02-000220PL Department Of Health, Board Of Hearing Aid Specialists vs. Gary P. Segretario Status: Closed Recommended Order on Wednesday, September 11, 2002.

Summary: Petitioner failed to prove Respondent violated 30-day refund requirement; recommend dismissal of Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

HEARING AID SPECIALISTS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0220PL

)

GARY P. SEGRETARIO, )

)

Respondent. )

)

R ECOMMENDED ORDER

Pursuant to Section 120.57(1), Florida Statutes, a formal

administrative hearing was held on March 25, 2002, in Sarasota,

Florida, before William R. Pfeiffer, a duly - appointed

Administrative Law Judge, of the Division of Administrative

He arings.

APPEARANCES

For Petitioner: Gary L. Asbell, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Building Three, Mail Station 39

Tallahassee, F lorida 32308

For Respondent: E. Raymond Shope, II, Esquire

1404 Goodlette Road, North

Naples, Florida 34102

STATEMENT OF THE ISSUE

The issue presented in this case is whether Respondent,

Gary Segretari o, committed the violations alleged in the Amended

Administrative Complaint, and, if so, what penalty should be

imposed by Petitioner.

PRELIMINARY STATEMENT

On or about December 27, 2000, Petitioner filed a four -

count Administrative Complaint alleging tha t Respondent

(1) failed to provide a refund to patient D.V. in violation of

Section 484.056(1)(h), Florida Statutes; (2) committed

misconduct in the practice of hearing aid dispensing in

violation of Section 484.056(1)(g), Florida Statutes; (3) made

false and misleading representations to a patient in violation

of Section 484.056(1)(k), Florida Statutes; and (4) implied to a

patient that a hearing aid would improve or preserve hearing in

violation of Section 484.056(1)(q), Florida Statutes.

At the hearing, Petitioner presented the testimony of four

witnesses and offered 16 exhibits of which 15 were admitted into

evidence. Respondent testified and presented testimony from

four witnesses and entered two exhibits into evidence.

Both parties submitted Proposed Recommended Orders which

were considered.

FINDINGS OF FACT

1. Respondent, Gary Segretario, is and at all times

material hereto was a licensed hearing aid specialist in the

state of Florida, holding license number AS2321.

2. Petitioner, Department of He alth, Board of Hearing Aid

Specialists, is the state agency charged with the authority and

duty to regulate the practice of hearing aid dispensing within

the state of Florida.

3. In June 1997, purportedly in response to increasing

misconduct by various h earing aid specialists, the Board of

Hearing Aid Specialists issued an emergency rule amending Rule

61G - 9 - 6.010, Florida Administrative Code, and changing the

justification for the purchaser's refund from a measured

improvement in the purchaser's hearing t o failure of the

purchaser to obtain satisfaction from the hearing aid. In 1999,

the Florida Legislature created Section 484.0512(3), Florida

Statutes, and added a 30 - day refund provision into the Statute

when the purchaser has a valid reason as defined b y the Board's

Rule.

4. On April 24, 1998, in response to a telephone

solicitation, patient D.V. presented to Hearing Care 2000 in

Daytona, Florida, for the purpose of a hearing examination. On

that date, patient D.V. was tested by Respondent and his

as sistant Eric Collins, a licensed hearing aid specialist

trainee.

5. Following the testing, Respondent recommended and

patient D.V. agreed to purchase a hearing aid for his left ear.

There is insufficient evidence to conclude that Respondent

advised patie nt D.V. that he would lose his hearing if he did

not purchase a hearing aid. The contract provided for a 30 - day

refund of the hearing aid purchase.

6. On or about April 29, 1998, Respondent received the

hearing aid from the manufacturer and contacted p atient D.V. An

appointment for delivery of the hearing aid was scheduled for

May 1, 1998. After patient D.V. missed the appointment, another

appointment was scheduled for May 15, 1998.

7. On May 15, 1998, Respondent presented the hearing aid

to D.V. At the time of delivery, patient D.V. complained of

feedback and Respondent immediately placed a vent plug in the

hearing aid. Patient D.V. departed Respondent's office with the

hearing aid in his possession on May 15, 1998.

8. On or about May 19, 1998, pa tient D.V. returned to

Respondent's office complaining of feedback. To cure the

problem, Respondent forwarded the hearing aid to the

manufacturer for a soft coat finish.

9. Three days later on May 22, 1998, patient D.V. returned

for the hearing aid, was again tested, scored 100 percent

without feedback, and took possession of the aid. To ensure

satisfaction, a follow - up appointment was scheduled for May 29,

1998; however, patient D.V. failed to appear.

10. On June 29, 1998, patient D.V. entered Respon dent's

office and demanded a refund. Upon being denied, patient D.V.

physically attacked trainee Collins, threw the hearing aid at

the receptionist, and eventually departed.

11. The evidence deduced at Hearing indicates that

patient D.V. physically maint ained possession of the hearing aid

from May 15, 1998, through May 19, 1998, and May 22, 1998,

through June 29, 1998, a total of 43 days, before requesting a

refund.

12. The following day, on June 30, 1998, Respondent's

wife, Barbara Segretario, advised p atient D.V. via letter that

he was no longer permitted within the Daytona office.

13. Shortly thereafter, patient D.V. contacted his credit

card company and disputed the hearing aid charge apparently

alleging that he never signed the credit card slip. Ca thy

Gionfriddo, an employee at Hearing Care 2000, forwarded a copy

of patient D.V.'s signed credit card slip and signed contract to

the credit card company for signature comparison.

14. Following the lengthy dispute process, the credit card

company ruled in favor of Hearing Care 2000. Thereafter,

patient D.V. filed a small claims action against Respondent,

wherein the small claims judge ruled in favor of patient D.V.

and awarded him a $450.00 judgment. Patient D.V. received the

money in April 2000.

CONC LUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter pursuant

to Section 120.57(1), Florida Statutes.

16. Petitioner is the state agency charged with the

authority and duty to regulate the practice of hearing aid

dispensing within the state of Florida.

17. Statutes authorizing disciplinary action are penal in

nature and must be strictly construed. Bowling v. Department of

Insurance , 394 So. 2d 165 (Fla. 1st DCA 1981).

18. Petitioner has the burden of proving the material

allegations by clear and convincing evidence. Department of

Banking and Finance v. Osbourne Stern and Company, Inc. , 670

So. 2d 932 (Fla. 1996) and Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

19. Pursuant to Secti on 484.0512, Florida Statutes, a

person selling a hearing aid in Florida must provide the

purchaser with a 30 - day trial period and money back guarantee if

the purchaser is not satisfied. Section 484.0512(1), Florida

Statutes, clarifies the 30 - day period a nd provides that a refund

shall be tolled during any periods the hearing aid is being

repaired, remade, or adjusted.

20. Section 484.056(1)(h), Florida Statutes, provides for

disciplinary action against a hearing aid specialist who has

violated the 30 - da y money back guarantee.

21. In the case at hand, Petitioner alleges that

Respondent failed to timely provide patient D.V. with a refund

thereby violating the Statute. As a result of the violation,

Petitioner alleges that Respondent has also violated

Se ction 484.056(1)(g), Florida Statutes, by engaging in fraud,

deceit, or misconduct in the practice of dispensing hearing

aids.

22. Petitioner further alleges that Respondent, by failing

to provide patient D.V. with a refund, has violated

Section 484.056(1 )(k), Florida Statutes, using a guarantee or

representation that is misleading, deceitful, or untrue.

23. And finally, Petitioner alleges that Respondent stated

or implied to patient D.V. that the use of a hearing aid would

improve or preserve his hearing or prevent the progression of a

hearing impairment in violation of Section 484.056(1)(q),

Florida Statutes.

24. Petitioner has failed to provide clear and convincing

evidence that patient D.V. timely sought a refund thereby

entitling him to the money. I n fact, patient D.V.'s testimony

was inconsistent and incredible. The evidence demonstrates that

the 30 - day refund period had expired on or about June 21, 1998,

prior to patient D.V.'s request for a refund and subsequent

aggressive episode.

25. Specifi cally, the hearing aid was initially delivered

to patient D.V. on May 15, 1998. It was sent to the lab for a

soft coat on May 19, 1998, and reclaimed by patient D.V. on

May 22, 1998. Thereafter, it was in patient D.V.'s possession

until June 29, 1998, wh en he returned to Hearing Care 2000,

accosted Eric Collins, and demanded a refund.

26. Petitioner has failed to prove that Respondent

violated the 30 - day refund requirement within Section 484.0512,

Florida Statutes, and therefore, did not demonstrate th at

Respondent violated Subsections 484.056(1)(h), (g), and (k),

Florida Statutes.

27. Finally, regarding Petitioner's allegation that

Respondent implied to patient D.V. that his hearing would

deteriorate in the absence of the hearing aid device, there was

no credible evidence presented that Respondent or his assistant

made any representations. While patient D.V. claims that the

statement was made by "someone" other than Respondent, there is

no clear and convincing evidence to support the allegation.

RECOM MENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Hearing Aid Specialist issue

a Final Order dismissing the Administrative Complaint filed

against Respondent.

DONE AND ENTERED this 11th day of S eptember, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. PFEIFFER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of September, 2002.

COPIES FURNISHED :

Gary L. Asbell, Esquire

Post Office Box 326

Lloyd, Florida 32337

E. Raymond Shope, II, Esquire

1404 Goodlette Road, North

Naples, Florida 34102

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Reginald Dixon, Esquire

Bureau of Practitioner Regulation

De partment of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Susan Foster, Executive Director

Board of Hearing A id Specialists

Department of Health

4052 Bald Cypress Way, Bin C08

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.