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 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.
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 as to DOAH Case Number 94-0966 Whether disciplinary action should be taken against Respondent's license to practice as hearing aid specialist based on a violation of Sections 484.056(1)(g), Florida Statutes (1991) by allegedly selling old, stolen hearing aids as new hearing aids as alleged in the Administrative Complaint.
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed hearing aid specialist in the State of Florida, having been issued license number AS 0002321. Respondent is a licensed hearing aid specialist and has been so licensed for approximately seven years. During the seven-year period as a licensed hearing aid specialist, Respondent has fitted over 2,500 hearing aid devices. Prior to the instant complaint, Respondent had no disciplinary actions against him relating to customer service. as to DOAH Case Number 94-0966 Ms. Ola Martin is seventy-two (72) years old and has a hearing problem. In 1993, Ms. Nancy Martin retained the services of Bob Horine at Hearing World, Inc., in Maitland, Florida, for purposes of purchasing a hearing aid for her mother, Ms. Ola Martin. On January 6, 1993, Ola Martin came in the offices of Hearing World, Inc., and was examined by Bob Horine, the owner. Horine did the audio testing on Ola Martin by mechanically checking her hearing and fitting her for hearing aids. The only persons in the office at that time were Respondent, Ola Martin, Horine, and Mrs. Martin's daughter, Nancy Martin, who had accompanied her mother to Hearing World, Inc. During the time that Horine was selling and fitting Ola Martin with her hearing aids, Respondent was in and out of the examination room. Respondent was introduced to Martin at that time. Respondent did not participate in the examination or taking of impressions of Ola Martin's ears for the hearing devices. The person responsible for fitting and selling the hearing aids to Ola Martin was Bob Horine. The contract for sale and delivery of the hearing aids to Ola Martin was made between Horine and Ola Martin. Ola Martin stated that she was returning to Kentucky in two days and asked if she could have rush service. Horine agreed and advised her to pick up her hearing aids the following day, January 7, 1993. Ola Martin paid $1,295.00 to Horine on the same day that he tested her hearing for hearing aids. Horine asked Respondent for assistance in obtaining rush service. Respondent agreed that he would take the paperwork to the SonoTone Laboratory in Casselberry. They agreed to expedite the manufacture of the hearing aids for Ola Martin. Ola Martin arrived the following day with her daughter to retrieve her hearing aids. She was informed that neither Horine, nor Dan Culley, Hearing Aid Specialist, were available for the fitting, and the fitting would be done by Respondent. After agreeing to perform the final fitting for Martin, Respondent retrieved her file and found hearing aid devices inside. The file contained two devices, one for each ear. Respondent took Martin back to the examination area and examined her ears to make sure that they were free of wax. Respondent then took the hearing aids, installed the batteries, and placed the aids into Martin's ears, asking her how they felt. Respondent then showed Martin how to work the hearing devices. Respondent then gave Martin a 25-word discrimination test from a distance of ten feet. During the fitting, Martin conveyed to Respondent that the hearing aids seemed a little too large. Respondent then took them to another room where he buffed the hearing aids with a drill in order to help them fit properly. When placed back in the ears of Martin, they seemed to fit properly. Respondent instructed Martin to leave the hearing aids in place for one hour on the first day, and then gradually to increase the wearing time until she was comfortably wearing the hearing aids at all times except at night. At no time did Martin communicate her dissatisfaction with the fit or sound of her hearing aids to Respondent. Martin was in a hurry to conclude her business with Respondent, as she was worried that her daughter was going to be angry with her for taking so long. The serial numbers on the hearing aid devices delivered to Martin are too small to be viewed by the naked eye and require magnification to be seen. Respondent did not check the invoice numbers against the numbers on the devices delivered to Martin. At Hearing World, hearing aids were checked in through the receptionist, who would prepare the hearing aid devices for delivery. The receptionist was responsible for checking the serial numbers against those listed on the invoice. Respondent assumed when he found the two hearing aids in Martin's file, that they were the hearing aids which had been manufactured by SonoTone for her. Respondent made a visual inspection of the hearing aids and did not check the serial numbers from the manufacturer against those on the hearing aid devices. Neither a visual inspection, nor from any communication from Martin, caused Respondent to believe that the hearing aids which he inserted at that time were not those manufactured for Martin. Respondent received no negative communication from Martin after the fitting of her hearing aids. Approximately two to three days after Respondent fitted Martin's hearing aid devices, he was informed by the receptionist that two hearing aid devices had arrived from SonoTone for Martin. Respondent then realized that the hearing aids which were in Ola Martin's possession were not manufactured for her. When Respondent informed Horine of the error, Horine told Respondent that he had used Respondent's models in testing, and had "stuck" [sic] them in her file by mistake. Horine told Respondent that he would take care of the matter and straighten out the erroneous delivery. The standard operating procedure employed at Hearing World, Inc. in fitting a client with hearing aids was as follows: Hearing aids would be ordered. The hearing aids would then be manufactured by SonoTone in Longwood and sent to Hearing World, Inc. The hearing aids would first come to the secretary at Hearing World, Inc. The secretary would then take the hearing aids out, inspect them, insert batteries, and test their functioning. The secretary would record the serial numbers on the invoice and check those with the serial numbers on the hearing devices and place the hearing devices in the client's file. The person fitting the hearing aids would then pick up the file. It was not negligent, incompetent or misconduct for Respondent to have picked up Ola Martin's file, and finding two hearing aids therein, place them in the client's ears with a visual check only. After making the slight adjustment for size and with no complaints from the client as to audio or fitting problems, Respondent would not have had cause to double check the manufacturer's number on the hearing aids with the manufacturer's number on the invoice. Although the hearing aids helped Ola Martin's hearing, upon her return to Lexington, Kentucky, she complained that they seemed too loud even when she turned them down as low as they would go. Martin went to the Miracle Ear office in Lexington to have her hearing aids examined, and was examined by James McFadden, a hearing aid specialist for 29 years. Martin complained to McFadden that her hearing aids did not fit properly and that the sound was not clear. Upon examining Ola Martin's device, McFadden observed that they did not fit properly. McFadden attempted to adjust the hearing aids to Martin's satisfaction, but was not able to do so. McFadden obtained the serial number from the hearing device and spoke to a Miracle Ear representative in Minneapolis. He was informed that the hearing aid devices were registered to a woman in the Miami area and were fitted to that woman in March, 1991. McFadden then retested Martin and made new impressions of her ears for another Miracle Ear hearing device. The hearing aids brought to McFadden by Martin were originally made for Isabella Miller and were sold through Jean Marohn, a Miracle Ear franchisee based in Fort Myers, Florida. The shipping date was March 27, 1991. Miracle Ear instructed Martin to return the hearing aids to the original seller, Horine, for a complete refund. Based upon her conversation with McFadden, Martin returned the hearing aids to her daughter in order to obtain a refund from Hearing World, Inc., in Orlando. Ola Martin's daughter contacted Hearing World and was reimbursed by Horine for the full amount paid for hearing aids. Subsequently, Ola Martin filed a complaint with the Florida Department of Business and Professional Regulation against Horine, but not as to Respondent. Dahlburg is the manufacturer of Miracle Ear. During the manufacturing process, a serial number is placed on the hearing instrument which is unique for that particular hearing instrument. It is registered to the single individual for whom the instrument is made. Upon construction of the hearing instrument, it is shipped to the franchisee for placement in the consumer's ear. A franchisee outside the Minneapolis area could not obtain a hearing device from Dahlberg within a 24-hour period. Miracle Ear replaced Martin's hearing aids with new Miracle Ear hearing instruments at no cost to her. Jean Burton Marohn is a licensed hearing aid specialist in the State of Florida and owner of a Miracle Ear franchise located in Ft. Myers, Florida. In the early 1990's, Respondent was employed by Marohn as a manager at the store in Miami that covered South Dade and Monroe Counties. Respondent was employed in that capacity until approximately September 1992, when the store closed and he lost his home and personal belongs to Hurricane Andrew. The hearing aids in possession of Ola Martin were, in fact, sold by the Miami store to Isabella Miller. The hearing aids originally constructed for Isabella Miller were returned by her to Marohn's office in Miami. Miller alleged she was dissatisfied with the product, and could not afford the payments. Although Marohn attempted to rectify the problem with the hearing aid devices, Miller refused to reclaim possession of the hearing aids. They remained in Marohn's Miami location because the manufacturer's return period had expired. At the time of the impending Hurricane Andrew, Marohn requested that Respondent remove from the store what items he could: typewriters, telephones, copy machines, fax machines, and audiometers because of the potential for looting after the storm passed through. Respondent did so and informed Marohn that, in addition to the above items, he also removed stock and merchandise from the store. None of the items removed by Respondent, including the hearing aid devices, were returned to Marohn after the hurricane. In March of 1993, Marohn received a telephone call from an attorney calling on behalf of Respondent informing her that Respondent wanted to return the items removed from her store in exchange for commissions that she owed him. Marohn informed Respondent's attorney that she had replaced the equipment that Respondent had removed and she refused to accept the return of her property. Marohn tendered a casualty loss to her insurance company, including items that Respondent removed with knowledge, including the hearing aids. At the time that Respondent discontinued employment with Marohn, he was due a minimum of $3,000.00 in commissions. Prior to Hurricane Andrew, Marohn provided Respondent with a number of hearing aid devices which were given to him and which he employed as display or demonstrative models. The hearing aids returned to Marohn by Miller at Miracle Ear were given to Respondent for demonstrative purposes. Respondent kept approximately 12 pair of canal hearing instruments, including Miller's, of different sizes and frequencies in his display case, which he called Pandora's Box. He took this display case with him when he moved to Central Florida. After Hurricane Andrew occurred, Respondent left Marohn's employment and moved to Central Florida. He also took with him certain items that he had removed from the store. Subsequent to Respondent's departure, a dispute arose between him and Jean Marohn over commissions that were due from his employment with her. Respondent contacted an attorney who attempted to reach a settlement with Marohn as to the items held in Respondent's possession and commissions owed to him by Marohn. Respondent is currently in litigation with Marohn over the commissions due. Upon departing the Miami area, Respondent began employment with Hearing World, Inc. on Woodcock Road, Orlando, Florida. Respondent was employed at Hearing World, Inc. by Bob Horine and Tony Andreozzi. Bob Horine was president and manager of the Hearing World facility. The only compensation received by Respondent was 30 percent of the sale of hearing aids sold by him. Whenever Respondent completed the final fitting for a customer for hearing aids sold by Horine, Respondent would not receive any compensation. as to DOAH Case Number 94-0967 On June 21, 1993, the Petitioner conducted an inspection at Respondent's place of employment in Maitland, known as Hearing World, Inc. The inspection revealed several violations of Florida law, as follows: The testing room facilities and files were missing waiver forms. A failure to have hearing aid models, supplies and services available on the premises. A failure to post prices. A failure to provide calibration certifi- cates for audiometers in use in the facility. At the time of the inspection at Hearing World, Respondent introduced himself to Petitioner's inspectors as a vice president of that company. At the time of the inspection, Respondent was employed at Hearing World located on Woodcock Road in Orlando, Florida as a sales representative. Under his compensation agreement, he was to be paid for 30 percent of his sales. The owners of the company, Hearing World, Inc., located at Woodcock Road, Orlando, Florida, were Bob Horine and Tony Andreozzi. Respondent had no ownership interest in Hearing World, and was neither stockholder, officer, director nor minority shareholder in the company. Respondent received no compensation from the sales of hearing devices sold by other owners, managers, or employees of Hearing World, Inc. The only agreement between Respondent Horine as to the position of vice president was contingent upon Respondent's buyout of Horine's interest in Hearing World, Inc. A transaction which never came to fruition. Respondent expended no personal funds in renovating the office; purchasing signs, equipment, advertising or office overhead. The occupational license for Hearing World, Inc., posted on the premises, did not contain Respondent's name. Although Horine's Hearing Aid specialist license had been either suspended or revoked, Respondent had no knowledge of that fact until after the June, 1993 inspection. Respondent at no time agreed or intended to be the licensed person on the premises responsible for the business and training of other employees. At the time of the June, 1993, inspection, Hearing World had been at that location approximately 30 days. At the time of the June, 1993, inspection, there was an audiometric testing room on the premises under construction. An individual, named John Harris, was overseeing the work on the telecoustics and was in the process of doing the final calibration on the audiometric testing room at the time of the inspection. It was completed within a few days thereafter. At the time of the June 1993 inspection, Hearing World carried its services outside the office location and provided in-home service. At the time of the inspection, Respondent was not conducting any testing in the office. He was practicing in-home service. At the time of the inspection, hearing aid models, supplies and services were on the premises but were in the possession of the respective sales representatives. They stored them in their individual display cases (Pandora's Box). A majority of all supplies were located in the employees' Pandora Boxes, since Hearing World, Inc. was predominantly a field operation. The bags were utilized by the employees when they left the office to make field calls. The employees would bring their equipment to the office premises. When called into the field, they would take their equipment with them, which included hearing aid models and supplies. Hearing aid prices were posted in the administrative office at Hearing World, Inc., where the clients would come to pay their bills. On June 21, 1993, Respondents wife, Barbara Segretario, was employed as an administrator on the premises at Hearing World, Inc. Barbara Segretario was responsible for handling all the paperwork, accepting money, paying bills, and making financial arrangements for the purchase of hearing aids or to pay for repairs. All clients who came into the office to pay a bill, make financial arrangements, purchase a hearing aid, or pay for a repair would come into her office at Hearing World, Inc. There was a price list for hearing aids posted in Barbara Segretario's office in front of her desk, next to the window to her left, said price was posted on June 21, 1993, at the time of the inspection. Every transaction at Hearing World, Inc. included a visit by the client to the administrative offices for financial arrangements where hearing aid prices were conspicuously posted. Hearing World employed a service representative on June 21, 1993. When the inspection occurred, the representative was off the premises. The service representative's service equipment, as well as hearing aid models and supplies, were kept with him so that they were present when he was on the premises. He left with them when he went into the field to do an in- home service on behalf of Hearing World, Inc. Generally, these services were not conducted on premises, but were carried into clients' homes. All of the sales personnel at Hearing World, Inc. had their own hearing aid models which were kept with them in a display case, which they had in their possession while on premises and carried with them into the field for in-home services. There were two audiometers in use on the premises at the time of the June 1993 inspection; however, Horine and Respondent could not provide a certificate of calibration for those instruments to the inspector. Respondent did not provide the certification to the Petitioner for the audiometer that he employed at the time of the inspection. There were other audiometers on the premises that were not in use and were not certified at the time of the June 1993 inspection. A copy of the certifications of the two audiometers being used on the premises on June 21, 1993 were mailed to Petitioner after being requested by the Inspector. As of the date of this hearing, Petitioner had not received the certifications that were mailed pertaining to the two audiometers employed on the premises at the time of the inspection.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint as to DOAH Case No. 94-0966. It is further RECOMMENDED that a Final Order be entered dismissing Counts I, II, III and V of the Administrative Complaint as to DOAH Case No. 94-0967, finding Respondent guilty of violating Count IV of the Complaint and imposing an administrative fine of $100.00 for said offense. DONE AND ENTERED this 14th day of April, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 14th day of April, 1995. APPENDIX Petitioner's Proposed Findings of Fact: Accepted in substance: paragraphs 1, 2 (in part), 3, 4, 5, 6, 7, 8 (in part), 9 (in part), 10, 11, 13, 14, 17, 18, 19, 21, 22, 24, 25, 26, 28, 30, 31 (in part), 32 (in part), 34, 36, 37, 38 (in part), 39 (in part), 40 (in part), 42, 46, 47, 48 (in part). Rejected as not proven by clear and convincing evidence: paragraphs 2 (in part), 8 (in part), 9 (in part), 12, 31 (in part), 32 (in part), 33, 38 (in part), 39 (in part), 40 (in part), 41, 48 (in part). Rejected as subsumed, irrelevant or immaterial: paragraphs 5, 15, 16, 20, 27, 29, 35, 43, 44, 45. Respondent's Proposed Findings of Fact for Case No. 94-0966 Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 (in part), 12, 13, 14, 15 (in part), 16, 17, 18 (in part), 19, 20, 21, 23, 24, 25, 26, 28, 29, 30, 33 (in part), 34, 35, 36 (in part), 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 (in part) 50 (in part), 51 (in part), 52 (in part), 57, 58, 61, 64, 67, 68, 69, 70 (in part), 71, 73, 74, 75, 76, 77, 78, 79, 80, 81 (in part), 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 108 (in part), 109, 110, 111. Rejected as against the evidence: paragraph 11 (in part), 15 (in part), 18 (in part) 51 (in part), 52 (in part). Rejected as subsumed, irrelevant or immaterial: paragraphs 22, 27, 31, 32, 33 (in part), 36 (in part), 37, 49 (in part), 50 (in part), 53, 54, 55, 56, 59, 60, 62, 63, 65, 66, 70 (in part), 72, 81 (in part), 104, 105, 106, 107, 108 (in part), 112, 113, 114, 115, 116, 117. Respondent's Proposed Findings of Fact for Case No. 94-0967 Accepted in substance: paragraphs 1, 2, 4 (in part), 5, 6, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 34, 35, 36, 39, 40, 41, 42, 43, 44, 45, 47 (in part), 48 (in part), 49, 50, 51 (in part), 53. Rejected as subsumed or irrelevant or immaterial: paragraphs 3, 31, 37, 38. Rejeted as not proven by clear and convencing evidence: paragraphs 4 (in part), 7, 8, 9, 46, 47 (in part), 48 (in part), 51 (in part), 52. COPIES FURNISHED: Susan E. Lindgard, Esquire Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William J. Sheaffer, Esquire 609 East Central Boulevard Orlando, Florida 32801 Susan Foster Executive Director Hearing Aid Specialists Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this case is whether Respondent's license as a hearing aid specialist in Florida should be disciplined because of the matters alleged in the Administrative Complaints filed herein.
Findings Of Fact At all times relevant to the issues herein, the Board of Hearing Aid Specialists has been the state agency in Florida responsible for the licensing of hearing aid specialists and the regulation of the hearing aid provider profession in Florida. The Respondent has been a licensed hearing aid specialist in this state, holding license number AS 00010006. Stanley I. Williamson is an 84-year-old blind and arthritic retiree who has worn hearing aids since the early 1980's. He has known Mr. Conley since that time and has purchased his hearing aids from the Respondent both when the Respondent was working for other suppliers and when he went into business for himself. In the summer of 1997, Mr. Williamson went to the Respondent to get the wax cleaned out of his hearing aids. Mr. Williamson did not feel he needed new aids at the time. However, on June 6, 1997 Respondent Mr. Conley called him and tried to sell him some new aids. Mr. Williamson told the respondent he didn't want new aids because his were working well, but Mr. Conley suggested he bring them in anyway. Mr. Williamson went to the Respondent's office and tried the new ones the Respondent showed him but decided he did not want them because he felt they did not work properly. Nonetheless, on that same day, June 6, 1997, Mr. Williamson took them, signed a contract for the new aids, and gave the Respondent a check for $1,095. At that time, the Respondent told Mr. Williamson he could bring the aids back within 30 days if they were not acceptable. The Argosy hearing aids Mr. Williamson got from the Respondent on June 6 did not work properly, and when Mr. Williamson complained, the Respondent agreed to get him another pair. Mr. Williamson picked up this second pair of aids at the Respondent's office, Conley's Hearing Aid Center in Clearwater on June 20, 1997. At that time Mr. Williamson signed a second contract and gave the Respondent a second check for $1,095. On June 24, 1997, the Respondent had Mr. Williamson, who was still not satisfied with the performance of the Argosy aids, sign a third contract with his company under which the Respondent agreed to provide a pair of 3M Single Pro hearing aids for a total price of $3,390. The Respondent gave Mr. Williamson credit for the two prior payments of $1,095 each, and Mr. Williamson gave the Respondent an additional check for $1,200. According to Mr. Williamson, the 3M aids, which the Respondent delivered on July 8, 1997, also did not work to his satisfaction, so after just a few days, on July 10, 1997, he exchanged them for a different pair of 3M aids, Dual Pro. The sales receipt for the aids that the Respondent gave to Mr. Williamson on July 10, 1997 did not contain the buyer's signature, nor did it list the serial numbers for the hearing aids provided. Mr. Williamson thought he was getting the top of the hearing aid line but in fact, the Dual Pro aid was the middle line. According to a pamphlet he saw later, the top of the line is called Multi Pro; the middle, Dual Pro; and the bottom, Single Pro. Though a new contract was signed reflecting the Dual Pro aids, there was no additional charge. The Respondent guaranteed all hearing aids sold to Mr. Williamson to be acceptable or, if returned within 30 days of purchase, a full refund would be given. The Dual Pro aids also did not work to Mr. Williamson's satisfaction, and he returned them to the Respondent on or about August 4, 1997, an act witnessed by the Respondent's associate, Michelle Pfister. None of the hearing aid sets was kept by Mr. Williamson for more than 30 days. Mr. Williamson contends that when he returned the second pair of Argosy aids and received the 3M Single Pro aids in exchange, he asked Mr. Conley for a refund. At that time, Mr. Conley said he didn't have the money. When Mr. Conley delivered the Single Pro aids, and again when he delivered the Dual Pro aids, Mr. Williamson asked for a refund instead. Each time the Respondent claimed he didn't have the money. On October 4, 1997, Mr. Williamson wrote to Conley's Hearing Aid Center, the Respondent's business, and threatened recoupment action if the Respondent did not return the money he had paid for the aids he had returned. The hearing aids Mr. Williamson purchased were all returned to the Respondent, but no refund was ever made. According to Ms. Pfister, the returned hearing aids were subsequently sent back to the manufacturer for credit. The credit was not to her account with the manufacturer, however, and she does not know who received it. Ms. Pfister, also a licensed hearing aid specialist since 1998, bought Conley's Hearing Aid Center from the Respondent on July 27, 1997. At the time of the purchase, Ms. Pfister was not employed by the Respondent, but she had worked for the Respondent on and off since 1995. On June 26, 1997, the Respondent signed a form to sponsor Ms. Pfister as a hearing aid specialist trainee and served as her sponsor until she passed the examination and was licensed on June 23, 1998. Respondent continued to work on the premises after the sale until Ms. Pfister was licensed. When Ms. Pfister took over the business, the sales contract called for all hearing aids on site to be sold to her as inventory, She also received a statement from the Respondent that there were no unresolved issues with clients, and she did not assume any liabilities incurred by the business prior to her take over. When she assumed active management of the practice, Ms. Pfister received all of the Respondent's patient files. Katherine Sadilek is a 93-year-old retiree who purchased a pair of pre-owned 3-M Model 8200 hearing aids from the Respondent on April 8, 1997 for $1,800. The aids were paid for in full on April 9, 1997. The receipt for this sale that the Respondent gave to Ms. Sadilek did not contain the serial numbers of the aids, nor did it describe any of the terms and conditions of the sale or a guarantee. Ms. Sadilek returned the aids to the Respondent exactly 30 days after the purchase date because she was not satisfied with them. The Respondent did not refund her money but agreed to try to re-sell them for her. He offered her $100.00 for them, which she refused. The Respondent retained the aids and never returned them to Ms. Sadilek or paid her for them. A review of the documentation relating to the sales to both clients show them to be devoid of any information showing any improvement to the clients' hearing as a result of the hearing aids sold to them by the Respondent. A showing of improvement is required to form the basis for non-refund of amounts paid for hearing aids. The Respondent filed for bankruptcy in December 1998. The Respondent was licensed as a hearing aid specialist in Indiana in 1970 and in Florida in 1978. He has practiced in Florida for almost 20 years without any complaints being filed against him except those in issue here. The Respondent attributes most of his problems to his marriage dissolution in 1979, the settlement relating to which caused his financial problems and his bankruptcy. He claims he offered to make periodic payments to Mr. Williamson but Mr. Williamson refused that offer. The Respondent is 61 years old and presently receiving worker's compensation. Though he is not presently in the hearing aid business, he hopes to be in the future and needs to keep his license to earn a living.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Hearing Aid Specialists enter a final order suspending the Respondent's license for a period of six months and thereafter placing it under probation for a period of three years under such terms and conditions as may be deemed appropriate by the Board. It is also recommended that the Board impose an administrative fine of $3,000, and assess appropriate costs of investigation and prosecution. DONE AND ENTERED this 12th day of September, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2000. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Stop 39 Tallahassee, Florida 32308 Donald Conley 3377 Southwest Villa Place Palm City, Florida 34990 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue 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.
The Issue The issue presented for decision in this case is whether the Petitioner should receive a passing grade on the September 1997 Hearing Aid Specialist examination.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: In September 1997, Petitioner was a trainee and candidate for licensure as a hearing aid specialist, pursuant to Chapter 484, Part II, Florida Statutes, and Chapter 64B6-8, Florida Administrative Code. A trainee studying hearing aid dispensing must do so under the direct supervision of a “sponsor” who is an active Florida licensed hearing aid specialist with an established place of business. Section 484.0445, Florida Statutes; Rule 64B6- 8.003(1), Florida Administrative Code. Petitioner’s sponsor was Gerald Amato, a hearing aid specialist of over 20 years’ experience. Mr. Amato was a franchisee of Beltone, a manufacturer of audiometric equipment, including hearing aids and audiometers. Beltone supplied all of the equipment used by Petitioner. An “audiometer” is a piece of equipment that measures a person’s ability to hear, and is regularly used by hearing aid specialists and trainees. Petitioner testified that, shortly before he commenced his training program, Beltone converted from manual audiometers to computerized audiometers. Petitioner contends that he was placed at an unfair disadvantage because the examination proctors would not allow him to plug in his computerized audiometer for use during the examination. Petitioner argued that the older, manual audiometers provide visual cues such as dials and meters even when they are not plugged in, cues that assist the trainee to successfully complete the examination. The computerized audiometer, on the other hand, presents nothing but a blank screen when it is not plugged in. Petitioner acknowledged that no one taking the exam was allowed to plug in an audiometer. However, he contended that this was a situation in which technology had outpaced the testing procedures, and that Respondent should have made provisions for persons with computerized equipment to take the exam on an even footing with persons using manual equipment. Ms. Wilma Ferrer, a psychometrician familiar with the hearing aid specialist examination procedures, testified that candidates were informed they could not plug in their audiometers at least three times before they sat for the exam. The “Candidate Information Booklet,” sent by mail to candidates about a month before the exam, expressly states: “Each candidate is required to bring an audiometer with recorded speech and/or live voice capability to be used during the candidate’s examination. Do not plug in audiometer during examination.” During the hands-on portion of the exam, candidates demonstrate proper procedures, using the proctors as their subjects. If the audiometers were plugged in, there would be some chance of damaging the proctors’ hearing during the exam. Ms. Mary Lou Lauster, an expert regarding hearing aid specialists, testified that the purpose of the audiometer portion of the exam is to permit candidates to demonstrate they know which buttons to push to perform each audiometer function, and that they know how to properly fit the headset. Ms. Lauster conceded that some of the older audiometers provide visual cues, but stated her opinion that Petitioner would not be disadvantaged by his use of the computerized audiometer, if he knew how to run it. According to Ms. Lauster, the exam is simply an opportunity for the candidate to talk his or her way through the procedures, and it should make no difference whether the audiometer is plugged in. In other words, the candidate should not need visual cues to successfully negotiate the examination. Ms. Lauster denied the implication that the examiners and the agency itself were unprepared to deal with Petitioner’s new equipment. She testified that other candidates have used the same computerized equipment with success and without incident. At the hearing, Petitioner suggested that a better policy might be to require all candidates to be tested on a single, standard audiometer, so that no candidate could be perceived to have an unfair advantage. Ms. Lauster disagreed with this suggestion, stating that candidates are generally more comfortable using the audiometers with which they were trained. It is found that Respondent’s decision not to allow candidates to plug in their audiometers during the examination was rational and supported by legitimate concerns for the proctors’ hearing. Petitioner was given ample notice that he would not be allowed to plug in his audiometer. Other candidates using the same or similar equipment have successfully completed the examination. All candidates were treated equally in this regard, and Petitioner was not entitled to a special exemption from Respondent’s clearly stated testing policy. Respondent was well aware of the trend in the industry away from manual audiometers, and considered the existence of newer, computerized equipment in deciding to maintain its testing policy of not allowing audiometers to be plugged in during the examinations. Petitioner suggested that his equipment presented a brand new situation that Respondent had not anticipated, but this suggestion was not supported by the evidence presented at hearing. Petitioner also claimed that the proctor engaged him in unnecessary conversation regarding his audiometer, and that this conversation distracted him during the examination. Even crediting Petitioner’s version of events, this conversation cannot be found to have caused Petitioner’s poor performance on the practical portion of the examination. For reasons that cannot be attributed to Respondent, Petitioner entered the examination anticipating that he would be allowed to plug in his audiometer. The undersigned does not doubt Petitioner’s assertion that his performance on the examination was adversely affected when he was not allowed to plug in his audiometer. However, the fault lies with Petitioner, not with Respondent. Petitioner is not entitled to the award of any additional points in the practical portion of the examination. In his challenge letter, Petitioner also contested Questions 1 and 20 of the written, multiple choice portion of the examination. At hearing, Petitioner withdrew his challenge of Question 20. Each of the written questions was worth one point. Petitioner failed the examination by three points. Thus, even if it were found that he should be awarded one point for Question 1, Petitioner would not achieve a passing score. Petitioner’s challenge of Question 1 will nonetheless be addressed, to ensure a complete record in this proceeding. Question 1 referred to the effect that the addition of an “air” vent would have on an earmold. Petitioner chose the answer that it would “accentuate the low frequencies.” The correct answer was that it would “reduce the feeling of pressure in the ear canal.” Ms. Lauster testified that, while venting may accentuate frequencies, it does not necessarily relate to high or low frequencies. A vent may accentuate high or low frequencies, depending on the size of the vent. The general tendency is for a vent to enhance high frequencies. Ms. Lauster's opinion was supported by a standard textbook on hearing instrument science and fitting practices. It was undisputed that the addition of an air vent does relieve pressure in the ear canal. Thus, the best answer to Question 1 was “reduce the feeling of pressure in the ear canal.” Respondent correctly found that Petitioner’s response to Question 1 was not the best answer, and correctly denied him credit for that question. Petitioner alleged that Question 1 was of such difficulty that it should either not be counted, or his answer should be counted as correct. Respondent demonstrated that 26 out of 50 candidates answered the question correctly, thus negating Petitioner’s contention in this regard. Question 1 was properly graded as a question of medium difficulty, and is a valid and acceptable item on the examination.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Hearing Aid Specialists, enter a final order denying Petitioner’s challenge to the grade assigned him for the September 1997 Hearing Aid Specialist licensure examination. DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 11th day of August, 1998. COPIES FURNISHED: Terry L. Allman, pro se 110 St. Lucia Loop Apollo Beach, Florida 33572 Anne Marie Williamson, Esquire Florida Department of Health 1317 Winewood Boulevard Building 6, Suite 240 Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health Building Six, Room 240 1309 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building Six, Room 306 Tallahassee, Florida 32399-0700
