STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELIZABETH NICOLITZ, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1182F

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTICIANRY, )

)

Respondent. )

)

FINAL ORDER

This cause came on for formal hearing pursuant to Section 57.111 F.S. on February 28, 1994 and March 29, 1994 in Tallahassee, Florida, before Ella Jane

1. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   For Petitioner: Paul Watson Lambert, Esquire

   Attorney at Law

   2851 Remington Green Circle, Suite C Tallahassee, Florida 32308-3749

   
   

   For Respondent James Manning, Qualified Representative Department of Department of Business and

   Business and Professional Regulation Professional 1940 North Monroe Street, Suite 60 Regulation: Tallahassee, Florida 32399-0792

   
   

   For Respondent Claire Dryfuss, Assistant Attorney General Board of Department of Legal Affairs

   Opticianry: Alexander Building, Suite 308

   Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

   1. Was the Petition for attorney's fees and costs timely filed pursuant to Section 57.111 F.S. and Rule 60Q-2.035 F.A.C.?

      
      

   2. Does Petitioner qualify as a "prevailing small business party" under Section 57.111 F.S. and Rule 60Q-2.035 F.A.C.?

      
      

   3. Was the initiation of agency action "substantially justified"?

   4. If all other issues are resolved in favor of Petitioner, what is the "cap" on attorney's fees and costs and from whom is it due--one or both entities, the Board and/or the Department of Professional Regulation? (Sub- issues raised by the parties are noted in the Conclusions of Law only as necessary.)

PRELIMINARY STATEMENT

This case embraces the entire record of the license disciplinary case, Department of Professional Regulation, Board of Opticianry v. Nicolitz DOAH Case No. 92-1477.

As set out in greater detail in the following findings of fact, the Respondent(s) filed a Notice of Voluntary Dismissal one day prior to formal hearing in DOAH Case No. 92-1477. On June 23, 1992, the undersigned hearing officer entered an order stating that the administrative complaint was dismissed by operation of law with the filing of the voluntary dismissal. That order closed the file of the Division of Administrative Hearings (DOAH).

On August 7, 1992, that case was scheduled by the agencies as an informal hearing before the Board of Opticianry. Prior to the scheduled informal hearing, Ms. Nicolitz sought relief by filing a "Writ of Prohibition Absolute" in the First District Court of Appeals where it became Nicolitz v. Board of Opticianry, Department of Professional Regulation, DCA Case No. 92-2717. The relief requested was for the court to preclude further disciplinary proceedings against Ms. Nicolitz on the dismissed administrative complaint and the informal hearing.

The First District Court of Appeals granted the requested relief by order of September 21, 1992, and, after a rehearing for clarification, issued its mandate on the matter on November 23, 1992.

On February 26, 1993, Ms. Nicolitz filed her Section 57.111 F.S. petition. Pleadings, motions, and orders proliferated thereafter as interrupted only by an agreed abeyance to explore settlement. These stages are adequately reflected in the record and will not be reiterated here.

Formal hearing was convened on February 28, 1994 and on March 29, 1994, when oral testimony concluded.

Petitioner presented the oral testimony of William M. Furlow, Stephen Marc Slepin, and Teresa Skelton, and testified in her own behalf. Petitioner had Exhibits P-1 through P-43, including depositions, admitted. Exhibit P-10 was withdrawn.

The Board presented the oral testimony of Susan J. Foster, Manty Morse and Wings Slocum Benton and had nine exhibits admitted in evidence.

The Department presented the oral testimony of Elizabeth Renee Alsobrook and Richard H. Law and had one exhibit admitted in evidence.

A transcript of proceedings was filed in sequential parts on May 27 and June 7, 1994. Proposed findings of fact and conclusions of law were filed on July 29, 1994 by both Respondents and on August 1, 1994 by Petitioner, who had requested and been granted an extension. All proposed findings of fact have been ruled upon in the appendix to this final order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. The Petitioner is Elizabeth Nicolitz who has been actively licensed in Florida as an optician since May 1, 1985.

   
   

2. The Respondents are the Board of Opticianry and the Department of Professional Regulation.

   
   

3. The Petitioner sought her attorney's fees and costs from an administrative proceeding, DOAH Case No. 92-1477, which was initiated by the filing of an administrative complaint on October 23, 1991, seeking disciplinary action against the Petitioner.

   
   

4. The First District Court of Appeal summarized the facts and law leading up to this attorney's fees and costs case in Nicolitz v. Board of Opticianry and Department of Professional Regulation, 609 So.2d 92 (Fla. 1st DCA 1993), as:

   
   

   Nicolitz was previously placed on probation and ordered to file quarterly reports. When two of those reports were late filed, an administrative complaint was filed against her. Through counsel she executed an "election of rights" form and disputed the allegations of fact and sought a formal hearing before a Division of Administrative Hearings (DOAH) hearing officer in accordance with Section 120.57(1), Florida Statutes. The matter was referred to DOAH, where counsel for the Depart- ment of Professional Regulation (Department) and counsel for Nicolitz entered into a prehearing

   stipulation. The Department construed this stipula- tion as demonstrating an absence of disputed issues of material fact and, in accordance with Florida Administrative Code Rule 22I-6.033, moved the hearing officer to relinquish jurisdiction. The DOAH hearing officer considered Nicolitz's response in opposition to the motion to relinquish jurisdiction, heard oral argument, and denied the motion.

   
   

   Several weeks later, and one day before the scheduled formal hearing, counsel for the Department filed an "notice of voluntary dismissal without prejudice." This pleading essentially tracked the earlier motion to relinquish jurisdiction in concluding that no material issues of fact were in dispute, and sought dismissal without prejudice to the Department's right to proceed before the Board of Opticianry (Board) in an informal hearing pursuant to Section 120.57(2),

   Florida Statutes. The hearing officer entered an order which "ratified" the voluntary dismissal and purported to dismiss the administrative complaint. See F.A.C. Rule 22I-6.037. When an informal hearing was scheduled before the Board, Nicolitz petitioned this court for a writ of prohibition and we issued an order to show

   cause. We have considered the petition, the responses of the Department and the Board, and petitioner's reply, and grant relief.

   . . .

   [The opposition] is based in part on an argument that [Ms. Nicolitz] has failed to acknowledge and comprehend the relationship between the Department and the Board in disciplinary proceedings. While

   we agree that relationship is key to proper resolution of this dispute, we find it is respondents [Department and Board] who miss the mark. The disciplinary proceeding essentially evolves in three stages, the first being an investigation by the Department and

   its report to the Board as to the existence of probable cause. See SS. 455.225(1), (2), and (3), Fla. Stat. (1991). The Board then may direct the Department to file an formal complaint and the Department shall "prosecute that complaint pursuant to the provisions

   of chapter 120." S. 455.225(4), Fla. Stat. The prosecution, second stage of the disciplinary proceeding, may or may not result in a referral to DOAH, but if it does, the relationship of the Board and the Department is altered. In the first stage, and during the third stage when jurisdiction returns to the Board and it enters a final order in accordance with section 455.225(6), the Board is a quasi-judicial body and the Department acts as an investigative and prosecuting authority. While jurisdiction lies with DOAH, however, that tribunal has jurisdiction and the Board is a party to the proceedings.

   S.120.57(1)(b)(3). During the DOAH proceedings, the Department acts as counsel of record for the Board and, we conclude, the Board must be bound by

   its counsel's actions. Those actions include voluntary dismissal of a complaint.

   
   

5. Petitioner filed her attorney's fees and costs petition pursuant to Section 57.111 F.S. with the Division of Administrative Hearings on February 26, 1993, less than sixty days after the District Court's mandate issued. That is the case sub judice. She seeks attorney's fees and costs starting from October 29, 1991.

   
   

6. The disciplinary litigation and administrative background between Ms. Nicolitz and Respondents could be described as a long and dreary "mini war," fought in sequential encounters. An abbreviated chronology of this epic struggle is essential to reach the material issues at bar, and illustrates that most of the time the right hand of the bureaucracy had no idea what its left hand was doing, even when the right hand directed the left hand to act.

   
   

7. Ms. Nicolitz was licensed in Florida as a Dispensing Optician Lic. No. DO 0002492, and owned an optical establishment in Jacksonville known as "Specs and Company, Inc." During the summer of 1986, Ms. Nicolitz became the sponsor of an apprentice optician named Douglas H. Stewart. Chapter 484 F.S. permits licensed opticians to sponsor an apprentice optician for training purposes and allows the apprentice to perform a limited number of opticianry tasks, subject to the regulations contained in Rules 21P-16.001 through 21P-16.011 F.A.C.

8. On June 30, 1986, while Ms. Nicolitz was away from the establishment, apprentice Stewart measured a patient's pupillary distance and segment height for assembling and fitting a pair of glasses in apparent violation of Rule 21P-

   16.003 F.A.C.

   
   

9. On December 12, 1986, the Department initiated disciplinary action against Ms. Nicolitz's license through the filing of a formal complaint styled DPR v. Elizabeth Nicolitz, Case No. 0072717. The case was subsequently resolved by stipulation of the parties, and Ms. Nicolitz signed the stipulation on March 23, 1987. The stipulation was then presented to the Board of Opticianry on April 10, 1987.

   
   

10. A final order was filed May 12, 1987, ordering Ms. Nicolitz to pay an administrative fine of $250.00 within 30 days. Additionally, she would be placed on probation for one year and as a condition of probation, she was required to file quarterly reports, commencing the first of the month three months from the date of the filing of the final order.

    
    

11. On May 12, 1987, Ms. Patricia B. Guilford, Executive Director of the Board of Opticianry wrote Ms. Nicolitz pointing out that the final order had been officially filed and as such, the terms of the March 23, 1987 stipulation must now be fulfilled. Ms. Guilford also pointed out that the administrative fine of $250.00 was due on or before June 12, 1987 and that Ms. Nicolitz's probation had begun, effective May 12, 1987, and would end June 12, 1988. The letter further specified that there were "specific terms and conditions" of probation that had to be met. As part of the letter, she included a copy of the filed final order. This package was sent by U.S. Certified Mail to Ms. Nicolitz and was signed for by her agent. Ms. Nicolitz paid the $250 fine on June 1, 1987. However, she did not thereafter file her quarterly reports with the Board in satisfaction of the other terms of her stipulation.

    
    

12. On October 6, 1990, the Board of Opticianry filed a new administrative complaint, styled DPR v. Elizabeth Nicolitz, Case No. 0106310, alleging that Ms. Nicolitz had violated the previous final order by failing to submit the required quarterly reports in a timely fashion. Ms. Nicolitz responded to the Department by asserting that she had never received the final order, especially in reference to the probation requirement. On the advice of counsel, Ms. Nicolitz suggested that a new stipulation agreement be entered between her and the Department calling for new starting dates for her probation and quarterly reports. As agreed to, the new stipulation required Ms. Nicolitz to file quarterly reports on March 31, 1990, June 30, 1990, September 30, 1990, and December 31, 1990. In entering into the new stipulation agreement, the Department took into consideration allegations made by Ms. Nicolitz and her counsel that the final order may not have been properly served upon her, and agreed to dismiss pending complaint DPR v. Elizabeth Nicolitz, Case No. 0106310, filed October 6, 1990. That case was presented to the November 18, 1989 Probable Cause Panel for closure. The Panel heard the arguments and agreed to closure. During all of this period, agency personnel had harbored suspicions of Ms. Nicolitz because they felt she should have known what to do and when to do it because she had signed the stipulation and because of the agent's signature on the receipt for the final order. There were misinterpretations of the earlier closing order and attorneys for both parties fired off accusatory, and eventually explanatory and apologetic, letters. In any case, it was abundantly clear as of November 18, 1989 at the latest, that Ms. Nicolitz knew she must file her quarterly reports on March 31, 1990, June 30, 1990, September 30, 1990, and December 31, 1990.

13. As per her agreement, Ms. Nicolitz submitted her first and second quarterly report on March 22, 1990 and June 1, 1990, respectively. However, she failed to submit the third quarterly report which was due September 30, 1990. The Board sent her a letter notifying her that she was delinquent. She then submitted the third report on October 16, 1990. She was again late with the filing of her last quarterly report due December 31, 1990. The Board once again notified her of the delinquency, and she submitted the last quarterly report on February 11, 1991.

    
    

14. On October 23, 1991, a formal administrative complaint was filed. It charged Ms. Nicolitz with a violation of Section 484.014(1)(i) F.S., which provides for discipline of a licensee for:

    
    

    Violation of a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.

    
    

    That administrative complaint became the underlying DOAH Case No. 92-1477, the procedural history of which is set out in Findings of Fact 3-4 supra. A more detailed factual history behind how the administrative complaint came to be filed is set out infra.

    
    

15. There has never been any dispute that Ms. Nicolitz filed her first two of four required probation reports on time or that they were properly mailed directly to the Department of Professional Regulation instead of the Board.

    
    

16. Since it was due on September 30, 1990, Ms. Nicolitz's third report, dated October 16, 1990, was 16 days late when she wrote it.

    
    

17. Administrative Assistant Leah R. Hickel is an employee of the Board of Opticianry, whose paycheck is issued by the Department.

    
    

18. In a letter dated October 17, 1990 Ms. Hickel advised Ms. Nicolitz that her quarterly report due September 30 had not been timely received and that she had thirty days from the date of Ms. Hickel's October 17, 1990 letter (i.e. November 16, 1990) to file the third quarterly report and comply with the terms of the final order. Ms. Nicolitz's October 16, 1990 report was stamped in as received by the Board on October 23, 1990. Ms. Hickel's letter and Ms. Nicolitz's third report must have crossed in the mail, but the third report was clearly timely received by the Board within the terms of Ms. Hickel's letter, and it may be reasonably inferred to have been received even earlier by the Department.

    
    

19. Ms. Hickel sent a similar letter to Ms. Nicolitz on February 6, 1991 to the effect that Ms. Nicolitz's December 31, 1990 final quarterly report had not yet been received and that she must submit it within 30 days (i.e. March 8, 1991). The fourth report was filed with both Respondents within the time-frame provided in that letter.

    
    

20. Contrary to the testimony of Susan J. Foster, the current Executive Director of the Board of Opticianry, and Manty Morse, a member of the Board and one of the members of the Probable Cause Panel which arrived at the new administrative complaint on September 16, 1991, the overwhelming record evidence is to the effect that Leah Hickel had apparent authority to extend the time for Ms. Nicolitz to file her third and fourth reports.

21. Also, on the issue of whether or not Ms. Hickel had actual authority to extend probationers' time for reporting, it is found that she did. The Board had adopted a policy of extending by 30 days the time for filing probation reports as reflected by the minutes of an open meeting held November 3, 1989, stating: "The Board directed Ms. Hickel to send a 30-day letter any time a person is found not in compliance with a Final Order and to refer to complaints if they do not respond." (Emphasis supplied). Board Member Dale Wenal, the Board attorney, Theresa Bender, and the Department prosecutor, Renee Alsobrook, were present at the February 9, 1990 Board meeting when the November 3, 1989 Board meeting minutes were discussed and adopted. Board members, including Ms. Wenal, voted for adoption of the minutes, and both sets of minutes were preserved as a standard business record of the Board. This method of doing regular Board business, i.e. the instruction of its support service personnel, was common practice of this particular collegiate body. Under these circumstances, it is immaterial that a formal motion and vote to "create" such a policy did not occur at either meeting. It is also immaterial that Ms. Wenal and Ms. Morse were not present at the November 3, 1989 meeting and that Ms. Morse was not present at the February 9, 1990 meeting.

    
    

22. No one for either the Board or the Department notified Ms. Nicolitz that she was in violation upon her late-filing of the third or fourth probation reports, filed within the extensions granted by Ms. Hickel on October 17, 1990 and February 6, 1991.

    
    

23. However, on February 12, 1991, Ms. Hickel sent a memorandum to Denise Love, Senior Complaint Analyst, to the effect that she now wanted to initiate a complaint for violating the prior final order. Ms. Love advised Ms. Nicolitz via a February 26, 1991 letter of a preliminary investigation. Ms. Love already had signed the Department's internal uniform complaint form on February 21, 1991.

    
    

24. To further obfuscate what the agency(ies) were doing, while the Department was initiating the investigation preparatory to an administrative complaint for late filed reports, Ms. Hickel notified Ms. Nicolitz by letter dated March 1, 1991 that:

    
    

    This will acknowledge receipt of your last quarterly report, received in this office on February 15, 1991.

    
    

    Please be advised we are notifying the office of licensure to remove your license from pro- bationary status, this date.

    
    

    The effect of the foregoing letter was to remove Ms. Nicolitz's license from probationary status as of March 1, 1991.

    
    

25. By letter of March 28, 1991, Ms. Love invited a response to her February 26, 1991 letter from Ms. Nicolitz. Ms. Nicolitz, now thoroughly confused and frustrated, responded that she had sent all her reports and Ms. Hickel had acknowledged receipt thereof.

    
    

26. On April 30, 1991, Ms. Love sent a similar letter to Ms. Nicolitz stating that no response from Ms. Nicolitz had been received.

27. Ms. Nicolitz's attorney then entered the fray and wrote Ms. Love on May 21, 1991 advising her of the March 1, 1991 Hickel letter removing Ms. Nicolitz from probation.

    
    

28. Ms. Love had already prepared an investigative synopsis to the file dated May 8, 1991. It was not altered thereafter by her. It reads:

    
    

    SECTION I - ALLEGED VIOLATION

    Failure to comply with terms of Final Order previously entered in a disciplinary hearing; violation of a rule.

    
    

    STATUTE/RULE NUMBER

    Rule 21P-8.020(2)(i), FAC; Section 484.014(1)(g),

    Fla. Stat.

    
    

    SECTION II - SYNOPSIS

    This investigation is predicated on the receipt of a complaint on 2/14/91 from the Board of Opticianry, alleging that Subject has failed to comply with the terms of the Final Order issued in DPR case #0072717. Subject was placed on

    probation and required to submit quarterly reports to the Board, but has not done so;

    
    

    Subject was notified of the complaint by letter to inquire dated 2/26/91 and again on 4/30/91. Response from Subject was received 4/24/91. Subject states that she has now complied with the terms of the Final Order and has submitted all of her quarterly reports. She says that Leah Hickel of the Board of Opticianry will confirm this. (Emphasis supplied).

    
    

29. The Probable Cause Panel (Ms. Manty Morse and Ms. Dale Wenal) had at least the following items before them when considering Ms. Nicolitz's case on September 16, 1991: a uniform complaint form, a proposed closing order and a recommendation for a letter of guidance, an administrative complaint, a previously issued final order and attached affidavit of service, a memorandum of finding of probable cause, the four letters from Ms. Nicolitz to the Board purporting to be her quarterly reports, findings made by the Department, the two "extension" letters from Leah Hickel dated October 17, 1990 and February 6, 1991, the investigative synopsis, and the March 1, 1991 Hickel letter removing Ms. Nicolitz from probation. The materials had been received and reviewed by panel members earlier. Ms. Marcel Flannigan of the Department, Renee Alsobrook and Lucy Sneider, attorneys for the Department, and Theresa Bender, Counsel for the Board of Opticianry, were also present for the meeting.

    
    

30. The direct evidence at formal hearing by Manty Morse was that she was unaware as of the September 16, 1991 Probable Cause Panel meeting of the Board's prior delegation of authority to Ms. Hickel and that she had not interpreted the Hickel letters as granting an extension for Ms. Nicolitz's third and fourth reports. With the advice of counsel, the panel had viewed each day which the probation reports were late as a separate violation of the prior final order which had never been formally modified.

31. The exchange at the Probable Cause Panel Meeting went as follows:

    
    

    A VOICE: She's saying she filed her reports on April 17th of 1991.

    
    

    MS. ALSOBROOK: After Lea wrote.

    
    

    A VOICE: After. In other words, had she not written to her we'd still be waiting for her.

    
    

    MS. ALSOBROOK: And we also wrote her on September 30th of 1990 and she sent her report for that quarter in on October 23rd. So you may want to file an AC. It's up to you.

    
    

    A VOICE: An AC, air conditioning?

    
    

    MS. ALSOBROOK: An administrative complaint. What would you all like? You have probable cause; you can do either one. It's up to you.

    
    

    A VOICE: Well I would find probable cause, okay, and do file an Administrative Complaint.

    
    

    MS. BENDER: Okay. So you previously had found probable cause and --

    
    

    A VOICE: Letter of Guidance.

    
    

    MS. BENDER: -- wanted to close it with a letter of guidance.

    
    

    A VOICE: But I would like to change that and have an Administrative Complaint. I don't feel good about this the other way.

    
    

    THE CHAIRPERSON: Okay.

    
    

    MS. ALSOBROOK: What section, 484.014(i), failure to comply with Final Orders?

    
    

    THE CHAIRPERSON: You don't want to send a letter to

    -- you want a response.

    
    

    A VOICE: I can't imagine that they would have attorneys --

    
    

    MS. ALSOBROOK: Ready for the next one? (Whereupon, the above matter was concluded)

32. Ms. Morse's formal hearing testimony essentially corroborated the statements made by the panel members at the September 16, 1991, Probable Cause Panel meeting. Her comments reflect the following, in part:

    
    

    Q With regard to the Nicolitz case, do you remember being provided with the entire investigative file?

    A Yes.

    Q When you reviewed this file to find probable cause, can you explain briefly why probable cause was found?

    A Probable cause was found because she didn't file her reports on time.

    Q Did the panel consider that each day that the reports were beyond the cutoff date for the quarter to be a violation?

    A Yes, we did. And we were upset that it had taken this long for her compliance and still she had not done it in a timely manner.

    Q Did you consider her to be, in essence, ignoring the Board?

    [objection]

    Q How did you interpret Ms. Nicolitz's actions as far as the late filing?

    A Well, the way the panel saw them, myself and Mrs. Wenal, was that she really didn't care, you know, and that's why we were both upset. So, she was just disregarding all the orders that were given to her previously and now, even though we had extended for her to file her reports, you know, two years, three years later.

    Q Do you recall if the prosecutor had recommended that you find probable cause?

    A Yes.

    Q Do you recall if the prosecutor had indicated a recommended penalty or action after you found probable cause?

    A I remember that they wanted a letter of guidance at that time.

    Q What is a letter of guidance?

    A It's to explain to her that there was probable cause found and for her to, you know, tell what went wrong and to guide her so she would not do it again, I guess.

    Q Did the panel decide to issue a letter of guidance?

    A At first we thought that was the proper thing to do. But then when we got into discussion, that we saw how far the case went and we saw all this inconsistency, you know, and she still filed late, that's when we decided not to go with the recommendation of the attorney.

    Q And what was the direction of the probable cause panel to the prosecutor?

    A It was to find probable cause, that we had found, and to file an administrative complaint. (Emphasis supplied)

    
    

33. It is accepted that at the time of the Probable Cause Panel meeting, Ms. Morse did not have actual knowledge of the actual authority reposed in Ms. Hickel by the Board's actions of November 3, 1989 and February 9, 1990, but Ms. Morse's lack of actual knowledge of the Board's directive to Ms. Hickel is not controlling as to whether or not the panel's decision to file a new administrative complaint was substantially justified. Board members have a duty to advise themselves concerning the Board directives which have been previously issued to staff. Nor is it indicative of substantial justification whether or not Ms. Nicolitz knew of the content of the prior Board minutes. It is material whether the Probable Cause Panel knew or should have known on September 16, 1991, when it determined there was probable cause Petitioner had committed a violation, rejected the Department's recommendation for closing, and instructed the Department to file an administrative complaint, that the prior Board directive permitting extensions had been issued and what the panel did, knowing that the extensions had been granted. From her presence and vote on February 9, 1990, it may be inferred that on September 16, 1991 Ms. Wenel had actual knowledge of Ms. Hickel's actual authority to grant extensions and ignored it. It also is clear that on September 16, 1991, both Ms. Wenal and Ms. Morse also ignored the apparent authority of Ms. Hickel's October 17, 1990 and February 6, 1991 letters, which were physically before them, and knew of and also ignored Ms. Nicolitz's ultimate compliance with those letters, which were also before them, and that both Panel members did so because the Hickel letters were contrary to the members' subjective perception that Ms. Nicolitz had been ignoring them and their prior final orders. They also ignored the apparent ratification of Ms. Nicolitz's probation compliance contained in the March 1, 1991 Hickel letter. Their deliberations indicate no adequate basis for a probable cause determination since they had Ms. Nicolitz's quarterly reports and Ms. Hickel's extension letters before them and could not have been misled by the Department's report to the effect that Ms. Nicolitz only "states that she has now complied." (Emphasis supplied) The Department report also told them that Ms. Nicolitz requested that they ask Ms. Hickel to confirm all her assertions. Leah Hickel worked for the Board. Had the Panel consulted Leah Hickel, any doubts concerning her authority to grant extensions could have been cleared up.

    
    

34. Therefore, the Panel ignored all exculpatory evidence pointed out by the accused. The Panel did not have a basis in law or fact for the administrative complaint actually filed. The Panel also deviated from proper legal and standard procedure by not conducting a clear vote on a finding of probable cause. 1/

    
    

35. Ms. Nicolitz's first report (March 22, 1990) stated that as of December 1989, she had closed Specs and Company Inc.'s optical business and that for the first quarter she had not practiced opticianry. The second report (June 1, 1990) stated she had not practiced opticianry in the second quarter. The third report (October 16, 1990) stated she had done nothing optical at all during the third quarter, other than going to a few optical meetings. The fourth report (February 11, 1991) reported that nothing had changed, Petitioner was not working for anyone as an optician and she had not done so for the last quarter of 1990.

36. Ms. Nicolitz's four reports to the Board under the terms of her probation were that she had "closed Spec's and Company's Optical Business;" was home "out of all business settings;" "had not practiced opticianry," "was not operating a business and had not done anything optical at all," and "was not working optically or for anyone as an optician," throughout the whole of 1990. Despite a great deal of backpedalling on the foregoing representations as contained in pleadings and papers filed immediately prior to formal hearing with the intent to defuse Respondents' motion for summary final order of dismissal, Ms. Nicolitz's oral testimony at formal hearing does not appear to materially alter the representations contained in her four reports for the year 1990. To the extent that she has made any inconsistent statements in any form concerning the year 1990, those statements are found not to be credible. It is therefore found that Ms. Nicolitz was not operating as a "small business party" during the whole of 1990.

    
    

37. With regard to her situation in 1991-1992, the only years relevant to the attorney's fees and costs incurred in the underlying case, Ms. Nicolitz testified that she operated Specs and Company, Inc. as an optical shop only until December 1989, when she closed it and moved into her two residential garages the portion of optical equipment which she was unable to sell. She did this, because, as she put it, "a question of conflict of interest arose" with her opthalmologist husband's work at Baptist Eye Institute. Specs and Company, Inc. was not administratively dissolved until October 9, 1992, but it was clearly no more than a de facto corporation at all times material. Ms. Nicolitz appeared in her individual capacity in the underlying case, and Specs and Company, Inc. was not a party. Prior to her licensure, Ms. Nicolitz was apparently only an appentice employee of the corporation. It is unclear if that status of "employee" altered after she was licensed in 1985. From 1982 until Ms. Nicolitz ceased to compete with her husband due to alleged "conflict of interest" in 1989, her corporation had all the indicia of doing business including maintaining a location open to the public during normal business hours; providing opticianry services to customers; having optical equipment, a lease agreement, secretarial staff, office equipment, finishing lab, city occupational license, business stationery, advertising, income, bank accounts; filing returns and paying sales and corporate taxes; and filing W-2 forms for employees. After 1989, any equipment which had not been sold sat in residential garages, and Ms. Nicolitz maintained no occupational license or any other indicia of a business. She specifically did not operate a business for profit out of any location labelled "Specs and Company, Inc." or "Elizabeth Nicolitz, O.D." at any time after December, 1989.

    
    

38. Ms. Nicolitz's testimony and her answers to discovery were inconsistent or vacillated with regard to whether or not she considered what she personally did during 1991-1992 to constitute "practicing opticianry." Putting the best light on it, Ms. Nicolitz was clear that she did not think anything she did for family or friends during 1991-1992 constituted practicing opticianry "until I thought about it," immediately before a hearing on the motion for summary final order in this fees case. Her position at formal hearing was that merely maintaining an active individual professional opticianry license was sufficient to constitute "practicing opticianry." She gave as an example of what she was capable of doing as, "[A]t any time if I wanted to practice opticianry that I could. If someone was absent at, let's say Lens Crafters and they needed me to come in, I would bring my license in with me and practice under Lens Crafters with my new license for them." Admittedly, however, she never was actually employed anywhere by any other optician during this period of time. Rather, she listed herself for income tax purposes in both 1991 and 1992

    as a "consultant" employee of her husband's business, "Ernest Nicolitz, M.D. P.A." She testified that this term meant "design consultant." Her husband is a medical physician, an opthalmologist.

    
    

39. The total of the practice of opticianry now recollected by Ms. Nicolitz for 1991-1992 is that over some unspecified period of time, on sporadic occasions, she pushed lenses back into glasses frames for children whose names she did not know and with whom she had no ongoing relationship when their tumbling activities at a gym she belongs to resulted in the lenses popping out; in March or April of 1991, she replaced stripped screws in a neighbor's damaged glasses frames and heated the frames in hot water to mold them back in shape for the neighbor's face; later, she sold the same neighbor some glasses frames with nonprescription display lenses for the neighbor's mother, apparently without ever seeing the mother, and definitely without reporting the $50 sale as professional or any other type of income, and without paying any sales or other tax thereon. Ms. Nicolitz derived no pay as an optician for any of these activities and had no prescription for the tumblers, the neighbor, or the neighbor's mother. She had her professional license but no occupational license in her own name.

    
    

40. Also, at a time no more definite than "in the fall" of 1991, Ms. Nicolitz was involved in fitting hunting glasses for her husband and son, one pair each. At her home, upon written prescriptions from her opthalmologist husband, Ms. Nicolitz fitted frames to her husband's face and her son's face, took the offset of the pupillary distance due to the scope on a gun and then "we figured out the density of the lenses we would be using and we figured out, what, you know, color tones we wanted to use in the lens. And then we ordered the lenses and had them ground at a lab to my specifications." Although she testified that her husband did not know how to offset the optical center for the hunting glasses and could not physically measure himself, her overall description shows Ms. Nicolitz was working under the direction, not of a customer, but of her husband, the opthalmologist, for whom she worked as a "consultant." She charged no separate opticianry fees and had no occupational license in her own name. Clearly, she was intentionally not in competition individually in her own right or as "Specs and Company, Inc." with her husband for "conflict of interest" purposes.

    
    

41. Ms. Nicolitz and her C.P.A., Mr. Shelton, whose expert testimony came by way of deposition, estimated her personal net worth as between $400,000 and

    $450,000 for 1991-1992, but given that Ms. Nicolitz's C.P.A. made his estimates purely for family financial planning purposes 2/ and Ms. Nicolitz eschewed any concrete knowledge of her own financial affairs, their evidence does not establish Petitioner's net worth. The Department's C.P.A. expert witness estimated the combined worth of Ms. Nicolitz and her husband as $2,190,000, based upon tax returns and Mr. Shelton's deposition. No evidence categorized Petitioner's personal net worth as derived in any significant part as related to her practice of opticianry, or established the net worth of Specs and Company, Inc. or broke out with reasonable clarity Ms. Nicolitz's "personal net worth from personal and business investments."

    
    

42. The testimony of the three attorneys who testified as to fees and costs has been thoughtfully considered and weighed. It is found that Petitioner was obligated to her attorney for fees and costs for 15.30 hours and no allowable costs as of the date of voluntary dismissal of the underlying case, for 40.30 hours and $279.70 in allowable costs as of the date the initial petition for fees and costs was filed February 26, 1993, for 40.30 hours and

    $279.70 in allowable costs as of the date of filing of the amended fees and

    costs petition herein; and for 126.30 attorney hours and $368.05 costs as of the commencement of formal hearing on fees and costs herein. The rate of $200.00 dollars per hour charged by Petitioner's counsel is a reasonable hourly rate, given the unique circumstances of this case. At that rate, Petitioner's counsel established sufficient hours to reach the $15,000 statutory cap prior to the commencement of formal hearing on the attorney's fees and costs issues. 3/

    
    

    CONCLUSIONS OF LAW

    
    

43. This cause arises under Section 57.111 F.S.

    
    

44. The legal issues raised in this proceeding are as follows:

    
    

    1. Was the Petition for attorney fees and costs timely filed pursuant to Section 57.111 F.S. and Rule 60Q-2.035 F.A.C.?

       
       

    2. Does Petitioner qualify as a "prevailing small business party" under Section 57.111 F.S. and Rule 60Q-2.035 F.A.C.?

       
       

    3. Was the initiation of agency action "substantially justified"?

       
       

    4. If all other issues are resolved in favor of Petitioner, what is the "cap" on attorney's fees and costs and from whom is it due--one or both entities, the Board and/or the Department of Professional Regulation? 4/

    
    

    Timeliness of the petition for fees and costs

    
    

45. In order to be "timely" the Petition for Attorney's Fees needed to be filed within the following parameters.

    
    

    Section 57.111(4)(b)1., F.S., provides:

    The application for an award of attorney's fees must be made within 60 days after the date that the small business party becomes a prevailing small business party.

    
    

    Section 57.111(3)(c), F.S., provides:

    A small business party is a "prevailing small business party" when:

    1. A final judgment or order has been entered in favor of the small business party and such judgment or order has not been reversed on appeal or the time for seeking judicial review of the judgment or order has expired;

    2. A settlement has been obtained by the small business party which is favorable to the small business party on the majority of issues which such party raised during the course of the proceeding; or

    3. The state agency has sought a voluntary dismissal of its complaint.

       
       

46. Respondents Department and Board maintained that because no recommended order was issued by the hearing officer and no final order was issued by the Board of Opticianry for DOAH Case No. 92-1477, and since the underlying administrative proceeding was terminated by a voluntary dismissal of the complaint by the Department of Professional Regulation, as the prosecutor for the Board of Opticianry, the petition for an award of attorney's fees had to

    be filed within 60 days of the voluntary dismissal which bore a certificate of service of June 22, 1992, because that was the date when the voluntary dismissal "was sought." Respondents further asserted that therefore, the filing of the petition herein on February 26, 1993, (within sixty days of the District Court of Appeals' mandate) was untimely. This argument ignores the liberal intent expressed by the framers of Section 57.111 F.S. at Subsections (2) and (4)(a)

    F.S. and further ignores the all-too-obvious fact that Petitioner did not "prevail" until the First District Court of Appeals intercepted the Respondents' abusive and illegal flanking maneuver mounted upon the wings of its notice of voluntary dismissal. The petition for attorney's fees and costs sub judice, was filed within 60 days of the District Court's mandate whereby Petitioner "prevailed" in a case of first impression over the agency's attempt to improperly foreclose an impartial evidentiary hearing, and the petition is therefore timely, pursuant to Section 57.111 F.S. See, in accord, Department of Health and Rehabilitative Services v. South Beach Pharmacy Inc. (First DCA Case No. 92-4332 April 12, 1994). The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause.

    
    

    "Small business party" status

    
    

47. Petitioner Nicolitz asserted that simply by holding an active opticianry license, she qualifies as "practicing opticianry" under Section 484.002(3) F.S., and that because she had fewer than 25 employees and a net worth of less than $2 million at all times material, she qualifies as a "small business party" under Sections 57.111(3)(d)1.a. and/or 1.b. F.S.

48. Section 57.111(3)(d) provides as follows: The term "small business party" means:

    1.a. A sole proprietor of an unincorporated

    business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the

    action is initiated by a state agency, not more than 25 full-time employees or a net worth of not more than $2 million, including both personal and business investments; or

    b. A partnership or corporation, including a professional practice, which has its principal office in this state and has at the time the action

    is initiated by a state agency not more than 25 full- time employees or a net worth of not more than $2 million; or

    
    

49. Before even addressing the nature of what Ms. Nicolitz was doing in 1991-1992, it is conceivable that she fails to qualify as a "small business party" upon the dates involved. The only dates Ms. Nicolitz could be definite about as to when she was "practicing opticianry" were in March or April 1991 (the neighbor and the neighbor's mother) and "in the fall" of 1991 for the family hunting glasses. The neighbor and neighbor's mother event clearly predates the October 23, 1991 administrative complaint and there is no showing it was of a continuing nature in October 1991. "In the fall" might overlap the filing of the administrative complaint and then again it might not. This activity also clearly was not an on-going practice.

50. Petitioner's posthearing proposal at page 41 submitted that because Ms. Nicolitz was, and remains, capable by her professional license to practice opticianry with or without a corporate structure, the corporate existence of Specs and Company, Inc. is not relevant. The undersigned concurs that the corporate existence of Specs and Company, Inc. is not relevant, only because, although Petitioner claimed to be the sole "owner" of the corporation, Petitioner was apparently only its employee up until 1989 and did not operate the corporate entity as a professional practice after 1989; because Petitioner appeared in her individual capacity in all underlying proceedings; and because the corporation was not a party to the underlying proceedings. Petitioner's suggestion that the corporation was "technically available" is unpersuasive. Ms. Nicolitz claimed Specs and Company, Inc. was in no way active for the purposes of opticianry in 1990, so she cannot claim it was "reactivated" in 1991-1992, just because she now remembers some opticianry work she did while in the employ of her opthalmologist husband with "mothballed" corporate equipment. At all times material, Specs and Company, Inc. constituted merely a tax shelter which made no attempt to profit from any business activity and was in no way

    involved in the underlying disciplinary case. However, assuming, arguendo, that the shell corporation cannot be disregarded, Petitioner still does not qualify as a "small business party". See, Florida Real Estate Commission v. Shealy 19

    F.L.W. D1149 (1st DCA May 25, 1994).

    
    

51. It is also concluded that Petitioner's status as a "design consultant" to her husband's medical professional association did not endow her with "small business party" status under the circumstances of this case, and that at no time material did Ms. Nicolitz work as a sole proprietor of an unincorporated business associated with opticianry or receive any income as sole proprietor of an unincorporated business associated with opticianry. The evidence shows that the "consultant" designation also was essentially for tax avoidance purposes. Since Petitioner performed opticianry for "Ernest Nicolitz, M.D., P.A.", Petitioner could not simultaneously be a "sole proprietor" in her own right for the same activities. As an employee, employee status does not qualify her as a "small business party." See, Department of Professional Regulation v. Toledo Realty 549 So.2d 715 (Fla. 1st DCA 1989); Thompson v. Department of Health and Rehabilitative Services, 533 So.2d 840 (Fla. 1st DCA 1988).

    
    

52. Although Petitioner was professionally licensed by the agency at the time the underlying action was initiated, she was neither engaged in the practice of her profession nor was she the "alter ego" of an unincorporated business. See, Department of Health and Rehabilitative Services v. J.S., 10

    F.A.L.R. 5140 (1988), determining that a licensed ACLF manager with no financial interest in the business was only an employee of the ACLF and was not engaged in the practice of his profession and thus, he was not a small business party under FEAJA; Department of Professional Regulation v. Toledo Realty, Inc., supra, affirming the hearing officer's findings denying small business party status for a licensed real estate broker; Structured Shelters Financial Management, Inc. v. Department of Banking and Finance, Division of Securities, 10 F.A.L.R. 382 (1987) finding that individual directors and/or officers of a small business who list themselves as consultants elsewhere were not small business parties under FEAJA; and Thompson v. Department of Health and Rehabilitative Services, supra, holding that FEAJA does not apply to individual employees.

    
    

53. Contrary to Petitioner's position, recent decisions have clearly distinguished the difference between a mere license holder and a small business or corporation for purposes of applying the statute. The First District Court of Appeal recently issued an opinion on the issue of a small business party within the meaning of Chapter 57, F.S., opining, "Section 57.111 authorizes an

    attorney's fee for a qualifying small business party, which must be a corporation, a partnership, or a sole proprietor of an unincorporated business". (Emphasis supplied.) See, Florida Real Estate Commission v. Shealy, supra. "[T]he statute does not permit disregard for the corporate form. No award is permitted for a party who is not a small business party as defined by the statute." (Emphasis supplied). That case and the one at bar are distinguishable from Ann & Jan Retirement Villa, Inc. v. Department of Health and Rehabilitative Services, 580 So.2d 278, 280 (Fla. 4th DCA 1991), cited by Petitioners,

    
    

54. Section 484.002(3) F.S. defines "opticianry" as:

    
    

    [T]he preparation and dispensing of lenses, spectacles, eyeglasses, contact lenses, and other optical devices to the intended user or agent thereof, upon the written prescription of a medical doctor or optometrist who is duly licensed to practice or upon presentation of a

    duplicate prescription. The selection of frame designs, the actual sales transaction, and transfer of physical possession of lenses, spectacles, eyeglasses, contact lenses, and other optical devices subsequent to performance of all services

    of the optician shall not be considered the practice of opticianry; however, such physical possession shall not be transferred until the optician has completed the fitting of the optical device upon

    the customer. The practice of opticianry also includes the duplication of lenses accurately as to power, without prescription. A board-certified optician qualified and operating under rules established by the board may fill, fit, adapt, or dispense any soft contact lens prescription. Such optician may fill, fit, adapt, or dispense any extended wear or hard contact lens prescription

    to the extent authorized to do so by the prescribing medical doctor or optometrist.

    
    

55. Many of Florida's professional boards have recently made strides to categorize Florida as a "license" versus a "practice" state, and the definitions of "small business party" within Section 57.111 F.S. and its case law progeny may not have kept pace with the foregoing concept, but it is not reasonable to conclude that Petitioner's altruistic and unremunerated assistance to friends and family rendered her a "small business party" for purposes of Section 57.111

    F.S. Empty glasses frames or frames without prescription lenses may legally be sold over the counter by an unlicensed person in a dime store. Pushing lenses into place temporarily or replacing screws mechanically, without more, is not generally recognized as "practicing opticianry." Indeed, even Petitioner did not initially view any of her 1991-1992 activities as "practicing opticianry". Petitioner's acts without a written prescription or in selling frames to someone (the neighbor's mother) via an intermediary customer (the neighbor) and not fitting those frames on the ultimate consumer (the neighbor's mother) cannot constitute "practicing opticianry" under a clear reading of the statute. Petitioner's assistance to her husband and son in measuring pupillary distance on a single occasion constituted "practicing opticianry" under the statute, but as done here, it certainly did not constitute "operating a business." If anything, Petitioner was acting as an employee under her husband's direction as the opthalmologist who wrote his own and his son's prescriptions.

56. Petitioner has not established her net worth as "under $2,000,000."

    
    

57. Since Petitioner has failed to bear her burden of proof to show she is a "small business party," it is not necessary to address the remaining issues framed by the parties.

ORDER

Upon the foregoing findings of fact and conclusions of law, it is ORDERED that the petition for attorney's fees and costs be dismissed.

DONE AND ORDERED this 29th day of November, 1994, at Tallahassee, Florida.

ELLA JANE P. 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 29th day of November, 1994.

ENDNOTES

1/ Since it occurred after the administrative complaint was filed, it has no bearing on "substantial justification" of the Board to institute the action, but it may be noted that the agencies only proceeded with attempts to wrest jurisdiction from the independent DOAH fact finder after Ms. Nicolitz rejected a Department attorney's offer of dismissal of the administrative complaint in exchange for a waiver of an attorney's fees and costs claim.

2/ No appraisal was done to show the fair market value of Petitioner's real estate holdings. The value of her husband's medical practice was not determined. Other investments and properties were unknown to the C.P.A. and their value was unspecified. The couple's worth was intermingled in some respects and broken out individually in others.

3/ It is noted that Petitioner's attorney filed an updated affidavit claiming

170.50 hours and $1,905.00 in costs as of the filing of Petitioner's posthearing proposals. Respondents have had no opportunity to address these items. The affidavit's failure to list any time for the lengthy portion of formal hearing conducted February 28, 1994 must be an oversight.

4/ In regard to this issue, Petitioner's posthearing proposal asserts that she is entitled to a $15,000 cap on fees and costs from each of the two agencies involved, totalling $30,000. Respondents' respective posthearing proposals are silent on that issue, but the undersigned infers that they oppose Petitioner's construction. The defense of being only a "nominal party" was asserted at least by the Board in prior motions, but at formal hearing, both Respondents acknowledged that if any attorney's fees and costs are awarded, these will be

paid out of the Board's trust funds derived from fees and fines against licensees, (see, Section 455.219(4) F.S.), regardless of which entity the fees and costs are assessed against. Further, Respondents assert that if found to be due at all, Petitioner's fees and costs entitlement could only accrue to Petitioner from October 29, 1991 up to the date that voluntary dismissal of the underlying case "was sought" or at least up to the date of the "ratifying" order closing DOAH's file on June 23, 1992, because no final order was ever entered by the Board, and because the appellate process involving the writ of prohibition and all subsequent proceedings is not the type of appellate procedure contemplated by Section 57.111 F.S. Alternatively, Respondents argue that fees and costs are only due up to the date of filing the petition herein. (Respondents may be claiming that fees and costs could accrue only up to the date of filing the amended petition. Their position is not fully clear between the proposals and the record.) Also, Respondents assert that by no construction of the law may fees and costs be awarded for the time, energy, effort and skill involved in collecting fees and costs through the instant proceeding. The Board further asserts there was a failure to request attorney's fees and costs in the underlying case and that if there was such a failure, it would bar a Section

57.111 F.S. petition. These arguments are noted, but not reconciled nor ruled upon for the reasons set out in the body of this final order.APPENDIX TO RECOMMENDED ORDER 93-1182F

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1-5 Accepted, except that unnecessary, subordinate, and/or cumulative material was not utilized, nor have intermixed legal conclusions been adopted.

6 Rejected. Includes a proposed conclusion of law, an erroneous date and the date in the third sentence is not referenced by a citation to the record.

7-9 Accepted except as to intermixed unnecessary, subordinate, and/or cumulative material, legal argument, and conclusions of law. See Findings of Fact 4, 20-21, 30-34.

10-20 Accepted, except that unnecessary, subordinate, and/or cumulative material was not utilized.

21 Accepted except for the last sentence, which is a conclusion of law (despite similar factual language employed by Petitioner's testimony). There is no evidence Petitioner altered her position as to the third report in reliance on Ms. Hickel's letters; therefore there is no legal "reliance/estoppel" at that point in time.

22-24 Accepted, except that unnecessary, subordinate, and/or cumulative material was not utilized.

25-41 Accepted only as necessary to resolve disputed (including ultimate material facts, and not necessarily upon both 28's) the portion of the record cited; the record as a whole has been considered and weighed. Otherwise, these proposals were rejected as unnecessary, subordinate, and/or cumulative material and/or legal argument and mere comparisons of oral and written evidence.

42-54 Accepted, except that unnecessary, subordinate, and/or cumulative material was not utilized. Specifically, most that is rejected is rejected as not ultimate material facts but subordinate to the facts as found.

55-58 Accepted in part and rejected in part upon the greater weight of the competent credible record evidence as a whole. Legal argument and mere comparison of testimony is rejected. Covered in Finding of Fact 41.

1. Accepted, except that unnecessary, subordinate, and/or cumulative material was not utilized.

2. Rejected as phrased because, as phrased, not supported by the record. Covered in Findings of Fact 35-40.

61-62, 64-66 These proposals compare conflicting attorney's fee entitlement opinion evidence, and are rejected as subordinate to the facts as found in Finding of Fact 42.

63 Rejected as invading the province of the DOAH hearing officer as to determining ultimate fact. However, the same result is reached in Findings of Fact 33-34.

Respondent Department of Professional Regulation's PFOF:

1-4 Accepted, except that unnecessary, subordinate, and/or cumulative material was not utilized.

5-7 Accepted but subordinate to the facts as found and not dispositive of any material issue; therefore not utilized.

8, 10 Rejected upon the record evidence as a whole, and more specifically the facts as found at Findings of Fact 29-34.

9 Accepted but subordinate to the facts as found and not dispositive of any material issue; therefore not utilized.

11-13 Accepted, except that unnecessary, subordinate, and/or cumulative material was not utilized.

14 Rejected as misleading. See Findings of Fact 33-34.

15-16 Rejected as misleading because out of context and stating a legal conclusion in lieu of fact or law of the case. Covered throughout the recommended order.

17-20 Accepted, except that unnecessary, subordinate, and/or cumulative material was not utilized.

21-23 Rejected as misleading because out of chronological order and attempting to state a legal conclusion in lieu of fact and contrary to the law of the case.

24-31 Accepted only as necessary to resolve disputed and ultimate material facts, albeit not necessarily upon the portion of the record cited. The record as a whole has been considered and weighed, and all statements reconciled where possible. Where not possible, that has been noted. Covered in Findings of Fact 35-40 of the recommended order. Otherwise rejected upon the greater weight of the competent, credible evidence.

32-35 Rejected as not ultimate material facts, but subordinate based upon amendments and testimony. Parts are accepted upon the same evidentiary analysis in Findings of Fact 35-40.

36 Accepted.

37-48 Accepted but not adopted due to intermixed unnecessary, subordinate, and/or cumulative material. Specifically, material subordinate to the facts as found at Finding of Fact 41 have been excluded.

Board of Opticianry's PFOF:

1-7 Accepted, except that unnecessary, subordinate, and/or cumulative material was not utilized.

1. Accepted in Findings of Fact 35-40.

2. This proposal includes a lengthy footnote and intermixes factual proposals, legal argument, and legal conclusions. It is accordingly rejected. The topic is covered as necessary in Findings of Fact 37-40.

3. This proposal includes a lengthy footnote and intermixes factual proposals (many of which are unnecessary, subordinate, and/or cumulative material), legal argument, and legal conclusions. It is accordingly rejected. The topic is covered as necessary in Findings of Fact 37 and 41.

COPIES FURNISHED:

Paul Watson Lambert

2851 Remington Green Circle Suite C

Tallahassee, FL 32399-0752

Claire D. Dryfuss Department of Legal Affairs The Capitol, PL-01 Tallahassee, FL 32399-1050

James E. Manning

Department of Business and Professional Regulation 1940 North Monroe Street

The Northwood Centre Tallahassee, FL 32399-0752

Ms. Kaye Howerton, Executive Director Professional Regulation

Northwood Centre, 1940 N. Monroe Street Tallahassee, FL 32399-0792

Jack McRay, Esquire Department of Business and

Professional Regulation

Northwood Centre, 1940 N. Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 A 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: 93-001182F

Orders for Case No: 93-001182F