STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIAN LLOYD WEBER, O.D. and )

29/49 OPTICAL, INC., )

)

Petitioners, )

)

vs. )

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF ) CASE NO. 96-5350RU OPTOMETRY, )

)

Respondents, )

)

and )

) FLORIDA OPTOMETRIC ASSOCIATION, )

)

Intervenor. )

)

FINAL ORDER

A hearing was held in this case in Tallahassee, Florida on February 3, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Grover C. Freeman, Esquire

Freeman, Hunter and Malloy

201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602

For Respondent: Claire D. Dryfuss, Esquire Board of Office of the Attorney General Optometry Pl-01, The Capitol

Tallahassee, Florida 32399-1050

For Respondent: Angela T. Hall, Esquire

Agency for Agency For Health Care Administration Health Care Post Office Box 14229

Administration Tallahassee, Florida 32317-4229

For Intervenor: Rosa H. Carson, Esquire

Carson and Adkins

2873 Remington Green Circle, Suite 101

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether alleged statements attributed to the Board of Optometry were made by the Board, and if so, whether the statements constitute unpromulgated rules prohibited by Section 120.54(1)(a), Florida Statutes, (Supp. 1996).

PRELIMINARY STATEMENTS

On November 8, 1996, Petitioners herein, Brian Lloyd Weber, O.D., Brian L. Weber and Associates, P.A. and 29/49 Optical, Inc. filed a Petition to Determine the Invalidity of Existing Non-Rule Agency policy, pursuant to Sections 120.56(4) and 120.57(1)(e), Florida Statutes, (Supp. 1996), alleging that certain statements attributed to the Board of Optometry constituted rules under Section 120.52(15), Florida Statutes, which were made in violation of Section 120.54(1)(a), Florida Statutes. The alleged Agency statements were:

1. A Florida licensed optometrist may not share an ownership interest in an optical establishment with an unlicensed (as an optometrist) person, corporation, business or law individual.

2. A Florida licensed optometrist who shares an ownership interest in an optical establishment with an unlicensed (as an optometrist) person, corporation, business or lay individual is engaged in the practice of optometry with someone other than a licensed practitioner (optometrist) by virtue of [the]

   optometrist’s ownership interest in the optical establishment.

3. An optical establishment owned by both a Florida optometrist and an unlicensed (as an optometrist) person, corporation business or lay individual may not prepare and dispense lenses, spectacles, eyeglasses, contact lenses, and other optical devices to the intended user or agent thereof, as such constitutes the practice of optometry.

Petitioners also alleged that the cited alleged agency statements, as unpromulgated rules, were invalid exercises of delegated legislative authority and were invalid erroneous interpretations of Section 463.014, Florida Statutes, and Rule 59V-3.009, Florida Administrative Code.

The matter was originally set for hearing on December 3, 1996, but upon the filing of a Joint Motion for Continuance, the matter was rescheduled for February 3, 1997, at which time it was heard as scheduled.

In the interim, on January 22, 1997, without objection from Petitioners or the Board, the Florida Optometric Association, (FOA), sought to intervene, and intervention was granted by Order dated January 28, 1997. Prior to the taking of testimony on the merits of the issues, the Agency for Health Care Administration moved to withdraw as a party. This was granted. At hearing, Petitioner, Brian L. Weber and Associates, P.A., also withdrew as a party Petitioner.

At the hearing, Petitioners presented the testimony of Dr. Brian Lloyd Weber and offered Petitioners’ Exhibits One through Eight for Identification. Of these, Exhibits Two, Three and Five

through Eight were admitted at hearing. Ruling on Exhibits One and Four was reserved. They were, however, subsequently received into evidence. The Board of Optometry presented the testimony of Nancy Murphy, a research assistant with the Office of the Attorney General, and Lisa M. Bassett, formerly a prosecuting attorney for the Agency for Health Care Administration. Board Exhibits A and B were offered and admitted. The Florida Optometric Association, (FOA), offered a Stipulation of Facts which was accepted. The FOA requested the undersigned officially recognize:

a. Chapter 120, Florida Statutes, (Supp. 1996)

d. Rule 59V, Florida Administrative Code. ,

1. Chapter 463, Florida Statutes, (Supp. 1996),

2. Chapter 484, Florida Statutes, (Supp. 1996) and Subsequent to the hearing, Petitioner requested the

undersigned officially recognize the opinion of the First District Court of Appeal in Cole Vision Corporation v. Department of Business and Professional Regulation, Board of Optometry,

So.2d , 21 Fla. Law Weekly 423 (Fla. 1DCA, February 14, 1997), based on the underlying case styled Gillette v. Department of Business and Professional Regulation, Board of Optometry, 18

F.A.L.R. 816 (January 22, 1996). Official Recognition was taken as requested.

A transcript of the proceedings was furnished. After receipt thereof by the undersigned, counsel for Petitioners, the Board of Optometry and the Florida Optometric Association

submitted Proposed Findings of Fact which have been carefully considered in the preparation of this Final Order.

FINDINGS OF FACT

1. The parties stipulated as a matter of fact that:

   
   

   1. The FOA is a not-for-profit Florida corporation whose membership is comprised of optometrists licensed under Chapter 463, Florida Statutes, to practice optometry in Florida.

   2. All FOA members are subject to and regulated by the Board of Optometry and its rules.

   3. The FOA has approximately 1,022 members.

   4. The Board of Optometry is the agency responsible for regulating the optometric practice of all FOA members.

   5. Board rules and agency statements of general applicability regulate the optometric practice of all FOA members.

   6. Individual members of the FOA, being subject to and regulated by the rules and policy of the Board of optometry, are persons whose substantial interests will be affected by the alleged agency statements and are thus substantially affected persons within the meaning of Section 120.56(1)(e), Florida Statutes (Supp. 1966).

   7. As all members of the FOA are subject to and regulated by Board rules and statements of general applicability, a substantial number of the FOA’s members would be substantially affected by the alleged statements.

   8. The objective of the FOA is to promote and protect the interests of the general public and licensed optometrists in ensuring the availability of high quality eye care at an affordable price.

   9. The FOA represents its members through the provision of education and training, and by participation in administrative proceedings, legislative activities, and court litigation.

2. Petitioner, Brian Lloyd Weber, O.D., is an optometrist licensed and practicing in Florida. Petitioner, 29/49 Optical Inc., (29/49), is a corporation which operates optical establishments in Florida. The Board of Optometry is the state agency in Florida which licenses optometrists and regulates the practice of optometry in this state.

3. On January 29, 1992, the Probable Cause Panel of the Board of Optometry determined there was probable cause to discipline the license of Dr. Weber because of an alleged violation of Section 463.014(1)(b), Florida Statutes, involving the corporate practice of optometry.

4. Thereafter, on February 2, 1992, an Administrative Complaint was filed with the Board which alleged that Dr. Weber had violated the cited statute by engaging in the practice of optometry with a corporation not composed of other health care providers; by entering into a corporate arrangement which permitted an unlicensed person to practice optometry through Dr. Weber, in violation of Rule 21Q-3.008, (now Rule 59V-3.008, Florida Administrative Code); and by holding himself out to the public as available to render professional services in a manner which implies he is professionally associated with an entity which is not a licensed practitioner, also in violation of the Rule.

5. The investigation conducted by the then Department of Professional Regulation, which led up to the action of the panel

   and the filing of the Administrative Complaint indicated that Dr. Weber owned 250 shares of stock in 29/49, along with an optician, Anthony Record, not licensed to provide optometry services, who also owns stock in the corporation. Allegedly, the corporation operated at five different locations, at one or more of which eye examinations were performed. It was also alleged that 29/49 had publicly advertised itself as an entity which provided complete eye examinations, and that Dr. Weber performed the eye examinations described in the advertisements.

6. In fact, Dr. Weber is a director and officer of 29/49. He holds a 75% ownership share in the corporation. Both Dr. Weber and Mr. Record control the corporation and share the duties and profits of the operation. The firm provides optitianry services, as defined in Sections 484.002(3) and (7), Florida Statutes. Dr. Weber asserts that the operations of 29/49 are separate from the operations of his optometric practice, and claims that the Board’s direction to him to change the corporate structure of 29/49 so as to dissolve his partnership with a lay person is a continuation of what he claims is a long-standing policy of prohibiting the joint ownership of an optitianry between and optometrist and a lay person.

7. Before a hearing was held on the Administrative Complaint, Dr. Weber and counsel for the Board entered into a stipulation which, if accepted by the Board, would have resolved the pending disciplinary action. The stipulation was presented

   to the Board at its July 8, 1993 meeting, at which time the Board voted to reject it and to propose a counter-stipulation. At that meeting, the Board did not enunciate any of the alleged agency statements at issue here nor did it take a position as to what Dr. Weber must do to rectify the practice situation to its satisfaction. Nonetheless, by Order dated September 9, 1993, the Board formally rejected the proposed stipulation and proposed its own stipulation.

8. On September 12, 1996, Dr. Weber and the Agency’s counsel presented a second stipulation to the Board for settlement of the disciplinary matter, but again the Board voted to reject the stipulation and to offer its own second counter- stipulation. This counter-proposal called for Dr. Weber to change his corporate structure so that he no longer violated the statutory prohibition against practicing optometry with non- licensed individuals, and that he no longer practice with a lay person. This second counter-proposal by the Board did not enunciate any of the alleged agency statements at issue herein. This second counter-proposal was promulgated in an Order of the Board issued on October 15, 1996.

9. Sections 463.014(1)(a)&(b), Florida Statutes, provide:

   
   

   1. No corporation, lay body, organization, or individual other than a licensed practitioner shall engage in the practice of optometry through the means of engaging the services, upon a salary, commission, or other means or inducement, of any person licensed to practice optometry in this state. Nothing in this section shall be deemed to prohibit

      the association of a licensed practitioner with a multidisciplinary group of licensed health care professionals, the primary objective of which is the diagnosis and treatment of the human body.

   2. No licensed practitioner shall engage in the practice of optometry with any corporation, organization, group or lay individual. This provision shall not prohibit licensed practitioners from employing, or from forming partnership or professional associations with, licensed practitioners licensed in this state or with other licensed health care professionals, the primary objective of whom is the diagnosis and treatment of the human body.

   Consistent therewith, the Board of Optometry has promulgated Rule 59V-3.008, Florida Administrative Code, which implements the provisions of the statute.

10. Rule 59V-3.008, Florida Administrative Code, restates the intent of the legislature regarding the need for licensure of practitioners of optometry, defines a “licensed practitioner”, and thereafter outlines with particularity those actions which may and those which may not be carried on by licensed optometrists in Florida. The rule is quite clear in its definitions and leaves little room for misunderstanding regarding what constitutes the practice of optometry and optometric services; those individuals who must be licensed; what professional activities a licensed practitioner may perform and what activities constitute a violation of Section 463.014,Florida Statutes. Of specific relevance to the issues herein are:

    (15)(b) Entering into any agreement (whether written or oral) which allows, permits or facilitates an entity which itself

    is not a licensed practitioner to practice optometry, to offer optometric services to the public, or to control through any means whatever any aspect of the practice of optometry.

    1. Allowing, permitting, encouraging, forbearing, or condoning any advertisement including those placed in a newspaper, magazine, brochure, flier, telephone directory, or on television or radio, which implies or suggests that the licensed practitioner is professionally associated or affiliated with an entity which itself is not a licensed practitioner.

    2. Occupying or otherwise using professional office space in any manner which does not clearly and sufficiently indicate to the public that his/her practice of optometry is independent of and not associated with an entity which itself is not a licensed practitioner.

    3. , (I), and(j), [which all refer with specificity to some action which relates to the practice of optometry by a licensed practitioner with an entity which itself is not a licensed licensed practitioner.]

    This rule has been challenged in the courts and determined to be a valid exercise of delegated legislative authority.

11. Petitioner claims that pronouncements by the Board of Optometry since the passage of the relevant statute and the promulgation of the relevant rule, including a Declaratory Statement by the Board in response to a Petition therefore by Phillip R. Sidran, O.D. in 1991, found at 13 FALR 4804; and in discussion of members at various meetings of the Board’s Probable Cause Panel; all indicate that the Board has formulated a policy regarding the instant issue which is neither a statute nor a properly promulgated rule.

12. In 1991, Dr. Sidran, a licensed optometrist, sought a declaratory statement from the Board regarding the propriety of having a licensed optician share the revenues and responsibilities deriving from the optical portion of his practice. In its Declaratory Statement, issued on October 9, 1991, the Board specifically referred to and quoted the controlling portions of the statute and the rule which it then interpreted as indicating such an arrangement was prohibited. At no time did the Board promulgate new guidelines or expand the strictures imposed by the existing statute and rule. It applied an existing statute and rule to the factual situation posed by Dr. Sidran and concluded that under the facts of that case, the existing statute and rule prohibited the proposed relationship.

13. The subsequent discussion of that opinion at the meeting of the Board’s Probable Cause Panel, convened on January 29, 1992, to consider proposed disciplinary action against Dr. Weber for the situation described here with 20/49, again interpreted existing statute and rule but did not formulate policy.

14. Petitioner further refers to two additional meetings of the Board of Optometry at its meetings on July 8, 1993 and September 12, 1996, at both of which the members present discussed the situation regarding Dr. Weber’s business relationship in 29/49. He claims that in both situations, the Board members made policy statements which should have been

    formalized through the promulgation of a rule amendment or supplement. Review of the transcripts of those meeting does not support Dr. Weber’s position, however. It is clear that in each case the Board members examined the facts presented to them, applied the existing statutory and rule provisions to those facts, and concluded that the Petitioner’s actions constituted a violation of existing law.

15. The Board’s position vis a vis Dr. Weber’s business arrangement was made a part of the Board’s counter-proposal to the stipulation of settlement initially agreed to by Dr. Weber and the Department’s counsel. In it’s counter-stipulation, which came out of the September 12, 1996 Board meeting, the Board required Dr. Weber to “... change his corporate structure so he is no longer in violation of Section 463.014(1)(b), Florida Statues, and that [his] practice be changed so that he is no longer practicing with a lay person.”

    CONCLUSIONS OF LAW

    
    

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

17. Under the provisions of Section 120.56(4), Florida Statutes, any person substantially affected by an agency statement may seek an administrative determination that the statement violates Section 120.54(1)(a), Florida Statutes (Supp. 1996). In the instant case, Petitioner, Dr. Weber, by virtue of

    his license and regulation by the Board of Optometry, has standing to challenge policy statements of the Board. In addition, the FOA, as an association of Florida licensed optometrists, also has standing to participate in this proceedings.

18. Petitioner has the initial burden of proof in this matter to establish, by a preponderance of the evidence, that the agency statements, as alleged by him, violate the provisions of Section 120.54(1)(a). Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1DCA 1978); Dravo Basic Material Co. v. State, Department of Transportation, 602 So.2d 632 (Fla. 2DCA 1992).

19. In this proceeding it is necessary first to determine whether the Agency made the statements in issue, and if so, whether they constitute agency rules which must be formally promulgated pursuant to a properly constituted rule-making process.

20. At no point in the evidence can the “agency statements”, as alleged by the Petitioner, be found. The evidence provided to the Administrative Law Judge includes several transcripts of meetings of the Board of Optometry in addition to those of its Probable Cause Panel, all relating to that time when the body was addressing the situation involving this Petitioner. They make reference to the pertinent rule and statutory prohibition against certain action by optometrists. In

    addition, there are several orders of the Board which contain reference to the pertinent rule and statute. In both situations, the Board members, in their individual capacities and not as a collegial body, examined evidence of Petitioner’s conduct and concluded that under the circumstances presented, his conduct violated the previously existing practice parameters set by the statute and the rule.

21. Even were the individual statements made by Board members, as memorialized in the transcripts presented, to constitute statements of what they felt should be Board policy, the statements of those individual members do not establish Board policy. It has long been held in this state that the opinions of individual members of a collegial body are not to be substituted for the official actions of that body as a whole. Metropolitan Dade County v. Blumenthal, 675 So.2d 598 (Fla. 3DCA 1995). The defining evidence of Board policy is in its records as manifested in the transcript of its proceedings and its orders.

22. None of the orders of the Board, as offered into evidence, constitute more than an agency interpretation of its own previously promulgated rules. The basic prohibitions against certain activity by the regulated optometrist are found in the statutes of the State of Florida and the rules of the Board of Optometry. The Board’s written orders, and declaratory statements, as referenced here by Petitioner, constitute no more

    than an extrapolation of what already exists, not a formulation of new agency policy or directive.

23. Equally as important in the evaluation of Petitioners’ claims is Section 120.52(15), Florida Statutes, (Supp. 1996), which provides:

    “Rule” means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or existing rule.

24. As was stated in the discussion above, the comments which Petitioner claims are statements of agency policy and which, therefore, by law must be properly promulgated as rules because of their allegedly general applicability, clearly do not fall within that definition. None of the Board Orders cited by the Petitioner apply to other than the facts and circumstances of Dr. Weber’s particular situations. The proposed counter- stipulations offered to him were directed solely to him, not to other licensees, and he was free to reject them. As such, they do not have general applicability, and when this conclusion is included along with the prior conclusion that the Board statements were no more than applications of existing requirements to Petitioner’s particular situation, they do not have the substance or effect of new agency policy of general application. Consequently, they are not rules requiring compliance with established promulgatory practice.

ORDER

Based on the foregoing, therefore, it is:

ORDERED THAT

The Petition of Brian Lloyd Weber, O.D. and 29/49 Optical, Inc., seeking relief pursuant to Section 120.56(4), Florida Statutes, is hereby dismissed.

DONE and ORDERED in Tallahassee, Florida this 9th day of April, 1997.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1997.

COPIES FURNISHED:

Grover C. Freeman, Esquire Freeman, Hunter & Malloy Suite 1950

201 East Kennedy Boulevard Tampa, Florida 33602

Claire D. Dryfuss, Esquire Office of the Attorney General PL-01, The Capitol

Tallahassee, Florida 32399-1050

Rosa H. Carson, Esquire Carson and Adkins

Suite 101

2873 Remington Green Circle Tallahassee, Florida 32308

Jerome W. Hoffman General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32309

Executive Director Board of Optometry Agency for Health Care

Administration

1940 North Monroe Street Tallahassee, Florida 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.

Docket for Case No: 96-005350RU

Orders for Case No: 96-005350RU