STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL OPTICIANS OF FLORIDA, ) and WAYNE P. RIDDLEBAUGH, )

)

Petitioners, )

)

vs. ) CASE NO. 93-6924RX

)

BOARD OF OPTOMETRY, )

)

Respondent, )

and )

) FLORIDA OPTOMETRIC ASSOCIATION, )

)

Intervenor. )

)

FINAL ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Darren Schwartz, Esquire

R. Bruce McKibben, Esquire PENNINGTON & HABEN, P.A. Post Office Box 10095

Tallahassee, Florida 32302-2095

For Respondent: Claire Dryfuss, Esquire

Assistant Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050

For Intervenor: Leonard A. Carson, Esquire

CARSON, LINN & ADKINS

1711-D Mahan Drive Tallahassee, Florida 32308

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether Rule 61F8- 3.015, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority, as defined in Section 120.52(8), Florida Statutes, and whether the Petitioners have standing to challenge that rule.

PRELIMINARY STATEMENT

This cause arose upon the filing of petitions to determine the invalidity of an existing rule filed on December 6, 1993 and June 14, 1994. The Petitioners, Professional Opticians of Florida (POF) and Wayne P. Riddlebaugh (Riddlebaugh), allege that Rule 61F8-3.015, Florida Administrative Code, is an invalid exercise of delegated legislative authority. Intervenor, the Florida Optometric Association (FOA), was granted leave to intervene prior to hearing.

The cause came on for hearing as noticed. The Petitioners presented the testimony of five witnesses and had two exhibits admitted into evidence. The Respondent called no witnesses and had four exhibits admitted into evidence. The Intervenor also called no witnesses and offered no exhibits into evidence. Upon conclusion of the proceeding, the parties ordered a transcript thereof, requesting an extended period of time in which to submit Proposed Recommended Orders, which was granted. The Proposed Recommended Orders were timely filed and those proposed findings of fact contained therein are treated in this Final Order and in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. Petitioner POF is a non-profit Florida corporation organized under the laws of Florida for the purpose of representing its members who are licensed opticians. Petitioner Riddlebaugh is a board-certified, licensed optician pursuant to the laws of Florida and has been so licensed since 1987. After first becoming licensed in Florida, Petitioner Riddlebaugh worked in his family's optical business in Ormond Beach, Florida. He later worked for Burdine's Optical and Omni Optical. From April 1990 to February 1994, he owned and operated an independent opticianry business in Florida and was the sole employee of that business during the entire time of its operation.

   
   

2. The Respondent is a state agency authorized to promulgate rules and regulations concerning the practice of optometry and licensure of optometrists, by authority of Chapter 463, Florida Statutes. The Intervenor is a non-profit Florida corporation whose membership is comprised of optometrists licensed under Chapter 463, Florida Statutes, and who are authorized to practice optometry in Florida.

   
   

3. Petitioner POF's organizational purposes are to promote, protect, and improve the professional status of persons engaged in the practice of opticianry and to encourage, establish, and maintain standards of competence, knowledge, and performance through the provision of educational programs, training, and uniform licensing of optical dispensers. Petitioner POF has seven classes of membership entitled Professional Member Class I, Professional Member Class II, Professional Non-Licensed Member, Associate Member, Affiliate Member, Student Member, and Honorary Member. Only Professional Member Class I has Florida licensed opticians as members.

   
   

4. Any member of Petitioner POF may terminate membership upon 60 days written notice to the executive director. Members of POF who fail to pay dues and other obligations within 60 days are removed from the membership rolls. It is impossible to determine the number of members of Petitioner POF, since the membership roster can change daily, based upon resignations and terminations. Petitioner POF did not introduce its most current or any membership roll designating the members by their appropriate membership class. The 1993-94 directory and desk guide of Petitioner POF lists the members of Petitioner POF followed by a number designation in parentheses. The number designation (1),

   which does not indicate only Professional Member Class I membership, as defined by the Bylaws of the association, represents members who are not licensed in Florida as opticians, as well as some members who are licensed in Florida as opticians. It is impossible to determine how many members besides Riddlebaugh and Richard W. Williams are licensed in Florida as opticians, although a substantial number of the total membership are Florida licensed opticians.

   
   

5. No preponderant evidence was offered to show that the membership of Petitioner POF was substantially affected by the challenged rule. During the six years the rule has been in effect, Petitioner POF did not gather any information to show how or if the challenged rule affected its membership even though it had challenged the rule when first promulgated, later withdrawing the challenge. The number of licensed Florida opticians has increased during the entire six-year period the challenged rule has been in effect.

   
   

6. Petitioner Riddlebaugh is a Florida licensed optician who was licensed in 1987. He closed his optical business "Spectacles" in February 1994. He closed that business because of generally declining economic conditions in Volusia County, Florida, where he practiced, due in large part to the competitive effects on his business in that vicinity posed by physicians (ophthalmologists), who, in addition to practicing as ophthalmologists, can also practice opticianry. Additional competition was posed by optometrists, other opticians, and large optical purveying firms, such as Opti-World, Pearle Vision Express, J.C. Penney Company, Inc., Lens Crafters, Inc., and Sears Optical. Petitioner Riddlebaugh was able to obtain employment at Omni Optical from February 1989 to February 1990 during the time the challenged rule was in effect, it having taken effect in 1988. He was able to open his business in April 1990 and operate it for four years during the time the rule was in effect. Ophthalmologists and optometrists are allowed under their practice acts to employ non-licensed personnel, who can perform optician-type functions and duties under appropriate supervision, delineated in those practice acts. This poses competition to opticians situated such as Petitioner Riddlebaugh, wholly apart from perceived and purported competitive effects posed by the subject rule under challenge.

   
   

7. Petitioners POF and Riddlebaugh simply failed to demonstrate that any deleterious competitive effects imposed on Petitioner Riddlebaugh's business, or the business of any members of Petitioner POF, were occasioned by the operative effects of the rule under challenge. Although Petitioner Riddlebaugh testified that one of the primary factors for closing his business was the competition posed by the effect of the rule, that testimony is not deemed preponderant nor credible as evidence, since Petitioner Riddlebaugh had previously given testimony by deposition that another set of rules promulgated by the Board, unrelated to the challenged rule, was the only reason for closing his business. It appears, however, that the real reason for the closing of his business was due to the combined effects of competition from various optical establishments and other optometric and ophthalmologic professionals, as well as a general economic decline in Volusia County, Florida, in the early 1990's when he was attempting to operate his business and ultimately closed it.

   
   

8. Unlicensed persons may work for opticians doing all functions within the definition of opticianry, under appropriate supervision, as delineated in the pertinent provisions of Chapter 484, Florida Statutes, and the opticianry practice rules promulgated thereunder. Unlicensed persons working for opticians can perform such functions as selection of frames and transfer of optical devices without the optician being on the premises. Unlicensed persons can also work for ophthalmologists, performing opticianry duties.

9. In October 1986, the Respondent, with a view toward promulgating this rule, requested that the Board of Opticianry define "fitting, adjusting, and dispensing". This was an effort by the Respondent to avoid conflicting with the legally-defined practice requirements for opticianry. The Board of Opticianry was aware of the rule promulgation effort by the Respondent, however, it never responded to the request. Because it never obtained any definitional information from the Board of Opticianry, the Respondent elected to delete the terms "dispensing" and "measuring" from its proposed rule at that time. The words "delivery of eyeglasses" were inserted.

   
   

10. Optician, Richard E. Williams, who testified at the hearing, defined "dispensing" as being the adjustments necessary to make certain that eyeglasses properly fit a patient. Mr. Williams defined "fitting" as determining whether the glasses were set properly on an individual's face. He also defined "fitting" as making certain that pupillary distance was accurate and defined "dispensing" as fitting and adjusting. Petitioner Riddlebaugh defined "fitting" as making certain that the frames of eyeglasses were properly adjusted to the patient.

    
    

11. According to the preponderant evidence of record, the "adjustment of frames" is not the practice of opticianry. The purpose of adjusting frames is simply to get them to set comfortably and properly on a patient's face. Adjusting may also be used to align lenses properly within the frame. The "delivery of eyeglasses" is not the practice of opticianry either, nor is the "selection of frames".

    
    

12. Unlicensed persons can also work for ophthalmologists, performing opticianry. Petitioner Riddlebaugh testified that the challenged rule affects the integrity of his opticianry license and the viability of his practice because it allows unlicensed persons to perform opticianry functions when working for an optometrist or an ophthalmologist. His testimony is not preponderant or credible, however, since there is no limit to the number of unlicensed persons that opticians themselves can employ to perform opticianry functions under appropriate supervision, just as optometrists and ophthalmologists may employ such unlicensed personnel to perform opticianry under the appropriate supervision, as delineated in their practice act and rules. There is no meaningful distinction between the competitive effects of unlicensed persons working for an optician and those working for ophthalmologists and optometrists.

    
    

13. Richard E. Williams, a licensed optician, testified that he had to close his office in Panama City Beach, Florida, because a "group of doctors" opened an office in competition with him. On some days, their office was only staffed by unlicensed persons. He did not indicate in his testimony whether the "group of doctors" were ophthalmologists or optometrists. His testimony also described his practice on Panama City Beach dwindling because of the effects of ophthalmologists, regulated by Chapter 458, Florida Statutes, and the rules promulgated thereunder, who were in practice in the Panama City area. The Petitioners adduced evidence of preparation and dispensing of eyeglasses by unlicensed personnel in an optometry practice and establishment, done under general, rather than direct, supervision, which were more than merely ministerial in nature. Tasks which were performed under purported authority of the challenged rule, that were more than ministerial in nature, and constituted the practice of opticianry by an unlicensed person, were shown by the testimony of Deborah L. Metz-Andrews.

14. Ms. Andrews is not licensed in either opticianry, optometry, or ophthalmology. She was employed by the Newberry Eye Clinic in Chipley, Florida, from January 1991 to August 1992. That establishment is an optometric practice owned and operated by an optometrist and which has an optical department. It has satellite offices in Chipley, Port St. Joe, Panama City Beach, and Panama City, Florida. While employed at Newberry, Ms. Andrews was referred to as "the optician" by the optometrist, but her job title was really "optical technician". During her employment with Newberry, she neutralized glasses with the use of a lensometer, to determine the prescription on the existing glasses worn by a patient. She took prescriptions and determined what the prescription was, what kind of frame would facilitate that prescription, and performed pupillary distance measurements. She determined if a patient needed trifocals or bifocals and did all of the required measurements. She also was responsible for ordering the eyeglasses from the laboratory in Panama City. Once the glasses were made and returned to Chipley, she would place them in the lensometer to check them, and the patient would be notified that the glasses were ready to be picked up.

    
    

15. When the patient came in to pick up the glasses, she typically performed the following duties: She fit the glasses on the patient, double- checking the segment height, if they were bifocals; fit the eyeglasses to the nose; adjusted the frame; and made sure that the pantoscopic tilt was correct. She would inquire of the patient's ability to see and if satisfied, the patient would take the eyeglass case, go to a window, pay the bill, and leave. She performed these duties, some of which fall within the practice of opticianry, without the optometrist being on the premises in direct supervision. She stated that she did not feel confident doing some of the types of duties and tasks she was performing and received no guidance from the optometrist. Mr. Williams was accepted as an expert in the practice of opticianry (excluding the field of contact lenses). He opined that the duties being performed by Ms. Andrews, purportedly pursuant to the challenged rule, constitute the practice of opticianry.

    
    

16. Dr. John McClane is a licensed Florida optometrist. Dr. McClane's Florida office employs 10 or 11 employees, only one of whom is a licensed optician. The unlicensed personnel in his office adjust frames and perform neutralization of lenses without the lenses having been checked by a licensed optometrist before final delivery to the patient. In operating a lensometer in the neutralization process, unlicensed personnel in Dr. McClane's office also read prisms and transpose prescriptions. The glasses are not always checked by either the licensed optician or the licensed optometrist prior to final delivery to the patient by the unlicensed personnel. According to Dr. McClane's understanding of the term "ministerial", as used in the rule, an unlicensed person can perform any tasks that an optometrist orders and determines, if it is appropriate for patient care. Any delegated task, by his understanding, may be performed under general, rather than direct, supervision. He believes that "direct supervision" is a situation where the optometrist is on the premises directly supervising the work of the unlicensed person.

    
    

17. Even if the duties, or some of them, performed by unlicensed personnel at the Newberry and McClane establishments constitute the practice of opticianry by unlicensed personnel, under the general, rather than direct, supervision of optometrists, the testimony of Ms. Andrews and Dr. McClane does not definitively indicate which of the purported opticianry duties Ms. Andrews and other unlicensed personnel performed were actually done with the optometrist away from the premises and not in direct supervision. Further, even if such unlicensed personnel were doing some task which constituted the practice of opticianry, without the direct supervision of an optometrist, there was no competent,

    credible evidence to show that such practices, under the aegis of the challenged rule, are so widespread or common in practice as to indicate that the language and terminology embodied in the rule is fraught with vagueness so as to cause frequent, recurring misunderstandings by optometrists in conducting their practices with the use of unlicensed personnel. Rather, these two examples offered by the Petitioners may raise simply an issue of the application of the subject rule and a question as to uniformity of its enforcement.

    
    

18. In 1986, the legislature enacted a substantial amendment to Section 463.009, Florida Statutes, regarding supportive personnel, by allowing such unlicensed personnel to perform functions for an optometrist under either general or direct supervision. The definition of direct supervision was changed and a definition of general supervision was added in Section 463.002(6)&(7), Florida Statutes. See Chapter 86-288, Laws of Florida. Pursuant to the 1986 amendments, the Respondent began rule-making at its August 21, 1986 annual meeting and rule workshop. The resulting Rule 21Q-3.015, Florida Administrative Code, at paragraph (3), listed the tasks which unlicensed personnel could perform under general supervision as dispensing, selection of frames, measuring and adjusting eyeglasses, and instruction in the insertion, removal and care of contact lenses.

    
    

19. On October 3, 1986, Petitioner POF filed a rule challenge to the proposed rule alleging, inter alia, that the rule allowed unlicensed persons to practice opticianry under general supervision, thus, purportedly constituting a departure from the authorizing statute. After the filing of the rule challenge, at a public hearing on October 15, 1986, the Respondent withdrew the proposed rule. During that October public hearing, a member of the Respondent was requested by the Board Chairman to attend the Opticianry Board's rules committee meeting the following day, on October 16, 1986, and to request the opticianry rule committee to develop a rule to provide a definition of "fit, adapt, adjust, and dispense". During the October 16, 1986 meeting of the rules committee of the Board of Opticianry, a member of the Board, Ms. Card, reported that the Respondent was waiting for the Board of Opticianry to define "fitting and adjusting" before the Respondent continued with its rule-making regarding support personnel. She also stated that the Respondent had a meeting scheduled for December 19, 1986. The Board of Opticianry met on November 20, 1986 and approved the minutes of the rules committee meeting of October 16, 1986, but took no action regarding promulgating rules defining the terms which the Respondent requested it to define, even though the Board of Opticianry took extensive action on rule-making on other subjects.

    
    

20. Thereafter, at the January 22, 1987 meeting of the Respondent, after receiving no information from the Board of Opticianry regarding the definitions requested, the Respondent approved an amended version of Rule 21Q-3.015, Florida Administrative Code, changing the list of tasks in paragraph (3) to "delivery of eyeglasses, selection of frames, adjustment of frames, and instruction in insertion and removal and care of contact lenses". The tasks of "dispensing and measuring and adjusting eyeglasses", contained in the prior version of the rule, were deleted. A meeting and public hearing was again held on April 10, 1987, during which the proposed rule was addressed; and it was reported that Petitioner POF had again filed a rule challenge to Rule 21Q-3.015, Florida Administrative Code. The proposed rule was then again withdrawn.

    
    

21. Workshops by the Respondent were thereafter held in November 1987 and on February 12, 1988 concerning Rule 21Q-3.015, Florida Administrative Code, and the rule was noticed for promulgation on April 29, 1988. Rule challenges were thereafter filed by Petitioner POF and Jack Eckerd Corporation. The Respondent

    then met on August 5, 1988 and changed the word "employee" to "nonlicensed, supportive personnel" in paragraph (4) of the proposed rule. The two rule challenges were then voluntarily dismissed by those petitioners, and the rule was adopted and became effective on October 23, 1988 and has been in effect since.

    
    

22. The Board of Opticianry was well aware of the Respondent's efforts to promulgate the rule on support personnel. The Board of Opticianry never promulgated rules defining "fitting, adjusting, and dispensing" of optical devices, despite the Respondent's request. During the time period that the Respondent was considering the rule in its present form, the members of the Board of Opticianry never agreed on a definition of "dispensing".

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

24. The Petitioners have failed to prove their standing. Petitioner POF did not establish how many members it has and did not establish the number of Florida licensed opticians who were members, although the totality of the evidence establishes that a substantial number of the membership are Florida licensed opticians. Nevertheless, there is no preponderant, credible evidence to show that a significant number of the members would be substantially affected by the effect of the challenged rule itself. See, Florida League of Cities v. DER, 603 So.2d 1363 (Fla. 1st DCA 1992).

    
    

25. Petitioner Riddlebaugh failed to show that he was substantially affected by the challenged rule itself. During the six years the rule has been in effect, he was able to obtain employment as an optician and to open his own optical shop and operate for four years. The closing of his business was shown to be due to a declining economy in the Volusia County area and more to competition from large optical purveying establishments, other opticians, physicians, ophthalmologists, and optometrists practicing in accordance with their respective practice acts and other rules promulgated thereunder, in the lawful use of licensed and unlicensed personnel.

    
    

26. There has been shown to be no injury occasioned to the integrity of the opticianry license and practice posed by the challenged rule itself. Pursuant to their statutory authority under their respective practice acts, Chapters 463 and 484, Florida Statutes, opticians and optometrists can lawfully use an unlimited amount of unlicensed persons to perform duties related to opticianry under supervision. Sections 463.009 and 484.011, Florida Statutes (1993). Additionally, physicians and ophthalmologists can employ unlicensed personnel to perform opticianry functions. Any effect on the integrity of an opticianry license and practice from unlicensed persons would be as a result of the statutory scheme, rather than the challenged rule. The legislature has given both the Respondent and the Board of Opticianry the authority to regulate concerning the practice of opticianry, employment of unlicensed persons, and to regulate the use of unlicensed employees based upon the practice act for the relevant profession. The overlapping of the two practice acts is not a legally- sufficient basis to show standing for the opticianry association and for an individual optician, such as Petitioner Riddlebaugh, just as the overlapping of ophthalmology and optometry could not give physicians and their association standing in the case of Board of Optometry v. Florida Society of Ophthalmology,

    538 So.2d 878 (Fla. 1st DCA 1988). This perceived overlapping of two

    professional practices, including the use of unlicensed personnel, is a legislative problem which the Petitioners may seek redress of from the Florida Legislature. It is not a proven effect of the rule under challenge.

    
    

27. During the six years that the challenged rule has been in existence, Petitioner POF has had ample opportunity to gather information to show direct injury, in fact, of "sufficient immediacy and reality" to its members. Indeed, since Petitioner POF had challenged the rule three times during its promulgation, the effect of this rule on its members would seem to be of great interest to Petitioner POF. However, no evidence of direct injury, in fact, to Petitioner POF's members was introduced of a preponderant, credible nature. See, Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied, 359 So.2d 1215 (Fla. 1978).

    
    

28. Section 120.52(8)(a)-(e), Florida Statutes (1993), sets forth five bases for challenging a rule. This rule challenge, as established by the evidence, is based upon Section 120.52(8)(c),(d), and (e), Florida Statutes; that is, that the rule enlarges, modifies, or contravenes the specific provisions of the law implemented; the rule is vague; and the rule is arbitrary and capricious.

    
    

29. The provision of Rule 61F8-3.015, Florida Administrative Code, under challenge, is contained in paragraph (2) of the rule, which states:

    
    

    (2) Non-licensed personnel, who need not be employees of the licensed practitioner, may perform ministerial duties, tasks and functions assigned to them by and performed under the general supervision of a licensed practitioner, including obtaining information from customers for the purpose of making appointments for the licensed practitioner. Tasks and functions that

    may be performed shall include, but not be limited to, delivery of eyeglasses, selection of frames, adjustment of frames, and instruction for the insertion, removal and care of contact lenses.

    However, to ensure patient confidentiality of examination records in accordance with Chapter 455.241(2), F.S., a non-employee shall not be allowed to perform any task or function which would require or give them access to patient records or examination reports of any person

    without prior written authorization of that patient.

    
    

30. The Petitioners contend that the four tasks listed in the rule are the practice of opticianry and as such, require unlicensed employees to have direct supervision by the optometrist. The history of promulgation of this rule makes it clear that the Respondent did not intend that the rule allow the unlicensed practice of opticianry under general supervision. The Respondent deleted the tasks of "dispensing" and "measuring and adjusting eyeglasses" after the rule had first been challenged by Petitioner POF. The Respondent asked the Board of Opticianry to define the terms of "fit, adapt, adjust, and dispense" in order to avoid listing tasks which were within the practice of opticianry. The Board of Opticianry has not, to date, defined those terms. Having received no response

    from the Board of Opticianry, the Respondent clearly selected terms which were outside the definition of opticianry, as set forth in Section 484.002(3), Florida Statutes, which, in relevant part, defines opticianry as:

    
    

    (3) 'Opticianry' means the preparation and dispensing of lenses, spectacles, eyeglasses, contact lenses, and other optical devices to the intended user or agent thereof, upon a written prescription of a medical doctor or optometrist who is duly licensed to practice

    or upon presentation of a duplicate prescription. The selection of frame designs, the actual sales transaction, and the transfer of physical possession of lenses, spectacles, eyeglasses, contact lenses, and other optical devices subsequent to performance of all services of the optician shall not be con- sidered the practice of opticianry; however, such physical possession shall not be transferred until

    the optician has completed the fitting of the optical device upon a customer. The practice of opticianry also includes the duplication of lenses accurately

    as to power, without prescription . . . (emphasis added).

    
    

31. The Respondent is not allowing the preparation or dispensing of optical devices upon a written prescription by unlicensed, support personnel.

    In fact, the tasks of "delivery of eyeglasses and selection of frames" are specifically excluded by Section 484.002(3), Florida Statutes, from the practice of opticianry. Additionally, the contents of a prescription are delineated in the Respondent's Rule 61F8-3.012, Florida Administrative Code. None of the four tasks listed in the challenged rule are part of a written prescription.

    
    

32. The Petitioners contend that the four tasks listed in the rule under challenge must be done under direct supervision, because that term is used in Section 484.018(2), Florida Statutes (1993), the opticianry practice act. The Petitioners mischaracterize this provision. Section 484.018(2), Florida Statutes, exempts employees from licensure as opticians, when the employee is working under the direct supervision of an optometrist. The definition of direct supervision is different in the optometry act from that in the opticianry act. Direct supervision in the opticianry act requires that "all work" be done while the optician is on the premises and gives final approval. In Chapter 463, Florida Statutes, as amended in 1986, Section 463.009 was changed to allow for general supervision in addition to direct supervision. Direct supervision is required when employees of optometrists are delegated diagnosis or treatment duties, as specified in Section 463.009. Indeed, the change in the definition of direct supervision in Section 463.002(6), Florida Statutes, limits direct supervision to only these "procedures" as opposed to the prior wording of all "work". For other types of functions, Section 463.009, Florida Statutes, requires general supervision.

    
    

33. The Respondent is empowered to implement the provisions of Chapter 463, Florida Statutes, including Section 463.009. Section 463.009 does not prohibit the delegation of the tasks listed in the rule under general supervision and is consistent with Section 484.018(1), Florida Statutes, which allows optometrists to practice opticianry, pursuant to the optometry act.

34. The Respondent in the subject rule enumerated those tasks which the Respondent describes as constituting "ministerial duties, tasks and functions". These include: delivery of eyeglasses, selection of frames, and adjustment of frames. None of these duties, tasks, or functions constitute the practice of opticianry. Section 484.002(3), Florida Statutes, expressly excludes selection of frames and transfer of physical possession of eyeglasses from the definition of opticianry. All of these duties, tasks, and functions are performed by unlicensed personnel working under the supervision of opticians. Section 463.009, Florida Statutes, does not define the term "ministerial". The term should, therefore, be given its plain and ordinary meaning. It is a basic principle of statutory construction that words of common usage, when used in an enactment, should be used in a plain and ordinary sense. Department of Business Regulation v. Salvation Limited, Inc., 452 So.2d 65 (1st DCA 1984); Friedman v. State Board of Accountancy, 377 2d 1168 (4th DCA 1979).

    
    

35. Webster's New Collegiate Dictionary defines "ministerial" as "an act done after ascertaining the existence of a specified state of facts and obedience to a legal order, without exercise of personal judgment or discretion". Webster's Third New International Dictionary defines it "3:

    Acting or active as an agent, instrument, or means. 4. Acting or serving as an agent; instrumental." American Heritage Dictionary, Second College Edition.

    Delivery of eyeglasses, selection of frames and adjustment of frames meets the definition of ministerial, as descriptive of those tasks.

    
    

36. There is no indication in the record that the Respondent has failed to materially follow applicable rule-making procedures. The Respondent is granted specific rule-making authority regarding supervision of support personnel. Section 463.009, Florida Statutes. The language of the challenged rule is congruent with the language of the statute being implemented. The rule is not arbitrary or capricious and, in fact, the record demonstrates the extensive efforts by the Respondent to accommodate the rule to the amendment process and notice of change process concerning the various challenges interposed during the early years of the rule's development. The challenged rule does not enlarge, modify, or contravene the provisions of Section 463.009, Florida Statutes. The tasks listed are ministerial in that the employee is acting as the agent for the optometrist. The tasks are not diagnosis or treatment duties. The tasks are not the practice of opticianry, and the employee is not holding himself out to the public as an optician, since the work is done under the supervision or legal responsibility of the optometrist.

    
    

37. In view of the foregoing discussion and conclusions, the rule is not arbitrary or capricious. The Respondent carefully chose tasks which were not diagnosis or treatment duties and mindful of the various rule challenges, the Respondent only used terms which were not definitional words used in the practice and regulation of opticianry. The Respondent's unanswered communications with the Board of Opticianry clearly show that there was a deliberate, reasoned attempt to avoid impinging upon the practice of opticianry. Such efforts tend to show that the rule was not enacted in an arbitrary and capricious manner but, rather, through a reasoned development. It has been demonstrated, therefore, that the Respondent has made a reasonable choice as required by case law. State Department of HRS v. Framat Realty, Inc., 407 So.2d

    238 (Fla. 1st DCA 1981); Agrico Chemical Company v. State Department of Environmental Regulation, 376 So.2d (Fla. 1st DCA 1978), cert. denied, 376 So.2d

    74 (Fla. 1979); Dravo Basic Materials Company, Inc. v. State Department of Transportation, 17 FLW D. 1673 (Fla. 2nd DCA, July 8, 1992).

38. The Petitioners contend that the rule is vague, fails to establish adequate standards for Board action, and vests unbridled discretion in the Board because the phrase "include, but not be limited to" precedes the list of tasks which may be delegated under general supervision. However, this list of specific tasks clearly defines the nature of the tasks that can be delegated. The principle of "ejusdem generis" applies to this situation where the general term is defined by the precise terms associated with it. Florida Police Benevolent Association, Inc. v. Department of Agriculture, 574 So.2d 120 (Fla. 1991). Thus, the listing of tasks defines the nature of the tasks which can be delegated; and, therefore, the rule is not vague. The use of the words in their present context merely indicates that any tasks other than those enumerated must be sui generis with the enumerated terms. The validity of the rule is not affected by the inclusion or exclusion of those words.

    
    

39. Finally, the record in this case does not provide sufficient legal support for the Petitioners' allegation of their standing to challenge the rule. The Petitioners allege, in their amended petition, that they are substantially affected by the rule:

    
    

    Because the rule expands the range of permissible tasks and duties to be performed by nonlicensed persons and infringes upon those duties specifically delegated to opticians in Section 484.002, Florida Statutes.

    
    

    They further allege that the rule:

    
    

    Allows nonlicensed persons to perform services only permitted by persons licensed under either Chapter 484 or 463, Florida Statutes.

    
    

40. Mr. Williams, in his testimony, defined the impact of the rule on Petitioner POF's membership in terms of economic competition. According to Mr. Williams, hiring nonlicensed personnel reduced overhead and allowed competitors to sell eyeglasses for less and also reduced the job market for licensed opticians. The evidence presented in support of the Petitioners' allegations of invalidity suggests that the rule is being violated in its "application", not that the rule was improperly drafted and enacted and, therefore, invalid on its face, as described with more particularity in the above Findings of Fact.

    
    

41. The Petitioners' claim to standing is based upon their claim that a protected economic right to practice opticianry has been impaired by the challenged rule. See, Florida Medical Association v. Department of Professional Regulation, 426 So.2d 1113 (Fla. 1st DCA 1983). However, none of the enumerated ministerial tasks and the rule under challenge are solely the practice of opticianry, as defined in Section 484.002(3), Florida Statutes. Rather, the enumerated ministerial tasks fall squarely within the items listed in Section 484.002(3), Florida Statutes, as not being the practice of opticianry. The Petitioners, therefore, have no basis upon which to claim an infringement of a protected interest. To the extent that it can be inferred that the Petitioners are raising a general interest in being free from competition, their standing is not based upon a legally recognized right of sufficient immediacy and reality to support their standing.

Based upon the foregoing Findings of Fact, Conclusions of Law, the preponderant evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

ORDERED that the Petitioners have not established their standing to challenge the Respondent's Rule 61F8-3.015, Florida Administrative Code. The Petitioners have also not established that that rule is an invalid exercise of delegated legislative authority; that it was enacted arbitrarily or capriciously; or that it is vague. Accordingly, the amended petition filed herein be and the same is hereby dismissed.

DONE AND ORDERED this 18th day of November, 1994, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1994.

APPENDIX TO FINAL ORDER, CASE NO. 93-6924RX

Petitioners' Proposed Findings of Fact 1-5. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on

   this subject matter and as not entirely supported by preponderant evidence of record.

2. Accepted.

8-13. Accepted, but not necessarily as to their purported material import.

14. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence of record.

15-16. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

17-19. Accepted, but not necessarily for its purported material import.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

2. Accepted.

22-23. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

Respondent's Proposed Findings of Fact

The Respondent's proposed findings of fact numbers 1-21, to the extent not inconsistent with the findings of fact made by the Hearing Officer, are accepted. They are rejected as being contrary to the preponderant, credible evidence, or as immaterial or unnecessary to the extent they are contrary to or inconsistent with the Hearing Officer's findings of fact.

Intervenor's Proposed Findings of Fact

1-35. Accepted, to the extent not inconsistent with or in contravention of the Hearing Officer's findings of fact on the same subject matter.

COPIES FURNISHED:

Darren Schwartz, Esquire

R. Bruce McKibben, Esquire PENNINGTON & HABEN, P.A. Post Office Box 10095 Tallahassee, FL 32302-2095

Claire Dryfuss, Esquire Assistant Attorney General The Capitol, PL-01 Tallahassee, FL 32399-1050

Leonard A. Carson, Esquire CARSON, LINN & ADKINS

1711-D Mahan Drive Tallahassee, FL 32308

Diane Orcutt, Executive Director Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, Esq.

General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

George Stuart, Secretary Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the district court of appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

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DISTRICT COURT OPINION

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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

PROFESSIONAL OPTICIANS OF NOT FINAL UNTIL TIME EXPIRES TO

FLORIDA, a Florida Corporation FILE MOTION FOR REHEARING AND and WAYNE P. RIDDLEBAUGH, DISPOSITION THEREOF IF FILED

Appellants/Petitioners, CASE NO. 94-4136

DOAH CASE NO. 93-6924RX

vs.

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF OPTOMETRY,

Appellee/Respondent,

and

FLORIDA OPTOMETRIC ASSOCIATION,

a Florida Corporation,

Appellee/Intervenor.

/ Opinion Filed August 25, 1995

An appeal from an order of the Division of Administrative Hearings.

Bruce Culpepper, Darren A. Schwartz, and Cynthia S. Tunnicliff of Pennington & Haben, P.A., Tallahassee, for Respondents.

Robert A. Butterworth, Attorney General; and Claire D. Dryfuss, Assistant Attorney General, Tallahassee, for Appellee/

Rosa H. Carson of Carson & Adkins, Tallahssee, for Intervenor.

PER CURIAM.

AFFIRMED.

ALLEN and DAVIS, JJ., and SHIVERS, SENIOR JUDGE, CONCUR.

Docket for Case No: 93-006924RX

Orders for Case No: 93-006924RX