STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Board of Opticianry, )

)

Petitioner, )

)

vs. ) CASE NO.: 82-641

)

JOSEPH MARCOS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held formal hearing in this case on December 17, 1982, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Fernando E. Heria, Esquire

Law Offices of Irma V. Hernandez

215 West 49th Street Hialeah, Florida 33012

ISSUE

The issue for determination at the final hearing was whether the Respondent's license should be suspended, revoked or other disciplinary action imposed based upon the facts alleged in the Administrative Complaint filed January 22, 1981.

Petitioner's Exhibits 1 and 2 were offered and admitted into evidence without objection. Additionally, official recognition was taken of Chapter 21P, Florida Administrative Code.

FINDINGS OF FACT

At the final hearing, the parties substantially agreed to the facts of this case as set forth in the Administrative Complaint. The Respondent filed an Answer to Petitioner's Request for Admissions which established the following:

1. The Respondent Joseph Marcos is a licensed optician having been issued license number DO 0000733. The last known address of the Respondent is 5954 West 16th Street, Hialeah, Florida.

2. At all material times, the Respondent Marcos operated Marcos Optical, 5954 West 16th Street, Hialeah, Florida, as a licensed optician.

   
   

3. While so operating said opticianry, two persons who were not licensed opticians sent out glasses to a third party to be duplicated from existing lenses and prescriptions, thereby, dispensing eyeglasses with no licensed optician on the premises.

   
   

4. Based on the foregoing, the Respondent Marcos was charged with permitting an unsupervised person not licensed as an optician in this state to fit or dispense any lenses, spectacles, eyeglasses or other optical devices which are part of the practice of opticianry.

   
   

5. At the final hearing, no evidence was presented by the Department of any prior or present administrative proceedings against the Respondent Marcos.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this dispute. Section 120.57(1), Florida Statutes.

   
   

7. The Respondent Marcos is charged with violating Section 484.014(1)(g), Florida Statutes, which empowers the Board of Opticianry to impose disciplinary action for, inter alia:

   
   

   a violation or repeated violations

   of this chapter or of Chapter 455 or any rules promulgated pursuant thereto.

   
   

8. Pursuant to Rule 21P-10.08, Florida Administrative Code, every place of business where opticianry is practiced is required to have a licensed optician on the premises during working hours. The specific authority for Rule 21P- 10.08, Florida Administrative Code is cited in the Code as 484.005(1), F.S.

   
   

9. Section 484.014(2), Florida Statutes authorizes the Board to impose the following penalties when a person is found guilty of violating Section 484.014(2), Florida Statutes:

   
   

   1. Refusal to certify to the depart- ment 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 a reprimand.

   5. Placement of the optician on proba- tion for a period of time and subject to such conditions as the board may specify, inclu- ding requiring the optician to submit to treatment or to work under the supervision of another optician.

      
      

10. In the instant case, counsel for the Department has recommended that the Respondent Marcos be fined $1,000. The Hearing Officer concurs in this recommendation and notes that any penalty which would deprive the Respondent of his livelihood is not warranted in that no damage to any consumer was alleged to

have occurred and this is apparently the first instance in which disciplinary action was taken against the Respondent.

RECOMMENDATION

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

That the Respondent Joseph Marcos be found guilty of violating Section 484.014(1)(g), Florida Statutes, and Rule 21P-10.08, Florida Administrative Code, by allowing unlicensed persons to dispense eyeglasses with no licensed supervising optician on the premises, and as penalty therefor, an administrative fine of $1,000 be imposed.

DONE and ORDERED this 21st day of December, 1982, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1982.

COPIES FURNISHED:

James H. Gillis, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fernando E. Heria, Esquire

Law Offices of Irma V. Hernandez

215 West 49th Street Hialeah, Florida 33012

Fred Varn, Executive Director

Florida Board of Dispensing Opticians

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000641

Orders for Case No: 82-000641