The Issue The issue is whether Respondent's opticianry license should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Max A. Vinson is currently a licensed optician, holding license No. DO 601. On December 24, 1986, the Board of Opticianry entered a Final Order in DPR Case No. 0060708 and therein assessed a fine of $500.00 against Vinson. The fine was to have been paid within thirty days of the Final Order. Vinson never paid the fine. On October 17, 1989, the Board of Opticianry again entered a Final Order in Case No. 0106315. This Final Order was based on the failure to pay the fine from the first action. Another fine of $1,000.00 was assessed and Vinson's license was suspended until the fines were paid. Vinson never paid this fine. Vinson is charged with violating Section 484.014(1)(i), Florida Statutes, based on his failure to obey these two lawful orders of the Board of Opticianry.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Opticianry enter a Final Order and therein revoke license No. DO 601 issued to Max A. Vinson. Vinson may not reapply for a license until all fines have been paid. DONE and ENTERED this 9th day of April, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1991. COPIES FURNISHED: E. Renee Alsobrook, Senior Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Max A. Vinson 12512 Caron Drive Jacksonville, FL 32258 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 LouElla Cook Executive Director Board of Opticianry 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact On October 28, 1985 Petitioner was employed by the City of Miami Fire Department. He began attending fire college. In November 1985 Respondent received Petitioner's application for certification as a firefighter. Petitioner's application and those of his classmates were transmitted in a group to Respondent by the City of Miami. On January 22, 1986 Respondent wrote a letter to the Chief of Training for the City of Miami Fire Department advising him that Petitioner needed his vision re-checked. There is no evidence that that letter was ever received by the City of Miami, and the evidence is uncontroverted that Petitioner was never advised of its contents. Respondent's file copy of that letter admitted in evidence reflects a "received" date stamp of June 16, 1988. Petitioner graduated from fire college and took the state licensure examination. He passed the examination on February 12, 1986, receiving a score of 82 on the written portion and a score of 93 on the practical portion. By letter dated July 27, 1988, Respondent advised Petitioner that his application for certification as a firefighter filed with Respondent in November of 1985 was denied due to Petitioner's failure to meet the visual acuity standard. That letter from Respondent was the first communication from Respondent to Petitioner regarding his application for certification. Pursuant to instructions from Respondent, the City of Miami Fire Department removed Petitioner from combat status although he had successfully performed his duties in combat status for approximately two and one half years. Petitioner is still employed by the City of Miami Fire Department. Petitioner's uncorrected vision is 20/67 in his right eye and 20/50 in his left eye. His corrected vision with glasses is 20/29 in his right eye and 20/20 in his left eye. On June 28, 1988 the Chief of Training for the City of Miami Fire Department wrote to Respondent (most probably in response to the City's receipt of Respondent's January 22, 1986 letter on June 16, 1988) regarding the status of the three individuals, including Petitioner, inquired about in Respondent's January 22, 1986 letter. The Chief of Training advised Respondent that Petitioner would be undergoing corrective surgery. Although Petitioner has pursued through several medical examinations the possibility of corrective surgery to his eyes, the doctors have declined to operate on Petitioner's eyes because his visual deficiencies are so minimal that they cannot justify the risk of surgery or the possibility of the surgery worsening Petitioner's visual acuity. The City of Miami is not the applicant for certification as a firefighter. It is simply the entity which mailed the applications of Petitioner and his classmates to Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered certifying Petitioner as a firefighter effective February of 1986. DONE AND ORDERED this 28th day of February, 1989 in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-4090 Each of the unnumbered paragraphs contained in Petitioner's Proposed Recommended Order has been rejected as not constituting a finding of fact. Respondent's proposed findings of fact numbered 5 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 6 has been rejected as not constituting a finding of fact. COPIES FURNISHED: Dwight K. Nobley 652 N.W. 46th Street Miami, Florida 33127 Lisa Santucci, Esquire Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32399-0300
The Issue At issue is whether petitioner's application to take the examination required for licensure as an optician should be approved.
Findings Of Fact Mr. Silverstone seeks licensure through the apprenticeship program. His organized sponsor indicated he only supplied initial sponsorship forms. The vast majority of the hours Mr. Silverstone claims were not certified by his sponsor whose signature was forged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered approving petitioner's application to take the examination required for licensure as an optician, and imposing an administrative fine of $1,000. DONE AND ENTERED this 13th day of June, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997.
The Issue Whether the Petitioner is entitled to an award of additional points sufficient to achieve a passing score on the July 1997 optometry exam.
Findings Of Fact Susan J. Summerton-Madison (Petitioner) took the July 1997 examination for licensure as an optometrist in the State of Florida. A portion of the examination tests the clinical skills of the applicant for licensure. Each applicant performs a number of tasks while two examiners observe. Prior to administration of the test, all examiners receive standardization training providing a baseline for grading the individual performance of each applicant. Examiners grade each applicant independently of each other. During the clinical part of the test, a viewing system known as a "teaching tube" is attached to the optometrist's equipment used by the applicant. The applicant performs each task twice because only one examiner at a time can observe the performance through the tube. Prior to beginning the clinical portion of the exam, the applicant and the examiners set the tube focusing mechanism so that both the applicant and the examiner have a clear view of the procedures being demonstrated. By grade report dated August 27, 1997, the Petitioner was advised that she had scored 68.80 on the clinical portion of the examination. A score of at least 75 points is required to pass the clinical portion of the examination for licensure as an optometrist. The Petitioner challenges the grading of the following questions: Section 1, questions 4a and 4b. Section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 11a, 11b, 12a, 12b, 13a, 14a, 15a, 18a, 18b, 21a, 21b, 24a, 25a, and 26a. The Petitioner asserts that her pregnancy during the examination resulted in ocular changes which caused focusing anomalies. The anomalies allegedly caused the viewing equipment through which the examiners observed her performance to be out of focus. The Petitioner received score deductions related to lack of focus on numerous questions; specifically section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 13a, 14a, 15a, 18a, 21a, 24a, 25a, and 26a. There are multiple causes of temporary ocular changes, including nervousness. Although there is evidence that pregnancy can result in ocular changes, the evidence fails to establish that any focusing problems which occurred during the Petitioner's performance on the July 1997 examination were related to pregnancy. Refocusing the viewing mechanism takes approximately five seconds. There is no evidence that an applicant is prevented from refocusing the equipment during the clinical examination. Although examiners are under no obligation to advise applicants during the test, one of the examiners observing the Petitioner suggested that she refocus the equipment. The Petitioner asserts that the request caused her to run out of time on section 2, questions 11a, 11b, 12a, and 12b. The evidence fails to establish that any problems related to insufficient time for the examination were related to the examiner's suggestion. The Petitioner asserts that points were deducted for poor focus on tasks which did not include focus as grading criteria. The evidence establishes that because the clinical portion of the test involves examination of ocular systems in a patient, almost all procedures require correct focus. The Petitioner asserts that on section 2, question 21b, ("foveal reflex") she received no points, but that another optometrist's examination of the test patient indicated that the foveal reflex was acceptable. Review of the examination indicates that the Petitioner's score was lowered because of focusing problems. The fact that a qualified optometrist determined the patient to be normal does not entitle the Petitioner to additional points or indicate that the scoring of her performance was unfair. Because examiners view separate procedures, it is not unlikely that examiners may award different scores. It is possible to evaluate the performance of examiners through use of "agreement ratings." Agreement ratings indicate the frequency of which each examiner agrees with the other examiner in testing the same applicant. The Petitioner notes that the examiners grading her performance differed in grading section 1, questions 4a and section 2, questions 3a, 3b, 7b, 10a, 13a, 14a, 15a, 18b, 21a, 21b, and 25a, and asserts that such indicates she was graded unfairly. Although the agreement ratings of the examiners who observed the Petitioner were slightly lower than average, the examiner agreement ratings fail to establish that she was graded arbitrarily or unfairly. The sample size is so small as to be subject to influence by borderline candidates, where one examiner believes an applicant's performance to be more acceptable than does the other examiner. The Petitioner asserts that on section 2, question 18b, the lack of agreement between the examiners reflects arbitrary grading because both supposedly view the same procedure through the viewing tube. The evidence fails to establish that the Petitioner is entitled to additional points or that the scoring of her performance was unfair. The Petitioner asserts that she informed the examiners that she was pregnant prior to administration of the clinical portion of the exam and that she should have received special accommodation of some type based on her condition. Procedures set forth in Rule 61-11.008, Florida Administrative Code, address special assistance to certain persons submitting to examination by the Department of Business and Professional Regulation, Office of Examination Services, which administered the examination in the instant case. Such assistance is available to persons with learning disabilities or physical handicap as defined in the rule. There is no evidence that the Petitioner sought to utilize such procedures. There is no evidence that the Petitioner's condition would have been regarded as a learning disability or physical handicap by the agency. The Petitioner asserts that an examiner exited the room while she was addressing section 1, questions 4a and 4b, and that the confusion of the departure caused the examiners to err. The evidence establishes that the scores reflect the inappropriate performance of the task involved, which involved measurement of the patient's pupil.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Health enter a Final Order dismissing the Petitioner's challenge to the grading of the July 1997 examination for licensure as an optometrist. DONE AND ENTERED this 22nd day of May, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1998. COPIES FURNISHED: Susan J. Summerton-Madison 559 99th Avenue North Naples, Florida 34108 Anne Marie Williamson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health Building 6, Room 136 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director Board of Optometry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Dunlop violated Rules 21P-1.012 and 21P-6.07, Florida Administrative Code, by permitting an unlicensed person to use his license for the purpose of dispensing optics.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida State Board of Dispensing Opticians take no action against the license of Francis (Frank) Dunlop. DONE and ORDERED this 9th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel Wiser, Esquire Post Office Box 1752 Tallahassee, Florida 32304 Thomas F. Lang, Esquire Suite 302 801 North Magnolia Avenue Orlando, Florida 32803 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF DISPENSING OPTICIANS In the Matter of the Suspension or revocation of the License to Practice the Trade or Occupation of Dispensing Optician in this State of FRANCIS NELSON DUNLAP DOAH CASE NO. 77-2291 As a duly licensed dispensing optician authorized to supervise the preparing, fitting and adjusting of optical devices at Vent-Air Contact Lens Service, Florida National Bank Building, Jacksonville, Florida /
The Issue The issue for decision herein is whether or not Respondent exhibited fraud, deceit, negligence, incompetence, or misconduct in the examination and fitting of a patient for contact lenses in violation of Subsection 463.016(1)(g) and (h), Florida Statutes, and, if so, what, if any, administrative penalty should be imposed.
Findings Of Fact Petitioner, Department of Professional Regulation, Board of Optometry, is the state agency charged with regulating the practice of optometry in Florida, pursuant to Section 20.30 and Chapters 455 and 463, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed optometrist who holds license number 0000437, and his last address of record is Zodiac Optical, 1211 South Dale Mabry Highway, Tampa, Florida 33 On February 21, 1987, Respondent examined and fitted Patricia Gama for hard contact lenses and Ms. Gama paid $154.00 for the lenses. On that date, Respondent obtained an initial refraction for the right eye of -1.25 and for the left eye of -1.00 (eye glass prescription only) and by use thereof, fitted Gama with contact lenses. At the time, Gama was employed as a cashier at a commercial retail establishment. Gama immediately began experiencing discomfort with the contacts, specifically blurred vision, red eyes and headaches. Gama found it difficult to read the cash register keys and function as a cashier. Gama advised Respondent of her discomfort on February 25, 1987, and at that time, Respondent fitted Gama with another set of contact lenses. Gama continued to experience discomfort with the contact lenses and after advising Respondent of such, Respondent on February 27, 1987, fitted Gama with a third set of contact lenses. Gama's discomfort with the contact lenses continued and she again advised Respondent of his discomfort. On March 18, 1987, Respondent fitted Gama with a fourth set of contact lenses. Through it all, Respondent used eleven different lenses in an effort to properly fit Gama; however, she continued to experience discomfort. Throughout Respondent's endeavor to properly fit Gama with contact lenses, he did so in a courteous and professional manner. However, Gama's husband insisted that she seek a second opinion from another optometrist, obtain a refund from Respondent and discontinue using the lenses Respondent prescribed. On April 22, 1987, Respondent's partner, Dr. William Hunter, refunded $74.00 of the total purchase price of $154.00 that Gama paid. He also gave Gama the prescription prepared for her by Respondent. Respondent works in a group practice which is owned by Dr. Hunter. Dr. Hunter has a policy of giving only a 50% refund within thirty days of purchase if the patient is not satisfied. On the following day, April 23, 1987, Gama was examined and fitted for contact lenses by Dr. Julian Newman. Respondent's initial refraction was twice as strong as Dr. Newman's refraction. It is not uncommon for patients, such as Gama, to test differently for glasses on different days which can result in different refraction readings on different days. Likewise, it is not unusual for an optometrist to note different refractions for the same patient on different days, or to make an error in the refraction readings for the same patient. When this is done however, the optometrist should try to correct the mistake if, in fact a mistake is made. Here, Respondent strived to satisfy Gama and never ceased efforts to comfortably fit her with contact lenses. Respondent made a refund to Gama in keeping with office policy which appeared reasonable under the circumstances considering the time spent with Gama before she decided to seek another opinion from another optometrist. (Testimony of Drs. Julian D. Newman, O.D. and Joel Marantz, O.D. both of whom were expert witnesses in this proceeding.) Respondent's receptionist, Beatrice Franklin, paid $100.00 to Gama on or about December 11, 1987, in exchange for Gama signing a request to drop her charges against Respondent at the Department of Professional Regulation. Respondent had no knowledge of Ms. Franklin's actions, and in fact, Sharon Hosey, a receptionist employed by Respondent, corroborated Respondent's testimony respecting lack of knowledge on his part as to any payments to Gama other than the $74.00 refund in exchange for her withdrawal of the complaint with Petitioner or to otherwise obtain Gama's signature on a release. Respondent was conscientiously attempting to comfortably fit Gama with contact lenses when Gama decided to seek a second opinion. He did so by changing the prescriptions on several occasions, including changing to lenses made by a different manufacturer. In the process, Respondent tried eleven different contact lenses. Respondent was willing to continue treating Ms. Gama and provide the required follow-up care.
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 the Administrative Complaint filed herein in its entirety. DONE and ENTERED this 16th day of February, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of February, 1990. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Jack L. Hargraves, O.D. 1211 South Dale Mabry Highway Tampa, Florida 33629 Patricia Guilford, Executive Director Florida Board of Optometry Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 =================================================================
The Issue The issues in this case concern an administrative complaint brought by the State of Florida, Department of Professional Regulation, Board of Opticianry (Petitioner) against Samuel Rosenberg (Respondent).The allegations in that administrative complaint are directed to claimed improprieties on the part of the Respondent in his actions as a sponsoring optician for the benefit of David Somerville, an apprentice optician, both men licensed in the state of Florida. Respondent is said to have violated various provisions of Chapters 455 and 484, Florida Statutes, and Chapter 21P, Florida Administrative Code.
Findings Of Fact Part A The following facts are found based upon the stipulation entered into by the parties: Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of opticianry, pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 484, Florida Statutes. Respondent is a licensed optician in the state of Florida, having been issued license number 0001618. Respondent's last known address is 542 White Street, Daytona Beach, Florida. David Somerville is not a licensed optician in the state of Florida. He is currently registered as an apprentice. A successful completion of this apprenticeship would enable him to sit for the Florida Examination to become licensed as an optician. An individual who is registered as an apprentice can perform no independent opticianry functions. An apprentice optician's activities must be directly supervised by a licensed optician. The Respondent is David Somerville's supervising apprentice sponsor. In February 1985, for a period of two or three weeks, Respondent had been an employee at Brandywine Optical, the business premises of David Somerville. Respondent then agreed to act as Somerville's sponsoring optician, supervising Somerville for forty hours per week. Part B Factual findings based upon the testimony adduced at hearing and in consideration of exhibits admitted at hearing: As reflected in Petitioner's Exhibit 7 admitted into evidence, on March 14, 1985, Samuel Rosenberg made application as sponsor of an apprenticeship program for the benefit of David Somerville. In that application it was indicated that Rosenberg would supervise the apprenticeship of Somerville for a period of forty hours a week. Rosenberg believes that Somerville is capable of performing opticianry work. He states that based upon Somerville's past experience and performance, he, Rosenberg, can afford to step out for a cup of coffee, and while he is out of Brandywine Optical, Somerville can do as fine a job of adjusting a pair of glasses as Rosenberg could. He also feels that it would be acceptable to leave Somerville alone while Rosenberg goes to the post office to mail things. Rosenberg does not feel responsible to monitor Somerville's activities at the Brandywine Optical business other than within the forty hours for which he is involved with Somerville. In supervising Somerville, Rosenberg had an arrangement early on in which twelve hours' supervision was given at a flea market and an additional twenty-eight hours at the Brandywine Optical store. This changed to eight hours on Saturday at the flea market and thirty-two hours a week at Brandywine Optical. The thirty-two hours is from Monday through Thursday. On Friday, Rosenberg understands that an optometrist is in attendance at the Brandywine Optical, and Somerville is only answering the phone and showing frames to customers. Nonetheless, Rosenberg admits that he has never been at the Brandywine Optical on Friday to confirm this arrangement in which Somerville is purported to do no opticianry work. Rosenberg assumes that Somerville in good conscience will not do anything irregular related to activities by an apprentice optician while Rosenberg is not attendance on Fridays. Otherwise, Rosenberg assumes that the optometrist at the business on Friday is responsible for Somervilles activities. Robert Schwalm, a licensed optician in the state of Florida, on March 20, 1985; March 27, 1985; April 3, 1985;. and April 17, 1985, while seated in the parking lot adjacent to the Brandywine Optical store and using 50 power binoculars, observed Somerville without supervision of an optician, optometrist or opthalmologist, practice opticianry, to wit, adjusting, delivering, fitting and collecting money for glasses. Adjustments would include working on frames etc. Rosenberg was not in attendance while these activities were being conducted by Somerville. On these occasions, when Rosenberg would arrive at the store, the witness Schwalm would depart. Similarly, Harry Rowley, licensed optician in the state of Florida, on March 20, 1985; March 27, 1985; April 3, 1985; and April 17, 1985, observed Somerville's participating in the practice of opticianry. Except for one of these instances in which Rosenberg came into the store, Somerville was practicing opticianry outside the presence of Rosenberg. Somerville's practice of opticianry included dispensing glasses, adjusting glasses and collecting fees. On July 22, 1985, an investigator with the Department of Professional Regulation, Philip T. Hundermann, went to the Brandywine Optical store and parked outside the store. He arrived between 9:30 a.m. and 10:00 a.m. At 10:00 a.m. a person was observed leaving the store. At 10:05 a.m. Rosenberg was seen parking his car and then was observed entering the premises. The investigator went into the store at 10:10 a.m. and observed Somerville talking to a male customer while Rosenberg was standing at the counter. The investigator then requested that Rosenberg participate in an interview. Rosenberg and the investigator left the business premises and in another location held a discussion about concerns related to a complaint against Rosenberg's license. Rosenberg told the investigator that he supervised Somerville for a period of forty hours a week as the sponsoring optician. Rosenberg said that typically he would arrive at the Brandywine Optical store at 10:00 a.m. and leave around 4:00 or 4:30 p.m. This would mean that Somerville was unsupervised from 9:00 a.m. to 10:00 a.m. and from 4:00 or 4:30 p.m. to 5:00 p.m. On August 27, 1985, Douglas Vanderbllt, an investigator with the Department of Professional Regulation, went to the Brandywine Optical store. When he entered the store, Somerville and another customer were the only persons in attendance. The customer was trying on frames and making a selection of frames, with the assistance of Somerville. Vanderbilt picked out some frames that he wanted to buy. Somerville took the glasses that Vanderbilt had and made measurements from those glasses. This was in furtherance of the preparation of a new pair of spectacles at a cost of $1lO. Sixty dollars was paid down. Some of the measurements Somerville made pertaining to Vanderbilt involved bifocals. No prescription had been presented by Vanderbilt and Somerville used the old glasses which Vanderbilt had as a basis for measurement. Vanderbilt was presented with a business card which may be found as Petitioner's Exhibit 1 admitted into evidence. The business card reflects Brandywine Optical, prescriptions filled, eye glasses and contact lenses. It gives the business address and indicates that David Somerville is the dispensing optician. This card is similar to a card sitting on the counter where Vanderbilt was seated. Respondent was aware of the information set forth on the card received as an exhibit. Somerville, upon the questioning of Vanderbilt, confirmed that the name Somerville reflected on the card and the Respondent Somerville were one and the same person. On September 9, 1985, Vanderbilt returned to the business premises at Brandywine Optical. At that time, only Somerville was present. Somerville broke the black stainlesse steel frame across the bridge of the new glasses. Consequently, Vanderbilt picked out a brown frame, and Somerville fitted the brown pair of glasses on Vanderbilt.
The Issue Whether the Department acted arbitrarily and capriciously in giving notice of its intended award of a contract for the purchase of optical character reading equipment to Scan Optics?
Findings Of Fact The Department is the state agency charged with the administration of Florida's unemployment compensation insurance program. The Department's Bureau of Claims and Benefits (hereinafter referred to as the "Bureau") is responsible for receiving claims for unemployment insurance benefits and for the disbursement of unemployment insurance payments. In processing and paying claims for unemployment insurance benefits, the Bureau must work with the Comptroller, who issues the payment checks. The Comptroller's office has been issuing checks on IBM punch cards. The Bureau has also been using IBM punch cards in processing unemployment insurance claims so that the punch cards could be collated with the IBM punch card checks issued by the Comptroller. In early 1984, the Bureau was informed that IBM card stock would no longer be printed. In early 1985, the Bureau was informed by the Comptroller's office that the Comptroller was going to begin to use paper warrants for the payment of benefits instead of IBM cards. As a result of this change, the Department is no longer able to use checks issued by the Comptroller to collate with its IBM punch cards. Because of the switch to paper warrants by the Comptroller, the Department began in 1985 to look at other technologies capable of efficiently working with paper warrants. The Bureau formed a committee to explore alternatives. That committee researched alternatives and visited other states to determine how other states were processing claims. The Department decided to purchase an optical character reader (hereinafter referred to as an OCR), for use in processing unemployment compensation claims. An OCR is a device which reads printed or handwritten characters. It scans a document, reads characters by comparing them to a mask or template and reads and records the data. The Department plans to use the OCR to read and record data from certifications for unemployment compensation insurance benefits. The data recorded will be transferred to the Department's mainframe IBM computer for use in processing by an automated benefits system. The Petitioner and Scan Optics are manufacturers of OCR equipment. Scan Optics has been manufacturing OCR equipment for 20 years. The Department requested a list of vendors from the Division of Purchasing and received a list of 167 potential vendors. On July 14, 1986, the Department issued a Request for Proposals (hereinafter referred to as the "RFP"), seeking competitive bids for the purchase by the Department of an OCR. All 167 potential vendors were notified of the RFP by the Department. Approximately 25 of the potential vendors requested a copy of the RFP. Only the Petitioner and Scan Optics submitted proposals in response to the RFP. A 6 member committee appointed by the Department prepared the RFP. Three members of the committee were employees of the Bureau and three members were employees of the Department's Bureau of Computer Data Systems. A request for proposal is a solicitation by an agency of offers from potential vendors to provide a needed commodity or service. It is different from a bid where the agency simply identifies the product it wishes to purchase and chooses the vendor offering the product at the lowest cost. The RFP set forth the Department's functional requirements and asked vendors to respond in any manner which they believed would meet those requirements. In the RFP, the Department stated the requirements which vendors were required to meet, evaluation criteria and the weight to be given to those criteria. It was also provided that responses would be verified by documentation and demonstration in a benchmark test. In the RFP, vendors were informed that if they disputed the reasonableness, necessity, or competitiveness of the RFP they must file a protest in accordance with Section 120.53(5), Florida Statutes. Paragraph 8 of the General Conditions. Vendors were also informed that any questions concerning the conditions and specifications of the RFP had to be submitted in writing to the Department no later than 10 days prior to the proposal opening and that "[n]o interpretation shall be considered binding unless provided in writing by the State of Florida in response to request in full compliance with this provision." Paragraph 5 of the General Conditions. Section 1.07 of the RFP instructed vendors to examine the RFP to determine if the requirements were clearly stated. Section 1.10 of the RFP provided that only written and signed vendor communications would be considered and that only written communications from the purchasing off ice would be considered authoritative. The Petitioner did not file a protest of the terms of the RFP pursuant to Section 120.53(5), Florida Statutes. Section 1.03 of the RFP provided for a vendors conference at which the contents of the RFP and any written inquiries from the vendors could be discussed. The Petitioner and Scan Optics submitted written questions to the Department. The vendors' conference was scheduled and conducted on July 30, 1986. Representatives of the Petitioner and Scan Optics attended the vendors' conference. The questions submitted by the Petitioner and Scan Optics were discussed. At the commencement of the vendors' conference, the Department's representative cautioned all present that statements made during the conference would not modify the RFP. This representation was heard and understood by the Petitioner's representative at the vendors' conference. Subsequent to the vendors' conference, the Department issued amendments to the RFP. The cover letter dated August 7, 1986, conveying the amendments to the Petitioner stated that any questions about the amendments had to be received in writing in the Office of Purchasing no later than 5:00 p.m., August 12, 1986. Draft samples of claims' certification forms and paper stock described in Section 3.01.18 of the RFP were also sent to the Petitioner and Scan Optics. The Petitioner did not submit any additional questions about the RFP or the amendments before 5:00 p.m., August 12, 1986. The Department proposed to accept Scan Optics' proposal and purchase the OCR from Scan Optics. The Petitioner brought this administrative action challenging the Department's proposed action. Chapter I of the RFP contains administrative and general information. Chapter II of the RFP contains a description of the Department's current system, a list of proposed OCR applications and the objective of the Department. Chapter III of the RFP sets out the technical requirements. Mandatory requirements and desirable requirements are provided. The terms "mandatory requirement" are defined in Section 1.17.ao of the RFP as follows: "Mandatory Requirement" shall be defined as a requirement the vendor must meet for the proposal to be considered responsive, failure to meet a mandatory requirement will cause the proposal to be rejected. The terms desirable requirement" are defined in Section 1.17.ak of the RFP as follows: "Desirable Requirement" shall be defined as a function, feature, or service the State considers necessary for optimal application flexibility, ease of system operation, or system reliability. Failure to meet a desirable requirement will result in a lower technical evaluation. The technical requirements set out the specifications which the Department had determined must (mandatory) or should (desirable) be met in order for an OCR to fulfill the Department's objectives. Chapter IV of the RFP provides the evaluation process the Department was to follow in determining which proposal to accept. The evaluation process was to include the awarding of points for compliance with the technical requirements. The RFP also included provisions designed to ensure that the representations of a vendor in a proposal would be fulfilled, including a benchmark test to verify certain representations of a vendor and acceptance testing after the equipment was purchased and installed. The general objective of the Department was provided in Section 2.04 of the RFP: The State wishes to procure an Optical Character Reading System with related soft- ware capable of meeting the requirements for the reading of UI benefit certifications and other UI applications that are feasible. The Optical Character Reading System will consist of a [sic] Optical Character Reader (OCR) and Correction System. The complete System will be bought from a single vendor. Section 1.17.ap of the RFP defines "objective" as: A statement describing generally the system to be procured. Any proposed system not meeting the objective will be rejected. Although Section 2.03.3 of the RFP provides that processing of quarterly wage reports is a major application, the RFP does not require that the proposed OCR equipment must be capable of this application. The only requirement is that the objective" be met. The reference to "other UI applications that are feasible" in the objective was intended to refer to future applications of the OCR which the Department only wanted to be aware of. There was no requirement that proposed OCR's be capable of other applications. The RFP made it clear that proposals would be based on the technical requirements of Chapter III of the RFP and would be evaluated pursuant to Chapter IV of the RFP. When these chapters and the "objective" are considered it is clear that the Department was proposing to purchase an OCR to perform the task of reading unemployment insurance claims forms and not wage reports. The responses to the RFP submitted by the Petitioner and Scan Optics were evaluated by the committee established by the Department to prepare the RFP. The committee determined whether the vendors met the mandatory requirements of the RFP and allocated points for mandatory and desirable requirements based upon the vendors' responses. The committee's evaluation consisted of 3 stages as required by the RFP. First, the committee evaluated and scored the vendors' technical responses. Each vendor was awarded points for their responses to the mandatory and desirable requirements as provided in the RFP. The committee fairly and reasonably applied the scoring system. Secondly, the committee evaluated and scored the vendors' cost responses as provided in the RFP. Finally, each vendor's scores were added. The vendor with the highest score was then given an opportunity to subject its proposed system to a benchmark test. The RFP provided that only the vendor with the highest points from the first 2 stages of the evaluation would be subjected to the benchmark test. The benchmark test was used by the Department to verify some of the statements in the highest scoring vendor's response, including some responses which the committee had some questions about during the evaluation. Based upon the committee's evaluation, Scan Optics was selected as the highest scoring vendor and its proposed system was subjected to the benchmark test. The benchmark test is provided for in Chapter X of the RFP. If Scan Optics' system had failed the benchmark test with regard to a mandatory requirement, its proposal would have been rejected. If it had failed to fulfill a desirable requirement, its response would have been rescored. The benchmark test was designed to give some assurances that a vendor's claims were correct. The test gave the committee confidence that the vendor was providing accurate information. Scan Optics' system successfully completed the benchmark test. During the first two stages of the evaluation, the committee looked at each vendor's total response, read all of the documentation submitted by the vendors and did all the research it could without actually having the system itself to evaluate. Not every response of the vendor was verified with absolute certainty. It was necessary for the Department to exercise judgment and discretion in determining whether responses were responsive to the RFP. Each response was evaluated as a whole and relevant information contained in one response was considered in evaluating other responses. Both vendors' responses were reviewed carefully. Both vendors provided responses which were not as thorough as the committee desired. The committee exercised its discretion in those instances and reviewed all documentation and the complete response to determine if sufficient information had been provided to conclude that a response was acceptable. Clarification or explanation of some responses was requested by the committee from both vendors. The manner in which mandatory responses were to be evaluated is provided in Section 1.06 of the RFP: The State has established certain requirements with respect to Request for Proposals to be submitted by vendors. The use of "shall", must" or "will" (except to indicate simple futurity) in this Request indicates a require- ment or condition from which a material deviation may not be waived by the State. A deviation is material if the deficient response is not in substantial accord with this Request for Proposal requirements [sic] provides an advantage to one vendor over other vendors, has a potentially significant effect on the quantity or quality or items proposed, or on the cost to the State. Material deviations cannot be waived. Determining whether a deviation was material required the Department to use discretion. The RFP does not require rejection of a proposal if a desirable requirement was not met. Section 1.06 of the RFP provides the following with regard to desirable requirements: The words "should" or "may" in this Request for Proposal indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a proposal. In determining whether a mandatory requirement was met, the committee determined if a vendor's response indicated that the requirement could be met. If there was any question about the vendor's response, the committee then evaluated the response to determine if the response was sufficient to justify rejecting the entire proposal. This is a reasonable approach. The Department, through its committee, exercised its discretion fairly and equitably in reviewing each vendor's response. Scan Optics proposed a 442 system in response to the RFP. A 4542 system consists of two primary hardware component: a 4500 editing system and a 542 optical scanner. Section 3.01.1 of the RFP provides the following mandatory requirement The Vendor must supply documentation indicating the proposed System's capabilities to meet each mandatory and desirable item listed in this RFP. The documentation must refer to the section and item number it applies to in this RFP. There is no requirement in the RFP that the documentation provided by a vendor be listed. Scan Optics provided a great deal of documentation with its response. The Department reasonably concluded that the documentation provided met the requirement of Section 3.01.1 of the RFP. A list of most of Scan Optics' documentation was provided with its response. In addition to the documentation listed, Scan Optics provided a Model 542 Product Guide and a Model 533/542 Operator's Manual. Scan Optics' Models 530 and 540 optical scanners are very similar to their Model 542. The designation 540 refers to a family of optical scanners which includes the Model 542. Most of the information concerning the operation and capacity of the 540 also applies to the 542. Differences are due to greater capacity and speed of the 542 and internal differences. All of the documentation supplied by Scan Optics was considered by the committee in its evaluation and was determined to satisfy the requirement of Section 3.01.1 of the RFP. The committee talked with representatives of Scan Optics to determine whether documents pertaining to Model 530/540 supplied to the Department were relevant. The Department was informed that the Model 542 was a member of the same family of models and the information provided in the Model 530/540 documents was also applicable to the Model 542. Manufacturers of computer equipment have constantly evolving families of models with a number of similarities. The use of manuals and guides which apply to a family line is a common practice. The committee reasonably accepted the Model 530/540 documents as documentation supporting the Model 542 proposed. Section 3.01.10.f of the RFP initially required that vendors show how the Initial System could be upgraded to meet a number of requirements, including the " [a]bility to read 700 different fonts including handprint in a multifont mode." The Petitioner submitted a written question which was discussed at the vendors' conference concerning the use of the term "fonts." There are not 700 fonts in the English language. An OCR is capable of scanning written documents and reading and recording the data contained thereon. Each particular design or style of a1phabetic (A to Z, in upper and lower case) and numeric (0 to 9) characters typed or written is called a font. Each style, or font, is unique and different from other styles. Characters are recognized and read by an OCR by templates or masks. Templates or masks determine an OCR's ability to read a particular character of different fonts. To read all the characters of one font, 36 masks or templates are needed. A single mask or template can read the same character, such as the letter "A" in more than one font. The question raised by the Petitioner was discussed at the vendors' conference and resulted in a written amendment to the mandatory requirement of Section 3.01.10.f. Section 3. 01.l0.f of the RFP, as amended, required that the Initial System be upgradeable to include the " [a]bility to read 700 different fonts/masks/templates, plus alpha numeric hand print." The Department and the vendors realized that Section 3. 01.10.f of the RFP, as amended, required that the ability to read 700 templates or masks, and not 700 fonts, was what was required. The Petitioner did not submit any questions concerning the amendment to Section 3.01.10.f of the RFP. The Petitioner's representative at the vendors' conference indicated that he understood the amendment and that the amendment eliminated the confusion created by the original requirement concerning "700 fonts." No statements were made by representatives of the Department during the vendors' conference concerning the requirement of Section 3.O1.10.f of the RFP, as amended. A statement concerning proposing a "maximum capability machine" was directed only to the Petitioner. The Department was aware that the Petitioner's maximum capability machine with regard to templates or masks was a machine with 720 templates. Therefore, the Petitioner was told that if it bid its maximum capability machine it would meet the requirement of Section 3.01.10.f of the RFP, as amended. This discussion was directed only at the Petitioner and was in response to the Petitioner's question, submitted in writing, about the requirement of Section 3.01.10.f of the RFP before it was amended. Section 3.01.10 of the RFP contains 7 subparagraphs labeled "a" through "g". Scan Optics' response to Section 3.01.10 of the RFP contained only 5 subparagraphs labeled "a" through "e". The responses of Scan Optics did not correspond to the subparagraphs of Section 3.01.10 of the RFP. There was no requirement that they do so. One of the subparagraphs for which there was no labeled response from Scan Optics, Section 3.01.10.f of the RFP, pertains to upgrading the Initial System to read 700 templates. Scan Optics proposed a system which already contained 768 templates. There was therefore no requirement to explain how the system could be upgraded. The other subparagraph for which there was no labeled response from Scan Optics, Section 3.01.10.g of the RFP, pertains to upgrading the Initial System to include "necessary system CPU's and controllers." Scan Optics' response to Section 3.01.10 of the RFP, when considered with other responses and the documentation provided, indicated that the Initial System would meet this provision. The Department reasonably determined that the response of Scan Optics to Section 3.01.10 of the RFP adequately explained how its system could be upgraded. Section 3.01.13 of the RFP contains the following mandatory requirement: The OCR must capture and store data on a 9-Track, 1600 and/or 6250 BPI EBCDIC Tape compatible with the equipment in use at the Caldwell Data Center at the State's Central Office in Tallahassee. Each tape drive in the proposed system must be usable for both output and input operations. The requirement of Section 3.01.13 of the RFP was amended to add the following sentence: The drives in use in the Data Caldwell Center [sic] are IBM 3420 Dual Density (1600 6250 BPI) with odd parity. In its response Scan Optics quoted the requirement without the amendment and then provided the following answer: The Scan-Optics Tape Drive provided is an operator selectable 1600 or 6250 BPI EBCDIC drive compatible with IBM equipment including the equipment in use at the Caldwell Data Center, and is capable of output or input. Although Scan Optics did not quote the requirement with the amendment, the amendment was included elsewhere in its response and Scan Optics' representatives were aware of the amendment. Even though Scan Optics did not correctly quote the requirement as amended, its response indicates that Scan Optics' proposal meets the amended requirement. Scan Optics indicated that its system is compatible with the Caldwell Data Center's equipment and identified the drives which it uses. The failure to quote the amended requirement was merely an oversight on the part of Scan Optics. There is no requirement that the requirements of the RFP be properly quoted or quoted at all in a response. Section 3.01.15 of the RFP, as amended, provides the following mandatory requirement: The OCR Microfilm camera must provide an image reduction ratio within the range of 40:1 to 50:1, image reduction in duplex mode and provide at least two (2) blip sizes based on Kodak IMT specifications which can be selected under program control. The system must be capable of filming any blip sizes based on predefined conditions on a document by document basis. In its response Scan Optics identified the range of its image reduction ratios and indicated that it would provide the blip sizes required. Although Scan Optics' response can be interpreted to indicate something which Scan Optics will be able to do in the future, the Department reasonably accepted Scan Optics' response. The committee knew that technology for meeting the microfilm requirement existed and was in use in the industry. Based upon documentation provided by Scan Optics, the committee also knew that the reduction ratios could be provided by Scan Optics because its camera was under program control and was therefore adjustable. Because the camera was under program control, the committee knew that it could be adjusted to provide two blip sizes. The committee also knew that if Scan Optics was selected as the high scorer as a result of the first two phases of the evaluation its camera would be subjected to the benchmark test. In fact, Scan Optics' camera was subjected to the benchmark test and demonstrated that the requirements of Section 3.01.15 of the RFP could be met. Scan Optics properly responded Section 3.01.15 of the RFP and the Department reasonably accepted its response. Section 3.01.18 of the RFP provides the following mandatory requirement: The OCR must be capable of processing documents with a paper weight range from 20 lbs. to 110 lbs. A paper thickness of .0075 inch capability is required. Scan Optics' response to Section 3.01.18 of the RFP was as follows: Standard Scan-Optics specification of paper weight is from 20 lbs. to 100 lbs. However, Scan-Optics personnel will modify the transport vacuum pumps and perform the necessary pre- ventative maintenance routines to accomplish the additional 10 percent requirement at the higher paper range, as we have done in numerous other installations. Scan Optics' total response indicates that it can meet the requirement of Section 3.01.18 of the RFP. The Department reasonably accepted the response. The Department-knew that similar equipment was frequently modified to fit specific jobs, that Scan Optics had indicated that it had modified its equipment in "numerous other installations" and that Scan Optics had indicated that it would modify its transport system. The Department also knew that the ability to process 110 lb. paper would be benchmark tested. The vendors were provided with sample forms which were .0075 inch thick and 110 lb. weight. This was the actual paper used by the Comptroller. Scan Optics' ability to meet the requirement of Section 3.01.18 of the RFP was tested and demonstrated in the benchmark test. Section 3.01.43 of the RFP provides the following mandatory requirement: "The Vendor must propose to provide four (4) manuals for application and program development." Section 3.01.44 of the RFP provides the following mandatory requirement: "The Vendor must propose to provide three (3) sets of manuals for support of system operations. Scan Optics indicated that it would provide the manuals at the time the contract was awarded. There was no requirement that a vendor provide the manuals at the time a response was filed. Section 3.01.43 and Section 3.01.44 of the RFP only sought assurances that the manuals would be provided. Scan Optics' response to Section 3.01.43 and Section 3.01.44 of the RFP and the Department's acceptance of the response was reasonable. Prior to amendment, Section 3.03.2 of the RFP provided the following desirable requirement: The Vendor should be able to upgrade the OCR font recognition as the Vendor makes improve- ments in font recognition to improve OCR read rates. This upgrade should be installable by the State. Section 3.03.2 of the RF was renumbered as Section 3.02.2 and the last sentence was amended to provide: "This upgrade should be installable by the State or, if installed by the Vendor, at no additional cost to the State." Scan Optics' response quoted the requirement before the amendment. The response, however, indicated that the requirement, as amended, could be met and the amendment was included in another portion of the Scan Optics' response. The Department reasonably accepted the response of Scan Optics to Section 3.02.2 of the RFP. Section 3.02.3 of the RFP (originally numbered 3.03.3) includes a desirable requirement that vendors specify the projected number of desk weekly unemployment insurance claim certification documents a vendor's proposed system could process in one hour with no more than three operators -- one to operate the OCR and two to correct unrecognized characters. Section 3.02.3 of the RFP provides that the document to be processed and the rules for processing are described in Chapter x, Section 10.2 of the RFP. The vendor with the highest score was to be benchmark-tested pursuant to these rules to determine if the vendor's response was accurate. Chapter x, Section 10.2 of the RFP describes the data that would be included in the claim form, how the form would be completed, the weight of the paper and the styles or fonts which would be used. Section 3.02.3 of the RFP only requires that the number of documents processed be provided. Scan Optics' response to Section 3.02.3 of the RFP provided that "Scan-Optics throughput based upon your requirements above will be: 3,500 desk weekly UI claim certification forms in one hours [sic]." Scan Optics' response went on to repeat the criteria set out in the RFP and provided: "Therefore, because of the above variables, Scan-Optics throughput has been calculated using the following assumptions:" The response goes on to provide certain assumptions made by Scan Optics in calculating the number of documents it projected could be processed. The assumptions set out in Scan Optics' response do not expressly limit or condition its estimate of 3,500 documents per hour. The response was given with knowledge that the estimate would have to be proved to be accurate in the benchmark test. Scan Optics' response was based upon the use of a standard formula and was reduced from 4,800 to 3,500 in order to give a projection which could be met and accounted for loss of productivity due to jams, operator absence and other problems. The projection was tested by Scan Optics before the proposal was submitted to the Department. The Department accepted the projection of Scan Optics and awarded Scan Optics the maximum points available for the desirable requirement of Section 3.02.3 of the RFP, 280 points. The Department did not take into account the assumptions expressed by Scan Optics in its response. The evidence did not prove if the assumptions expressed by Scan Optics are inconsistent with the rules for processing which would be followed in the benchmark test. Scan Optics successfully demonstrated its ability to process 3,500 forms per hour in the benchmark test. The benchmark test did not incorporate the assumptions made by Scan Optics. The forms used in the test were completed by individuals who received less instructions than claimants and State employees who will actually complete the forms. Even the instructions given were not completely followed. The benchmark test provided an accurate test of Scan Optics' ability to process claims. The Department reasonably accepted Scan Optics response to Section 3.02.3 of the RFP. Section 1.14 of the RFP required vendors to provide five references where "similar or exact proposed equipment and Licensed Software is installed and operational." Section 4.05 of the RFP provided for the manner in which references were to be evaluated. Up to 10 points per reference could be awarded, up to a maximum of 50 points. Section 4.05.6 of the RFP defined "similar equipment and software" to mean equipment consisting of "an OCR with microfilm option that reads either numeric handprint or multifont." [Emphasis added]. The Petitioner and Scan Optics provided more than five references. All references were contacted. Five of the references provided by both vendors had similar equipment and software as defined by Section 4.05.6 of the RFP. Scan Optics' five satisfactory references were Newport News Ship Building, IRS Atlanta, Barnett Bank of Florida, State of Ohio Department of Taxation and State of Tennessee Department of Revenue. The Department reasonably concluded that the references provided by Scan Optics satisfied the requirement of Section 1.14 of the RFP. The Department did not evaluate Scan Optics' response in an arbitrary and capricious manner.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Formal Written Protest and Petition for Formal Administrative Proceeding filed by the Petitioner, Recognition Equipment, Inc., be dismissed. DONE AND ORDERED this 26th day of February, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 26th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4570 BID The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accepted. Those proposed findings of fact which have been rejected and the reasons for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." THE PETITIONER'S PROPOSED FINDINGS OF FACT: Proposed Finding RO Number of Acceptance or of Fact Number Reason for Rejection 1 RO 13. 2 RO 9 and 75-76. 3 Not supported by the weight of the evidence. 4 RO 25, 27 and 29. 5 Although this statement was made, see RO 81. 6 RO 34-35 and 60. 7 RO 45. 8 RO 34, 36 and 47. 9 RO 48. 10 Irrelevant. 11 RO 124 and 126. Although the first sentence is true, it is irrelevant. The second sentence is not supported by the weight of the evidence. The first sentence is accepted in RO 83. The rest of the proposed finding of fact is irrelevant. Not supported by the weight of the evidence. Not supported by the weight of the evidence. The first sentence is argument. The second sentence is irrelevant. If the Petitioner relied on oral state- ments such reliance was not reasonable. Not supported by the weight of the evidence. Not supported by the weight of the evidence. Although Mr. Stallworth did make the quoted statement, it does not expand the requirements specifically included in the RFP. Not supported by the weight of the evidence. The first two sentences are accepted in RO 49. The third and fourth sentences are not supported by the weight of the evidence. 21 RO 57. 22 Not supported by the weight of the evidence. THE DEPARTMENT'S PROPOSED FINDINGS OF FACT: 1 RO 1, 3 and 5. 2 RO 5-6 and 8. 3 RO 13 and 38. 4 RO 12 and 14-16. 5 RO 22-23. 6 RO 25. 7 RO 26-27. 8 RO 29. 9 RO 29-30. 10 RO 73-74. 11 RO 77-78. 12 RO 80. 13-15 RO 81. 16 RO 40-44. 17 RO 44. 18 RO 67-68. 19 RO 70. 20 RO 82-84. 21 RO 84. 22 RO 87-88 and 90. 23 RO 91. 24 RO 93-97. 25 RO 96. 26 RO 99-100. 27 RO 100 and 102. 28 RO 112-113. 29 RO 115-116. 30 RO 122. 31 RO 57. 32 RO 47-49. 33 RO 53. 34 RO 54-55. 35 Irrelevant. 36 RO 54. 37 RO 124 and 127. 38 RO 125. 39 RO 126. 40 RO 127. 41 RO 128. SCAN OPTICS' PROPOSED FINDINGS OF FACT: 1 RO 1. RO 8. RO 9. 4 RO 75-76. 5 RO 76. 6 Irrelevant. 7 RO 10. 8 RO 11 and 26. 9 RO 11. 10 RO 1-2. 11 Irrelevant. 12 RO 3. 13 Hereby accepted. 14 RO 4. 15 RO 5. 16 RO 6. 17 RO 7. 18 RO 8. 19 RO 13. 20 RO 17. 21 RO 18 and 57. 22 RO 19. 23 RO 20. 24 RO 14-16. 25 RO 21. 26 RO 26. 27 RO 27. 28-29 RO 28. 30 Hereby accepted. 31 RO 29. 32 RO 30. 33 RO 32. 34 RO 33. 35 RO 34 and 37. 36 RO 37. 37 RO 38. 38 RO 39. 39 RO 39. The second and third sentences are irrelevant. 40 RO 40. 41 RO 43. 42 RO 44. 43 RO 42 and 44. 44 The first sentence is not supported by the weight of the evidence. The second sentence is hereby accepted. 45 RO 45. 46 RO 56. 47 RO 57. 48 RO 58. 49 RO 59. 50 RO 60. 51 RO 61. 52 RO 62. 53 RO 52. 54 RO 53. 55 RO 54. 56 RO 63. Irrelevant. Hereby accepted. 59 RO 64. 60-64 Irrelevant. 65 RO 38, 47 and 49. 66 RO 47-49. 67 RO 49-51 and 55. 68 RO 65. 69 Hereby accepted. 70 RO 78. 71 RO 66-68 and 70. 72 Hereby accepted. 73 RO 69. 74 RO 70. 75 RO 71. 76 RO 72. 77 RO 78. 78 The first and last sentences are accepted in RO 78-79. The second sentence is not supported by the weight of the evidence. 79 RO 75. 80 RO 82-84. 81 RO 84. 82 RO 85. 83 RO 92. 84 RO 93. 85 RO 95. 86 RO 96. 87 RO 97. 88 RO 98. 89 RO 99-100. 90 RO 101. 91 RO 100. 92 RO 102. 93 RO 86. 94 RO 87. 95 RO 88-90. 96 RO 103. 97 RO 106. 98 RO 105. 99 RO 106. 100 RO 107. 101 RO 104. 102 RO 105. 103 RO 107. 104 RO 108-109. 105 RO 110. 106 RO 111. 107 RO 112-113. 108 RO 114. 109 RO 113. 110 RO 115. 111 RO 116-117. 112 RO 119. The last sentence is irrelevant. 113 RO 118. 114 RO 121-122 Cumulative. Hereby accepted. 117 RO 123. 118 RO 124. 119 RO 125. 120 RO 126. 121 RO 127. 122 RO 128. 123 RO 129. 124 RO 130. 125 Not a finding of fact. COPIES FURNISHED: Edwin F. Blanton, Esquire Post Office Box 12808 Tallahassee, Florida 32317 Hugo Menendez Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32301 Kenneth H. Hart, Jr., Esquire General Counsel Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 Leonard A. Carson, Esquire John D. C. Newton, II, Esquire Mahan Station 1711-D Mahan Drive Tallahassee, Florida 32301 Thomas J. McHale, Esquire Gager, Henry & Narkis One Exchange Place Post Office Box 2480 Waterbury, Connecticut 06722
The Issue The issues in this case concern an administrative complaint brought by the State of Florida, Department of Professional Regulation, Board of Opticianry (Petitioner) against David Somerville (Respondent). It is alleged, among other claims, that the Respondent was licensed as an apprentice optician in the state of Florida and while in that capacity practiced opticianry without the benefit of supervision; entered a plea to dispensing optical devices without a license; and committed various forms of fraud related to the sponsorship of his apprentice training, all in violation of provisions of Chapters 455 and 484, Florida Statutes, and Chapter 21P, Florida Administrative Code.
Findings Of Fact Part A The following facts are found based upon the prehearing stipulation of the parties: a. Respondent is and has been, at all times material to the Administrative Complaint filed in the instant case and at all times relating to the hearings in the instant case, a licensed apprentice optician in the State of Florida, having been issued license number DA 0001541. Respondent's last known address is Brandywine Optical, 3112 N. Woodland Blvd., Brandywine Shopping Village, Deland, Florida. Respondent, David Somerville, is the owner of a business named Brandywine Optical located at 3112 North Woodland Blvd., Brandywine Shopping Village, Deland, Florida. Respondent is not now nor has he ever been licensed as an optician or optometrist in the State of Florida. On September 19, 1984, the Respondent filled out an application to be registered as an apprentice optician. On September 19, 1984, Madison Ziegler filled out an application to be Respondent's sponsor. The application signed by David Somerville stated that his supervising optician, Madison Ziegler, began supervising him on September 19, 1984. Ziegler was not present at the Respondent's optical shop on September 20, 1984, and in fact only worked one or two Saturday afternoons, in September. Madison Ziegler was employed full-time with Century 21 Optical, in Holly Hill, Florida. Part B Factual findings based upon the testimony adduced at hearing and in consideration of exhibits admitted at hearing: When Respondent made application to serve as an apprentice optician under the supervision of Madison Ziegler, on September 19, 1984, the arrangement called for forty-four hours of apprenticeship per week. This internship was to be performed at the business known as Brandywine Optical located at 3112 North Woodland Boulevard, Deland, Florida, respondent's business premises. On October 25, 1984, Geraldine B. Johnson, manager of the Office of Investigative Services for the Department of Professional Regulation, went to Brandywine Optical. She was accompanied by investigator Diane Radideau of the Department of Professional Regulation. While in the store, the only person in attendance was the Respondent. Johnson presented the Respondent with a prescription for eyeglasses, and the Respondent filled that prescription. In the course of this exchange, Respondent took the prescription from Ms. Johnson and assisted her in obtaining frames for the glasses. Respondent measured her eyes for trifocals and indicated that the glasses would be ready sometime within that week. On October 31, 1984, Ms. Johnson returned in the company of another employee of the Department of Professional Regulation, John E. Danson. At that time, no other persons were in the business premises of Brandywine Optical other than the Respondent and the two Department of Professional Regulation employees. Ms. Johnson obtained the glasses, Respondent fitted them on her face and provided her with a carrying case, the balance of the bill was paid and Ms. Johnson and Mr. Danson left the store. Before leaving, at the behest of Ms. Johnson, Respondent presented Ms. Johnson with a business card which identified the Respondent as dispensing optician and further indicated that Brandywine Optical was a store at which prescriptions involving eye glasses and contact glasses were filled. A photocopy of that card is found as part of the Petitioner's composite Exhibit 4 admitted into evidence. This also sets forth the prescription involved with Ms. Johnson's glasses, which Respondent placed on the back of the business card. On February 13, 1985, Respondent requested that the sponsorship of his apprentice training be transferred from Madison Ziegler to Leslie Virginia Darden. Within the Petitioner's composite Exhibit 6 is found a form, Apprentice Transfer of Sponsor, purportedly executed by Madison Ziegler indicating that he had supervised Respondent for a minimum of 40 hours per week between October 11, 1984, and January 18, 1985. This is an inaccurate portrayal. As stated before, Ziegler was involved in the supervision on only one or two Saturday afternoons in September 1984. Consequently, when Respondent transmitted with his Apprentice Transfer of Sponsor Request, the Apprentice Transfer of Sponsor form set out as an enclosure he was submitting information about his apprenticeship which was patently false related to the length of time over which Madison Ziegler had served as his sponsoring optician. On February 13, 1985, Leslie Virginia Darden executed the application for sponsorship of Respondent as apprentice optician. Leslie Virginia Darden was licensed by the state of Florida as an optician at that time. Her actual sponsorship of the Respondent took place over a period of approximately two days in February 1985. Upon the termination of the sponsorship, the Board of Opticianry was made aware of this change by telephone call from Ms. Darden. The effective date of termination of the sponsorship was February 19, 1985. A form executed by Ms. Darden further confirmed her choice to be removed as sponsor. This form, entitled Apprentice Optical Termination Form, is found as Petitioner's Exhibit 8 admitted into evidence. Ms. Darden also authorized Respondent to sign her name on a form known as Apprentice Transfer of Sponsor which is found as part of the Petitioner's composite Exhibit 6 admitted into evidence noting a change in sponsorship. As established in Petitioner's Exhibit 5 admitted into evidence, judgment and sentence in the case State of Florida vs. David Somerville, in the County Court in and for Volusia County, Florida - Div. "A," Case No. 84-15535-A, Respondent entered a plea of guilty to dispensing optical glasses without a license. He was placed on six months' probation and as a special term of probation was ordered not to dispense optical devices other than in accordance with a circumstance involving full-time supervision by a licensed optician. This judgment and sentence was placed against the Respondent on February 14, 1985. In February 1985, Samuel Rosenberg, who was licensed as an optician in the state of Florida, was contacted by the Respondent. An arrangement was made in which Rosenberg would work as an employee at Brandywine Optical for a period of twenty hours a week. This arrangement lasted for four or five weeks. It did not contemplate having Rosenberg sponsor the Respondent's apprenticeship. As reflected in Petitioner's Exhibit 7 admitted into evidence, on March 14, 1985, Samuel Rosenberg made application as sponsor of an apprenticeship program for the benefit of David Somerville. In that application it was indicated that Rosenberg would supervise the apprenticeship of Somerville for a period of forty hours a week. Initially there was an arrangement in which twelve hours of supervision was to be provided Somerville by Rosenberg in supervising work as an optician at a stand in a flea market. In addition, four days a week, for a total of twenty-eight hours, were given to Somerville under Rosenberg's supervision at the Brandywine Optical address. This arrangement lasted for about nine months. From that point forward, the arrangement was to have Rosenberg supervise Somerville at the flea market on Saturdays for eight hours and to provide thirty-two hours of supervision at Brandywine Optical Monday through Thursday. Rosenberg was led to believe that on Friday an optometrist was in the Brandywine Optical offices, and according to Somerville's remarks to Rosenberg, the optometrist does all work related to eye glasses, etc., and Somerville was only involved with the selection of eye glasses and use of the telephone, unrelated to the practice of opticianry. On August 27, 1985, Douglas Vanderbilt, an investigator with the Department of Professional Regulation, went to the Brandywine Optical store. When he entered the store, Somerville and another customer were the only persons he saw. The customer was trying on frames and making a selection of frames, with the assistance of Somerville. Vanderbilt picked out some frames that he wanted to buy. Somerville took the glasses that Vanderbilt had and made measurements from those glasses. This was in furtherance of the preparation of a new pair of spectacles at a cost of $110. Sixty dollars was paid down. Some of the measurements Somerville made pertaining to Vanderbilt involved bifocals. No prescription had been presented by Vanderbilt and Somerville used the old glasses which Vanderbilt had as a basis for measurement. Vanderbilt was presented with a business card which may be found as Petitioner's Exhibit 1 admitted into evidence. The business card reflects Brandywine Optical, prescriptions filled, eye glasses and contact lenses. It gives the business address and indicates that David Somerville is the dispensing optician. Somerville, upon the questioning of Vanderbilt, confirmed that the name Somerville reflected on the card and the Respondent Somerville were one and the same person. On September 9, 1985, Vanderbilt returned to the business premises at Brandywine Optical. At that time, only Somerville was present. Somerville broke the black stainless steel frame across the bridge of the new glasses. Consequently, Vanderbilt picked out a brown frame, and Somerville fitted the brown pair of glasses on Vanderbilt. AGGRAVATION Part C On February 28, 1986, Somerville entered a plea of nolo contendere to dispensing optical devices without a license in the action of State of Florida vs. David C. Somerville, in the County Court in and for Volusia County, Florida, Case No. 85-15487-A. He was given one year's probation to run consecutive to a previous probation and again cautioned not to conduct any business without the presence of supervisory personnel required in his apprenticeship status. In the course of the order of the court, reference was made to Section 484.007(e)(3), Florida Statutes, and Rule 21P-16.01(4), Florida Administrative Code. A copy of the information and judgment and sentence related to this matter may be found as Petitioner's composite Exhibit 10 admitted into evidence. This offense pertained to the circumstance of the purchase of spectacles by Vanderbilt.
