STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTICIANRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-992

)

STEVEN SHULMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in the above- styled case on November 15, 1983, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Jerry Frances Carter, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: David R. MacKenzie, Esquire

5950 West Oakland Park Boulevard, Suite 209 Lauderhill, Florida 33313

STATEMENT OF THE ISSUE

By Administrative Complaint filed March 1, 1982, and amended on October 3, 1983, the Petitioner Department of Professional Regulation, Board of Opticianry, seeks to suspend, revoke or take other disciplinary action against the Respondent Steven Shulman for allegedly committing fraud, deceit, negligence, or misconduct in the authorized practice of opticianry.

PRELIMINARY STATEMENT

At the final hearing, Petitioner's Exhibits 1(a)-(g) was stipulated into evidence. Patricia Pensky and James R. Golden, testified for the Petitioner. The Respondent Shulman testified on his own behalf and Respondent's Exhibit 1 was marked for purposes of identification but not admitted into evidence.

Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.

When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either

rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. At all material times, the Respondent Shulman was licensed as an optician by the Florida Board of Opticianry.

   
   

2. On or about July 11, 1981, Patricia Pensky, the complainant, placed an order for contact lenses and regular prescription eyeglasses with the Respondent Shulman at his opticianry. Pensky paid $109 for the contact lenses and received a receipt for the same. Pensky did not pay for the regular glasses at that time.

   
   

3. Approximately two weeks later on July 25, 1981, Pensky received the contact lenses and regular prescription glasses from the Respondent. Pensky paid $73.95 for the regular glasses and received a receipt in that amount from the Respondent Shulman.

   
   

4. Although Pensky found the regular glasses to be satisfactory, she discovered that she could not wear the contact lenses. The contact lenses were returned to the Respondent approximately two weeks after their receipt by Pensky. The Respondent and Pensky agreed to a substitution of prescription sunglasses for the cost of the contact lenses minus $15-20.

   
   

5. Pensky received the sunglasses in approximately seven to ten days and found them to be satisfactory.

   
   

6. While Pensky was ordering and receiving the prescription sunglasses, she provided the Respondent with an insurance claim form and requested the Respondent to complete the same.

   
   

7. The Respondent completed the form based on his understanding that Pensky was requesting reimbursement from her insurance company for the prescription sunglasses. The total for the prescription sunglasses was $94.95. Pensky however, believed that she had requested the Respondent to complete the insurance form based on the cost of her regular prescription glasses which totaled $73.95.

   
   

8. Due to the misunderstanding between the parties, Pensky contacted her insurance company to see if she could claim a partial reimbursement since the cost on the insurance form completed by the Repondent exceeded the receipt which she had for her regular prescription glasses.

   
   

9. When Pensky was informed that this was not possible, she did not file the form and received no reimbursement from her insurance policy for the services rendered by the Respondent.

   
   

10. The Respondent would have received no financial benefit from filing a false insurance claim in this case since the disputed $15-$20 would have been paid by the insurance to Pensky and not the Respondent.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administration Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57.(1) Florida Statutes.

    
    

12. The Respondent is charged by a three count Administrative Complaint with violating Sections 484.014(1)(c), 484.014(1)(f) and 484.014(1)(j), Florida Statutes, which proscribe the following conduct by a licensed optician:

    
    

    (c) Making or filing a report or record which the licensee knows to be false,

    intentionally or negligently failing to file a report or record required by federal or state law, willfully impeding or obstructing such filing, or inducing another person to do so.

    Such reports or records shall include only those which the person is required to make or file as an optician.

    * * *

    (f) Fraud or deceit, or negligence, incompetency, or misconduct, in the authorized practice of opticianry.

    * * *

    (j) Violation of any provision of s. 484.012.

    
    

13. Section 484.014(1)(c), Florida Statutes, requires proof that a licensed optician knowingly filed a false report required by state or federal law to be filed by the licensee in his capacity as a optician. The evidence in the instant case fails to demonstrate that the Respondent Shulman completed a false insurance claim for the complainant knowing that the information he provided was false. Instead, the evidence established that due to a failure of communication, a misunderstanding arose between the parties which was not corrected and which ultimately resulted in this proceeding. Moreover, no state or federal statute or rule has been brought to the attention of the Hearing Officer by the Petitioner which places a duty on licensed opticians to file insurance forms. Without such a duty, Section 484.014(1)(c), Florida Statutes, is inapplicable.

    
    

14. Similarly, insufficient evidence was presented to establish that the Respondent engaged in fraudulent, deceitful, negligent, or incompetent misconduct in the practice of opticianry in violation of Section 484.014(1)(f), Florida Statutes.

    
    

15. The Petitioner has acknowledged that no evidence was presented in support of Counts I and II of the Administrative Complaint.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That a Final Order be entered by the Petitioner dismissing the Administrative Complaint filed against the Respondent Shulman.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of March, 1984.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1984.

COPIES FURNISHED:

Jerry Frances Carter, Esquire Department of Profissional Regulation

130 North Monroe Street Tallahassee, Florida 32301

David R. MacKenzie, Esquire Suite 209

5950 West Oakland Park Boulevard Lauderhill, Florida 33313

Fred Varn, Executive Director Florida Board of Opticianry Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

Frederick M. Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000992

Orders for Case No: 82-000992