STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KAREN L. DAMM, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4970

)

STATE OF FLORIDA, )

BOARD OF OPTICIANRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on December 8, 1995, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was Jacksonville, Florida. Charles C. Adams was the hearing officer.

APPEARANCES

For Petitioner: Martin J. Mickler, Esquire

5515-2 Phillips Highway

Jacksonville, Florida 32207

For Respondent: Ann Cocheu, Assistant Attorney General

Department of Legal Affairs PL-01 The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF ISSUES

Did Petitioner attempt to obtain a license to practice opticianry by misrepresentation or fraud, by modifying information in her 1995 application for licensure when compared to her 1994 application? 1/

PRELIMINARY STATEMENT

On July 12, 1995, Petitioner made application to be licensed to practice opticianry in Florida. On August 29, 1995, the application was denied based upon alleged discrepancies pertaining to her work experience as related in the July 12, 1995 application and a prior application dated July 15, 1994. On the merits the application was denied based upon a lack of change in circumstances between the dates upon which those applications had been made, the initial application having been denied and due process rights associated with that application exhausted. (As identified in the statement of issues, Petitioner did not offer proof at hearing concerning changed circumstances.)

On September 28, 1995, Petitioner filed a petition for a formal hearing to contest the preliminary decision denying licensure.

On October 10, 1995, the Division of Administrative Hearings received Respondent's request to assign a hearing officer to conduct the formal hearing requested. The case was scheduled for hearing and heard on December 8, 1995.

Respondent moved for summary judgment (summary recommended order). Oral argument was heard in a telephone conference. The parties were advised that the motion was denied. The decision to deny the motion was memorialized in the hearing transcript. Issues raised by that motion are addressed through the recommended order.

At hearing Petitioner testified in her own behalf. Joint Exhibit No. 1 was received in evidence. Respondent offered no witnesses.

Official recognition was taken of Chapter 59U-8, Florida Administrative Code. The hearing was conducted in accordance with Chapters 120, 455 and 484, Florida Statutes.

The hearing transcript was filed with the Division of Administrative Hearings on December 18, 1995. The parties were afforded ten days from the transcript filing to submit proposed recommended orders. Respondent timely submitted a proposed recommended order. Petitioner did not submit a proposed recommended order. The fact finding suggested by Respondent's proposed recommended order is addressed in the appendix to the recommended order.

FINDINGS OF FACT

1. On July 15, 1994, Petitioner applied to be licensed as an optician in Florida. She evidenced her intentions by completing the license application form, together with various supporting documents.

   
   

2. Respondent denied the license application through an order dated August 25, 1994. This preliminary decision by the Respondent was contested by Petitioner when Petitioner sought an informal hearing.

   
   

3. To resolve their dispute the Respondent received supplemental documents from Petitioner, to include tax returns. Petitioner submitted this information in September 1994.

   
   

4. On November 4, 1994, Respondent conducted an informal hearing.

   
   

5. On December 9, 1994, a final order was entered finding that Petitioner did not meet statutory criteria for licensure under Section 484.007(1)(d), Florida Statutes. Petitioner did not seek appellate review following entry of the final order.

   
   

6. On July 12, 1995, Petitioner filed a second application to be licensed to practice opticianry in Florida.

   
   

7. On August 29, 1995, Respondent entered a preliminary order denying the reapplication. As reasons for the denial it was stated:

   
   

   . . . The Board hereby states as the basis of this decision that you were previously denied licensure August 5, 1994; and there are three discrepancies of material fact regarding your work experience between your application dated

   July 18, 1994 and your subsequent application of July 21, 1995. See Sections 484.014(1)(a), Florida Statutes. . . .

   
   

8. There were factual differences in the July 15, 1994 application compared to the July 12, 1995 application related to Petitioner's work experience.

   
   

9. The July 15, 1994 application did not refer to work experience between May 1994 and December 1994 at Vision Work, Inc., an establishment located at 9480 Arlington Expressway, Regency Point, Jacksonville, Florida. The July 12, 1995 application did describe that experience.

   
   

10. To explain this discrepancy, Petitioner indicated that the job at Vision Work had been a temporary/part-time job that she did not expect to last as long as it did. This is taken to mean that the reference to Vision Work was not set forth in the July 15, 1994 application in that it was a temporary position at that time. Petitioner indicated that when she filled out the July 15, 1994 application she had only worked at Vision Work since May, one Saturday a month. After being there through August she started working nights and every Saturday and Sunday, making it a more permanent position.

    
    

11. In the July 15, 1994 application Petitioner related work experience for National Optical at No. 9 Best Square, Norfolk, Virginia, from August 19, 1987 until March 19, 1993. In the July 12, 1995 application the National Optical work experience was described as March 19, 1989 through March 19, 1993. Otherwise reference to the work experience for National Optical set forth in the two applications remained consistent.

    
    

12. In explanation, Petitioner stated that she had worked part-time from August 19, 1987 until 1989 when she began full-time employment at National Optical. The reason for making the change between the two applications was based upon discussions at an appearance before the Respondent in which someone had asked Petitioner about working two jobs that overlapped. This is referring to an appearance before the Board associated with the 1994 application. By the change in the 1995 application concerning Petitioner's work experience, she sought to clarify the circumstance related to working two jobs at the same time by pointing out the date upon which the National Optical job became a full-time job.

    
    

13. In the discussions held with the Respondent related to the 1994 application, Petitioner made the Respondent aware that the National Optical employment became full-time on March 19, 1989. This beginning date coincides with the information in the July 12, 1995 application.

    
    

14. The July 15, 1994 application stated that Petitioner had worked for the Navy Exchange Optical at Bldg C-9 in Norfolk, Virginia from April 24, 1984 until March 7, 1987. In the July 12, 1994 application the concluding date became March 3, 1989. Otherwise the two applications were essentially the same.

    
    

15. In explanation, Petitioner stated that she had made a mistake in the 1994 application as to the concluding date and that this had been brought to her attention in the hearing before Respondent to consider the 1994 application. After Petitioner had been denied licensure in the 1994 informal hearing, someone pointed out that Petitioner had worked with the Navy Exchange Optical for a period of three years. Petitioner then realized that she had been in that

    position for a longer period. As a consequence the 1995 application was corrected to reflect the proper end date.

    
    

16. The reference which Petitioner made before Respondent to working two jobs corresponds to a part-time position at National Optical while working full- time at the Navy Exchange Optical, both in Norfolk, Virginia.

    
    

17. When Petitioner made reapplication on July 12, 1995, she was aware that the Respondent had received and reviewed the prior application dated July 15, 1994. Under that circumstance and given the explanations at hearing for the discrepancies between the two applications as reported in the facts, Petitioner is not found to have intended to misrepresent or commit fraud when reapplying for licensure or to have misrepresented or committed fraud.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

    
    

19. In accordance with Section 484.007, Florida Statutes, Petitioner must prove her entitlement to be licensed to practice opticianry in Florida. See also Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

20. On the merits Petitioner has not submitted proof which would demonstrate her right to licensure by proving that the circumstances had changed between the final decision denying the application in 1994 and the decision to deny the reapplication in 1995. See, Coral Reef Nurseries, Inc. v. Babcock, Company, 410 So.2d 648 (Fla. 3rd DCA 1982) and Thomson v. Department of Environmental Regulation, 511 So.2d 989 (Fla. 1987).

    
    

21. Section 484.014(1)(a), Florida Statutes, grants Respondent the authority to impose discipline against an optician who has attempted to procure a license by misrepresentation or fraud. Section 484.014(2)(a), Florida Statutes, grants the authority for Respondent to refuse to certify Petitioner for licensure if the applicant attempted to procure the license by misrepresentation or fraud as described in Section 484.014(1)(a), Florida Statutes.

    
    

22. Section 455.227(1)(h), Florida Statutes, creates grounds for disciplinary action consistent with Section 455.227(2), Florida Statutes, against those persons attempting to obtain a license by fraudulent misrepresentation. This includes the license to practice opticianry. Section 455.227(2)(a), Florida Statutes, allows Respondent to refuse to certify Petitioner to practice opticianry if Respondent finds Petitioner guilty of attempting to obtain the license to practice opticianry through fraudulent misrepresentation as described in Section 455.227(1)(h), Florida Statutes.

    
    

23. Consistent with Section 455.2273, Florida Statutes, Respondent has established guidelines for dispositions of cases involving the attempt to procure a license by misrepresentation or fraud, to include denial of a license. The guidelines are set forth in Rule 59U-8.020(2)(a), Florida Administrative Code.

24. Respondent bears the burden to prove that Petitioner attempted to procure the license to practice opticianry through fraud or misrepresentation as evidenced by the discrepancies between the applications in 1994 and 1995. See Balino, supra.

    
    

25. Petitioner did not intend, and the facts do not reveal, that the changes between the applications in 1994 and 1995 constituted an attempt by Petitioner to obtain a license to practice opticianry through misrepresentation or fraud.

    
    

26. In its proposed recommended order Respondent seeks to expand the issues in this case as framed by the preliminary order dated August 29, 1995, to include the issue of whether Petitioner has practiced opticianry as defined at Section 484.002(3), Florida Statutes, without the benefit of a license. Petitioner was not appropriately noticed that this additional ground formed the basis for denying her 1995 application, thus affording Petitioner the opportunity to defend against that allegation. Consequently, Respondent may not deny the 1995 application based upon the assertion that Petitioner practiced opticianry without a license.

RECOMMENDATION

Based upon a consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a final order be entered which denies the 1995 application for a license to practice opticianry on the merits, but sets aside the grounds for denial related to alleged discrepancies of material fact pertaining to the 1994 application when compared to the 1995 application.

DONE and ENTERED this 5th day of January, 1996, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 5th day of January, 1996.

ENDNOTE

1/ Petitioner did not submit proof intended to address her right to licensure, rather the hearing as conducted contested the preliminary decision by the Respondent to deny licensure based upon the alleged misrepresentation or fraud.

APPENDIX CASE NO. 95-4970

The following discussion is given concerning the proposed findings of fact by Respondent:

Paragraphs 1 through 7 and the first two sentences in Paragraph 8 are subordinate to facts found.

The last sentence to Paragraph 8 is not necessary to the resolution of the dispute.

Paragraphs 9-11 are subordinate to facts found.

Paragraph 12 is not necessary to the resolution of the dispute.

Paragraph 13 in the first sentence, excluding the phrase "during which time Ms. Damm dispensed eye wear" is subordinate to facts found. The last sentence in Paragraph 13 is subordinate to facts found.

Paragraph 14 is not necessary to the resolution of the dispute.

COPIES FURNISHED:

Martin J. Mickler, Esquire 5515-2 Phillips Highway

Jacksonville, FL 32207

Ann Cocheu, Esquire

Office of the Attorney General Suite PL01, The Capitol Tallahassee, FL 32399-1050

Lucy C. Gee, Executive Director Department of Business and

Professional Regulation Board of Opticianry

1940 North Monroe Street Tallahassee, FL 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-004970

Orders for Case No: 95-004970