03-003452PL Department Of Health, Board Of Hearing Aid Specialists vs. Kent A. Broy Status: Closed Recommended Order on Thursday, February 5, 2004.

Summary: Petitioner failed to prove the specific factual allegations of the Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

HEARING AID SPECIALISTS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3452PL

)

KENT A. BROY, )

)

Respondent. )

_________________________________)

RECOMMENDED OR DER

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

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, in West Palm Beach,

Florida, on November 5, 2003.

APPEARANCES

For Petitioner: Steven Graham, Es quire

Qualified Representative

Office of the Attorney General

110 South East 6th Street, 9th Floor

Fort Lauderdale, Florida 33301

and

Lee Ann Gustafson, 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 ISSUE

The issue in this case is whether Respondent, Kent A. Broy,

committed the violations alleged in an Administrative Complaint

filed with by Petitioner, the Department of Health, on April 11,

2003, and, if so, what disciplinary action should be taken

against him.

PRELIMINARY STATEMENT

On or about April 11, 2003, a five - count Administrative

Complaint against Kent A. Broy, a Florid a - licensed hearing aid

specialist was filed with the Department of Health. On or about

July 2, 2003, Mr. Broy, through counsel, filed a Request for

Formal Hearing with Petitioner, indicating that he disputed the

allegations of fact contained in the Admini strative Complaint

and requesting a formal administrative hearing pursuant to

Section 120.569(2)(a), Florida Statutes (2003). On

September 22, 2003, the matter was filed with the Division of

Administrative Hearings, with a request that the case be

assigne d to an administrative law judge. The matter was

designated DOAH Case No. 03 - 3452PL and was assigned to the

undersigned.

The final hearing was scheduled by Notice of Hearing

entered October 2, 2003, for November 5, 2003.

At the commencement of the final h earing Petitioner

dismissed Count IV of the Administrative Complaint. Petitioner

then presented the testimony of G.H., J.H., Neil Bailes, and

Respondent. 1 Petitioner offered nine exhibits for

identification. Petitioner's Exhibits 1, 2, 3, and 8 were

adm itted. 2 Petitioner's Exhibit 9 was used for demonstrative

purposes only. Petitioner's other exhibits were not offered.

Respondent offered no evidence. 3

By Notice of Filing of Transcript issued December 17, 2003,

the parties were informed that the one - vo lume Transcript of the

final hearing had been filed on December 17, 2003. The parties,

pursuant to agreement, therefore, had until January 6, 2004, to

file proposed recommended orders. On January 5, 2004,

Respondent filed an Amended Motion for Enlargemen t of Time

seeking an extension until February 5, 2004, to file proposed

recommended orders. The Amended Motion was granted, in part, by

an Order entered January 5, 2004, giving the parties until

January 16, 2004, to file their proposed recommended orders. On

January 6, 2004, Petitioner filed a Motion to Vacate Order

Granting Enlargement of Time. Petitioner suggested that the

basis given by Respondent for his requested extension of time

was incorrect and that any extension should be limited to

January 12, 2004. Having failed to explain any prejudice caused

by allowing the parties an additional four days to file their

proposed orders, the parties were informed that the Motion to

Vacate was denied.

Respondent filed Respondent's Proposed Recommended Order on

January 16, 2004. Respondent filed Petitioner's Proposed

Recommended Order on January 20, 2004. 4 A Motion to Accept Late

Filing of Petitioner's Proposed Recommended Order was filed by

Petitioner and a Motion to Strike Petitioner's Proposed

Recommended O rder was filed by Respondent on January 20, 2004.

On January 21, 2004, Respondent filed a Notice of Withdrawal of

Motion to Strike. Petitioner's Motion to Accept Late Filing of

Petitioner's Proposed Recommended Order is hereby granted.

The post - hearing s ubmittals of both parties have been fully

considered in entering this Recommended Order.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, the Department of Health (hereinafter

referred to as the "Department"), is the agency of the State of

Florida charged with the responsibility for the investigation

and prosecution of complaints involving hearing aid specialists

licensed to practice in Florida.

2. Respondent, Kent A. Broy, is, and was at the times

material to this matter, a hearing aid specialist license d to

practice in Florida, having been issued license number AS2169 on

April 13, 1989. 5

B. The Administrative Complaint .

3. On April 11, 2003, an Administrative Complaint, DOH

Case No. AS 2001 - 19941, was filed with the Department against

Mr. Broy. Mr. Br oy disputed the issues of fact alleged in the

Administrative Complaint and requested a formal administrative

Hearing by a Request for Formal Hearing filed with the

Department on Mr. Broy's behalf by counsel.

4. The remaining four counts of the Administrat ive

Complaint, Counts I, II, III, and V, allege violations of

subsections of Section 484.056(1), Florida Statutes: Section

484.056(1)(g) (Count I); (j) (Count II); (w) (Count III); and

(m) (Count V).

5. All four counts include the following introductory

sentence: "Petitioner realleges and incorporates herein by

reference the facts alleged in paragraphs 1 - 16 [of the

Administrative Complaint]." Paragraphs 1 through 6 are general

allegations which were admitted by Mr. Broy.

C. Patient G.H.

6. Patient G.H ., who was 88 years of age at the time,

visited a business known as Audibel Hearing Care Center

(hereinafter referred to as "Audibel") 6 and located at 1620 North

U.S. Highway 1, Jupiter, Florida, on October 24, 2001, a

Tuesday. G.H. was accompanied by his wife, J.H.

7. G.H. went to Audibel to determine whether he needed

hearing aids.

8. Mr. Broy, who G.H. assumed was a licensed hearing aid

specialist, assisted G.H. 7

9. As alleged in the Administrative Complaint, G.H. agreed

to purchase a pair of "in the ear" hearing aids for $6,810.00.

10. Mr. Broy attempted to make molds of the G.H.'s ear

canals so that the hearing aids G.H. had agreed to purchase

could be ordered. Molding material was placed in G.H.'s ear,

but when it was removed it was found to be c overed with wax.

11. Mr. Broy attempted to remove the wax from G.H.'s ear

with some type of instrument. This caused pain in G.H.'s ear,

so the effort was discontinued. Mr. Broy then gave G.H. some

oil to use to attempt to soften the wax, and he schedule d G.H.

to return the next week.

12. In furtherance of the sale and purchase of the hearing

aids, G.H. signed a Purchase Agreement. The Agreement states

that G.H. was purchasing 2 "Merc CIC Dig" hearing aides at

$4,200.00 each ($8,400.00 total) less a 20% discount, leaving a

discounted price of $6,720.00 plus a $90.00 administration fee.

13. The Purchase Agreement includes, in part, the

following regarding return of the hearing aids:

Return Policy - . . . . Purchaser may

return the hearing aid(s), so lon g as the

hearing aid(s) is returned to the seller

within the 30 day trial period in good

working condition. A return claim form may

be obtained from the distributor at the

location checked on the face of this

agreement. A request for return must be

submi tted in writing, within 30 days. . . .

.

14. The distributor identified on the face of the Purchase

Agreement was Audibel. The Purchase Agreement did not identify

the guarantor for the refund. No hearings aids, however, were

delivered to G.H. at the ti me he signed the Purchase Agreement

or anytime subsequent thereto.

15. G.H. paid the full purchase price, charging the full

price to a credit card.

16. Shortly after executing the Purchase Agreement, G.H.

decided that he did not want the hearing aids 8 an d he returned to

Audibel. He told Mr. Broy that he no longer wanted the hearing

aids. 9

17. G.H., not receiving satisfaction from Mr. Broy,

ultimately challenged the amount he paid for the hearing aids

with his credit card company. He was refunded the $6 ,810.00

charge. On January 9, 2002, Mr. Broy charged $630.00 to G.H.'s

credit card. That amount has not been refunded.

18. During the investigation of this matter, Neil Bailes,

an investigator for the Agency for Health Care Administration,

who had never met or spoken to Mr. Broy in person, spoke to

someone whom he believed was Mr. Broy. The individual he spoke

with told him that records relating to G.H.'s purchase and

subsequent return of hearing aids were in G.H.'s possession,

and, therefore, he could not provide those records. 10

CONCLUSIONS OF LAW

A. Jurisdiction .

19. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statute s (2003).

B. The Charges of the Administrative Complaint .

20. The grounds proven in support of the Department's

assertion that Mr. Broy's license should be revoked or suspended

are limited to those specifically alleged in the Administrative

Complaint. S ee , e.g. , Hamilton v. Department of Business and

Professional Regulation , 764 So. 2d 778 (Fla. 1st DCA 2000);

Cottrill v. Department of Insurance , 685 So. 2d 1371 (Fla. 1st

DCA 1996); Kinney v. Department of State , 501 So. 2d 129 (Fla.

5th DCA 1987); and H unter v. Department of Professional

Regulation , 458 So. 2d 842 (Fla. 2nd DCA 1984).

21. Not only are the statutory grounds upon which the

Department may discipline Mr. Broy's license limited to those

specifically alleged in the Administrative Complaint, b ut the

factual grounds are also so limited. This principle was

explained by the court in Lusskin v. Agency for Health Care

Administration , 731 So. 2d 67, 68 - 69 (Fla. 4th DCA 1999):

We hold, as this court did in Wood , that,

"It is clear from the record t hat

[appellant] did not and could not know with

any reasonable degree of certainty the

nature of any alleged violations or grounds

for revocation of his license until after

[appellee] had offered its evidence at the

hearing." Wood , 325 So.2d at 26. While

appellant may have had some "insight" as to

the grounds upon which the appellee would

seek revocation, this "cannot substitute for

reasonable notice of the charges against

which [appellant] was ultimately expected to

defend." Id.; see also Cottrill v.

De partment of Ins., 685 So.2d 1371, 1372

(Fla. 1st DCA 1996)("Predicating

disciplinary action against a licensee on

conduct never alleged in an administrative

complaint or some comparable pleading

violates the Administrative Procedure

Act."); Delk v. Departm ent of Prof'l

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

1992)("the proof at trial or hearing [must]

be that conduct charged in the accusatorial

document....").

22. The two principles were summarized in Delk v.

Department of Professional Regulation , 59 5 So. 2d 966, 967 (Fla.

5th DCA 1992):

It is a basic tenet of common law pleading

that "the allegata and probata must

correspond and agree." See, Rose v. State ,

507 So.2d 630 (Fla. 5th DCA 1987). This is

basic due process of law and means that not

only mu st the proof at trial or hearing be

that conduct charged in the accusatorial

document, but also that the conduct proved

must legally fall within the statute or rule

claimed to have been violated. Conduct

occurring before the effective date of the

prohibi tion does not meet this standard.

23. The statutory authority for disciplining Mr. Broy's

license is found in Section 484.056(1), Florida Statutes, which

proscribes certain conduct which "constitute grounds for . . .

disciplinary action, as specified in s. 456.072(2)", of a

licensed hearing aid specialist. The specific portions of

Section 484.056(1), Florida Statutes, the Department has alleged

in its Administrative Complaint that Mr. Broy violated are

Section 484.056(1)(g), (j), (m), and (w), Florida St atutes. The

alleged violation of Section 484.056(1)(w), Florida Statutes, is

based upon an alleged violation of Florida Administrative Code

Rule 64B6 - 7.002. It is these provisions and no others that the

Department was required to prove Mr. Broy violated.

24. In support of its allegation in the Administrative

Complaint as to each of the four statutory violations, the

Department states that it "realleges and incorporates herein by

reference the facts alleged in paragraphs 1 - 16." Paragraphs 1

though 6 are general allegations, to which Mr. Broy has

stipulated. Therefore, in order to concluded that Mr. Broy

violated any of the alleged statutory proscriptions of Section

484.056(1), Florida Statutes, the Department was limited to

these alleged facts.

25. Para graphs 7 through 11 of the Administrative

Complaint allege the following facts pertaining to the treatment

of G.H. on October 24, 2001:

7. On October 24, 2001, patient G.H.

visited Respondent at an Audibel Hearing

Care Center located at 1620 North U.S.

Highway 1, Jupiter, Florida.

8. On October 24, 2001, Respondent sold

the patient a pair of "in the ear" hearing

aids for $6,810.00.

9. On October 24, 2001, the patient paid

the full purchase price by having it charged

on a credit card.

10. Resp ondent was unable to make a mold

for the hearing aids on October 24, 2001,

because the patient had impacted ear wax in

his right ear.

11. Respondent attempted to remove the

wax with a metal probe but could not,

provided the patient with some oil to sof ten

the wax, and rescheduled the patient to

return the next week.

26. Paragraphs 12 and 13 of the Administrative Complaint

allege the following facts pertaining to the Purchase Agreement:

12. The sales receipt Respondent provided

the patient at the ti me of sale advised the

patient concerning the patient's right to a

refund that "A return claim form may be

obtained from the distributor at the

location checked on the face of this

agreement. A request for return must be

submitted in writing, within 30 da ys."

13. As a matter of law, a written request

for a refund was not required for a hearing

aid sold in the establishment on the date of

sale.

27. Paragraph 14 of the Administrative Complaint alleges

the following pertaining to the use of a fictitious name:

14. Respondent used an unregistered

fictitious name "Audibel Hearing Care

Centers" on the sales receipt provided to

the patient as the business from which the

patient was buying the hearing aids.

28. Paragraph 15 of the Administrative Complaint , which

alleged facts that related primarily to Count IV of the

Administrative Complaint, alleges the following:

15. The sales receipt provided by

Respondent did not contain or identify the

guarantor for the 30 day refund privilege.

29. Finally, parag raph 16 of the Administrative Complaint

alleges facts pertaining to the investigation by the Department

of G.H.'s purchase:

16. During the investigation of the

complaint, Respondent advised the Agency for

Hearing Care Administrator (AHCA)

investigator t hat Respondent would not and

could not provide AHCA with the patient

G.H.'s patient records because Respondent

had given them all to the patient.

C. The Burden and Standard of Proof .

30. The Department seeks to impose penalties against

Mr. Broy through the Administrative Complaint that include

suspension or revocation of his license and/or the imposition of

an administrative fine. Therefore, the Department has the

burden of proving the specific allegations of fact that support

its charges against Mr. Br oy by clear and convincing evidence.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

Pou v. Department of Insurance a nd Treasurer , 707 So. 2d 941

(Fla. 3d DCA 1998); and §120.57(1)(j), Fla. Stat. (2003).

31. What constitutes "clear and convincing" evidence was

described by the court in Evans Packing Co. v. Department of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

(Fla. 1st DCA 1989), as follows:

. . . [C]lear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence 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

the firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be e stablished.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

6 52 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

D. Fraud or Deceit, or Negligence, Incomptency, or

Misconduct in the Practice of Dispensing Hearing Aids .

32. Count I alleges that Mr. Broy violated Section

484.056(1)(g), Florida Statutes, which allows di sciplinary

action of a licensee upon:

(g) Proof that the licensee is guilty of

fraud or deceit or of negligence

incompetency, or misconduct in the practice

of dispensing hearing aids.

33. In Petitioner's Proposed Recommended Order, the

Department has alleged that Mr. Broy violated Section

484.056(1)(g), Florida Statutes, "for the following reasons,

individually, collectively, or in any combination thereof:"

(A) Inserting the molding material into

G.H.'s ear before inspecting the ear for wax

and ther eby causing the ear wax to become

more impacted; or by inspecting the ear

first, discovery the ear wax, attempting

unsuccessfully to remove the wax, and then

still going ahead with inserting the molding

material into G.H.'s ear to try to make a

mold, witho ut regard for the fact that doing

this would cause the ear wax to become more

impacted;

(B) Failing to refer G.H. to a physician

to have the ear wax properly removed;

(C) Relying on the results of a hearing

test to recommend what particular type of

hearing aids to sell patient G.H., even

after discovering that G.H. had too much wax

in his ears for the hearing test to be

reliable;

(D) Failing to maintain the patient's

records for 4 years, or falsely telling

AHCA's investigator that the had give n all

of the patient records to the patient;

(E) Cursing at patient G.H. and treating

G.H. in a highly unprofessional manner when

patient G.H. attempted to cancel the

purchase, as it was the patient's right to

do under Section 484.0512, Florida Statute s.

(F) Refusing to refund any amount of

money to G.H.'s credit card after G.H.

cancelled the price for the hearing aids

that he never received.

(G) Placing an unauthorized charge in the

amount of $630.00 to the patient's credit

card, with an additi onal aggravating factor

being that even if Respondent were entitled

to the maximum 5% cancellation fee and

fitting fee allowed by law, such amount

would have been less than $630.00.

34. The Department's assertion that the foregoing "facts"

support a find ing that Mr. Broy violated Section 484.056(1)(g),

Florida Statutes, is rejected. For the Department to take

action against Mr. Broy based upon these alleged facts would be,

as stated in Cottrill , to take "disciplinary action against a

licensee on conduct never alleged in an administrative

complaint." None of the "facts", many of which are not even

supported by the record in this case, 11 were alleged in the

Administrative Complaint. They cannot, therefore, form the

basis for disciplinary action against Mr. Broy.

35. As to the specific factual allegations of the

Administrative Complaint, although those allegations were

proved, none support a conclusion that Mr. Broy violated Section

484.056(1)(g), Florida Statutes. 12

E. Misleading, Deceiving, or Untruthfu l Information .

36. Count II alleges that Mr. Broy violated Section

484.056(1)(j), Florida Statutes, which allows disciplinary

action of a licensee for:

(j) Using, or causing or promoting the

use of, any advertising matter, promotional

literature, testi monial, guarantee,

warranty, label, brand, insignia, or other

representation, however disseminated or

published, which is misleading, deceiving,

or untruthful.

37. The facts alleged in the Administrative Complaint,

most of which were proved, do not suppo rt a conclusion that Mr.

Broy violated Section 484.056(1)(j), Florida Statutes. 13

38. In Petitioner's Proposed Recommended Order, the

Department merely alleges that "Respondent is guilty of causing

or promoting the use of representations which are misleadi ng,

deceiving, or untruthful . . ." without suggesting which facts

alleged in the Administrative Complaint support this assertion.

F. Violations of Chapters 456 or 484, Florida Statutes, or

the Rules Adopted Pursuant Thereto .

39. Count III alleges that Mr. Broy violated Section

484.056(1)(w), Florida Statutes, which authorizes disciplinary

action for "[v]iolating any provision of [chapter 484] or

chapter 456, or any rules adopted pursuant thereto." Count III

goes on to alleged that Mr. Broy violated Flo rida Administrative

Code Rule 64B6 - 7.005, which provides:

A hearing aid 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 fact 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 hear ing aid

specialist can achieve.

40. The facts alleged in the Administrative Complaint

support a conclusion that Mr. Broy violated the Rule and,

thereby, Section 484.056(1)(w), Florida Statutes. 14

41. In Petitioner's Proposed Recommended Order, the

Depart ment has merely asserted that "Count III of the

Administrative Complaint has been proven" without any suggestion

as to how Mr. Broy violated Florida Administrative Code Rule

64B6 - 7.005.

G. Failure to Provide Full Disclosure .

42. Count V alleges that Mr. Broy violated Section

484.056(1)(m), Florida Statutes, which allows disciplinary

action of a licensee upon:

(m) Representation, advertisement, or

implication that a hearing aid or its repair

is guaranteed without providing full

disclosure of the identi ty of the guarantor;

the nature, extent, and duration of the

guarantee; and the existence of conditions

or limitations imposed upon the guarantee

43. The facts alleged in the Administrative Complaint do

not support a conclusion that Mr. Broy violated Sec tion

484.056(1)(m), Florida Statutes. The only fact which apparently

relates to Count V is the allegation of paragraph 15 of the

Administrative Complaint. Section 484.051(2), Florida Statutes,

requires that a receipt with guarantor identification is to b e

provided "at the time of delivery" of the hearing aid. No such

delivery was made in this case.

44. In Petitioner's Proposed Recommended Order, the

Department has merely asserted that "Count V of the

Administrative Complaint has been proven" without any suggestion

as to how Mr. Broy violated Section 484.056(1)(m), Florida

Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the a final order be entered by the Board

of Hearing Aid Specialist dismi ssing the April 11, 2003,

Administrative Complaint against Kent A. Broy.

DONE AND ENTERED this 5th day of February, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

LARRY J. SARTIN

Administrative Law Judge

D ivision 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 5th day of February, 2004.

ENDNOTES

1 / Other th an giving his name, Respondent invoked his Fifth

Amendment rights under the Florida and United States

Constitutions in response to all other questions, on advice of

counsel.

2 / At the commencement of the hearing, Petitioner offered all

of its exhibits fo r identification and as evidence.

Petitioner's Exhibit 1 was accepted into evidence and a ruling

was reserved on the other exhibits until they were properly

identified and authenticated. Petitioner subsequently offered

Petitioner's Exhibits 2 and 3, used Petitioner's 5 to refresh a

witnesse's memory, and the author of Petitioner's Exhibit 8,

which is a page out of Petitioner's Exhibit 1, was separately

identified. Petitioner's Exhibits 4 through 7 were not

authenticated or identified. Nor were they not o ffered into

evidence.

3 / Respondent requested that judicial notice be taken of prior

Board of Hearing Aid Specialist opinions concerning the

definition of the sale of hearing aids and specific sections of

Chapter 484, Florida Statutes. The request as to the opinions

was denied, with leave for the parties to file memoranda

addressing the issue, which neither of the parties have done.

The request for judicial notice of sections of Chapter 484,

Florida Statutes, identified in the Transcript of the final

he aring, was granted.

4 / Petitioner's Proposed Recommended Order was faxed to, and

received by the Division of Administrative Hearings on

January 16, 2004, a Friday, six minutes after 5:00 p.m.

Therefore, it was treated as having been filed on the next

bu siness day, January 20, 2004, a Monday.

5 / Mr. Broy stipulated to the correctness of the allegations of

paragraphs 1 through 6 of the Administrative Complaint and those

paragraphs are hereby accepted and incorporated into this

Recommended Order to the ex tent not otherwise specifically

included.

6 / Although the evidence proved that Mr. Broy used the name

"Audibel Health Care Center," the evidence failed to prove that

the name was not registered. The only proof concerning

registration of the name (Petiti oner's Exhibit 4) was not

offered into evidence, was not authenticated or identified, and,

even if admitted, constitutes hearsay.

7 / The Department included a number of proposed findings of

fact concerning what transpired between Mr. Broy and G.H. Those

proposed findings, which are found in 10, 11, 15, 16, and 17 of

Petitioner's Proposed Recommended Order, however, are not facts

alleged in the Administrative Complaint and, therefore, are not

relevant.

8 / The evidence failed to prove why G.H. decided to cancel the

Purchase Agreement. Nor is this a relevant fact. Respondent's

suggestion that G.H. decided to cancel the agreement because he

discovered he could acquire them cheaper elsewhere is based upon

hearsay evidence and, therefore, rejected.

9 / The Department included proposed findings of fact concerning

Mr. Broy's reaction to G.H.'s decision to cancel the Purchase

Agreement. Those findings of fact, found in paragraphs 27, 28,

and 29 of Petitioner's Proposed Recommended Order are not facts

alleged in the Administrative Complaint and, therefore, are not

relevant.

10 / The Department's suggestion in its Proposed Recommended

Order that Mr. Broy's statement concerning the records requested

by Mr. Bailes was "misleading, deceiving, or untruthful" is not

a fact alleged in the Administrative Complaint and is not

supported by the evidence.

11 / Some of the "facts" relied upon by the Department in

Petitioner's Proposed Record were not proved by clear and

convincing evidence because there was not sufficient ev idence on

the matter or because there was a lack of expert testimony to

support them.

12 / The Department, having failed to suggest in Petitioner's

Proposed Recommended Order that the facts it actually alleged in

the Administrative Complaint support a find ing that Mr. Broy

violated Section 484.052(1)(g), Florida Statutes, apparently

concedes this conclusion.

13 / Mr. Broy addresses the only possible facts alleged in the

Administrative Complaint which could support a finding that

Mr. Broy violated Section 48 4.056(1)(j), Florida Statutes, and

why those facts do not support a finding that a violation

occurred in paragraph 23 of Respondent's Proposed Recommended

Order. The arguments contained in that paragraph are hereby

accepted and incorporated into this Reco mmended Order by this

reference.

14 / Again, Mr. Broy has addressed the only possible facts

alleged in the Administrative Complaint which could support this

alleged violation and why those facts do not support a finding a

violation occurred in paragraph 24 of Respondent's Proposed

Recommended Order. The arguments contained in that paragraph

are hereby accepted and incorporated into this Recommended Order

by this reference.

COPIES FURNISHED:

Steven Graham, Esquire

Qualified Representative

Office of the Attorney General

110 South East 6th Street, 9th Floor

Fort Lauderdale, Florida 33301

Lee Ann Gustafson, 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 34103

Susan Foster, Executive Director

Board of Hearing Aid Specialists

Department of Health

4052 Bald Cypress Way, Bin C08

Tallahassee, Florida 32399 - 1701

Dr. John O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Depar tment of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the rig ht 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.