STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTICIANRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2060

)

PATRICK GALLAGHER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on February 9, 1983, in Tallahassee, Florida. The issue for determination at the hearing was whether respondent's license as an optician should be revoked, suspended or otherwise disciplined for the reasons set forth in the Administrative Complaint filed on March 2, 1982.

APPEARANCES

For Petitioner: Jerry Frances Carter

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Paul W. Lambert

Slepin, Slepin, Lambert & Waas 1114 Park East Avenue Tallahassee, Florida 32301

INTRODUCTION

By an Administrative Complaint filed on March 2, 1982, respondent is charged with a violation of Section 484.014(1)(n), Florida Statutes (1981), in that he willfully failed to report a person known to be in violation of Chapter

484 and the rules of the Board of Opticianry. It is factually alleged that respondent, while employed as a licensed optician for Union Optical, knew that Rose Ochs, the manager of Union Optical, engaged in activities which are defined as the practice of opticianry and operated the business without a licensed optician on the premises.

In support of the charges against the respondent, petitioner presented the testimony of Wayne Lopez, an investigator for the Department of Professional Regulation and Bobby N. Prohenza, a licensed optician who was employed with Union Optical in June and July of 1981. Petitioner's Exhibits 1 and 2 were received into evidence.

At the conclusion of petitioner's case in chief, respondent moved for a "directed verdict." Ruling on the motion was reserved, with the understanding that respondent's testimony would not be considered if, after a review and consideration of the evidence presented by the petitioner, it was determined that the motion should be granted. Absent a situation where the prosecution fails to present any evidence whatsoever in support of its charges, a "motion for directed verdict," a misnomer in itself, is not appropriate in a proceeding conducted by a Hearing Officer pursuant to Section 120.57(1), Florida Statutes, due to the absence of finality in the Hearing Officer's Order. Therefore, the Findings of Fact made in this Recommended Order include a consideration of the testimony presented by the respondent, as well as respondent's Exhibits 1 through 4. Also received into evidence was the Hearing Officer's Exhibit 1, the prehearing stipulation of the parties.

At the conclusion of the hearing, the parties were afforded the opportunity to file with the Hearing Officer proposed findings of fact and proposed conclusions of law within ten days from the receipt of the transcript of the hearing. While the transcript was delivered to the offices of counsel for both parties on March 18, 1983, counsel for the petitioner did not become aware of the transcript being available until March 25 or March 28, 1983. On March 29, 1983, petitioner to extend the time to file its proposed recommended order and did, in fact, file its proposed recommended order on March 31, 1983. Finding good cause for the motion for extension of time and a, lack of prejudice to the respondent, the undersigned hereby grants the motion for extension of time and denies the respondent's motion to strike the petitioner's proposed recommended order.

The findings of fact and conclusions of law proposed by the parties have been fully considered by the undersigned. To the extent that the parties' proposed ,findings of fact are not included in this Recommended Order, they are rejected as being either not supported, by competent, substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times pertinent to this proceeding, respondent Patrick Gallagher was a licensed optician in Florida, having been issued license number D00001006.

   
   

2. From approximately March of 1979 until December of 1981, except for the months of June and July, 1981, respondent was employed as a licensed optician for Union Optical in Tampa, Florida. Prior to May, 1981, respondent worked full time. When he returned to Union Optical in late July or August, 1981, he worked only three days a week. Another optician, Bobby Prohenza, was employed at Union Optical on a part-time basis in June and July of 1981.

   
   

3. Rose Ochs, the manager and/or supervisor of Union Optical in Tampa is not now, and has never been, licensed as an optician in the State of Florida.

   
   

4. Having received a complaint from Bobbie Prohenza against Union Optical and Rose Ochs, petitioner's investigator, Wayne Lopez, went to Union Optical on December 3, 1981, to investigate unlicensed opticianry activities. The only employee on the premises was Rose Ochs. While on the premises, Mr. Lopez observed Ms. Ochs handing a glasses case and glasses to a customer.

   Investigator Lopez, identifying himself to Ms. Ochs as a long , distance truck driver asked her if she could duplicate his existing prescription "glasses"" into "sunglasses." When Ms. Ochs refused to do so without a written prescription, Lopez told her he would obtain one. The investigator obtained a duplicate prescription from his personal physician and returned to Union Optical a few hours later. He handed the written prescription to Ms. Ochs and she took his eyeglasses and put them on a lensometer to see if the two prescriptions were the same. Mr. Lopez and Ms. Ochs then sat at a table across from one another and she began taking measurements with a small ruler across the bridge of his nose. She then wrote some numbers on a piece of paper and attached that paper to the prescription. Investigator Lopez, attempted to leave a deposit with Ms. Ochs, but was told he could pay for the glasses when he returned some weeks later.

   
   

5. When Mr. Lopez departed from the Union Optical premises, he observed a Florida opticianry license hanging over the entrance door, which license was issued to respondent Patrick Gallagher. After learning of respondent's address, Mr. Lopez went to respondent's residence on December 3rd, identified himself as an investigator with the Department of Professional Regulation and told respondent that he wanted to discuss with him the operation of Union Optical.

   
   

6. Respondent worked at Union Optical 24 hours a week on Mondays, Tuesdays and Fridays. While he knew the store was open on his days off, respondent had been assured that opticianry work would not be performed on those days. It was the respondent's understanding that when he was not on the premises, the only business which would be transacted was the selling of non-prescription items, glass care items and cleaning solutions. Respondent was aware that Rose Ochs would receive written prescriptions in his absence and would, on occasion, transfer or copy the prescriptions onto an invoice which went to an independent laboratory. He was also aware that Ms. Ochs occasionally assisted customers in the selection of a frame for their lenses and quoted prices to customers in his absence. Respondent did not suspect that Ms. Ochs took pupillary distance measurements or used the lensometer when he was not on the premises. He does not believe that Ms. Ochs has sufficient knowledge or experience to properly operate the lensometer.

   
   

7. Respondent was not present at Union Optical on December 3, 1981, when Investigator Lopez was on the premises. When Mr. Lopez described to him the events which had transpired at Union Optical on that date, some one-half hour after their occurrence, respondent was surprised to hear that Ms. Ochs had performed the functions of operating the lensometer and taking pupillary distances.

   
   

8. Respondent had no managerial control over the premises of Union Optical or Rose Ochs.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Administrative Complaint against the respondent charges that during the time that respondent was employed at Union Optical, Rose Ochs regularly operated the business without the presence of a licensed optician and that she engaged in activities defined as the practice of opticianry. It is alleged that Rose Ochs thereby violated Section 484.013(1)(b) and (2), Florida Statutes, and Rule 21P-10.08, Florida Administrative Code, and that respondent knew of such activities on the part of Rose Ochs and failed to report them to the petitioner, thereby violating Section 484.014 (1)(n), Florida Statutes.

10. Section 484.002(3), Florida Statutes, defines the practice of opticianry as the preparation and dispensing of lenses, spectacles, eyeglasses and other optical devices upon a written prescription of a licensed physican or upon presentation of a duplicate prescription. It also includes the duplication of lenses accurately as to power, without prescription. The statutory definition excludes from the practice of opticianry the selection of frame designs, the actual sales transaction and the transfer of physical possession of optical devices subsequent to the performance of services of an optician after the optician has completed the fitting of the optical device upon the customer. It is unlawful for any person not licensed as an optician in this State to prepare or dispense optical devices, to use the title "optician" or to otherwise lead the public to believe that he/she is engaged in the practice of opticianry. Section 484.013(1)(b) and (2), Florida Statutes. Every place of business where opticianry is practiced is required to have a licensed optician on the premises during working hours. Rule 21P-10.08, Florida Administrative Code. A licensed optician who "willfully" fails to report any person known to be in violation of Chapter 484 or the applicable rules is subject to disciplinary action by the Board of Opticianry. Section 484.014 (1)(n), Florida Statutes.

    
    

11. The burden of proof in this proceeding is upon the petitioner to present evidence in support of the allegations in its Complaint which is both competent and substantial. In a matter as grave as a disciplinary proceeding where one's business or professional license is placed in jeopardy, the term "substantial competent evidence" takes on vigorous implications and the "prosecutor's proof [must] be as serious minded as the intended penalty is serious." Bowling v. Department of Insurance, 394 So.2d 165, at 172 (Fla. 1st DCA, 1981).

    
    

12. In this proceeding, the evidence presented by the petitioner failed to establish that Rose Ochs actually engaged in the practice of opticianry or violated Rule 21P-10.08, Florida Administrative Code. More importantly with respect to the respondent, the evidence failed to establish that respondent had any knowledge of purported illegal activities on the part of Mrs. Ochs and willfully failed to report the same.

    
    

13. Rule 21P-10.08 requires a licensed optician to be on the premises during the working hours of a place of business where opticianry is practiced. It does not prohibit a business from remaining open for other purposes when opticianry services are not being performed.

    
    

14. In this proceeding, the only competent evidence adduced as to the provision of opticianry services by Ms. Ochs concerned the December 3, 1981, incident at Union Optical when respondent was not present. The evidence reveals that Rose Ochs refused to prepare sunglasses for Mr. Lopez from a duplication of his existing eyeglasses. When he brought in a prescription, Ms. Ochs did use a lensometer, take vertical and horizontal measurements around his nose and wrote some numbers down on a piece of paper. However, there was no evidence that she continued to "prepare" the sunglasses or that she transferred the sunglasses back to Mr. Lopez without the services of an optician having been previously performed and without an optician completing the fitting of the glasses upon Mr. Lopez. While such acts may have occurred on the part of Ms. Ochs, petitioner did not prove this by competent substantial evidence.

    
    

15. In any event there was absolutely no evidence that respondent had knowledge that Ms. Ochs was ever engaged in the practice of opticianry and, more specifically, that he had any knowledge of the events occurring on December 3, 1981, which events form the basis of the charge against the respondent. The

evidence is clear that respondent had no knowledge of the December 3rd incident until after its occurrence. When told by Mr. Lopez of what had occurred on that date, respondent expressed surprise that Ms. Ochs would use a lensometer and take nose measurements. He had previously been assured that the only business which would be conducted by Union Optical on his days off were the sale of non- prescription glasses, glass care items and cleaning materials. The petitioner failed to present sufficient evidence that respondent had actual knowledge or that he should have been aware that Rose Ochs was performing services encompassed within the practice of opticianry either in his absence or when he was on the premises of Union Optical. Absent such evidence, respondent cannot be found guilty of "willfully failing to report any person who the licensee knows is in violation of Chapter 484 or the applicable rules of the Department of Professional Regulation or the Board of Opticianry, as proscribed by Section 484.014(1)(n), Florida Statutes.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint charging respondent with a violation of Section 484.014(1)(n), Florida Statutes, be DISMISSED.

Respectfully submitted and entered this 16th day of May, 1983, in Tallahassee, Florida.

DIANE D. TREMOR

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 16th day of May, 1983.

COPIES FURNISHED:

Jerry Frances Carter, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Paul W. Lambert, Esquire Slepin, Slepin, Lambert & Waas 1115 East Park Avenue Tallahassee, Florida 32301

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Fred Varn Executive Director Board of Opticianry

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002060

Orders for Case No: 82-002060