01-000226PL Department Of Health, Board Of Hearing Aid Specialists vs. Leonard P. Zinni Status: Closed Recommended Order on Tuesday, May 29, 2001.

Summary: Contrary to allegations in Administrative Complaint, hearing aid specialist did not violate Sections 484.0501(1)(a), 484.0501(4), or 484.0512(1), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

HEARING AID SPECIALISTS, )

)

Petitioner, )

)

vs. ) Case No. 01-0226PL

)

LEONARD P. ZINNI, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in

accordance with Section 120.57(1), Florida Statutes, on

March 28, 2001, by video teleconference at sites in West Palm

Beach and Tallahassee, Florida, before Stuart M. Lerner, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Gary L. Asbell, Esquire

Agency for Health Care Administration

Post Office Box 14229, Mail Stop 39

Tallahassee, Florida 32317-4229

For Respondent : Leonard P. Zinni, pro se

106 Harbourside Circle

Jupiter, Florida 33477

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the

Administrative Complaint, and, if so, what disciplinary action

should be taken against him.

PRELIMINARY STATEMENT

On January 19, 2000, Petitioner filed an Administrative

Complaint against Respondent, a Florida-licensed hearing aid

specialist, alleging that Respondent engaged in the following

conduct:

4. On April 1, 1997, the Respondent, on

behalf of Advanced Hearing Center, Inc.,

dispensed a pair of Starkey hearing aids to

patient W. J. in Palm Beach County, Florida

for a contract price.

5. Respondent delivered the hearing aids to

the patient on April 8, 1997.

6. At the initial visit on April 1, 1997

and prior to selling the hearing aids,

Respondent noticed wax and white fungus in

the patient's ear.

7. Despite noticing this problem and

talking about it, the Respondent continued

to fit and sell the hearing aids.

8. Respondent failed to obtain a medical

clearance or waiver for the wax and mold

problem.

9. Respondent failed to perform pure tone

audiometric testing by bone to determine the

type of and degree of hearing deficiency

prior to or during the fitting and selling

of the hearing aids.

10. Respondent failed to provide a refund

to the patient although it was demanded

within 30 days of delivery.

According to the Administrative Complaint, Respondent "violated

Section 484.0501(1)(a), Florida Statutes, and [S ]ection

484.056(1)(h), Florida Statute[s], by failing to use pure tone

audiometric testing by air and bone to determine the type of and

degree of the patient's hearing deficiency" (Count I); "violated

Section 484.0501(4), Florida Statutes, and [S]ection

484.056(1)(h), Florida Statutes, by failing to obtain medical

clearance for the wax and fungus condition prior to fitting the

hearing aids" (Count II); and "violated Section 484.0512(1),

Florida Statutes, and [S]ection 484.056(1)(h), Florida Statutes,

by failing to provide the patient a refund" (Count III).

Through the submission of a completed Election of Rights

form dated September 15, 2000, Respondent " dispute[d]

the . . . allegations of fact contained in the Administrative

Complaint" and requested "a hearing involving disputed issues of

material fact, pursuant to Sections 120.569 and 120.57(1),

Florida Statutes, before an administrative law judge appointed

by the Division of Administrative Hearings." On January 17,

2001, the matter was referred to the Division of Administrative

Hearings (Division) for the assignment of a Division

Administrative Law Judge to conduct the hearing Respondent had

requested.

As noted above, the final hearing was held on March 28,

2001. Six witnesses testified at the hearing : Bonnie

Shaffrick, an investigator with the Agency for Health Care

Administration; Patient W. J.; F. J., Patient W. J.'s wife;

Richard Skelly, a Florida-licensed hearing aid specialist who

gave expert testimony on behalf of Petitioner; Respondent; and

Deputy George Gasparini of the Palm Beach County Sheriff's

Office. In addition to the testimony of these six witnesses,

seven exhibits, Petitioner's Exhibits 1 through 4, and

Respondent's Exhibits 1 through 3, were offered and received

into evidence.

At the close of the evidentiary portion of the hearing, the

undersigned established a deadline (20 days from the date of the

filing of the hearing transcript with the Division) for the

filing of proposed recommended orders.

A Transcript of final hearing (consisting of two volumes)

was filed with the Division on April 19, 2001. Respondent and

Petitioner filed their Proposed Recommended Orders on April 17,

2001, and May 9, 2001, respectively. These post-hearing

submittals have been carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at the final hearing and

the record as a whole, the following findings of fact are made:

1. Respondent is now, and has been since February 15,

1993, a Florida-licensed hearing aid specialist. He holds

license number AS2453.

2. For the past seven years, Respondent has owned Advanced

Hearing Center, Inc. (Advanced Hearing), a hearing aid business

located in North Palm Beach, Florida.

3. W. J. is a hearing impaired hearing aid wearer.

4. He and his wife of 32 years, F. J., reside in Florida

(on Singer Island in Palm Beach County) part of the year

(generally, January through the middle of April) and in New

Jersey the remainder of the year.

5. In late March of 1997, toward the end of their stay in

Florida that year, W. J. contacted Respondent by telephone at

Advanced Hearing to inquire about getting the hearing aid for

his left ear repaired.

6. W. J. had not had any previous dealings with

Respondent.

7. He had learned that Respondent was a hearing aid

specialist upon reading the advertisement for Advanced Hearing

in the Yellow Pages, and was "impressed" that Respondent had a

Ph.D.

8. During their telephone conversation, Respondent invited

W. J. to visit Advanced Hearing with his wife. He told W. J.

that, during the visit, he would look at the hearing aid that

needed repair and, in addition, give W. J. a free hearing test.

9. W. J., accompanied by his wife, visited Advanced

Hearing on Tuesday, April 1, 1997.

10. While waiting to see Respondent, W. J. was asked to

read written "testimonials" from satisfied patients of

Respondent's.

11. W. J. and his wife were subsequently escorted to

Respondent's office, where they remained for the duration of the

visit.

12. While in Respondent's office, W. J. filled out a

medical history form. The information that W. J. provided on

the form indicated that he did not have any significant medical

problems warranting referral to a medical doctor.

13. Respondent then used a video otoscope to examine

W. J.'s ear canals. The ear canals were "normal looking" and,

although there was some wax buildup, the eardrums were visible.

14. As he performed the otoscope examination, Respondent

explained to the J.s what he saw. He told them about the wax

buildup and cautioned that the lack of adequate "cerumen

management" could lead to "abnormalities or infections or a

fungus c[ould] grow," conditions which would require medical

attention.

15. Inasmuch as W. J. had not reported any recent history

of infection and the otoscope examination had not revealed any

observable abnormality, Respondent proceeded to test W. J.'s

hearing. He performed pure tone audiometric testing by air and

by bone and recorded the results of such testing.

16. Respondent's office, where the testing was done, was a

"certified testing room," within the meaning of Section

484.0501(6), Florida Statutes.

17. The air and bone tests revealed no significant

difference or "gap" between W. J.'s air conduction hearing and

his bone conduction hearing.

18. After the testing, Respondent informed the J.s that he

was unable to repair W. J.'s old hearing aid (for his left ear),

and he suggested that they purchase new, " upgrade[d]" hearing

aids for W. J. if they could afford to do so.

19. Respondent recommended the Starkey Sequel Circuit, the

"pinnacle product" of "one of the largest [hearing aid]

manufacturers in the world" (Starkey), because he believed that

it would help alleviate the "problems with distortion and loud

noise" that W. J. had reported that he was experiencing.

20. Respondent informed the J.s that he could sell them

this Starkey product at a "great price."

21. The J.s told Respondent that they were reluctant to

purchase new hearing aids in Florida because they were planning

on returning to their residence in New Jersey shortly, and that,

in any event, they were interested in Siemens Music, not Starkey

Sequel Circuit, hearing aids.

22. Respondent replied that the Starkey Sequel Circuit was

comparable to the Siemens Music and that any Starkey dealer

would be able to service Starkey Sequel Circuit hearing aids

purchased from his business.

23. After considering Respondent's comments and discussing

the matter with his wife, W. J. signed a written agreement to

purchase Starkey Sequel Circuit hearing aids from Advanced

Hearing for $3,800.00.

24. W. J. paid the full purchase price, by credit card,

before leaving. On the credit card receipt that W. J. received

were written the words, "no refunds."

25. The "purchase agreement" that W. J. signed had a

"guarantee date" of "2 yrs." and contained the following

provisions:

Within a period of one year after delivery

patient may have these instruments serviced

at Advanced Hearing Center, Inc. without any

cost under the terms of the guarantee issued

by the manufacturer. As the degree of

satisfaction is dependent upon user,

motivation, diligent adherence to

instructions, and proper use of this

prosthesis, all warranties are confined to

those issued by the manufacturer.

Examination, test, and other representations

are non-medical and for the sole purpose of

fitting hearing aids.

I hereby acknowledge that I have been

provided information concerning the

advantages of telecoils, "t" coils, or "t"

switches; which included the increased

access to telephones and assistive listening

systems. I have been provided in writing

with the terms and conditions of the 30-day

trial period and money back guarantee; with

notice of my right to cancel the purchase

within 30 days of receipt of the hearing

aid(s) for a valid reason based on a failure

to achieve a specific measured performance

such as sound improvements or improved word

discrimination. It shall be the

responsibility of the person selling the

hearing aid(s) to maintain the audiometric

documentation necessary to establish the

measured improvement. If the hearing aid

must be repaired, or adjusted during the 30-

day[] trial period, the running of the 30-

day trial period is suspended one 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

three working days after notification of

availability. In the event of cancellation

within the 30-day trial period, the seller

may retain a charge not to exceed $150.00 on

a monaural fitting (one hearing aid) and

$200.00 on a binaural fitting (two hearing

aids) for earmolds and services provided to

fit the hearing aids. In addition, the

purchaser may be charged a cancellation fee

not to exceed 5% of the total purchase

price. If the hearing system improves word

discrimination, which the seller has the

right to test and document, no refund will

be issued. If a problem arises you should

return immediately to the office listed

above. In the event a complaint concerning

a hearing aid and/or guarantee cannot be

reconciled , you may contact the Department

of Business and Professional Regulation,

1940 North Monroe Street, Tallahassee, FL

32399-0783. Telephone Number [phone].

I understand that this purchase agreement

comprises the entire agreement and no other

agreement of any kind, verbal understanding

or promise whatsoever will be recognized or

be binding upon Advanced Hearing Center,

Inc.

THE USE OF A HEARING AID WILL NOT RESTORE

NORMAL HEARING, NOR WILL IT PREVENT FURTHER

HEARING LOSS.

26. After the "purchase agreement" was signed, Respondent

made earmolds to send to Starkey.

27. The earmolds, along with a manufacturer's order form

that Respondent had completed, were subsequently sent to

Starkey. On the order form, Respondent provided information

concerning the results of the air conduction testing, but not of

the bone conduction testing, he had performed on W. J.

28. The J.s left Advanced Hearing following their April 1,

1997, visit without taking a copy of the signed "purchase

agreement" with them.

29. At their request, Respondent mailed them a copy of the

"purchase agreement," which they received sometime on or about

Saturday, April 5, 1997, along with the following cover letter,

dated April 1, 1997:

Thank you both for coming to Advanced

Hearing Center and mutually deciding to

purchase your new hearing system. I am

confident that the Starkey Sequels will

improve your hearing, especially since it

minimizes distortion of louder sounds as we

thoroughly discussed.

Your custom order is being processed and we

will notify you when it comes in to set an

appointment for the fitting and pick up of

your new instruments.

Also enclosed please find another copy of

the purchase agreement.

30. It was not long after the J.s had left Advanced

Hearing on April 1, 1997, that they started having second

thoughts about the purchase they had made.

31. The next morning (April 2, 1997), they telephoned

Respondent and advised him of their "doubts" and concerns

regarding the purchase.

32. Respondent "talked it out" with them, and, at the end

of the conversation, the J.s expressed their willingness to

"accept the delivery" of the hearing aids.

33. W. J., again accompanied by his wife, returned to

Advanced Hearing on Tuesday, April 8, 1997, to be fitted with

the new hearing aids.

34. He had not seen a medical doctor since his last visit

to Advanced Hearing.

35. When Respondent first fitted W. J. with the new

hearing aids, W. J. told Respondent that he heard a whistling

noise.

36. Respondent thereupon removed the hearing aids and,

using a "metal probe," took wax out of both of W. J.'s ears.

37. He then again fitted W. J. with the new hearing aids.

This time W. J. did not hear any whistling noise or other

feedback.

38. Respondent proceeded to test and measure W. J.'s

hearing.

39. The audiometric test results, which were reduced to

writing and placed in the patient file Respondent maintained on

W. J., revealed that, with the new hearing aids, W. J. enjoyed a

significant improvement in hearing.

40. Following the testing, the J.s accepted delivery of

new hearing aids.

41. Respondent provided the J.s with a copy of the

"purchase agreement" that W. J. had signed during his previous

visit to Advanced Hearing, on which Respondent had added the

serial numbers of the new hearing aids and the date of delivery

(April 8, 1997).

42. W. J. left Advanced Hearing on April 8, 1997, wearing

the new hearing aids.

43. Sometime after leaving Advanced Hearing, W. J. began

hearing the same whistling noises that he had heard when

Respondent had first fitted him.

44. After returning to New Jersey on April 9, 1997, the

J.s brought the new hearing aids to a New Jersey audiologist to

be serviced.

45. The New Jersey audiologist told the J.s that to

correct the whistling problem new earmolds would have to be

made. She further advised the J.s that she "would have to

charge [them] a considerable amount of money" to make these

earmolds.

46. Respondent was not furnished a signed written request

from W. J. requesting that Respondent release to the New Jersey

audiologist the records in the file Respondent maintained on

W. J. Accordingly, Respondent never sent the New Jersey

audiologist these records.

47. On May 1, 1997, the J.s shipped the new hearing aids

back to Respondent, along with a letter (dated that same day,

May 1, 1997), in which they demanded a "full refund" based upon

their claim that the hearing aids neither fit nor worked

properly.

48. On May 5, 1997, Respondent refused delivery of the

package containing the hearing aids and the letter.

49. Thereafter, on or about May 6, 1997, W. J. filed a

complaint against Respondent with Petitioner.

50. The J.s re-sent to Respondent the May 1, 1997, letter

requesting a "full refund." The letter was delivered to

Respondent on May 9, 1997.

51. Respondent refused to provide the refund that the J.s

had demanded because he believed that, inasmuch as he had the

audiometric documentation necessary to establish that the

hearing aids significantly improved W. J.'s hearing, the J.s did

not have a "valid reason," under the existing law, to void their

purchase of the hearing aids.

52. Respondent did agree, however, to pay for a qualified

person in New Jersey to make earmolds for W. J. so that the

problem with the hearing aids could be corrected. He also

offered to take the hearing aids back and exchange them for

Siemens Music hearing aids. Neither of these offers, though,

was acceptable to the J.s.

53. Unsuccessful in their efforts to obtain a refund from

Respondent, the J.s sought redress from their credit card

company.

54. The credit card company sent the J.s the following

letter, dated May 30, 1997:

This is in reference to the billing error

from ADVANCED HEARING CTR in the amount(s)

of $3,800.00.

Based on the information you have provided,

we have removed the item(s) from dispute and

issued a credit to your current account.

Please be advised that the merchant has the

opportunity for rebuttal. If this occurs,

we may need to contact you for further

information if deemed necessary to support

your case. However, if the merchant can

provide documentation that proves the

charge(s) to be valid, we will have no

alternative but to place the charge(s) back

on your account. If this is necessary, we

will send you a written explanation. . . .

55. Respondent, on behalf of Advanced Hearing, took

advantage of the "opportunity for rebuttal" provided by the

credit card company.

56. The matter was finally resolved in October of 1997,

with the credit card company siding with the J.s.

57. The end result of the dispute resolution process was

that the J.s were made whole and $3,800.00 was "charged back" to

Advanced Hearing's account.

58. In early December of 1997, Respondent discovered that

there were several files missing from his office. He suspected

a disgruntled former employee whom he had recently terminated.

(The employee's personnel file was among the missing files.)

59. Respondent contacted the Palm Beach County Sheriff's

Office, which investigated the matter.

60. The deputy that conducted the investigation found no

signs of forced entry.

61. No arrests were made as a result of the investigation.

62. Following the completion of the investigation,

Respondent found that there were other files, including W. J.'s

patient file, that were missing.

63. Respondent made an effort to recreate the

documentation that was in W. J.'s file. He contacted Starkey

and obtained, over the telephone, the test result information

that he had included on the manufacturer's order form he had

sent to Starkey. He recorded this information on an Audiometric

Case History and Tests form that he uses in his practice. On

the form, he wrote that this was "partial information obtained

from manufacturer."

64. In January of 1998, Respondent's secretary

inadvertently charged the J.s' credit card account $3,800.00.

The mistake was subsequently rectified.

65. Sometime in 1998, the J.s mailed to Respondent the

hearing aids they had purchased from Advanced Hearing the year

before.

66. This time Respondent accepted delivery.

67. The hearing aids were "not in working order" when they

were received by Respondent.

CONCLUSIONS OF LAW

68. Petitioner is statutorily empowered to take

disciplinary action against Florida-licensed hearing aid

specialists based upon any of the grounds enumerated in Section

484.056(1), Florida Statutes. Such disciplinary action may

include one or more of the following penalties : license

revocation; license suspension; imposition of an administrative

fine not to exceed $1,000 for each count or separate offense;

issuance of a reprimand; placement on probation for a period of

time and subject to such conditions as Petitioner may specify,

including, but not limited to, requiring the licensee to attend

continuing education courses or to work under the supervision of

another licensee; and restriction of the licensee's authorized

scope of practice. Section 484.056(2), Florida Statutes.

69. Section 484.056(1)(h), Florida Statutes, authorizes

Petitioner to take disciplinary action against a licensed

hearing aid specialist for "[v ]iolation or repeated violation of

[Chapter 484, Part II, Florida Statutes], or any rules

promulgated pursuant thereto."

70. The following are among the provisions of Chapter 484,

Part II, Florida Statutes:

Section 484.0501(1)(a)

(1 ) The following minimal procedures shall

be used in the fitting and selling of

hearing aids:

(a ) Pure tone audiometric testing by air

and bone to determine the type and degree of

hearing deficiency.

Section 484.0501(4)

(4 ) The following medical clearance shall

be obtained: If, upon inspection of the ear

canal with an otoscope in the common

procedure of a hearing aid fitter and upon

interrogation of the client, there is any

recent history of infection or any

observable anomaly, the client shall be

instructed to see a physician, and a hearing

aid shall not be fitted until medical

clearance is obtained for the condition

noted. If, upon return, the condition noted

is no longer observable and the client signs

a medical waiver, a hearing aid may be

fitted. Any person with a significant

difference between bone conduction hearing

and air conduction hearing must be informed

of the possibility of medical correction.

Section 484.0512

(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 purchaser 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, remade, 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

December 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

refund, 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 this

section.

71. Except for Subsection (3) of Section 484.0512, Florida

Statutes (which was added to the statute by Chapter 99-397, Laws

of Florida, effective July 1, 1999), the foregoing provisions of

Chapter 484, Part II, Florida Statutes, have been in effect at

all times material to the instant case.

72. Pursuant to Section 484.044, Florida Statutes,

Petitioner has the "authority to adopt rules pursuant to ss.

120.536(1) and 120.54 to implement the provisions of [Chapter

484, Part II, Florida Statutes] conferring duties upon it."

73. Rule 64B6-6.001, Florida Administrative Code, is one

such rule Petitioner has adopted. Since September 14, 1997, its

effective date, it has provided as follows:

64B6- 6.001 Thirty-Day Trial Period.

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

the State of Florida must provide the

purchaser with written notice of the 30-day

trial period and money-back guarantee as

provided in section 484.0512, F.S. The

terms and conditions of the guarantee as

well as the total amount available for

refund shall be provided in writing to the

purchaser prior to the signing of the

contract.

(2 ) The guarantee shall permit the

purchaser to cancel the purchase for a valid

reason within 30 days of the receipt of the

hearing aid(s). A valid reason shall be

defined as failure by the purchaser to

achieve satisfaction from use of 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.

(3 ) If the hearing aid must be repaired,

remade, or adjusted during the 30-day trial

period, the running of the 30-day trial

period is suspended one 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 three 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.

(4 ) In the event of cancellation within the

30-day trial period, the seller may retain a

charge not to exceed $150 on a monaural

fitting, and $200 on a binaural fitting for

ear molds and services provided to fit the

hearing aid. In addition, the purchaser may

be charged a cancellation fee not to exceed

5% of the total purchase price.

74. Rule 64B6-6.001, Florida Administrative Code, was

formerly Rule 61G9-6.0010, Florida Administrative Code. Rule

61G9-6.0010 was adopted effective October 24, 1994, and was

identical to the current version of the rule, except for

Subsection (2), which provided as follows:

The guarantee shall permit the purchaser to

cancel the purchase for a valid reason

within 30 days of receipt of the hearing

aid(s). A valid reason shall be based upon

a failure of the purchaser to achieve a

specific measured performance such as sound

improvement, improved speech reception

threshold or improved word discrimination

based upon documented audiometric testing.

It shall be the responsibility of the person

selling the hearing aid(s) to maintain the

audiometric documentation necessary to

establish the measured improvement. Failure

on the part of the seller to document a

represented measured improvement shall

constitute a valid reason for a mandatory

money-back guarantee.

75. It is undisputed that, in the instant case, the

determination of whether the J.s had a "valid reason" to "cancel

[their] purchase" must be based upon the provisions of the

former (pre-September 14, 1997) version of the rule, which were

in effect at the time the J.s sought to "cancel the purchase."

See Childers v. Department of Environmental Protection , 696 So.

2d 962 (Fla. 1st DCA 1997)(" The version of a statute in effect

at the time grounds for disciplinary action arise controls.");

and Hector v. Department of Professional Regulation, Florida

Real Estate Commission , 504 So. 2d 469 (Fla. 1st DCA 1987)( " [W ]e

find the Commission's order of reprimand has no statutory basis,

because the conduct which the Commission seeks to discipline was

not subject to Commission discipline when it occurred.").

76. "No revocation [or] suspension . . . of any [hearing

aid specialist's] license is lawful unless, prior to the entry

of a final order, [Petitioner] has served, by personal service

or certified mail, an administrative complaint which affords

reasonable notice to the licensee of facts or conduct which

warrant the intended action and unless the licensee has been

given an adequate opportunity to request a proceeding pursuant

to ss. 120.569 and 120.57." Section 120.60(5), Florida

Statutes.

77. The licensee must be afforded an evidentiary hearing

if, upon receiving such written notice, the licensee disputes

the alleged facts set forth in the administrative complaint.

Sections 120.569(1) and 120.57, Florida Statutes.

78. At the hearing, Petitioner bears the burden of proving

that the licensee engaged in the conduct, and thereby committed

the violations, alleged in the administrative complaint. Proof

greater than a mere preponderance of the evidence must be

presented. Clear and convincing evidence of the licensee's

guilt is required. See Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Company , 670 So. 2d 932, 935 (Fla. 1996) ; Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987) ; Pou v. Department of

Insurance and Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998); and

Section 120.57(1)(j), Florida Statutes ("Findings of fact shall

be based upon a preponderance of the evidence, except in penal

or licensure disciplinary proceedings or except as otherwise

provided by statute . . . .").

79. Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard."

Id. For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983).

80. In determining whether Petitioner has met its burden

of proof, it is necessary to evaluate its evidentiary

presentation in light of the specific factual allegations made

in the administrative complaint. Due process prohibits an

agency from taking disciplinary action against a licensee based

upon conduct not specifically alleged in the agency's

administrative complaint or other charging instrument. See

Hamilton v. Department of Business and Professional Regulation ,

764 So. 2d 778 (Fla. 1st DCA 2000) ; Lusskin v. Agency for Health

Care Administration , 731 So. 2d 67, 69 (Fla. 4th DCA 1999); and

Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996).

81. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the administrative

complaint] to have been violated." Delk v. Department of

Professional Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA

1992). In deciding whether "the statute or rule claimed to have

been violated" was in fact violated, as alleged by Petitioner,

if there is any reasonable doubt, that doubt must be resolved in

favor of the licensee. See Whitaker v. Department of Insurance

and Treasurer , 680 So. 2d 528, 531 (Fla. 1st DCA 1996) ; Elmariah

v. Department of Professional Regulation, Board of Medicine , 574

So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of

Professional and Occupational Regulations , 348 So. 2d 923, 925

(Fla. 1st DCA 1977).

82. In the Administrative Complaint issued in the instant

case, Petitioner has alleged that Respondent, in his dealings

with W. J., "violated Section 484.0501(1)(a), Florida Statutes,

and [S ]ection 484.056(1)(h), Florida Statute[s], by failing to

use pure tone audiometric testing by air and bone to determine

the type of and degree of the patient's [W. J.'s] hearing

deficiency" (Count I); "violated Section 484.0501(4), Florida

Statutes, and [S]ection 484.056(1)(h), Florida Statutes, by

failing to obtain medical clearance for the wax and fungus

condition prior to fitting the hearing aids" (Count II); and

"violated Section 484.0512(1), Florida Statutes, and [S]ection

484.056(1)(h), Florida Statutes, by failing to provide the

patient [W. J.] a refund" (Count III).

83. The record evidence fails to clearly and convincingly

establish that Respondent committed any of these alleged

violations.

84. While Petitioner presented prima facie proof of

Respondent's guilt of these violations, such proof was overcome

by the testimony Respondent gave in his own defense, which was

internally consistent, plausible, and believable. Testifying

with apparent candor and sincerity, Respondent was a convincing,

persuasive, and credible witness despite his obvious interest in

the outcome of the proceeding. Notwithstanding its self-serving

nature, the exculpatory testimony of a respondent, like that

given by Respondent in the instant case, may be considered and

relied upon as competent substantial evidence, even if it is

uncorroborated and contrary to the evidence adduced by the

licensing agency. See Falk v. Beard , 614 So. 2d 1086, 1089

(Fla. 1993)("It would be an anomalous situation indeed if the

testimony of the one against whom a complaint is lodged could

never form the basis for competent substantial evidence.") ;

Florida Publishing Company v. Copeland , 89 So. 2d 18, 20 (Fla.

1956)("There is no doubt that the testimony of the plaintiff,

although uncorroborated, '. . . if reasonable on its face, and

believed and accepted by the jury as true can carry the burden

of proof.'"); Martuccio v. Department of Professional

Regulation, Board of Optometry , 622 So. 2d 607, 609-10 (Fla. 1st

DCA 1993)(expert testimony of applicant for licensure was not

incompetent and could be relied upon "as competent substantial

evidence to support [hearing officer's] conclusions"); and Raheb

v. Di Battisto , 483 So. 2d 475, 476 (Fla. 3d DCA 1986)("We are

not persuaded, as urged, that the testimony of the

plaintiff . . . should have been rejected by the trial court as

inherently incredible; it was the trial court's function, not

ours, to weigh the testimony and evidence adduced in the cause

based on its observation of the bearing, demeanor, and

credibility of the witnesses appearing in the cause.").

85. With respect to Count I, the undersigned has credited

Respondent's testimony that he conducted both air and bone tests

on W. J. (as well as his explanation as to why he was unable to

produce documentation that bone testing was done). Accordingly,

the undersigned has concluded that Respondent did not violate

Section 484.0501(1)(a), Florida Statutes, as alleged by

Petitioner.

86. With respect to Count II, the undersigned has credited

Respondent's testimony that, although he observed some wax

buildup in W. J.'s ear canals, W. J. did not have a "wax and

fungus condition" requiring medical attention. 1 Accordingly, the

undersigned has concluded that Respondent did not violate

Section 484.0501(4), Florida Statutes, as alleged by Petitioner.

87. With respect to Count III, the undersigned has

credited Respondent's testimony that the tests he performed on

W. J. on April 8, 1997, revealed that the hearing aids the J.s

had purchased significantly improved W. J.'s hearing. The

undersigned has also credited Respondent's testimony that the

test results were documented and maintained by Respondent until

early December of 1997, 2 when it was discovered that W. J.'s

patient file was missing. 3 Accordingly, the undersigned has

concluded that the J.s did not have a "valid reason," within the

meaning of former Rule 61G9-6.0010, Florida Administrative Code,

to "cancel [their] purchase" of the hearing aids and that

therefore Respondent did not violate Section 484.0512(1),

Florida Statutes, by refusing to refund the $3,800.00 the J.s

had paid (by credit card) for the hearing aids when he was

requested to do so by the J.s.

88. In view of the foregoing, the Administrative Complaint

issued against Respondent should be dismissed in its entirety.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Board enter a final order dismissing

the Administrative Complaint issued against Respondent in its

entirety.

DONE AND ENTERED this 29th day of May, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of May, 2001.

ENDNOTES

1/ While the J.s testified that Respondent had made comments to

them indicating that he believed that W. J. had such a

condition, it appears that the J.s either misunderstood or

failed to accurately recall what Respondent had actually told

them.

2/ This was after the J.s had already received a full refund

from their credit card company.

3/ There has been no showing that the disappearance of the

documentation was the result of any failure on Respondent's part

to have acted in a manner consistent with what a reasonably

prudent hearing aid specialist would have done under similar

circumstances to maintain the documentation.

COPIES FURNISHED:

Gary L. Asbell, Esquire

Agency for Health Care Administration

Post Office Box 14229, Mail Stop 39

Tallahassee, Florida 32317-4229

Leonard P. Zinni

106 Harboursides Circle

Jupiter, Florida 33477

Susan Foster, Executive Director

Department of Health

Board of Hearing Aid Specialists

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 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.

1 While the J.s testified that Respondent had made comments to

them indicating that he believed that W. J. had such a

condition, it appears that the J.s either misunderstood or

failed to accurately recall what Respondent had actually told

them.

2 This was after the J.s had already received a full refund from

their credit card company.

3 There has been no showing that the disappearance of the

documentation was the result of any failure on Respondent's part

to have acted in a manner consistent with what a reasonably

prudent hearing aid specialist would have done under similar

circumstances to maintain the documentation.