03-000404PL Department Of Health, Board Of Hearing Aid Specialists vs. Donald Stephens Status: Closed Recommended Order on Wednesday, June 25, 2003.

Summary: Respondent failed to timely refund money for hearing aids which had been returned.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

HEARING AID SPECIALISTS, )

)

Petitioner, )

)

vs. ) Case Nos. 03 - 0404PL

) 03 - 0405PL

DONALD STEPHENS, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on May 5, 2003, in Lakeland, Florida, before Susan B. Kirkland,

a designated Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARAN CES

For Petitioner: Diane L. Guillemette, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: E. Raymond Shope, II, Esquire

1404 Goodlette Road, North

Naples, Florida 34102

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 484.051(2),

484.056(1)(g), 484.056(1)(h), 484.056(1)(k), 484.053(1)(f),

484.053(3), 455.624(1)(j), and 484 .0512(l), Florida Statutes, 1

and Rule 64B6 - 6.010, Florida Administrative Code, and, if so,

what discipline should be imposed.

PRELIMINARY STATEMENT

On April 25, 2001, Petitioner, Department of Health

(Department), filed a four - count Administrative Compla int

against Respondent, Donald Stephens (Stephens), 2 alleging that

Stephens violated Subsections 484.0512(1), 484.056(1)(h),

484.051(2), and 484.056(1)(k), Florida Statutes, and Rule 64B6 -

6.010, Florida Administrative Code. 3 The Department also filed a

th ree - count Administrative Complaint against Stephens on

April 25, 2001, alleging that Stephens violated

Subsections 484.056(1)(g), 484.053(1)(f), 484.053(3),

484.056(1)(h), and 455.624(1)(j), Florida Statutes. Stephens

filed an Answer to Complaint, answeri ng the allegations

contained in both Administrative Complaints. The cases were

forwarded to DOAH, where the cases were assigned DOAH Case

Nos. 04 - 0404PL and 04 - 0405PL, respectively. By Order of

Consolidation dated February 17, 2003, the cases were

consol idated.

The final hearing was scheduled for April 1, 2003. On

March 18, 2003, Respondent filed Respondent's Motion for

Continuance, which was granted. The final hearing was

rescheduled for May 5, 2003.

The parties filed a Pre - Trial Stipulation and stipu lated to

certain facts in section (e) of the Pre - Trial Stipulation.

Those facts have been included in this Recommended Order.

At the final hearing, Petitioner called Joseph Stephen

Wright, J.F., and O.G. Petitioner's Exhibits 1 through 17 were

admitted i n evidence. Respondent testified on his own behalf.

Respondent's Exhibit 2 was admitted in evidence.

Respondent proffered Respondent's Exhibit 1, relating to

Respondent's discharge in bankruptcy. The parties briefed the

issue of whether the discharge i n bankruptcy could be considered

in this proceeding. An order was entered on May 27, 2003,

admitting Respondent's Exhibit 1 in evidence and allowing the

testimony given at the final hearing on the issue of

Respondent's discharge in bankruptcy.

Neither par ty ordered a transcript of the final hearing.

At the final hearing the parties agreed to file their proposed

recommended orders on or before June 2, 2003. Respondent filed

his Proposed Recommended Order on June 2, 2003. Petitioner

filed its Proposed Rec ommended Order on June 10, 2003, and did

not request an extension of time to file its Proposed

Recommended Order. On June 12, 2003, Respondent filed a Motion

to Strike Petitioner's Proposed Recommended Order as being

untimely filed. The Motion to Strike is GRANTED.

FINDINGS OF FACT

1. Stephens is and has been, at least since March 1999, a

licensed Hearing Aid Specialist. His license number is AS

0002599.

2. On April 26, 1999, O.G. purchased a pair of hearing

aids from Stephens. The total price of the hearing aids was

$3200. O.G. paid $1600 using his Visa credit card on April 26.

The hearing aids were delivered by Stephens to O.G. on May 14,

1999, at which time O.G. paid the remaining $1600 by Visa credit

card.

3. O.G. was not happy with the hearin g aids and returned

to Stephens' place of business, Hearing World, sometime in

June 1999. Stephens convinced O.G. to try a different pair of

hearing aids instead of getting a refund. O.G. agreed, and

Stephens ordered a new pair of hearing aids, which Ste phens

delivered on June 30, 1999.

4. O.G. was not happy with the second pair of hearing aids

and again returned them to Hearing World. Stephens persuaded

O.G. to try another set of hearings aids. By letter dated

July 26, 1999, Stephens advised as follow s:

This letter is to confirm that:

When you receive your remade instruments on

or before August 15, 1999, you will have 30

days to try them without penalty. Should

you decide that you wish to return them for

a refund you may do so and receive a full

re fund of your investment.

Further, should you need an extension of the

trial it will be granted based on your

request before the original trial expires.

O.G. agreed to Stephens' proposition. The third set was

delivered on August 14, 1999.

5. The third s et of hearing aids was also unacceptable to

O.G. Stephens ordered a fourth pair and delivered them to O.G.

on October 1, 1999. O.G. was not satisfied with the fourth pair

and asked for a refund. On November 19, 1999, O.G. received a

letter from Stephens stating:

We are in receipt of your request for

cancellation. I do accept this letter as

your notice. We are very sorry that we were

not able to satisfy your hearing needs. We

are having a very difficult time financially

at this time and will not be abl e to refund

your money as timely as you would like.

However, we do owe you a refund and will

take care of it as soon as we are

financially able to do so. The refund time

is running about 8 weeks.

6. O.G. did receive $300 from Stephens as part of the

re fund. Stephens made no further payments to O.G.

7. On February 15, 1999, Joseph Wright (Wright) applied to

the Department for admittance to the hearing aid specialist

training program and was approved for the training program

period March 12, 1999, throu gh September 11, 1999. The notice

from the Department to Wright advising him that he was approved

for the training program stated: "A trainee may continue to

function as a trainee until receipt of the examination grade

results."

8. Stephens was Wright's sponsor. As part of the training

program, Stephens taught Wright, using text books and hands - on

training. Stephens showed Wright how to make molds and do

fittings. As Wright progressed, he was allowed to make the

molds and do fittings by himself. Wrig ht would show the molds

to Stephens after Wright completed them. If Wright had trouble

fitting a client, Stephens would come and assist Wright.

Generally Stephens was in the office when Wright did fittings.

9. After completing the six - month training pro gram, Wright

took the Hearing Aid Specialist Examination in September 1999.

Wright did not pass the examination. On October 29, 1999, the

Department mailed Wright the notice that he had not passed the

examination. The evidence did not establish when Wri ght

received the notification that he had failed the examination.

Nor did the evidence establish when Stephens became aware that

Wright had failed the examination.

10. At least by April 14, 2000, Wright was aware that he

had failed the examination becaus e on that date he again applied

with the Department to enter the hearing aid specialist program

under Stephens' sponsorship. Stephens was also aware by

April 14, 2000, that Wright had failed the examination because

Wright's application included a signed s tatement from Stephens

dated April 14, 2000, indicating that he would be Wright's

sponsor. The Department admitted Wright to the training program

for the period April 22, 2000, through October 21, 2000. The

dates for his examination were January 19 and 2 0, 2001.

11. In February 2000, J.F. received an advertisement from

Hearing World, advertising free hearing examinations. On

March 2, 2000, J.F. went to Hearing World for the free

examination. He did not see Stephens and was helped by Wright.

J.F. sig ned a written purchase agreement to purchase two hearing

aids from Hearing World for $5,700. Wright performed the

examination, made the molds for the hearing aids, and signed the

purchase agreement on behalf of Hearing World. J.F. gave Wright

a check for $5,700 on March 2, 2000, as payment in full for the

hearing aids.

12. On March 23, 2000, Wright delivered the hearing aids

to J.F. and signed the purchase agreement as having delivered

the hearing aids. Stephens was not physically present in the

room wi th Wright and J.F. at the time the delivery was made.

The purchase agreement did not contain the signature and license

number of Stephens. The written purchase agreement provided:

The purchaser agrees to wear the hearing

aid(s) for a period of 30 days fr om the date

of delivery. In the event that the

purchaser decides to return the hearing

aid(s), they must be returned to the

specialist of record in new working order,

on or before the 30th day of possession.

Upon receipt of the hearing aid(s) Hearing

Wor ld will refund the purchase price, less

mold and dispensing fees (mold fee $150 for

one aid, $200 for a set. In addition, a 5%

of the purchase price - dispensing fee may be

retained).

13. J.F. tried wearing the hearing aids but experienced

vertigo when us ing them. He talked to Wright on April 3 and

explained the problem he was having with the hearing aids and

indicating he wanted to return the hearing aids for a refund.

Wright explained to J.F. that only Stephens had the authority to

make a refund. J.F. met with Stephens on April 12, 2000.

Stephens explained that he had a cash flow problem and could not

make a full refund at that time. It was agreed that J.F. would

return one of the hearing aids and try to wear the other one.

14. On April 14, 2000, J. F. returned to Hearing World and

explained to Stephens that the use of one hearing aid did not

solve the vertigo problem that he was experiencing. J.F.

returned the other hearing aid and asked for a complete refund.

Stephens told J.F. that he did not hav e the funds to make a full

refund and gave J.F. $100. Stephens made no further payments to

J.F. for the refund on the hearing aids.

15. Stephens filed a petition for bankruptcy on

September 27, 2000. A Discharge of Debtor was entered on

January 8, 2001, in In Re: Stephens, Donald Lane ,

Case No. 00 - 14949 - 8W7, United States Bankruptcy Court Middle

District of Florida, Tampa Division. J.F. and O.G. were listed

as creditors holding unsecured nonpriority claims.

CONCLUSIONS OF LAW

16. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. Sections 120.569 and 120.57,

Florida Statutes.

17. The Department has the burden to establish the

allegations in the Administrative Complaints by clear and

convincing evidence. Department o f Banking and Finance v.

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

18. In Count I of Case No. 03 - 0404PL, the Department

alleges that Stephens violated Subsection 484.056(1)(h), Florida

Statutes, which provides that a licensee is subject to

disciplinary action for a violation of any part of Part II of

Chapter 484, Florida Statutes, by violating Subsection

484.0512(1), Florida Statutes, by failing to refund the money

O.G. paid for his hearing aids within 30 days of delivery of the

hearing aids.

19. Section 484.0512(1), Florida Statutes, provides:

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 dur ing 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.

20. The Department has established by clear and convincing

evidence that Stephens violated Subsection 484.0512(1), Florida

Statutes. O.G. had four different sets of hearing aids. Each

time a new set of hearing aids was delivered, Stephens extended

the refund time for anot her 30 days. O.G. received the last set

of hearing aids on October 1, 1999, and returned them to

Stephens the same month. Stephens acknowledged in a letter

dated November 19, 1999, that O.G. had returned the hearing aids

and was due a refund. O.G. recei ved $300 from Stephens and

never received any further payment. Stephens failed to refund

all monies to O.G. within 30 days of O.G.'s return of the

hearing aids.

21. In Count II of the Administrative Complaint in

Case No. 03 - 0404PL, the Department alleges that Stephens

violated Subsection 484.051(2), Florida Statutes, by failing

to direct O.G. to the Department for any complaints.

Subsection 484.051(2), Florida Statutes, provides that at the

time of delivery, any person who fits and sells hearing aids

sh all provide the purchaser with a receipt stating that any

complaints, if not reconciled with the licensee from whom the

hearing aid was purchased, should be directed by the purchaser

to the Department.

22. In his Proposed Recommended Order, Stephens conce des

that the Department established the violation in Count II by

clear and convincing evidence. Stephens violated Subsection

484.051(2), Florida Statutes.

23. In Count III of the Administrative Complaint in Case

No. 03 - 0404PL, the Department alleges that Stephens violated

Subsection 484.056(1)(k), Florida Statutes, by using a guarantee

in a misleading, untruthful, and deceitful way.

Subsection 484.056(1)(k), Florida Statutes, provides that a

licensee may disciplined for the following:

Using, or causin g or promoting the use of

any advertising matter, promotional

literature, testimonial, guarantee,

warranty, label, brand, insignia, or other

representation, however, disseminated or

published, which is misleading, deceiving,

or untruthful.

24. The Depart ment has failed to establish by clear and

convincing evidence that Stephens violated Subsection

484.056(1)(k), Florida Statutes. The evidence does not

establish that Stephens was attempting to be deceitful,

misleading, or untruthful. Each time that O.G. was not happy

with his hearing aids, Stephens tried to get a pair of hearing

aids that would work for O.G., and, each time he delivered a new

pair, Stephens gave O.G. another 30 - day trial period and

promised a refund if the hearing aids were not satisfacto ry.

Stephens did pay $300 to O.G. but was unable to pay the

remaining amount because he did not have the money. Eventually,

Stephens' money problems led to his bankruptcy.

25. In Count IV of the Administrative Complaint in Case

No. 03 - 0404PL, the Depart ment alleges that Stephens violated

Rule 64B6 - 6.010, Florida Administrative Code, and thereby

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

to provide the address of the Department on the sales receipt.

Rule 64B6 - 6.010(1), Florida Admini strative Code, provides:

The receipt required by Section 484.051(2),

F.S., shall contain the address and

telephone number of the Department of

Health, Consumer Unit, 4052 Bald Cypress

Way, Bin C#75, Tallahassee, Florida, 32399 -

3275, (888)419 - 3456. Failure to provide

this address on the receipt shall be a

violation of this rule subject to

disciplinary action.

26. The Department has established by clear and convincing

evidence and Stephens has conceded in his Proposed Recommended

Order that Stephens violat ed Rule 62B6 - 6.010, Florida

Administrative Code, and Subsection 484.056(1)(h), Florida

Statutes, by failing to include the address and telephone number

of the Department on the sales receipt given to O.G.

27. In the Administrative Complaint in Case No. 03 - 0405PL,

the Department alleges that Stephens allowed Wright, an

unlicensed person, to practice hearing aid dispensing from

March 2000 until April 22, 2000, in that Wright was neither a

licensed hearing aid specialist or a licensed trainee.

Additionally, the Department alleges that Stephens did not

provide a sales receipt to J.F.

28. In Count I of the Administrative Complaint in Case

No. 03 - 0405PL, the Department alleges that Stephens allowed an

unlicensed person to practice hearing aid dispensing and

vi olated Subsection 484.056(1)(g), Florida Statutes, which

provides that a hearing aid specialist may be disciplined if

there is "[p]roof that the licensee is guilty of fraud or deceit

or of negligence, incompetency, or misconduct in the practice of

dispensi ng hearing aids."

29. The Department has failed to establish by clear

and convincing evidence that Stephens violated

Subsection 484.056(1)(g), Florida Statutes. It was not

established that Stephens knew at the time that Wright fitted

and delivered the hearing aids to J.F. that Wright was no longer

a trainee.

30. In Count II of the Administrative Complaint in Case

No. 03 - 0405PL, the Department alleges that Stephens violated

Section 484.056(1)(h), Florida Statutes, which provides that a

licensee may be d isciplined for a violation of Part II of

Chapter 484, Florida Statutes. It further alleges that Stephens

violated Subsection 484.053(1)(f), Florida Statutes, by

knowingly employing an unlicensed person in the practice of

dispensing hearing aids and Subsec tion 484.053(3), Florida

Statutes, which provides for a penalty for a licensee who allows

a sale of a hearing aid by an unlicensed person who is not a

trainee or who fails to comply with the supervision requirements

of Subsection 484.0445(2), Florida Statu tes.

31. The Department has failed to establish by clear and

convincing evidence that Stephens is guilty of a violation of

Subsection 484.053(1)(f), Florida Statutes. Wright, as a

trainee, was allowed to continue as a trainee until he received

his exam ination results. The evidence does not establish that

when Wright fitted J.F. for hearing aids and delivered the

hearing aids to him that Wright had received the examination

results or that Stephens was aware that Wright had received the

examination resul ts.

32. Subsection 484.0445(2), Florida Statutes, provides

that a trainee shall perform the functions of a trainee only

under the direct supervision of licensed hearing aid specialist.

Direct supervision means that the sponsor must give final

approval of the work performed by the trainee and that the

sponsor must be physically present at the time the hearing aid

is delivered to a client.

33. Rule 64B6 - 8.001, Florida Administrative Code, provides

that a sponsor of a hearing aid specialist trainee is

res ponsible for the direct supervision of the trainee. Rule

64B6 - 8.001(3), Florida Administrative Code, defines "direct

supervision" as follows:

A relationship in which the sponsor is

responsible for all work being done and

gives final approval to work perfo rmed by

the trainee. The sponsor or hearing aid

specialist designated by the sponsor must be

physically present in the same room at the

time a hearing aid is delivered to the

client, and the receipt required by Section

484.051, Florida Statutes, must have the

signature and license number of the sponsor

or hearing aid specialist designated by the

sponsor.

34. Stephens was not physically present in the room when

Wright delivered the hearing aids to J.F. and did not sign and

place his license number on the sales receipt. These acts are

violations of Subsection 484.053(3), Florida Statutes; however,

these activities were not included in the Administrative

Complaint and cannot now form the basis for discipline against

Stephens. See Marcelin v. Dept. of Busin ess and Professional

Regulation , 753 So. 2d 745 (Fla. 3rd DCA 2000); Ghani v. Dept.

of Health , 714 So. 2d 1113 (Fla. 1st DCA 1998).

35. In Count III of the Administrative Complaint in Case

No. 03 - 0405PL, the Department alleges that Stephens aided an

unl icensed person to practice hearing aid dispensing in

violation of Subsection 455.624(1)(j), Florida Statutes, which

provides that a licensee may be disciplined for:

Aiding, assisting, procuring, employing,

or advising any unlicensed person or entity

to practice a profession contrary to this

part, the chapter regulating the profession,

or the rules of the department or the board.

36. The Department has failed to establish by clear and

convincing evidence that Stephens violated Subsection

455.624(1)(j), Florida Statutes. No evidence was presented to

establish that either Wright or Stephens knew that Wright had

failed the examination and was no longer eligible for trainee

status. The Administrative Complaint did not allege that

Stephens allowed Wright to deliver hearing aids when Stephens

was not present or that Stephens failed to sign and place his

license number on the sales receipt.

37. Rule 64B6 - 7.002, Florida Administrative Code, sets the

guidelines for the disposition of disciplinary cases for hear ing

aid specialists. It provides that the penalty for a violation

of Subsection 484.051(2), Florida Statutes, ranges from a

reprimand to six months' suspension and an administrative fine

from $500 to $1,000. The penalty range for a violation of

Subsectio n 484.056(1)(h), Florida Statutes, is reprimand to

revocation and an administrative fine of $500 to $1,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a Final Order be entered:

1. In Case No. 03 - 0404PL, finding that Donald Stephens

violated Subsections 484.0512(1) and 484.056(1)(h), Florida

Statutes, as set forth in Count I of the Administrative

Complaint; Subsection 484.051(2), Florida Statutes, as set

forth in Count II of the Administrative Com plaint; and

Subsection 484.056(1)(h), Florida Statutes, and Rule 64B6 - 6.010,

Florida Administrative Code, as set forth in Count IV of the

Administrative Complaint.

2. In Case No. 03 - 0404PL, dismissing Count III of the

Administrative Complaint.

3. In Case No. 03 - 0404PL, issuing a reprimand and imposing

administrative fines of $1,000 for the violations set forth in

Count I, $500 for the violations set forth in Count II, and $500

for the violations set forth in Count IV.

4. In Case No. 03 - 0405PL dismissing the Administrative

Complaint.

DONE AND ENTERED this 25th day of June, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

SUSAN B. KIRKLAND

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 25th day of June, 2003.

ENDNOTES

1/ All references t o the statutes in Chapters 455 and 484,

Florida Statutes, are to the 1999 version.

2/ The style of the Administrative Complaint identified the

Respondent as Don Stephens. Based on the evidence presented at

the final hearing Don Stephens and Donald Steph ens are the same

individual.

3/ In the Administrative Complaint, the Department alleged that

Stephens violated Rule 64B6 - 010, Florida Administrative Code, by

failing to provide the address of the Department of Health,

AHCA, on the sales receipt. It is c lear from reading the

Administrative Complaint that such citation was a scrivener's

error and the correct citation should be Rule 64B6 - 6.010,

Florida Administrative Code, which requires the address of the

Department of Health to be placed on a sales receip t.

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

R. S. Power, Agency Cler k

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

Susan Foster, Executive Director

Board of Hea ring Aid 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.