STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTICIANRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2814

)

CURTIS E. WEBB, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on November 16, 1983. The Respondent was not present himself, but the parties appeared through counsel:

APPEARANCES

For Petitioner: Jerry Frances Carter, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Charles M. Mims, Esquire

Suite 255, 24 West Government Street

Pensacola, Florida 32501

By amended administrative complaint filed February 14, 1983, petitioner alleged that respondent, although subsequently licensed as an optician, was, at all pertinent times, "an apprentice optician licensed to practice under the direct supervision of Martin A. Marini;" that "about May of 1982 . . . [he] was preparing and dispensing lenses, spectacles, eyeglasses, or other optical devices when he was not licensed as an optician . . . and without the direct supervision of his sponsoring optician . . . contrary to Rule 21P-16.01(1) and (4)" and in violation of "Section 484.014(1)(g) , Florida Statutes, by a failure to adhere to the standards set for apprenticeship contained in Rule 21P, F.A.C., as prohibited by Rule 21P-17.08, F.A.C.; Section 484.013(1)(b), Florida Statutes (1981) and Section 484.013(2), Florida Statutes (1981), in that he, being other than a licensed optician under Chapter 484, Florida Statutes (1981), otherwise led the public to believe that he was engaged in the practice of opticianry, and is therefore in violation of Section 484.014(1)(g) , Florida Statutes (1981)."

Petitioner's proposed recommended order has been considered and petitioner's proposed findings of fact have been adopted, in substance, for the most part. Petitioner's proposed findings of fact have been rejected only where unsupported by the weight of the evidence, immaterial, cumulative or subordinate.

FINDINGS OF FACT

1. Respondent Curtis E. Webb was a licensed apprentice optician from June 1, 1981, until he obtained a state license, number 2133, on October 15, 1982, to practice opticianry on his own. In order to obtain the license he now holds, respondent was obliged to pass written and practical examinations, and complete a three-year apprenticeship. The Board of Opticianry "gave Mr. Webb credit for

   . . . employment prior to his registering as an apprentice, which would make him complete his apprenticeship 3-82." Petitioner's Exhibit No. 1.

   
   

2. Along with respondent, Martin Marini, the licensed optician to whom respondent was apprenticed in the spring of 1982, worked as an employee of Optical World, Inc. in Pensacola, Florida. In May of 1982, the relationship between Mr. Marini and Theodore F. Frederickson, the principal in Optical World, Inc., deteriorated, and Mr. Marini stopped coming to work. Respondent Webb continued to show up for work, however, and, when he had a question, contacted Billy H. Hammett, a licensed optician and the proprietor of Hammett Eyeglasses, Inc., a competitor located two blocks away. Mr. Hammett reported to petitioner that Optical World, Inc., was selling eyeglasses in Mr. Marini's absence.

   
   

3. On the morning of May 18, 1982, respondent was at Optical World, Inc., practicing opticianry without supervision when petitioner's investigator, John

   W. Gahn, stopped in and identified himself. During the 15 minutes he waited to talk to Mr. Webb, the investigator saw him measure one person for glasses; and fit eyeglasses on another person, to whom he gave the glasses in exchange for money. Respondent admitted that Mr. Marini had not been to work for over a week and predicted, "I'm going to be the loser in this whole mess." He did not know when or if Mr. Marini would return or how to reach him. Later the day of the interview with Mr. Gahn, respondent quit work at Optical World, Inc.

   
   

   CONCLUSIONS OF LAW

   
   

4. Petitioner is authorized "to enter an order imposing one or more of the following penalties:"

   
   

   1. Revocation or suspension of a license.

   2. Imposition of an administrative fine not to exceed $1,000 for each count or offense.

   3. Issuance of a reprimand.

   4. Placement of the optician on probation . . . ,

      
      

5. Section 484.014(2), Florida Statutes (1981), whenever it is established that a licensee has been guilty of

   
   

   A violation or repeated violations of Chapter [484] or of Chapter 455 or any rules promulgated pursuant thereto.

   Section 484.014(1)(g) , Florida Statutes (1981)

   
   

6. The statutory provisions pleaded in the present case pertain to the prohibitions in Section 484.013, Florida Statutes (1981) which make it unlawful

   To prepare or dispense . . .eyeglasses

   . . . when such person is not licensed as an optician in this state,

   
   

7. Section 484.013(1)(b) , Florida Statutes (1981),

   and make it unlawful for such a person "to . . . lead the public to believe that he is engaged in the practice of opticianry." Section 484.013(2), Florida Statutes (1981). Petitioner also contends that respondent has violated Rule

   21P-16.01(1) and (4), F.A.C. These provisions define an apprenticeship as a "person . . . studying opticianry under the direct supervision of a sponsor, Rule 21P-16.01(1), F.A.C., and define direct supervision as "where the sponsor remains on the premises while all work is being done Rule 21P-16.01(4), F.A.C.

   
   

8. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, even in the absence of a recommendation of revocation, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at a hearing. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1979). License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973) Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980).

   
   

9. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts alleged in the administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970).

   
   

10. Petitioner proved here that respondent, after completing three years' apprenticeship, but before licensure as an optician, acted on his own without supervision for some days after the abrupt departure of his sponsor, in violation of Section 484.014(1)(g) , Florida Statutes (1981).

RECOMMENDATION

Upon consideration of all the circumstances, it is RECOMMENDED:

That petitioner, reprimand respondent.

DONE AND ENTERED this 9th day of December, 1983, at Tallahassee, Florida.

ROBERT T. BENTON, II

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 9th day of December, 1983.

COPIES FURNISHED:

Jerry Frances Carter, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Charles M. Mims, Esquire

Suite 255, 24 W. Government Street

Pensacola, Florida 32501

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Varn, Executive Director Board of Opticianry Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OPTICIANRY

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner, CASE NOS. 0024314 (DPR) 82-2814 (DOAH)

vs. LICENSE N0S. DO 0000781

OA 0000781

CURTIS E. WEBB,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Board of Opticianry pursuant to Section 120.57(1)(b)9., Florida Statutes, on March 9, 1984, in Tallahassee, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the case of Department of Professional Regulation vs. Curtis E. Webb, Case No 82-2814. The Petitioner was represented by Terry Frances Carter, Esquire. The Respondent was given notice, but was not present or represented.

Upon consideration of the hearing officer's Recommended Order, and the arguments of Petitioner and after a review of the complete record in this matter, the Board makes the following findings.

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted in toto.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

   
   

   CONCLUSIONS OF LAW

   
   

3. The hearing officer's conclusions of law are hereby approved and adopted in toto.

   
   

4. There is competent substantial evidence to support the Board's findings and conclusions.

   
   

5. The hearing officer's recommended penalty is rejected as being too lenient under the circumstances of this cause.

WHEREF0RE, IT IS HEREBY ORDERED AND ADJUDGED:

That the license to practice opticianry in the State of Florida of Respondent Curtis E. Webb shall be, and hereby is, REVOKED.

Respondent is hereby notified that he has thirty (30) days in which to appeal this Final Order pursuant to Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.

DONE AND ORDERED this 19th day of March, 1984.

BOARD OF OPTICIANRY

H. Fred Varn Executive Director

COPIES FURNISHED:

Jerry Frances Carter, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Curtis E. Webb

640 E. Johnson Avenue Pensacola, Florida

Charles Mims Suite 255

24 W. Government Street Pensacola, Florida 32501

Docket for Case No: 82-002814

Orders for Case No: 82-002814