STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTICIANRY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2288

)

GEORGE MARTIN, )

)

Respondent. )

)

RECOMMENDED ORDER

No final hearing was held in this case. Instead, the parties stipulated to the facts and agreed to submit the case to the Hearing Officer for entry of a recommended order. No evidence in addition to the stipulated facts was presented.

APPEARANCES

For Petitioner: Edward C. Hill, Jr., Esquire

Tallahassee, Florida

For Respondent: Charles J. Bartlett, Esquire

Sarasota, Florida

ISSUE

The issue in this case is whether the Board of Opticianry should discipline Respondent, George Martin (Martin), for alleged fraudulent, false, deceptive or misleading advertising in violation of Rule 21P-10.05(2)(a), (b), (f) and (g), Florida Administrative Code, and Section 484.014(1)(e) and (g), Florida Statutes (1983).

FINDINGS OF FACT 1/

1. Petitioner, Department of Professional Regulation (Department), is a state agency charged with regulating the practice of opticianry pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 484, Florida Statutes.

   
   

2. Respondent, George Martin (Martin), is and has been at all times material a licensed optician in the State of Florida, having been issued license number DO 000945.

   
   

3. In July of 1982, an advertisement was placed by Opti- Mart, an optical company, in the Sarasota Herald Tribune newspaper. A copy of this advertisement is attached and incorporated by reference as Exhibit A.

4. At the time that the advertisement was published, Martin had no ownership or interest as an officer or a director in Opti- Mart, Inc.

   
   

5. The advertisement was placed by the owner of Opti-Mart, Mr. Douglas W. Rankin.

   
   

6. Prior to placing the ad, Douglas W. Rankin showed the advertisement to Martin, his licensed optician, for his approval. Martin approved the ad.

   
   

7. Martin does not recall having seen or approved the subject's advertisement prior to publication, the ad having been placed by Opti-Mart, Inc., although Martin does not specifically deny having seen a copy of the ad prior to publication.

   
   

8. At the time of the publication of the ad, Opti-Mart had made arrangements for a licensed optometrist to conduct eye examinations by appointment for persons who called in response to the ad.

   
   

9. There was not evidence that any member of the public was actually deceived or misled by the wording of the ad.

   
   

10. Any persons who called in response to the ad were informed that the eye examinations were performed by a licensed optometrist and not by Martin or any other optician.

    
    

11. Martin did not intend to conduct any eye examination, nor would any such eye examinations be performed by him.

    
    

12. Martin had no intention to deceive or mislead any members of the public as to who would be performing the eye examinations.

    
    

13. Immediately upon receiving knowledge that there was a question concerning the text of the advertisement, Martin caused Opti-Mart to cease running the ad with Martin's name appearing in the ad.

    
    

    CONCLUSIONS OF LAW

    
    

14. Under Section 120.57(1), Florida Statutes (1983), the Division of Administrative Hearings has jurisdiction of an administrative proceeding such as this one "whenever the proceeding involves a disputed issue of material fact." In this case, there is no disputed issue of material fact. The parties have stipulated to the facts, and the only question is a legal question--whether the facts establish a violation of the pertinent statute and rule. Curiously, Section 120.57(1), Florida Statutes (1983), provides that the parties can agree to submit to a Hearing Officer for entry of a recommended order a case without any disputed issue of fact. When they do, the Hearing Officer's conclusions of law constitute nothing more than an advisory opinion which the agency is free to reject. 2/ Nonetheless, the statute authorizes such a procedure, and the parties have chosen to assert their statutory right to it. Accordingly, the Division of Administrative Hearings has jurisdiction.

    
    

15. Under Section 484.013(3), Florida Statutes (1983), it is unlawful for an optician, at least under the sole authority of his license as an optician, to perform eye examinations, among other things.

    
    

16. Section 484.014(1), Florida Statutes (1983), provides in pertinent part:

    1. The following acts relating to the practice of opticianry shall be grounds for disciplinary 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.

       (g) Violation or repeated violation of this part or of chapter 455 or of any rules promulgated pursuant thereto.

       
       

17. Rule 21P-10.05, Florida Administrative Code, provides in pertinent part:

    
    

    1. No optician shall disseminate or cause the dissemination if any advertisement or advertising which is in any way fraudulent or false, or which has the capacity or tendency to deceive or mislead. Any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading, if it:

       1. Contains a misrepresentative [sic] of facts; or

       2. has the capacity or tendency to mislead or deceive because in its content or in the context in which it is presented it makes only a partial disclosure of relevant facts; or

          1. Contains any representation or claims which the optician referred to in the advertising fails to perform; or

          2. Contains any other representation, statement, or claim which has the capacity or tendency to mislead or deceive.

    2. When determining what constitutes fraudulent, false, deceptive, or misleading advertisement, the Board shall be guided by the rules promulgated and decisions rendered by the Department of Legal Affairs under Part II, Chapter 501, Florida Statutes, and applicable rules promulgated and decisions rendered by the Federal Trade Commission.

    
    

18. In this case, the Department does not refer to the Department of Legal Affairs rules defining "fraudulent, false, deceptive, or misleading advertisement." It asserts that the advertisement in the case was "fraudulent, false, deceptive, or misleading" to the extent that it can be "deemed by the Board to be fraudulent, false, deceptive or misleading" under subparagraph (a), (b), (f) or (g) of Rule 21P-10.05(2), Florida Administrative Code. 3/ It also asserts that the advertisement in this case "has the capacity or tendency to deceive or mislead," contrary to Rule 21P-10.05(2) (to the extent that this prohibition may be broader than the prohibition set out in subparagraphs (b) and (g)).

19. The advertisement in this case does not contain a misrepresentation of fact. Therefore, no violation of subparagraph (a) of Rule 21P-10.05(2) was established.

    
    

20. The advertisement in this case does contain a representation or claim (eyes examined by appointment) which the optician referred to in the advertising (Martin) was never intended to perform. But that is not the same as advertising services which the optician referred to in the advertising "fails to perform," as set out in subparagraph (f) of Rule 21P-10.05(2). The evidence is that Martin has the eye examinations performed by a qualified optometrist. Penal statutes such as Section 484.014, Florida Statutes (1983), must be strictly construed, and no conduct should be regarded as included within it that is not reasonably proscribed by it. See Lester v. Department of Professional and Occupational Regulation, 348 So. 2d 923, 925 (Fla. 1st DCA 1977). There is no reason why this same rule of construction should not apply to an agency rule that proscribes particular conduct. If an agency wishes to broaden the prohibition to prohibit himself, it must either (1) promulgate a rule proscribing the additional particular conduct or (2) introduce sufficient evidence to establish in a 120.57 proceeding that the additional particular conduct is prohibited under one of the agency's more general existing rules, such as the rules prohibiting advertising which has the "capacity or tendency to deceive or mislead." Neither was done in this case. Accordingly, no violation of subparagraph (f) of Rule 21P- 10.05(2) was proved.

    
    

21. As to subparagraphs (b) and (g) of Rule 21P-10.05(2), it should first be noted that the parties, by stipulation, precluded any finding of fact that the advertisement "has the capacity or tendency to deceive or mislead." To sustain the charge, the mere fact of the advertisement must be sufficient to support a conclusion of law that it has the capacity or tendency.

    
    

22. It should be noted that the stipulated facts preclude a fining of fact that the eye examinations to be arranged by Martin were to be conducted off the premises of Martin's optical center.

    
    

23. It is concluded as a matter of law that the advertisement has the "capacity" (if not tendency) to lead a reasonable respondent to believe that Martin would be examining his or her eyes, if required. But, if so, the respondent would hold the belief only until he or she responded to the advertisement and was told that the examination would be with an optometrist. The facts do not prove that the optometrist's examination would be off the premises or that the examination would be delayed because Martin would not be performing it. Martin did not intend to deceive or mislead anyone, and no one was deceived or misled.

    
    

24. Section 484.001, Florida Statutes (1983), states that the legislative purpose in regulating the practice of opticianry is to decrease the "danger to the public health and safety" presented by "unskilled and incompetent practitioners" and to help "the public to make an informed choice about opticians." (Emphasis supplied.)

    
    

25. Rule 21P-10.05(1), Florida Administrative Code, provides:

    
    

    1. It is the policy of the Board of Opticianry that advertising by licensed opticians in this state shall be regulated so as to effectuate the duty of the State of Florida to protect the health, safety, and

       welfare of its residents, while not abridging any rights guaranteed to practitioners or to the public by the Constitutions of the United States and the State of Florida, as construed by the United States Supreme Court and the Florida Courts. To that end, the dissemination to the public legitimate information regarding the practice of opticianry and where from whom opticianry services may be obtained is authorized so long as such information is in no way fraudulent, false, deceptive or misleading. (Emphasis supplied.)

       
       

26. Construed in light of the legislative and agency intent, subparagraphs

    (b) and (g) of Rule 21P-10.05(2) are not designed to address the type of "deception" for which the facts in this case prove that Martin's advertisement has a capacity or tendency. The "deception" proved in this case is no more harmful or dangerous to the health, safety, or welfare of the public than if the advertisement had a typographical error that the location was "1848" instead of "1849" Hillview Street. Without some proof, it cannot be concluded as a matter of law that any reasonable respondent to the advertisement who was "deceived" would by in any way harmed, upset, or inconvenienced to discover that his or her eyes would be examined by an optometrist who is qualified to examine eyes instead of by an optician who is not.

    
    

27. As to the prohibition in subparagraph (b) of Rule 21P- 10.05(2) against advertising "in the context in which it is presented . . . makes only a partial disclosure of relevant facts," the facts disclosed were not proved to be relevant (as discussed in the immediately preceding paragraph).

    
    

28. Accordingly, it cannot be concluded as a matter of law on the facts of this case that Martin violated either subparagraph (b) or (g) of Rule 21P- 10.05(2). Nor was there any violation of the other language in Rule 21P- 10.05(2) prohibiting advertising which "has the capacity or tendency to deceive or mislead."

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that the Board of Opticianry enter a final order dismissing the

Administrative Complaint in this case with prejudice.

RECOMMENDED this 7th day of December, 1984, in Tallahassee, Florida.

J. LAWRENCE JOHNSON 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, 1984.

ENDNOTES

1/ The parties admitted or stipulated to all the facts, as reflected in the following Findings Of Fact.

2/ If the agency's conclusions of law are incorrect, they can be reversed on appeal. But that would be the case whether or not the Hearing Officer entered a recommended order.

3/ In any event, the Department introduced no evidence on which it could be concluded that the advertising in this case was "fraudulent, false, deceptive or misleading" on any other ground.

COPIES FURNISHED:

Edward C. Hill, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Charles J. Bartlett, Esquire Post Office Drawer 4195

2041 Mail Street

Sarasota, Florida 33578

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Varn, Executive Director Department of Professional Regulation Board of Opticianry

130 North Monroe Street Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

CASE NO. 0027297

vs. LICENSE NO. DO000954

DOAH CASE NO. 84-2288

GEORGE MARTIN,

Respondent.

/

FINAL ORDER

This matter came before the Board of Opticianry pursuant to Section 120.57(1)(b)9, Florida Statutes, on March 8, 1985, at Orlando, Florida, for consideration of the Recommended Order issued by the Hearing Officer in the case of Department of Professional Regulation vs. George Martin, DOAH Case Number 84- 2288. Also considered at that time were Exceptions to the Recommended Order filed by Mr. Edward Hill, Jr., Esquire representing Petitioner, and the Response to Exceptions to Recommended Order filed by Mr. Charles J. Bartlett, Counsel for Respondent. After due notice, Respondent was not present.

Upon consideration of the documents listed heretofore and Petitioner's Proposed Recommended Order and upon the argument of Petitioner, the Board makes the following findings.

CONCLUSIONS OF LAW

1. The Board of Opticianry has jurisdiction of this matter pursuant to the provisions of Section 120.57(1) and Chapter 484, Florida Statutes.

   
   

2. The Board specifically rejects paragraph 9, Conclusions of Law, of the Hearing Officer's Recommended Order.

   
   

3. The Conclusions of Law of Petitioner's Proposed Recommended Order (a copy of which is attached and incorporated by reference) are hereby approved and adopted.

WHEREFORE, IT IS HEREBY ORDERED;

That Respondent pay an administrative fine of $500.00, and that such fine be payable to the Executive Director, Board of Opticianry within 30 days of the date of this Order.

DONE and ORDERED this 8th day of April, 1985.

H. Fred Varn, Executive Director Board of Opticianry

cc: Mr. Ed Hill, Chairman, Department of Professional Regulation Charles J. Bartlett, Esquire

Post Office Drawer 4195, 2041 Main Street, Sarasota, Florida 33578

Fred Varn, Executive Director, Department of Professional Regulation

Docket for Case No: 84-002288

Orders for Case No: 84-002288