ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before this tribunal pursuant to S.C. Code Ann. § 1-23-600(B) (Supp. 1998)
and S.C. Code Ann. § 1-23-310 et seq. (1986 and Supp. 1998) upon Petitioner's request for a
contested case hearing. Petitioner challenges the decision of Respondent South Carolina Department
of Health and Environmental Control ("DHEC") to require him, pursuant to S.C. Code Ann. § 40-25-160(B) (Supp. 1998), to refund the purchase price of two hearing aids he sold to Respondent
Robert Wilson. After notice to the parties, a hearing was conducted on March 26, 1999.
FINDINGS OF FACT
Having carefully considered all testimony and arguments presented at the hearing of this
matter, and taking into account the credibility and accuracy of the evidence, I make the following
Findings of Fact by a preponderance of the evidence:
1. Notice of the date, time and place of the hearing was given to all parties.
2. Petitioner Gary S. Byrd is a hearing aid specialist licensed by the State of South
Carolina and doing business as the South Carolina Hearing Center in Greenwood, South Carolina.
3. On April 6, 1998, Robert Wilson ("Wilson") entered into a purchase agreement with
Petitioner for the purchase of hearing aids. The total purchase price was $1,990 and the terms of sale
included a "90 Day Trial Period - Money Back guarantee."
4. Petitioner delivered the hearing aids to Wilson on April 20, 1998.
5. After delivery of the hearing aids, Petitioner sent a letter, dated April 20, 1998, to
Wilson encouraging him to make regular visits to Petitioner's office to monitor his experience with
the hearing aids and to make any needed adjustments.
6. Wilson made no return visits to Petitioner's office until July 17, 1998.
7. On July 17, 1998, eighty-eight days after delivery of the hearing aids, Wilson went
to Petitioner's office during normal working hours in an attempt to return the hearing aids and
request a refund of the purchase price. Petitioner's office was closed when Wilson arrived. A sign
on the door indicated that Petitioner was on vacation, but that the office would open again on July
20, 1998.
8. Wilson returned to Petitioner's office on July 20, 1998, ninety-one days after delivery
of the hearing aids, and requested a refund. Petitioner refused to refund the purchase price of the
hearing aids. Petitioner claimed that Wilson had not kept his part of the agreement because he failed
to visit Petitioner's office every two weeks following delivery of the hearing aids.
9. The written purchase agreement between Petitioner and Wilson made no reference
to a requirement of follow-up appointments.
10. On July 23, 1998, Wilson filed a complaint against Petitioner with the South Carolina
Department of Consumer Affairs requesting a refund of the purchase price of the hearing aids. The
complaint was transmitted to DHEC.
DISCUSSION
Petitioner contends that he should not be required to refund the purchase price of the hearing
aids sold to Wilson for two reasons. First, Petitioner contends that the terms of sale included a
requirement that Wilson visit his office every two weeks after delivery of the hearing aids, so that
he could monitor Wilson's progress and make any needed adjustments to the product. Second,
Petitioner maintains that Wilson did not request a refund within the requisite ninety days set forth
in the purchase agreement.
The sale of hearing aids and the licensing of hearing aid specialists in this State is regulated
by DHEC under the authority of Title 40, Chapter 25 of the South Carolina Code and DHEC
Regulation 61-3. See S.C. Code Ann. § 40-25-10 et seq. (Supp. 1998). DHEC maintains that
Petitioner violated Regulation 61-3 by failing to transmit to a client a receipt clearly stating the full
terms of sale. See S.C. Code Ann. § 40-25-70(A) (Supp. 1998); 24 S.C. Code Ann. Regs. 61-3.201.1(h) (1976). Under S.C. Code Ann. §§ 40-25-30 and 40-25-160(B)(8) (Supp. 1998), DHEC
has the authority to require violators to refund the purchase price of hearing aids to the client.
Petitioner refused to refund the purchase price of the hearing aids based on a condition that
was not included in the purchase agreement which served as Wilson's receipt. Although Petitioner
also sent a letter, dated April 20, 1998, to Wilson encouraging him to make regular visits to
Petitioner's office, the letter was not a part of the purchase agreement. Also, nothing in the letter
suggests that regular office visits served as a condition to the money back guarantee or that Wilson
agreed to any such condition. Therefore, Petitioner violated section 40-25-70(A) (Supp. 1998) and
Regulation 61-3.201.1(h), and he can be required to refund Wilson's money under section 40-25-160(B)(8).(1)
Petitioner's argument that Wilson did not return the hearing aids within the requisite ninety
days is not persuasive. South Carolina Code Ann. § 36-2-327(1)(b) (1976) governs the effect of a
sale on approval, which is defined in section 36-2-326 as goods delivered primarily for use that may
be returned by the buyer even though they conform to the contract. Under section 36-2-327(1)(b),
use of the goods consistent with the purpose of trial does not constitute acceptance, but failure
seasonably to notify the seller of election to return the goods constitutes acceptance. Section 36-1-204 provides that an action is taken "seasonably" when it is taken at or within the time agreed.
Section 36-1-201(26) provides that a person "notifies" by taking such steps as may be reasonably
required to inform the other in ordinary course whether or not the other actually comes to know of
it. In this case, by physically appearing at Petitioner's office with the hearing aids on the 88th day
after their delivery, during normal working hours, Wilson took reasonably required steps to inform
Petitioner of his election to return the product. Therefore, Wilson seasonably notified Petitioner of
his election to return the hearing aids and satisfied his obligation under the agreement.
Finally, in its demand letter to Petitioner and its agency transmittal form, DHEC alleges that
Petitioner's conduct fell within section 40-25-160(B)(3)(a), which references unethical conduct
through obtaining a fee or making a sale by fraud or misrepresentation. The evidence in the record
does not indicate any unethical conduct on the part of Petitioner, but merely indicates poor
communication between the parties and a genuine dispute over Wilson's entitlement to a refund.
Therefore, S.C. Code Ann. § 40-25-160(B)(3) (Supp. 1998) does not apply to this case.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. The Administrative Law Judge Division has subject matter jurisdiction pursuant to
S.C. Code Ann. § 1-23-600(B) (Supp. 1998) and S.C. Code Ann. 1-23-310 et seq. (1986 and Supp.
1998).
2. The weight and credibility assigned to evidence presented at the hearing of a matter
is within the province of the trier of fact. See South Carolina Cable Television Ass'n v. Southern
Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). Furthermore, a trial judge, who
observes a witness, is in the better position to judge the witness's demeanor and veracity and
evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v.
Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct.
App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).
3. DHEC has the authority to require that refunds be made by hearing aid specialists to
their clients pursuant to S.C. Code Ann. § 40-25-30 (Supp. 1998).
4. S.C. Code Ann. § 40-25-70(A) (Supp. 1998) and 24 S.C. Code Ann. Regs. 61-3.201.1(h) requires every person who fits and sells hearing aids to transmit to each person supplied
with a hearing aid a receipt clearly stating the full terms of the sale.
5. Any violation of the Practice of Specializing in Hearing Aids Act may result in
license revocation, suspension or the requirement to refund the purchase price of hearing aids. S.C.
Code Ann. § 40-25-160(B)(8) (Supp. 1998).
6. Petitioner violated S.C. Code Ann. § 40-25-70(A) (Supp. 1998) and 24 S.C. Code
Ann. Regs. 61-3.201.1(h) (1976) by refusing to refund the purchase price of the hearing aids to
Wilson based on a condition that was not included in the purchase agreement which served as
Wilson's receipt.
7. By physically appearing at Petitioner's office with the hearing aids on the 88th day
after their delivery, during normal working hours, Wilson took reasonably required steps to inform
Petitioner of his election to return the product. Therefore, Wilson seasonably notified Petitioner of
his election to return the hearing aids and satisfied his obligation under the agreement. See S.C.
Code Ann. § 36-2-327(1)(b) (1976); S.C. Code Ann. § 36-1-201(26) (1976); S.C. Code Ann. § 36-1-204 (1976).
8. Pursuant to S.C. Code Ann. § 40-25-160(B)(8) (Supp. 1998), Petitioner is required
to refund the purchase price of hearing aids sold to Robert Wilson.
9. The evidence in the record does not indicate any unethical conduct on the part of
Petitioner, but merely indicates poor communication between the parties and a genuine dispute over
Wilson's entitlement to a refund. Therefore, S.C. Code Ann. § 40-25-160(B)(3) (Supp. 1998) does
not apply to this case.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that Petitioner transmit to the South Carolina Department of
Health and Environmental Control a refund check for Robert Wilson in the amount of One Thousand
Nine Hundred Ninety ($1,990) Dollars within fifteen (15) days of the date of this Order.
AND IT IS SO ORDERED.
_________________________________
JOHN D. GEATHERS
Administrative Law Judge
April 2, 1999
Columbia, South Carolina
1. Even without the force of section 40-25-70(A) and regulation 61-3.201.1(h), Petitioner's
claim that the follow-up appointments served as a binding condition of the money back guarantee
is incorrect. The common law prohibits consideration of extrinsic evidence of agreements or
understandings contemporaneous with or prior to execution of a written instrument with
unambiguous terms, when such evidence is to be used to contradict, vary or explain the written
instrument. See Koontz v. Thomas, Op. No. 2933 (S.C.Ct.App. filed January 25, 1999)
(Shearouse Adv.Sh. No. 5 at 14). |