Findings Of Fact Tommy J. Dorsey is licensed as a dentist by the Petitioner and was so licensed at all times relevant hereto. During the period August-September 1978 to June-July 1979 Priscilla Mae Young was employed by Respondent as a dental assistant. Miss Young worked part- time for Respondent while doing her internship at Southern College and, upon graduation as a dental assistant, she worked full time for Respondent until she was fired in July 1979. Miss Young was not licensed as a dental hygienist or otherwise by the Petitioner during the time she worked for Respondent. During most of the time Miss Young worked for Respondent, Respondent also employed Errol A. Cherry, a licensed dentist, on a part-time basis (two and one-half days per week). While Dr. Cherry worked for Respondent, he dated Miss Young occasionally but they split up before Miss Young departed Respondent's employ in July 1979. Miss Young testified that she and the other unlicensed assistants took all impressions for dentures and partial dentures during the time she was employed by Respondent. She also testified she performed other services for Respondent, such as removing sutures, signing prescriptions, and taking and developing X-rays, all with Respondent's knowledge and consent and as part of her duties. Evidence respecting these services is disregarded as not encompassed within the Administrative Complaint. Miss Young also testified she discussed these unauthorized functions she was performing with Dr. Cherry and, finally, with Respondent. When she refused to come to work on 5 July 1980, after being denied permission to take that day off by Respondent, Miss Young was fired. Dr. Cherry testified that he never saw Miss Young take impressions, never heard Respondent direct her to do so, or talk to her about performing these services. Respondent's wife, Virgie Dorsey, is a licensed dental hygienist who works in the office primarily as a receptionist. She testified she never saw Miss Young take final dental impressions but believes that on occasion Respondent allowed his assistants to take study impressions. Respondent testified that he never permitted unlicensed personnel to take final impressions or sign his name to prescriptions. He dictated the description of the work desired on these lab prescriptions for the assistant to write down, then he would sign the prescription. Respondent occasionally allowed his assistants to take study impressions. Respondent described Miss Young as very aggressive and one he had to reprimand on three occasions, two of these occasions for signing prescriptions. When she asked for 5 July 1980 off, Respondent told her if she did not come to work that day she would be dismissed. Respondent testified he was relieved to have this excuse to fire Miss Young. Miss Young is a credible witness. On the other hand, the testimony of Respondent and his two other assistants is also credible.
The Issue The issue was whether Dr. Camejo should be disciplined for violation of Section 458.331(1), Florida Statutes, by aiding an unlicensed person to practice medicine, and by delegating professional responsibilities to a person Dr. Camejo knew was not qualified by training, experience or licensure to perform.
Findings Of Fact Dr. Camejo is licensed as a physician holding license ME0036005. In 1985 Dr. Camejo practiced medicine at the Seaport Medical Center at 218 Northeast 5th Street, Miami, Florida. The center was operated by a corporation, Seaport Medical Center, Inc. Dr. Camejo and Francisco Orlando Vega were equal shareholders in the corporation. Dr. Camejo sold the Seaport Medical Center. He then worked part time at the Land and Sea Medical Center, Inc. at 1199 West Flagler Street, Miami, Florida. Land and Sea Medical Center was also a corporation. Dr. Camejo had no equity in the Land and Sea Medical Center, Inc. It was owned by Francisco Orlando Vega and Margarita Sarria. Vega acted as administrator of the clinic, and handled paperwork for reimbursement from Medicare, Medicaid and insurers. Francisco O. Vega is not licensed to practice medicine in the State of Florida. He received a doctoral degree in Biological Sciences from Central University of Las Villas, Cuba in 1964. This degree is not, however, the equivalent of a doctoral degree in the American university system. His Cuban degree would qualify him to be addressed with the honorific Doctor in Latin culture. Based upon his background, Mr. Vega obtained a license in Florida as a laboratory technician which qualifies him to work in a laboratory and to draw blood for testing. Vega never attended or graduated from any medical school and does not hold a degree as a doctor of medicine. The Department introduced a plethora of evidence that Vega has held himself out, in various circumstances, as a medical doctor. For example, Vega was listed in the white pages of the telephone directory as Francisco O. Vega, M.D. Vega's application for a mortgage loan had attached to it tax returns for 1981 and 1982 in which he listed his occupation as medical doctor. Vega applied to take the examination given by the Educational Commission for Foreign Medical Graduates as Dr. Francisco Orlando Vega Cintra in 1983. In 1985 or 1986 Vega applied for licensure as a medical doctor and represented that he had an M.D. degree. Vega's credit cards and motor vehicle registration listed him as an M.D. Although Vega has, at times in the past, used Camejo's address as his mailing address, it has not been shown that Camejo knew that Vega was misrepresenting himself as an M.D. In investigating a complaint about Vega pretending to be a medical doctor, an investigator for the Department of Professional Regulation, Carlos Ramirez, went to the address listed for Francisco O. Vega, M.D., in the phone book. This was the Seaport Medical Center. When Ramirez went there, the building had been vandalized. It was not then being operated as a clinic. Ramirez then went to the Land and Sea Medical Center on June 17, 1985. While there at about 11:00 a.m., three individuals who appeared to be Haitian entered the office and remained inside for about 15 to 20 minutes. At about noon, Ramirez found Vega there alone. Ramirez asked for Dr. Camejo and was told that Camejo was not there but that Vega was a doctor. Vega asked if he could help Ramirez. Ramirez said that he was interested in either buying or leasing the vacant (vandalized) offices of the Seaport Medical Center. Vega said the location was vacant but "they" did not own that building; it was owned by the bank which was turning the area into a parking lot because an elevated public transportation system had been built over the property. While with Vega on that occasion, Ramirez did not attempt to have Vega practice medicine because of the lack of any police backup. After leaving the Land and Sea Medical Center, Ramirez contacted officers at the Dade County State Attorney's Office to assist in the investigation. That office agreed to place a body transmitter on Ramirez to monitor a visit to the Land and Sea Medical Center and to provide backup. Ramirez also conducted surveillance on the Land and Sea Medical Center to determine its hours of operation and found that it appeared to open at about 11:00 a.m. Dr. Camejo only entered the clinic once during the six or seven times that Ramirez watched it for brief periods. On September 23, 1985, Ramirez saw Dr. Camejo enter the clinic. Vega then came in and thereafter Dr. Camejo left. At that time Ramirez sought the assistance of the State Attorney's Office. A body transmitter was placed on Ramirez and officers accompanied him to the Land and Sea Medical Center, Inc. Ramirez first went to a waiting area and spoke to a woman who was functioning as a receptionist, Maria Vargas. Vargas was also a patient of Dr. Camejo who occasionally worked at the center cleaning because she was unable to pay for medical services. Ramirez asked to see "the doctor." He was then invited into offices off a central hallway in the interior of the building and was met in the examining room by Vega. Ramirez told Vega that he had a sore throat and a cough and had been taking Vicks 44 and Nyquil. Vega asked Ramirez where the pain was in his throat, when it had begun and whether Ramirez had lost weight. When asked if he was a doctor, Vega gave the oblique but misleading reply, "Well, I am one of them." After listening to the tape of the meeting in the Land and Sea Medical Center between Vega and Investigator Ramirez, it is difficult to believe that Ramirez thought Vega gave him a genuine medical evaluation due to the hyperbole in Vega's comments, such as that Ramirez' throat looked "really bad" and suggesting that Ramirez had AIDS and joking about it with Vargas. While Ramirez was in the room, Vega drew an injection of Penicillin with Procaine and asked if Raminez was allergic to Penicillin. At that point, based on a code that had been worked out with the State Attorney's Office, the agents for the State's attorney entered and arrested Vega for practicing medicine without a license. Vega had actually been drawing the Penicillin on Dr. Camejo's order for Vargas. Camejo was to administer the injection when he returned to the clinic. While Vega was being arrested, a lady entered the clinic with two children and asked for Dr. Vega. The "receptionist" Vargas motioned to then to be silent and pointed to Investigator Ramirez. The lady then said that she had really come to see Dr. Camejo and left. One of the children with the lady said the person who was treating "them" was "Dr. Vega." After Vega was taken from the Land and Sea Medical Center, Maria Vargas provided from the Center's records documents which appeared to be records of Francisco Orlando Vega Cintra from the Autonomous University of Santo Domingo. Vega asked Vargas to contact Dr. Camejo about the arrest. While Ramirez was at the Land and Sea Medical Center, Inc., Dr. Camejo was not there. As Vega requested, Ms. Vargas did contact Dr. Camejo's answering service to tell him that Vega had been arrested. Vega ultimately pled nolo contendere to charges of practicing medicine without a license. Financial records of the Seaport Medical Center (the facility in which Camejo and Vega had joint interests) showed checks drawn on its account were signed by Jose Pio Camejo, M.D. and by Vega as "Dr. Francisco O. Vega." While there is convincing evidence that Francisco Vega is a person who wishes to impress mortgage bankers and perhaps waiters to whom he gives credit cards with the pretense of being a medical doctor, there is no direct evidence that Dr. Camejo knew about Vega's misrepresentations. More importantly, the general evidence of misrepresentations presented was from contexts in which misrepresentations were irrelevant, for they did not involve the practice of medicine. Vega's actions with Ramirez occurred because Vega recognized him from the prior meeting when Ramirez had asked about renting the Seaport Medical Center property, hence the exaggerated reaction to Ramirez' nonexistent medical symptoms and the bogus AIDS diagnosis, accompanied by Vega's joking with the receptionist about it in the presence of Ramirez. Inspector Ramirez should have known, by that point, that Vega had turned the tables on him because Vega knew that Ramirez was snooping around for some reason, not looking for medical assistance. The joke was ultimately on Vega who has been prosecuted for his actions, but this in no way implicates Dr. Camejo. The record does not establish, at the level of clear and convincing evidence, that Dr. Camejo knew about the unauthorized practice of medicine by Francisco Vega.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint against Dr. Jose Pio Camejo be DISMISSED. DONE AND ORDERED this 16th day of April, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative bearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0845 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 1. Generally adopted in Finding of Fact 2. There is no proof that Dr. Camejo purchased, or ever had any ownership, in the Land and Sea Medical Center, Inc. Covered in Findings of Fact 3 and 4. Covered in Finding of Fact 4. Covered in Finding of Fact 5. Covered in Finding of Fact 6. Covered in Findings of Fact 6 and 7. To the extent necessary, covered in Finding of Fact 6. Some of the proposed facts are rejected as cumulative to the finding that the building had been vandalized. Generally rejected as unnecessary. Covered in Finding of Fact 7. Covered in Finding of Fact 7. Covered in Finding of Fact 8. To the extent necessary, covered in Finding of Fact 9. To the extent necessary, covered in Finding of Fact 9. Covered in Finding of Fact 10. Covered in Finding of Fact 11. To the extent necessary, covered in Finding of Fact 11. To the extent necessary, covered in Finding of Fact 12. To the extent necessary, covered in Finding of Fact 12. Covered in Finding of Fact 13. Covered in Finding of Fact 13. Covered in Finding of Fact 14. To the extent necessary, covered in Finding of Fact 14. To the extent necessary, covered in Finding of Fact 14. Rejected as cumulative to the findings made in Finding of Fact 5. Covered in Finding of Fact 15. Covered in Finding of Fact 15. Covered in Findings of Fact 15 and 16. Rejected for the reasons stated in Finding of Fact 19. Covered in Finding of Fact 16. Covered in Finding of Fact 17. 33(a). Rejected as conclusions, not findings of fact. 33(b). Rejected for the reasons stated in the Conclusions of Law. 33(c). Rejected because this is not an action for perjury against Dr. Camejo and is therefore irrelevant. Rulings on Proposed Findings of Fact Submitted by Respondent Sentence 1 covered in Finding of Fact 1. The remainder rejected as irrelevant. Rejected as a repetition of the pleadings, not a finding of fact. Sentences 1 and 2 covered in Findings of Fact 6 and 8. The remainder covered in Findings of Fact 11-15. Sentence 1 covered in Finding of Fact 2. Sentence 2 covered in Finding of Fact 2. Sentence 3 rejected as unnecessary. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Manuel Gonzalez, Jr., Esquire Ocean Bank Building, Suite 604 780 Northwest 42 Avenue Miami, Florida 33126 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue At issue is whether Respondent materially failed to follow applicable ruling making procedures required by Section 120.54(2)(a), Florida Statutes, with regard to promulgation of proposed Rule 21P-16.002, Florida Administrative Code, relating toqualifications of sponsors for apprentice opticians; whether the proposed rule is an invalid exercise of delegated authority by Respondent; and whether Petitioners are parties substantially affected by the proposed rule.
Findings Of Fact Respondent is the state agency responsible for regulation of an apprenticeship program for candidates desiring licensure as opticians in the State of Florida. The apprenticeship program provides an alternate route to qualification to take the examination for licensure as an optician. Candidates may also qualify for examination by receipt of an associate degree in opticianry from an accredited educational institution or previous practice and licensure in other jurisdictions. Candidates electing to pursue licensure examination through the apprenticeship program as currently established must comply with provisions of Rule 21P-16.002, Florida Administrative Code. The current version of Rule 21P-16.002, Florida Administrative Code, states: 21P-16.002 Qualifications for Apprentices and Sponsors. Apprentices and sponsors for apprenticeship programs must meet the following qualifications: An apprentice must be at least 17 years old at the date of application; must submit a complete application for apprenticeship along with proof of having obtained a qualified sponsor; and must submit the registration fee required in Rule 21P-11.013. A sponsor must be an optician, 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 21P-10.007 on the premises of any establishment in which apprentices are trained. Proposed Rule 21P-16.002, makes no changes to the existing sponsorship requirements found in paragraphs (1) and (2) of the present rule, but adds a new paragraph (3) which specifies the following: (3) No optician, physician or optometrist may serve as a sponsor unless he actually dispenses eyewear and maintains the required equipment on the same premises where the apprentice works. For example, an optician, physician or optometrist whose premises and equipment are distinct from the intended apprentice's work area cannot serve as a sponsor, even though the optician's, physician's or optometrist's premises are within the same office area or building. The proposed rule seeks to implement Section 484.007(1)(d)4., Florida Statutes, which provides an applicant may qualify to take the state opticianry licensure examination following completion of a three year apprenticeship "under the supervision of an optician, a physician, or an optometrist licensed under the laws of this state." Through promulgation of the new rule, Respondent seeks to correct a perceived deficiency in the degree of supervision provided by some sponsors to their apprentice opticians. The new proposed rule seeks to correct such deficiency through the prohibition of separate or "distinct" work areas for sponsor and apprentice; the requirement that the sponsor "dispense eyewear"; and the requirement for the sponsor to "maintain the equipment" used by the apprentice on the premises where both apprentice and sponsor work. Petitioners are corporate entities licensed to do business in the State of Florida. Petitioners operate various retail optical establishments engaged in providing opticianry services. While not licensed to perform opticianry services, Petitioners employ opticians and apprentice opticians for that purpose. Petitioners also have contractual relationships with licensed optometrists for the provision of optometric services at Petitioners' retail establishments. The employed opticians and contracted optometrists often act as sponsors for apprentice opticians employed in Petitioners' retail establishments. Generally, Petitioners' retail establishments haveseparated areas for optometry services, dispensing of eye wear and a laboratory for the preparation of lenses. In the various establishments, these areas are separated from each other by a permanent wall constructed of either glass or other solid, opaque substance. Two to four licensed opticians are employed in each of Petitioners' retail establishments. Each of these individual opticians, or a licensed optometrist under contract, may sponsor an apprentice optician employed by Petitioners. Often the sponsoring professional is otherwise occupied in these establishments and the apprentice, who is also generally an employee, may be required to perform certain functions without direct supervision by the sponsor. The proposed rule's requirement that a sponsor actually "dispense eyewear" results from Respondent's position that a sponsor should actually be performing that task in order to properly train an apprentice in the performance of that procedure. The proposed rule's requirement that a sponsor "maintains the required equipment on the same premises where the apprentice works" dictates that a sponsor must own the equipment used by the apprentice or otherwise be responsible for the provision of that equipment. Such a requirement may effectively prohibit opticians and optometrists employed by Petitioner from serving as sponsors where those employees do not own and are not otherwise responsible for providing, generally, the "required equipment" on the premises of Petitioners' various establishments. Petitioners argue that such de facto denial of sponsorship opportunities to opticians, optomertrists and physicians employed by them contravenes the statutory provision of Section 484.007(1)(d)4, Florida Statutes, that an apprenticeship be completed under the supervision of "an optician, a physician, or optomertrist licensed under the laws of this state." Such an argument is not credited in the absence of expressed legislative intent to grant sponsorship status to any of the licensed professionals denominated in the statute. Specifically, it is found that the referenced statutory provision sets a minimum requirement for sponsorship, as opposed to a limitation to establishment of further qualifications. Respondent's economic impact statement was prepared by counsel. Respondent's position, as expressed through testimony of its executive director, is that the proposed rule has no discernible direct adverse economic impact, although testimony presented by Petitioners supports the finding that the proposed rule change shall require at least some alteration of the physical arrangement at some of Petitioners' retail establishments in the event that Petitioners desire to continue present apprentice programs in their businesses.
Findings Of Fact Respondent, Antonio V. Mallo, is a certified general contractor in Florida and has been issued license number CGC004868, issued as an individual. (Exhibit 1, TR 21.) During times material hereto, Respondent was a certified general contractor in Florida practicing under the subject reference license as an individual. On October 26, 1984, Robert Golden contracted with Magic Eye Remodeling for the construction of an addition to his home situated at 19701 Northeast 12th Court, North Miami, Florida for the sum of $36,000. The contract price included the cost for labor and materials for a "turn key" job. (Testimony of Robert Golden and Jose Garcia, TR 25, 110, Exhibit 3 and TR 24.) As stated, the contract called for the construction of the entire project including air conditioning, electrical work, tile and bathroom fixtures. (Testimony of Jose Garcia, Exhibit 3, TR 112.) Magic Eye Remodelers was not licensed to perform contracting in Florida. Luis Valido, president of Magic Eye, and Jose Garcia, an employee of Magic Eye, negotiated and signed the contract with Magic Eye and Golden. (Testimony of Garcia and Golden, TR 21, 22 and 112, Exhibits 1 and 2.) Although Valido and Garcia had discussions with Respondent at the time Magic Eye was negotiating a contract with Golden, Respondent was not signatory to the Golden-Magic Eye Contract. (Testimony of Robert Golden, TR 34.) On November 6, 1984, Respondent obtained building permit number 84-01- 123-3 from Metropolitan-Dade County for the subject work at the Golden residence. (Exhibit 4, TR 28.) Construction commenced at the Golden residence and progressed slowly until approximately April 4, 1985 when owner Golden observed Magic Eye (its employees) preparing to leave the job. During that time, Garcia informed Golden that they had misused the construction funds advanced and could not finish the project. During that discussion, Magic Eye offered to complete the job if Golden would pay for the necessary supplies. Golden agreed to pay for the supplies. (Testimony of Robert Golden, TR 32.) During mid April, 1985, Golden contacted Michael O'Connor, Dade County code enforcement officer about his problems with Magic Eye and Respondent. O'Connor informed Golden to contact the contractor who obtained the permit, i.e., Respondent. Subsequent to that conversation and prior to June 4, 1985, Respondent was contacted by Golden. He visited Golden's home and worked on the construction project with Luis Valido. (Testimony of Robert Golden, TR 38.) This was the first contact between Golden and Respondent and the first time Respondent visited the construction site. In this regard, Golden was employed in a capacity whereby he did work early morning and late evening hours and spent all of his daytime hours on the construction site. (Testimony of Robert Golden and Jose Garcia, TR 34 and 125.) On or about June 3, 1985, all work at the project ceased and the Respondent informed Golden that Valido did not want to work there anymore since he wasn't making any money. (Testimony of Golden) Golden thereafter reported the problem to Michael O'Connor and Bob Wolfe, an investigator with the Department of Professional Regulation. O'Connor thereafter informed Respondent that unless he could produce a contract between himself and Golden, criminal charges would be filed by the State's attorney's office. (Testimony of Mike O'Connor, TR 166.) While at Michael O'Connor's office to sign the complaint with Petitioner, Golden was contacted by Respondent who advised that he would contract to complete the project. (Testimony of Golden, TR 40.) On or about June 12, 1985, Golden and Respondent negotiated a contract to complete the work for the sum of $39,882 of which a credit for $38,383 was given for work already performed by Magic Eye. As contracted, Respondent would receive $1500, fifty percent of which would be paid at the beginning of the tiling work and the remainder at completion of the project. Respondent performed plumbing and metal overhang work at the site after the contract was signed. (Testimony of Robert Golden, TR 41, 48 and Exhibit 6.) On July 10, 1985, Respondent notified Golden he was leaving the job because Golden failed to sign a change order to the contract and make payment as per the contract of June 12, 1985. At that time, or subsequent thereto, Respondent had not submitted a change order to the contract to Golden. Additionally, no payment was due Respondent under the June 12, 1985 contract for the tile was not ordered until September, 1985. (Testimony of Robert Golden, TR 54 and Bob Wolfe, TR 99, Exhibit 8.) When Respondent left the Golden project, the construction was sixty percent completed. Golden completed the project under an owner-builder permit. The total cost for the project was $62,804. (TR 65, 66 and Exhibit 11.) During the hearing, Respondent raised a question as to the validity of Petitioner's Exhibit number 6, claiming in essence that it had been tampered with by Golden. An examination of all the evidence introduced herein reveals that the agreement (contract) between Respondent and Golden (Petitioner's Exhibit 6) was valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Respondent be assessed an administrative fine of $1,000. It is further recommended that Respondent's certified general contractor's license number CGC004868 be suspended for a period of two years. Provided however that Respondent make restitution to Robert Golden in the amount of $5,000, it is then recommended that the suspension be abated with Respondent's suspension reverting to a like term of probation. RECOMMENDED this 19th day of August, 1986, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 86-1458 Petitioner's Proposed Recommended Order Paragraph 22. Incorporated as modified. COPIES FURNISHED: Ray Shope, Esquire 130 North Monroe Street Department of Professional Regulation Tallahassee, Florida 32301 Mr. Antonio Mallo 1256 San Miguel Avenue Coral Gables, Florida 33134 Mr. Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Slocum Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Patrick Gallagher was a licensed optician in Florida, having been issued license number D00001006. From approximately March of 1979 until December of 1981, except for the months of June and July, 1981, respondent was employed as a licensed optician for Union Optical in Tampa, Florida. Prior to May, 1981, respondent worked full time. When he returned to Union Optical in late July or August, 1981, he worked only three days a week. Another optician, Bobby Prohenza, was employed at Union Optical on a part-time basis in June and July of 1981. Rose Ochs, the manager and/or supervisor of Union Optical in Tampa is not now, and has never been, licensed as an optician in the State of Florida. Having received a complaint from Bobbie Prohenza against Union Optical and Rose Ochs, petitioner's investigator, Wayne Lopez, went to Union Optical on December 3, 1981, to investigate unlicensed opticianry activities. The only employee on the premises was Rose Ochs. While on the premises, Mr. Lopez observed Ms. Ochs handing a glasses case and glasses to a customer. Investigator Lopez, identifying himself to Ms. Ochs as a long , distance truck driver asked her if she could duplicate his existing prescription "glasses"" into "sunglasses." When Ms. Ochs refused to do so without a written prescription, Lopez told her he would obtain one. The investigator obtained a duplicate prescription from his personal physician and returned to Union Optical a few hours later. He handed the written prescription to Ms. Ochs and she took his eyeglasses and put them on a lensometer to see if the two prescriptions were the same. Mr. Lopez and Ms. Ochs then sat at a table across from one another and she began taking measurements with a small ruler across the bridge of his nose. She then wrote some numbers on a piece of paper and attached that paper to the prescription. Investigator Lopez, attempted to leave a deposit with Ms. Ochs, but was told he could pay for the glasses when he returned some weeks later. When Mr. Lopez departed from the Union Optical premises, he observed a Florida opticianry license hanging over the entrance door, which license was issued to respondent Patrick Gallagher. After learning of respondent's address, Mr. Lopez went to respondent's residence on December 3rd, identified himself as an investigator with the Department of Professional Regulation and told respondent that he wanted to discuss with him the operation of Union Optical. Respondent worked at Union Optical 24 hours a week on Mondays, Tuesdays and Fridays. While he knew the store was open on his days off, respondent had been assured that opticianry work would not be performed on those days. It was the respondent's understanding that when he was not on the premises, the only business which would be transacted was the selling of non-prescription items, glass care items and cleaning solutions. Respondent was aware that Rose Ochs would receive written prescriptions in his absence and would, on occasion, transfer or copy the prescriptions onto an invoice which went to an independent laboratory. He was also aware that Ms. Ochs occasionally assisted customers in the selection of a frame for their lenses and quoted prices to customers in his absence. Respondent did not suspect that Ms. Ochs took pupillary distance measurements or used the lensometer when he was not on the premises. He does not believe that Ms. Ochs has sufficient knowledge or experience to properly operate the lensometer. Respondent was not present at Union Optical on December 3, 1981, when Investigator Lopez was on the premises. When Mr. Lopez described to him the events which had transpired at Union Optical on that date, some one-half hour after their occurrence, respondent was surprised to hear that Ms. Ochs had performed the functions of operating the lensometer and taking pupillary distances. Respondent had no managerial control over the premises of Union Optical or Rose Ochs.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint charging respondent with a violation of Section 484.014(1)(n), Florida Statutes, be DISMISSED. Respectfully submitted and entered this 16th day of May, 1983, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Paul W. Lambert, Esquire Slepin, Slepin, Lambert & Waas 1115 East Park Avenue Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Opticianry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues are as follows: (a) whether a proposed amendment to Florida Administrative Code Rule 64B14-3.001(12) constitutes an invalid exercise of delegated legislative authority in violation of Sections 120.52(8)(b) and/or 120.52(8)(c), Florida Statutes (2005); and (b) whether Petitioners are entitled to attorneys' fees pursuant to Section 120.595(2), Florida Statutes (2005).
Findings Of Fact This matter arises from Respondent's proposed amendment (the proposed rule) to Florida Administrative Code Rule 64B14- 3.001(12), which defines the term "direct supervision" for purposes of Part XIV, Chapter 468, Florida Statutes (the O&P practice act.) Respondent advertised the text of the proposed rule in Volume 31, Number 35, September 2, 2005, of the Florida Administrative Weekly. The proposed rule states as follows in relevant part: (12) Direct Supervision means: supervision while the qualified supervisor is on the premises. The licensed orthotist, prosthetist, orthotist/prosthetist, or pedorthist will provide a physical evaluation of each patient's orthotic and or prosthetic needs and may delegate appropriate duties to support personnel. However, the licensed practitioner shall physically evaluate the effectiveness, appropriateness and fit of all devices within the scope of the licensed practitioner's licensure practice requirements, including those repaired devices in which the repairs affect the fit, physical structure or biomechanical function of the device, on every patient, prior to patient use of the device; For the purpose of replacement of worn or broken components which do not in any way alter the fit, physical structure or biomechanical functioning of the existing device, direct supervision of support personnel providing repairs to orthoses or prostheses means the aforementioned repair must be approved by the appropriately licensed practitioner prior to beginning of repairs. The responsible licensed practitioner must at all times be accessible by two way communication, enabling the supervisor to respond to questions relating to the repair. * * * Specific Authority 468.802, F.S. Law Implemented 468.802, 468.803, 468.807, 468.808, 468.809, F.S. History--New 10-21- 99, Amended 2-19-04, 5-5-04. Respondent conducted a final public hearing regarding the proposed rule on November 18, 2005. Petitioners filed a petition challenging the proposed rule within 10 days after the final public hearing. Petitioners would be substantially affected by the proposed rule. The parties stipulate to the citation of official notices and other matters published in Florida Administrative Weekly.
