STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY )

)

Petitioner, )

)

vs. ) CASE NO. 83-1117

)

IRA J. COHEN, O. D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, R. L. Caleen, Jr., Hearing Officer,with the Division of Administrative Hearings, conducted a formal hearing in this case on August 23, 1983, in Miami, Florida.

APPEARANCES

For Petitioner: Stephanie Daniel, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Keith Chasin, Esquire

8585 Sunset Drive, Suite 75

Miami, Florida 33143

ISSUE

Whether respondent's license to practice optometry should be disciplined on charges that he failed to comply with, or violated, a lawful order of the Board of Optometry.

BACKGROUND

On March 15, 1983, petitioner, Department of Professional Regulation, Board of Optometry ("Department") filed an administrative complaint charging respondent, Ira J. Cohen ("respondent") with violating Section 463.016(1)(s), Florida Statutes (1981), "by violating [a] lawful order of the board or department, previously entered in a disciplinary proceeding."

Respondent disputed the charges and requested a formal Section 120.57(1) hearing. On April 18, 1983, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for August 23, 1983.

At hearing, the Department presented the testimony of Mildred Gardner; respondent testified in his own behalf. Department's Exhibit Nos. 1 through 5 and respondent's Exhibit Nos. 1 through 3 were received into evidence. 1/

Although the Department's posthearing filing was untimely, respondent's motion to dismiss this case, on such ground, is denied.

Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

1. At all times material hereto, respondent was licensed as an optometrist, having been issued license number 0001338 by the Board of Optometry (P1, P2).

   
   

2. On January 28, 1981, a Final Order was entered by the Board of Optometry which applied to respondent and his license to practice optometry. The Final Order, which resulted from a disciplinary proceeding against respondent, provided in pertinent part:

   
   

   1. That Respondent's license be suspended for a period of three months, to be served from February 5, 1981 to May 4, 1981, or immediately upon the lifting of any stay or other intervening legal process. During the period of suspension the Respondent may not hold himself out as an optometrist or practice optometry.

      
      

   2. That Respondent pay a fine of $500.00 for each count of the Administrative Complaint, for a total of $2500.00 to be paid as ordered in the imposition of probation on the Respondent.

      
      

   3. That the Respondent serve a period of probation of three years, which shall commence on May 5, 1981, or three months after the lifting of any stay or other intervening legal process. The terms of the probations shall be as follows:

      1. The Respondent shall obey all laws and regulations of the State of Florida.

      2. The Respondent shall inform the Board of any change of his address, including his residence address and all locations at which he practices optometry.

      3. The Respondent shall appear before the Board to report on his activities in six months and semiannually thereafter. The Board shall give the Respondent notice of those meetings held at or near Miami, Florida at which the Respondent should appear.

      4. The Respondent shall pay the fine of

         $2500.00 imposed by February 5, 1982, or one

         year after the lifting of any stay or other intervening legal process. (e.s.)

         
         

3. Respondent appealed this Final Order to the Third District Court of Appeal of Florida, which upheld the order. Respondent then filed a petition for rehearing, which was denied by order of the Court, dated January 13, 1982. On January 21, 1982, respondent filed a motion for stay with the Florida Supreme Court, which motion was later withdrawn. (Testimony of Gardner, P-5, R-1, R-3).

   
   

4. By letter dated January 22, 1982, respondent asked for permission to appear before the Board of Optometry on February 6 and 7, 1982, and further requested that the order, which he had unsuccessfully appealed, be stayed pending his appearance. When he appeared before the Board of Optometry on February 6, 1982, asking for a less severe penalty, the Board's attorney advised that due process had transpired and that the Board had no further jurisdiction to reopen the case. The Board took no action. (Testimony of Gardner, R-1, R-3)

   
   

5. Under the Board's Final Order, respondent's license to practice optometry was effectively suspended from January 28, 1982 (15 days after the Third District's denial of his petition for rehearing), until April 28, 1982. This suspension commenced immediately upon the completion or lifting of all intervening legal processes. Under Rule 9.340, Florida Rules of Appellate procedure, that event took place 15 days from the Court's order denying rehearing. (Testimony of Gardner, P-2, R-1, R-3)

   
   

6. Under paragraph 3.d) of the Final Order, the $2,500 fine became due and payable on January 28, 1983, one year after the lifting of any stay or the completion of the intervening legal process. Respondent, however, failed to pay the fine by January 28, 1983. (Testimony of Gardner, P-2, P-3)

   
   

7. On or about March 8, 1983, Mildred Gardner, Executive Director for the Board of Optometry, sent a "bill" to respondent indicating that the payment of respondent's fine was past due. (Testimony of Gardner, P-4)

   
   

8. On or about March 22, 1983, respondent paid, by check, the $2,500 fine to the Board of Optometry. The check was subsequently cashed by the Board without express reservation or protest. (Testimony of Gardner, respondent, P-3)

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. 120.57(1), Florida Statutes (1981).

   
   

10. License disciplinary proceedings, such as this, are penal in nature. The prosecuting agency must prove its charges by clear and convincing evidence-- by evidence as substantial as the consequences. See, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966); Walker v. State, 322 So.2d 612 (Fla. 2d DCA 1975); Bowling v. Dept. of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

11. Section 463.016(1)(s), Florida Statutes (1981), authorizes the Department to revoke an optometrist's license, or impose other disciplinary sanctions, for:

    
    

    (s) Violating any lawful order of the board or department previously entered in a disciplinary hearing. . .

    
    

12. Here, the Department has met its burden and convincingly demonstrated that respondent violated Section 463.016(1)(s) by violating, or failing to comply with the Final Order requiring an administrative fine to be paid within one year after the lifting of any stay or the completion of any other intervening legal process. When paragraphs one through three of the order are read, in pari materia, it is concluded that the order required, with sufficient clarity, that the fine be paid by January 28, 1983. Respondent did not meet this requirement.

    
    

13. Although respondent argues estoppel, the elements of estoppel have not been established. The Department's simple negotiation of respondent's check is not the type of affirmative and unequivocal act which must be shown before equitable estoppel is applied against the state. Neither has it been shown that respondent relied, to his detriment, on a representation of fact made by the Department. See, Department of Revenue v. Anderson, 403 So.2d 397, 400 (Fla. 1981); City of Hollywood v. Hollywood Beach Hotel Co., 283 So.2d 867, 869 (Fla. 4th DCA 1973), rev. in part, 329 So.2d 10 (Fla. 1976).

    
    

14. Penalty. Respondent had provided no excuse or reasonable justification for his violation of, or failure to timely comply with, the Board's Final Order. But neither has the Board shown that his violation was a deliberate or intentional one. Under such circumstances, an administrative fine of $500, one half of the fine permitted by Section 463.016(2)(c), should be imposed.

    
    

15. The parties' proposed findings of fact have been considered in preparing this recommended order. To the extent their proposed findings were consistent with the weight of credible evidence adduced at hearing, they have been adopted and are reflected in this recommended order. To the extent 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 been rejected.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent be administratively fined $500 for violating Section 463.016(1)(s), Florida Statutes (1981).

DONE and ENTERED this 7th day of December, 1983, in Tallahassee, Florida.

R.L. CALEEN, JR. 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 7th day of December, 1983.

ENDNOTE

1/ The Department's and Respondent's Exhibits will be referred to as "P- " and "R- ," respectively.

COPIES FURNISHED:

Stephanie Daniel, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Keith Chasin, Esquire

8583 Sunset Drive, Suite 75

Miami, Florida 33143

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-001117

Orders for Case No: 83-001117