STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KAREN G. THIBODEAU, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2420

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTICIANRY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Tallahassee, Florida on December 10, 1981, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: David W. Spicer, Esquire

McFarlain, Bobo, Sternstein, Wiley and Cassedy, P.A.

666 Lewis State Bank Building Tallahassee, Florida 32301

For Respondent: Chris D. Rolle, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301 ISSUE

Whether Petitioner's application for licensure by examination as an optician should be approved.

This case arises upon Respondent's denial of Petitioner's application for licensure by examination pursuant to Chapter 454, Florida Statutes. Petitioner requested an administrative hearing as to the denial, and the matter was thereafter referred to this Division for hearing pursuant to Chapter 120, Florida Statutes.

The parties entered into a prehearing stipulation wherein they agreed upon certain facts and further agreed that the sole issue for consideration is whether the Board of Opticianry has the authority to allow the Petitioner to sit for the next examination for a license to be a dispensing optician in the State of Florida on the basis that the Board is estopped from granting the license due to Petitioner's reliance to her detriment on representations made by a representative of the Board that she possessed qualifications under a prior statute to sit immediately for the examination.

At the hearing, Petitioner testified in her own behalf and Herbert F. Varn, Executive Director of the Board of Opticianry testified for Respondent.

Petitioner filed a proposed order subsequent to the hearing which has been fully considered and those portions thereof which have not been adopted herein are considered to be unwarranted in fact or law.

FINDINGS OF FACT

The following facts are based upon the stipulation of the parties (Exhibit

1):

1. Petitioner, KAREN G. THIBODEAU, was licensed as an optician by the

   State of Massachusetts in 1979.

   
   

2. Petitioner, KAREN G. THIBODEAU, was licensed as an optician by the State of Connecticut in 1980.

   
   

3. Petitioner, KAREN G. THIBODEAU, was an apprenticed optician with various licensed opticians in the States of Massachusetts and Connecticut for the past four to five years.

   
   

4. Petitioner, KAREN G. THIBODEAU, on or about May, 1980, while living and employed in Connecticut, made a telephone call to the Board of Opticians in the State of Florida, with reference to her eligibility in taking the examination for a dispensing opticians license. After Petitioner detailed her formal training and work experience, she was advised that she was qualified to take the Florida Opticians Examination as the result of her having been licensed in both the States of Massachusetts and Connecticut and having five years apprentice experience. The Board of Opticians then mailed her an application form which she filled out and returned to them with a seventy five dollar ($75.00) money order for the examination and twenty dollars ($20.00) to register with the State of Florida.

   
   

5. As a direct result of this telephone conversation with a representative of the Board of Opticians of the Department of Professional Regulations of the State of Florida, the Petitioner, KAREN G. THIBODEAU, quit her job in Connecticut and moved to Florida anticipating taking the aforesaid examination. After she had moved to Florida in reliance of the representations made to her by the Board of Opticians, she was notified that she was not qualified to take the said examination.

   
   

6. Petitioner's application was considered by the Board of Opticianry on July 10, 1981 in Tallahassee, Florida and it was found that the Petitioner, KAREN G. THIBODEAU, did not meet the statutory requirements of s. 484.007(1), Florida Statutes (1979), although at the time she contacted the Board, she did meet the requirements of s. 484.03, Florida Statutes (1977), which was the prior licensing statute for the Board of Opticianry and was no longer in effect at the time. The Board further held that they did not have the authority to admit Petitioner, KAREN G. THIBODEAU, into the examination .for licensure as an optician in the State of Florida since she did not qualify under the current statute, s. 484.007(1), Florida Statutes (1979), even if they felt she had relied on the Board's prior representations that she would be allowed to take the examination to her detriment.

7. The sole issue for consideration at this hearing is whether the Board of Opticianry has the authority to allow the Petitioner, KAREN G. THIBODEAU, to sit for the next examination for a license to be a dispensing optician in the State of Florida on the basis that the Board of Opticianry is estopped for asserting the new statute as a denial of her right to sit for the next exam since she has detrimentally relied on their representation that her qualifications under the old statute, s. 484.03, Florida Statutes (1977), qualified her to sit immediately for said examination."

   
   

   The following are additional Findings of Fact based upon testimony adduced at the hearing:

   
   

8. When Petitioner made her telephone call to the Board of Opticians in May, 1980, she asked to speak to one of the Board members, but was assured by a woman who answered the phone that she could answer any questions Petitioner might have concerning her qualifications. At this time, Petitioner informed the person taking the call that she planned to move to Florida if she was qualified to take the examination for a dispensing optician license. Petitioner thereafter moved to Florida and is now employed by Sheppard Optical at Delray Beach, Florida where she is earning $200.00 a week. She was making approximately $300.00 a week when she left Connecticut and anticipated a higher income when she commenced practicing under her opticians license in Connecticut. (Testimony of Petitioner)

   
   

9. Prior to the consolidation of the various state licensing boards into the Department of Professional Regulation in 1979, the practice of the Board of Opticianry, under the apprentice requirements of Section 484.03, Florida Statutes, (1977) was to permit individuals who had apprenticed in another state, but not in Florida, for the specified time of not less than three years, to register with the Board, and then make application for and take the examination for licensure. This was frequently done by means of telephone calls authorizing the individual to make application. In some cases, letters were sent which contained a similar authorization. Subsequent to Petitioner's telephone call to the Board in May, 1980, the new Executive Director of the Board of Opticianry, Herbert F. Varn, changed this practice to conform to the applicable statute which requires individuals to register as an apprentice with the Board and not admit such individuals to examination until after they had thereafter completed the requisite three year period of apprenticeship. In some isolated cases, the Board had permitted individuals who had previously received a letter authorizing them to take the examination, even though they had not been registered in Florida for the requisite three year period, to take the examination. However, after reorganization, the Board did not permit individuals to take the examination based solely upon any oral assurances received from persons in the prior Executive Director's office. (Testimony of Varn)

   
   

10. The order of the Board of Opticianry, dated September 2, 1981, denying Petitioner's application stated that she had not met the statutory requirements for licensure by examination pursuant to Section 484.067(1), Florida Statutes, because she had not completed the requisite two school year course of study in a recognized school of opticianry, had not actively practiced as a licensed optician in another state for more than three years preceding the application, and had not registered as an apprentice with the Department and served not less than a three year apprenticeship under appropriate supervision. The present Executive Director of the Board is of the opinion that there would be no detriment to the public if Petitioner was allowed to sit for the examination based on her prior training and experience, but acknowledges that this is a matter for Board determination. (Testimony of Varn, pleadings)

    CONCLUSIONS OF LAW

    
    

11. Petitioner does not claim that she possesses any of the three alternative qualifications for taking the licensure examination set forth in Section 404.007(1)(e), Florida Statutes, (1979), but predicates her case upon a contention that the doctrine of equitable estoppel should be applied against Respondent, thus permitting her to take the examination as a dispensing optician. Petitioner cites Greenhut Construction Company, Inc. v. Knott, 247 So.2d 517 (Fla. 1st DCA 1971) and Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA 1979) as authority for her estoppel argument.

    
    

12. Although the State may not ordinarily be estopped from the exercise of its sovereignty or police powers, there are cases which hold that such a doctrine may be applied under certain circumstances and with limited application. It was held in Greenhut, supra, that to justify a claim of estoppel against the State, there must be (1) a representation by the party estopped to the party claiming estoppel as to some material fact, (2) a reliance upon the representation by the party claiming the estoppel and (3) a change in such party's position, caused by his reliance upon the representation to his detriment. However, that case also held that the State cannot ordinarily be estopped by the unauthorized acts or representations of its officers. In Hobbs, supra, the Court stated the general rule that administrative officers are not estopped through mistaken statements of the law. See First National Bank, etc.

    v. Department of Revenue, 364 So.2d 38 (Fla. 1st DCA 1978).

    
    

13. Here, the parties have stipulated that, upon inquiry to the Board of Opticianry, Petitioner was advised that her qualifications were sufficient to take the licensure examination and, as a result thereof, she changed her residence and subsequently suffered a decrease in salary when her application was later denied by the Board. From the testimony of the current Executive Director of the Board, it appears that at the time of Petitioner's inquiry, the Board routinely permitted individuals to qualify by out-of-state apprenticeship rather than requiring registry with the Board in Florida and serving a full three year period in that capacity. Thus, it would initially appear that Petitioner's estoppel claim has merit in that she was misled by an apparently authorized representative of the Board concerning her eligibility to sit for the examination, and she subsequently relied upon such representation which prompted a change in her position to her detriment based on such reliance. However, it is questionable whether the advice that her qualifications met the statute dealt with a factual rather than a legal matter. See Greenhut, supra, in this regard.

    
    

14. Actually, the Board's representative advised Petitioner erroneously under the then applicable statute that she was qualified to take the licensure examination, but apparently based such erroneous statement upon the then existing policy of the Board to waive the requirements of the law in that regard. Section 484.007 does not vest any discretion in the Board to waive application requirements, nor does any other provision of Chapter 484, F.S. In fact, Section 484.001 sets forth the legislative intent that "The only way to protect the public from the incompetent practice of opticianry is through the establishment of minimum qualifications for entry into the profession ..." Thus, in spite of the hardship encountered by Petitioner in prematurely effecting a move to this State based on her communication with the Board, there is no provision by which she can be admitted to the examination based on the statutory requirements. The mere fact that the Board may have once allowed a

prior policy which is not in accordance with the law, from which it subsequently receded, cannot constitute a basis for estoppel.

Based on the foregoing it is,

RECOMMENDED that the application of Petitioner, Karen G. Thibodeau, for licensure by examination be denied.

DONE and ENTERED this 8th day of January, 1982, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1982.

COPIES FURNISHED:

David W. Spicer, Esquire McFarlain, Bobo, Sternstein, Wiley and Cassedy, P.A.

666 Lewis State Bank Building Tallahassee, Florida 32301

Chris D. Rolle, Esquire Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

H. Fred Varn Executive Director Board of Opticianry

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002420

Orders for Case No: 81-002420