The Issue Whether Respondent Hagen violated Chapter 484, Florida Statutes, and Rule 21P-4.01, Florida Administrative Code, by allowing his license to be used by an unlicensed person to engage in the occupation of dispensing optician without his presence and direct supervision. Whether the license of Respondent Hagen should be revoked, annulled, withdrawn or suspended for violation of Chapter 484, Florida Statutes, and Rule 21P-4.01, Florida Administrative Code.
Findings Of Fact Respondent Wayne L. Hagen, the licensed optician in the Pearl Vision Center, Tyson Square Mall, St. Petersburg, Florida, holds License No. 180, a license in good standing, issued by the Florida Board of Dispensing Opticians pursuant to Chapter 484, Florida Statutes. The Board in formal meeting on March 28, 1975, directed Mr. Allen R. Smith, Jr., a coordinator for the Department of Professional and Occupational Regulations, Division of Occupations, to file the subject Administrative Complaint against Respondent Hagen. The charge in the Complaint is the violation of Rule 21P-4.01, Florida Administrative Code, in that an unlicensed person engaged in "dispensing optical goods while Mr. Hagen was absence for the premises". Respondent received a copy of the Administrative Complaint, Explanation and Election of Rights containing notice that said Complaint was mailed the 29th day of April, 1975. Respondent had no notice by certified mail or actual notice of these proceedings or an opportunity to show that he had complied with all lawful requirement for the retention of his license, prior to the receipt of the Administrative Complaint, Explanation and Election of Rights. Petitioner admitted that no notice prior to the mailing of the Administrative Complaint, Explanation and Election of Rights was sent to Respondent giving notice of the facts or conduct which are delineated in the Administrative Complaint, Explanation and Election of Rights. Petitioner admitted that prior to the initiation of the Administrative Procedures Act in former proceedings the Board had given notice of receipt of Complaints against licensees. Respondent Hagen had posted in the office of Pearl Vision Center signs indicating that no fittings or adjustments would be made while Respondent was off duty. The unlicensed employee of Respondent, Lynda Vickers, performed acts in violation of the Rules and Regulations of the Board without the knowledge or permission of Respondent and was discharged prior to the filing of the Complaint against Respondent. Respondent did not allow his license to be used by an unlicensed person to engage in the trade or occupation of dispensing optician without his presense and direct supervision. Respondent through his attorney moved to dismiss the Complaint on the grounds that the Board of Dispensing Opticians failed to give him prior notice and and an opportunity to rectify in accordance with the requirements of the licensing statute, Section 120.60(4), Florida Statutes.
The Issue 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: Do Petitioners have standing to bring this rule challenge? 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? 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) Are Petitioners entitled to attorney's fees, pursuant to Section 120.595(2), Florida Statutes?
Findings Of Fact 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. 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: No change. 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. 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. 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. 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. 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. 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. 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. Lenscrafters has 64 stores in Florida. Each store is staffed by opticians, but there is often an independent optometrist next door. Lenscrafters employs approximately 200 opticians in Florida, with an average of three opticians working in each of its stores. 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. 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. Lenscrafters provides the optometric equipment used by sponsors and apprentices in its employ. 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. 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. 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. Lenscrafters currently has 66 apprentices in its employ in Florida. 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. 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. 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. 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. 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. 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. 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. 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. Ms. Gayoso feels she is qualified to sponsor an apprentice and that she would derive satisfaction from teaching one. The parties' Amended Prehearing Stipulation stipulated that POF had standing to intervene. POF put on no evidence of standing. 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. 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. Mr. Sam Jones perceived no shortage of licensed opticians, only a shortage of licensed opticians he would care to hire in his establishment. 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. 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. Of 544 current apprentices in Florida, only 27 currently have sponsors of less than one year licensure. 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. 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. Florida has two junior colleges with an Opticianry AA degree program. These colleges graduate approximately 60 opticians per year. 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. 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. 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. 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. Board members heard reports from staff and investigators on reasons more disciplinary cases were not prosecuted. 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." 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. The Board viewed the one-year rule amendment as a more conservative step than requiring three years of licensure for sponsorship. All witnesses agreed that an experienced optician knows more about the practice of opticianry than a newly licensed optician. Lenscrafters' witnesses contended that newly licensed opticians were more enthusiastic sponsors and more able to teach what would be required on the licensure examination. 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. 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. The new rule does not require physicians and optometrists to be licensed for one year before acting as a sponsor. 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. 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."
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 Prior to hearing, Respondent moved to dismiss the administrative complaint. This motion was granted in part and denied in part for the reasons stated in the order dated June 22, 1982. Those portions of the amended complaint asserting violation of Sections 484.03 and 484.09, Florida Statutes, were stricken by an order dated June 22, 1982, leaving only the allegation that the Respondent misrepresented material information on his application contrary to Section 484.014(1)(a), Florida Statutes. This was the only issue remaining for resolution at the hearing. Specifically, the factual dispute surrounded the representation by Respondent on his application that he had done his apprenticeship at House of Vision in South Hadley, Massachusetts, between 1973 and 1976. The Board of Opticianry asserted that the Respondent had not done his apprenticeship as he had represented. The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Respondent, Gilbert Rosenbrier, is a licensed optician under the laws of the State of Florida, holding License #DO 0001378 issued by the Board of Opticianry. On or about December 2, 1977, Respondent filed an application for admission to the licensure examination in ophthalmic dispensing with the Florida State Board of Dispensing Opticians (now Board of Opticianry). A copy of said application was received as Petitioner's Exhibit #2. Respondent's application contains a form for reporting experience in ophthalmic dispensing under a licensed optician, optometrist or physician. The Respondent completed such a form as follows: Print full name: Gilbert Rosenbrier Street Address: 7825 Red Road Miami FL Title of position held: Optician Employed in position from: Nov 1973 to August 1976 Print full name of employer: House of Vision Full address of employer: Mountain Farms Mall, So Hadley Mass Print full name of supervisor: Harry Marsh Full address of supervisor (if different from employer): Presently: 7825 Red Road, Miami Fl. 33143 Check the type of establishment or office: (applicant indicated) Ophthalmic dispensers Check the specific duties of applicant and give approximate time (in hours) engaged in each during a normal work week of approximately 40 hours: (Applicant indicated) Fitting and adjusting spectacles to human faces 15 hours; Interpreting prescriptions and verifying optical calculations 10 hours; Optical laboratory work (Manufacturing) 15 hours House of Vision was owned by Harry Marsh. Marsh sold it to Kent Whalen. Whalen worked for Marsh and House of Vision of Mountain Farms Mall in South Hadley, Massachusetts, from May of 1974, until Whalen purchased the business in late 1976. Whalen knew the Respondent as a neighbor of Marsh's but only saw the Respondent in the store on two occasions, late in 1976. Whalen stated that to the best of his knowledge Respondent was never an employee of House of Vision. The Respondent testified in his own behalf. He had become interested in opticianry in 1973 by virtue of his association with his neighbor, Marsh. At that time, Respondent had started working at House of Vision with Marsh at a time when the Respondent was supervisor of an educational consulting firm and could set his own hours. Marsh's store had to be open during the hours the mall was open, and Marsh needed the Respondent's help. In the spring of 1974, Respondent needed to spend more time with his business but still wanted to learn about opticianry. Marsh agreed to provide Respondent with optical equipment of the type used at the store, which Respondent placed in his basement, in exchange for Respondent's promise that the would invest money in a venture with Marsh at a later date. This equipment was used by Respondent to perform the shaping of lenses, assembly of frames, tinting of lenses, etc., under Marsh's supervision in the afternoons, on weekends, and during Respondent's other free time. In addition, Respondent would go to the store on weekends and help Marsh when Whalen was off. Marsh sold the store in November of 1976, and he and Respondent came to Florida, where Respondent did invest money in a joint venture with Marsh in the opticianry business. Witnesses who had known Respondent and had visited his home between 1973 and 1976, corroborated the fact that the Respondent had optical laboratory equipment in his basement during that time, had spent his spare time working with this equipment, and had made one of the witnesses a pair of glasses using frames picked out at House of Vision. Respondent did not spend his time doing a specific task while he was learning opticianry, but started with simple procedures such as tinting and assembling frames and progressed to making patterns for grinding lenses, shaping, and grinding lenses in his basement lab. He obtained his experience in fitting glasses and selling at the store prior to the spring of 1974, and after that date when he worked with Marsh on weekends. Respondent did not mention drawing a salary from Marsh but gave the impression that this time was traded to Marsh for Marsh's expertise in teaching him. The Respondent has a doctorate degree in an academic area and was engaged in academic work and consultant work for years prior to 1973.
Recommendation Having found that the statute under which the Board of Opticianry seeks to discipline the Respondent, Gilbert Rosenbrier, was passed after the alleged acts occurred upon which the complaint is based, it is recommended that the Board dismiss the amended administrative complaint and take no action. DONE and ORDERED this 3rd day of September, 1982, in Tallahassee, Florida, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1982. COPIES FURNISHED: Tina Hipple, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lionel Barnet, Esquire Miller Square 13842 Southwest 56 Street Miami, Florida 33183 H. Fred Varn, Executive Director Board of Opticianry 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether the license of Respondent should be revoked, annulled, withdrawn or suspended for allowing an unlicensed person to practice cosmetology in his salon.
Findings Of Fact An Administrative Complaint was filed on May 31, 1977 against Joel Garber charging: "That you, said JOEL GARBER on February 4, 1976 did allow an unlicensed person to practice Cosmetology in your salon at House of Glamour, Jacksonville, Florida." At the hearing the Respondent pled "no contest" but made the following statement: "There was a young man that worked in the area for some time, I think. It's been over a year and a half ago, so the exact times may not be familiar to me. But he worked there for about seven months un- licensed. He came to me and said, 'I would like to work for you.' I said, 'You get a license first.' He told me he made application for license and came to work for me, and in fact he did work and I could be mistaken, it may be on the violation notice, how long he did work, but he did in fact work for me two or three days without a license, and then at which time he went and took his exam, came back, waited until he received license, and continued to work for me. He is at this time licensed. All I can ask is I guess the Court's mercy that I did in fact violate the law, but it has since been remedied and corrected." The Respondent allowed an unlicensed person to practice in his salon for a short time.
Recommendation Send a letter of reprimand to Respondent for violating Section 477.02(7), Florida Statutes. DONE and ORDERED this 27th day of September, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire LaFace & Baggett, P.A. Post Office Box 1752 Tallahassee, Florida 32302 Joel Garber 5660 University Boulevard, West Jacksonville, Florida 32216
The Issue The issue to be resolved in this proceeding concerns whether Rule 61F8- 3.015, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority, as defined in Section 120.52(8), Florida Statutes, and whether the Petitioners have standing to challenge that rule.
Findings Of Fact Petitioner POF is a non-profit Florida corporation organized under the laws of Florida for the purpose of representing its members who are licensed opticians. Petitioner Riddlebaugh is a board-certified, licensed optician pursuant to the laws of Florida and has been so licensed since 1987. After first becoming licensed in Florida, Petitioner Riddlebaugh worked in his family's optical business in Ormond Beach, Florida. He later worked for Burdine's Optical and Omni Optical. From April 1990 to February 1994, he owned and operated an independent opticianry business in Florida and was the sole employee of that business during the entire time of its operation. The Respondent is a state agency authorized to promulgate rules and regulations concerning the practice of optometry and licensure of optometrists, by authority of Chapter 463, Florida Statutes. The Intervenor is a non-profit Florida corporation whose membership is comprised of optometrists licensed under Chapter 463, Florida Statutes, and who are authorized to practice optometry in Florida. Petitioner POF's organizational purposes are to promote, protect, and improve the professional status of persons engaged in the practice of opticianry and to encourage, establish, and maintain standards of competence, knowledge, and performance through the provision of educational programs, training, and uniform licensing of optical dispensers. Petitioner POF has seven classes of membership entitled Professional Member Class I, Professional Member Class II, Professional Non-Licensed Member, Associate Member, Affiliate Member, Student Member, and Honorary Member. Only Professional Member Class I has Florida licensed opticians as members. Any member of Petitioner POF may terminate membership upon 60 days written notice to the executive director. Members of POF who fail to pay dues and other obligations within 60 days are removed from the membership rolls. It is impossible to determine the number of members of Petitioner POF, since the membership roster can change daily, based upon resignations and terminations. Petitioner POF did not introduce its most current or any membership roll designating the members by their appropriate membership class. The 1993-94 directory and desk guide of Petitioner POF lists the members of Petitioner POF followed by a number designation in parentheses. The number designation (1), which does not indicate only Professional Member Class I membership, as defined by the Bylaws of the association, represents members who are not licensed in Florida as opticians, as well as some members who are licensed in Florida as opticians. It is impossible to determine how many members besides Riddlebaugh and Richard W. Williams are licensed in Florida as opticians, although a substantial number of the total membership are Florida licensed opticians. No preponderant evidence was offered to show that the membership of Petitioner POF was substantially affected by the challenged rule. During the six years the rule has been in effect, Petitioner POF did not gather any information to show how or if the challenged rule affected its membership even though it had challenged the rule when first promulgated, later withdrawing the challenge. The number of licensed Florida opticians has increased during the entire six-year period the challenged rule has been in effect. Petitioner Riddlebaugh is a Florida licensed optician who was licensed in 1987. He closed his optical business "Spectacles" in February 1994. He closed that business because of generally declining economic conditions in Volusia County, Florida, where he practiced, due in large part to the competitive effects on his business in that vicinity posed by physicians (ophthalmologists), who, in addition to practicing as ophthalmologists, can also practice opticianry. Additional competition was posed by optometrists, other opticians, and large optical purveying firms, such as Opti-World, Pearle Vision Express, J.C. Penney Company, Inc., Lens Crafters, Inc., and Sears Optical. Petitioner Riddlebaugh was able to obtain employment at Omni Optical from February 1989 to February 1990 during the time the challenged rule was in effect, it having taken effect in 1988. He was able to open his business in April 1990 and operate it for four years during the time the rule was in effect. Ophthalmologists and optometrists are allowed under their practice acts to employ non-licensed personnel, who can perform optician-type functions and duties under appropriate supervision, delineated in those practice acts. This poses competition to opticians situated such as Petitioner Riddlebaugh, wholly apart from perceived and purported competitive effects posed by the subject rule under challenge. Petitioners POF and Riddlebaugh simply failed to demonstrate that any deleterious competitive effects imposed on Petitioner Riddlebaugh's business, or the business of any members of Petitioner POF, were occasioned by the operative effects of the rule under challenge. Although Petitioner Riddlebaugh testified that one of the primary factors for closing his business was the competition posed by the effect of the rule, that testimony is not deemed preponderant nor credible as evidence, since Petitioner Riddlebaugh had previously given testimony by deposition that another set of rules promulgated by the Board, unrelated to the challenged rule, was the only reason for closing his business. It appears, however, that the real reason for the closing of his business was due to the combined effects of competition from various optical establishments and other optometric and ophthalmologic professionals, as well as a general economic decline in Volusia County, Florida, in the early 1990's when he was attempting to operate his business and ultimately closed it. Unlicensed persons may work for opticians doing all functions within the definition of opticianry, under appropriate supervision, as delineated in the pertinent provisions of Chapter 484, Florida Statutes, and the opticianry practice rules promulgated thereunder. Unlicensed persons working for opticians can perform such functions as selection of frames and transfer of optical devices without the optician being on the premises. Unlicensed persons can also work for ophthalmologists, performing opticianry duties. In October 1986, the Respondent, with a view toward promulgating this rule, requested that the Board of Opticianry define "fitting, adjusting, and dispensing". This was an effort by the Respondent to avoid conflicting with the legally-defined practice requirements for opticianry. The Board of Opticianry was aware of the rule promulgation effort by the Respondent, however, it never responded to the request. Because it never obtained any definitional information from the Board of Opticianry, the Respondent elected to delete the terms "dispensing" and "measuring" from its proposed rule at that time. The words "delivery of eyeglasses" were inserted. Optician, Richard E. Williams, who testified at the hearing, defined "dispensing" as being the adjustments necessary to make certain that eyeglasses properly fit a patient. Mr. Williams defined "fitting" as determining whether the glasses were set properly on an individual's face. He also defined "fitting" as making certain that pupillary distance was accurate and defined "dispensing" as fitting and adjusting. Petitioner Riddlebaugh defined "fitting" as making certain that the frames of eyeglasses were properly adjusted to the patient. According to the preponderant evidence of record, the "adjustment of frames" is not the practice of opticianry. The purpose of adjusting frames is simply to get them to set comfortably and properly on a patient's face. Adjusting may also be used to align lenses properly within the frame. The "delivery of eyeglasses" is not the practice of opticianry either, nor is the "selection of frames". Unlicensed persons can also work for ophthalmologists, performing opticianry. Petitioner Riddlebaugh testified that the challenged rule affects the integrity of his opticianry license and the viability of his practice because it allows unlicensed persons to perform opticianry functions when working for an optometrist or an ophthalmologist. His testimony is not preponderant or credible, however, since there is no limit to the number of unlicensed persons that opticians themselves can employ to perform opticianry functions under appropriate supervision, just as optometrists and ophthalmologists may employ such unlicensed personnel to perform opticianry under the appropriate supervision, as delineated in their practice act and rules. There is no meaningful distinction between the competitive effects of unlicensed persons working for an optician and those working for ophthalmologists and optometrists. Richard E. Williams, a licensed optician, testified that he had to close his office in Panama City Beach, Florida, because a "group of doctors" opened an office in competition with him. On some days, their office was only staffed by unlicensed persons. He did not indicate in his testimony whether the "group of doctors" were ophthalmologists or optometrists. His testimony also described his practice on Panama City Beach dwindling because of the effects of ophthalmologists, regulated by Chapter 458, Florida Statutes, and the rules promulgated thereunder, who were in practice in the Panama City area. The Petitioners adduced evidence of preparation and dispensing of eyeglasses by unlicensed personnel in an optometry practice and establishment, done under general, rather than direct, supervision, which were more than merely ministerial in nature. Tasks which were performed under purported authority of the challenged rule, that were more than ministerial in nature, and constituted the practice of opticianry by an unlicensed person, were shown by the testimony of Deborah L. Metz-Andrews. Ms. Andrews is not licensed in either opticianry, optometry, or ophthalmology. She was employed by the Newberry Eye Clinic in Chipley, Florida, from January 1991 to August 1992. That establishment is an optometric practice owned and operated by an optometrist and which has an optical department. It has satellite offices in Chipley, Port St. Joe, Panama City Beach, and Panama City, Florida. While employed at Newberry, Ms. Andrews was referred to as "the optician" by the optometrist, but her job title was really "optical technician". During her employment with Newberry, she neutralized glasses with the use of a lensometer, to determine the prescription on the existing glasses worn by a patient. She took prescriptions and determined what the prescription was, what kind of frame would facilitate that prescription, and performed pupillary distance measurements. She determined if a patient needed trifocals or bifocals and did all of the required measurements. She also was responsible for ordering the eyeglasses from the laboratory in Panama City. Once the glasses were made and returned to Chipley, she would place them in the lensometer to check them, and the patient would be notified that the glasses were ready to be picked up. When the patient came in to pick up the glasses, she typically performed the following duties: She fit the glasses on the patient, double- checking the segment height, if they were bifocals; fit the eyeglasses to the nose; adjusted the frame; and made sure that the pantoscopic tilt was correct. She would inquire of the patient's ability to see and if satisfied, the patient would take the eyeglass case, go to a window, pay the bill, and leave. She performed these duties, some of which fall within the practice of opticianry, without the optometrist being on the premises in direct supervision. She stated that she did not feel confident doing some of the types of duties and tasks she was performing and received no guidance from the optometrist. Mr. Williams was accepted as an expert in the practice of opticianry (excluding the field of contact lenses). He opined that the duties being performed by Ms. Andrews, purportedly pursuant to the challenged rule, constitute the practice of opticianry. Dr. John McClane is a licensed Florida optometrist. Dr. McClane's Florida office employs 10 or 11 employees, only one of whom is a licensed optician. The unlicensed personnel in his office adjust frames and perform neutralization of lenses without the lenses having been checked by a licensed optometrist before final delivery to the patient. In operating a lensometer in the neutralization process, unlicensed personnel in Dr. McClane's office also read prisms and transpose prescriptions. The glasses are not always checked by either the licensed optician or the licensed optometrist prior to final delivery to the patient by the unlicensed personnel. According to Dr. McClane's understanding of the term "ministerial", as used in the rule, an unlicensed person can perform any tasks that an optometrist orders and determines, if it is appropriate for patient care. Any delegated task, by his understanding, may be performed under general, rather than direct, supervision. He believes that "direct supervision" is a situation where the optometrist is on the premises directly supervising the work of the unlicensed person. Even if the duties, or some of them, performed by unlicensed personnel at the Newberry and McClane establishments constitute the practice of opticianry by unlicensed personnel, under the general, rather than direct, supervision of optometrists, the testimony of Ms. Andrews and Dr. McClane does not definitively indicate which of the purported opticianry duties Ms. Andrews and other unlicensed personnel performed were actually done with the optometrist away from the premises and not in direct supervision. Further, even if such unlicensed personnel were doing some task which constituted the practice of opticianry, without the direct supervision of an optometrist, there was no competent, credible evidence to show that such practices, under the aegis of the challenged rule, are so widespread or common in practice as to indicate that the language and terminology embodied in the rule is fraught with vagueness so as to cause frequent, recurring misunderstandings by optometrists in conducting their practices with the use of unlicensed personnel. Rather, these two examples offered by the Petitioners may raise simply an issue of the application of the subject rule and a question as to uniformity of its enforcement. In 1986, the legislature enacted a substantial amendment to Section 463.009, Florida Statutes, regarding supportive personnel, by allowing such unlicensed personnel to perform functions for an optometrist under either general or direct supervision. The definition of direct supervision was changed and a definition of general supervision was added in Section 463.002(6)&(7), Florida Statutes. See Chapter 86-288, Laws of Florida. Pursuant to the 1986 amendments, the Respondent began rule-making at its August 21, 1986 annual meeting and rule workshop. The resulting Rule 21Q-3.015, Florida Administrative Code, at paragraph (3), listed the tasks which unlicensed personnel could perform under general supervision as dispensing, selection of frames, measuring and adjusting eyeglasses, and instruction in the insertion, removal and care of contact lenses. On October 3, 1986, Petitioner POF filed a rule challenge to the proposed rule alleging, inter alia, that the rule allowed unlicensed persons to practice opticianry under general supervision, thus, purportedly constituting a departure from the authorizing statute. After the filing of the rule challenge, at a public hearing on October 15, 1986, the Respondent withdrew the proposed rule. During that October public hearing, a member of the Respondent was requested by the Board Chairman to attend the Opticianry Board's rules committee meeting the following day, on October 16, 1986, and to request the opticianry rule committee to develop a rule to provide a definition of "fit, adapt, adjust, and dispense". During the October 16, 1986 meeting of the rules committee of the Board of Opticianry, a member of the Board, Ms. Card, reported that the Respondent was waiting for the Board of Opticianry to define "fitting and adjusting" before the Respondent continued with its rule-making regarding support personnel. She also stated that the Respondent had a meeting scheduled for December 19, 1986. The Board of Opticianry met on November 20, 1986 and approved the minutes of the rules committee meeting of October 16, 1986, but took no action regarding promulgating rules defining the terms which the Respondent requested it to define, even though the Board of Opticianry took extensive action on rule-making on other subjects. Thereafter, at the January 22, 1987 meeting of the Respondent, after receiving no information from the Board of Opticianry regarding the definitions requested, the Respondent approved an amended version of Rule 21Q-3.015, Florida Administrative Code, changing the list of tasks in paragraph (3) to "delivery of eyeglasses, selection of frames, adjustment of frames, and instruction in insertion and removal and care of contact lenses". The tasks of "dispensing and measuring and adjusting eyeglasses", contained in the prior version of the rule, were deleted. A meeting and public hearing was again held on April 10, 1987, during which the proposed rule was addressed; and it was reported that Petitioner POF had again filed a rule challenge to Rule 21Q-3.015, Florida Administrative Code. The proposed rule was then again withdrawn. Workshops by the Respondent were thereafter held in November 1987 and on February 12, 1988 concerning Rule 21Q-3.015, Florida Administrative Code, and the rule was noticed for promulgation on April 29, 1988. Rule challenges were thereafter filed by Petitioner POF and Jack Eckerd Corporation. The Respondent then met on August 5, 1988 and changed the word "employee" to "nonlicensed, supportive personnel" in paragraph (4) of the proposed rule. The two rule challenges were then voluntarily dismissed by those petitioners, and the rule was adopted and became effective on October 23, 1988 and has been in effect since. The Board of Opticianry was well aware of the Respondent's efforts to promulgate the rule on support personnel. The Board of Opticianry never promulgated rules defining "fitting, adjusting, and dispensing" of optical devices, despite the Respondent's request. During the time period that the Respondent was considering the rule in its present form, the members of the Board of Opticianry never agreed on a definition of "dispensing".
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.
The Issue Whether Respondent violated Section 463.014, Florida Statutes, by violating Rule 64B13-3.008(15)(a), Florida Administrative Code; violated Section 463.014, Florida Statutes, by violating Rule 64B13-3.008(15)(f), Florida Administrative Code; violated Section 463.016(1)(h), Florida Statutes, by violating Rule 64B13-3.009(2)(b), Florida Administrative Code; and violated Section 463.016(1)(f), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact At all times material, Respondent was licensed to practice optometry by the State of Florida, Board of Optometry. On or about April 19, 1998, Respondent entered into a lease agreement captioned "Equipment License," with U.S. Visions, Corp., to lease space and equipment as an optometric office in the J. C. Penney retail store on Mary Esther Avenue, Mary Esther, Florida. This location also constitutes the Santa Rosa Mall. Respondent paid $100.00 monthly rent for this office space. At all times material, Respondent also maintained a separate office for the practice of optometry under the name "Coastal Vision Center" in rental space in Destin, Florida. Respondent paid $2,900.00 monthly rent for the Destin office space. Respondent practiced in both locations during 1998. Respondent practiced under a professional corporation, named Shannon Fowler, O.D., P.A. Respondent's office space at the J.C. Penney location was inside the J.C. Penney retail store. Adjacent to Respondent's office space was the "J.C. Penney Optical Center," in which an optometrist practiced, and in which eyeglasses, contact lenses, and other optical merchandise could be purchased. Respondent personally placed a sign at the entrance to his office space at the J.C. Penney location identifying himself by name, stating that an independent practice of optometry was located there, and stating that he was not affiliated with the J.C. Penney retail store. During the time he practiced at the leased office space located in the J.C. Penney store, Respondent maintained telephones listed in his name at both his office locations. The telephone number for his office in J.C. Penney was different than the telephone number for his Destin office. Only Respondent, himself, answered Respondent's telephone at the J.C. Penney location. This telephone and telephone number were separate and had a different telephone number from the telephones for the J.C. Penney Optical Center. The receptionist at the J.C. Penney Optical Center occasionally made appointments with Respondent for persons who walked into the J. C. Penney Optical Center or who telephoned the J. C. Penney Optical Center telephone, but all such appointments were subject to confirmation by Respondent. There was no formal arrangement or agreement for the J. C. Penney Optical Center receptionist to make appointments over the Optical Center telephone for Respondent, and Respondent did not pay the receptionist. However, Petitioner benefited if the appointments she made were confirmed by him and actually kept by the patient. All of Respondent's patients at either location were advised that Respondent maintained an office in Destin, and all of his patients were advised to call a third telephone number, Respondent's cell phone number, for after-hours or emergency matters. All after-hours matters were handled at the Destin office by Respondent. However, patient files for patients that Respondent saw solely at the J.C. Penney location were stored by Respondent at that location. Respondent had no after-hours access to the J.C. Penney store. If there were an emergency, Respondent would have to obtain the patient's file the following day. At both office locations, Respondent, alone, determined which patients to see, what examinations and procedures to conduct, what optometry services to render, and what fees to charge any patients for his services. The lease agreement for Respondent's office space at J.C. Penney contained provisions precluding U.S. Visions Corp. from interfering with, or regulating, Respondent's independent practice of optometry in the office space he had leased. The lease agreement also contained a provision by which U.S. Vision Corp. covenanted not to violate Florida law. Respondent's lease with U.S. Visions Corp. prohibited his selling "frames, contacts, and related items" at the J.C. Penney location. Respondent did maintain inventory, employ an optometrist, and sell eyeglasses, lenses and frames at the Destin location. Respondent worked out of the J.C. Penney location three half-days per week on Mondays, Tuesdays, and Wednesdays. When requested by the patient, Respondent accepted the J.C. Penney credit card as payment for optometric services rendered at that location. When such card was used by a patient to pay for Respondent's services, J.C. Penney processed the payment and billed the patient directly. J.C. Penney rendered accounting and payment in full to Respondent for services charged on the credit cards on a bi-monthly basis. There is no evidence as to whether payment to Respondent was, or was not, affected by a delinquent payment by a patient to J.C. Penney. Respondent also accepted payment for his services rendered to patients at either location by check, cash, and Visa, Mastercard, and American Express credit cards. The patient elected which manner of payment to tender. Respondent's business records indicate that all of these forms of payment were utilized by patients at both locations. J.C. Penney charged a two-percent (2%) processing fee for the collection and accounting of services charged by patients on their J.C. Penney credit card. This fee, and the manner in which J.C. Penney processed the payments charged to the J. C. Penney credit card, are comparable to, and do not materially differ from, the typical arrangements between small business merchants and issuers of the other major credit cards which Respondent accepted. Unrefuted testimony of a certified public accountant employed by Respondent was to the effect that the financial records of Respondent's two optometry offices for 1998 show no indication that J.C. Penney exercised any influence or control over Respondent's independent practice of optometry or billing practices, and in fact, indicate that J.C. Penney did not. There is no evidence that the Respondent ever used prescription forms or any other forms referring to J.C. Penney at either of his office locations. On July 12, 1998, an advertisement appeared in the Sunday supplement to the "Northwest Florida Daily News" under the heading "J.C. Penney Optical Center," advertising a "FREE eye exam & 50% off frames." In very small print, the advertisement said, "we'll pay for your eye exam for eyeglasses by deducting up to $40 from your prescription eyeglass purchase." The advertisement specified "Santa Rosa Mall." The J.C. Penney Optical Center is not a licensed optometrist. A corporation can never hold an optometrist license. Only an individual can be licensed as an optometrist in Florida. The record is silent as to who or what entity placed the advertisement. Respondent was not named in the advertisement. Respondent did not place the advertisement. There is no evidence that Respondent had any involvement in the text or publication of the advertisement. Respondent did not have any prior knowledge that the advertisement was going to be published. U.S. Visions Corp. had never published any advertisement prior to July 1998, and Respondent did not foresee that the subject advertisement would be published. Respondent had no opportunity or means to prevent the publication of the advertisement. Respondent did not approve of, or consent to, the publication or content of the advertisement. Respondent had no opportunity to review the advertisement prior to publication. The lease for the J.C. Penney office location did not provide for U.S. Vision Corp. to do any advertising for Respondent. Respondent had no arrangements for advertising with either U.S. Vision Corp. or J.C. Penney. Respondent did not contemporaneously see the advertisement. He learned about it only through service of notice of the Department of Health's investigation into the advertisement, which ultimately resulted in this case. No patient or potential patient ever brought the advertisement or the coupon in the advertisement to Respondent or ever requested that the Respondent provide optometry services in accordance with the advertisement or the coupon. Respondent did not provide any optometry services in accordance with the advertisement or coupon, and would not have done so if requested. Respondent received no benefit from the advertisement. Respondent provided no "FREE" eye exams. The Respondent charged $49 per eye exam. The agency's expert witness, a licensed optometrist and former member of the Board of Optometry, testified that he believed that, on its face, the advertisement implied an association or affiliation between Respondent and J.C. Penney; that an optometrist practicing at J.C. Penney could be expected to benefit from the advertisement because of the content of the advertisement; that the advertisement was misleading because a person reading it would expect an eye exam to be "FREE"; and that when there is a lessor-lessee relationship of the type presented in this case, the Respondent optometrist has a responsibility to ensure that advertisements conform to the optometry statute and rules. The same expert witness testified that Chapter 463, Florida Statutes, does not prohibit optometrists from commercial establishments.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board of Optometry enter a final order dismissing Counts II, III, and IV, finding Respondent guilty of Count I of the Second Amended Administrative Complaint, and issuing a reprimand. DONE AND ENTERED this 2nd day of March, 2001, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2001.
