STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DYER KEMP GARVIN, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 82-484

) STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BOARD OF OPTICIANRY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Shalimar, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on May 18, 1982.

APPEARANCES

For Petitioner: Petitioner appeared on his own behalf. For Respondent: Chris D. Rolle, Esquire

Assistant Attorney General The Capitol

Tallahassee, Florida 32301 ISSUES

By application dated December 10, 1981, petitioner sought admission to the dispensing opticianry examination. Respondent proposes to deny the application on the ground that petitioner lacks the necessary training and experience.

FINDINGS OF FACT

1. Petitioner Dyer Kemp Garvin, Jr., has never completed a course of study at a recognized school of opticianry. On April 2, 1957, however, he began working and training under Ralph C. Cronbaugh, a licensed optician, at Daytona Optical Center in Daytona Beach, Florida. He learned how to read a lensometer, interpret prescriptions for eyeglasses, figure base curves, measure the seg height and various physiognomic features, cut and edge lenses, fit lenses to the frame and so forth. Petitioner worked under Mr. Cronbaugh's supervision an average of 48 or 50 hours a week continuously until June of 1961, even though the training program as such ended after three years.

   
   

2. Some time before June of 1961, petitioner registered as an apprentice with and paid a fee to the Florida Association of Dispensing Opticians. On June 3, 1961, petitioner became a member of the Florida Association of Dispensing Opticians. Some 15 years later the Florida Board of Opticianry instituted its own apprenticeship program for the first time.

3. From June of 1961 until at least June of 1963, petitioner remained at the Daytona Optical Center under the supervision of Steve Stevenson, a licensed optician. For nine months or a year longer, he worked under a third licensed optician at the Daytona Optical Center, Andrew H. Hollaway.

   
   

4. Petitioner moved to Alabama from Daytona Beach. There he managed an office for Bausch-Lomb in Birmingham, then went into business for himself under the name Jasper Optical Center in Jasper, Alabama. He actively practiced as a dispensing optician in Jasper for more than three years immediately preceding his application for licensure in Florida.

   
   

5. Petitioner is a past vice-president of the Alabama Society of Dispensing Opticians and a former member of the board of directors of the International Society of Dispensing Opticians. He is now licensed as a dispensing optician in Alabama and has been for the last 18 years. Petitioner's Exhibit Nos. 3 and 4. Although the licensing scheme in Alabama is different from Florida's, petitioner's uncontroverted testimony was that he holds and has held a state occupational license in Alabama. This is corroborated by the affidavit of an Alabama judge, Petitioner's Exhibit No. 4, and a copy of petitioner's 1981-1982 license. Petitioner's Exhibit No. 3.

   
   

6. For the past six years, petitioner and other dispensing opticians have worked to establish a state board to regulate opticianry in Alabama, but these efforts have been stymied by optometrists who have successfully opposed the legislation. As a matter of policy, respondent refuses to let dispensing opticians licensed in Alabama and other states with similar regulatory arrangements take the Florida dispensing opticianry examination.

   
   

7. In preparing the foregoing findings of fact, the hearing officer has had the benefit of petitioner's post-hearing correspondence and respondent's proposed recommended order. Proposed fact findings that have not been adopted have been rejected as irrelevant or unsupported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

8. The parties have stipulated that petitioner is eligible to take the examination for licensure in Florida as a dispensing optician under all the statutory criteria except Section 484.007 (1)(e), Florida Statutes (1981), as to which there is dispute. This provision sets forth the following requirements for an applicant:

   
   

   1. Has satisfactorily completed a 2-school-year course of study of not less than 1,000 hours per year in a recognized school of opticianry; or

   2. Is a licensed optician, who has actively practiced in another state for more than 3 years immediately preceding application and who meets the examination qualifications as provided in this subsection; or

   3. Has registered as an apprentice with the department and paid an annual registration fee not to exceed $20, as set by rule of the board. Such apprenticeship shall be for not less than 3 years of a continuous nature of a 40-hour workweek under the supervision of a licensed optician, a licensed physician, or a licensed optometrist. However, any

      time spent in a recognized school may be considered

      as part of the apprenticeship program provided herein.

      
      

      The evidence showed that petitioner is "a licensed optician, who has actively practiced [in Alabama] for more than 3 years immediately preceding application .

      . . ." Section 484.007(1)(e)2, Florida Statutes (1981).

      
      

9. It is unnecessary to decide in the present case whether respondent could by rule interpret Section 484.007(1)(e)2, Florida Statutes (1981), to limit eligibility for licensure in Florida to dispensing opticians licensed by central boards of other states, since no such rule has been adopted. It was open to respondent to attempt to establish an evidentiary basis at hearing for such an interpretation of the statute, see McDonald v. Department of Banking and Finance, 346 So.2d 199 (Fla. 1st DCA 1977), but this was not undertaken. The evidence that was adduced suggests the irrationality of letting a practitioner of only three years' experience from one state sit for the examination while denying admission to a seasoned practitioner from another state with a different regulatory scheme. Mere proof of past policy does not prove its wisdom.

   
   

10. Respondent has cited Great Southern Trucking Co. v. Douglas, 3 So.2d

526 (Fla. 1941) and other cases for the proposition that the "[a]ction of an administrative agency will not be set aside [by a court] unless there is a clear showing of invalidity or lack or abuse of authority." Respondent's Proposed Recommended Order. This rule of judicial restraint, like the presumption that public officials perform their duties in accordance with the law, comes into play only after administrative hearings (when requested) have occurred. O'Neil

v. Pallot, 257 So.2d 59 (Fla. 1st DCA 1972). Free form administrative action taken before an administrative hearing does not alter the burden of proof or narrow the scope of the hearing. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent admit petitioner to the dispensing opiticanry examination and license petitioner as a dispensing optician if he successfully completes the examination.

DONE and ENTERED this 4th day of June, 1982, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1982.

COPIES FURNISHED:

Dyer Kemp Garvin, Jr. Post Office Box 1127 Destin, Florida 32541

Chris D. Rolle, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Suite 1602 Tallahassee, Florida 32301

H. Fred Varn, Executive Director Board of Opticianry

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION

DYER KEMP GARVIN, JR.

Petitioner,

vs. DOAH CASE NO. 82-484

STATE OF FLORIDA, DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTICIANRY,

Respondent.

/

FINAL ORDER

On June 4, 1982, the duly appointed Hearing Officer in the above-styled cause completed and submitted to the Board and all parties a Recommended Order. A copy of that Order is attached hereto as Exhibit A.

Pursuant to Section 120.57(1)(b)(8), Florida Statutes, and Rule 28-5.404, Florida Administrative Code, the parties were allowed twenty (20) days in which to submit written Exceptions to the Recommended Order. On June 23, 1982,

counsel for Respondent submitted Exceptions to the Recommended Order. Pursuant to Section 455.213, Florida Statutes, the Recommended Order came before the Board of Opticianry for final agency action on this matter at a public hearing on June 25, 1982, in Tallahassee, Florida. The Board having considered the Findings of Fact, Conclusions of Law and Recommended Penalty as contained within the Recommended Order as submitted by the Hearing Officer, together with the Exceptions filed by counsel for Respondent, and being otherwise fully advised, IT IS THEREFORE

ORDERED that the Hearing Officer's Findings of Fact are fully adopted by the Board. The Board specifically rejects, however, the Hearing Officer's Conclusion of Law that "petitioner is a licensed optician, who has actively practiced [in Alabama] for more than 3 years immediately preceding application .

. . Section 484.007(1)(e)2, Florida Statutes, (1981)." The Board specifically adopts the Exceptions to the Recommended Order, which Exceptions provide:

Petitioner has actively practiced in Alabama more than three (3) years immediately preceding application, but is not "a licensed optician" as contemplated by the aforementioned statute. Petitioner holds a business license from Walker County, Alabama, and the State of Alabama; however, said business license can be obtained by anyone without examination or without evidence of a minimum competency in the field of opticianry.

Section 484.007(1)(e)2, Florida Statutes, contemplates that the applicant is an individual licensed to practice the profession of opticianry in his respective state.

It is further ORDERED that the Hearing Officer's recommendation is rejected by the Board, with the result that Petitioner shall not be admitted to the dispensing opticianry examination. This Order shall become final on date of filing.

DONE AND ORDERED this 10th day of July, 1982.

BOARD OF OPTICIANRY

Michael Budd Chairman

COPIES FURNISHED:

Dyer Kemp Garvin, Jr. Post Office Box 1127 Destin, Florida 32541

Robert T. Benton, II Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

H. Fred Varn, Executive Director Board of Opticianry

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000484

Orders for Case No: 82-000484