STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTICIANRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-111

)

GILBERT ROSENBRIER, )

)

Respondent. )

)

RECOMMENDED ORDER

The formal hearing in this case was heard pursuant to notice on July 14, 1982, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, in Fort Lauderdale, Florida. This case was presented upon an amended administrative complaint which alleged that the Respondent, Gilbert Rosenbrier, had misrepresented information contained in his application and was not qualified for licensure pursuant to Sections 484.014(1)(a), 484.03 and 484.09, Florida Statutes.

APPEARANCES

For Petitioner: Tina Hipple, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Lionel Barnet, Esquire

Miller Square

13842 Southwest 56th Street Miami, Florida 33183

ISSUES

Prior to hearing, Respondent moved to dismiss the administrative complaint. This motion was granted in part and denied in part for the reasons stated in the order dated June 22, 1982. Those portions of the amended complaint asserting violation of Sections 484.03 and 484.09, Florida Statutes, were stricken by an order dated June 22, 1982, leaving only the allegation that the Respondent misrepresented material information on his application contrary to Section 484.014(1)(a), Florida Statutes. This was the only issue remaining for resolution at the hearing.

Specifically, the factual dispute surrounded the representation by Respondent on his application that he had done his apprenticeship at House of Vision in South Hadley, Massachusetts, between 1973 and 1976. The Board of Opticianry asserted that the Respondent had not done his apprenticeship as he had represented.

The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

1. The Respondent, Gilbert Rosenbrier, is a licensed optician under the laws of the State of Florida, holding License #DO 0001378 issued by the Board of Opticianry.

   
   

2. On or about December 2, 1977, Respondent filed an application for admission to the licensure examination in ophthalmic dispensing with the Florida State Board of Dispensing Opticians (now Board of Opticianry). A copy of said application was received as Petitioner's Exhibit #2.

   
   

3. Respondent's application contains a form for reporting experience in ophthalmic dispensing under a licensed optician, optometrist or physician. The Respondent completed such a form as follows:

   
   

   Print full name: Gilbert Rosenbrier

   Street Address: 7825 Red Road Miami FL Title of position held: Optician

   Employed in position from: Nov 1973 to August 1976 Print full name of employer: House of Vision

   Full address of employer: Mountain Farms Mall, So Hadley Mass Print full name of supervisor: Harry Marsh

   Full address of supervisor

   (if different from employer): Presently: 7825 Red Road, Miami

   Fl. 33143

   Check the type of establishment

   or office: (applicant indicated) Ophthalmic dispensers Check the specific duties of

   applicant and give approximate time (in hours) engaged in each during a normal work week of

   approximately 40 hours: (Applicant indicated) Fitting and adjusting spectacles to human faces 15 hours; Interpreting prescriptions and verifying optical calculations 10 hours; Optical laboratory work (Manufacturing) 15 hours

   
   

4. House of Vision was owned by Harry Marsh. Marsh sold it to Kent Whalen. Whalen worked for Marsh and House of Vision of Mountain Farms Mall in South Hadley, Massachusetts, from May of 1974, until Whalen purchased the business in late 1976. Whalen knew the Respondent as a neighbor of Marsh's but only saw the Respondent in the store on two occasions, late in 1976. Whalen stated that to the best of his knowledge Respondent was never an employee of House of Vision.

   
   

5. The Respondent testified in his own behalf. He had become interested in opticianry in 1973 by virtue of his association with his neighbor, Marsh. At that time, Respondent had started working at House of Vision with Marsh at a time when the Respondent was supervisor of an educational consulting firm and could set his own hours. Marsh's store had to be open during the hours the mall was open, and Marsh needed the Respondent's help.

6. In the spring of 1974, Respondent needed to spend more time with his business but still wanted to learn about opticianry. Marsh agreed to provide Respondent with optical equipment of the type used at the store, which Respondent placed in his basement, in exchange for Respondent's promise that the would invest money in a venture with Marsh at a later date. This equipment was used by Respondent to perform the shaping of lenses, assembly of frames, tinting of lenses, etc., under Marsh's supervision in the afternoons, on weekends, and during Respondent's other free time.

   
   

7. In addition, Respondent would go to the store on weekends and help Marsh when Whalen was off.

   
   

8. Marsh sold the store in November of 1976, and he and Respondent came to Florida, where Respondent did invest money in a joint venture with Marsh in the opticianry business.

   
   

9. Witnesses who had known Respondent and had visited his home between 1973 and 1976, corroborated the fact that the Respondent had optical laboratory equipment in his basement during that time, had spent his spare time working with this equipment, and had made one of the witnesses a pair of glasses using frames picked out at House of Vision.

   
   

10. Respondent did not spend his time doing a specific task while he was learning opticianry, but started with simple procedures such as tinting and assembling frames and progressed to making patterns for grinding lenses, shaping, and grinding lenses in his basement lab. He obtained his experience in fitting glasses and selling at the store prior to the spring of 1974, and after that date when he worked with Marsh on weekends.

    
    

11. Respondent did not mention drawing a salary from Marsh but gave the impression that this time was traded to Marsh for Marsh's expertise in teaching him.

    
    

12. The Respondent has a doctorate degree in an academic area and was engaged in academic work and consultant work for years prior to 1973.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction to hear this cause and enter this recommended order pursuant to Section 120.57(1), Florida Statutes. The Board of Opticianry has the responsibility under Chapter 484, Florida Statutes, of regulating the licensure of opticians.

    
    

14. The Board charges Respondent with violation of Section 484.014(1)(a), Florida Statutes, in that the Respondent falsified information on his application. This statute provides as follows:

    
    

    1. The following acts relating to the practice of opticianry shall be grounds for disciplinary action as set forth in this section:

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

15. This provision of law was passed in 1979, long after the Respondent had filed the application for licensure and had been licensed. The laws applicable as of the date the subject application was filed (December 2, 1977) did not contain a similar statutory provision setting forth misrepresentation or fraud as a basis for disciplinary action. It is basic that the 1979 law cannot be applied retroactively to alleged conduct which occurred before the conduct was proscribed.

RECOMMENDATION

Having found that the statute under which the Board of Opticianry seeks to discipline the Respondent, Gilbert Rosenbrier, was passed after the alleged acts occurred upon which the complaint is based, it is recommended that the Board dismiss the amended administrative complaint and take no action.

DONE and ORDERED this 3rd day of September, 1982, in Tallahassee, Florida, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1982.

COPIES FURNISHED:

Tina Hipple, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Lionel Barnet, Esquire Miller Square

13842 Southwest 56 Street

Miami, Florida 33183

H. Fred Varn, Executive Director Board of Opticianry

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DPR Case No. 0014168

vs. DOAH Case No. 82-111

License No. DO 001378

GILBERT ROSENBRIER,

Respondent.

/

FINAL ORDER

This case came for final action by the Board of Opticianry on March 11, 1983, in Tampa, Florida. An administrative hearing held pursuant to s.

120.57(1), Florida Statutes, resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) which was reviewed by the Board. Petitioner filed exceptions to said Order (attached hereto as Exhibit B). Upon consideration of the Recommended Order. Petitioner's Exceptions, and the complete record in the proceeding, it is ordered:

FINDINGS OF FACT

1. The findings of fact in the Recommended Order are approved and adopted and incorporated herein by reference except for those findings set forth in paragraphs 6, 7, and 10 which are contested by the Exceptions to the Recommended Order filed by Petitioner, as set forth fully below:

   
   

   1. There is no competent substantial evidence in the record to support the assertion in the last sentence of Paragraph 6 of the Findings of Fact that "This equipment was used by Respondent to perform the shaping of lenses, assembly of frames, tinting of lenses, etc., under Marsh's supervision in the afternoons, on weekends, and during Respondent's other free time." The record is uncontroverted that Harry Marsh worked forty-five to fifty hours per week including Saturdays from 10:00 a.m. until 5:00 p.m. and Friday evenings. Thus, he would not be available to supervise Respondent in Respondent's basement on "weekends," implying Saturdays and Sundays.

      
      

   2. The assertion in Paragraph 7 of the Findings of Fact that "Respondent would go to the store on weekends and help Marsh when Whalen was off" is misleading in that there is no competent substantial evidence that the store was open on Sundays. In fact, there is affirmative evidence that the store was not open at all on Sundays. (Deposition of Kent Whalen, p. 43.)

      
      

   3. There is no competent substantial evidence to support the assertion in Paragraph 10 of the Findings of Fact that "Respondent obtained his experience in

      fitting glasses . . . prior to the Spring of 1974. . . ." Respondent's own testimony was that during this time period he spent an unspecified number of hours at the House of Vision helping people select frames, putting frames on customers, writing prescriptions from prescription forms into cards, and performing some tinting. (T - 70) Respondent did not testify that he obtained experience fitting glasses.

      
      

2. Upon a review of the entire record and upon consideration of Petitioner's Exceptions to the Recommended Order, the Board of Opticianry further finds that the Findings of Fact by the Hearing Officer fail to address the material issue in this case, namely, whether the information Respondent submitted on his application to the Board of Opticianry was true and correct, as attested to by the Respondent himself when he submitted the application, or whether Respondent misrepresented information contained in his application. The Recommended Order having failed to address this issue the Board of Opticianry hereby makes the following additional findings of fact, as supported by competent substantial evidence in the record:

The record clearly shows and Respondent admitted that he did in fact make misrepresentations and false statements regarding the quality of his apprenticeship on the application form. Respondent admitted that he was not continuously supervised by Marsh (T-49) and that he did not work a minimum of 40 hours per week. (T-52).

Further, although Respondent's application represented that he had 15 hours her week in the fitting and adjusting of eyeglasses, and 10 hours per week in interpreting prescriptions, Respondent admitted that in fact, during the time period in question, he did a total of a half-dozen fittings amounting to several hours at the maximum (T-60), and neither kept prescription records, nor worked with prescriptions (T-67).

CONCLUSIONS OF LAW

1. The Conclusions of Law in the Recommended Order are approved, adopted, and incorporated herein by reference.

   
   

2. The Conclusions of Law set forth in Petitioner's Exceptions To Recommended Order are also approved, adopted, and incorporated by reference as additional Conclusions of Law.

   
   

3. The Board of Opticianry is without specific statutory authority to revoke or to discipline pursuant to Section 484.014(1)(a), Florida Statutes (1979) for acts which took place prior to the effective date of that statute; however, the Board has inherent authority to revoke a license which was fraudulently obtained, particularly in a case such as this wherein the applicant/licensee never submitted true and correct information from which it could be determined that he met the initial qualifications set by law. Cirnigliaro v. Florida Police Standards and Training Commission, 409 So.2d 8O (Fla. 1st DCA 1982).

   
   

4. Based on the above Findings of Fact and Conclusions of Law and a review of the complete record in this cause, the Board of Opticianry rejects the recommendation in the Recommended Order that the Board dismiss the amended administrative complaint and take no action and finds that the appropriate action to be taken is revocation of Respondent's license to practice opticianry in the State of Florida. THEREFORE

IT IS HEREBY ORDERED AND ADJUDGED that Respondent's license to practice opticianry in the State of Florida shall be and hereby is REVOKED.

DONE AND ORDERED this 2nd day of May, 1983.

BOARD OF OPTICIANRY

BY:

H. Fred Varn Executive Director

cc: Spiro T. Kypros, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Lionel Barnett, Esquire Miller Square

13842 South West 5th Street Miami, Florida 33183

Docket for Case No: 82-000111

Orders for Case No: 82-000111