STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IRA N. SILVERSTONE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5772

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF )

OPTICIANRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above styled case on March 13, 1997, and April 23, 1997, by video teleconference.

APPEARANCES

For Petitioner: Steve E. Brookner, Esquire

9500 South Dadeland Boulevard, Suite 610

Miami, Florida 33156

For Respondent: Monica Felder

Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

At issue is whether petitioner's application to take the examination required for licensure as an optician should be approved.

PRELIMINARY STATEMENT

In June 1996, petitioner filed an application with respondent to take the examination required for licensure as an optician. As qualification for the examination, petitioner averred he had completed a prescribed apprenticeship program.

The application was considered by the Board of Opticianry on August 7, 1996, and on August 21, 1996, the Board entered an order denying petitioner's application. Pertinent to this case, the order provided:

FINDINGS OF FACT

Mr. Silverstone seeks licensure through the apprenticeship program. His organized sponsor indicated he only supplied initial sponsorship forms. The vast majority of the hours Mr. Silverstone claims were not certified by his sponsor whose signature was forged.

CONCLUSIONS OF LAW

Attempting to obtain licensure by fraud or false statement are violations of Sections 455.227(1)(a), 484.014(1)(a), and

484.013(1)(a), Florida Statutes. It is therefore Ordered that:

Licensure is DENIED.

Petitioner initially requested an informal hearing; however, at that hearing he apparently disputed certain factual matters.

Consequently, the informal hearing was terminated, and on December 4, 1996, the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing.

At hearing, petitioner testified on his own behalf, and

petitioner's exhibit 1 was received into evidence. Respondent did not call any witnesses, although it did offer the deposition testimony of Dr. Steven Atlas by video (respondent's exhibit 2) and transcript (respondent's exhibit 2A). Respondent's exhibits 1, 2, 2A, 3 and 4 were received into evidence.1

The transcript of hearing was filed May 12, 1997, and the parties were accorded ten days from that date to file proposed recommended orders or argument. Respondent elected to file a proposed recommended order and a written closing argument, which has been duly considered in the preparation of this recommended order.

Background

FINDINGS OF FACT

1. Respondent, Agency for Health Care Administration, Board of Opticianry (Agency), is a state government licensing and regulatory agency charged with, inter alia, the responsibility and duty to license opticians pursuant to Chapter 484, Florida Statutes, and the rules promulgated pursuant thereto.

2. In June 1992, petitioner, Ira N. Silverstone, filed an application with the Agency for registration as an apprentice, pursuant to Section 484.007(1)(d)4, Florida Statutes. If approved, and successfully completed, the apprentice program would allow petitioner to satisfy necessary education, training and experience standards required to take the examination for licensure as an optician. The application listed Dr. Steve

   Atlas, an optometrist, as petitioner's sponsor, and was approved, effective July 2, 1992.

3. Pursuant to Rule 21P-16.008(3), Florida Administrative Code, both sponsor and apprentice are required to submit a report, on forms prescribed by the agency, each six months for the period ending April 30 and October 30 of each year of the apprenticeshipt.2 Consistent with such requirement, petitioner and Dr. Atlas submitted their first semiannual reports (for the period of July 2, 1992, to October 31, 1992) in December 1992, and their second semiannual reports (for the period of November 1, 1992, to April 30, 1993) in July 1993; however, until March 28, 1996, no further reports were received by the Agency.

4. On March 27, 1996, Pamela Tromly of the Board of Opticianry, received a telephone call from petitioner. During the conversation that ensued, petitioner told Ms. Tromly that his employment with Dr. Atlas had been terminated that morning and, at some point in the conversation, Ms. Tromly informed petitioner that no apprenticeship hours had been reported since 1993. At that time, petitioner told Ms. Tromly he had routinely submitted the reports, and would provide copies for the Agency. Those copies were received by the Agency on March 28, 1996, and included an apprentice semiannual report and a sponsor's semiannual report for the periods of May 1, 1993, to October 31, 1993; November 1, 1993, to April 30, 1994; May 1, 1994, to

   October 31, 1994; November 1, 1994, to April 30, 1995; and May 1,

   
   

   1995, to October 31, 1995.

   
   

5. In June 1996, petitioner filed an application with respondent for authorization to take the opticianry examination based on his successful completion of the apprenticeship program. The application was considered by the Board of Opticianry on August 7, 1996, and on August 21, 1996, the Board entered an order denying his application. Denial was based on the following conclusion:

   FINDINGS OF FACT

   
   

   Mr. Silverstone seeks licensure through the apprenticeship program. His organized sponsor indicated he only supplied initial sponsorship forms. The vast majority of the hours Mr. Silverstone claims were not certified by his sponsor whose signature was forged.

   CONCLUSIONS OF LAW

   
   

   Attempting to obtain licensure by fraud or false statement are violations of Sections 455.227(1)(a), 484.014(1)(a), and

   484.013(1)(a), Florida Statutes. It is therefore Ordered that:

   Licensure is DENIED.

   Petitioner contested the Board's conclusion, and these proceedings duly followed.

   Licensure requirements

   
   

6. Pertinent to this case, Section 484.007, Florida Statutes, prescribes the following requirements for licensure as an optician:

   1. Any person desiring to practice opticianry shall apply to the department, upon forms prescribed by it, to take a licensure examination. The department shall examine each applicant who the board certifies:

      1. Has completed the application form and remitted a nonrefundable application fee set by the board, in the amount of $100 or less, and an examination fee set by the board . . .

      2. Is not less than 18 years of age;

      3. Is a graduate of an accredited high school; and

         (d) . . .

         
         

         4. Has registered as an apprentice with the department and paid a registration fee not to exceed $60, as set by rule of the board. The apprentice shall complete 6,240 hours of training under the supervision of an optician, a physician, or an optometrist licensed under the laws of this state. These requirements must be met within 5 years after the date of registration. However, any time spent in a recognized school may be considered as part of the apprenticeship program provided herein. The board may establish administrative processing fees sufficient to cover the cost of administering apprentice rules as promulgated by the board.

   2. The department may permit an applicant

      who has satisfied all requirements of subsection (1) to take the examination and shall issue a license to practice opticianry to any candidate who successfully completes the examination.

      
      

7. Chapter 21P-16, Florida Administrative Code, was promulgated by the Board of Opticianry to implement the apprenticeship program and, as heretofore noted, required both sponsor and apprentice to submit a report, on forms prescribed by the Agency, each six months for the period ending April 30 and October 30 of each year of the apprenticeship.3

8. Before proceeding further to resolve the matters in dispute, it is helpful to focus on precisely what is at issue. Here, there is no dispute that petitioner has satisfied each of the criterion established by Section 484.007(1), Florida Statutes, including the satisfactory completion of his apprenticeship, that are required to take the examination for licensure. The only impediment to the approval of petitioner's application is the Agency's contention that Dr. Atlas' signature was forged on the sponsorship forms petitioner submitted. Consequently, the Agency concludes petitioner's application should be denied because he violated the provisions of Subsections 455.227(1)(a), 484.013(1)(a), and 484.014(1)(a), Florida Statutes, by "[a]ttempting to obtain licensure by fraud or false statement."

   The Agency's basis for denial

   
   

9. In addressing the bona fides of the five semiannual sponsorship reports, covering the period from May 1, 1993, through October 31, 1995, at issue, it is worthy of note that the Agency does not question the accuracy of any of the information contained on the reports except the validity of the sponsor's (Dr. Atlas') signature. Indeed, as heretofore noted, there is no dispute that petitioner successfully completed the hours of supervised apprenticeship reflected in the reports.

10. Turning now to the genuineness of Dr. Atlas' signature as it appears on the five semiannual reports at issue, the proof

    demonstrates, more likely than not, that petitioner filled out the subject forms the later part of March 1996, and affixed Dr. Atlas' signature without his authorization.4 That having been noted, it is likewise apparent from the record that, when respondent submitted the reports to the Agency, the relationship between petitioner and his sponsor had deteriorated, and his employment had been terminated.

11. Regarding the timing and circumstances surrounding the preparation of the reports, Dr. Atlas provided a letter to the Board dated March 29, 1996, following petitioner's termination, wherein he stated:

    Sometime in January of 1996, it came to my attention that Ira Silverstone is suppose to fill out papers on his apprenticeship every six months and needs me to also fill out some papers. I assumed he no longer was interested in becoming an Optician. I had not seen any apprenticeship papers in the last three years nor did I fill any out, nor have I signed any of them. I confronted Ira Silverstone about this because it is my understanding that if these papers are not submitted, he can't take the Opticians Boards. Ira told me he signed my name to these papers with out my knowledge. He forged my signature. I was furious, not sure what to do about him.

    According to Dr. Atlas' deposition testimony, petitioner apologized.

12. Notwithstanding this revelation, Dr. Atlas took no further action regarding the matter until the end of March 1996, when he asked petitioner for copies of the reports so he could "verify that he signed my name to these papers." [Respondent's

    exhibit 2A, page 15.] Five or six days later, on March 27, 1996, petitioner produced copies of the reports, at which time the doctor "went through all of the things [unexplained of record]

    . . . that had happened in my office and he was terminated. . . ." [Respondent's exhibit 2A, page 20.]

13. While it has been found that petitioner did prepare the subject reports, most likely immediately prior to March 27, 1996, it must also be concluded that the doctor's recollections regarding the events in January and March 1996 have a decidedly self-serving spin, and are lacking in completeness and candor.

14. First, regarding the discussion of January 1996, under the doctor's version of the event there was no logical reason for petitioner to have responded as he did. Notably, at the time, no reports had been prepared or submitted to the Agency.

    Considering the proof, the more likely explanation for the doctor's concern that the reports had not been prepared can be found in his conversation with the Board's representative on March 26, 1996, when he expressed concern as to whether he would be subject to any disciplinary action for failing to timely submit his sponsor's reports. That self-interest is consistent with the doctor having "confronted" petitioner on that date, since under his arrangement with the doctor it was petitioner's responsibility to complete the sponsorship form and leave it on the doctor's desk for signature. The conclusion is also consistent with petitioner's response, which could be considered

    an effort to placate or avoid criticism from his employer, and the doctor's lack of further interest until late March 1996.5

15. Regarding the events in late March 1996, and the doctor's renewed interest in the reports, it must be concluded that the doctor's personal concerns had now shifted from the prospect of disciplinary action to protecting himself from a claim for workers' compensation benefits. In this regard it is observed that, at the time he requested the reports, the doctor was contemplating petitioner's termination and wanted the reports "to verify that he had signed my name." Petitioner, apparently unaware of the doctor's intention, unwittingly produced the reports on March 27, 1996, and they proved pivotal to the denial of his claim for workers' compensation benefits.

16. While the circumstances surrounding the preparation of the reports hardly excuses their submission to the agency, it does offer relevant considerations as to an appropriate response to petitioner's conduct. In this regard it should be remembered that the sponsorship forms petitioner submitted fairly reflected his progress in the apprenticeship program. It should further be noted that at the time petitioner submitted the forms his employment had just been terminated and, given the circumstances, he had reasonable concerns regarding the doctor's continued support of his apprenticeship application.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1), and 120.60, Florida Statutes.

18. Petitioner, as the applicant for authorization to take the examination required for licensure, bears the ultimate burden of persuasion to demonstrate entitlement by a preponderance of the evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So.2d 932 (Fla. 1996), and Florida Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). The applicant need, however, address only those issues raised in the Agency's notice of intent to deny. See, Section 120.60(3), Florida Statutes (1995 Supp.) ("Each notice [of denial] shall inform the recipient of the basis for the agency

    decision. . . ."), cf., Kinney v. Department of State, 501 So.2d

    
    

    129 (Fla. 5th DCA 1987) (disciplinary action may be taken against a licensee based only upon the offenses specifically alleged in the administrative complaint), and Wray v. Department of Professional Regulation, Board of Medical Examiners, 435 So.2d

    312 (Fla. 1st DCA 1983).

    
    

19. Where, as here, the agency proposes to deny an application based on perceived violations of chapters 455 and 484, the burden of producing evidence to demonstrate such violation is upon the Agency. This shift between the parties in

    an application dispute proceeding was described by the court in Department of Banking and Finance v. Osborne Stern and Co., supra, at page 934, as follows:

    . . . we agree with the analysis of Judge Booth explaining that in license application proceedings:

    The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.

    Florida Department of Transportation v. J.W.C. Company,396 So.2d 778 (Fla. 1st DCA 1981). Thus, the majority is correct in its observation that [the applicants] had the burden of presenting evidence of their fitness for registration. The majority is also correct in its holding that the Department had the burden of presenting evidence that [the applicants] had violated certain statutes and were thus unfit for registration. The majority's conclusion, however, that the Department had the burden of presenting its proof of [the applicants'] unfitness by clear and convincing evidence is wholly unsupported by Florida law and inconsistent with the fundamental principle that an applicant for licensure bears the burden of ultimate persuasion at each and every step of the licensure proceedings, regardless of which party bears the burden of presenting certain evidence. This holding is equally inconsistent with the principle that an agency has particularly broad discretion in determining the fitness of applicants who seek to engage in an occupation the conduct of which is a privilege rather than a right. Osborne, 647 So.2d at 250 (Booth, J., concurring and dissenting) (citations omitted). We emphasize the correctness of Judge Booth's conclusion that, while the burden of producing evidence may shift between the parties in an application dispute proceeding, the burden of persuasion remains upon the applicant to prove her entitlement to the license. . . .

20. Here, as observed in the findings of fact, there is no

    dispute that petitioner satisfies the criteria established by Section 484.007(1), Florida Statutes, including satisfactory completion of his apprenticeship, required to take the examination required for licensure. The only issue or impediment to the approval of petitioner's application is the Agency's contention that Dr. Atlas' signature was "forged" on the sponsorship forms petitioner submitted and, therefore, petitioner violated the provisions of Subsection 455.227(1)(a), 484.013(1)(a), and 484.014(1)(a), Florida Statutes, by "[a]ttempting to obtain licensure by fraud or false statement."

21. Given the posture of the case, it must be concluded that petitioner has presented a prima facie case demonstrating his qualifications to take the examination required for licensure. Consequently, the only remaining issue to be resolved is whether the Agency has demonstrated that petitioner's conduct violated the foregoing provisions of law and, if so, the appropriate penalty, giving due consideration to any aggravating or mitigating circumstances, to be imposed. Osborne Stern and Co. v. Department of Banking and Finance, supra.

22. Pertinent to this case, Section 484.013, Florida Statutes,6 provides:

    1. It is unlawful for any person:

       1. 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.

          
          

          And, section 484.014, provides:

          1. The following acts relating to the practice of opticianry shall be grounds for both disciplinary action against an optician as set forth in this section and cease and desist or other related action by the department as set forth in s. 455.228 against any person operating an optical establishment who engages in, aids, or abets any such violation:

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

       Finally, section 455.227(1),7 provides that the following conduct constitutes grounds for disciplinary action:

       (a) Making misleading, deceptive, or fraudulent representations in or related to the practice of the licensee's profession.

       
       

23. Where a violation of any of the foregoing provisions is found, the Board of Opticianry "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 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.

    
    

    Subsection 484.014(2), Florida Statutes.

    
    

24. In reading the provisions of subsections 455.227(1)(a), 484.013(1)(a), and 484.014(1)(a), it cannot be subject to serious debate that it is contemplated that an intentional act be proved

    before a violation may be found. See, Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992). Consequently, the Agency must show not only that the applicant provided false or misleading information on his application, but that he knowingly did so with the intent to deceive or mislead the Board. Cf. First Interstate Development Corp. v. Ablandeo,

    511 So.2d 536, 539 (Fla. 1987) ("intentional misconduct is a necessary element of fraud. Indeed, to prove fraud, a plaintiff must establish that the defendant made a deliberate and knowing misrepresentation designed to cause [in the case of an attempt]

    . . . detrimental reliance by the plaintiff"); Gentry v. Department of Professional and Occupational Regulation, 293 So.2d 95, 97 (Fla. 1st DCA 1974) (statutory provision prohibiting licensed physicians from "[m]aking misleading, deceptive and untrue representations in the practice of medicine" held not to apply to "representations which are honestly made but happen to be untrue;" "[t]o constitute a violation . . . the legislature intended that the misleading, and untrue representations must be made willfully (intentionally)").

25. Here, the sponsorship forms were submitted with the expectation that the Agency would rely on them, as having been attested by petitioner's sponsor, as evidence of his satisfactory completion of the apprenticeship program. To the extent the signature of Dr. Atlas was improperly applied by petitioner, the reports were false or deceptive; however, the content of the

    reports fairly reflected petitioner's progress in the apprenticeship program. Consequently, while the submission of the reports may be considered false or deceptive, as contended by the Agency, their submission lacks a sense of gravity.

26. In determining what penalty, if any, should be imposed against petitioner for his violation of subsections 484.013(1)(a), 484.014(1)(a), and 455.227(1)(a), it is necessary to consult Rule 59U-8.020, Florida Administrative Code, which contains the disciplinary guidelines that the Board must follow in the instant case. Cf. Williams v. Department of Transportation, 531 So.2d 994 (Fla. 1st DCA 1988) (agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees); Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977) (agencies must honor their own substantive rules until they are amended or abrogated).

27. Rule 59U-8.020, Florida Administrative Code, provides the following disciplinary guidelines:

    1. When the Board finds an applicant or licensee whom it regulates under Chapter 484, F.S., has committed any of the acts set forth in Section 484.013, F.S., it shall issue a final order imposing appropriate penalties within the ranges recommended in the following disciplinary guidelines:

       1. 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. The usual action of the Board shall be to impose a penalty ranging from a $500 fine and possible reprimand for the first offense, a $1,000

          fine and up to suspension for the second offense and suspension for the third offense.

          
          

          * * *

          
          

    2. When the Board finds an applicant or licensee whom it regulates under Chapter 484, F.S., has committed any of the acts set forth in Section 484.014, F.S., it shall issue a final order imposing appropriate penalties within the ranges recommended in the following disciplinary guidelines:

       1. Procuring or attempting to procure a license by misrepresentation, bribery, or fraud or through an error of the Agency or the Board. The usual action of the Board shall be to impose a penalty ranging from denial of licensure or a $1,000 fine and revocation of the license so procured.

          * * *

          
          

          (g) Violation or repeated violation of this part or of Chapter 455 or any rules promulgated pursuant thereto. The usual action of the Board shall be to impose a penalty fashioned from the range of penalties available to the Board and consistent with any guidelines established for the underlying violation.

          * * *

          
          

          (4) Based upon consideration of aggravating or mitigating factors, present in an individual case, the Board may deviate from the penalties recommended in paragraphs

          1. and (2) above. If mitigating factors are present, the administrative fine may be reduced by $250 and a less severe action, such as a reprimand or probation, taken against the licensee from the range of actions given in the disciplinary guidelines. If aggravating factors are present, the maximum administrative fine may be imposed and more severe action, such as suspension or revocation, taken against the licensee from the range of actions given in the disciplinary guidelines. The Board shall consider as aggravating or mitigating factors the following:

             1. The severity of the offense;

             2. The danger to the public;

             3. The number of repetitions of offenses;

             4. The length of time since the violation;

             5. The number of times the licensee has been previously disciplined by the Board;

             6. The length of time licensee has practiced;

             7. The actual damage, physical or otherwise, caused by the violation;

             8. The deterrent effect of the penalty imposed;

             9. The effect of the penalty upon the licensee's livelihood;

             10. Any effort of rehabilitation by the licensee;

             11. The actual knowledge of the licensee pertaining to the violation;

             12. Attempts by licensee to correct or stop violation or refusal by licensee to correct or stop violation;

             13. Related violations against licensee in another state including findings of guilt or innocence, penalties imposed and penalties served;

             14. Actual negligence of the licensee pertaining to any violation;

             15. Penalties imposed for related offenses under subsections (1) and (2) above;

             16. Any other relevant mitigating or aggravating under the circumstances.

          1. Penalties imposed by the Board pursuant to Subsections (1) and (2) above may be imposed in combination or individually. All penalties at the upper range of the sanctions set forth in the guidelines (e.g., suspension, revocation) include lesser penalties, i.e., fine, reprimand or probation, which may be included in the final penalty. Such penalties are as follows:

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

             2. Issuance of a reprimand.

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

             4. 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.

             5. Suspension of a license.

             6. Permanent revocation of a license.

          
          

28. While petitioner's actions were improvident and not worthy of emulation they were not so serious, giving due consideration to the circumstances, as to warrant denial of his application to take the examination for licensure. Rather, considering the Board's disciplinary guidelines, as well as the prescribed aggravating and mitigating factors, the appropriate penalty would be an administrative fine of $1,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be rendered approving petitioner's application to take the examination required for licensure as an optician, and imposing an administrative fine of

$1,000.

DONE AND ENTERED this 13th day of June, 1997, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997.

ENDNOTES

1/ At hearing, petitioner objected to the admission of respondent's exhibit 4 on the basis of hearsay and upon the further basis that the qualifications of the individual (Donald G. Pribbenow), who rendered an opinion regarding whether Dr. Atlas signed the questioned reports, were not of record and he was not otherwise shown to be qualified to render an expert opinion.

[Tr., page 52.] Petitioner's objections are not without significance; however, under the provisions of Section 120.58(1)(a)1, Florida Statutes (1995), as well as Bass v. Florida Department of Law Enforcement, 627 So.2d 1321 (Fla. 3d DCA 1993), the undersigned is constrained to receive respondent's exhibit 4 into evidence. Notwithstanding, the undersigned is also concerned that the individual's qualifications to render an expert opinion are not of record and his analysis was not subject to examination. Consequently, the opinions expressed in respondent's exhibit 4 have not been shown to be reliable, and are rejected.

2/ The rule is currently codified at 59U-16.008(3), Florida Administrative Code, and has been amended to provide for reporting each twelve months. For the rule, as it existed, see respondent's exhibit 1, page 30.

3/ The rule, currently codified at 59U-16.008(3), Florida Administrative Code, provided that a failure to report, as required, constituted a violation of "Chapter 455.227 and 484.014, F.S.," which would, among other things, permit the Board to deny an application for licensure. Here, the Board's notice of intent to deny does not raise such failure (the failure to timely submit the reports or the failure of the sponsor's report to contain, in the Board's opinion, the signature of Dr. Atlas) as a ground for denial and, presumably, it is not at issue in this proceeding.

See, Section 120.60(3), Florida Statutes (1995 Supp.) ("Each notice [of denial] shall inform the recipient of the basis for the agency decision. . . ."), cf. Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987) (disciplinary action may be taken against a licensee based only upon the offenses specifically alleged in the administrative complaint; Wray v. Department of Professional Regulation, Board of Medicine, 435 So.2d 312 (Fla.

1st DCA 1983).

4/ In so concluding, petitioner's testimony that he routinely, as each report was due, prepared the report for Dr. Atlas' signature and placed it on the doctor's desk; that routinely the reports

were returned to him, signed; and, that he routinely placed the sponsor's report in an envelope, along with his own report, and deposited it in the office mail for posting, has been rejected as contrary to the greater and more persuasive proof. Notably, if such practice were routinely followed, there is no rational explanation why not one report was received by the Agency. In choosing to credit Dr. Atlas' testimony in this regard, does not, as heretofore noted, suggest that his recollections on other matters are totally candid or persuasive. Moreover, the rejection of petitioner's explanation should not be considered a reflection or conclusion that his testimony at hearing was devoid of candor. Rather, in resolving which version of the testimony was more persuasive on various matters was dependent on a consideration of many factors, including the demeanor of the witness, any motive or bias of the witness, the ability of the witness to accurately observe, recall, and recount the events, the extent to which the testimony was consistent or inconsistent with other evidence, and the extent to which the testimony was consistent with logic and common sense. Finally, lack of candor, if present, was not relevant to these proceedings. In re Davey, 645 So.2d 398 (Fla.

1994); Bernal v. Department of Professional Regulation, 517 So.2d

113 (Fla. 3d DCA 1987), affirmed 531 So.2d 967 (Fla. 1988); Klein v. Department of Professional Regulation, 625 So.2d 1237 (Fla. 2d DCA 1993).

5/ It would have been helpful had there been direct testimony from petitioner or others regarding the events of January 1996; however, the proof demonstrates, more likely than not, the circumstances as found.

6/ The provisions of subsection 484.013 are applicable to this case by virtue of subsection 484.014(1)(g). Etheridge v.

Department of Insurance, 22 Fla. L. Weekly D565 (1st DCA 1997).

7/ The provisions of subsection 455.227(1)(a) are applicable to this case by virtue of subsection 484.014(1)(g).

COPIES FURNISHED:

Steve E. Brookner, Esquire

9500 South Dadeland Boulevard, Suite 610

Miami, Florida 33156

Mr. Ira N. Silverstone 4717 Northwest 22nd Street

Coconut Creek, Florida 33063

Monica Felder, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Lucy C. Gee, Executive Director Board of Opticianry

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-005772

Orders for Case No: 96-005772