15-004337 Robert Paul Murphy vs. Board Of Hearing Aid Specialists Status: Closed Recommended Order on Friday, January 22, 2016.

Summary: Petitioner failed to prove that his application to enter into a hearing aid specialist training program should be approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT PAUL MURPHY,

Petitioner,

vs. Case No. 15 - 4337

BOARD OF HEARING AID

SPECIALISTS,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

by video teleconference between sites in Sarasota and

Tallahassee, Florida, on October 12 , 2015, before Linzie F.

Bogan, Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: H. Ri chard Bisbee, Esquire

Law Office of H. Richard Bisbee, P.A.

Suite 206

1882 Capital Circle, Northeast

Tallahassee, Florida 32308

For Respondent: Marlene Katherine Stern, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether PetitionerÓs application to enter into a hearing aid

specialist training program should be app roved.

PRELIMINARY STATEMENT

On April 15, 2014 , Respondent, the Board of Hearing Aid

Specialists ( Respondent/ Board), filed a Notice of Intent to Deny ,

which advised that the Board intended to deny Petitioner Robert

Paul Murphy Ós (Petitioner) application to enter into a hearing

aid specialist training program on the grounds that Petitioner

was convicted or found guilty of crimes related to the practice

of dispensing hearing aids and that Petitioner has not completed

his rehabilitation because he is still s erving probation.

Petitioner timely requested a disputed - fact hearing and the Board

transmitted the matter to the Division of Administrative Hearings

(DOAH) on May 7, 2014 , for assignment of an administrative law

judge. On July 25, 2014, the parties file d a joint motion to

relinquish jurisdiction, which was granted. The Board

reconsidered its previous denial of PetitionerÓs Application and

again voted to deny the same. The case was again transmitted to

DOAH for a disputed - fact hearing and re - assignment of an

administrative law judge.

At the hearing, Petitioner presented the testimony of Denise

Parrish, Randy Morton, and testified on h is o wn behalf.

Respondent presented, through deposition transcripts, the

testimony of Susan Foster, executive director of the Board, and

Sharon Yordon, its expert witness.

Joint Exhibits 1 through 11 were admitted into evidence.

PetitionerÓs Exhibit 1 and RespondentÓs Exhibit 1 were each

admitted into evidence.

The T ranscript from the disputed - fact hearing was filed with

DOAH on November 13, 2015. The partiesÓ request for additional

time to file proposed recommended orders was g ranted, and each

party filed a proposed recommended o rder.

FINDING S OF FACT

1. On or about October 16, 2013, Petitioner submitted to the

Board a Hearing Aid Specialists Training Program Registration

Application (Application). In response to section 6 of the

Application, Petitioner answered ÐyesÑ to the question regarding

his criminal history.

2. Respondent determined that PetitionerÓs Applicati on

should be denied. Respondent believes that denial of PetitionerÓs

Application is appropriate because Petitioner was convicted of

crimes which relate to the practice of , or the ability to

practice , dispensing hearing aids. In support of its denial of

P etitionerÓs application, Respondent notes that Petitioner Ðwas

found guilty of 92 felonies including racketeering, grand theft,

and sale of unregistered securities, . . . was sentenced to prison

time and probation covering a time period of 30 years, . . . and

[Petitioner] has not completed his rehabilitation in that he is

still serving probation.Ñ

3 . On or about December 2, 1999, Petitioner entered a plea

of nolo contendere to 92 felony counts. The Circuit Court,

Twelfth Judicial Circuit, in and for Mana tee County, Florida,

accepted PetitionerÓs plea and adjudicated him guilty of:

a. One felony count of racketeering

(§§ 895.02(3) and 895.03, Fla. Stat.

(1996));

b. 31 felony counts of grand theft

(§ 812.014, Fla. Stat. (1996));

c. 30 felony count s of sale of

unregistered securities (§§ 517.12 and

517.301, Fla. Stat. (1996)); and

d. 30 felony counts of sale of

securities by an unregistered dealer

(§§ 517.12 and 517.302, Fla. Stat.

(1996)).

4 . Petition er served three years in prison and was pla ced on

probation for a period of 27 years. Petitioner will be on

probation until 2029, and he owes $898,000 dollars in restitution.

5 . Sharon Yordon was accepted as RespondentÓs expert for

purposes of providing an opinion as to how Mr. MurphyÓs crimina l

background relates to the ability to dispense hearing aids.

Ms. Yordon has been a licensed hearing aid specialist in Florida

since 1984. She has also been licensed by the National Board for

Certification in Hearing Instrument Sciences (NBC - HIS) since 1993.

Ms. Yordon has been on the board of the Florida Society of Hearing

Healthcare Professionals for 22 years, and she is also a member of

the International Hearing Society. She has worked as a hearing

aid specialist in the Tampa Bay area, Daytona Beach , New Smyrna

Beach, and the panhandle of Florida. Currently, in addition to

dispensing hearing aids, she is the north Florida retail manager

for the hearing aid company Beltone, which requires her to manage

eight offices in 11 counties.

6 . Ms. Yordon ha s participated in the training of six

hearing aid specialists, and she has also trained three hearing

aid specialists to take the NBC - HIS examination. She has fit

thousands of people with hearing aids over the course of her

career.

7 . According to Ms. Yo rdon , the elderly comprise a majority

of hearing impaired individuals in Florida. Ms. Yordon Ós opinion

in this regard is bolstered by the fact that the Legislature, in

recognition of the important role that the elderly play in the

hearing aid industry, re quires that the Board of Hearing Aid

Specialists include a lay member who Ðshall be an individual age

65 or over.Ñ £ 484.042(2), Fla. Stat. (2015). 1/

8 . According to Ms. Yordon , hearing loss due to aging,

called presbycusis, is one of the most common cau ses of hearing

loss, and in the elderly hearing loss is often linked with

cognitive dysfunction. Ms. Yordon opined that based on her years

of experience, it is common for a hearing aid specialist to fit

for hearing aids elderly individuals who are cogniti vely impaired.

The Legislature has recognized that elderly individuals who suffer

from cognitive impairment may be vulnerable and in need of

protection. See , gen. , §§ 415.101 - 415.113, Fla. Stat.

9 . An examination to determine the need for a hearing aid

must be conducted in a closed room, separated from any outer

offices, because the examination must meet certain requirements

for sound. The hearing aid specialist or trainee is often alone

in the examination room with the client where sensitive

informati on is often secured from the client.

10 . If the hearing aid specialist determines that a hearing

aid is needed, he or she goes over all the options available to

the particular client. According to Ms. Yordon , elderly clients

cannot always decide which hearing aid to purchase, and they may

not have a sound understanding of their own finances. These

factors could allow an untrustworthy hearing aid specialist to

take advantage of elderly individuals by selling them a more

expensive hearing aid than what t hey need, can afford, or have the

ability to use. Because of the interaction between hearing aid

specialists and clients (especially the elderly), it is necessary

that a hearing aid specialist be trustworthy.

11 . Section 484.0401, Florida Statutes, prov ides as follows:

The Legislature recognizes that a poorly

selected or fitted hearing aid not only

will give little satisfaction but may

interfere with hearing ability and,

therefore, deems it necessary in the

interest of the public health, safety,

and welf are to regulate the dispensing of

hearing aids in this state. Restrictions

on the fitting and selling of hearing

aids shall be imposed only to the extent

necessary to protect the public from

physical and economic harm, and

restrictions shall not be impose d in a

manner which will unreasonably affect the

competitive market.

12 . Section 484.056(1)(d) provides that an application for

licensure as a hearing aid specialist may be denied on the

following grounds:

Being convicted or found guilty of, or

entering a plea of nolo contendere to,

regardless of adjudication, a crime in

any jurisdiction which directly relates

to the practice of dispensing hearing

aids or the ability to practice

dispensing hearing aids, including

violations of any federal laws or

regulat ions regarding hearing aids.

1 3 . Consistent with the legislative goal of protecting the

public from possible economic harm, the screening requirements

found in section 484.056 help to ensure that individuals who are

authorized to dispense hearing aids ar e trustworthy.

1 4 . As previously noted, Petitioner was found guilty of

committing 36 felony violations of section 812.014 (1996), which

provides in part, as follows:

(1) A person commits theft if he or she

knowingly obtains or uses, or endeavors

to obta in or to use, the property of

another with intent to, either

temporarily or permanently:

(a) Deprive the other person of a right

to the property or a benefit from the

property.

(b) Appropriate the property to his or

her own use or to the use of any per son

not entitled to the use of the property.

15 . Section 812.014 is grounded in principles of trust, and

a person who ÐknowinglyÑ acts with the requisite ÐintentÑ to

deprive another of his or her property in violation of the same,

is, by definition, untr ustworthy.

1 6 . Petitioner was convicted of racketeering under sections

895.02(3) and 895.03, Florida Statutes (1996). PetitionerÓs

conviction for racketeering was based on the fact that he was

involved in a criminal enterprise that stole money from a n umber

of individuals. Section s 895.02 and 895.03 are grounded in

principles of trust, and anyone who violates these statutes is

untrustworthy.

17 . Petitioner was found guilty of committing numerous

violations of sections 517.301, 517.302, and 517.12, Fl orida

Statutes (1996).

18 . Section 517.12 requires that any Ðdealer, associated

person, or issuer of securitiesÑ in this state must register with

the appropriate state department and the failure to do so, as

provided in section 517.302, is a felony of t he third degree.

1 9 . Section 517.301 prohibits fraud or deceit in connection

with securities transactions and any person who engages in such

conduct, as provided in section 517.302, commits a felony of the

third degree. Section 517.301 is grounded in p rinciples of trust,

and a person who engages in fraudulent conduct in violation of

section 517.301 is untrustworthy.

20 . A violation of the registration requirements found in

section 517.12 does not, in itself, suggest untrustworthiness.

When, however, t he failure to register as a securities dealer is

coupled with fraudulent conduct, as was done by Petitioner, then

the otherwise benign conduct of failing to register as a

securities dealer takes on the character of untrustworthiness

because of its relatedn ess to the fraud.

21 . Petitioner was incarcerated until 2002. Since his

release from incarceration, Petitioner has remained compliant with

the terms of his probation. One of the conditions of PetitionerÓs

probation is that any violation of the conditi ons of probation

could subject him to arrest, revocation of probation, and further

sentencing.

22. With his Application, Petitioner provided three letters

of support from neighbors who each believe that Petitioner is a

person of integrity. Petitioner als o holds a private pilotÓs

license, which suggests that Petitioner can be trusted to operate

certain types of aircraft.

23. Denise Parrish is a licensed audiologist at the Manatee

Ear Center in Bradenton, Florida, the facility where Petitioner is

currently employed. Dr. Parrish has supervised Petitioner for

approximately two years, and she believes that Petitioner is an

ÐhonestÑ person. Dr. Parrish testified that during the time that

she has supervised Petitioner, he has handled sensitive patient

informat ion, including money, without incident.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

25 . As the applicant for a license , Peti tioner is asserting

the affirmative, and therefore bears the ultimate burden of

proving his entitlement to a license. Fla. Dep't of Transp. v.

J.W.C. Co . , 396 So. 2d 778 (Fla. 1st DCA 1981).

26 . The standard of proof that Petitioner must meet is by a

pre ponderance of the evidence. § 120.57(1)(j), Fla. Stat. The

preponderance of the evidence standard requires proof by "the

greater weight of the evidence" or evidence that "more likely

than not" tends to prove a certain proposition. Gross v. Lyons ,

763 So . 2d 276, 280 n.1 (Fla. 2000).

27. Section 484.045, Florida Statutes (2013), provides as

follows:

(1) Any person desiring to be licensed

as a hearing aid specialist shall apply

to the department on a form approved by

the department.

(2) The department shall license each

applicant who the board certifies: (a)

Has completed the application form and

remitted the required fees;

(b) Is of good moral character;

(c) Is 18 years of age or older;

(d) Is a graduate of an accredited high

school or its equ ivalent;

(e)1. Has met the requirements of the

training program; or

2.a. Has a valid, current license as a

hearing aid specialist or its equivalent

from another state and has been actively

practicing in such capacity for at least

12 months; or

b. Is currently certified by the

National Board for Certification in

Hearing Instrument Sciences and has been

actively practicing for at least 12

months;

(f) Has passed an examination, as

prescribed by board rule; and

(g) Has demonstrated, in a manner

design ated by rule of the board,

knowledge of state laws and rules

relating to the fitting and dispensing

of hearing aids.

(3) A person who fails the examination

may make application for reexamination

to the appropriate examining entity, as

prescribed by board rule.

28. Section 484.0445, Florida Statutes (2013), provides as

follows:

(1) The board shall establish by rule a

training program for a minimum 6 months

in length, which may include a board -

approved home study course.

(2) A trainee shall perform th e

functions of a hearing aid specialist in

accordance with board rules only under

the direct supervision of a licensed

hearing aid specialist. The term

"direct supervision" means that the

sponsor is responsible for all work

being performed by the trainee. The

sponsor or a hearing aid specialist

designated by the sponsor shall give

final approval to work performed by the

trainee and shall be physically present

at the time the hearing aid is delivered

to the client.

(3) The board may limit pursuant to

rul e the number of trainees a hearing

aid specialist may supervise.

(4) The board may, by rule, require

that a licensed hearing aid specialist

acting as a sponsor or as the designee

of a sponsor under this section be

certified by the National Board for

Cert ification in Hearing Instrument

Sciences.

29. Florida Administrative Code Rule 64B6 - 8.002, which

pertains to the qualifications needed for the hearing aid

specialists training program, provides that Ðthe applicant must

not have been found to have violate d Chapter 484, Part II, F.S.

[and] [i]f the applicant has been found to have violated Chapter

484, Part II F.S., then the Board shall determine whether the

applicant may enter the training program.Ñ

30. Section 484.056(1), Florida Statutes (2013), provide s,

in part, as follows:

(1) The following acts constitute

grounds for denial of a license or

disciplinary action, as specified in

s. 456.072(2):

* * * *

(d) Being convicted or found guilty of,

or entering a plea of nolo contendere to,

regardless of ad judication, a crime in

any jurisdiction which directly relates

to the practice of dispensing hearing

aids or the ability to practice

dispensing hearing aids, including

violations of any federal laws or

regulations regarding hearing aids.

31. Ð Where possi ble, courts must give effect to all

statutory provisions and construe related statutory provisio ns in

harmony with one another.Ñ Forsythe v. Longboat Key Beach and

Erosion Control Dist. , 604 So. 2d 452, 455 (Fla. 1992). In

harmonizing section 484.0445 wi th sections 484.045 and 484.056,

it is evident that the eligibility requirements for the training

program are a part of the overall licensure scheme for hearing

aid specialists.

32. One of the requirements for enrollment into the hearing

aid specialist tr aining program is that an applicant must not

have been found guilty of a crime which directly relates to the

practice of dispensing hearing aids or the ability to practice

dispensing hearing aids. This is the crux of the instant

dispute.

33. Subsection ( 4) of s ection 4 84 .04 2 , Florida Statutes,

creating the Board, provides that Ð[a]ll provisions of Chapter

456 relating to the activities of regulatory boards apply to the

[B]oard. Ñ Section 456.072(2)(a), in turn, authorizes the Board

to deny a license appli cat ion for any violation found in s ection

456.072(1).

34. In construing whether a crime is Ðrelated toÑ a

licenseeÓs Ðp racticeÑ within the meaning of s ection 456.072(1),

the First District Court of Appeal, in a case involving

revocation of a chiropractorÓ s license where the burden was on

the agency (as opposed to an application for a license where the

burden is on the Petitioner), observed:

Several cases demonstrate that, although

the statutory definition of a particular

profession does not specifically re fer to

acts involved in the crime committed, the

crime may nevertheless relate to the

profession. In Greenwald v. Department

of Professional Regulation , the court

affirmed the revocation of a medical

doctorÓs license after the doctor was

convicted of soli citation to commit

first - degree murder. 501 So. 2d 740

(Fla. 3d DCA 1987) . The Fifth District

Court of Appeal has held that although an

accountantÓs fraudulent acts involving

gambling did not relate to his technical

ability to practice public accounting,

the acts did justify revocation of the

accountantÓs license for being convicted

of a crime that directly relates to the

practice of public accounting. Ashe v.

DepÓt of ProfÓl Regulation, Bd. of

Accountancy , 467 So. 2d 814 (Fla. 5th DCA

1985) . We held in Rush v. Department of

Professional Regulation, Board of

Podiatry , that a conviction for

conspiracy to import marijuana is

directly related to the practice or

ability to practice podiatry. 448 So. 2d

26 (Fla. 1st DCA 1984) . These cases

demonstrate, in ou r view, that appellee

did not err by concluding DollÓs

conviction was Ðrelated toÑ the practice

of chiropractic medicine or the ability

to practice chiropractic medicine. We

therefore affirm appelleeÓs actions

finding appellant in violation of section

456 .072(1)(c) and revoking appellantÓs

license.

Doll v. DepÓt of Health , 969 So. 2d 1103, 1106 (Fla. 1st DCA

2007).

35. Considering the duties of a hearing aid specialist as

described by Ms. Yordon , together with the probationary terms

imposed upon Petition er for h is 92 felony convictions, as well as

the nature of the offense and holding in Doll , supra , it is

concluded that PetitionerÓs crime s directly relate to h is ability

to practice as a hearing aid specialist. Being a trustworthy

person is essential to the practice of being a hearing aid

specialist , and PetitionerÓs 92 felony convictions, all of which

directly relate to his ability to practice dispensing hearing

aids, demonstrate that he is not trustworthy.

36. In the Notice of Intent to Deny, Responden t noted that

Petitioner Ðwas sentenced to prison time and probation covering a

time period of 30 years [and that he] has not completed his

rehabilitation in that he is still serving probation.Ñ While

there is evidence of record which demonstrates that Pet itioner is

making positive movement towards becoming a trustworthy

individual (to wit, of good moral character) , the undersigned is

of the opinion that PetitionerÓs showing of rehabilitation is

insufficient to overcome the complete loss of trustworthiness

resulting from his numerous felony convictions and lengthy period

of probation. 2/

37. In sum, Petitioner failed to prove that his Application

to enter into a hearing aid specialist training program should be

approved .

RECOMMENDATION

Based on the foregoi ng Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Board of Hearing Aid

Specialists enter a final order denying Robert Paul MurphyÓs

application for licensure as a h earing aid s pecialist.

DONE AND ENTERED this 22nd day of January , 2016 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing ( 850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of January, 2016 .

ENDNOTE S

1/ All subsequent references to Florida Statutes will be to 2015,

unless otherwise indicated.

2/ Counsel for Respondent asserts that because Petitioner is

merely seeking entry into the training program, the issue of

whether Petitioner is of Ðgood moral characterÑ is irrelevant at

this stage of the process. In other words, according to

RespondentÓs counsel, the o nly issue is whether the crimes

committed by Petitioner relate to the practice of being a hearing

aid specialist. CounselÓs assertion is inconsistent with the

BoardÓs Notice of Intent to Deny which clearly indicates that the

Board considered post - convicti on issues related to PetitionerÓs

lack of rehabilitation. The BoardÓs action was consistent with

rule 64B6 - 8.005 which provides, in part, that Ð t he legal

requirements which apply to licensees apply with equal force to

trainees .Ñ It stands to reason, ther efore, that if licensees are

legally required to be of Ðgood moral character,Ñ then trainees

must be also.

COPIES FURNISHED:

Marlene Katherine Stern, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

(eServed )

H. Richard Bisbee, Esquire

Law Office of H. Richard Bisbee, P.A.

Suite 206

1882 Capital Circle, Northeast

Tallahassee, Florida 32308

(eServed)

Susan Foster, Executive Director

Department of Health

Board of Hearing Aid Specialist s

4052 Bald Cypress W ay, Bin C08

Tallahassee, Florida 32399 - 3257

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to s ubmit 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.