Judges: R. T. CARPENTER
Agency: Department of Health
Latest Update: Oct. 02, 1990
Summary: Recommend probation until Respondent fulfills statutory requirement.
82-0337.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
)
Petitioner, )
)
vs. ) CASE NO. 82-337
)
RAFAEL DAMAN, )
)
Respondent. )
)
RECOMMENDED ORDER
This cause came on for hearing in Hollywood, Florida, on June 15, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:
APPEARANCES
For Petitioner: Diane Kiesling, Esquire
Davis, Kiesling & McCall
517 East College Avenue Tallahassee, Florida 32301
For Respondent: Mr. Rafael Daman
5426 Northwest 169th Street Miami, Florida 33066
This matter arose on Petitioner's Administrative Complaint which charges that Respondent obtained an optician's license through misrepresentation in his apprenticeship application. Petitioner submitted proposed findings of fact which are incorporated herein.
FINDINGS OF FACT
Respondent, Rafael Daman, is an optician, having been issued License No. 0001712. (Petitioner's Exhibit 1)
Respondent filed an apprentice application with the Board of Opticianry. (Petitioner's Exhibit 1)
As part of that application, a form entitled "Apprentice Application to be Completed by Employer" was submitted to the Board of Opticianry. (Petitioner's Exhibit 1) This form is signed and sworn to by Ramon del Busto, M.D., as supervisor of Respondent. (Petitioner's Exhibit 1) Dr. del Busto acknowledged his signature on this document. (Deposition 7)
Additionally, Ramon del Busto, M.D., submitted an Affidavit By Sponsor, and swore that he was the sponsor of the Respondent. (petitioner's Exhibit 1, Deposition 5)
Respondent was not employed by Ramon del Busto, M.D. (Transcript - 22, Deposition 7, 8, 9) However, Respondent worked as an unpaid employee or student of Dr. del Busto (Transcript -48, Deposition 8, 9)
The Apprentice Application to be Completed by Employer was actually completed by the Respondent and a secretary employed by G&B Optical. (Transcript - 36, 38)
Ramon del Busto, M.D., signed the Apprentice Application to be Completed by Employer, but had no personal knowledge of the accuracy of the information contained therein. (Transcript - 24, 36, 38; Deposition - 7, 8, 9)
Ramon del Busto, M.D., supervised the Respondent when they were both at G&B Optical, but Dr. del Busto was present at G&B Optical only on Tuesdays, Thursdays, and others times as necessary. Transcript - 22, 35, 36, 37, 40, 41; Deposition - 5, 9) However, Respondent was always present when Dr. del Busto was in this office. (Deposition - 9)
Dr. del Busto did not remain on the premises while all the work of Respondent was being accomplished. (Transcript - 46)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of this cause and the parties thereto pursuant to Section 120.57, Florida Statutes (F.S.)
Subsection 484.007(1), F.S., provides in part:
Any person desiring to practice opticianry shall apply to the department, upon forms prescribed by it, to take a licensure examina- tion. The department shall examine each applicant who the board certifies:
(e)1. Has satisfactorily completed a 2 school year course of study of not less than 1,000 hours per year in a recognized school of opticianry; or
3. Has registered as an apprentice with the department and paid an annual registration fee not to exceed $20, as set by rule of the board. Such appren- ticeship shall be for not less than 3
years of a continuous nature of a 40-hour workweek under the supervision of a licensed optician, a licensed physician, or a licensed optometrist. However, any time spent in a recognized school may
be considered as part of the apprentice- ship program provided herein.
3. Section 484.015(1)(a), F.S. provides:
(1) The following acts relating to the practice of opticianry shall be
grounds for disciplinary action as -- set forth in this section:
(a) Procuring or attempting to
procure a license by misrepresentation, bribery, or fraud or through an error of the department or the board.
The Apprentice Application to be Completed by Employer contained false information in that Ramon del Busto, M.D., falsely attested to the truth of the information contained therein, when in fact he had no knowledge of the truth or accuracy of that information.
The Affidavit by Sponsor contained false information in that Ramon del Busto attested that Respondent was employed by him when in fact Respondent was not actually employed by Dr. del Busto.
Rule 21P-16.01, Florida Administrative Code, provides in part:
Sponsorship:
The willingness of a sponsor to assume the responsibility for the direct super-
vision of only one apprentice by execution of the sponsor's apprentice application.
A sponsor may not sponsor more than one apprentice at the same time.
Direct Supervision:
Supervision where the sponsor remains on the premises while all work is being done and gives final approval to any work per- formed by the apprentice.
Dr. del Busto did not properly sponsor Respondent nor did he remain on the premises while all work was being accomplished as required by the above provision. Therefore, Respondent's licensure was based on an erroneous apprenticeship application.
Since it was not shown that Respondent intentionally violated the apprenticeship requirements and because he has worked as an optician without apparent difficulty, license revocation is not appropriate. Rather, Respondent should be placed on probation under the supervision of another optician until he meets the requirements of Section 484.007, F.S., regarding licensure.
RECOMMENDATION
From the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That Petitioner enter a Final Order finding Respondent guilty of procuring an optician's license by misrepresentation in violation of Subsection 484.015(1)(a) , F.S., and placing Respondent on probation under the supervision of another optician as provided by Subsection 484.015(2)(e), F.S., until Respondent demonstrates compliance with Section 484.007, F.S.
DONE and ORDERED this 23rd day of August, 1982, in Tallahassee, Florida.
R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1982.
COPIES FURNISHED:
Diane K. Kiesling, Esquire Davis, Kiesling & McCall
517 East College Avenue Tallahassee. Florida 32302
Mr. Rafael Daman
5426 N.W. 169th Street Mr. Samuel R. Shorstein
Miami, Florida Secretary
Department of Professional
Mr. Fred Varn, Executive Director Regulation Board of Dispensing Opticians 130 North Monroe Street
130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTICIANRY,
Petitioner,
vs. CASE NO. 82-337
LIC. NO. 0001712
RAFAEL DAMAN,
Respondent.
/
FINAL ORDER
This cause came on to be heard before the Board of Opticianry, at a public meeting on October 1, 1982, in Tallahassee, Florida for consideration of the Recommended Order entered by R.T. Carpenter, Hearing Officer, Division of Administrative Hearings, on August 23, 1982. A copy of the Recommended Order is attached hereto.
The Board having reviewed the entire record including all pleadings, exhibits admitted into evidence, the transcript of the hearing proceeding, Findings of Fact, Conclusions of Law, the Recommended Order of the Hearing Officer, and the Exceptions as filed thereto finds as follows:
The Findings of Fact contained in the Recommended Order are adopted by the Board as its Findings of Fact and are incorporated herein as though fully set forth;
The Conclusions of Law contained in the Recommended Order are adopted by the Board as its conclusions except: that the Conclusion of Law as set forth in Paragraph eight (8) of the Conclusions of Law in the Recommended Order and contested by Petitioner's Exceptions is specifically rejected by the Board of Opticianry.
3, Upon consideration of the Exception filed by the Petitioner and of the recommended penalty set forth in the Recommended Order, the recommended penalty as contained in the Recommended Order is accepted in part, rejected in part, and modified as set forth below.
Based upon the foregoing findings of fact and conclusions of law, as modified, THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
That the Board of Opticianry finds Respondent guilty of procuring an optician's license by misrepresentation in violation of subsection 484.014(1)(a), Florida Statutes, and hereby places Respondent on probation for a period of eighteen (18) months, effective the filing date of this Final Order, with the condition that Respondent obtain thirty-two (32) hours of continuing education in courses directly related to the practice of opticianry during the term of probation. None of the thirty-two (32) hours obtained in compliance with this order shall be counted toward the sixteen (16) continuing education hours required for biennial license renewal.
Respondent is hereby notified that he has thirty (30) days from the date of this Final Order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.
DONE AND ORDERED this 26th day of October, 1982
BOARD OF OPTICIANRY
BY: H. Fred Varn Executive Director
cc: Rafael Daman
5426 N.W. 169th Street Miami, Florida
Gerald S. Bettman Staff Attorney
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 82-000337
Orders for Case No: 82-000337
