STATE OF FLORID

DIVISION OF ADMINISTRATIVE HEARINGS

In re: The revocation or suspension ) of the license of WAYNE L. HAVEN: )

License No. 180 ) CASE NO. 75-471

State Board of Dispensing Opticians )

)

RECOMMENDED ORDER

After due notice a public hearing was held before Delphene C. Strickland, Hearing Officer, Department of Administration, Division of Administrative Bearings, on June 23, 1975, commencing at 10:00 am. in Room 302, Carlton Building, Tallahassee, Florida.

APPEARANCES

For Petitioner: John S. Miller,

Counsel for the Board of Dispensing Opticians

Witnesses: Allen R. Smith

Norman Harrison

For Respondent: Wafford B. Stidham,

Counsel for Respondent

Witnesses: Allen R. Smith

Wayne L. Hagen

Ethel Louise Isenburg

ISSUES

1. Whether Respondent Hagen violated Chapter 484, Florida Statutes, and Rule 21P-4.01, Florida Administrative Code, by allowing his license to be used by an unlicensed person to engage in the occupation of dispensing optician without his presence and direct supervision.

   
   

2. Whether the license of Respondent Hagen should be revoked, annulled, withdrawn or suspended for violation of Chapter 484, Florida Statutes, and Rule 21P-4.01, Florida Administrative Code.

FINDINGS OF FACT

1. Respondent Wayne L. Hagen, the licensed optician in the Pearl Vision Center, Tyson Square Mall, St. Petersburg, Florida, holds License No. 180, a license in good standing, issued by the Florida Board of Dispensing Opticians pursuant to Chapter 484, Florida Statutes.

   
   

2. The Board in formal meeting on March 28, 1975, directed Mr. Allen R. Smith, Jr., a coordinator for the Department of Professional and Occupational Regulations, Division of Occupations, to file the subject Administrative Complaint against Respondent Hagen. The charge in the Complaint is the

   violation of Rule 21P-4.01, Florida Administrative Code, in that an unlicensed person engaged in "dispensing optical goods while Mr. Hagen was absence for the premises".

   
   

3. Respondent received a copy of the Administrative Complaint, Explanation and Election of Rights containing notice that said Complaint was mailed the 29th day of April, 1975.

   
   

4. Respondent had no notice by certified mail or actual notice of these proceedings or an opportunity to show that he had complied with all lawful requirement for the retention of his license, prior to the receipt of the Administrative Complaint, Explanation and Election of Rights.

   
   

5. Petitioner admitted that no notice prior to the mailing of the Administrative Complaint, Explanation and Election of Rights was sent to Respondent giving notice of the facts or conduct which are delineated in the Administrative Complaint, Explanation and Election of Rights. Petitioner admitted that prior to the initiation of the Administrative Procedures Act in former proceedings the Board had given notice of receipt of Complaints against licensees.

   
   

6. Respondent Hagen had posted in the office of Pearl Vision Center signs indicating that no fittings or adjustments would be made while Respondent was off duty.

   
   

7. The unlicensed employee of Respondent, Lynda Vickers, performed acts in violation of the Rules and Regulations of the Board without the knowledge or permission of Respondent and was discharged prior to the filing of the Complaint against Respondent.

   
   

8. Respondent did not allow his license to be used by an unlicensed person to engage in the trade or occupation of dispensing optician without his presense and direct supervision.

   
   

9. Respondent through his attorney moved to dismiss the Complaint on the grounds that the Board of Dispensing Opticians failed to give him prior notice and and an opportunity to rectify in accordance with the requirements of the licensing statute, Section 120.60(4), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

10. Inasmuch as the evidence received and the testimony taken clearly shows that Respondent Hagen did not violate Chapter 484, Florida Statutes, by allowing his license to be used by an unlicensed person it is unnecessary to pass on the question of whether Respondent is entitled to a notion to dismiss.

RECOMMENDED ORDER

Dismiss the Complaint.

October 27, 1975

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

John S. Miller, Esquire Post Office Box 10137 Tallahassee, Florida 32301

Wafford B. Stidham, Esquire Post Office Box 1068 Bartow, Florida 33830

Docket for Case No: 75-000471

Orders for Case No: 75-000471