STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTICIANRY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4349

)

RICHARD BERGIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on June 7, 1989, in Boca Raton, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Cynthia Gelmine, Staff Attorney

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0760

For Respondent: Harvey H. Harling

6100 Glades Road, Suite 201 Boca Raton, Florida 33434

STATEMENT OF THE ISSUES

The central issue in this case is whether Respondent is guilty of the violation alleged in the administrative complaint dated July 28, 1988; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on July 28, 1988, when the Department of Professional Regulation (Department) filed an administrative complaint against Respondent which alleged a violation of Section 484.014(1)(f), Florida Statutes.

Specifically, the administrative complaint claimed Respondent had committed negligence in the practice of opticianry by deviating from the normally accepted tolerance for bifocal height. Respondent filed an election of rights which disputed the allegations of fact and which requested an administrative hearing. The case was forwarded to the Division of Administrative Hearings for formal proceedings on September 1, 1989.

At the hearing, the Department presented the testimony of the following witnesses: Arthur D. Pappas, an investigator employed by the Department; Joseph Marks, a customer who ordered a pair of bifocal glasses from Sea-View Optical,

Inc.; and Dr. Pierre Provost, a licensed optometrist The Department's exhibits numbered 1 through 6 were admitted into evidence. The Respondent testified in his own behalf.

After the hearing, the parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix. A transcript of the proceeding was not filed.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. Respondent, Richard Bergida, is a licensed optician, license number DO 1387. At all times material to the allegations of the administrative complaint, Respondent was employed at Sea-View Optical, Inc. located in Delray, Florida.

   
   

2. On or about November 13, 1986, Wilson K. Wallace, M.D., issued a prescription for bifocal eyeglasses for a patient, Joseph Marks. Shortly thereafter, Mr. Marks went to Sea-View Optical, Inc. and requested that the prescription be filled. After meeting with Respondent, Mr. Marks and his wife selected a desired frame for the new glasses.

   
   

3. A few days later, at an agreed upon date and time, Mr. Marks returned to Sea-View in order to pick up the glasses. Since Mr. Marks had selected a new frame, Respondent adjusted the glasses to allow for comfortable wear. At that time, Mr. Marks paid the balance owed on the glasses (the entire amount, $135) by VISA charge card.

   
   

4. In January, 1987, Mr. Marks returned to Sea-View to complain about the placement of the bifocal lens. Mr. Marks described the bifocal portion of the lens as being too high. Respondent had computed the placement of the bifocal segment based upon Mr. Marks' old glasses which had been brought to the office on the first visit. Since the position of the bifocal segment was the same as the old pair (when measured with the glasses on the face), Respondent believed the glasses had met Mr. Marks' original request.

   
   

5. In February, 1987, during his fourth visit to Sea-View, Mr. Marks became very angry with Respondent and requested that the bifocal glasses be remade. Again, since Respondent believed the height was as ordered, he refused to discuss the matter further. Mr. Marks persisted in the discussion and disrupted Respondent's business. Finally, Respondent requested that he leave the premises. When Mr. Marks refused to leave, the police were summoned and Mr. Marks was escorted outside of the office.

   
   

6. Subsequently, Mr. Marks wrote two letters to Respondent seeking resolution of the issue. Whether Respondent received the letters is unknown; Respondent did not respond to the letters.

   
   

7. Mr. Marks made another appointment to see Dr. Wallace and was given a second prescription for new bifocal glasses. The second prescription requested that the bifocals be remade due to the segment height being too high. Mr. Marks did not give the second prescription to Respondent.

   
   

8. In April, 1987, Mr. Marks filed a small claims action against Respondent which sought reimbursement of the $135 and damages of $1000. The

   trial of the matter was scheduled for June, 1987, but Mr. Marks was unable to attend. Consequently, the case was dismissed. Mr. Marks vacationed in Vermont from June through September, 1987. En route to Vermont, Mr. Marks stopped in Maryland and had new bifocal glasses made.

   
   

9. When he arrived in Vermont, Mr. Marks decided to notify VISA of a challenge to the Sea-View bill. VISA credited Mr. Marks' account for the full

   $135 amount. Mr. Marks retained possession of the glasses from Sea-View.

   
   

10. Mr. Marks contacted the Department regarding his complaint against Respondent and was referred to Dr. Provost for an examination in early 1989.

    
    

11. Dr. Provost has been a licensed optometrist in Florida for twenty-six years. According to Dr. Provost, bifocal glasses are designed to meet the individual needs of the patient. Consequently, the intended use by the wearer may effect the placement of the bifocal segment. In Mr. Marks' case, the bifocal segment was too high for his normal use. Accordingly, under normal situations, it would have been appropriate for the glasses to be remade. Dr. Provost has, on occasion, remade glasses after the patient determined the placement was inappropriate. There is no specific standard for the placement of the bifocal segment, however, since individual wearers' needs may vary. The correct procedure for measuring the bifocal segment is performed with the glasses correctly positioned on the patient's face.

    
    

12. Mr. Marks did not notify the Department that he had received a credit on his VISA account and that, therefore, he had not paid for the glasses from Sea-View.

    
    

13. The glasses presented to Dr. Provost (represented by Mr. Marks to be the glasses manufactured by Respondent) were not marked or identifiable by optician. While Mr. Marks claimed that the glasses, exhibit 5, had been unsuitable, the glasses show some sign of wear, including at least one scratch.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

15. Section 484.014(1)(f), Florida Statutes, provides:

    
    

    1. The following acts relating to the practice of opticianry shall be grounds for both disciplinary action against an optician as set forth in this section and cease and desist action by the department as set forth in s. 455.228 against any person operating an optical establishment who engages in, aids, or abets any such violation:

       * * *

       (f) Fraud or deceit, or negligence, incompetency, or misconduct, in the authorized practice of opticianry.

       
       

16. In this case, the Department bears the burden of establishing, by clear and convincing evidence, that the Respondent violated the section referenced in paragraph 2. The Department has not met this burden. The Department has proved that the Respondent and Mr. Marks disagreed over the

placement of the bifocal segment; however, there is insufficient proof to establish Respondent was negligent in the manufacturing and dispensing of the glasses. Apparently, Mr. Marks wore or had the use of the glasses for several weeks before he returned to Sea-View to complain about the segment placement. Had the glasses been as unacceptable as Mr. Marks suggests, one might reasonably believe that the glasses would have been returned earlier. Since the placement of the segment may be dictated by the wearer's intended use, the placement of the segment becomes an individual standard. Respondent believed he had placed the segment as directed by Mr. Marks. In this case, the failure to communicate and the resulting bad relations between the parties escalated after the police escorted Mr. Marks off the Sea-View premises. That Mr. Marks was embarrassed and angered by that incident may have affected his recollection of the events which preceded that fourth visit. In any event, it is certain Mr. Marks did not give the second prescription from Dr. Wallace to Respondent. While Respondent may be guilty of poor customer relations, there is insufficient proof to establish his negligence in the manufacture of glasses.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Board of Opticianry enter a final order finding the Respondent not guilty of the alleged violation.

DONE and ENTERED this 26th day of July, 1989, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4349

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraphs 1 and 2 are accepted.

2. With regard to paragraph 3, it is accepted that the "old glasses" measured by Dr. Provost are as described in paragraph 3, there is no certainty that the glasses, exhibit 4, were the same ones measured by Respondent or Dr. Provost.

3. Paragraph 4 is accepted.

4. Paragraph 5 is rejected as contrary to the weight of credible evidence. The normal acceptable tolerance for a patient may be dictated by the wearer's

   intended use. In this case, Dr. Provost indicated that it is not uncommon to have to work with the patient until the use and segment placement correspond. Unfortunately, the parties to this transaction were unable to communicate effectively and the Respondent did not change or remake the glasses. Mr. Marks, however, did not give the second prescription to Respondent and sought a refund from VISA which he received.

5. Paragraph 6 is rejected as contrary to the weight of credible evidence or unsupported by the record.

6. Paragraph 7 is rejected as argument or comment.

7. Paragraph 8 is accepted, however, see paragraph 2, above.

8. Paragraph 9 is accepted only to the extent that it references findings reached by Dr. Provost it is not concluded the "old glasses" were the same as measured by Respondent. See paragraph 2 above.

9. Paragraph 10 is accepted to the extent that Dr. Wallace wrote the prescription requesting the glasses be remade. Had Mr. Marks delivered that prescription, not disrupted Respondent's place of business, not sued Respondent, not sought a refund or otherwise acted reasonably Respondent would have probably remade the glasses. As it was, these men clearly could not communicate and certainly did not act as one might hope adults would. It is unfortunate that their personality differences interfered with their conduct. It is not reasonable to presume Respondent would have wanted to call the police to escort Mr. Marks off the property. Good business policies would not dictate that such conduct would enhance client relations.

10. Paragraph 11 is rejected as argument, conclusion of law or comment.

RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT:

1. Paragraphs 1 through 3 are accepted.

2. With regard to paragraph 4, it is accepted that Mr. Marks notified VISA that he disputed the bill from Sea-View and received a full credit for the amount. Consequently, Respondent did not receive payment for the glasses dispensed. The dispute did not arise until after Mr. Marks had had the glasses for several weeks.

3. With regard to paragraph 5, it is accepted only in part. Whether Mr. Marks used the glasses on a full-time basis is unknown. It is accepted that he had possession of the glasses for several months. He did, however, complain about the segment location, did seek a review from Dr. Wallace, and did talk to Respondent about remaking the glasses. Mr. Marks claimed he used his old glasses until a new pair were made in Baltimore.

4. Paragraph 6 is accepted.

5. Paragraph 7 is accepted to the extent that Mr. Marks did not advise the Department that VISA had credited his account, the Department was advised that Mr. Marks retained the glasses.

6. Paragraph 8 is accepted.

7. Paragraph 9 is accepted if clarified to include the fact that Mr. Marks' vacation in Vermont during the warmest months was as suggested by his physician in response to his heart condition.

8. Paragraph 10 is rejected as irrelevant, immaterial, or unnecessary to the resolution of this matter.

9. Paragraph 11 is rejected as irrelevant, immaterial, or unnecessary to the resolution of this matter. Mr. Marks is not a party to this proceeding.

10. Paragraph 12 is rejected as argument, irrelevant, or unnecessary.

11. Paragraph 13 is accepted

12. Paragraph 14 is accepted.

13. Paragraph 15 is rejected as argument or conclusion of law.

COPIES FURNISHED:

Cynthia Gelmine Staff Attorney

Department of Professional Regulation 1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0729

Harvey H. Harling Town Executive Center 6100 Glades Road

Suite 201

Boca Raton, Florida 33434

LouElla Cook Executive Director

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0750

Kenneth Easley General Counsel

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0750

Docket for Case No: 88-004349

Orders for Case No: 88-004349