00-001209 Department Of Health, Board Of Hearing Aid Specialists vs. Donald Conley Status: Closed Recommended Order on Tuesday, September 12, 2000.

Summary: 00-1208; 00-1209; 00-1433 Evidence clear and convincing that hearing aid specialist who failed to refund clients` money even after timely return of merchandise and who failed to ensure receipts contained all required information was guilty of misconduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

HEARING AID SPECIALISTS, )

)

Petitioner, )

vs. ) Case Nos. 00-1208

) 00-1209

DONALD CONLEY, ) 00-1433

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

A hearing was held in this case in New Port Richey, Florida,

on August 10, 2000, before Arnold H. Pollock, an Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gary L. Asbell, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Mail Stop 39

Tallahassee, Florida 32308

For Respondent: Donald Conley, pro se

3377 Southwest Villa Place

Palm City, Florida 34990

STATEMENT OF 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.

PRELIMINARY MATTERS

By Administrative Complaint dated December 10, 1998, the

Agency for Health Care Administration (Agency), on behalf of the

Board of Hearing Aid Specialists (Board), charged the Respondent,

Donald Conley, with failing to permit the purchaser of hearing

aid instruments to cancel the purchase for a valid reason within

30 days, thereby being guilty of misconduct, fraud, deceit,

negligence, or incompetence in the practice of dispensing hearing

aide in violation of Section 484.056(1)(h), Florida Statutes; by

failing to show the serial number of the hearing aids and the

signature of the buyer on the receipt; and by failing to have a

medical waiver signed.

On April 22, 1999, the Agency filed a second Administrative

Complaint against the Respondent for failing to provide a refund

for a returned hearing aid to a second client within 30 days of

delivery; by failing to have a medical waiver signed; and by

failing to have the serial number of the hearing aids or the

signature of the party receiving them on the receipt therefor, in

violation of Sections 484.056(1); 455.624(1), and 484.051(2)

Florida Statutes.

On June 21, 1999, the Agency filed a third Administrative

Complaint against the Respondent alleging that he failed to

provide a refund within 30 days of return of the hearing aids;

and for failing to include a serial number on a receipt for a

hearing aid delivered to a purchaser, in violation of Section

484.056(1), Florida Statutes. The Respondent subsequently

requested formal hearing as to all three Administrative

Complaints, and this hearing ensued. No evidence was presented

regarding the allegations contained in the third Administrative

Complaint, and subsequent to the hearing, the Petitioner

voluntarily dismissed the Administrative Complaint in that case.

At the hearing, the Petitioner presented the testimony of

Stanley R. Williamson, a former client of the Respondent;

Michelle H. Pfister, a licensed hearing aid specialist, former

associate of the Respondent, and purchaser of the Respondent's

hearing aid practice; and, by deposition filed after hearing,

that of Katherine Sadilek, a former client. The Petitioner also

introduced Petitioner's Exhibits 1 through 9 and 11.

Petitioner's Exhibit 10 was identified but was rejected.

Respondent testified in his own behalf but did not offer any

exhibits.

A Transcript of the proceedings was furnished on August 23,

2000. Subsequent to the receipt thereof, only the Petitioner

submitted matters in writing. These were carefully considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. 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.

2. 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.

3. 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.

4. The Argo sy 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. Respondent continued to work on the pre mises 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. Section 120.57(1), Florida Statutes.

20. The Board see ks to discipline the Respondent's license

as a hearing aid specialist because of misconduct alleged

regarding his treatment of Mr. Williamson and Ms. Sadilek. With

regard to both clients, it is alleged he received returned

hearing aids within the time specified for their return and

refund, yet failed to refund the sums paid for the aids as he was

bound to do. It is further alleged, as to both clients, that the

sales receipts he gave them failed to contain required

information such as serial numbers of the aids, the name of the

purchaser, and the terms and conditions of the guarantee. If

proven, these allegations would constitute violations of various

provisions of Sections 484.056(1), 484.051(2), and 455.624,

Florida Statutes.

21. The Petitioner has the burden to establish the

Respondent's guilt of the offenses alleged by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

22. The evidence is both clear and convincing that both

clients alleged the Respondent sold hearing aids to them under a

guarantee of satisfaction which provided for a complete refund if

they were returned as unsatisfactory within a period of 30 days

from the date of sale. The evidence clearly establishes that

both clients returned the aids within 30 days of the date of

sale, advised the Respondent they were not satisfied, and

repeatedly requested the refund guaranteed to them under the

terms of the sale. Neither received a refund after repeated

requests therefor, and the Respondent retained the aids,

returning them to the manufacturer for credit. This constitutes

a clear violation of Section 484.0512(2) and, thereby, Section

484.056(1)(h), Florida Statutes.

23. The evidence also clearly establishes that the sales

receipts furnished to both clients failed to include the required

information to include such items as the serial numbers of the

instruments and the signature of the party receiving them. The

evidence also clearly establishes that the Respondent failed to

have Mr. Williamson sign a medical waiver, as is required by

Section 484.624(1), Florida Statutes.

24. Rule 64B-7.002, Florida Administrative Code, contains

guidelines for the assessment of penalties against licensees

shown to have violated provision of the statute regarding

criteria for practice as hearing aid specialists. The penalty

range for each violation of Section 484.056(1)(h), Florida

Statutes, extends from a "reprimand to revocation and an

administrative fine of from $500.00 to $1,000.00." Each

violation of Section 484.051(2), Florida Statutes, authorizes a

penalty of from a "reprimand to 6 months suspension and an

administrative fine of $500.00 to $1,000.00." Consideration of

factors both in aggravation and mitigation of the offenses proven

is authorized.

25. The evidence of record shows that the Respondent

consistently failed to refund the moneys paid by Mr. Williamson

for hearing aids he determined to be unsatisfactory. Though

Williamson sought refund for each of the three sets of aids he

was given, the sequence should be considered and treated as one

incident. Therefore, the Respondent faces assessment of two

penalty sets as a result of his treatment of the two clients

involved. The same approach is appropriate regarding the failure

to include required information on the sales receipts.

Therefore, under the circumstances of these consolidated cases,

the Respondent faces a maximum penalty of revocation and an

administrative fine of from $2,000 to $4,000.

26. The Petitioner seeks to im pose a penalty which includes

a revocation of the Respondent's license and an administrative

fine of $3,000. The Petitioner claims that the fact that the

clients lost a combined total of $5,190, with Mr. Williamson

losing $3,390 and Ms. Sadilek losing $1,800, constitutes

aggravation justifying an increased penalty.

27. To be sure, the financial loss to the Respondent's

clients is matter in aggravation, especially when viewed in the

light of their repeated unsuccessful requests for reimbursement.

On the other hand, the Respondent has been in practice for an

extended period, and the Petitioner presented no evidence of

prior misconduct. The Respondent seeks to re-enter practice as a

hearing aid specialist, and with the problems of his failed

marriage behind him, there is little reason to believe he cannot

do so successfully and safely. Therefore, revocation of his

license is deemed excessive. A substantial administrative fine,

as suggested by Petitioner, is appropriate.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.