Judges: P. MICHAEL RUFF
Agency: Department of Health
Latest Update: Oct. 02, 1990
Summary: Suspend licensee for one year for false advertising in his profession.
82-1901STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTICIANRY, )
)
Petitioner, )
)
vs. ) CASE NO. 82-1901
)
GILBERT ROSENBRIER, )
)
Respondent. )
)
RECOMMENDED ORDER OF DEFAULT
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on January 13, 1983, in Miami, Florida.
APPEARANCES
For Petitioner: Jerry Carter, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: No Appearance
The Petitioner, by its Administrative Complaint, seeks to revoke, suspend or take other disciplinary action against the Respondent's licensure status as an optician under the laws of Florida. Essentially, it is alleged that the Respondent purchased an advertisement in the Greater Miami telephone directory yellow pages advertising a "buy one - get one free" arrangement for his customers purchasing eyeglasses. Ms. Maria Osuna, who was then an investigator for the department, purportedly acted upon this advertisement and attempted to purchase a pair of eyeglasses from an employee of 20/20 Opticians, Inc., a corporation of which the Respondent was president, and attempted at the same time to obtain a second pair of eyeglasses free of charge. Her request for a pair of free eyeglasses was allegedly denied by employees of the corporation, including its vice-president. Based upon that allegation, the Respondent is charged with advertising goods or services in a manner which is fraudulent, false, deceptive or misleading, an alleged violation of Section 484.014(1)(e), Florida Statutes.
In support of the allegations, the Petitioner presented the testimony of Ms. Osuna, Angie Heller of Southern Bell Telephone Company, Lewis Ramirez, Allen Kirtis and Jean Sardo, all of whom at the times pertinent hereto were associated with 20/20 Opticians, Inc. and the Respondent, either as co-officers or employees of the corporation. The Petitioner also presented Composite Exhibit One and Exhibit Two, consisting of proof of the subject advertising, including a copy of the yellow page advertisement and the invoices whereby that advertisement was ordered by the Respondent, as well as the affidavit of Fred
Varn, the Executive Director and Custodian of Records for the State Board of Opticianry, attesting to the fact that the Respondent was duly licensed, holding license number D0-0001378.
The Respondent failed to appear at this proceeding and no testimony or evidence was presented on his behalf.
FINDINGS OF FACT
The Respondent is a licensed optician in the State of Florida, holding license number DO-0001378. The last known address of the Respondent is 20/20 Opticians, Inc., of 6201 S.W. 70th Street, South Miami, Florida. At all times pertinent hereto, the Respondent was president of 20/20 Opticians, Inc.
The Petitioner is an agency of the State of Florida, charged with regulating the practice of opticianry, including regulation of practice standards, including standards of advertising.
The Petitioner, through Exhibit One and the testimony of Jim Foreman of Southern Bell, established that the Respondent took out the subject ad advertising the "buy one - get one free" arrangement for obtaining glasses from his firm and Petitioner established that the Respondent signed the order or invoice for purchase of the ad. This ad had been taken out previously and then renewed in substantially the same format with merely the picture of the Respondent deleted. The ad, with the subject advertisement, was renewed on December 17, 1979.
Maria Osuna, an investigator for the department went to 20/20 Opticians, Inc. in July of 1981. She conferred there with Lewis Ramirez, an employee of the Respondent, regarding the possibility of her obtaining a free pair of eyeglasses after purchasing a pair. That employee said that the ad was not honored any longer. She conferred with the office manager of the Respondent's firm who knew of the ad, but refused to honor it.
Allen Daniel Kirtis was hired by the Respondent in March of 1981. The Respondent told him to give customers second pairs of eyeglasses (with their old frames) for $9.95 and not to honor the subject ad, but rather to charge them
$9.95 for a second pair or 50 percent of retail price, which ever was higher. He was specifically instructed by the Respondent not to honor the ad during the time when the ad was running in the yellow pages. Mr. Kirtis established that the subject ad was current and ran as a current advertisement in the phone directory at least until November, 1981.
In response to the evidence and testimony adduced by Petitioner, the Respondent produced nothing and failed to appear at the hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Section 484.014(1)(e), Florida Statutes, provides pertinently as follows:
The following acts relating to the prac-
tice of opticianry shall be grounds for disciplin- ary action as set forth in this section:
* * *
(e) Advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content.
There is no question, given the evidence adduced by the Petitioner, that a prima facie case has been established showing that the subject ad was run at the times referred to above by the Respondent and during the time when the ad was supposedly current according to its own text in the yellow pages of the Southern Bell telephone book for Greater Miami, the Respondent failed to honor the ad and failed to provide a second pair of eyeglasses free of charge. In fact, the evidence conclusively establishes that he affirmatively instructed his employees not to honor the ad and to charge one-half retail price or $9.95, which ever was greater, for a second pair of eyeglasses, provided the customer turned in his old frames. There is no question that this record establishes that the advertising of the Respondent's goods or services to this extent was fraudulent, false, deceptive and misleading in form and content in violation of the above authority and that disciplinary action should be imposed.
RECOMMENDATION
Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore
RECOMMENDED:
That the Respondent be found guilty as charged and a Final Order be entered by the Petitioner suspending his license for one (1) year.
DONE and ENTERED this 30th of March, 1983, in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
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 30th day of March, 1983.
COPIES FURNISHED:
Jerry Carter, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Lionel Barnet, Esquire 13842 SW 56th Street Miami, Florida 33183
Fred Varn, Executive Director Board of Opticianry
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Fred Roche, Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 82-001901
Orders for Case No: 82-001901
