STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

OPTICIANRY, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 90-4970

)

DORY GOMEZ-DE ROSAS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, in Miami, Florida, on November 13, 1990.

APPEARANCES

For Petitioner: Michael A. Mone', Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Neil F. Garfield, Esquire

Garfield & Associates, P.A.

3500 North State Road, Suite 333 Fort Lauderdale, Florida 33319

STATEMENT OF THE ISSUE

The issue is whether the Respondent is subject to discipline for engaging in practice beyond the scope of opticianry.

PRELIMINARY STATEMENT

The Board filed an Administrative Complaint on June 20, 1990, alleging that the Respondent had violated Chapter 484, Florida Statutes. At the final hearing, the Department offered Exhibits 1 through 5 in evidence. Exhibit 5 was a composite exhibit. During the hearing, the Department withdrew Exhibit No. 4, and components No. 1, and 13 through 17 from its composite Exhibit No. 5. All other exhibits were admitted. The Respondent offered a single Exhibit, which was received in evidence. The Department offered the testimony of Jeffrey Matthews, Betty Gayle, Armon Stellabotte, Dr. Edward Budd, and Mr. Lawrence Morrison. The Respondent Dory Gomez-De Rosas testified on her own behalf. A transcript of the proceedings was filed on November 28, 1990. Proposed Recommended Orders were filed by December 27, 1990. Rulings on proposed findings of fact are made in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material to this action, Dory Gomez-De Rosas has been a licensed optician in the State of Florida, holding License DO 0001724. She was an owner of and employed as a licensed optician at Care Optics, located at 1057 North Homestead Boulevard, Homestead, Florida.

   
   

2. On May 16, 1989, Patient #1 went to Care Optics to have her eyes examined after having made an appointment about a week earlier. A complete eye examination was performed on Patient #1 by the only woman who was present in the office. That examination included a glaucoma test. Patient #1 intended to buy her glasses elsewhere. She paid $30 for the examination.

   
   

3. Patient #1 received a business card from the woman who performed her eye examination which contained measurements. Those measurements were findings of the refractive indices for Patient #1, which would be used in making eye glasses. The information provided on the back of the card, however, was incomplete. The information was not written on a prescription form, as would an ordinary prescription nor was it signed by anyone. A prescription must be signed by an optometrist or opthalmologist.

   
   

4. Patient #1 took the card to her regular optician, Mr. Stellabotte. Because he could not prepare glasses from the information on the back of the card, he attempted to contact the opthalmologist or optometrist who seemingly had prescibed the lenses for Patient #1 at Care Optics. There was no opthalmologist or optometrist at Care Optics when Mr. Stellabotte called.

   
   

5. The Department delivered a subpoena duces tecum to Care Optics to obtain the records of Patient #1, but Care Optics was unable to locate any records for Patient #1, and provided an affidavit to that effect. Patient #1 returned to Care Optics and received a refund of the $30 she had paid. She then was examined by another optometrist in Homestead and had the prescription filled by Mr. Stellabotte.

   
   

6. Patient #1 identified the Respondent as the woman who performed the total eye examination and glaucoma test on her at Care Optic after seeing a photocopy of the examination photograph which Respondent had provided to the Board as part of her licensure application as an optician. After viewing the Respondent at the hearing, it is obvious that the licensure photograph which Patient #1 identified is a photograph of the Respondent.

   
   

7. The Respondent engaged in the diagnosis of the human eyes by performing a glaucoma test on Patient #1, and by determining the refractive power for Patient #1's eyes during the examination which the Respondent performed at the office of Care Optics on May 16, 1989. She also was guilty of deceit by leading Patient #1 to believe that she was an optometrist who was competent to examine her eyes.

   
   

8. The Respondent attempted to prescribe lenses for Patient #1 by providing the Respondent with a business card which contained on its back her findings of refractive powers for correction of Patient #1's eyes. This is not an ordinary way to provide a prescription for lenses.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

10. This is a case involving disciplinary action which may lead to suspension of a licensee, and the Department bears the burden of proving its charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. Section 484.014(1)(g), Florida Statutes, makes the violation of Chapter 455, Florida Statutes, or of any rules promulgated thereto a basis for imposition of discipline. It is unlawful for an optician to diagnose conditions of the human eyes, to determine the refractive powers of the human eyes, or to treat eyes for diseases or ailments. Section 484.013(3), Florida Statutes. An optician may also be disciplined for fraud or deceit, negligence, incompetency, or misconduct in the practice of opticianry. Section 484.014(1)(f), Florida Statutes. An optician may also be disciplined for failing to keep written prescription files. Section 484.014(1)(m), Florida Statutes.

    
    

12. The Respondent's actions are inconsistent with the practice of professional opticianry by performing an examination beyond the scope of her training.

    
    

13. Under the penalty guidelines adopted by the Board, the penalty for engaging in diagnosis of the human eyes, attempting to determine the refractive powers of the human eyes, or in any manner attempting to prescribe for or treat diseases or ailments of the human eyes is a fine of $1,000.00 and a suspension followed by probation or a $1,000.00 fine and revocation. Rule 21P-8.020(1)(e), Florida Administrative Code. The penalty for fraud or deceit, negligence, incompetency, or misconduct in the practice of opticianry is a $500.00 fine plus a reprimand or probation for the first offense. Rule 21P-8.020(2)(f), Florida Administrative Code. The penalty for failing to keep written prescription files is a $250.00 fine and reprimand for the first offense. Rule 21P-8.020(2)(m), Florida Administrative Code.

    
    

14. Based upon the foregoing, on Court I, the unlawful diagnosis of the human eyes and an attempt to determine the refractive powers of the human eyes, the Board should impose a penalty of a $1,000.00 fine and suspension for a period of 90 days, followed by probation for one year. For the Count II, charging fraud or deceit in the practice of opticianry, the penalty imposed should be an additional fine of $500.00 and a probationary period of one year to run concurrently with the penalty on Count I. For failure to keep written prescription files, Count III, the penalty imposed should be an additional fine of $250.00. The total fine should be $1,750.00. Count IV is merely a reiteration of Count III, and no additional penalty is warranted.

RECOMMENDATION

It is recommended that a Final Order be entered by the Board finding the Respondent guilty of the violation of Sections 484.013(3), Florida Statutes, and 484.014(1)(f) and (m), Florida Statutes, that a fine of $1,750.00 should be imposed; that the Respondent should be suspended from the practice of opticianry for a period of 90 days, and should be placed on probation for a period of one year.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of January, 1991.

WILLIAM R. DORSEY, JR.

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 16th day of January, 1991.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-4970

Rulings on findings proposed by the Department:

All findings by the Department have been adopted, although they have been edited in the findings of fact made here.

Rulings on findings proposed by the Respondent:

1 and 2. Adopted in Finding 1.

1. Rejected. The photograph was sufficiently identified as that of the Respondent, and could be readily determined to be a photograph of the Respondent after seeing the Respondent at the hearing. See, Finding 6.

2. Rejected as unnecessary. The identification by Patient #1 of the Respondent was sufficient.

3. The photocopy of the photograph in the Department's files was sufficient for use by the patient in identifying the Respondent.

4. Rejected as insufficiently persuasive. Patient #1 was able to recall, in a general fashion, the test given to her by the Respondent. They were not the type of tests which an optician could perform.

5. Patient #1's testimony has been accepted. See, Finding

   4. Patient #1 obviously went to Care Optics to obtain a prescription, since she always intended to buy her glasses from Mr. Stellabotte.

6. Accepted in Finding 3. The information written on the back of the card did not constitute a prescription, but it was given to Patient #1 by the Respondent at Care Optic.

7. Rejected. The testimony of Mr. Stellabotte as to the nature of the card he received from the Respondent is not fully accepted. The card which Patient #1 received from the Respondent is exhibit #3, and any testimony to the contrary by Mr. Stellabotte is the result of imperfect recollection.

8. Rejected as unnecessary. The identification of the photograph of the Respondent from the Department's licensure files adequately identified the Respondent as the person who performed the eye examination.

9. It was not necessary for the Department to produce any handwriting analysis. The testimony of Patient #1 is sufficient on this point.

10. Rejected as argument. The testimony of Patient #1 identifying the Respondent is sufficient.

11. Rejected as unnecessary.

12. Rejected as inconsistent with the testimony of Patient #1. She had her eyes examined. The information she received from the Respondent was not derived from a mechanical analysis of the glasses she then had.

COPIES FURNISHED:

Michael A. Mone', Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Neil F. Garfield, Esquire Garfield & Associates

3500 North State Road 7, Suite 333 Fort Lauderdale, Florida 33319

LouElla Cook, Executive Director Department of Professional Regulation Board of Opticianry

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-004970

Orders for Case No: 90-004970