STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LENSCRAFTERS, INC., and )

SANJIV MATTA, )

)

Petitioners, )

)

and )

)

ODETTE GAYOSO, )

)

Intervenor, )

)

vs. ) Case No. 97-1098RP

)

BOARD OF OPTICIANRY, )

)

Respondent, )

)

and )

)

PROFESSIONAL OPTICIANS )

OF FLORIDA, INC., )

)

Intervenor. )

)

FINAL ORDER

This cause came on for formal hearing on July 2, 1997, in Tallahassee, Florida, before Ella Jane P. Davis, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioners Lenscrafters, Inc. and Savjiv Matta: Ronald A. Labasky

William R. Waters, Jr.

Skelding, Labasky, Corry, Eastman, Hauser, Jolly & Metz

Post Office Box 669 Tallahassee, Florida 32302

For Intervenor Odette Gayoso:

Ronald A. Labasky William R. Waters, Jr.

Skelding, Labasky, Corry, Eastman, Hauser, Jolly & Metz

Post Office Box 669 Tallahassee, Florida 32302

For Respondent Board of Opticianry:

Monica Felder Department of Health

Assistant Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399

For Intervenor Professional Opticians of Florida:

Bruce McKibben Holland & Knight

315 South Calhoun Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

This cause arose as an action pursuant to Section 120.56(2), Florida Statutes, challenging the validity of the amendment to Rule 59U-16.002(2), Florida Administrative Code, proposed and published by the Board of Opticianry on February 14, 1997.

The issues are:

1. Do Petitioners have standing to bring this rule challenge?

2. Is the following proposed amendment of Rule 59U- 16.002(2), Florida Administrative Code, an invalid exercise of delegated legislative authority, pursuant to Sections 120.52(8)(c) and (8)(e), Florida Statutes?

   1. A sponsor must be an optician who is

      licensed under Chapter 484, F.S., for no less than one (1) year, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 59U-10.007 on the premises of any establishment in which apprentices are trained. (Amended language underlined)

   2. Are Petitioners entitled to attorney's fees, pursuant to Section 120.595(2), Florida Statutes?

PRELIMINARY STATEMENT

On February 14, 1997, the Board of Opticianry published a notice that it intended to adopt changes to Rule 59U-16.002(2), Florida Administrative Code.

On March 7, 1997, Lenscrafters, Inc., and Sanjiv Matta timely filed their Petition to Determine the Invalidity of Proposed Rule 59U-16.002.

On April 21, 1997, the Board filed a Motion to Dismiss for Lack of Standing. Petitioners' Response was filed in due course. The Motion was denied by an Order entered May 21, 1997.

On May 22, 1997, a Motion to Amend Petition to include a prayer for attorney's fees pursuant to Section 120.595(2), Florida Statutes, was filed.

On May 27, 1997, Odette Gayoso filed a Petition for Leave to Intervene on behalf of Petitioners, and the Professional Opticians of Florida, Inc. (POF) filed a Petition for Leave to Intervene on behalf of Respondent and a Motion for Continuance.

By a May 30, 1997, Order, both unopposed Petitions to

Intervene were granted and formal hearing was continued to July 2-3, 1997.

At the commencement of formal hearing on July 2, 1997, the unopposed Motion to Amend Petition was granted, and this cause proceeded upon the Amended Petition filed simultaneously with the Motion.

Thereafter, oral argument was heard as to the order of proof (duty to go forward) and burden of proof. The undersigned ruled, in accord with the holding in Consolidated Tomoka Land Co., et al. v. St. Johns River Water Management District (DOAH Case Nos. 97-0870RP and 97-0871RP) Final Order of Administrative Law Judge Donald R. Alexander entered June 27, 1997, that, absent an agreement by the parties, the burden of production was upon the challenger, with the Agency to carry the ultimate burden of persuasion as to the validity of the proposed rule, as mandated by the statutory amendment of October 1, 1996.

All parties acknowledged that the Agency for Health Care Administration is not a proper party. That agency's name was ordered omitted from the style of this cause.

Prior to the presentation of evidence, counsel for the Board of Opticianry announced that at its most recent meeting, the Board had voted to further amend the challenged proposed rule so that it would not restrict persons who had completed more than one year of opticianry practice out-of-state prior to passing the Florida Opticianry licensure examination from acting as sponsors

of apprentices within their first year of Florida practice; however, the Board would not withdraw the challenged rule as published and would not publish/file a Notice of Change until after a Final Order is entered on the instant challenge. (See, also, Findings of Fact 3-4.) Petitioner moved for a Partial Final Order of Invalidity, which was denied. (TR 27-39) The parties were advised that this situation could impact the attorney's fee issue.

The parties' Amended Prehearing Stipulation, as interlineated by oral agreement, was admitted as Administrative Law Judge Exhibit A.

Petitioners presented the oral testimony of Lucy Gee, Executive Director of the Board of Opticianry, and Sanjiv Matta, and had nine exhibits admitted in evidence, including the depositions of Odette Gayoso and Sam Jones.

Intervenor Odette Gayoso testified by deposition only. The Respondent Board presented the oral testimony of Sam

Jones and had one exhibit, the deposition of Mr. Matta, admitted in evidence.

Intervenor POF adopted the testimony and evidence of Respondent Board.

On July 14, 1997, the Board moved to defer arguments on Attorney's Fees. In light of the parties' stipulation at formal hearing that the formal hearing on the merits could be expected to develop any entitlement of Petitioners to fees and any

substantial justification or other reason precluding fees, leaving only the amount of fees, if any, to be determined subsequently (TR 29), the Motion was denied by a July 21, 1997, Order.

A transcript of proceedings was filed on July 16, 1997.

The parties jointly moved on July 24, 1997 to extend the time for submitting Proposed Final Orders. That Motion was granted in an Order entered July 30, 1997, which aspirationally set the date for this Final Order as September 15, 1997, with the caveat that due to the agreed extension, that date for the Final Order might not be met for the reasons listed in the Order.

FINDINGS OF FACT

1. All persons seeking to be licensed as opticians in Florida must first pass a minimal qualifications licensure examination. Before being qualified to sit for this examination, one of the following courses of preparation provided in Section 484.007, Florida Statutes, must be met. In relevant part, this section provides that one must have (1) received an associate degree, or its equivalent, in Opticianry from an accredited educational institution; (2) be an individual who is licensed to practice the profession of Opticianry in another state, territory, or jurisdiction, who has actively practiced for more than three years; or (3) come from a state or jurisdiction which is not licensed and have actively practiced in that state,

   territory, or jurisdiction for more than five years immediately preceding application; or (4) be an individual who has completed an apprentice program consisting of 6,240 hours of training under the supervision of an optician, a physician, or an optometrist licensed under the law of this state.

2. Respondent Board of Opticianry published on February 14, 1997 a proposed change to Rule 59U-16.002(2),

   
   

   Florida Administrative Code, as set out below. The underlined language is the only substantive change:

   59U-16.002 Qualifications for Apprentices and Sponsors.

   Apprentices and sponsors for apprenticeship programs must meet the following qualifications:

   
   

   1. No change.

      
      

   2. A sponsor must be an optician who is licensed under Chapter 484, F.S., for no less than one (1) year, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 59U-10.007 on the premises of any establishment in which apprentices are trained.

      
      

      Specific Authority - 484.005 F.S. Law Implemented - 484.007(1)(d)4. F.S.

      
      

3. The parties' Amended Prehearing Stipulation agreed that,

   Petitioners did not request a public hearing pursuant to the Florida Administrative Weekly notice.

   A Notice of Additional Public Hearing scheduled for May 16, 1997, was published on April 18, 1997, Volume 23, No. 16, Florida Administrative Weekly. At that hearing, the Board of Opticianry discussed and approved an amendment to proposed amendment to Rule 59U- 16.002.

   
   

4. At formal hearing, counsel for the Board represented that the Board had voted to amend the challenged proposed rule so that it would not restrict persons who had completed more than one year of opticianry practice out of state prior to passing the Florida Opticianry licensure examination from acting as sponsors of apprentices within their first year of Florida practice; however, the Board would not withdraw the challenged rule as published and would not publish/file a Notice of Change until a Final Order is entered on the instant challenge. The Board's position was that this vote did not constitute a stipulation of invalidity, arbitrariness, capriciousness, or overreaching its statutory authority. According to the Board, this representation was made only because the Board would not be putting on evidence to support certain portions of the rule language, as published. Nonetheless, Sam Jones, licensed optician and Board member, testified, on behalf of the Board, that new Florida licensees from out of state could not properly sponsor apprentices for at least one year because they "need a little more exposure" to Florida laws and rules before teaching others and because some other states have no licensure criteria at all and no continuing education requirements.

5. The Petition challenges the ability of the Board to require that opticians be licensed for at least one year prior to serving as apprentice sponsors, alleging that the Board lacks statutory authority to promulgate such a rule and that the proposed change is arbitrary and capricious and not based on appropriate factual or legal justification.

6. Petitioner Lenscrafters, Inc. is a corporation that does business in the State of Florida, offering optical services and goods to the public. Lenscrafters hires employees to work as opticians, as well as hiring other unlicensed store employees.

   
   

7. Petitioner Sanjiv Matta is Lenscrafters' Regional Trainer of Operations and apparently Lenscrafters' primary Florida employment recruiter. He also locates coaches for Lenscrafters' training programs. He has been a licensed optician in Florida for more than one year. He does not currently sponsor an apprentice.

8. Lenscrafters and Mr. Matta allege that they will be substantially affected because the proposed rule amendment will reduce the number of available sponsors, which will in turn reduce the number of apprentices, which will in turn reduce the number of available employees now and the number of available licensed opticians in the future. As a subset of this alleged chain of unavailability of sponsors, apprentices, and employees

   generally, Petitioners claim great difficulty will arise in attempting to coordinate apprentice work hours with sponsor work hours.

9. Lenscrafters has 64 stores in Florida. Each store is staffed by opticians, but there is often an independent optometrist next door.

10. Lenscrafters employs approximately 200 opticians in Florida, with an average of three opticians working in each of its stores.

11. Approximately 25 of the 200 opticians employed by Lenscrafters in Florida have been licensed for less than one year. These 25 were among the 60 new employees hired by Lenscrafters last year.

    
    

12. Some of the licensed opticians Lenscrafters hires unilaterally elect to serve as sponsors to other employees who would like to obtain their opticianry license by completing an apprenticeship program. However, according to Mr. Matta, it would not be "integrity based" for Lenscrafters to urge or encourage optician employees to take on sponsorship.

13. Lenscrafters provides the optometric equipment used by sponsors and apprentices in its employ.

14. Although Lenscrafters provides programs to help all its employees, including apprentices, achieve expertise in fitting and adjusting eyeglasses and provides situational

    training, equipment training, training tests, performance tests, and lending libraries, it has no specific apprenticeship program, as such, in place.

15. Some of Lenscrafters' programs assist apprentices in attaining credit hours towards licensure. Some supplement the apprentice program requirements. The primary purpose of Lenscrafters' programs is to educate and train its employees for servicing its customers.

16. The ultimate testimony of Mr. Matta that there currently are three opticians employed by Lenscrafters who have been licensed in Florida for less than one year and who are also currently serving as sponsors was anecdotal at best and at worst was speculative and self-contradictory of prior testimony.

17. Lenscrafters currently has 66 apprentices in its employ in Florida.

    
    

18. Pursuant to Board rules, each sponsor may oversee two apprentices and any apprentice may have both a primary and a secondary sponsor. Credit hours in the apprentice program are only earned when the apprentice works under a sponsor's supervision.

19. Board rules would permit Lenscrafters' 200 opticians to sponsor 400 apprentices if each licensee had two apprentices. The proposed change in the rule would allow 175 Lenscrafters' opticians to sponsor 350 apprentices.

20. Simple mathematics shows that Lenscrafters has between

    
    

    33 and 66 optician employees who serve as apprentice sponsors, primary or secondary. Clearly, Lenscrafters currently employs many more non-sponsors than sponsors.

21. Section 484.011, Florida Statutes, allows any employee of an optician to perform any of the functions an optician performs, as long as the acts are performed under the direct supervision of the optician.

22. Lenscrafters allows apprentices to perform more tasks than other unlicensed employees. Lenscrafters considers apprentices to have greater expertise, employee commitment, and career commitment than other unlicensed employees. Lenscrafters pays apprentices more than other unlicensed employees. Lenscrafters and Mr. Matta believe that apprentices who have worked in Lenscrafters' stores and trained on Lenscrafters' equipment will eventually provide a pool of trained opticians for hire or promotion. However, Lenscrafters submitted no statistical data to confirm this "belief" expressed by Mr. Matta, and based on the ratio of available sponsors to apprentices which was developed at formal hearing, this "belief" constitutes pure speculation. It could be just as beneficial for Lenscrafters to train non-apprentices at a lower salary.

23. Intervenor Odette Gayoso has been involved in opticianry for 15 years. She has an Associate of Arts (AA) degree in Optical Science and has been licensed as an optician in

    Puerto Rico since 1991.

    
    

24. Ms. Gayoso is employed as an optician by Lenscrafters. She has been a licensed optician in Florida since December 1996. Therefore, at the time of formal hearing, she had been Florida- licensed for less than one year. Under the proposed rule amendment, she would be unable to act as a sponsor for five more months.

25. Ms. Gayoso does not sponsor an apprentice currently, although the current rule permits her to do so. She has never applied to be a sponsor. No apprentice currently wants her as a sponsor. In the past, two Lenscrafters employees needed sponsors, but both left Lenscrafters' employ before any agreements concerning sponsorship were reached.

26. Ms. Gayoso feels she is qualified to sponsor an apprentice and that she would derive satisfaction from teaching one.

27. The parties' Amended Prehearing Stipulation stipulated that POF had standing to intervene. POF put on no evidence of standing.

    
    

28. Mr. Matta and Ms. Gayoso testified that they recruit for Lenscrafters. Ms. Gayoso is an assistant retail manager in a single store. Mr. Matta recruits state-wide. Only Mr. Matta testified that, in his experience, there is a shortage of qualified opticians available to be hired. Only Mr. Matta

    testified that due to the Board's rule requirement of direct supervision it was difficult for him to match apprentices' work hours with those of their sponsors. Ms. Gayoso did not corroborate Mr. Matta's perception that it is difficult to match apprentices' work hours with those of their sponsors. Although she could see how that could be, it apparently was not a problem in her store where the optician/manager sponsored two apprentices and where another optician who had been employed less than 90 days was prohibited by Lenscrafters from acting as a sponsor.

29. The fact that Lenscrafters prohibits some of its licensed opticians from sponsoring apprentices undermines Lenscrafters' position that the proposed rule change alone would undermine apprentices locating willing sponsors.

30. Mr. Sam Jones perceived no shortage of licensed opticians, only a shortage of licensed opticians he would care to hire in his establishment.

31. The Board office receives approximately 86 calls about the apprenticeship program each month. The Board has never received a call concerning a prospective apprentice's inability to find a sponsor.

32. There are currently approximately 2,500 actively licensed opticians in Florida. Of these 2,500 licensees, 174 were licensed last year. This number of annual new licensees has stayed relatively stable for many years.

33. Of 544 current apprentices in Florida, only 27

    currently have sponsors of less than one year licensure.

    
    

34. The statistics show that many more potential sponsors are available both state-wide and within Lenscrafters' Florida operation than there are those who want to be apprentices.

35. Under the current rule, only those licensees who are currently under disciplinary action are precluded from being sponsors. Under the proposed rule, and excluding any disciplinary concerns, only the 174 new admittees could not be sponsors for one year. A year later, those 174 could become sponsors. So in effect, the only licensees who could not be sponsors each year are the newest licensees, while each year the total number of potential sponsors grows respectively. Of course, the number of eligible physicians and optometrists who could also serve as sponsors would not fall below the current number and would continue to grow respectively year by year.

36. Florida has two junior colleges with an Opticianry AA degree program. These colleges graduate approximately 60 opticians per year.

37. Approximately half of the successful opticianry licensure examinees come from the AA program, and half come from the apprentice program. There is a 90 percent first time pass rate on the examination. The number of apprentice program examinees who fail on both the initial examination and "retake" examinations is higher than for AA degree holders.

38. Since 1991, the Board has been concerned that the

    apprenticeship route has not been adequately educating future opticians and ensuring the safety of their public practice after licensure even if they were being adequately prepared to pass the standardized minimal qualifications examination.

39. The Board consulted no empirical data for formulating its rule as published, but it held between nine and 12 Board meetings which included discussions on upgrading the apprenticeship program. Board members reported information from nationally recognized professional associations and reviewed a national trend whereby more states are requiring licensure and more states are phasing out apprenticeship programs.

40. Some Board members took the minimum qualifications licensure examination so that they could understand what was involved and how the examination could be improved and report back to the Board.

41. Board members heard reports from staff and investigators on reasons more disciplinary cases were not prosecuted.

42. These Board meetings were open to the public and solicited public input. Some were referred to as "workshops," although they might not meet the generally understood Chapter 120, Florida Statutes, definition of "workshop."

43. In 1996, a bill to amend Chapter 484, Florida Statutes, so as to require optician licensees to have three years of licensure before becoming sponsors did not pass into law.

    
    

44. The Board viewed the one-year rule amendment as a more conservative step than requiring three years of licensure for sponsorship.

45. All witnesses agreed that an experienced optician knows more about the practice of opticianry than a newly licensed optician.

46. Lenscrafters' witnesses contended that newly licensed opticians were more enthusiastic sponsors and more able to teach what would be required on the licensure examination.

47. Sam Jones was one of the Board members who retook and passed the current licensure examination. On behalf of the Board, he stated that the teaching of how to pass the licensure examination did not equate with teaching the practice of opticianry.

48. In drafting the rule challenged herein to apply to all new optician licensees regardless of which of the four alternative routes they had taken to licensure, the Board viewed the new one-year requirement as constituting an internship akin to the internship required of other health care professionals.

49. The new rule does not require physicians and optometrists to be licensed for one year before acting as a sponsor.

50. In not applying the one-year requirement to physicians and optometrists, but only to opticians, the Board considered

    that licensed physicians and optometrists already had clinical experience in excess of licensed opticians.

    
    

51. The parties stipulated that the Board is authorized to make such rules as are necessary to protect the health, safety, and welfare of the public as it relates to the practice of opticianry and is authorized, "to establish administrative processing fees sufficient to cover the cost of administering apprentice rules as promulgated by the Board."

    CONCLUSIONS OF LAW

    
    

52. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.57(1) and 120.56(2), Florida Statutes.

53. Petitioner Lenscrafters, Inc. employs opticians regulated by the Board, some of whom are sponsors. Lenscrafters also employs unlicensed persons, some of whom are apprentices. Lenscrafters has not been able to identify with credible particularity any sponsors it employs who would be affected by the proposed rule, and for those three sponsors it has even vaguely identified after numerous tries, Lenscrafters has not shown how their disqualification by the rule would substantially impact Lenscrafters' business.

54. The evidence affirmatively shows that in each Lenscrafters store there are probably two other potential optician sponsors available if any one is disqualified by the

    rule. Lenscrafters has not identified how many apprentices would be affected by the rule amendment and has not demonstrated that these apprentices would have any difficulty finding a new sponsor who had been licensed for more than one year. On the contrary, the facts suggest that Lenscrafters' current 66 apprentices would have a large number of available sponsors to choose from, should they need to find another sponsor.

55. Likewise, Lenscrafters' theory that this rule would so decimate the pool of available sponsors and apprentices that Lenscrafters managers could not schedule apprentices and their sponsors simultaneously has not been proven, let alone shown to be a protected or substantial business interest.

56. Looking at the number of people who would ultimately be affected by the proposed rule, it does not appear that the pool of apprentices available for hire would be substantially affected or that the pool of opticians available for hire now or in the future would be substantially affected. There are currently 544 apprentices in Florida in various stages of their apprenticeship, which can last from three to five years. An estimate of the number of apprentices who need sponsors in a given year would be one-third of the total number of apprentices, or about 175 people. Of the total number of current apprentices, there are approximately 27 with sponsors who have been licensed for less than one year. There are currently approximately 2,500 actively licensed opticians in Florida. In the year of formal

    hearing, 174 people have been licensed as opticians. If the proposed rule is adopted, there still would be approximately 2,300 opticians eligible to serve as sponsors if they wanted to do so. There would also be a large number of optometrists and physicians available to serve as sponsors. The rule amendment would not reduce their number at all. Since each sponsor may

    
    

    have up to two apprentices, there would be approximately 4,600 potential optician sponsors in the state of Florida.

57. There are many more slots available for apprentices currently than there are people already serving as apprentices. Adoption of the proposed rule would not change that significantly. Also, pursuant to the undisputed statistics and Mr. Jones' testimony, there already appear to be more licensed opticians than there are opticianry jobs.

58. The cases most directly on point as to when business and educational considerations create "standing" for rule challenges are, Department of Professional Regulation Board of Chiropractic v. Sherman College of Straight Chiropractic, 682 So. 2d 559 (Fla. 1st DCA 1996); Televisual Communications, Inc. v. State Department of Labor and Employment Security, 667 So. 2d 372 (Fla. 1st DCA 1995); and United States Shoe Corporation, et al. v. Department of Professional Regulation, Board of Opticianry,

    578 So. 2d 376 (Fla. 1st DCA 1991). None of them is persuasive that a corporation which employs opticians who often act as

    sponsors and apprentice opticians has a substantially affected interest unless it can demonstrate more than speculation as to economic impact. Indeed, each of those cases dealt with rules which the courts described as "devastating" or otherwise so detrimental to the Petitioner corporation's legitimate business interests as to render those interests "more immutable than" any student's, apprentice's, or licensee's interest. That is not the case here.

    
    

59. In Department of Professional Regulation Board of Chiropractic v. Sherman College of Straight Chiropractic, supra,a college which brought an action challenging the Chiropractic Board's rule amendments which, in effect, reduced college enrollment to a single student out of 132 students and thereby depleted the college of virtually all tuition and future alumnae contributions, was determined to have standing to challenge the rule.

60. In the Televisual Communications, Inc. case, the Court held that the rule involved did, in fact, regulate the industry that provides the medium for education of health care providers and had the collateral effect of regulating a producer of continuing education films. Upon considerable specific dollar amount evidence of actual financial loss, the court found the film producer had established beyond mere speculation that it would sustain injury in fact within the zone of interest to be

    regulated or protected.

    
    

61. In the United States Shoe Corporation case, the same Petitioner as herein challenged another rule addressed to the opticianry apprentice program. Petitioner was found by the then- hearing officer below to have "standing" and the "standing" issue was not addressed, as such, in the District Court's opinion. However, the case still is instructive of the type of injury "in fact" and the "zone of interest" that Petitioners must establish in rule challenges. Therein, the proposed rule change would have required at least some alteration of the physical arrangement at

    
    

    some of Petitioner's retail establishments if the apprenticeship programs were to be continued in their business.

62. None of the foregoing cases is persuasive that a retail corporation which merely employs opticians who often act as sponsors and apprentice opticians has standing without showing something more than speculation as to financial impact.

63. In the instant case, there is only speculation that Lenscrafters will lose apprentice employees, no calculations of monetary loss, and only a "parade of imaginary horribles" about having to adjust some work hours in a few stores. Therefore, Lenscrafters has not demonstrated a recognized right of sufficient immediacy and reality to support their standing.

64. In real time, the present case involves the possible rearrangement of the employment hours of three to six apprentices

    assigned to Lenscrafters' vaguely identified three sponsors who have less than one year of practice. In futuro, it may be speculated that some of Lenscrafters' 25 other new licensees, of whom Petitioner Gayoso is one, may simultaneously both want to be a sponsor and be asked to be a sponsor and because of the rule amendment they could not be a sponsor. If all of these possibilities dovetail, then Lenscrafters might have to adjust some employment hours.

65. Lenscrafters, which does not urge sponsorship, does not provide incentives for sponsorship, and has not shown it will lose more than three existing sponsors, if that, has not demonstrated that it has or will suffer substantial economic

    
    

    impact as a result of the proposed rule amendment. Therefore, Lenscrafters is without standing herein.

66. Petitioner Sanjiv Matta has been a licensed optician in Florida for more than one year and is regulated by the Board, but the new rule would not affect him directly, and his position as chief trainer and recruiter for Lenscrafters does not provide him with standing in light of Lenscrafters' lack of standing.

67. Intervenor Odette Gayoso has been a licensed optician in Florida for less than one year and is regulated by the Board. The new rule would affect her directly if she had an apprentice. Not only does she not have an apprentice, the chances that she will have one within her first year of practice are purely

    speculative. Her belief in her teaching abilities and her hope of satisfaction from teaching are not within any zone of substantially protected interest. Accordingly, she does not have standing. Moreover, Ms. Gayoso, who did not file her own rule challenge within the initial window to challenge the rule, cannot maintain this action in her own right once Petitioners are determined to be without standing. See, State of Florida, Department of Health and Rehabilitative Services v. Alice P., 367 So. 2d 1045 (1st DCA 1979).

68. Having determined that the Petitioners are without substantial interest, it is unnecessary to address any of the other issues raised.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that the Amended Petition is dismissed. DONE AND ORDERED this 21st day of October, 1997, in

Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1997.

COPIES FURNISHED:

Ronald F. Labasky, Esquire SKELDING, LABASKY, CORRY, EASTMAN,

HAUSER, JOLLY & METZ

Post Office Box 669 Tallahassee, Florida 32302

Monica Felder, Esquire Department of Legal Affairs The Capitol

Tallahassee, Florida 32399-1050

R. Bruce McKibben, Jr., Esquire HOLLAND & KNIGHT

Post Office Drawer 810 Tallahassee, Florida 32302

Richard T. Farrell, Secretary Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lucy Gee, Executive Director Board of Opticianry Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Carroll Webb, Executive Director Administrative Procedure Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code The Elliott Building Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO APPEAL

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes.

Docket for Case No: 97-001098RP

Orders for Case No: 97-001098RP