STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTICIANRY,)

)

Petitioner, )

)

vs. ) CASE NO. 90-7507

)

DAVID A WHELIHAN, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on March 12, 1991, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: E. Renee Alsobrook, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: David A. Whelihan, Jr.

18456 Lost Lake Way Jupiter, Florida 33458

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Respondent is licensed by Petitioner as an optician. On August 27, 1990, Petitioner filed an Administrative Complaint against Respondent containing four counts. The Administrative Complaint alleges that Respondent gave a false response to a question on his application to sit for the Opticianry Examination filed on January 6, 1988, and that he gave the same false answer to the same question on his application to retake a portion of the Opticianry Examination filed July 6, 1988. Count I alleges that the alleged acts constitute a violation of Section 484.014(1)(a), Florida Statutes. Count II alleges that the alleged acts constitute a violation of Section 484.014(1)(c), Florida Statutes. Count III alleges that the alleged acts constitute a violation of Section 484.014(1)(g), Florida Statutes, by violating Section 484.013(1)(a), Florida Statutes. Count IV alleges that the alleged acts constitute a violation of

Section 484.014(1)(g), Florida Statutes, by violating Section 455.227(1)(e), Florida Statutes. Respondent filed a timely denial of the factual allegations of the Administrative Complaint and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of two witnesses and introduced five exhibits, each of which was accepted into evidence.

Respondent testified on his own behalf and introduced two exhibits, both of which were accepted into evidence. Official recognition was taken of Chapters 455, 484, and 943, Florida Statutes, and of Chapter 21-P, Florida Administrative Code.

A transcript of the proceedings has been filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was licensed by Petitioner as an optician in the State of Florida, having been issued license number DO 003219.

   
   

2. On March 7, 1986, Respondent was found guilty, by verdict of a jury, of the misdemeanor offense of disorderly conduct. He was placed on probation and ordered to pay restitution. As conditions of his probation, he was ordered to seek counseling, to undergo drug evaluation, and to avoid contact with the victim.

   
   

3. On July 20, 1987, Respondent filed an application with the Florida Board of Real Estate to sit for an examination that he was required to pass to become licensed as a real estate professional in Florida. Respondent responded "yes" to the following question on that application:

   
   

   Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?

   This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "no" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungement or sealing prior to answering "no".

4. On January 6, 1988, Respondent filed an application with the Petitioner to sit for an examination that he was required to pass to become licensed as an optician in Florida. Respondent responded "no" to the following question on that application:

   
   

   Have you ever been convicted or found guilty

   • regardless of adjudication - of a crime in any jurisdiction, or have you ever been a defendant in a military court-martial? (Do not include parking or speeding violations.)

     
     

5. Based on his application of January 6, 1988, Respondent was permitted to sit for the examination, which was divided into parts. He failed one part of the examination, and he was not eligible for licensure as an optician until he passed the part he had failed.

   
   

6. On July 6, 1988, Respondent filed an application with the Petitioner to retake the part of the examination that he had previously failed. Respondent again responded "no" to the following question on that application:

   
   

   Have you ever been convicted or found guilty

   • regardless of adjudication - of a crime in any jurisdiction, or have you ever been a defendant in a military court-martial? (Do not include parking or speeding violations.)

     
     

7. Based on his application of July 6, 1988, Respondent was permitted to retake the part of the examination for licensure as an optician that he had previously failed. Respondent passed that part of the examination and was subsequently licensed as an optician.

   
   

8. Petitioner would have required additional information from Respondent had Respondent answered the subject question in the affirmative on either his application of January 6, 1988, or on his application of July 6, 1988.

   
   

9. Respondent contends that he answered the question truthfully because the crime of disorderly conduct is no more serious than a traffic offense. Respondent also contends that he relied upon the advice of his attorney in responding to the question. Although Respondent and his attorney discussed having the conviction expunged, Respondent did not pursue expungement because of the costs involved.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Petitioner has the authority to prosecute this matter pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 484, Florida Statutes.

    
    

12. Section 484.013, Florida Statutes, provides, in pertinent part, as follows:

    
    

    (1) It is unlawful for any person:

    (a) To make a false or fraudulent statement, either for himself or for another person, in

    any application, affidavit, or statement presented to the board or in any proceeding before the board.

    * * *

    (4) Any person who violates a provision of this section is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    
    

13. Section 484.014, Florida Statutes, provides, in pertinent part, as follows:

    
    

    484.014 Disciplinary actions.

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

       optician as set forth in this section ... :

       1. Procuring or attempting to procure a license by misrepresentation, bribery, or fraud or through an error of the department or the board.

          
          

          * * *

          
          

          (c) Making or filing a report or record which the licensee knows to be false, intentionally or negligently failing to file a report or record required by federal or state law, willfully impeding or obstructing such filing, or inducing another person to do so. Such reports or records shall include only those which the person is required to make or file as an optician.

          
          

          * * *

          
          

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

          
          

          * * *

          
          

    2. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

       1. Refusal to certify to the department an application for licensure.

       2. Revocation or suspension of a license.

       3. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

       4. Issuance of a reprimand.

       5. Placement of the optician on probation for a period of time and subject to such conditions as the board may specify, including

          requiring the optician to submit to treatment or to work under the supervision of another optician.

    3. The board shall not reinstate the license of an optician it has deemed unqualified until such time as it is satisfied that he has complied with all the terms and conditions set forth in the final order and that such person is capable of safely engaging in the practice of opticianry.

    
    

14. Section 455.227(1)(e), Florida Statutes, pertains to licensed opticians and provides as follows:

    
    

    (1) The board shall have the power to revoke, suspend, or deny the renewal of the license, or to reprimand, censure, or otherwise discipline a licensee, if the board finds that:

    
    

    * * *

    
    

    (e) The license has been obtained by fraud or material misrepresentation of a material fact;

    
    

15. Respondent has failed to establish any rational basis for his contention that the conviction of the misdemeanor offense of disorderly conduct is the same as a traffic offense. There is nothing in the wording of the question to support Respondent's contention that he correctly answered the subject questions. Respondent's contention that his failure to answer the question in the affirmative should be excused because he relied on the advice of counsel is rejected for two reasons. First, this contention is based solely on Respondent's uncorroborated testimony which the undersigned concludes is without credibility. Second, even if Respondent had established by credible evidence that his attorney had advised him to answer the question in the negative, Respondent has failed to establish that such advice would excuse his false response to the answer.

    
    

16. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without

    hesitancy, as to the truth of the allegations sought to be established. Slomowitz v.

    Walker, 429 So.2d 797, 800 (Fla. 4th DCA

    1983).

    
    

17. Petitioner has established by clear and convincing evidence that Respondent gave a false response to the question on both applications. Those false responses constitute violations of Section 484.014(1)(a), Florida Statutes, as alleged in Count I of the Administrative Complaint; of Section 484.014(1)(g), Florida Statutes, as alleged in Count III of the Administrative Compliant, and of Section 455.227(1)(e), Florida Statutes, as alleged in Count IV of the Administrative Complaint. The facts of this case do not establish a violation of Section 484.014(1)(c), Florida Statutes, as alleged in Count II of the Administrative Complaint because an application for licensure is not a report or record within the meaning of that provision.

    
    

18. Rule 21P-8.020, Florida Administrative Code, provides certain guidelines pertinent to the discipline of those licensed by Respondent as opticians in the State of Florida. Those guidelines are not dispositive of the penalty to be imposed this proceeding because the false statement that is involved herein was contained in the application for licensure. Had the question been answered truthfully, Petitioner would have required additional information before determining whether Respondent was eligible to sit for licensure.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which revokes Respondent's

licensure as an optician, but that the order of revocation be without prejudice to his right to reapply for licensure.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of May, 1991.

CLAUDE B. ARRINGTON

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 7th day of May, 1991.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO.

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1-8 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 9 and 10 are rejected as being subordinate to the findings made.

3. The proposed findings of fact in paragraph 11 are rejected as being the recitation of testimony and as being subordinate to the findings made.

The Respondent's post-hearing submittal was in the form of a handwritten letter filed April 23, 1991. The proposed findings contained therein are rejected as being contrary to the findings made, as being irrelevant to the proceeding, or as being argument.

COPIES FURNISHED:

1. Renee Alsbrook, Esquire Department of Professional

   Regulation

   1940 North Monroe Street Suite 60

   Tallahassee, Florida 32399-0792

   
   

   David A. Whelihan, Jr. 18456 Lost Lake Way Jupiter, Florida 33458

   
   

   LouElla Cook Executive Director

   Department of Professional Regulation

   1940 North Monroe Street Suite 60

   Tallahassee, Florida 32399-0792

   
   

   Jack McRay General Counsel

   Department of Professional Regulation

   1940 North Monroe Street Suite 60

   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.

   
   

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

   AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

   BOARD OF OPTICIANRY

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner,

   
   

   vs. DOAH CASE NO: 90-7507

   DPR CASE NO: 90-1391 DAVID A. WHELIHAN, JR., LICENSE NO: DO 0003219

   
   

   Respondent.

   /

   
   

   FINAL ORDER OF THE BOARD OF OPTICIANRY

   
   

   This matter was heard by the Board of Opticianry (the "Board") pursuant to Section 120.57(1)(b)9 and 10, Florida Statutes, on May 31, 1991, in Tallahassee, Florida for the purpose of considering the Hearing Officer's Recommended Order (attached as Exhibit A) and exceptions if any. Petitioner was represented by E. Renee Alsobrook. Respondent was present but was not represented by counsel at the hearing. Neither party filed exceptions to the Recommended Order.

   
   

   Upon review of the Recommended Order, the arguments, and the complete record in this case; being otherwise fully advised in the premises, the Board makes the following findings and conclusions.

   
   

   FINDINGS OF FACT

   
   

   1. The Board amends and adds to paragraph 9 of the Hearing Officer's recommended findings of fact, the finding that Respondent relied upon his attorney's representation, as to the seriousness of the charge, to his detriment as reflected in the transcript, pages 712 and 716, incorporated herein by reference.

      
      

   2. The remainder of the Hearing Officer's findings of fact are hereby approved and adopted, to the extent that they are not inconsistent with the Board's amendment to paragraph 9, as the Board's findings of fact.

   3. There is competent, substantial evidence to support the Board's findings of fact.

CONCLUSIONS OF LAW

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

   
   

2. The Board amends and adds to paragraph 9 of the Hearing Officer's recommended conclusions of law the conclusion that Respondent's reliance upon his attorney's advice to his detriment is mitigation.

   
   

3. The remainder of the Hearing Officer's conclusions of law set forth in the Recommended Order are hereby approved and adopted to the extent that they are not inconsistent with the Board's amendment to paragraph 9, as the Board's conclusions of law.

   
   

4. There is competent, substantial evidence to support the Board's conclusions of law.

DISPOSITION

Upon a complete review of the record in this case, the Findings of Fact, Conclusions of Law, the applicable disciplinary guidelines set forth in statute and rule, and the arguments, the Board determines that the penalty recommended by the Hearing Officer be reduced and amended.

PENALTY THEREFORE IS IT ORDERED THAT:

Respondent pay an administrative fine of $1,500.00 dollars payable in two equal installments of $750.00, the first installment due within 30 days of the effective date of this Final Order, and the second installment due within 60 days of the effective date of this Final Order. All fines shall be made payable to the Department of Professional Regulation, and mailed to Post Office Box 6446, Tallahassee, Florida 32314.

Respondent's license is suspended but the suspension is stayed for 30 days to permit Respondent to pay the fines imposed. If the fines are not paid within the allocate time, the suspension shall take effect upon the 31st or the 61st day without additional notice to the Respondent.

Respondent shall also be placed on 1 year probation commencing upon the effective date of this Final Order. As terms of probation, Respondent shall file quarterly reports with the Board and not violate Chapter 484, Florida Statutes, and the rules promulgated thereto.

THIS ORDER TAKES EFFECT UPON FILING with the Clerk of the agency. ORDERED this 16 day of July , 1991.

BOARD OF OPTICIANRY

RICHARD WILLIAMS CHAIRPERSON

NOTICE OF RIGHT TO APPEAL UNLESS WAIVED

Pursuant to Section 120.59, Florida Statutes, any party who is substantially affected by this Final Order, may appeal this Final Order by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation, and a copy of the Notice of Appeal accompanied by the prescribed filing fees with the District Court of Appeal, within 30 days of the filing date of this Final Order.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been forwarded by U.S. mail to David A. Whelihan, Jr., 18456 Lost Lake Way, Jupiter, Florida 33458, and hand delivery to E. Renee Alsobrook, Department of Professional Regulation, 1940 forth Monroe Street, Tallahassee, Florida 32399- 0750, this 19th day of July , 1991.

Executive Director Board of Opticianry

Docket for Case No: 90-007507

Orders for Case No: 90-007507