Findings Of Fact Daniel C. Throneburg, Sr. (Respondent) is, and has been at all times material hereto, a licensed hearing aid specialist in the State of Florida, having been issued license number AS-0000675. On January 30, 1985, Opal Holbrook agreed to purchase two "Nu Ear" rechargeable hearing aids from Respondent after he had tested her hearing and recommended this hearing aid. The total price of the hearing aid was $1,990. The following was included on the order form signed by both Respondent and Holbrook: If within 7 days of the date of delivery you are not completely satisfied, you will receive a refund less $50.00 fee provided you have kept a scheduled appointment within 72 hours of the date of delivery, to allow the specialist to make necessary adjustments for fit, comfort and personal listening pleasure. Respondent received the "Nu Ear" hearing aids from the manufacturer on or about February 26, 1985, and Holbrook thereafter kept her scheduled appointment within 72 hours of delivery, was fitted, and completed payment in full on February 26, 1985 in the amount of $1,990. Four days after receiving the hearing aids, Holbrook returned to Respondent because she still could not hear. Respondent made some adjustments, and told her to try them for another three or four days. She still could not hear, however, and therefore Holbrook requested a refund from Respondent after attempting to use the hearing aids for about a week. Respondent again asked that she try them a little longer. Holbrook returned numerous times during March, 1985 because her hearing aids had not improved her hearing. Respondent referred her to Mark Krywko for counseling, and adjustments, and she asked Krywko for a refund. Instead, he took an impression of her ears, and made some adjustments in the hearing aids, including boring a hole in them and adding an air hose. Respondent was usually not present when Krywko made these adjustments, counseled her on the use of hearing aids, or when Krywko took the impressions. After numerous attempts to adjust the Nu Ear hearing aids had failed, Respondent agreed to "remake" the hearing aids. Basically, he agreed to exchange the Nu Ear aids for another make. On or about April 19, 1985 Holbrook signed a receipt for Electone hearing aids which she received as replacement for the Nu Ear aids. This receipt states: Any modifications necessary will be performed based upon acceptable industry standards and the manufacturers' warranty. I understand the specialists' responsibility is fitting the hearing instrument(s) and to counsel me in the use of the aid and to mail any aid to the manufacturer for custom modifications. In the unlikely event, I am not happy with the instrument, I understand, I can request and receive another instrument from a different manufacturer at no additional charge within 60 days. Requests for any and all refunds are not allowed. I also understand that if my hearing loss has been progressive and has deteriorated, it will be necessary to return to the office for counseling which will be provided by the hearing aid specialist at "NO EXTRA COST". Holbrook was still unable to hear with the Electone hearing aids and requested a refund. To date, no refund has been provided by Respondent to Holbrook. Respondent stipulated that Holbrook received his business card at his place of business. The card represents that Respondent is a certified hearing aid audiologist, which he is not. Mark Krywko is not a licensed hearing aid specialist in the State of Florida, but at all times material hereto he was in an approved trainee program. At the request of Respondent, he repeatedly made adjustments on Holbrook's hearing aids, took an impression of her ears, gave her the receipt referred to in Finding of Fact 6 when the replacement hearing aids were delivered to her, and counseled her on the use of hearing aids. As such, he engaged in dispensing hearing aids, as defined by Section 484.041(3), Florida Statutes, at the request of Respondent who knew that Krywko was not licensed at the time. Respondent was not present most of the time Krywko performed these services for Holbrook. The receipts which Respondent provided to Holbrook for the Nu Ear and Electone hearing aids did not refer the buyer to the Board of Hearing Aid Specialists for the resolution of complaints, and also did not contain the disclaimer required by Section 484.051(2), Florida Statutes.
Recommendation Based on the foregoing, it is recommended that Petitioner enter a Final Order imposing an administrative fine on Respondent in the amount of $1,000, and placing Respondent on probation for a period of six months, conditioned upon his refunding to Opal Holbrook $1940, the full amount she paid for the hearing aids less a $50.00 fee; in the event Respondent does not pay the administrative fine and complete the refund required herein within thirty days of entry of the Final Order, it is further recommended that Respondent's license be suspended for one year in lieu of the six month period of probation and administrative fine. DONE and ENTERED this 18th day of December, 1986 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1986. COPIES FURNISHED: Ray Shope, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 2301 Daniel C. Throneberg 8104 Brit Drive Orlando, Florida Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Has Respondent violated Section 484.056(1)(g), Florida Statutes as alleged in the Administrative Complaint? If so, what, if any, disciplinary action is appropriate?
Findings Of Fact In September of 1989, Mrs. Mary Louise Gibson, then in her late seventies, purchased "full-shell" Sonotone hearing aids at Hearing Aid Services in Temecula, California. The hearing aids were manufactured by TelStar Electronics, Inc., located in Longwood, Florida. The manufacturer's warranty covering the hearing aids expired on December 22, 1990. Some time after the purchase of the hearing aids, members of Mrs. Gibson's family began to tell her that she was not hearing well despite use of the hearing aids. In August, 1991, some eight months or so after the warranty had expired, Mrs. Gibson, thinking the hearing aids were still under warranty, visited the TelStar manufacturing facility in Longwood to see what could be done about her poor "hearing aid-assisted" hearing. At the manufacturing facility, Mrs. Gibson was referred to the manufacturer's retail store in an adjoining part of the building housing the manufacturer's operation. With Mrs. Gibson was her husband, who was also having trouble with his hearing aids, and her daughter, Mary A. Gibson. By virtue of the referral, the Gibsons and her husband went from the manufacturing end of the building to the manufacturer's retail store. Working as a hearing aid specialist in the manufacturing facility's retail store was Respondent, Nick Joseph Spina. At the time of Mrs. Gibson's visit, Mr. Spina was licensed by the Board of Hearing Aid Specialists as a hearing aid specialist in the state of Florida. His license number is AS 0001750. Mr. Spina continues to be and has been at all times material to this proceeding the holder of the hearing aid specialist license. Not a salaried employee of TelStar, Mr. Spina's pay at the TelStar retail store was based entirely on commissions from new sales. In any given sale, the commission was thirty per cent of the gross amount of the sale. Mr. Spina conducted an audiogram of Mrs. Gibson. He concluded that Mrs. Gibson needed a type of shell for her hearing aids different from the style she had been using: a "full-shell," which occludes the ear canal entirely. In Mr. Spina's professional opinion, Mrs. Gibson needed a helix-type shell which fills only the top of the ear and leaves the ear canal unoccluded. The Purchase Agreement executed by Mr. Gibson shows on the day the Gibsons consulted with Mr. Spina that Mrs. Gibson's husband, Horace Gibson, agreed to pay $450.00 for a recasing of Mrs. Gibson's hearing aids. The comments section of the order form states "Recased to helix aids," and shows a charge of $139.00. On August 28, 1991, Mrs. Gibson picked up the recased hearing aids. The invoice of the same date shows that TelStar Electronics, Inc., charged $139.00 for the recasing. Mrs. Gibson, as was agreed under the terms of the Purchase Agreement, paid $450.00 for the recasing. Approximately five months later, in January of 1992, Mrs. Gibson visited Mr. Spina again. Based on a second audiogram, Mr. Spina told her that she had experienced a dramatic change in her hearing since the August testing and needed another type of hearing aid. A purchase order form signed January 16, 1992, with an order date of January 13, 1992, shows that Mrs. Gibson agreed to pay $1078 for a hearing system described as "NEW" and being a Sonotone Model ITE, colored pink, with a warranty period from 1/16/92 to 1/16/94, a two-year warranty. The serial numbers for the new hearing aids are listed on the purchase agreements as 92F24064 for the hearing aid for the left ear and 92F24065 for the hearing aid for the right ear. The purchase order form is signed by Nick Spina. On the same date the "new" hearing system was ordered, January 13, 1994, Mr. Spina executed a second form, a repair order form. The repair order form ordered that M. L. Gibson's hearing aids bearing serial numbers 91F13666 and 91F13665, the helix-type hearing aids provided her the previous August by Respondent, be remade as "full shell" hearing aids. The order form for the repair of the helix hearing aids shows that Respondent ordered them to be assigned new serial numbers identical to those listed on the purchase order form for the new hearing aids, 92F24064 for the left ear and 92F24065 for the right ear, and be shipped back on January 15, 1992. This same form shows that a 2 year warranty was to be added to the hearing aids for the repair. An invoice dated January 15, 1994, shows a shipment by Sonotone Corporation, TelStar Division in Longwood, Florida, of Purchase Order number "Gibson TS R/M" of Order Number 60864, the order executed by Respondent on January 13, 1994. The hearing aids were remade to full shell hearing aids, reassigned the serial numbers ordered by respondent, and the circuit, microphone and receiver were changed. No charge was made for the remake of the helix hearing aids back into full shell hearing aids because the hearing aids were under warranty from the recasing accomplished the previous August. The remade hearing aids were not given an additional two-year warranty. It is not customary in the industry to give two-year warranties for remade hearing aids. A warranty for remade hearing aids is much less than two years, typically 6 months. Two-year warranties are reserved for new hearing aids. Mrs. Gibson picked up the hearing aids and paid $1078 for them, believing them to be new hearing aids. Mrs. Gibson's daughter, who accompanied her mother to all the transactions with Respondent, also was under the impression that brand new hearing aids had been provided her mother in January of 1992. Less than two months later, on March 10, 1992, Mrs. Gibson consulted Freddi M. Catlett, of the Arkansas Hearing Aid Center in Hot Springs, Arkansas, because her hearing aids were rubbing her ear so as to make it sore. Ms. Catlett sent impressions of Mrs. Gibson's ears as well as the hearing aids to the Sonotone factory in Florida. Instead of 92F24065, the serial number of Mrs. Gibson's right hearing aid, the order form lists the serial number of the hearing aids as 92-24065, substituting a "-" for the "F", the third digit in the serial number. Otherwise the number on the order form is identical to the serial number of the right hearing aid purchased by Mrs. Gibson in January of 1992 from Respondent. Both Mrs. Gibson and her daughter, despite the fact that Mrs. Gibson had two pairs of hearing aids, were sure that the hearing aids examined by Ms. Catlett were the "new" hearing aids purchased from Respondent in January of 1992. The hearing aids were returned to Mrs. Catlett from the Sonotone factory with an invoice charging $74.50 for a replating and recasing of the hearing aids. The service department notes on the order form shows that the warranty on the hearing aids, which should have been good until January of 1994 had the hearing aids been new in January of 1992, had expired on January 28, 1992. Upon being noticed that the warranty had expired, Ms. Catlett contacted Sonotone to inquire further. She was told that the hearing aids had been purchased in 1989 and that the warranty was no longer in effect. Ms. Catlett then questioned Mrs. Gibson and was assured that the hearing aids were the "new" hearing aids purchased from Respondent the previous January. The hearing aids examined by Ms. Catlett were the hearing aids purchased in January of 1992 from Respondent. The serial number listed on Ms. Catlett's order form mistakenly listed "-" as the third digit instead of "F". Contrary to Mr. Spina's representation, the hearing aids he sold to Mrs. Gibson in January of 1992 were not new, despite his marking on the order form that they would have a two-year warranty. The hearing aids sold as new hearing aids by Respondent in January of 1992 were simply a remake of the helix-type hearing aids that Mr. Spina had remade the August before. These hearing aids were new in 1989 not in 1992.
Recommendation It is, accordingly, and in keeping with Section 484.056(1) and (2), Florida Statutes, RECOMMENDED: That Respondent Nick Joseph Spina's license to practice as a hearing aid specialist be revoked and that Nick Joseph Spina be fined $1000. DONE and ENTERED this 18th day of August, 1994, in Tallahassee, Florida. DAVID M. MALONEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1994. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Findings of fact in Petitioner's Proposed Recommended Order 1, 3-19 are accepted. Finding of fact #2 in Petitioner's Proposed Recommended Order is rejected to the extent it implies Mrs. Gibson was 83 in August of 1991. She was 83 at the time of her deposition in April of 1994. Otherwise the finding is accepted. COPIES FURNISHED: Susan E. Landward Senior Attorney Department of Business and Professional Regulation Suite 60, Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nick Joseph Spina, Jr. P. O. Box 214 Chipley, FL 32428 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Suzanne Lee Executive Director Hearing Aid Specialists 1940 North Monroe Street Tallahassee, FL 32399-0759
The Issue Should Petitioner discipline Respondent's hearing aid specialist license for reasons alleged in the Amended Administrative Complaint?
Findings Of Fact At all times relevant to this proceeding Respondent William D. Williston has been a licensed hearing aid specialist in Florida, having been issued license no. 1439 by the Florida Board of Hearing Aid Specialist, commencing April 1, 1983. At all times relevant to the inquiry Respondent operated a business known as the Sumter Hearing Center in Wildwood, Florida, from which hearing aids were sold and dispensed. At times relevant to the inquiry Respondent sponsored Darleen L. Sherman as a trainee at his business. Respondent also served as the designated hearing aid specialist to assist in the training of Ms. Sherman. Respondent served in the capacity of direct supervisor to Ms. Sherman in her attempt to learn the necessary skills to become a licensed hearing aid specialist. Respondent's initial sponsorship and supervision of Ms. Sherman's training, wherein Respondent had been designated to serve, was for the training period June 24, 1997 through December 23, 1997. Ms. Sherman completed that training program. Following the completion of her training she took the hearing aid specialist examination. She failed the written theory portion of the examination taken May 1, 1998 through May 3, 1998. Ms. Sherman and Respondent were made aware of those results by notice mailed to the candidate for licensure on June 4, 1998. On June 6, 1998, Ms. Sherman reapplied to participate in a training program sponsored and supervised by Respondent. This was a request to repeat the training. Ms. Sherman's application form submitted to Petitioner was accompanied by a form completed by Respondent as sponsor, also dated June 6, 1998. On June 8, 1998, a check was written by Ms. Sherman to Petitioner in the amount of $105 for the stated purpose of participation in the "second training program." On June 13, 1998, Ms. Sherman was officially registered for the repeat training program with Respondent serving as sponsor and a prospective examination date to gain her license as hearing aid specialist was provided. That date for examination was sometime in January 1999. The training program registration identified the repeat training program period as running from June 12, 1998 through December 11, 1998. Stage I to that training program was June 12, 1998 through July 11, 1998; Stage II July 12, 1998 through September 11, 1998, and Stage III September 12, 1998 through December 11, 1998. During the hiatus between being notified that Ms. Sherman had failed the May 1998 examination and the beginning date for the repeat training program, Ms. Sherman, with Respondent's knowledge, acted in behalf of Respondent's hearing aid specialist business in Wildwood, Florida. This took place on June 9, 1998, involving the patient C.D., outside Respondent's presence. On that date Ms. Sherman performed hearing aid testing on C.D. and sold C.D. new hearing aids manufactured by Rexton for a total price of $4,000. The first $2,000 to purchase was paid on that date. The sales receipt provided C.D. was signed by Ms. Sherman indicating that she was a hearing aid specialist, which she was not. C.D. also signed the receipt form. The receipt provided C.D. on June 9, 1998, indicated that the hearing aids were guaranteed by Rexton for a period of one year with a loss and damage provision available with a 25% deductible. C.D. was provided another document which he signed and dated June 9, 1998. That document was entitled "30-day trial agreement." By its terms it said: I agree to wear my new hearing aid for the full 30-day trial period, and will come in at least once a week for consultation and any adjustments that may be needed. If the hearing aids are returned to the laboratory for any modification, my trial period will resume upon refitting of the hearing aids. I realize that hearing aid fittings are individual in nature and that it is normal to expect adjustments to be made. It has taken a long time for my hearing loss to develop, and will take some time to once again begin to enjoy the sound of life. Respondent was aware of the use of this type form in his business and the type of sales receipt form utilized in the transaction with C.D. Contrary to Respondent's testimony it is not found that C.D. was provided a form with information entitled "30-day trial agreement terms and conditions" as of the purchase date June 9, 1998, or upon any other date. C.D. in his testimony disclaimed being presented the form "30-day trial agreement terms and conditions." His testimony is supported by his wife, V.D. Ms. Sherman does not recall whether the form "30-day trial agreement terms and conditions" was provided to C.D. The "30-day trial agreement terms and conditions" was used on occasion by Respondent and Ms. Sherman but not here. The form is similar to the notice requirements set forth in Section 484.0512, Florida Statutes, dealing with the statutory requirement for a 30-day trial period and money back guarantee, together with the opportunity to return the hearing aids or mail written notice of cancellation to the seller and Rule 64B-6.001, Florida Administrative Code, which further describes written notice requirements. On June 19, 1998, Ms. Sherman received from the factory the hearing aids purchased by C.D. They had the wrong circuitry. As a consequence Ms. Sherman returned the hearing aids for correction. On June 29, 1998, Ms. Sherman received the hearing aids a second time. On June 30, 1998, C.D. returned to Respondent's business and was provided the hearing aids and paid the $2,000 balance for the purchase. Respondent was in attendance on this occasion. No further documentation was provided C.D. concerning his purchase when he took delivery of the hearing aids. Shortly after receiving the hearing aids C.D. and his wife took a vacation in north Georgia. On July 14, 1998, C.D. wrote Ms. Sherman concerning the hearing aids in question. In that correspondence he said "Sorry, but these hearing aids just don't meet my needs. Please refund my $4,000." On that same date by registered delivery, return receipt requested, C.D. sent the hearing aids back to Respondent's Wildwood, Florida, business address. The hearing aids were received at that address on July 20, 1998. The hearing aids were eventually returned to the manufacturer for credit on Respondent's account with Rexton. This disposition occurred around August 10, 1998. On July 20, 1998, the same day that the hearing aids were received by Respondent's business, Ms. Sherman wrote C.D. at his Florida address in Lake Panasoffkee, Florida. In that correspondence she identified herself as being a hearing aid specialist and an office manager for Respondent's Sumter Hearing Centers, one of which was at the Wildwood, Florida, address. In this correspondence she stated: We are in receipt of your hearing aid. As we agreed when you purchased the hearing aid you would give the hearing aid a 30-day trial basis, therefore I would suggest that we delay canceling this order. My suggestion is again a 30-day trial basis effective upon your return. It is important that I know what kind of problems, 'not loud enough, too much background noise, whistling, fit uncomfortable or etc.' you are having so that I can make adjustments and have you try them again. I am confident that we can get you to hear better. Please contact me at 352-793-4422 regarding the above matter. On August 6, 1998, C.D. responded to the July 20, 1998 letter from Ms. Sherman by writing to her and saying: In reference to your letter of July 20th; be advised that I have purchased another hearing aid and I am happy with them [sic]. Please return the $4,000 I paid for the Rexton aids. In fact, C.D. had not purchased another hearing aid. He made this false statement as a further attempt to be reimbursed the purchase price for the Rexton hearing aids. C.D. made numerous attempts to obtain a refund for the hearing aids purchased, to no avail. Respondent was aware of these attempts. Among the efforts was contact by Randall M. Thornton, Esquire, C.D.'s attorney, who wrote to the Respondent's business address at Wildwood, Florida, and another business address in Bushnell, Florida, requesting a refund in the amount of $4,000. This correspondence from the attorney was dated October 9, 1998. Respondent's uncorroborated testimony that he refunded the $4,000 to C.D. is not credible.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which imposes an administrative fine of $2,000, assesses costs of investigation and prosecution, orders Respondent to refund $4,000 to C.D., and otherwise dismisses the Amended Administrative Complaint. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2002. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building Three, Mail Station 39 Tallahassee, Florida 32308 William D. Williston 3131 Southwest College Road Suite 302 Ocala, Florida 34474 William D. Williston 1072 Southeast 155th Street Summerfield, Florida 34491 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701
The Issue The issue for consideration in this case is whether Respondent's license as a hearing aid specialist in Florida should be disciplined because of the matters alleged in the Administrative Complaints filed herein.
Findings Of Fact At all times relevant to the issues herein, the Board of Hearing Aid Specialists has been the state agency in Florida responsible for the licensing of hearing aid specialists and the regulation of the hearing aid provider profession in Florida. The Respondent has been a licensed hearing aid specialist in this state, holding license number AS 00010006. Stanley I. Williamson is an 84-year-old blind and arthritic retiree who has worn hearing aids since the early 1980's. He has known Mr. Conley since that time and has purchased his hearing aids from the Respondent both when the Respondent was working for other suppliers and when he went into business for himself. In the summer of 1997, Mr. Williamson went to the Respondent to get the wax cleaned out of his hearing aids. Mr. Williamson did not feel he needed new aids at the time. However, on June 6, 1997 Respondent Mr. Conley called him and tried to sell him some new aids. Mr. Williamson told the respondent he didn't want new aids because his were working well, but Mr. Conley suggested he bring them in anyway. Mr. Williamson went to the Respondent's office and tried the new ones the Respondent showed him but decided he did not want them because he felt they did not work properly. Nonetheless, on that same day, June 6, 1997, Mr. Williamson took them, signed a contract for the new aids, and gave the Respondent a check for $1,095. At that time, the Respondent told Mr. Williamson he could bring the aids back within 30 days if they were not acceptable. The Argosy hearing aids Mr. Williamson got from the Respondent on June 6 did not work properly, and when Mr. Williamson complained, the Respondent agreed to get him another pair. Mr. Williamson picked up this second pair of aids at the Respondent's office, Conley's Hearing Aid Center in Clearwater on June 20, 1997. At that time Mr. Williamson signed a second contract and gave the Respondent a second check for $1,095. On June 24, 1997, the Respondent had Mr. Williamson, who was still not satisfied with the performance of the Argosy aids, sign a third contract with his company under which the Respondent agreed to provide a pair of 3M Single Pro hearing aids for a total price of $3,390. The Respondent gave Mr. Williamson credit for the two prior payments of $1,095 each, and Mr. Williamson gave the Respondent an additional check for $1,200. According to Mr. Williamson, the 3M aids, which the Respondent delivered on July 8, 1997, also did not work to his satisfaction, so after just a few days, on July 10, 1997, he exchanged them for a different pair of 3M aids, Dual Pro. The sales receipt for the aids that the Respondent gave to Mr. Williamson on July 10, 1997 did not contain the buyer's signature, nor did it list the serial numbers for the hearing aids provided. Mr. Williamson thought he was getting the top of the hearing aid line but in fact, the Dual Pro aid was the middle line. According to a pamphlet he saw later, the top of the line is called Multi Pro; the middle, Dual Pro; and the bottom, Single Pro. Though a new contract was signed reflecting the Dual Pro aids, there was no additional charge. The Respondent guaranteed all hearing aids sold to Mr. Williamson to be acceptable or, if returned within 30 days of purchase, a full refund would be given. The Dual Pro aids also did not work to Mr. Williamson's satisfaction, and he returned them to the Respondent on or about August 4, 1997, an act witnessed by the Respondent's associate, Michelle Pfister. None of the hearing aid sets was kept by Mr. Williamson for more than 30 days. Mr. Williamson contends that when he returned the second pair of Argosy aids and received the 3M Single Pro aids in exchange, he asked Mr. Conley for a refund. At that time, Mr. Conley said he didn't have the money. When Mr. Conley delivered the Single Pro aids, and again when he delivered the Dual Pro aids, Mr. Williamson asked for a refund instead. Each time the Respondent claimed he didn't have the money. On October 4, 1997, Mr. Williamson wrote to Conley's Hearing Aid Center, the Respondent's business, and threatened recoupment action if the Respondent did not return the money he had paid for the aids he had returned. The hearing aids Mr. Williamson purchased were all returned to the Respondent, but no refund was ever made. According to Ms. Pfister, the returned hearing aids were subsequently sent back to the manufacturer for credit. The credit was not to her account with the manufacturer, however, and she does not know who received it. Ms. Pfister, also a licensed hearing aid specialist since 1998, bought Conley's Hearing Aid Center from the Respondent on July 27, 1997. At the time of the purchase, Ms. Pfister was not employed by the Respondent, but she had worked for the Respondent on and off since 1995. On June 26, 1997, the Respondent signed a form to sponsor Ms. Pfister as a hearing aid specialist trainee and served as her sponsor until she passed the examination and was licensed on June 23, 1998. Respondent continued to work on the premises after the sale until Ms. Pfister was licensed. When Ms. Pfister took over the business, the sales contract called for all hearing aids on site to be sold to her as inventory, She also received a statement from the Respondent that there were no unresolved issues with clients, and she did not assume any liabilities incurred by the business prior to her take over. When she assumed active management of the practice, Ms. Pfister received all of the Respondent's patient files. Katherine Sadilek is a 93-year-old retiree who purchased a pair of pre-owned 3-M Model 8200 hearing aids from the Respondent on April 8, 1997 for $1,800. The aids were paid for in full on April 9, 1997. The receipt for this sale that the Respondent gave to Ms. Sadilek did not contain the serial numbers of the aids, nor did it describe any of the terms and conditions of the sale or a guarantee. Ms. Sadilek returned the aids to the Respondent exactly 30 days after the purchase date because she was not satisfied with them. The Respondent did not refund her money but agreed to try to re-sell them for her. He offered her $100.00 for them, which she refused. The Respondent retained the aids and never returned them to Ms. Sadilek or paid her for them. A review of the documentation relating to the sales to both clients show them to be devoid of any information showing any improvement to the clients' hearing as a result of the hearing aids sold to them by the Respondent. A showing of improvement is required to form the basis for non-refund of amounts paid for hearing aids. The Respondent filed for bankruptcy in December 1998. The Respondent was licensed as a hearing aid specialist in Indiana in 1970 and in Florida in 1978. He has practiced in Florida for almost 20 years without any complaints being filed against him except those in issue here. The Respondent attributes most of his problems to his marriage dissolution in 1979, the settlement relating to which caused his financial problems and his bankruptcy. He claims he offered to make periodic payments to Mr. Williamson but Mr. Williamson refused that offer. The Respondent is 61 years old and presently receiving worker's compensation. Though he is not presently in the hearing aid business, he hopes to be in the future and needs to keep his license to earn a living.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Hearing Aid Specialists enter a final order suspending the Respondent's license for a period of six months and thereafter placing it under probation for a period of three years under such terms and conditions as may be deemed appropriate by the Board. It is also recommended that the Board impose an administrative fine of $3,000, and assess appropriate costs of investigation and prosecution. DONE AND ENTERED this 12th day of September, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2000. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Stop 39 Tallahassee, Florida 32308 Donald Conley 3377 Southwest Villa Place Palm City, Florida 34990 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Susan Foster, Executive Director Board of Hearing Aid Specialists Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Raymond J. Black is registered to fit and sell hearing aids in Florida and at all times here relevant he was so registered. He has been a registrant for several years, has been a dealer since 1976 and operates two offices, one in Tampa, Florida, and the second in Zephyrhills, Florida. Mr. Black spends most of his time in the Tampa office. Arvena Hines is the office manager in the Zephyrhills office and has managed that office for Respondent since about 1973. She has qualified for, taken and failed the examination for registration as a hearing aid specialist in Florida three times. Following her second failure her application for a third examination was initially disapproved, but after judicial proceedings were instituted she was authorized to retake the examination after again completing the trainee program. As office manager Ms. Hines was the supervisor of all other employees at the Zephyrhills office including hearing aid specialists and trainees. She received thirty-five percent of the profits on all hearing aids and hearing aid supplies sold in the Zephyrhills office. Other employees authorized to sell hearing aids received approximately fifteen to twenty-five percent commission on the sale of hearing aids depending on where the sale was made. In 1977 Arvena Hines pleaded nolo contendere in the County Court in and for Pasco County to the charge of fitting and selling a hearing aid without being licensed or registered to do so. Adjudication of guilt was withheld and she was placed on probation for six months. (Exhibit 16) In 1977 Respondent Black pleaded nolo contendere in the County Court in and for Pasco County to a charge of employing Arvena lines, an unregistered person, for the purpose of fitting and selling hearing aids. Adjudication of guilt was withheld and Respondent was placed on probation for six months. (Exhibit 14) In 1977 Respondent's registration was suspended for ninety days by Petitioner upon a stipulation of settlement in the revocation proceedings that had been referred to the Division of Administrative Hearings. In August 1979 Edward J. Greenough went into Respondent's Zephyrhills office accompanied by his wife for the purpose of having his hearing checked. He was waited on by Frances Wilkes who at the time was a trainee, Class III. Ms. Wilkes tested Greenough's hearing and then said Ms. Hines had to check the results because "she (Wilkes) didn't have her license. Although Ms. Wilkes testified that Ms. Hines conducted no tests or performed any services connected with selling or fitting a hearing aid on Greenough, the testimony of Mrs. Greenough that Ms. Hines repeated the testing procedure that had been done lay Ms. Wilkes, prepared the ear molds and subsequently fitted the hearing aid on Mr. Greenough, is the more credible. In October 1978 Margaret Lamb, an octogenarian, visited the Zephyrhills hearing aid office to see why her hearing aid was not "giving me success." Ms. Hines took an ear mold for her but a man conducted the audio test. Although Ms. Lamb exhibited some of the frailties of age her recollection of events was clear including the "terrific noise" that almost took her head off during the hearing test. That error left her somewhat confused and anxious to get out of the office. Robert Ayer visited the Zephyrhills hearing aid office of Respondent in December 1978 to have checked a hearing aid he had dropped. Ms. Hines waited on him, suggested he get a new "all in the ear" hearing aid, gave him a hearing test, and made an ear mold. When asked for a down payment on the hearing aid Ms. Hines said he needed, Ayer stated he had not expected to purchase a hearing aid that day and was unprepared to make a deposit. When Ayer returned to Zephyrhills after the new year he went to the hearing aid office, was told his hearing aid was in, and paid Ms. Hines $250. Exhibit 10 is the receipt for this payment. Jim Spear, a licensed hearing aid specialist who was working for Respondent at this time signed the audiogram (Exhibit 19) and testified that he conducted the hearing aid test done on Ayer December 11, 1978. Spear also denied ever seeing Hines sell or fit hearing aids or do any work in connection therewith. For several reasons Mr. Ayer's testimony is more credible than the conflicting testimony. Apart from the demeanor of the witnesses and personal reasons of the registrants for denying unlawful acts were committed by Ms. Hines in their presence and to their knowledge, Mr. Ayer is the precise and meticulous type of individual who keeps a diary of his daily activities, even in retirement. These diaries were in his possession at the hearing, and were shown to and perused by Respondent's attorney at the latter's request. No conflicts or omissions between the diary entries and Ayer's testimony were presented. Mrs. Maidee Carr's deposition was admitted as Exhibit 15. Mrs. Carr is a nonagenarian who was sold a hearing aid by Ms. Hines around December 1978 or January 1979. The audiogram was taken by a man (Jim Spear signed Exhibit 17, the audiogram taken on Mrs. Carr January 22, 1979), but Ms. Hines took the ear mold and Mrs. Carr gave Ms. Hines a check in full payment when the hearing aid was delivered to Mrs. Carr's home by Ms. Hines who then put the hearing aid in Mrs. Carr's ear. In January 1980 Douglas Yacinich, who had worked as a hearing aid salesman in Iowa for several years, visited Respondent with the view of employment when he moved to Florida. Respondent sponsored Yacinich's application for Trainee Temporary Certificate of Registration which was submitted January 28, 1980. Yacinich then returned to Iowa to settle his affairs. This application to enter the trainee program was approved in a letter dated March 26, 1980 (Exhibit 6). The application was approved effective March 24, 1980 (Exhibit 5), and Yacinich was issued a Certificate of Registration (Exhibit 23). At this time Yacinich was in Iowa and, according to his testimony, he moved to Florida around May 1980. Respondent submitted Exhibit 7 notifying Petitioner that Yacinich entered into the training program March 24, 1980, completed Stage I on April 24, 1980, and completed Stage II on June 24, 1980. Yacinich left Respondent's employ "around June or July" 1980 and has made no further effort to become registered as a hearing aid specialist. Yacinich set up an appointment with Mr. Chastain, a hearing aid user, and on May 9, 1980, did an audiogram on him (Exhibit 21). He also sold Chastain a used hearing aid the same day but it was not delivered until later. Mrs. Chastain gave Yacinich a check for part payment of the hearing aid on May 9, 1980, when the invoice for the hearing aid was prepared (Exhibit 12). This invoice does not contain the serial number of the hearing aid subsequently delivered to Chastain. When the final fitting of his hearing aid was made on June 2, 1980, Respondent accompanied Yacinich to Chastain's home and was present when the hearing aid was fitted by Yacinich. The testimony is conflicting whether Respondent was in the yard or in the room with Yacinich when the hearing aid was placed in Chastain's ear; However, it is clear that when Yacinich delivered the hearing aid to Chastain, Respondent was present. Respondent attributed the preferring of the charges against him, which are contained in the Administrative Complaint and Amended Administrative Complaint, to the animosity of Ralph Gray, the Administrator of the Hearing Aid Licensing Program in HRS, and to his belief that Gray has a vendetta against him. No evidence to support these beliefs was submitted other than Respondent's opinion. Respondent denied that he was aware that Ms. Hines ever took ear impressions in the Zephyrhills office on any of the complaining witnesses or that she ever performed any of those functions in dispensing hearing aids which require certification. Respondent acknowledged that Ms. Hines is manager of the Zephyrhills office and that she receives thirty-five percent of the funds coming into the office, and that salesmen are paid a commission of about twenty-five percent on the hearing aids they sell depending upon where the hearing aid is sold. Ms. Wilkes who does little work outside the office received a commission of around fifteen percent for those hearing aids she sold. Respondent testified that his belief that no audiograms were taken nor hearing aids sold by Ms. Hines was based upon the fact that the audiograms were signed by someone other than Ms. Hines and the word of these people that they conducted the tests. No evidence was presented to show the commissions paid to the various salesmen for the hearing aids dispensed to those witnesses who testified in these proceedings. Respondent allowed Yacinich to work unsupervised in the selling and dispensing of hearing aids before he had actually worked fur Respondent for thirty days. This determination is reached from the evidence that Yacinich was probably well qualified by his previous experience in Iowa, by Respondent's testimony that he considered Yacinich to have been in his employ since January 28, 1980, when Yacinich's application was submitted, and by Yacinich's testimony that he did not actually relocate to Florida until May or June.
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 in this case is whether Respondent, Kent A. Broy, committed the violations alleged in an Administrative Complaint filed with by Petitioner, the Department of Health, on April 11, 2003, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving hearing aid specialists licensed to practice in Florida. Respondent, Kent A. Broy, is, and was at the times material to this matter, a hearing aid specialist licensed to practice in Florida, having been issued license number AS2169 on April 13, 1989.5 The Administrative Complaint. On April 11, 2003, an Administrative Complaint, DOH Case No. AS 2001-19941, was filed with the Department against Mr. Broy. Mr. Broy disputed the issues of fact alleged in the Administrative Complaint and requested a formal administrative Hearing by a Request for Formal Hearing filed with the Department on Mr. Broy's behalf by counsel. The remaining four counts of the Administrative Complaint, Counts I, II, III, and V, allege violations of subsections of Section 484.056(1), Florida Statutes: Section 484.056(1)(g) (Count I); (j) (Count II); (w) (Count III); and (m) (Count V). All four counts include the following introductory sentence: "Petitioner realleges and incorporates herein by reference the facts alleged in paragraphs 1-16 [of the Administrative Complaint]." Paragraphs 1 through 6 are general allegations which were admitted by Mr. Broy. Patient G.H. Patient G.H., who was 88 years of age at the time, visited a business known as Audibel Hearing Care Center (hereinafter referred to as "Audibel")6 and located at 1620 North U.S. Highway 1, Jupiter, Florida, on October 24, 2001, a Tuesday. G.H. was accompanied by his wife, J.H. G.H. went to Audibel to determine whether he needed hearing aids. Mr. Broy, who G.H. assumed was a licensed hearing aid specialist, assisted G.H.7 As alleged in the Administrative Complaint, G.H. agreed to purchase a pair of "in the ear" hearing aids for $6,810.00. Mr. Broy attempted to make molds of the G.H.'s ear canals so that the hearing aids G.H. had agreed to purchase could be ordered. Molding material was placed in G.H.'s ear, but when it was removed it was found to be covered with wax. Mr. Broy attempted to remove the wax from G.H.'s ear with some type of instrument. This caused pain in G.H.'s ear, so the effort was discontinued. Mr. Broy then gave G.H. some oil to use to attempt to soften the wax, and he scheduled G.H. to return the next week. In furtherance of the sale and purchase of the hearing aids, G.H. signed a Purchase Agreement. The Agreement states that G.H. was purchasing 2 "Merc CIC Dig" hearing aides at $4,200.00 each ($8,400.00 total) less a 20% discount, leaving a discounted price of $6,720.00 plus a $90.00 administration fee. The Purchase Agreement includes, in part, the following regarding return of the hearing aids: Return Policy - . . . . Purchaser may return the hearing aid(s), so long as the hearing aid(s) is returned to the seller within the 30 day trial period in good working condition. A return claim form may be obtained from the distributor at the location checked on the face of this agreement. A request for return must be submitted in writing, within 30 days. . . . . The distributor identified on the face of the Purchase Agreement was Audibel. The Purchase Agreement did not identify the guarantor for the refund. No hearings aids, however, were delivered to G.H. at the time he signed the Purchase Agreement or anytime subsequent thereto. G.H. paid the full purchase price, charging the full price to a credit card. Shortly after executing the Purchase Agreement, G.H. decided that he did not want the hearing aids8 and he returned to Audibel. He told Mr. Broy that he no longer wanted the hearing aids.9 G.H., not receiving satisfaction from Mr. Broy, ultimately challenged the amount he paid for the hearing aids with his credit card company. He was refunded the $6,810.00 charge. On January 9, 2002, Mr. Broy charged $630.00 to G.H.'s credit card. That amount has not been refunded. During the investigation of this matter, Neil Bailes, an investigator for the Agency for Health Care Administration, who had never met or spoken to Mr. Broy in person, spoke to someone whom he believed was Mr. Broy. The individual he spoke with told him that records relating to G.H.'s purchase and subsequent return of hearing aids were in G.H.'s possession, and, therefore, he could not provide those records.10
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Hearing Aid Specialist dismissing the April 11, 2003, Administrative Complaint against Kent A. Broy. DONE AND ENTERED this 5th day of February, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 5th day of February, 2004.
