STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNITED STATES SHOE CORPORATION, ) PRECISION LENSCRAFTERS DIVISION, ) PEARLE VISION, INC., AND )

COLE VISION CORPORATION, )

)

Petitioners, )

)

vs. ) CASE NO. 89-6201RP

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTICIANRY, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled cause on March 19, 1990, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioners: David Eastman, Esquire

Post Office Box 669 Tallahassee, Florida 32302

For Respondent: Theresa M. Bender, Esquire

Assistant Attorney General Department of Legal Affairs Suite 1602, The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

At issue is whether Respondent materially failed to follow applicable ruling making procedures required by Section 120.54(2)(a), Florida Statutes, with regard to promulgation of proposed Rule 21P-16.002, Florida Administrative Code, relating toqualifications of sponsors for apprentice opticians; whether the proposed rule is an invalid exercise of delegated authority by Respondent; and whether Petitioners are parties substantially affected by the proposed rule.

PRELIMINARY STATEMENT

On November 13, 1989, Petitioners filed a Petition To Determine The Invalidity Of A Proposed Rule with the Division Of Administrative Hearings pursuant to provisions of Section 120.54(4), Florida Statutes.

Counsel for all parties stipulated to waiver of the provisions of Section 120.54(4)(c), Florida Statutes, requiring the commencement of a final hearing upon the petition within 30 days of assignment to a hearing officer.

The motion of Petitioners to amend the style of the proceedings to better reflect Petitioners' proper corporate identities was granted on March 19, 1990.

At the final hearing, the parties presented no direct testimony, but jointly requested that the record of the hearing remain open until 5 p.m., April 4, 1990, for the submission of posthearing exhibits. The request of the parties was granted. Those exhibits, consisting of deposition testimony of LouElla Cook, Executive Director, Board of Opticianry; Edward O. Wood; Bonnie L. Johnson; and Franklin D. Rozak on behalf of Petitioners, were timely filed. The deposition of Gilbert Rowe, optician, was also timely filed on behalf of Respondent.

The parties jointly stipulated at final hearing thatChapter 484, Florida Statutes, contained the statutory law applicable to this matter; that rules promulgated by the Board of opticianry and affecting this matter are contained in Chapter 21P, Florida Administrative Code; and that the proposed rule which is the subject of this proceeding is that rule published in Vol. 15, No. 42, Florida Administrative Weekly, (March 2, 1990). The stipulation relating to the March, 1990 publication of the rule reflected an update by Respondent making the proposed rule applicable to opticians, physicians and optometrists.

The transcript of the hearing, along with deposition testimony of witnesses, was filed with the Division Of Administrative Hearings on April 4, 1990. Proposed final orders were submitted by the parties and are addressed in the appendix to this final order. A motion to dismiss, filed in this cause by Respondent on March 22, 1990, is addressed in the conclusions of law portion of this final order.

FINDINGS OF FACT

1. Respondent is the state agency responsible for regulation of an apprenticeship program for candidates desiring licensure as opticians in the State of Florida.

   
   

2. The apprenticeship program provides an alternate route to qualification to take the examination for licensure as an optician. Candidates may also qualify for examination by receipt of an associate degree in opticianry from an accredited educational institution or previous practice and licensure in other jurisdictions.

   
   

3. Candidates electing to pursue licensure examination through the apprenticeship program as currently established must comply with provisions of Rule 21P-16.002, Florida Administrative Code.

   
   

4. The current version of Rule 21P-16.002, Florida Administrative Code, states:

   
   

   21P-16.002 Qualifications for Apprentices and Sponsors. Apprentices and sponsors for apprenticeship programs must meet the following qualifications:

   1. An apprentice must be at least 17 years old at the date of application; must submit a complete application for apprenticeship along

      with proof of having obtained a qualified sponsor; and must submit the registration fee required in Rule 21P-11.013.

   2. A sponsor must be an optician, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 21P-10.007 on the premises of any establishment in which apprentices are trained.

      
      

5. Proposed Rule 21P-16.002, makes no changes to the existing sponsorship requirements found in paragraphs (1) and (2) of the present rule, but adds a new paragraph (3) which specifies the following:

   
   

   (3) No optician, physician or optometrist may serve as a sponsor unless he actually dispenses eyewear and maintains the required equipment on the same premises where the apprentice works. For example, an optician, physician or optometrist whose premises and equipment are distinct from the intended apprentice's work area cannot serve as a sponsor, even though the optician's, physician's or optometrist's premises are within the same office area or building.

   
   

6. The proposed rule seeks to implement Section 484.007(1)(d)4., Florida Statutes, which provides an applicant may qualify to take the state opticianry licensure examination following completion of a three year apprenticeship "under the supervision of an optician, a physician, or an optometrist licensed under the laws of this state."

   
   

7. Through promulgation of the new rule, Respondent seeks to correct a perceived deficiency in the degree of supervision provided by some sponsors to their apprentice opticians. The new proposed rule seeks to correct such deficiency through the prohibition of separate or "distinct" work areas for sponsor and apprentice; the requirement that the sponsor "dispense eyewear"; and the requirement for the sponsor to "maintain the equipment" used by the apprentice on the premises where both apprentice and sponsor work.

   
   

8. Petitioners are corporate entities licensed to do business in the State of Florida. Petitioners operate various retail optical establishments engaged in providing opticianry services. While not licensed to perform opticianry services, Petitioners employ opticians and apprentice opticians for that purpose. Petitioners also have contractual relationships with licensed optometrists for the provision of optometric services at Petitioners' retail establishments. The employed opticians and contracted optometrists often act as sponsors for apprentice opticians employed in Petitioners' retail establishments.

   
   

9. Generally, Petitioners' retail establishments haveseparated areas for optometry services, dispensing of eye wear and a laboratory for the preparation of lenses. In the various establishments, these areas are separated from each

   other by a permanent wall constructed of either glass or other solid, opaque substance.

   
   

10. Two to four licensed opticians are employed in each of Petitioners' retail establishments. Each of these individual opticians, or a licensed optometrist under contract, may sponsor an apprentice optician employed by Petitioners. Often the sponsoring professional is otherwise occupied in these establishments and the apprentice, who is also generally an employee, may be required to perform certain functions without direct supervision by the sponsor.

    
    

11. The proposed rule's requirement that a sponsor actually "dispense eyewear" results from Respondent's position that a sponsor should actually be performing that task in order to properly train an apprentice in the performance of that procedure.

    
    

12. The proposed rule's requirement that a sponsor "maintains the required equipment on the same premises where the apprentice works" dictates that a sponsor must own the equipment used by the apprentice or otherwise be responsible for the provision of that equipment. Such a requirement may effectively prohibit opticians and optometrists employed by Petitioner from serving as sponsors where those employees do not own and are not otherwise responsible for providing, generally, the "required equipment" on the premises of Petitioners' various establishments.

    
    

13. Petitioners argue that such de facto denial of sponsorship opportunities to opticians, optomertrists and physicians employed by them contravenes the statutory provision of Section 484.007(1)(d)4, Florida Statutes, that an apprenticeship be completed under the supervision of "an optician, a physician, or optomertrist licensed under the laws of this state." Such an argument is not credited in the absence of expressed legislative intent to grant sponsorship status to any of the licensed professionals denominated in the statute. Specifically, it is found that the referenced statutory provision sets a minimum requirement for sponsorship, as opposed to a limitation to establishment of further qualifications.

    
    

14. Respondent's economic impact statement was prepared by counsel. Respondent's position, as expressed through testimony of its executive director, is that the proposed rule has no discernible direct adverse economic impact, although testimony presented by Petitioners supports the finding that the proposed rule change shall require at least some alteration of the physical arrangement at some of Petitioners' retail establishments in the event that Petitioners desire to continue present apprentice programs in their businesses.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.54(4)(a), Florida Statutes.

    
    

16. Petitioners bear the burden of establishingentitlement to the relief they seek. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

17. Respondent has filed a motion to dismiss Petitioners' action on the basis that Petitioners lack standing. Upon review of the motion, the response thereto, and the facts adduced at the final hearing, it cannot be argued that substantial interests of Petitioners are unaffected by Respondent's proposed rule change. Therefore, the motion to dismiss is denied.

18. Although the new rule will require Petitioners to make certain adjustments in order to continue present apprenticeship programs, Petitioners' employment of unlicensed personnel to assist licensed optician employees is not affected. Section 484.011, Florida States, presently requires actions of unlicensed assistants to be directly supervised by a licensed optician.

    
    

19. Agencies are to be accorded wide discretion in the interpretation of a statute which it administers. That interpretation will not be overturned unless clearly erroneous and without the range of possible interpretations. The Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So. 2d 515 (Fla. 1st DCA 1984).

    
    

20. In the absence of evidence supportive of a finding that the fairness of the proceeding or correctness of the action has been impaired, the preparation of the economic impact statement is a procedural aspect of rulemaking subject to the harmless errorrule. Durrani, supra.

    
    

21. Respondent's general authority pursuant to Section 484.005, Florida Statutes, to promulgate rules "to protect the health, safety and welfare of the public"; and the specific authority of Section 484.007(1)(d)4., Florida Statutes, "to establish administrative processing fees sufficient to cover the costs of administering apprentice rules as promulugated by the board", clearly empower Respondent to adopt the rule which is the subject of this proceeding. Both provisions empower Respondent to make rules which it deems necessary to implement standards and guidelines for licensure by apprenticeship.

    
    

22. Petitioners have failed to show that Respondent acted arbitrarily or capriciously in the promulgation of the proposed rule. Respondent's determination, as explicated in the proposed rule, that a sponsor of an apprentice should actually dispense eyewear, maintain required equipment on the same premises where the apprentice works, and directly supervise the apprentice in the performance of his duties is consistent with and reasonably related to the statutory purpose of educating and training an apprentice on some basic level of competence in the practice of opticianry and assuring the protection of the public health, safety and welfare.

Based on the foregoing, it is hereby

ORDERED that Petitioners have failed to establish that proposed Rule 21P-

16.002 is an invalid exercise of delegated legislative authority.

DONE AND ORDERED this 26th day of April, 1990, in Tallahassee, Leon County, Florida.

DON W.DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1990.

APPENDIX TO FINAL ORDER

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Petitioner's Proposed Findings.

1. Adopted by reference.

2.-5. Unnecessary.

6.-9. Adopted in substance.

10. Unnecessary.

11.-12. Adopted in substance, though not verbatim. 13.-14. Unnecessary, cumulative.

1. Adopted in substance, though not verbatim.

2. Not supported by weight of the evidence, unnecessary, as to the first sentence. Remainder adopted in substance.

3. Rejected, cumulative.

4. Addressed in substance. 19.-22. Rejected, unnecessary.

23. Adopted with exception of last sentence, which is rejected as a conclusion of law rather than a finding of fact.

24.-27. Adopted in substance, though not verbatim. 28.-29. Rejected, unnecessary.

1. Adopted in substance.

2. Adopted with exception of last sentence, which is rejected as a conclusion of law rather than a finding of fact.

32.-35. Adopted in substance, though not verbatim, and condensed with other findings directed in common to the position of Petitioners.

36. While not addressed with particularity, the basic concerns of this proposed finding have been addressed.

Respondent's Proposed Findings:

1.-4. Rejected, unnecessary. 5.-8 Adopted in substance.

COPIES FURNISHED:

David Eastman, Esq.

P.O. Box 669 Tallahassee, FL 32302

Theresa M. Bender, Esq. Assistant Attorney General Department of Legal Affairs Suite 1602, The Capitol Tallahassee, FL 32399-1050

Louella Cook, Executive Director Board of Opticianry

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0750

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, FL 32399-0250

Kenneth Easely, Esq.

General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32300-0750

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF THE NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 89-006201RP

Orders for Case No: 89-006201RP