith asserted that the notation was to insure that Mr. Dewey paid back Mrs. Lyons' advances after Mr. and Mrs. Dewey received their trainee licenses and went on the regular payroll. Mrs. Dewey received no checks. The lease Mr. Lyons had negotiated with Cady-Timko, O.D., P.A. provided for Brill's Hearing Aid Center, New Smyrna Beach to have ". . . [a]ccess to patient files to contact patients to tell them of hearing aid services available . . . [and] opportunity to confirm optometrist appointments and ask if they would like hearing test also." Sometime in October 1989, Mr. Beckwith also sent Mr. Jenkins to operate the newly leased office of Brill's Hearing Aid Center, Palm Coast, Florida. Mr. Jenkins claimed to have worked briefly at a Brill's Center in Ormond Beach, but there is no other evidence that there even was a Brill's Center in Ormond Beach. Mr. Jenkins quit the Palm Coast office approximately November 1, 1989 because no clients came there and he was "starving to death." He testified that he was instructed by Mr. and Mrs. Beckwith to make cold calls to potential hearing aid customers from all of the files in the adjacent optometrist's office in Palm Coast, but that he, Mr. Jenkins, so feared rejection that he asked his wife, Mrs. Jenkins, to make the calls. Mr. Jenkins also testified that he did some audiometric testing and that Mrs. Beckwith checked all the audiometric testing he did, but he was vague as to whether this was done at Brill's office in Palm Coast or during his pre-training. His testimony was unclear as to whether Mrs. Beckwith also personally supervised all his audiometric testing. Mrs. Beckwith was not charged with any violations. Respondent Beckwith was not charged in the pending administrative complaint with anything done by Mr. Jenkins. Mr. and Mrs. Jenkins were not charged with any violations. On or about October 15, 1989, Jack Beckwith signed and mailed to the Department of Professional Regulation a Brill's Hearing Aid Center, Daytona Beach check for $400.00 to cover trainee applications for Mr. and Mrs. Dewey, Mr. Jenkins, and Ms. Martin, at $100 apiece. The applications and check were not received or processed by the Department until December 1, 1989. The actual trainee licenses were issued for Mr. and Mrs. Dewey on December 5, 1989. Mr. Beckwith's clear testimony that he submitted the check and four applications together by mail on October 15, 1989 is credible and compelling as opposed to other witnesses' inferences of a December 1, 1989 submittal date because the check face references the four applications specifically, including Mr. Jenkins' application, and the evidence is unrefuted that Mr. Jenkins quit his association with Brill's on or about November 1, 1989. No motive or reasonable rationale was advanced as to why Respondent should mail in $100 of Brill's money to register Mr. Jenkins as a trainee on December 1, 1989, thirty days after Mr. Jenkins had already quit. As noted above, the parties have stipulated as fact that Jack Beckwith did not become the Deweys' sponsor until December 5, 1989. At all times material, the training course and apprenticeship program under a sponsor approved by the licensing agency took approximately six months to complete before the applicant could sit for the hearing aid specialist licensure exam. From all accounts, it appears that it was standard operating procedure in the industry for sponsors to allow trainees to perform all services under direct supervision of their sponsor from the date the application for trainee status was mailed to the licensing agency. In this case, that date would have been October 15, 1989. David Dewey and Jean Dewey were not registered as trainees with the Board of Hearing Aid Specialists until December 5, 1989. According to the testimony of Theresa L. Skelton, the Department's policy was to treat applicants as trainees as soon as it received their checks, which in this case was December 1, 1989. Apparently in 1989, the agency did no extensive background check on applicants, and trainee licensing was largely a ministerial act if the proposed sponsor was legitimate. As far as the Department was concerned, trainees could legally perform all services under sponsor supervision as soon as their application and check were processed. See also, Sections 484.0445(1) and (2) F.S. infra. In October 1989, when Mr. Beckwith sent Mr. and Mrs. Dewey to the Brill's office in New Smyrna Beach, he instructed them to sell batteries and make appointments for persons who answered a newspaper advertisement he had placed to announce opening that branch office. He also told them to telephone current patients of the Daytona Beach Brill's Hearing Aid Center who lived in New Smyrna Beach and tell them that they no longer had to travel to Daytona Beach but could be serviced more conveniently at the new New Smyrna Beach location. Mr. Beckwith testified that he also told Mrs. Dewey to telephone "recall patients" for the optometry office. Recall patients were patients of the optometry office who needed to be reminded to come in to pick up glasses already ordered or who were due for a new eye appointment. Mrs. Dewey was also told to announce the opening of the hearing aid center to any of the optometry recall patients whose records bore Dr. Cady's notation, "HL" for "hearing loss", and also simultaneously make appointments for hearing tests. Mr. Beckwith intended that all appointments would be made for Wednesdays when he would come to New Smyrna Beach to do hearing tests and fit and deliver hearing aids. This testimony is in accord with the conditions of Brill's lease with Cady-Timko O.D. P.A., negotiated by Mr. Lyons. Mrs. Dewey testified credibly that Mr. Beckwith approved a script for her use for these telephone calls. Nothing in the script clearly shows that she was calling exclusively optometric recalls, Brill's old patients, or making "cold" calls. However, it mentions nothing about existing eyewear or appointments, and it does offer a free hearing test. Mrs. Dewey further testified that Ms. Martin instructed her how to use Dr. Cady's files to make a list and call all of Dr. Cady's patients over a certain age, regardless of an "HL" notation, paying special attention to those with insurance coverage. Mrs. Dewey understood these instructions also came from Mr. Beckwith and made telephone calls pursuant to the method outlined by Ms. Martin. Mr. Beckwith denied giving these instructions or approving the script. Mrs. Dewey's testimony and the list show that after the first two pages going through Dr. Cady's files with names beginning with the B's and C's of the alphabet had been prepared by Ms. Martin and one appointment scheduled on Tuesday, October 17, 1989 and one on Wednesday, October 18, 1989, Mrs. Dewey started back at the A's and prepared a more extensive list of names. This suggests that Mrs. Dewey went behind Ms. Martin's work and selected from Dr. Cady's files some names which Ms. Martin had excluded. Comparison of the list with a 1989 calendar shows that Mrs. Dewey booked approximately 35 appointments for dates between October 2, 1989 and December 12, 1989, without regard to whether they fell on Wednesdays. Most of the appointments she booked were for days other than Wednesdays. They included days between December 5, 1989 and December 12, 1989 while Mr. Beckwith was listed as the Deweys' sponsor. Mrs. Dewey, whose background was in sales, considered what she was doing to be "telemarketing". Neither Dr. Cady's files nor Mrs. Dewey's list showed that any person she telephoned had expressed an interest in hearing aids before Ms. Martin or Mrs. Dewey contacted them. Mrs. Dewey's list clearly shows that most of the people called either did not acknowledge that they had a hearing loss or were not interested in a hearing test and/or hearing aids. Mr. Dewey testified that between October 2, 1989 and December 12, 1989, he performed unsupervised audiometric testing, the taking of ear mold impressions, and the sale and dispensing of hearing aids to 20-24 persons and that he did so either with the instructions or knowledge of Mr. Beckwith and outside Mr. Beckwith's presence because Mr. Beckwith remained in Daytona Beach except on Wednesdays. Mr. Lyons and Mr. Beckwith denied issuing such instructions and denied even any knowledge that this had occurred until Mr. Beckwith was served with the administrative complaint. Mr. Beckwith testified that when he was present on Wednesdays, Mr. Dewey would sit in with him and observe testing and delivery and that whatever he allowed Mr. Dewey to do in his presence was overseen by him and he signed the appropriate documentation. He denied knowing that Mr. Dewey was also practicing as a hearing aid specialist when he was not present. Mr. Dewey conceded that Mr. Lyons specifically instructed him not to make any deliveries, and it is clear from Mr. Dewey's testimony that he thought Mr. Lyons' instruction meant "no home deliveries to patients", instead of "no delivery of finished hearing aids to clients anywhere, including the office," which would be a partial definition of "no dispensing." Although Mr. Dewey has claimed to make sales of hearing aids, he also has, since 1989, consistently maintained that he never "delivered" a hearing aid to a client. His testimony at formal hearing does not render clear whether or not he actually fitted a completed hearing aid on a client or ever actually collected money for a "sale" without supervision by Mr. or Mrs. Beckwith. Mr. Dewey testified that Mr. Beckwith or Mrs. Beckwith signed all paperwork as being responsible for the tests, etc. which he performed in their absence. No documentation of hearing tests or hearing aid sales by Mr. Dewey were submitted; no clients Mr. Dewey allegedly serviced testified; no bank deposits showing income from the New Smyrna Beach location were offered; and Mrs. Beckwith did not testify. Mr. Beckwith testified he personally delivered no hearing aids from the New Smyrna Beach office. On or about December 6, 1989, but before the Deweys had received their trainee licenses or been informed that they had been licensed as of December 5, 1989, they invited George Selas, a competitor and a licensed hearing aid specialist, whom Mrs. Dewey had known for some time, into the New Smyrna Beach office of Brill's Hearing Aid Center. When they explained the "telemarketing" that Mrs. Dewey was doing, Mr. Selas informed them that it was illegal and that they should not be practicing as hearing aid specialists before trainee numbers were issued to them by the Department. The Deweys immediately notified the Department by telephone on December 6 and in writing on December 7, 1989 of everything they had been doing and disassociated themselves from Respondent Beckwith, Mr. and Mrs. Lyons, and Brill's. That would mean that after December 6 they no longer operated out of their sponsorship situation with Mr. Beckwith, despite any booked appointments. As of December 12 or 13, 1989, they formally changed their sponsorship to Mr. Selas. They finished their training and apprenticeship under his sponsorship and were licensed as hearing aid specialists in 1990. As a result of information received from Mr. Dewey and Mr. Selas, Dr. Cady gave notice he was terminating the lease for Brill's New Smyrna Beach office. Mr. Selas and Brill's, represented by Mr. Beckwith, were competing for the same contract with an HMO in 1989-1990. Respondent attributes all of Mr. Dewey's actions to collusion with Mr. Selas in order to obtain the HMO contract and rent the space occupied by Brill's in New Smyrna Beach. These inferences are based upon inadmissible hearsay from someone at the HMO who allegedly got an anonymous phone call, and Dr. Cady's understanding of something Mr. Dewey may have said either to Dr. Cady or to his office manager.
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 finding Respondent guilty of violating Sections 484.056(1)(h) and (t) F.S., not guilty of all other charges, and revoking his license. DONE AND ENTERED this 6th day of January, 1995, in Tallahassee, Florida. ELLA JANE P. DAVIS, 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 6th day of January, 1995. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-3 Accepted, except as to the use of the word "employed." See the Conclusions of Law. 4 Rejected upon contrary evidence of greater weight and credibility in Finding of Fact 33. 5-7 Accepted. 8 Accepted as modified in Finding of Fact 21 to better conform to the record and statute. 9-10 Accepted, except that receipt of the check was testified to be December 1, 1989. Rejected in part as a conclusion of law. See Finding of Fact 21 and the Conclusions of Law. Rejected because misleading as stated. See Finding of Fact 33 upon the greater weight of the credible evidence. Accepted. 14-16 Rejected only upon the word "employment" as a word of art. See Findings of Fact 15, 27-31 and the Conclusions of Law. 17 Rejected as a conclusion of law. See Findings of Fact 21, 27-31 and the Conclusions of Law. 18-22 Accepted, except for unnecessary, subordinate, and/or cumulative material and legal argument. Rejected as a conclusion of law. Covered in Findings of Fact 21, 27-33 and the Conclusions of Law. Accepted. 25-26 Covered only as necessary in Finding of Fact 22-25. 27-29 Accepted except as to word "employee." See Conclusions of Law. 30-31 Rejected as unnecessary or subordinate. Rejected as a finding of fact; see the Conclusions of Law. Rejected because misleading as stated. See Finding of Fact 9 and 15. 34-35 Rejected upon the greater weight of the credible evidence in Findings of Fact 15-16. Rejected as a mere recitation of nondispositive testimony. Rejected as not proven. Respondent's PFOF: 1-7 Accepted. Rejected as a conclusion of law. See Finding of Fact 20-21 and the Conclusions of Law. Sentence 1 is rejected as a legal conclusion. Sentence 2 is accepted in part in Finding of Fact 15-16 and 21 and otherwise rejected as a legal conclusion. The remaining sentences are accepted except that unnecessary, subordinate or cumulative material has not been adopted. 10-12 Accepted except that unnecessary, subordinate or cumulative material has not been adopted. The first sentence is rejected a mischaracterizing Mrs. Dewey's testimony. The second sentence is rejected upon the greater weight of the credible evidence as a whole. Accepted. First 15 Rejected as not proven. Dr. Cady's deposition is vague on this point. See Findings of Fact 34-35. Second 14 The first sentence is accepted. The second sentence is rejected as a mischaracterization. The third sentence is accepted. Second 15 Rejected as legal argument. 16 Rejected as legal argument. COPIES FURNISHED: Raymond Shope, Esquire Northern Trust Bank Building, Suite 225 4001 Tamiami Trail North Naples, FL 33940 Susan E. Lindgard, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792 Suzanne Lee, Executive Director Board of Hearing Aid Specialists Department of Business and Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792
The Issue The issue presented is whether Petitioner achieved a passing grade on the September 1991 hearing aid specialist examination.
Findings Of Fact Petitioner took the September 1991 hearing aid specialist examination. He achieved a passing score on the practical portion of that examination but failed to achieve a passing score on the written portion. He challenged ten questions from the written portion of that examination. Just prior to the commencement of the final hearing in this cause, Respondent determined that it could not defend three of the questions challenged by Petitioner. Respondent therefore gave Petitioner credit for his answers to those three questions. Accordingly, Petitioner's score on the written portion of the examination is 74.2 after the adjustment made for the additional credit. Question numbered 40 referenced situations necessitating factory repair. The Department contends that answer "A" is the correct answer. Petitioner chose answer "C." In order to defend answer "A," it was necessary for the Department's expert to assume facts not contained in the question. Due to the wording of the question, answer "C" is just as correct as answer "A." Accordingly, Petitioner should be given credit for his answer to question numbered 40. Question numbered 97 referenced Florida's statutory requirement for medical clearance prior to fitting some persons with hearing aids. Petitioner chose answer "B." The experts testifying in this proceeding agreed that the correct answer was answer "A." Question numbered 102 referenced minimal procedures. Petitioner chose answer "D." The Department's answer "B" is a comprehensive recital of the minimal procedures set forth by statute. One would not fit and sell a hearing aid based only on an otoscopic examination of the ear. Question numbered 114 referenced the required contents of hearing aid packaging. Petitioner chose answer "D." Petitioner's answer reveals that he is confused about the requirements for packaging as opposed to the requirements for receipts. The correct answer is answer "B." Question numbered 124 referenced a buyer's right to a refund. Petitioner chose answer "A." The correct answer was answer "B." Question numbered 33 involved troubleshooting. Petitioner chose answer "B." The experts who testified in this cause agree that answer "A" is the correct answer. Question numbered 66 involved the necessity for masking. Both Petitioner's answer "B" and the Department's answer "C" are correct answers. Further, Petitioner's answer "B" is a better answer than the Department's answer "C." The Department's position is not supported by the treatise on which it relies, and the Department's answer involves a testing procedure which is seldom used currently. Accordingly, Petitioner should be given credit for his answer to question numbered 66.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Dismissing Petitioner's challenge to questions numbered 33, 97, 102, 114, and 124; Giving Petitioner credit for his correct answers to questions numbered 40 and 66; and Finding that Petitioner achieved a passing score on the September 1991 hearing aid specialist examination if his recalculated score is now 75 or higher. DONE and ENTERED this 22nd day of May, 1992, at Tallahassee, Florida. COPIES FURNISHED: Don Floyd Kutik, pro se 9297 Gettysburg Road Boca Raton, FL 33434 LINDA M. RIGOT 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 22nd day of May, 1992. Vytas J. Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Kaye Howerton, Executive Director Department of Professional Regulation Board of Hearing Aid Specialists 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the parties pre-hearing stipulation and the entire record compiled herein, I hereby make the following relevant findings of fact. By its Administrative Complaint filed November 5, 1982, Petitioner seeks to suspend the Respondent, Robert L. Devlin, from the right to operate and practice the fitting and selling of hearing aids for a period of thirty days and to place his license on probation for a period of one year with the licensee's customer record subject to monthly audit by the Petitioner. Alternatively, Petitioner seeks to impose any other penalty authorized by law. During times material, Robert L. Devlin, Respondent, was the holder of a Certificate of Registration (number 244-10-68) for the fitting and selling of hearing aids. On December 3, 1981, Respondent was employed by Better Hearing Aid Services located at 2430 East Commercial Boulevard, Ft. Lauderdale, Florida. William Jellison was tested for a hearing aid on December 3, 1981, at the Ft. Lauderdale location of Better Hearing Aid Services. Someone in a position of authority accepted fifty dollars ($50.00) cash from William Jellison as a deposit on a hearing aid and gave him a receipt therefor on December 3, 1981. (stipulated facts) Phillip C. Kribbs 1/ is not licensed to test, fit or sell hearing aids the Petitioner during times material herein. William F. Jellison visited the offices of Better Hearing Aid Services on December 3, 1981 for the purpose of purchasing a hearing aid mold. Jellison spoke to Kribbs who advised him that he needed a hearing aid test. Kribbs called out certain words and requested Jellison to repeat the words that Kribbs called out. During that testing procedure, the Respondent was present, although he was taking care of other chores in the Better Hearing Aid Services office. Kribbs gave Mr. Jellison a receipt which reflected that it was a new hearing aid to be purchased; a customer discount of one hundred ($100.00) dollars was reflected on that receipt; a cash downpayment of fifty ($50.00) dollars was reflected and a balance due of five hundred forty nine (549.00) dollars was shown as the amount remaining due. On the following day, Mr. Jellison was curious as to what he could purchase the hearing aid for at another company and determined that he could purchase the same hearing aid at another store for approximately two hundred ($200.00) dollars less. With that knowledge, Mr. Jellison attempted to cancel his purchase of the hearing aid from Better Hearing Aid Services by serving notice of his intent to cancel in the form of a telegram on the offices of Better Hearing Aid Services which was followed that same day by a telephone communique. Mr. Jellison did not take delivery of the hearing aid which he was tested for by Better Hearing Aid Services on December 3, 1981. Phillip Kribbs was employed as an apprentice by Better Hearing Aid Services during the period June, 1980 through February, 1983. During his employment as an apprentice for Better Hearing Aid Services, part of his duties included giving a "pure tone and word test" Kribbs twice sat for the registration examination and was unsuccessful on both sittings. Kribbs conducted all of his duties respecting testing under the direction and supervision of the Respondent while employed as an apprentice for Better Hearing Aid Services. Finally, Kribbs acknowledged tendering Mr. Jellison a receipt for the deposit for a hearing aid which was completely written by him (Petitioner's Exhibit Number 3).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent's license for the fitting and selling of hearing aids and his right to operate and practice thereunder be placed on probation for a one (1) year period with the licensee's customer records subject to monthly audit by the Department. RECOMMENDED this 29th day of September, 1982, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1983.
