01-003538PL Department Of Health, Board Of Hearing Aid Specialists vs. Robert F. Davidson Status: Closed Recommended Order on Friday, February 1, 2002.

Summary: Petitioner, a hearing aid specialist, sold hearing aids with 30-day return guarantee, refund if dissatisfied. Hearing aids returned and no refunds made. Recommend restitution, fines, temporary suspension of license, and probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

HEARING AID SPECIALISTS, )

)

Petitioner, )

)

vs. ) Case Nos. 01 - 3536PL

) 01 - 3537PL

ROBERT F. DAVIDSON, AS, ) 01 - 3538PL

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in the above cases

in accordance with Subsection 120.57(1), Florida Statutes, on

November 8, 2001, in Clearwater, Florida, before Fred L.

Buckine, an Adm inistrative 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, Mall Stop 39

Tallahassee, Florida 32308

For Respondent: E. Raymond Shope, Esquire

1404 Goodlette Road North

Naples, Florida 34102

STATEMENT OF THE ISSUE

The issue in these cases is w hether Respondent committed

the violations alleged in three Administrative Complaints, and,

if so, what appropriate disciplinary action should be taken

against him.

PRELIMINARY STATEMENT

On September 7, 2001, Petitioner, the Agency for Health

Care Admini stration (Agency), on behalf of the Board of Hearing

Aid Specialists (Board) filed three Administrative Complaints

against Robert F. Davidson (Respondent), a Florida - licensed

hearing aid specialist, alleging that Respondent engaged in the

following miscond uct:

Case No. 01 - 3536PL

Alleges Respondent sold a pair of hearing aids to patient

C. L. D., for $1,795.00 at Hearite Audiological, Inc., in Largo,

Florida, on or about September 9, 1998. C. L. D. paid a $500.00

deposit for the hearing aids. On or ab out September 21, 1998,

the hearing aids were delivered to C. L. D. Patient C. L. D.

found the hearing aids to be unsatisfactory and returned them

for a refund on October 8, 1998. The refund request was made

within thirty days of delivery. Respondent ha s not refunded

C. L. D. her money.

Based on the foregoing, failing to refund patient

C. L. D.'s money for the hearing aids within thirty days of

delivery, Respondent has violated Subsection 484.0512(1),

Florida Statutes, thereby violating Subsection 484. 056(1)(h),

Florida Statutes.

Case No. 01 - 3537PL

Alleges Respondent's last known address is 1044 Castello

Drive, Suite 105, Naples, Florida 34103. On or May 21, 1998,

the Respondent on behalf of Hearite Audiological, Inc. sold a

pair of hearing aids t o Patient J. C. for $1,345.00 in Largo,

Florida.

On June 5, 1998, Respondent delivered the hearing aids to

the patient. On June 12, 1998, the patient, upon being

dissatisfied with their use, returned the hearing aids for a

refund. Although Hearite accept ed the hearing aids, the patient

never received a refund.

Based on the foregoing, Respondent's license to practice as

a hearing aid specialist in the State of Florida is subject to

discipline pursuant to Subsection 484.056(1)(h), Florida

Statutes, for repe ated violations of Chapter 484, Florida

Statutes, Chapter 456, Florida Statutes, or any rule promulgated

pursuant thereto, to wit: for violating Section 484.0512,

Florida Statutes, for failure to provide refund for a hearing

aid returned within thirty (30 ) days of delivery.

Case No. 01 - 3538PL

Alleges that on July 10, 1998, Respondent, on behalf of

Hearite Audiological Inc. (Hearite), delivered a pair of hearing

aids to patient R. L. in Largo, Florida, for which he paid

$3,195.00. Another Hearite aid specialist had previously signed

the sales contract on June 29, 1998.

The patient was dissatisfied with the use of the hearing

aids and returned them to Hearite on July 13, 1998, for a

refund. Hearite accepted the hearing aids back from the patient

on Ju ly 13, 1998, and promised the patient a refund. Hearite

subsequently went out of business. The patient R. L. never

received a refund.

Based on the foregoing the Respondent has violated

Subsection 484.056(1)(h), Florida Statutes, by failing to

provide a r efund for a hearing aid returned within 30 days of

delivery in violation of Subsection 484.0512(1), Florida

Statutes.

Respondent disputed the allegations in each Administrative

Complaint and requested a formal hearing. On September 20,

2001, an Order was issued consolidating the cases for one

hearing.

At the hearing, the Petitioner presented the testimony of

five witnesses: C. L. D., Chris Vidalis, R. L., Michael T.

Marks, and Richard L. Bush, and had thirteen Exhibits (P1 - P13)

admitted in evidence. Respondent testified in his own behalf

and had five Exhibits (R1 - 5) admitted in evidence.

A Transcript of the proceedings was furnished on

November 26, 2001. On December 12, 2001, Respondent's Counsel

filed a Motion for Enlargement of Time for Filing Proposed

Recommended Order due to his wedding plans over the holiday

season. The Motion was unopposed, granted, and the time for

filing proposed recommended orders extended to January 15, 2002.

Petitioner and Respondent submitted Proposed Recommended Ord ers

on January 14 and 15, 2002, which were carefully considered in

the preparation of this Recommended Order.

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:

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 specialist s and

regulation of hearing aid providers in Florida. Section 455,

Florida Statutes (1999).

2. Respondent, Robert F. Davidson, has been a licensed

hearing aid specialist in this state, holding license number

0000740. From sometime in April and continuin g 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

3. 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. w as 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.

4. 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, R espondent promised Patient

C. L. D. a full refund of her $500.00 deposit.

5. 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

6. 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.

7. On June 12, 1998, being dissatisfied with its use

Patient J. C. returned the hearing aid and requested a refund.

Responden t 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

8. On or about June 10, 1998, Patient R. L., after several

unsolicited telephone calls from someone representing Hearite,

visited Heari te 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.

9. 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.

10. 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.

11. 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 refun ds

was Hearite Audiological, Inc., and, not himself, is

disingenuous.

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction

over the parties and subject matter in this case. Subsection

120.57(1), Florida Statutes.

12. The Boa rd seeks to discipline the Respondent's license

as a hearing aid specialist because of the misconduct alleged in

each of the three administrative complaints herein filed.

13. Regarding his misconduct in treatment of clients,

C. L. D., J. C., and R . L., it is alleged that they received

hearing aids and returned them within the time specified for

their return and refund. Respondent failed to refund the sums

paid for the hearing aids as he was bound to do. If proven,

these allegations would constitu te violations of various

provisions of Subsections 484.051(2), 484.0512(1), and

484.056(1)(h), Florida Statutes, and repeated violations of

Chapter 455, Florida Statutes. Petitioner has the burden to

establish the Respondent's guilt of the offenses allege d in the

complaints by clear and convincing evidence. Department of

Banking and Finance v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996).

14. The evidence is clear and convincing that Respondent

sold three clients hearing aids under guarantees of sa tisfaction

which provided for a complete refund if they were returned as

unsatisfactory within a period of 30 days from the date of sale.

Petitioner has established that within thirty days of the date

of each sale, each client returned the hearing aid, an d,

informed Respondent they were not satisfied, and, repeatedly

requested the refund guaranteed under the terms of the sale.

Not one of the clients received a refund after repeated requests

were made.

15. Respondent's conduct constituted violations of

Subsection 484.0512(1), Florida Statutes, which provides, in

part that:

(1) " A person selling a hearing aid" in

this state must provide the buyer with

written notice of a 30 - day trial period and

money - back guarantee. The guarantee must

permit the purch aser to cancel the purchase

for a valid reason as defined by rule of the

board within 30 days after receiving the

hearing aid, by returning the hearing aid or

mailing written notice of cancellation to

the seller. If the hearing aid must be

repaired, remad e, or adjusted during the 30 -

day trial period, the running of the 30 - day

trial period is suspended 1 day for each 24 -

hour period that the hearing aid is not in

the purchaser's possession. A repaired,

remade, or adjusted hearing aid must be

claimed by the purchaser within 3 working

days after notification of availability.

The running of the 30 - day trial period

resumes on the day the purchaser reclaims

the repaired, remade, or adjusted hearing

aid or on the fourth day after notification

of availability.

( 2) The board, in consultation with the

Board of Speech - Language Pathology and

Audiology, shall prescribe by rule the terms

and conditions to be contained in the money -

back guarantee and any exceptions thereto.

Such rule shall provide, at a minimum, that

the charges for earmolds and service

provided to fit the hearing aid may be

retained by the licensee. The rules shall

also set forth any reasonable charges to be

held by the licensee as a cancellation fee.

Such rule shall be effective on or before

Decemb er 1, 1994. Should the board fail to

adopt such rule, a licensee may not charge a

cancellation fee which exceeds 5 percent of

the total charge for a hearing aid alone.

The terms and conditions of the guarantee,

including the total amount available for

re fund, shall be provided in writing to the

purchaser prior to the signing of the

contract.

(3) Within 30 days after the return or

attempted return of the hearing aid, " the

seller shall refund" all moneys that must be

refunded to a purchaser pursuant to t his

section. [EMPHASIS ADDED]

16. Respondent's conduct regarding these three patients

could not have been accomplished without proper licensure.

17. Under Section 484.0521, Florida Statutes, Respondent,

not Hearite Audiological, Inc., the bus iness, is responsible for

providing refunds due each patient.

18. First, the statutory scheme in Chapter 484, part II,

Florida Statutes, does not provide for the "licensing" of

business entities or jurisdiction over them by the Board of

Hearing Aid Spe cialists to enforce the payment of refunds. It

only provides jurisdiction over individuals who are, as is

Respondent, licensed hearing aid specialists.

19. Second, Subsection 484.041(3), Florida Statutes (1997)

(1999), defines the acts that are consid ered "dispensing hearing

aids."

Section 484.041(3) provides:

(3) "Dispensing hearing aids" means and

includes:

(a) Conducting and interpreting hearing

tests for purposes of selecting suitable

hearing aids, making earmolds or ear

impress ions, and providing appropriate

counseling.

(b) All acts pertaining to the selling,

renting, leasing, pricing, delivery, and

warranty of hearing aids.

20. In the cases of C. L. D. (01 - 3536) and J. C.

(01 - 3537), Respondent signed the sales receipt an d accepted the

hearing aids back from these two purchasers. Likewise, in the

case of R. L. (01 - 3538) Respondent conducted testing and

delivered the hearing aids. These activities of Respondent

involved the practice of hearing aid dispensing as above

defi ned.

21. In each of the three cases in the proceeding,

Respondent is charged in one count with violating Subsection

484.056(1)(h), Florida Statutes, by failing to pay a refund for

hearing aids returned within 30 days of receipt by the

purchaser. Pet itioner has proven the charges of the three

complaints by clear and convincing evidence that Respondent was

obligated to pay the refund but failed to do so.

22. 64B6 - 7.002 Guidelines for Disposition of Disciplinary

Cases.

(1) Purpose. The Boar d provides within

this rule disciplinary guidelines which

shall be imposed upon applicants or

licensees whom it regulates under Chapter

484, F.S. The purpose of this rule is to

notify applicants and licensees of the

ranges of penalties which will routinel y be

imposed unless the Board finds it necessary

to deviate from the guidelines for the

stated reasons given within this rule. The

ranges of penalties provided below are based

upon a single count violation of each

provision listed; multiple counts of the

violated provisions or a combination of the

violations may result in a higher penalty

than that for a single, isolated violation.

Each range includes the lowest and highest

penalty and all penalties falling between.

The purposes of the imposition of disci pline

are to punish the applicants or licensees

for violations and to deter them from future

violations; to offer opportunities for

rehabilitation, when appropriate; and to

deter other applicants or licensees from

violations.

(2) Violations and Range o f Penalties.

In Imposing discipline upon applicants and

licensees, in proceedings pursuant to

Section 120.57(1) and 120.57(2), Florida

Statutes, the Board shall act in accordance

with the following disciplinary guidelines

and shall impose a penalty within the range

corresponding to the violations set forth

below. The verbal identification of

offenses are descriptive only; the full

language of each statutory provision cited

must be consulted in order to determine the

conduct included:

23. Rule 64B6 - 7.002(2)(v), Florida Administrative Code,

contains guidelines for the assessment of penalties against

licensees shown to have violated provisions of the statute

criteria for practice of hearing aid specialists.

24. Rule 64B20 - 7.005, Florida Administrat ive Code,

authorizes deviation from the normal penalty guidelines for

aggravating and mitigating circumstances by the Board.

Aggravating circumstances include consideration financial

exploitation and the amount of economic damage to the

patient(s).

2 5. The penalty range for each violation of Subsection

484.056.(1)(h), Florida Statutes, extends from a "reprimand to

revocation and an administrative fine of from $500.00 to

$1,000.00." Consideration of factors both in aggravation and

mitigation of the o ffenses proven is authorized when

determining penalty.

26. The evidence proved Respondent consistently failed to

refund the moneys paid by the three clients for hearing aids

they determined to be unsatisfactory. Therefore, Respondent

faces assessment of penalty for three incidents resulting from

treatment of three clients.

27. Accordingly, under the circumstances of these

consolidated cases, Respondent faces a maximum penalty of

revocation and an administrative fine of $1,500.00 to $3,000.00.

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

is a matter of aggravation, especially when viewed in the light

of their repeated unsuccessful requests for reimbursement.

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 - 3537P L, 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 Stati on 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

NOTICE OF R IGHT 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 must be filed with the agency that

will issue the Final Order in this case.