STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF )

DISPENSING OPTICIANS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2242

)

STANLEY T. PORTER, )

)

Respondent. )

)

RECOMMENDED ORDER

This was heard in Conference Room 120, 6501 Arlington Expressway, Jacksonville, Florida, on February 21, 1978, by Stephen F. Dean, assigned Hearing Officer, of the Division of Administrative Hearings. This case was presented upon an administrative complaint charging Porter with violation of Rule 21P-1.012 and 21P-6.07, Florida Administrative Code.

ISSUE

Whether Porter failed to display his license prominently and permitted his license to be used by an unlicensed person when Porter was not present.

APPEARANCES

For Petitioner: Daniel Wiser, Esquire

Post Office Box 1752 Tallahassee, Florida 32304

For Respondent: Thomas Lang, Esquire

801 North Magnolia Avenue, Suite 302

Orlando, Florida 32803 FINDINGS OF FACT

1. Stanley T. Porter is a licensed dispensing optician holding License Number 27 issued by the Florida State Board of Dispensing Opticians.

   
   

2. No documentary evidence was introduced that Porter was on employee of Opti Center, Inc. on any specific date. Porter admitted having been employed by Opti Center, Inc. on several occasions and at several of their locations during the year 1977.

   
   

3. On June 1, 1977, Mary Baxter, an investigator for the Board, went into the Opti Center, Inc. location in the Montgomery Ward's optical department in the Gateway Mall in Jacksonville, Florida. There she selected a pair of glasses shown her by Rick Hedges. She ordered a pair of prescription glasses prepared in the frames she had selected from Hedges. On this occasion, Porter was not present. Porter's license was not displayed in this business location.

4. On June 22, 1977, Baxter returned to the Gateway Mall to pick up her glasses. She again was waited on by Rick Hedges. On this occasion, Stanley T. Porter was present. Porter was observed by Baxter working on glasses and waiting upon another customer. Although Porter was present at all times during the second visit to the store, Hedges adjusted the frames for Baxter and received payment from Baxter for the glasses which she picked up.

   
   

5. On May 27, 1977, Vincent Howell, an investigator for the Board, inspected the Opti Center location in Montgomery Ward's optical department located at Gateway Mall in Jacksonville, Florida. Howell observed Rick Hedges in the optical department by himself in this location. While speaking with Hedges, Howell observed Porter arrive in the department. Hedges, who was being interrogated by Howell regarding who the optician in the department was, was told by Hedges as Porter arrived, that Porter was the optician on duty. Whether Porter was aware of the representation was not developed at the hearing. Porter did not state that he was employed in the Opti Center location in the Gateway Mall.

   
   

6. Rick Hedges is not a licensed dispensing optician.

   
   

7. Porter's license was not displayed in a prominent location in the Opti Center location in the Montgomery Ward at the Gateway Mall.

   
   

   CONCLUSIONS OF LAW

   
   

8. Rule 21P-6.07, Florida Administrative Code, requires that the dispensing optician prominently display his license when holding himself out as a dispensing optician. Porter's acts indicate he was employed at the Gateway Mall Opti Center location on June 22, 1977. No evidence was presented that he was employed at this location on any other date. Porter admitted that he did not display his license at any time at any location.

   
   

9. Regarding the allegation that Porter permitted an unlicensed person to use his license, because Porter did not display his license, his license could not be used by another. With regard to Porter's being present while Hedges adjusted the frames of the new glasses which Baxter had purchased, Rule 21P-

   4.01 permits any trainee, apprentice or unlicensed optician working for or under a licensed dispensing optician to adjust the glasses when a licensed dispensing optician is present. Baxter's testimony was that Porter was present at all times while Hedges was adjusting her glasses.

   
   

10. With regard to Howell's inspection on May 27, 1977, and Baxter's first visit on June 1, 1977, there is no evidence in the record to establish Porter's employment by Opti Center at the Gateway Mall Opti Center location on those dates.

    
    

11. Therefore, Porter has violated only the provisions of Section 21P-6.07 requiring him to prominently display his license when holding himself out as a dispensing optician as he did on June 22, 1977.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Board suspend the license of Stanley T. Porter for a period of sixty (60) days.

DONE and ORDERED this 9th day of March, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1978.

COPIES FURNISHED:

Thomas Lang, Esquire Suite 302

801 North Magnolia Avenue Orlando, Florida 32803

Daniel Wiser, Esquire Post Office Box 1752 Tallahassee, Florida

Docket for Case No: 77-002242

Orders for Case No: 77-002242