STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BOARD OF OPTICIANRY, )

)

Petitioner, )

)

vs. ) DOAH Case No. 85-4330

) DPR CASE NO. 0057218

SAMUEL ROSENBERG, )

)

Respondent. )

)

RECOMMENDED ORDER

Following the provision of notice, a formal hearing was held in this action as envisioned by Section 120.57(1), Florida Statutes. The location of the hearing was Deland, Florida. The hearing took place on October 7, 1986. Charles C. Adams was the hearing officer. This recommended order is being entered following the receipt and review of the transcript of proceedings which was filed with the Division of Administrative Hearings on November 3, 1986. In addition, the proposed recommended orders of the parties have been considered. The most recent proposal was filed on November 13, 1986. The fact proposals have been utilized to some extent. Otherwise they are rejected for reasons as set forth in the appendix to this recommended order.

APPEARANCES

For Petitioner: Cecilia Bradley, Esquire

Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Samuel Rosenberg, pro se

542 White Street

Daytona Beach, Florida 32014 ISSUES

The issues in this case concern an administrative complaint brought by the State of Florida, Department of Professional Regulation, Board of Opticianry (Petitioner) against Samuel

Rosenberg (Respondent).The allegations in that administrative complaint are directed to claimed improprieties on the part of the Respondent in his actions as a sponsoring optician for the benefit of David Somerville, an apprentice optician, both men licensed in the state of Florida. Respondent is said to have violated various provisions of Chapters 455 and 484, Florida Statutes, and Chapter 21P, Florida Administrative Code.

FINDINGS OF FACT

Part A

The following facts are found based upon the stipulation entered into by the parties:

1. Petitioner, Department of Professional Regulation, is the 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 is a licensed optician in the state of Florida, having been issued license number 0001618. Respondent's last known address is 542 White Street, Daytona Beach, Florida.

   
   

3. David Somerville is not a licensed optician in the state of Florida. He is currently registered as an apprentice. A successful completion of this apprenticeship would enable him to sit for the Florida Examination to become licensed as an optician.

   
   

4. An individual who is registered as an apprentice can perform no independent opticianry functions. An apprentice optician's activities must be directly supervised by a licensed optician. The Respondent is David Somerville's supervising apprentice sponsor.

   
   

5. In February 1985, for a period of two or three weeks, Respondent had been an employee at Brandywine Optical, the business premises of David Somerville. Respondent then agreed to act as Somerville's sponsoring optician, supervising Somerville for forty hours per week.

   
   

   Part B

   
   

   Factual findings based upon the testimony adduced at hearing and in consideration of exhibits admitted at hearing:

   
   

6. As reflected in Petitioner's Exhibit 7 admitted into evidence, on March 14, 1985, Samuel Rosenberg made application as sponsor of an apprenticeship program for the benefit of David Somerville. In that application it was indicated that Rosenberg

   would supervise the apprenticeship of Somerville for a period of forty hours a week.

   
   

7. Rosenberg believes that Somerville is capable of performing opticianry work. He states that based upon Somerville's past experience and performance, he, Rosenberg, can afford to step out for a cup of coffee, and while he is out of Brandywine Optical, Somerville can do as fine a job of adjusting a pair of glasses as Rosenberg could. He also feels that it would be acceptable to leave Somerville alone while Rosenberg goes to the post office to mail things. Rosenberg does not feel responsible to monitor Somerville's activities at the Brandywine Optical business other than within the forty hours for which he is involved with Somerville.

   
   

8. In supervising Somerville, Rosenberg had an arrangement early on in which twelve hours' supervision was given at a flea market and an additional twenty-eight hours at the Brandywine Optical store. This changed to eight hours on Saturday at the flea market and thirty-two hours a week at Brandywine Optical. The thirty-two hours is from Monday through Thursday. On Friday, Rosenberg understands that an optometrist is in attendance at the Brandywine Optical, and Somerville is only answering the phone and showing frames to customers. Nonetheless, Rosenberg admits that he has never been at the Brandywine Optical on Friday to confirm this arrangement in which Somerville is purported to do no opticianry work. Rosenberg assumes that Somerville in good conscience will not do anything irregular related to activities by an apprentice optician while Rosenberg is not attendance on Fridays. Otherwise, Rosenberg assumes that the optometrist at the business on Friday is responsible for Somervilles activities.

   
   

9. Robert Schwalm, a licensed optician in the state of Florida, on March 20, 1985; March 27, 1985; April 3, 1985;. and April 17, 1985, while seated in the parking lot adjacent to the Brandywine Optical store and using 50 power binoculars, observed Somerville without supervision of an optician, optometrist or opthalmologist, practice opticianry, to wit, adjusting, delivering, fitting and collecting money for glasses. Adjustments would include working on frames etc. Rosenberg was not in attendance while these activities were being conducted by Somerville. On these occasions, when Rosenberg would arrive at the store, the witness Schwalm would depart.

   
   

10. Similarly, Harry Rowley, licensed optician in the state of Florida, on March 20, 1985; March 27, 1985; April 3, 1985; and April 17, 1985, observed Somerville's participating in the practice of opticianry. Except for one of these instances in which Rosenberg came into the store, Somerville was practicing opticianry outside the presence of Rosenberg. Somerville's

    practice of opticianry included dispensing glasses, adjusting glasses and collecting fees.

    
    

11. On July 22, 1985, an investigator with the Department of Professional Regulation, Philip T. Hundermann, went to the Brandywine Optical store and parked outside the store. He arrived between 9:30 a.m. and 10:00 a.m. At 10:00 a.m. a person was observed leaving the store. At 10:05 a.m. Rosenberg was seen parking his car and then was observed entering the premises. The investigator went into the store at 10:10 a.m. and observed Somerville talking to a male customer while Rosenberg was standing at the counter. The investigator then requested that Rosenberg participate in an interview. Rosenberg and the investigator left the business premises and in another location held a discussion about concerns related to a complaint against Rosenberg's license. Rosenberg told the investigator that he supervised Somerville for a period of forty hours a week as the sponsoring optician. Rosenberg said that typically he would arrive at the Brandywine Optical store at 10:00 a.m. and leave around 4:00 or 4:30 p.m. This would mean that Somerville was unsupervised from 9:00 a.m. to 10:00 a.m. and from 4:00 or 4:30

    p.m. to 5:00 p.m.

    
    

12. On August 27, 1985, Douglas Vanderbllt, an investigator with the Department of Professional Regulation, went to the Brandywine Optical store. When he entered the store, Somerville and another customer were the only persons in attendance. The customer was trying on frames and making a selection of frames, with the assistance of Somerville. Vanderbilt picked out some frames that he wanted to buy. Somerville took the glasses that Vanderbilt had and made measurements from those glasses. This was in furtherance of the preparation of a new pair of spectacles at a cost of $1lO. Sixty dollars was paid down. Some of the measurements Somerville made pertaining to Vanderbilt involved bifocals. No prescription had been presented by Vanderbilt and Somerville used the old glasses which Vanderbilt had as a basis for measurement. Vanderbilt was presented with a business card which may be found as Petitioner's Exhibit 1 admitted into evidence. The business card reflects Brandywine Optical, prescriptions filled, eye glasses and contact lenses. It gives the business address and indicates that David Somerville is the dispensing optician. This card is similar to a card sitting on the counter where Vanderbilt was seated. Respondent was aware of the information set forth on the card received as an exhibit. Somerville, upon the questioning of Vanderbilt, confirmed that the name Somerville reflected on the card and the Respondent Somerville were one and the same person.

13. On September 9, 1985, Vanderbilt returned to the business premises at Brandywine Optical. At that time, only

    Somerville was present. Somerville broke the black stainlesse steel frame across the bridge of the new glasses. Consequently, Vanderbilt picked out a brown frame, and Somerville fitted the brown pair of glasses on Vanderbilt.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearing has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

15. Count I to the administrative complaint charges the Respondent with a violation of Section 484.014(1)(q), Florida Statutes, in that he is alleged to have permitted a person not licensed as an optician in the state to fit or dispense lenses, spectacles or eye glasses or other optical devises which are part of the practice of opticianry. Respondent is guilty of this offense in that he made available opportunities in his absence during the work days on which he was charged with the supervision of the apprentice optician Somerville to conduct the practice of opticianry, as defined, by allowing the store to be open between the hours of 9:00 a.m. to 10:00 a.m. and 4:00 or 4:30 p.m. to 5:00 p.m. This permitted Somerville to practice opticianry without supervision. Moreover, in leaving the licensed premises during the time reputedly devoted to supervision to run errands, Respondent presented a further opportunity for the practice of opticianry. Given these opportunities, Somerville did practice opticianry as evidenced by the situations seen by Schwalm and Rowley and experienced by Vanderbilt. This violation subjects Respondent to the penalties set forth in Section 484.014(2), Florida Statutes.

16. Count II of the administrative complaint charges Respondent with the violation of Section 484.014(1)(a), Florida Statutes, by willfully failing to report any person whose license he knows is in violation of this part or the rules of the Department and the Board. The proof is not sufficient to show that Respondent knew that Somerville was in violation of this part or the rules of the Department and the Board. Therefore, this proof has not been sustained and no violation has been shown.

    
    

17. Count III to the administrative complaint alleges that the Respondent has violated Section 484.014(1)(g), Florida Statutes, by a violation of Chapter 484, Florida Statutes, specifically through a violation of Section 484.013(1)(a), Florida Statutes, in that he is accused of making a false and fraudulent statement for himself or another person in any application, affidavit or statement presented to the Board or in a proceeding before the Board. Respondent assisted the

    apprentice optician Somerville by filing an apprentice application as sponsor. Proof at hearing does not demonstrate that anything stated within that document is incorrect. No other documents or statements were attributed to the Respondent.

    Therefore, the proof of violation of this provision has not been shown and Respondent is not guilty of that violation. In addition, one cannot violate Section 484.014~1)(g), Florida Statutes, by violation of Section 484.013(1)(a), Florida Statutes. Prosecution of the latter provision is the sole province of the State Attorney, not the Department of Professional Regulation administrative prosecutor.

    
    

18. Count IV to the administrative complaint accuses the Respondent of a violation of Section 484.014(1)(g), Florida Statutes; Section 455.227(1)(b), Florida Statutes, and Rule 21P- 16.08, Florida Administrative Code, by failing to provide direct supervision of his apprentice Somerville. Section 484.014(1)(g), Florida Statutes, speaks in terms of establishment of a violation through violation or repeated violation of Chapter 484, Florida Statutes, Part I, or by violation of Chapter 455 or any rules promulgated pursuant thereto. Section 455.227(1)(b), Florida Statutes, is violated because Respondent intended to leave Somerville alone when Respondent should have been supervising the apprentice according to Rule 21P-16.08, Florida Administrative Code. This rule makes it incumbent upon the Respondent, as sponsor, to adhere to the requirements of Chapter 21P, Florida Administrative Code. Within that chapter is found Rule 21P- 16.01(4), Florida Administrative Code, which requires that the sponsor provide direct supervision of the apprentice. This means supervision in a sense where the sponsor remains on the premises while all work is being done and that he gives final approval to any work performed by the apprentice. Respondent has violated that provision. Therefore, Respondent has violated Section 484.014(1)(g), Florida Statutes, as well, and is subject to the penalties announced at Section 484.014(2), Florida Statutes.

Based upon a consideration of the facts and the conclusions of law reached, it is,

RECOMMENDED:

That a final order be entered which finds the Respondent guilty of the violations alleged in Counts I and IV and absolves the Respondent of guilt related to allegations set forth in Counts II and III. For the violations established, the final order should impose a suspension of sixty days.

DONE AND ENTERED this 23rd day of December, 1986, at Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1986.

COPIES FURNISHED:

Cecilia Bradley, Esquire Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Samuel Rosenberg

542 White Street

Daytona Beach, Florida 32014

Pat Guilford, Executive Director Board of Opticianry

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Wilson J. Foster, Jr., Esquire

615 Florida National Bank Building Tallahassee, Florida 32301

Wings Slocum Benton General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

APPENDIX

The facts suggested by the parties have been set forth in the recommended order with the exception of the following:

Petitioners' proposed facts

1. Although as suggested in paragraph 10 in the fact proposal, Respondent did indicate 16 hours of supervision at the flea market location. Having heard the explanation of the Respondent at hearing, the time devoted to supervision at the flea market is found to be twelve hours with an additional 28 hours at the Brandywine Optical store. These facts are reported in the recommended order.

   
   

2. The facts set forth in paragraph 15 are not necessary to resolution of the dispute.

   
   

3. Paragraph 31 is not necessary to the resolution of the dispute. Reference in paragraphs 32 and 38 to observations made by the witnesses Schwalm and Rowley pertaining to February 20, March 6 and 13, 1985, are irrelevant because these observations occurred before Respondent had undertaken the sponsorship of David Somerville for purposes of apprentice training.

4. Paragraph 27 is not necessary to the resolution of the facts in the dispute.

   
   

5. Paragraphs 42 and 43 are subordinate to facts found in the recommended order.

   
   

6. Paragraph 44 is not necessary to the resolution of the dispute.

   
   

   Respondent's proposed facts

   
   

7. The first paragraph to page 1 of the submission by the Respondent attempts to characterize the allegations set forth in the administrative complaint at paragraphs 1 through 6 and is not considered to be proposed fact finding.

   
   

8. The second paragraph of page 1 is contrary to the facts found in the recommended order. Paragraph 3 of page 1 is a summation of the Respondent's understanding of the claims set forth in the administrative complaint and is not fact finding.

   
   

9. The balance of the fact proposals is a mixture of factual contentions and argument. All those factual contentions are rejected as being contrary to facts found in the recommended order, with the exception that Respondent is not held accountable for any advertising done by Brandywine Optical in the Florida Investment Journal, June 13, 1985, issue.

Docket for Case No: 85-004330

Orders for Case No: 85-004330