STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF )

DISPENSING OPTICIANS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2291

)

FRANCIS (FRANK) DUNLOP, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard in Conference Room 120, 6501 Arlington Expressway, Jacksonville, Florida, on February 21, 1978, by Stephen F. Dean, assigned Bearing Officer of the Division of Administrative Hearings. This case was presented upon an administrative complaint filed by the Florida State Board of Dispensing Opticians against Dunlop.

ISSUE

Whether Dunlop violated Rules 21P-1.012 and 21P-6.07, Florida Administrative Code, by permitting an unlicensed person to use his license for the purpose of dispensing optics.

APPEARANCES

For Petitioner: Daniel Wiser, Esquire

Post Office Box 1752 Tallahassee, Florida 32304

For Respondent: Thomas F. Lang, Esquire

801 North Magnolia Avenue, Suite 302

Orlando, Florida 32803 FINDINGS OF FACT

1. Francis (Frank) Dunlop is a licensed optician holding License No. 164 issued by the Florida State Board of Dispensing Opticians.

   
   

2. Dunlop was employed by Opti Center, Inc. and worked at the Opti Center location at the Montgomery Ward's optical department, 5121 Normandy Boulevard, Jacksonville, Florida.

   
   

3. On or about May 27, 1977, Vincent Howell, an investigator for the Board, inspected the Opti Center location at Montgomery Ward , 5121 Normandy Boulevard, Jacksonville, Florida. There was no optician on duty when Howell arrived at 10:15 a.m. The department was just being opened for the day by a young women, Linda Baker. She advised Howell that the optician would be in in a few minutes.

4. While waiting, Howell inspected the area and found the license of Dunlop prominently displayed within the department.

   
   

5. After several minutes, Stanley T. Porter, arrived and advised Howell that he (Porter) had just been hired to fill in for Dunlop who was on vacation. Porter produced his license from his pocket and showed it to Howell.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Board charges Dunlop with violation of Rule 21P-1.012 and 21P-6.07, Florida Administrative Code.

   
   

7. Rule 21P-1.012, Florida Administrative Code, addresses the requirements for branch offices of a licensed dispensing optician. This rule requires that every branch office have a licensed dispensing optician employed full-time. No evidence was presented that Dunlop violated this rule. Rule 21P-6.07 provides:

   
   

   Each dispensing optician licensed under the provisions of Chapter 484, Florida Statutes, shall display his license in a prominent location within his place of business when ever holding himself out as a dispensing optician.

   
   

8. The thrust of the Board's allegation is that because Dunlop was not holding himself out as a dispensing optician, he should not have displayed his license prominently. The affirmative requirement stated in the rule above to display one's license is substantially different from the prohibition against displaying one's license when one is off duty or on vacation. The record clearly shows Dunlop was employed at the inspected location and that his license was properly displayed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida State Board of Dispensing Opticians take no action against the license of Francis (Frank) Dunlop.

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

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Daniel Wiser, Esquire Post Office Box 1752

Tallahassee, Florida 32304

Thomas F. Lang, Esquire Suite 302

801 North Magnolia Avenue Orlando, Florida 32803

================================================================= AGENCY FINAL ORDER

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

BEFORE THE FLORIDA STATE BOARD OF DISPENSING OPTICIANS

In the Matter of the Suspension or revocation of the License to Practice the Trade or Occupation of Dispensing Optician in this State of

FRANCIS NELSON DUNLAP DOAH CASE NO. 77-2291

As a duly licensed dispensing optician authorized to supervise

the preparing, fitting and adjusting of optical devices at Vent-Air Contact Lens Service, Florida National Bank Building, Jacksonville, Florida

/

ORDER

This Board has met in the matter of FRANCIS NELSON DUNLAP this 24th day of March, 1973, in the city of Jacksonville, Duval County, of the State of Florida. Upon considering all the evidence in this matter, the Board finds:

I.

As to Count II of the Amended Complaint we find that there is not substantial competent evidence to support the allegations.

II.

As to Count IV of the Amended Complaint there was not substantial evidence to support the allegations. However, there did exist sufficient evidence for this Board to admonish you to refrain from any suggestions to your clients as to foods, food supplements or non-prescription medicine to correct any ailment.

Because of an optician's position in a quasi-medical profession the common person will place more credence in our advice than the ordinary person.

III.

Counts I and III were considered by this Board as substantially an allegation that you, FRANCIS NELSON DUNLAP measured, fitted and dispensed contact lenses without a valid prescription.

All of the exhibits and testimony were fully examined. The most pertinent document is Respondent's Exhibit Number 1, an alleged prescription and the testimony supporting it.

We find that Exhibit Number 1 relates a history of Kevin Becker's opthalmic needs in that he had worn contact lenses of a recorded prescription, he was examined and a notation made that new refractive powers were necessary and a prescription for new glasses was made. There was no statement of any nature indicting that contact lenses were prescribed. There was no indication on this document that it was signed by a licensed physician or a licensed optometrist.

We therefore find on this and other evidence introduced that you, FRANCIS NELSON DUNLAP are guilty of Counts I and III as set out in the Amended Complaint.

THEREFORE, it is the final order of this Board that your license is suspended for a period of one year from the effective date of this order. However, because of your untarnished record as a dispensing optician and certain other mitigating circumstances your sentence of a one year suspension is suspended except for a period of thirty days commencing thirty days after the effective date of this order. This thirty day period before the actual imposition of the thirty days of suspension is give to you for the purpose of placing your business in order and providing for your substitute in your business.

Throughout the one year period this Board retains jurisdiction and any finding of a violation of this Board's statutory or rule provisions will automatically reinstate the suspension.

BY ORDER of Eddie L. Mills, Anibal Duarte, Jerry Jannelli, and Thomas Smith, Members, FLORIDA STATE BOARD OF DISPENSING OPTICIANS, this * day of April, 1973. Mr. Louis Shortridge, also a member, did not participate.

*NOTE: Document on file with DOAH is undated;

April 1st will be used as the ACCESS indexing date.

THOMAS SMITH, Chairman FLORIDA STATE BOARD OF DISPENSING OPTICIANS

Docket for Case No: 77-002291

Orders for Case No: 77-002291