15-006246PL Department Of Health, Board Of Hearing Aid Specialists vs. Rosalyn Runae Johnson White, H.A.S. Status: Closed Recommended Order on Thursday, April 14, 2016.

Summary: Respondent's active procurement of significant financial transfers to herself and her company during the course of professional relationship with a 93-year-old man with memory problems constituted exploitation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

HEARING AID SPECIALISTS,

Petitioner,

vs. Case No. 15 - 6246PL

ROSALYN RUNAE JOHNSON WHITE,

H.A.S.,

Respondent.

_______________________________/

RECO MMENDED ORDER

On March 8, 2016, a duly - noticed hearing was held by video

teleconference at locations in West Palm Beach and Tallahassee,

Florida, before F. Scott Boyd, an Administrative Law Judge

assigned by the Division of Administrative Hearings.

APPEAR ANCES

For Petitioner: Octavio Simoes - Ponce, Esquire

Sharmin Royette Hibbert, Esquire

Matthew George Witters, Esquire

Christopher R. Dierlam, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399

For Respondent: Lee Hollander, Esquire

Law Offices of Hollander and Hanuka

2681 Airport Road South, S uite C - 101

Naples, Florida 34112

STATEMENT OF THE ISSUE S

Whether Respondent violated the provisions of chapter 484,

Florida Statutes (2010), 1/ regulating hearing aid specialists, as

alleged in the Third Amended Administrative Complaint, and, if

so, what is the appropriate sanction.

PRELIMINARY STATEMENT

On March 30, 2015, Petitioner, Department of Health

(Petitioner or Department), filed a Third Amended Administrative

Complaint against Ms. Rosalyn Runae Johnson White (Respondent or

Ms. W hite), on behalf of the Board of Hearing Aid Specialists

(Board), alleging that Respondent had violated several sections of

chapter 484 in connection with her interactions with P atient B . P .

Petitioner served Respondent with Requests for Admission,

Interrog atories, and Requests for Production on December 31, 2015.

Respondent did not respond. On February 17, 2016, Petitioner

filed a Motion to Compel Discovery and to Deem Petitioner ' s

Requests for Admissions Admitted. No response to the motion was

filed by Respondent. 2/ The motion was granted , and an Order to

Compel was issued on February 25, 2016, recognizing that the

Requests for Admission were deemed admitted by operation of

Florida Rule of Civil Procedure 1.370 and directing Respondent to

respond to the Interrogatories and Requests for Production.

Respondent did not comply with that O rder.

After several joint motions for continuance were granted, the

case was heard on March 8, 2016. At hearing, Petitioner presented

no live testimony, but offered four e xhibits. Petitioner ' s

Exhibits P - A through P - C and Exhibit P - E were admitted into

evidence, with the caveat that portions of Exhibit P - B were

hearsay and would only be considered to explain or supplement

other competent evidence and could not alone suppor t a finding of

fact. Respondent offered no witnesses or exhibits.

The one - volume Transcript was filed on March 28, 2016. Both

parties filed proposed recommended orders, which were carefully

c onsidered.

FINDING S OF FACT

1. The Department is the state age ncy charged with the

licensing and regulation of health care professionals pursuant to

s ection 20.43 and c hapter 456, Florida Statutes. The Board is

the professional licensing board charged with final agency action

with respect to discipline against heari ng aid specialists

pursuant to chapter 484.

2. At all relevant times, Ms. White was licensed to practice

as a hearing aid specialist in the state of Florida, holding

license number AS 4137. Ms. White was the owner, manager, and

operator of a hearing aid dispensing practice known as Serenity

Sounds Hearing Care Center, Inc.

3. On or about March 7, 2011, Ms. White fitted Patient B.P.

for a set of Audina half - shell hearing aids for which Ms. White

billed B.P. $3,200.00. The sales receipt for this purchase did

not contain the serial number of the hearing aids.

4. When Ms. White fitted Patient B.P. on March 7, 2011,

Patient B.P. was a 9 3 - year - old man.

5. In a Confidential Patient Analysis Chart that B.P. filled

out for Serenity Sounds Hearing Care Center, I nc., he admitted

that he had noticed change s in his ability to remember.

6. On or about July 13, 2011, Ms. White fitted Patient B.P.

with Audina OTE hearing aids for $4,500 .00 . The sales receipt for

this purchase did not contain the serial number of the hearing

aids.

7. On or about October 21, 2011, Patient B.P. presented to

Ms. White with the Audina OTE hearing aids broken into pieces.

8. The broken Audina OTE hearing aids would have been

covered under a loss and damage policy requiring a $100.00

dedu ctible to replace the broken aids.

9. Instead, on or about October 21, 2011, Ms. White sold

Patient B.P. a new pair of hearing aids for $3,000.00.

10. On or about December 20, 2011, Ms. White received a loan

in the approximate amount of $20,000.00 from B .P.

11. On or about January 25, 2012, Ms. White used Patient

B.P. ' s Citi Dividends credit card to purchase three round - trip

airline tickets.

12. On or about February 14, 2012, Ms. White submitted an

application to Citigroup for a Citi Card credit card us ing Patient

B.P. ' s personal information.

13. On or about February 14, 2012, Ms. White submitted an

application to Capital One for a credit card using Patient B.P. ' s

personal information.

14. On or about February 14, 2012, a check in the amount of

$3,000. 00 was written from Patient B.P. ' s account and deposited

into a PNC Bank account belonging to Ms. White ' s business,

Serenity Sounds Hearing Care Center, Inc.

15. On February 17, 2012, Ms. White wrote a letter on behalf

of B.P. The letter confirmed that B .P. had loaned Serenity Sounds

Hearing Care Center, Inc., more than $35,000.00 and stated that

B.P. was changing this " from a loan into a gift. " It stated that

Ms. White could use the money without worrying about having to pay

it back and that any loan ag reements were no longer valid. It

went on to state that Ms. White " is a friend of mine and I want

nothing but what is best for her. " The letter was signed by B.P.

and by Ms. White. 3/

16. On or about F ebruary 22, 2012, Ms. White submitted an

application for an American Express c redit c ard using Patient

B.P. ' s personal information.

17. On that same day, B.P. ' s patient records indicate that a

push button was missing on his hearing aid , and it was turning red

in the charger. Ms. White sent the aids to Rext on for repair.

18. On or about February 28, 2012, Ms. White submitted an

application for a Discover credit card using Patient B.P. ' s

personal information.

19. On or about March 14, 2012, B.P. entered into a

motor vehicle retail installment contract for t he purchase of a

2011 Lexus GS350 automobile, obligating him to pay the sum of

$43,877.00 over a term of 65 months. He also purchased a vehicle

protection etch stencil, a deficiency waiver addendum, 24 - hour

lockout assistance, insurance, and a vehicle ser vice contract for

the automobile.

20. The Lexus GS350 p urchased by Patient B.P. was for

Ms. White ' s use.

21. On or about March 16, 2012, Patient B.P. purchased

$4,277.87 worth of jewelry from Zales for Ms. White.

22. On or about March 17, 2012, Ms. Whit e charged an

additional $693.49 to Patient B.P. ' s American Express credit card

when she exchanged a watch for a bracelet.

23. On or about March 19, 2012, a charge was made to Patient

B.P. ' s Discover credit card for $699.58 at Radio Shack for items

for Ms. White.

24. On or about March 22, 2012, a charge was made to Patient

B.P. ' s Citi Card in the amount of $1,100.00 to Progressive

Insurance for a policy held by Ms. White.

25. An entry in B.P. ' s patient records on March 28, 2012,

shows that the Audina he aring aids were broken in many pieces. It

is noted that B.P. asked about Starkey hearing aids, saying that

his friends wore them.

26. On or about March 31, 2012, a charge was made to Patient

B.P. ' s Discover credit card in the amount of $133.99 to Macy ' s in

Palm Beach Gardens, Florida , for items for Ms. White, for which

she signed the receipt.

27. On or about April 2, 2012, a charge was made to Patient

B.P. ' s Citi Card in the amount of $492.00 to Siemen ' s for a

patient of Ms. White ' s that was not B.P.

2 8. An entry in B.P. ' s patient records on April 3, 2012,

shows that B.P. ' s hearing was retested. The note indicates that

Starkey was called and that they suggested the Starkey " X

Series 90. " The note indicates that B.P. said he would go home

and talk to his wife.

29. An entry in B.P. ' s patient records on April 4, 2012,

shows that B.P. had talked with his wife and that he wanted to get

the Starkey hearing aids. His wife wrote a check for $8,600.00 to

" Serenity Hearing Aids. "

30. On or about April 5, 20 12, Ms. White submitted an

application for a joint Wells Fargo b ank a ccount with Patient B.P.

31. On or about April 5, 2012, Patient B.P. took out a loan

from Wells Fargo in the amount of $48,694.75.

32. On or about April 5, 2012, Ms. White received a

ca shier ' s check for approximately $48,500.00 from the loan

proceeds received by Patient B.P.

33. B.P. ' s patient records indicate the Starkey hearing aids

were delivered to B.P. on April 10, 2012.

34. On April 27, 2012, Ms. White wrote and signed a

note say in g that she had returned the 2011 Lexus GS350 with

VIN JTHBE1KS4B0052280 to B.P. and indicating the mileage

was 8 , 520.

35. Even assuming that the December 20, 2011, loan was

included in the amount mentioned in the February 1 7, 2012 , note,

Ms. White or Se renity Sounds Hearing Care Center, Inc. , received

at least $83,500.00 in loans or gifts from B.P.

36. In addition, Ms. White or Serenity Sounds Hearing Care

Center, Inc. , received at least $7 , 000.00 from B.P. in the form

of other purchases or gifts from s tores or businesses, including

jewelry and insurance.

37. No evidence of prior discipline was introduced.

38. There was no evidence that Ms. White was under any

legal restraints or constraints at the time of the alleged

violations.

CONCLUSIONS OF LAW

39 . The Division of Administrative Hearings has jurisdiction

over the subject matter and the parties to this proceeding in

accordance with sections 120.569 and 120.57(1), Florida Statutes

(2015).

40. Petitioner seeks to take disciplinary action against the

hearing aid specialist license of Respondent. A proceeding to

impose discipline against a professional license is penal in

nature, and Petitioner bears the burden to prove the allegations

in the administrative complaint by clear and convincing evidence.

Dep ' t of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932

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

41. Clear and convincing evidence has been said to require:

[T]hat 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 Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

42. Disciplinary statutes and rules " must always be

construed strictly in favor of the one against whom the penalty

would be imposed and are never to be extended by construction. "

Griffis v. Fish & Wildlife Conserv. Comm ' n , 57 So. 3d 929, 931

(Fla. 1st DCA 2011). Any ambiguities must be construed in favor

of the licensee. Lester v. Dep ' t of Prof ' l Reg. , 348 So. 2d 923,

925 (Fla. 1st DCA 1977).

Count One

43. Section 484.056(1)(w) provided that violating any

provision of chapter 484, or any rules adopted pursuant thereto,

is groun ds for disciplinary action.

44. Section 484.051(2) provided in part:

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 pla ce 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.

45. The evidence clearly showed that the sales receipt for

the March 7, 2011, purchase of a set of Audina half - shell hearing

aids did not contain the serial number of the hearing aids. The

evidence also clearly showed that the sales receipt for the

July 13, 2011, purchase of Audina OTE hearing aids did not contain

the serial number of the hearing aids. Respondent did not

contest this charge.

46. Petitioner proved by clear and convincing evidence

that Respondent violated section 484.056(1)(w) by vi olating

section 484.051(2).

Count Two

47. Section 484.056(1)(v) provided that exercising influence

on a client in such a manner as to exploit the client for

financial gain of the licensee or of a third party is grounds for

disciplinary action.

48. The of fense requires proof of more than influence.

Section 484.056(1)(v) provides that the influence must be

exercised in such a manner " as to exploit the client for

financial gain. " The parties did not cite, and research did not

reveal, any case law interpret ing section 484.056(1)(v), but

statutes regulating other professions have identical or

substantially similar wording, and there are several cases

interpreting it.

49. Cases finding violations under these similar statutes

usually involve a licensee perform ing unnecessary tests or

procedures, or charging for unperformed procedures or medications.

See , e.g. , Hasbun v. Dep ' t of Health , 701 So. 2d 1235, 1236 (Fla.

3d DCA 1997)(procedures which did nothing for the patient, who was

in terminal condition, constit uted exploitation of the patient for

financial gain of physician); Dep ' t of Health, Bd. of Med. v.

Rubinstein , Case No. 09 - 5267PL (Fla. DOAH Feb. 1, 2011; Fla. DOH

Apr. 11, 2011)(use of position to convince patient that

unnecessary allergy tests were neede d was exploitation of

patient); Dep ' t of Health, Bd. of Med. v. Reich , Case No. 04 -

3222PL (Fla. DOAH May 5, 2006; Fla. DOH Oct. 11, 2006)(ordering

unnecessary and excessive tests constitutes the exploitation of a

patient for financial gain under section 45 8.331(1)(n) , Florida

Statutes ).

50. Less commonly, exploitation cases involve other types

of financial transfers during the course of the professional

relationship. In Department of Professional Regulation, Board of

Medicine v. Tandon , Case No. 88 - 3115, 1989 Fla. Div. Adm in . Hear.

LEXIS 6224 (Fla. DOAH May 3, 1989), Tandon, a physician, was

charged with influencing his patient , G.L. , so as to exploit him

for financial gain. Tandon had been treating G.L. for about

eight years, had occasionally advanced hi m small sums of money,

and had given him drug samples. G.L. owed Tandon a little less

than $1 , 000 .00 in unpaid medical fees. When G.L. was involved in

an automobile accident, Tandon referred G.L. to Tandon ' s

attorney. Tandon later prepared a letter for G.L. to sign that

gave Tandon half of a $25,000.00 recovery arranged by the

attorney. G.L., who was 73 years old and had only a third grade

education, signed it. The Recommended Order found Tandon guilty

of exploitation, concluding, " Respondent ' s overrea ching of G.L.

was facilitated partly by G.L. ' s ignorance, but partly by the

trust that G.L. placed in [Tandon] as his physician. " The Board

of Medicine agreed.

51. The record here shows the following:

a. B.P. was a 93 - year - old man, with admitted memory

problems, who consulted Respondent as a hearing aid specialist.

b. After selling three sets of hearing aids to B.P. ,

Respondent obtained a $20,000.00 loan from him. Within a couple

of months after this, she had obtained loans totaling at least

$35,000.00 . Within two more months, she had obtained loans or

gifts totaling at least $83,500.00 from B.P.

c. Respondent received other property and services,

including jewelry and items from Radio Shack, from the use of

B.P. ' s credit cards, sometimes signing for purchases herself. She

had full use of an automobile that B.P. purchased for her use.

d. Respondent actively procured these transfers: applying

for credit cards with B.P. ' s personal information , drafting

documents for him to sign to convert loans into g ifts , and even

opening up a joint bank account with him.

e. Respondent did so with the intent, and the result, of

benefiting herself, not B.P.

f. Throughout all of the financial interactions, Respondent

stood in a position of professional trust and confi dence with

respect to B.P.

52. The exact relationship between Respondent and B.P. was

never shown. While it was alleged that Respondent might have

entered into a " romantic and/or sexual relationship " with B.P. ,

there was no evidence of this in the record . What was clearly

shown, however, was that while she continued in her client

relationship with B.P. , Respondent actively procured significant

financial transfers to herself and to her business. This is

sufficient to show exploitation. Cf. Dep ' t of Heal th, Bd. of

Nursing v. Morrow , Case No. 00 - 1637 (Fla. DOAH Oct. 5, 2000; Fla.

DOH May 3, 2001)(no exploitation proven where no professional

nursing relationship was shown). Under all of the circumstances,

it is concluded that Respondent exploited her clien t B.P. for her

financial gain.

53. Petitioner proved by clear and convincing evidence that

Respondent violated section 484.056(1)(v).

Count Three

54. Section 484.056(1)(g) provided that proof that the

licensee is guilty of misconduct in the practice of d ispensing

hearing aids is grounds for disciplinary action.

55. Actively arranging the financial transactions involved

here with a 93 - year - old client with memory problems during the

time that Respondent was in a position of trust and confidence

with respec t to that client also constitutes misconduct.

56. Petitioner proved by clear and convincing evidence

that Respondent is guilty of misconduct, in violation of

section 484.056(1)(g).

Penalties

57. Section 456.079, Florida Statutes, provided that e ach

board shall adopt by rule and periodically review the

disciplinary guidelines applicable to each ground for

disciplinary action which may be imposed by the board pursuant to

the respective practice acts.

58. The Board adopted Florida Administrative Code Rule 6 4B6 -

7.002(2)(w), which provided in part that the penalty for a first

offense of violating a provision of chapter 484 (in this case

section 484.051(2), by failing to provide the serial number of

hearing aids) in violation of section 484.056(1)(w) shall norm ally

range from a minimum fine of $300 .00 or a letter of concern to a

maximum fine of $7,500 .00 and revocation.

59. Rule 64B6 - 7.002(2)(v) provided in part that the penalty

for a first offense of exercising influence for financial gain in

violation of sect ion 484.056(1)(v) shall normally range from a

minimum fine of $1 , 000 .00 or restitution of improper gains and six

months of probation to a maximum of suspension of license for two

years followed by probation and a fine of $8,000. 00.

60. Rule 64B6 - 7.002(2)( g) provided in part that the penalty

for a first offense of fraud, deceit, negligence, incompetency, or

misconduct in the practice of a hearing aid specialist in

violation of section 484.056(1)(g) shall normally range from a

minimum fine of $300 .00 or two years of probation , to a maximum

fine of $5,000 .00 and up to one year of suspension followed by up

to two years of probation.

61. Rule 64B6 - 7.002(3) provided:

Based upon consideration of aggravating and

mitigating factors present in an individual

case, t he Board may deviate from the

penalties recommended above. The Board shall

consider as aggravating or mitigating factors

the following:

(a) Exposure of patient or public to injury

or potential injury, physical or otherwise;

(b) Legal status at the tim e of the offense:

no restraints, or legal constraints;

(c) The number of counts or separate

offenses established;

(d) Actions taken by the licensee to correct

the violation or to remedy complaints;

(e) The disciplinary history of the

applicant or li censee in any jurisdiction and

the length of practice;

(f) Pecuniary benefit or self - gain inuring

to the applicant or licensee;

(g) Any other relevant mitigating or

aggravating factors.

62. There was no evidence of previous disciplinary history,

or l egal restraints or constraints at the time of the charged

conduct. On the other hand, Respondent exposed P atient B.P. to

substantial financial injury and received considerable direct

pecuniary benefit, which outweigh the mitigating factors.

63. The aggra vating circumstances do not warrant deviation

from the wide range of penalties already permitted within the

guidelines, however.

64. Section 455.227(4) , Florida Statutes, provided that i n

addition to any other discipline imposed for a violation of a

pract ice act, a board shall assess costs related to the

investigation and prosecution of the case.

RECOMMENDATION

Upon consideration of the foregoing Findings of Fact and

Conclusions of Law, it is RECOMMENDED that a final order be

entered by the Board of Hearin g Aid Specialists:

Finding Rosalyn Runae Johnson White in violation of

sections 484.056(1)(g), 484.056(1)(v), and 484.056(1)(w), Florida

Statutes, as charged in the Third Amended Administrative

Complaint ; directing that she provide restitution to B.P. in t he

amount of $90,000.00 ; imposing an administrative fine on her of

$8,000.00 ; assessing reasonable costs related to investigation

and prosecution of the case ; and revoking her license to practice

as a hearing aid specialist.

DONE AND ENTERED this 1 4 th day of April , 2016 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

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 1 4 th day of April , 2016 .

ENDNOTE S

1/ Except as otherwise indicated, references to statutes and

rules are to versions in effect in earl y 2011 through early 2012,

when the counts against Respondent are alleged to have taken

place. No changes to the relevant statutes were enacted during

this time.

2/ Respondent did not assert any Fifth Amendment privilege,

either in response to the disco very, or later in response to the

motion. See Purcell v. Dep ' t of Bus. & Prof ' l Reg. , 708 So. 2d

1019 (Fla. 5th DCA 1998) .

3/ This note was written from the perspective of B.P. and was

signed by him as his statement. However, Ms. White prepared the

sta tement and her signature indicates her agreement with the

statement. It is , therefore , an adoptive admission by Ms. White

under section 90.803(18)(b), Florida Statutes, and so an

exception to the hearsay rule. It is competent evidence that

B.P. loaned Se renity Sounds Hearing Care Center, Inc.,

$ 35,000.00.

COPIES FURNISHED:

Lee Hollander, Esquire

Law Offices of Hollander and Hanuka

2681 Airport Road South , Suite C - 101

Naples, Florida 34112

(eServed)

Octavio Simoes - Ponce, Esquire

Sharmin Royette Hibbe rt, Esquire

Matthew George Witters, Esquire

Christopher R. Dierlam, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C65

Tallahassee, Florida 32399

(eServed)

Nichole C. Geary, General Counsel

D epartment of Health

4052 Ba ld Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

Jennifer Wenhold, Executive Director

Board of Hearing Aid Specialists

Department of Health

4052 Bald Cypress Way, Bin C08

Tallahassee, Florida 32399 - 3257

(eServed)

NOTICE OF RIGHT TO SU BMIT 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.