03-000402PL Department Of Health, Board Of Hearing Aid Specialists vs. Kent Broy Status: Closed Recommended Order on Thursday, July 24, 2003.

Summary: Administrative complaints should be dismissed where allegations are not proved by clear and convincing evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

HEARING AID SPECIALISTS, )

)

Petitioner, )

)

vs. ) Case Nos. 03 - 0402PL

) 03 - 040 3PL

KENT BROY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a final hearing was held in these two

consolidated cases on May 19, 2003, before Administrative Law

Judge Michael M. Parrish of the Division of Administrative

Hearings by means of a televideo connection between West Palm

Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Diane L. Guillemette, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32 399 - 1050

For Respondent: E. Raymond Shope, II, Esquire

1404 Goodlette Road, North

Naples, Florida 34102

STATEMENT OF THE ISSUES

The issues in these two consolidated cases concern whether

Respondent com mitted several violations alleged in two separate

administrative complaints and, if so, what penalties should be

imposed.

PRELIMINARY STATEMENT

At the final hearing in these cases, Petitioner presented

the testimony of one witness 1 and offered 11 exhibit s. Objection

to Petitioner's Exhibit 9 was sustained. Petitioner's other

exhibits were all received. Petitioner also attempted to make

arrangements for a second witness to testify at the final

hearing, but at the time of the hearing the whereabouts of t he

second witness could not be determined. 2

Respondent testified on his own behalf and also had two

exhibits marked for identification. Respondent's Exhibit 1 was

received in evidence. Respondent's Exhibit 2 was not offered.

Respondent did not call any additional witnesses.

At the conclusion of the final hearing Petitioner was

allowed ten days within which to file a written statement as to

the reasons one of its witnesses did not appear. Petitioner was

also allowed ten days within which to file a moti on seeking to

reopen the record of the hearing to receive the testimony of the

witness who could not be found on May 19, 2003.

On May 23, 2003, Petitioner filed a written statement

setting forth the reasons for the failure of witness M. G. to

appear on Ma y 19 and requesting that the hearing be reconvened

for the purpose of receiving the testimony of M. G. On June 2,

2003, Respondent filed a motion in opposition to Petitioner's

request that the hearing be reconvened.

By means of an order issued on June 3, 2003, the request

that the hearing be reconvened was denied and the parties were

advised that the deadline for filing their respective proposed

recommended orders would be June 18, 2003. Thereafter, both

parties filed proposed recommended orders containi ng proposed

findings of fact and conclusions of law. 3 The parties' proposals

have been carefully considered during the preparation of this

Recommended Order.

FINDINGS OF FACT

1. At all times material to these consolidated cases,

Respondent was a licens ed hearing aid specialist in the State of

Florida, having been issued license number AS 2169.

2. On or about February 8, 2001, S. K. visited

Respondent's business located at 3971 Jog Road, Suite 7,

Greenacres, Florida, in order to buy hearing aids. On t hat day

S. K. purchased two Audibel brand hearing aids. The invoice

provided to S. K. clearly indicates that he was purchasing

Audibel brand hearing aids. There is no mention of Beltone

anywhere on the invoice.

3. The two hearing aids purchased by S. K . on February 8,

2001, were delivered to S. K. on February 23, 2001. Hearing

aids of the type purchased by S. K. are specially manufactured

to address the specific needs of each patient. Accordingly, the

hearing aids must be manufactured after the contra ct is entered

into. At the time of the delivery of the hearing aids, S. K.

was provided with an invoice that contained the name of the

manufacturer, the serial numbers of the hearing aids, and the

two - year warranty by Audibel.

4. S. K. returned several times for adjustments to the new

Audibel brand hearing aids. On March 20, 2001, the hearing aids

were sent to the factory to change the volume control to a screw

set control. The repair agreement document filled out by

Respondent on March 20, 2001, conta ins the Beltone name and logo

in one corner, but does not otherwise mention Beltone. The

hearing aids were returned to S. K. on March 29, 2001.

5. Sometime thereafter, S. K. decided to spend the summer

in Connecticut. Before leaving for Connecticut, S. K. asked

Respondent's secretary for the name of a Beltone dealer near his

Connecticut address. The secretary provided the requested

information.

6. S. K. mistakenly thought he had purchased Beltone brand

hearing aids from Respondent until June 24, 2001 , when S. K.

visited a Beltone dealer in Connecticut for adjustments.

7. On or about June 24, 2001, a Beltone dealer in

Connecticut wrote a letter to Respondent on S. K.'s behalf

requesting a refund for S. K.

8. Respondent did not state or imply to S. K. that

Respondent was selling Beltone brand hearing aids to S. K. To

the contrary, Respondent specifically told S. K. that Respondent

was selling Audibel brand hearing aids to S. K.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

ju risdiction over the parties to and the subject matter of these

two consolidated cases. Sections 120.569 and 120.57(1), Florida

Statutes.

10. At all times material to these cases, Rule 64B6 - 7.005,

Florida Administrative Code, read as follows:

A hearing a id specialist shall not make or

permit to be made a false or misleading

communication about the hearing aid

specialist or the hearing aid specialist's

services. A communication is false or

misleading if it:

(1) Contains a material misrepresentation of

fa ct or law or omits a fact necessary to

make the statement considered as a whole not

materially misleading;

(2) Is likely to create an unjustified

expectation about results the hearing aid

specialist can achieve.

11. At all times material to these cases , Section

484.051(2), Florida Statutes (2000), read as follows:

(2) Any person who fits and sells a hearing

aid shall, at the time of delivery, provide

the purchaser with a receipt containing the

seller's signature, the address of her or

his regular place of business, and her or

his license or trainee registration number,

if applicable, together with the brand,

model, manufacturer or manufacturer's

identification code, and serial number of

the hearing aid furnished and the amount

charged for the hearing aid . The receipt

also shall specify whether the hearing aid

is new, used, or rebuilt and shall specify

the length of time and other terms of the

guarantee and by whom the hearing aid is

guaranteed. When the client has requested

an itemized list of prices, t he receipt

shall also provide an itemization of the

total purchase price, including, but not

limited to, the cost of the aid, earmold,

batteries and other accessories, and any

services. Notice of the availability of

this service shall be displayed in a

co nspicuous manner in the office. The

receipt also shall state that any complaint

concerning the hearing aid and guarantee

therefor, if not reconciled with the

licensee from whom the hearing aid was

purchased, should be directed by the

purchaser to the Depa rtment of Health. The

address and telephone number of such office

shall be stated on the receipt.

12. At all times material to these cases, Section

484.056(1), Florida Statutes (2000), read as follows, in

pertinent part:

(1) The following acts relatin g to the

practice of dispensing hearing aids shall be

grounds for both disciplinary action against

a hearing aid specialist as set forth in

this section and cease and desist or other

related action by the department as set

forth in s. 456.065 against any p erson

owning or operating a hearing aid

establishment who engages in, aids, or abets

any such violation:

* * *

(g) Proof that the licensee is guilty of

fraud or deceit or of negligence,

incompetency, or misconduct in the practice

of dispensing h earing aids.

(h) Violation or repeated violation of this

part or of chapter 456, or any rules

promulgated pursuant thereto.

* * *

(k) Using, or causing or promoting the use

of, any advertising matter, promotional

literature, testimonial, guaran tee,

warranty, label, brand, insignia, or other

representation, however disseminated or

published, which is misleading, deceiving,

or untruthful.

* * *

(n) Representation, advertisement, or

implication that a hearing aid or its repair

is guarante ed without providing full

disclosure of the identity of the guarantor;

the nature, extent, and duration of the

guarantee; and the existence of conditions

or limitations imposed upon the guarantee.

13. In a case of this nature, Petitioner bears the burden

of proving that the licensee engaged in the conduct, and thereby

committed the violations, alleged in the charging instrument.

Proof greater than a mere preponderance of the evidence must be

presented by Petitioner to meet its burden of proof. 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, 294

(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 . . . .").

14. 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). "Although this standard of proof may be met where the

evidence is in conflict, . . . it se ems to preclude evidence

that is ambiguous." Westinghouse Electric Corporation, Inc. v.

Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

15. In determining whether Petitioner has met its burden

of proof, it is necessary to evaluate Petitioner 's evidentiary

presentation in light of the specific factual allegations made

in the charging instrument. Due process prohibits an agency

from taking disciplinary action against a licensee based upon

conduct not specifically alleged in the charging instru ment.

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).

16. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the charging instrument]

to have been violated." Delk v. Department of Professional

Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1 992). In

deciding whether "the statute or rule claimed [in the charging

instrument] 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 Whitake r

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

Re gulations , 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

17. Turning first to the allegations of the administrative

complaint in DOAH Case No. 03 - 0402PL (the case involving patient

S. K.), Petitioner concedes that Counts IV and V of the

administrative complai nt should be dismissed because the greater

weight of the evidence is other than as alleged in those two

counts.

18. Count I of the administrative complaint in Case

No. 03 - 0402PL alleges that Respondent has violated Section

484.056(1)(g), Florida Statutes (2000), "by committing fraud,

deceit, or misconduct in the practice of hearing aid

dispensing." Petitioner describes its theory of the basis for

this allegation as being: ". . . in that his business premises

and dealings with S. K. lead S. K. to believe that the hearing

aids he had purchased were Beltone brand hearing aids." The

evidence in this case is simply insufficient to support such a

view of the matter. 4 There is no clear and convincing evidence

in the record of this case that Respondent committ ed fraud,

deceit, or misconduct in the practice of hearing aid dispensing. 5

Accordingly, Count I of the administrative complaint in DOAH

Case No. 04 - 0402PL should be dismissed.

19. Count II of the administrative complaint in DOAH Case

No. 03 - 0402PL alleg es that Respondent has violated Section

484.056(1)(k), Florida Statutes (2000), "by using, causing or

promoting the use of any representation that is misleading,

deceiving, or untruthful." And Count III of the administrative

complaint in DOAH Case No. 03 - 0402PL alleges that Respondent has

violated Section 484.056(1)(h), Florida Statutes (2000), "by

violating Rule 64B6 - 7.005(1), Florida Administrative Code, by

making misleading representations about his services." Although

alleged to constitute separate v iolations of additional

statutory and rule provisions, the alleged conduct which forms

the basis for the allegations in Counts II and III is

essentially the same alleged conduct that forms the basis for

the violation alleged in Count I. Reduced to their s implest

terms, all three of these counts allege that Respondent misled

S. K. and misrepresented facts to S. K. so as to deceive S. K.

into believing that he was purchasing Beltone brand hearing aids

when, in fact, Respondent was selling another brand of he aring

aids to S. K. Counts II and III fail for the same reason as

Count I; namely, there is no clear and convincing evidence that

the Respondent misled S. K., misrepresented any material facts

to S. K., or deceived S. K. Accordingly, Counts II and III of

the administrative complaint in DOAH Case No. 03 - 0402PL should

also be dismissed.

20. The remaining case is more quickly and easily disposed

of. The administrative complaint in DOAH Case No. 03 - 0403PL

(the case involving the patient identified as M. G. ) should be

dismissed because M. G. failed to testify and there was no other

persuasive evidence submitted in support of the allegations of

the administrative complaint in that case. 6

RECOMMENDATION

On the basis of the foregoing findings of fact and

conc lusions of law, it is RECOMMENDED that the Board of Hearing

Aid Specialists enter a Final Order concluding that all counts

in both Administrative Complaints in these two consolidated

cases should be dismissed because the evidence is insufficient

to prove t he violations alleged by clear and convincing

evidence.

DONE AND ENTERED this 24th day of July, 2003, in

Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apa lachee 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 July, 2003.

ENDNOTES

1/ The witness who a ppeared at the hearing at the request of

the Petitioner was S. K., the patient mentioned in the

Administrative Complaint in DOAH Case No. 03 - 0402PL.

2/ The witness who could not be located on May 19, 2003, was

M. G., the patient mentioned in the Administ rative Complaint in

DOAH Case No. 03 - 0403PL.

3/ Respondent filed a motion seeking an enlargement of time

within which to file his proposed recommended order, but then

filed his proposed recommended order prior to any ruling on his

motion. Respondent's proposed recommended order has been

treated as timely - filed.

4/ There is reason to wonder why Respondent had a Beltone sign

or logo at his business premises and there is reason to wonder

why the Beltone name or logo appeared on Respondent's repair

agree ment form ( see Petitioner Exhibit 4), but wondering why is

quite a different thing than being clearly convinced.

5/ In this regard it must be noted that the testimony of the

patient S. K. was unreliable and unpersuasive. S. K. did not

appear to have a c lear recollection of the specific details of

his interactions with Respondent. By way of example, at the

final hearing S. K. did not recognize Respondent and inquired as

to who Respondent was and why Respondent was at the hearing.

6/. Petitioner concede s as much in its proposed recommended

order where it suggests the following as the recommended

disposition of the administrative complaint in DOAH Case

No. 03 - 0403PL: "Since no evidence was submitted in regards to

the complaint involving M. G. that that complaint be dismissed."

COPIES FURNISHED:

Diane L. Guillemette, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

E. Raymond Shope, II, Esquire

1404 Goodlette Road, North

Naples, Florida 34102

Susan Foster, Executive Director

Board of Hearing Aid Specialists

Department of Health

Division of Medical Quality Assurance Boards

4052 Bald Cyress Way, Bin C08

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress W ay, Bin A02

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. John O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallah assee, 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 tha t

will issue the Final Order in this case.