Findings Of Fact Respondent, Antonio V. Mallo, is a certified general contractor in Florida and has been issued license number CGC004868, issued as an individual. (Exhibit 1, TR 21.) During times material hereto, Respondent was a certified general contractor in Florida practicing under the subject reference license as an individual. On October 26, 1984, Robert Golden contracted with Magic Eye Remodeling for the construction of an addition to his home situated at 19701 Northeast 12th Court, North Miami, Florida for the sum of $36,000. The contract price included the cost for labor and materials for a "turn key" job. (Testimony of Robert Golden and Jose Garcia, TR 25, 110, Exhibit 3 and TR 24.) As stated, the contract called for the construction of the entire project including air conditioning, electrical work, tile and bathroom fixtures. (Testimony of Jose Garcia, Exhibit 3, TR 112.) Magic Eye Remodelers was not licensed to perform contracting in Florida. Luis Valido, president of Magic Eye, and Jose Garcia, an employee of Magic Eye, negotiated and signed the contract with Magic Eye and Golden. (Testimony of Garcia and Golden, TR 21, 22 and 112, Exhibits 1 and 2.) Although Valido and Garcia had discussions with Respondent at the time Magic Eye was negotiating a contract with Golden, Respondent was not signatory to the Golden-Magic Eye Contract. (Testimony of Robert Golden, TR 34.) On November 6, 1984, Respondent obtained building permit number 84-01- 123-3 from Metropolitan-Dade County for the subject work at the Golden residence. (Exhibit 4, TR 28.) Construction commenced at the Golden residence and progressed slowly until approximately April 4, 1985 when owner Golden observed Magic Eye (its employees) preparing to leave the job. During that time, Garcia informed Golden that they had misused the construction funds advanced and could not finish the project. During that discussion, Magic Eye offered to complete the job if Golden would pay for the necessary supplies. Golden agreed to pay for the supplies. (Testimony of Robert Golden, TR 32.) During mid April, 1985, Golden contacted Michael O'Connor, Dade County code enforcement officer about his problems with Magic Eye and Respondent. O'Connor informed Golden to contact the contractor who obtained the permit, i.e., Respondent. Subsequent to that conversation and prior to June 4, 1985, Respondent was contacted by Golden. He visited Golden's home and worked on the construction project with Luis Valido. (Testimony of Robert Golden, TR 38.) This was the first contact between Golden and Respondent and the first time Respondent visited the construction site. In this regard, Golden was employed in a capacity whereby he did work early morning and late evening hours and spent all of his daytime hours on the construction site. (Testimony of Robert Golden and Jose Garcia, TR 34 and 125.) On or about June 3, 1985, all work at the project ceased and the Respondent informed Golden that Valido did not want to work there anymore since he wasn't making any money. (Testimony of Golden) Golden thereafter reported the problem to Michael O'Connor and Bob Wolfe, an investigator with the Department of Professional Regulation. O'Connor thereafter informed Respondent that unless he could produce a contract between himself and Golden, criminal charges would be filed by the State's attorney's office. (Testimony of Mike O'Connor, TR 166.) While at Michael O'Connor's office to sign the complaint with Petitioner, Golden was contacted by Respondent who advised that he would contract to complete the project. (Testimony of Golden, TR 40.) On or about June 12, 1985, Golden and Respondent negotiated a contract to complete the work for the sum of $39,882 of which a credit for $38,383 was given for work already performed by Magic Eye. As contracted, Respondent would receive $1500, fifty percent of which would be paid at the beginning of the tiling work and the remainder at completion of the project. Respondent performed plumbing and metal overhang work at the site after the contract was signed. (Testimony of Robert Golden, TR 41, 48 and Exhibit 6.) On July 10, 1985, Respondent notified Golden he was leaving the job because Golden failed to sign a change order to the contract and make payment as per the contract of June 12, 1985. At that time, or subsequent thereto, Respondent had not submitted a change order to the contract to Golden. Additionally, no payment was due Respondent under the June 12, 1985 contract for the tile was not ordered until September, 1985. (Testimony of Robert Golden, TR 54 and Bob Wolfe, TR 99, Exhibit 8.) When Respondent left the Golden project, the construction was sixty percent completed. Golden completed the project under an owner-builder permit. The total cost for the project was $62,804. (TR 65, 66 and Exhibit 11.) During the hearing, Respondent raised a question as to the validity of Petitioner's Exhibit number 6, claiming in essence that it had been tampered with by Golden. An examination of all the evidence introduced herein reveals that the agreement (contract) between Respondent and Golden (Petitioner's Exhibit 6) was valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Respondent be assessed an administrative fine of $1,000. It is further recommended that Respondent's certified general contractor's license number CGC004868 be suspended for a period of two years. Provided however that Respondent make restitution to Robert Golden in the amount of $5,000, it is then recommended that the suspension be abated with Respondent's suspension reverting to a like term of probation. RECOMMENDED this 19th day of August, 1986, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 86-1458 Petitioner's Proposed Recommended Order Paragraph 22. Incorporated as modified. COPIES FURNISHED: Ray Shope, Esquire 130 North Monroe Street Department of Professional Regulation Tallahassee, Florida 32301 Mr. Antonio Mallo 1256 San Miguel Avenue Coral Gables, Florida 33134 Mr. Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Slocum Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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 At issue is whether Respondent materially failed to follow applicable ruling making procedures required by Section 120.54(2)(a), Florida Statutes, with regard to promulgation of proposed Rule 21P-16.002, Florida Administrative Code, relating toqualifications of sponsors for apprentice opticians; whether the proposed rule is an invalid exercise of delegated authority by Respondent; and whether Petitioners are parties substantially affected by the proposed rule.
Findings Of Fact Respondent is the state agency responsible for regulation of an apprenticeship program for candidates desiring licensure as opticians in the State of Florida. The apprenticeship program provides an alternate route to qualification to take the examination for licensure as an optician. Candidates may also qualify for examination by receipt of an associate degree in opticianry from an accredited educational institution or previous practice and licensure in other jurisdictions. Candidates electing to pursue licensure examination through the apprenticeship program as currently established must comply with provisions of Rule 21P-16.002, Florida Administrative Code. The current version of Rule 21P-16.002, Florida Administrative Code, states: 21P-16.002 Qualifications for Apprentices and Sponsors. Apprentices and sponsors for apprenticeship programs must meet the following qualifications: An apprentice must be at least 17 years old at the date of application; must submit a complete application for apprenticeship along with proof of having obtained a qualified sponsor; and must submit the registration fee required in Rule 21P-11.013. A sponsor must be an optician, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 21P-10.007 on the premises of any establishment in which apprentices are trained. Proposed Rule 21P-16.002, makes no changes to the existing sponsorship requirements found in paragraphs (1) and (2) of the present rule, but adds a new paragraph (3) which specifies the following: (3) No optician, physician or optometrist may serve as a sponsor unless he actually dispenses eyewear and maintains the required equipment on the same premises where the apprentice works. For example, an optician, physician or optometrist whose premises and equipment are distinct from the intended apprentice's work area cannot serve as a sponsor, even though the optician's, physician's or optometrist's premises are within the same office area or building. The proposed rule seeks to implement Section 484.007(1)(d)4., Florida Statutes, which provides an applicant may qualify to take the state opticianry licensure examination following completion of a three year apprenticeship "under the supervision of an optician, a physician, or an optometrist licensed under the laws of this state." Through promulgation of the new rule, Respondent seeks to correct a perceived deficiency in the degree of supervision provided by some sponsors to their apprentice opticians. The new proposed rule seeks to correct such deficiency through the prohibition of separate or "distinct" work areas for sponsor and apprentice; the requirement that the sponsor "dispense eyewear"; and the requirement for the sponsor to "maintain the equipment" used by the apprentice on the premises where both apprentice and sponsor work. Petitioners are corporate entities licensed to do business in the State of Florida. Petitioners operate various retail optical establishments engaged in providing opticianry services. While not licensed to perform opticianry services, Petitioners employ opticians and apprentice opticians for that purpose. Petitioners also have contractual relationships with licensed optometrists for the provision of optometric services at Petitioners' retail establishments. The employed opticians and contracted optometrists often act as sponsors for apprentice opticians employed in Petitioners' retail establishments. Generally, Petitioners' retail establishments haveseparated areas for optometry services, dispensing of eye wear and a laboratory for the preparation of lenses. In the various establishments, these areas are separated from each other by a permanent wall constructed of either glass or other solid, opaque substance. Two to four licensed opticians are employed in each of Petitioners' retail establishments. Each of these individual opticians, or a licensed optometrist under contract, may sponsor an apprentice optician employed by Petitioners. Often the sponsoring professional is otherwise occupied in these establishments and the apprentice, who is also generally an employee, may be required to perform certain functions without direct supervision by the sponsor. The proposed rule's requirement that a sponsor actually "dispense eyewear" results from Respondent's position that a sponsor should actually be performing that task in order to properly train an apprentice in the performance of that procedure. The proposed rule's requirement that a sponsor "maintains the required equipment on the same premises where the apprentice works" dictates that a sponsor must own the equipment used by the apprentice or otherwise be responsible for the provision of that equipment. Such a requirement may effectively prohibit opticians and optometrists employed by Petitioner from serving as sponsors where those employees do not own and are not otherwise responsible for providing, generally, the "required equipment" on the premises of Petitioners' various establishments. Petitioners argue that such de facto denial of sponsorship opportunities to opticians, optomertrists and physicians employed by them contravenes the statutory provision of Section 484.007(1)(d)4, Florida Statutes, that an apprenticeship be completed under the supervision of "an optician, a physician, or optomertrist licensed under the laws of this state." Such an argument is not credited in the absence of expressed legislative intent to grant sponsorship status to any of the licensed professionals denominated in the statute. Specifically, it is found that the referenced statutory provision sets a minimum requirement for sponsorship, as opposed to a limitation to establishment of further qualifications. Respondent's economic impact statement was prepared by counsel. Respondent's position, as expressed through testimony of its executive director, is that the proposed rule has no discernible direct adverse economic impact, although testimony presented by Petitioners supports the finding that the proposed rule change shall require at least some alteration of the physical arrangement at some of Petitioners' retail establishments in the event that Petitioners desire to continue present apprentice programs in their businesses.
Findings Of Fact On July 15, 1994, Petitioner applied to be licensed as an optician in Florida. She evidenced her intentions by completing the license application form, together with various supporting documents. Respondent denied the license application through an order dated August 25, 1994. This preliminary decision by the Respondent was contested by Petitioner when Petitioner sought an informal hearing. To resolve their dispute the Respondent received supplemental documents from Petitioner, to include tax returns. Petitioner submitted this information in September 1994. On November 4, 1994, Respondent conducted an informal hearing. On December 9, 1994, a final order was entered finding that Petitioner did not meet statutory criteria for licensure under Section 484.007(1)(d), Florida Statutes. Petitioner did not seek appellate review following entry of the final order. On July 12, 1995, Petitioner filed a second application to be licensed to practice opticianry in Florida. On August 29, 1995, Respondent entered a preliminary order denying the reapplication. As reasons for the denial it was stated: . . . The Board hereby states as the basis of this decision that you were previously denied licensure August 5, 1994; and there are three discrepancies of material fact regarding your work experience between your application dated July 18, 1994 and your subsequent application of July 21, 1995. See Sections 484.014(1)(a), Florida Statutes. . . . There were factual differences in the July 15, 1994 application compared to the July 12, 1995 application related to Petitioner's work experience. The July 15, 1994 application did not refer to work experience between May 1994 and December 1994 at Vision Work, Inc., an establishment located at 9480 Arlington Expressway, Regency Point, Jacksonville, Florida. The July 12, 1995 application did describe that experience. To explain this discrepancy, Petitioner indicated that the job at Vision Work had been a temporary/part-time job that she did not expect to last as long as it did. This is taken to mean that the reference to Vision Work was not set forth in the July 15, 1994 application in that it was a temporary position at that time. Petitioner indicated that when she filled out the July 15, 1994 application she had only worked at Vision Work since May, one Saturday a month. After being there through August she started working nights and every Saturday and Sunday, making it a more permanent position. In the July 15, 1994 application Petitioner related work experience for National Optical at No. 9 Best Square, Norfolk, Virginia, from August 19, 1987 until March 19, 1993. In the July 12, 1995 application the National Optical work experience was described as March 19, 1989 through March 19, 1993. Otherwise reference to the work experience for National Optical set forth in the two applications remained consistent. In explanation, Petitioner stated that she had worked part-time from August 19, 1987 until 1989 when she began full-time employment at National Optical. The reason for making the change between the two applications was based upon discussions at an appearance before the Respondent in which someone had asked Petitioner about working two jobs that overlapped. This is referring to an appearance before the Board associated with the 1994 application. By the change in the 1995 application concerning Petitioner's work experience, she sought to clarify the circumstance related to working two jobs at the same time by pointing out the date upon which the National Optical job became a full-time job. In the discussions held with the Respondent related to the 1994 application, Petitioner made the Respondent aware that the National Optical employment became full-time on March 19, 1989. This beginning date coincides with the information in the July 12, 1995 application. The July 15, 1994 application stated that Petitioner had worked for the Navy Exchange Optical at Bldg C-9 in Norfolk, Virginia from April 24, 1984 until March 7, 1987. In the July 12, 1994 application the concluding date became March 3, 1989. Otherwise the two applications were essentially the same. In explanation, Petitioner stated that she had made a mistake in the 1994 application as to the concluding date and that this had been brought to her attention in the hearing before Respondent to consider the 1994 application. After Petitioner had been denied licensure in the 1994 informal hearing, someone pointed out that Petitioner had worked with the Navy Exchange Optical for a period of three years. Petitioner then realized that she had been in that position for a longer period. As a consequence the 1995 application was corrected to reflect the proper end date. The reference which Petitioner made before Respondent to working two jobs corresponds to a part-time position at National Optical while working full- time at the Navy Exchange Optical, both in Norfolk, Virginia. When Petitioner made reapplication on July 12, 1995, she was aware that the Respondent had received and reviewed the prior application dated July 15, 1994. Under that circumstance and given the explanations at hearing for the discrepancies between the two applications as reported in the facts, Petitioner is not found to have intended to misrepresent or commit fraud when reapplying for licensure or to have misrepresented or committed fraud.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which denies the 1995 application for a license to practice opticianry on the merits, but sets aside the grounds for denial related to alleged discrepancies of material fact pertaining to the 1994 application when compared to the 1995 application. DONE and ENTERED this 5th day of January, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 5th day of January, 1996.
The Issue The issue for determination in this case is whether Respondent's license to practice medicine in the State of Florida should be disciplined for disseminating, or causing the dissemination of an advertisement that was false, deceptive or misleading in violation of Rule 59R-11.001, Florida Administrative Code, and Section 458.331(1)(x), Florida Statutes.
Findings Of Fact Petitioner, AGENCY FOR HEALTH CARE ADMINISTRATION (AHCA), is the agency of the State of Florida vested with the statutory authority under Chapter 458, Florida Statutes, to regulate the practice of medicine. Respondent, JONATHAN M. FRANTZ, M.D., is and at all material times has been, a licensed physician in the State of Florida, having been issued license number ME 0054884. Respondent graduated from the University of Miami School of Medicine in 1983, and thereafter entered a residency program in Opthamology at the Louisiana State University Eye Center in New Orleans, Louisiana, where from 1987 to 1989 Respondent was a Fellow in Cornea, External Disease, and Refractive Surgery. During his Fellowship at the Louisiana State University Eye Center, Respondent participated in the initial research projects involving the Excimer Laser Procedure, which at that time was exclusively an investigational device. The term "investigational device" is a technical term used by the Food and Drug Administration (FDA) and medical researchers. The term means that a device has yet to be approved for treatment of human patients by the FDA and that its use is limited by the FDA to research investigations. The Excimer Laser is a device that projects a wavelength of light over the surface of the cornea to treat nearsightedness and astigmatism. The wavelength of light removes irregularities on the surface of the cornea or anterior corneal tissue in order to change the refraction of the eye and improve the patient's eyesight. At all material times, the Excimer Laser was an investigational device. Radial Keratotomy is, and at all material times was an FDA approved procedure for the treatment of nearsightedness and astigmatism. The Excimer Laser procedure differs from Radial Keratotomy in that Radial Keratotomy is a procedure in which incisions are made to the corneal tissue itself. The incisions allow for the flattening of the center of the cornea, and thus, unlike the Excimer Laser, actually change the structure of the cornea. During his Fellowship, Respondent participated in primate and human research involving the Excimer Laser, and assisted in the development of protocols for use in the first treatment of human patients with the device. Respondent received a research award from the National Eye Institute for his investigative work with the Excimer Laser. Respondent has published several articles in medical literature relating to the Excimer Laser. Respondent is certified by the American Board of Opthamology, and is a member of the American Academy of Opthamology. After completion of his Fellowship, Respondent entered private practice in Ft. Myers, Florida. While in private practice, Respondent continued his research work with the Excimer Laser. In 1990, Respondent was selected as one of a small group of physicians to conduct Excimer Laser investigational treatments on patients. As a principal investigator, Respondent treated patients with all degrees of nearsightedness and astigmatism. In May of 1993 Respondent was employed by Eye Centers of Florida located in Ft. Myers, Florida. Respondent performed Excimer Laser investigational procedures while so employed. At this time, the Excimer Laser procedure was also being performed by Dr. James J. Rowsey, Jr., Chairman of the Department of Opthamology at the University of South Florida in Tampa, Florida. The Excimer Laser procedure performed at the University of South Florida offered a different protocol than that offered by Respondent at the Eye Centers of Florida. Respondent was the only Opthamologist in Florida offering Excimer Laser procedures for patients with all degrees of nearsightedness and astigmatism, as well as offering Radial Keratotomy. In addition to his expertise in Opthamology, Dr. Rowsey has extensive expertise in the area of ethical medical advertising. On May 23, 1993, the following advertisement was published in the Charlotte Sun Herald, a Florida newspaper: Jonathan M. Frantz, M.D., corneal specialist with the Eye Centers of Florida, invites you to join him for an exciting lecture on the newest breakthroughs in eye surgery - the Excimer laser and Radial Keratotomy (RK). Eye Care Centers of Florida is the only eye care center in Florida that offers both options. Come to our free seminar and find out how you can reduce your need for glasses or contact lenses. EXCIMER LASER RADIAL KERATOTOMY THE CORRECTION OF NEARSIGHTEDNESS AND ASTIGMATISM FREE ADMISSION AND SCREENING FOR EXCIMER LASER AVAILABLE PLEASE BRING GLASSES AND/OR CURRENT EYE GLASS PRESCRIPTION WEDNESDAY, MAY 26 7:00 PM FIRST FEDERAL BANK BUILDING 3524 D TAMIAMI TRAIL (SECOND FLOOR) PORT CHARLOTTE RESERVATIONS 1-800-226-3377 OR 1-813-939-3456 EYE CENTERS OF FLORIDA Helping You See Your Best 4101 Evans Avenue Fort Myers, Florida (Caution: The Excimer Laser is an Investigational Device. Limited by Federal Law to Investigational Use.) The advertisement also contained Respondent's picture, and the logo for the Eye Centers of Florida. The advertisement was composed by a marketing agency retained by the Eye Centers of Florida. Respondent was generally aware of the contents of the advertisement, but did not give specific approval for the placement of the advertisement. Respondent was aware that the advertisement of the Excimer Laser required cautionary language stating that the procedure was an investigational device limited by the FDA. The advertisement clearly states that the Excimer Laser is an investigational device limited by the FDA. The advertisement is a public invitation to attend a lecture given by Respondent concerning the Excimer Laser and Radial Keratotomy. At the lecture, Respondent explained that the Excimer Laser was an investigational device. Thereafter a person seeking Excimer Laser treatment was given a consent form that explained in detail the investigatory nature of the procedure. As a principal investigator Respondent was limited in the number of patients he could treat with the Excimer Laser. Respondent received an economic benefit from the treatment of patients with the Excimer Laser. As a result of the investigational efforts of Respondent and other medical researchers, the Excimer Laser was proved to have beneficial results in the treatment of nearsightedness and astigmatism. Subsequent to the publication of the advertisement, the Excimer Laser received FDA approval. The advertisement was reviewed by Norman S. Levy, M.D., Ph.D., an Opthamologist, and Director of the Florida Opthamologic Institute in Gainesville, Florida. As an expert in Opthamology, Dr. Levy opined that the advertisement published in this case was deceptive in that the advertisement implied that the Excimer Laser and Radial Keratotomy procedures were equally available, and the experimental nature of the Excimer Laser procedure was not clear from the advertisement. The advertisement was also reviewed by Dr. Rowsey, who opined that the advertisement was not misleading or deceptive, that the advertisement clearly contained cautionary language stating that the Excimer Laser was at that time an investigational device, and that the advertisement was merely a public invitation to a lecture to obtain more information regarding these procedures. In this respect, Dr. Rowsey has specific and extensive experience with the Excimer Laser, as well as in medical ethics, and his opinion on this issue is deemed more credible. There is no evidence that a patient of the Respondent's was deceived or mislead by the advertisement.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Petitioner, the AGENCY FOR HEALTH CARE ADMINISTRATION, enter a final order dismissing the Administrative Complaint filed against Respondent JONATHAN M. FRANTZ, M.D., in the above-styled case. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of January, 1996. RICHARD HIXSON, 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 24th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3773 Petitioner's Proposed Findings of Fact. 1.-6 Accepted and incorporated. Rejected to the extent that Respondent personally approved the advertisement. Rejected to the extent that a lay person could be misled. Rejected as not supported by the weight of evidence. Respondent's Proposed Findings of Fact. 1.&2. Accepted and incorporated. 3. Rejected as irrelevant. 4.-.7. Accepted and incorporated. 8.&9. Rejected as not necessary. 10.-12. Accepted and incorporated. 13. Rejected as not necessary. 14.-16. Accepted and incorporated. 17. Rejected as not necessary. 18.-26. Accepted and incorporated. COPIES FURNISHED: Joseph S. Garwood, Esquire AHCA - Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Lauro, Esquire Barnett Plaza, Suite 3950 101 East Kennedy Boulevard Tampa, Florida 33602
Findings Of Fact Respondent, Santiago F. Suarez (Suarez), was at all times material hereto licensed as a physician in the State of Florida, and held license number ME 0030132. Suarez is a family practitioner, and has no specialized training relating to the human eye. He has never performed a refraction or prescribed eyeglasses during his medical career, nor has he had any training or experience in prescribing and fitting contact lenses.1 Commencing in the latter part of 1983 and continuing through the early part of 1984, Suarez acted as the supervising physician for Reynaldo Avello (Avello) when he performed refractions or fit contact lenses on clients of the Optical Medical Center; a business owned by Avello. During this time period, Avello routinely refracted the vision of his clients; measured the eyes of clients who desired contact lenses; prescribed eyeglasses and contact lenses; and prepared, dispensed or fit eyeglasses and contact lenses for his clients as well as clients of optometrists and ophthalmologists. Avello is not, and never has been, a licensed optician or optometrist, and he has no formal education or training beyond high school. Consequently, his activities were proscribed by law unless they were appropriately delegated and supervised by a medical doctor.2 Chapter 463 and 484, Part I, Florida Statutes. In this case Avello, not Suarez, prescribed eyeglasses and contact lenses. Avello conducted the eye examination, but limited his practice to refracting the eye and, when appropriate, to measuring the eye for contact lenses. Although Avello was ostensibly practicing under Suarez' supervision, Suarez was not competent to perform a refraction, or to prescribe and fit eyeglasses and contact lenses. In fact, Suarez took no active part when client's eyes were refracted, but deferred to Avello's "expertise." Suarez limited his involvement to securing a brief medical history from the client, and being available in case an emergency arose.3 Suarez' reliance on Avello's "expertise," without inquiring as to his training and experience, was a serious error in judgment. The only training Avello had in refracting the human eye occurred while he was employed part-time by the Union Latina clinic in Hialeah, immediately before he opened the Optical Medical Center. During his employment at the clinic, Avello was shown how to do a refraction by a board qualified ophthalmologist, but he never performed any refractions under that ophthalmologist's supervision. In March 1980, Avello opened the Optical Medical Center. With the exception of the period during which Suarez supervised Avello, the center has always had in its employ a board qualified or certified ophthalmologist. During those times, all eye examinations were performed by the ophthalmologist, and Avello did no refracting. While Avello considers himself qualified to do refracting, the proof regarding his training and experience renders his opinion unpersuasive. At no time was he shown to have worked under the supervision of a qualified practitioner, and no qualified practitioner was shown to be familiar with the quality of his work. Further, Avello was not shown to have had any qualified training or experience in measuring the human eye; prescribing eye glasses and contact lenses; or preparing, dispensing, and fitting eyeglasses and contact lenses. Accordingly, the proof established that Suarez accepted and performed professional responsibilities which he knew he was not competent to perform, that he assisted an unlicensed person to practice medicine contrary to law, and that he delegated professional responsibilities to a person he should have known was not qualified to perform them. The proof further established that the existent community standard required that a complete eye examination be performed before eyeglasses or contact lenses could be prescribed, and that such standard was breached. Suarez' failings could have resulted in profound adverse consequences to those patrons who were ostensibly refracted and fitted under his supervision. Improperly fit eyeglasses can result in blurred vision and nausea. More importantly, improperly fit contact lenses can result in permanent visual damage to the eye. In mitigation, Suarez avers that he agreed to supervise Avello out of a sense of personal obligation, not profit; that his employment was to be for the limited time it took Avello to secure the services of another physician; and, that when he undertook to supervise Avello he believed such activity to be legal. Suarez also offered for consideration in mitigation the fact that he cooperated in the investigation of the Optical Medical Center, and the fact that he had never previously been disciplined. Suarez' plea in mitigation is largely unpersuasive. While he may have undertaken Avello's supervision out of a sense of personal obligation, it was not without the expectation of compensation. Suarez and Avello had agreed, that if their association proved profitable, he would be compensated for his services. Notably, while Suarez' desire to fulfill a personal obligation is admirable, its priority is far below that owed to those to whom he professed to render a professional service. In this case, Suarez' supervision permitted an unqualified person to render professional services that he, as a medical doctor, was not qualified to perform, and therefore not qualified to supervise. No physician could reasonably believe such conduct was appropriate.4 Suarez' assertion that his association with Avello was to be of limited duration is not only irrelevant, but contrary to the proof. Suarez supervised Avello for 1 1/2 years, and there was no showing that Avello or Suarez made any effort during that period to hasten his replacement. Notably, during his association with Avello's business, the front of the store proclaimed in bold guilding "Optical Medical Center, Santiago F. Suarez, M.D." Under the circumstances, the proof does not suggest that their association was to be casual or of short duration.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The medical license of Respondent, Santiago F. Suarez, be suspended for a period of one (1) year, and that during the period of such suspension Respondent be required to complete such courses as the Board of Medicine may require to demonstrate an adequate comprehension of professional ethics, scope of practice for a family practitioner and delegation of professional responsibility; and An administrative fine in the sum of $2,000.00 be ~ assessed against Respondent, Santiago F. Suarez. DONE and ORDERED this 15th day of September, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 15th day of September, 1987.
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 The issue in this case is whether Respondent, Frank J. Polacek, V, committed the violations alleged in an Administrative Complaint filed with Petitioner March 15, 2006, DBPR Case Nos. 2005-036101, 2005-035843, 2004-056690, 2005- 045647, and 2005-034560, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Ch. 689, Fla. Stat. Respondent, Frank J. Polacek, V, is and has been at all times material hereto a licensed certified general contractor in Florida. Mr. Polacek's license number is CG C059603. At all times material hereto, the status of his license has been "Current, Active." At all times material, Mr. Polacek was certified as doing business as Endeavor Development, Inc (hereinafter referred to as "Endeavor"), a Florida corporation. Endeavor possessed a certificate of authority as a qualified business organization. The Department has jurisdiction over Mr. Polacek's license. Dalton Design, Inc.; Department Case No. 2004-056690. On June 29, 2004, Terri Ferrando, owner of Dalton Design, Inc. (hereinafter referred to as "Dalton Design"), entered into a contract with Mr. Polacek, acting as Endeavor (hereinafter referred to as the "Dalton Design Contract"). Pursuant to the Dalton Design Contract, Mr. Polacek agreed to renovate a bathroom of an apartment owned by a client of Dalton. The apartment is located in Delray Beach, Florida. Dalton Design agreed to pay Mr. Polacek $15,871.00 in exchange for his services. Mr. Polacek failed to include notification of the existence and availability of the Construction Industry Recovery Fund in the Dalton Design Contract. See § 489.1425(a), Fla. Stat. As contemplated by the Dalton Design Contract, Dalton Design paid $7,935.50, or 50 percent of the total contract price, to Mr. Polacek as a deposit. The deposit was paid via check dated June 29, 2004. A small of amount of work, consisting of demolition, was commenced on the Dalton Design Contract by Mr. Polacek. The demolition work was the only work performed by Mr. Polacek. The work performed by Mr. Polacek was significantly less than the amount he had been paid by Dalton Design. On or about May 16, 2005, Mr. Polacek abandoned the Dalton Design Contract when he wrote a letter to Ms. Ferrando and Dalton Design. Mr. Polacek stated the following in the letter: Please acknowledge this written notice that as a result of hurricane frances we will be unable to provide Dalton designs [sic] or their related customers with construction services this will be effective immediately and a partial refund of construction moneys will be refunded within one week. The refund was never made, despite efforts of Ms. Ferrando to contact Mr. Polacek by telephone, in writing, and in person. The Dalton Design Contract provided that "August 20, 2004, is the last day for work, and everything must be completed at that time." Because Mr. Polacek failed to perform work on the project and in light of his termination letter, Ms. Ferrando arranged to have the project completed by another contractor. That contractor performed the same work formerly agreed to by Mr. Polacek. The total costs of completing the Dalton Design Contract work was $16,877.33 and was paid by Dalton Design. Damages sustained by Dalton Design as a result of Mr. Polacek's abandonment of the Dalton Design Contract include the $7,935.50 deposit plus the amount of $1,006.33 paid to complete the project in excess of the original contract price ($16,877.33 minus $15,871.00) or a total of $8,941.83. The Department incurred costs investigating Case No. 2004-056690 of $616.88. The evidence failed to prove that Mr. Polacek failed to obtain the necessary permits or inspections for the work performed on the Dalton Design Contract. Palm Beach Biltmore Condominium Association; Department Case No. 2005-045647. In August 2004, Richard Brooks, the manager of the Palm Beach Biltmore Condominium Association (hereinafter referred to as the "Biltmore"), entered into a contract with Mr. Polacek, doing business as Endeavor (hereinafter referred to as the "Biltmore Contract"). The Biltmore Contract provided, in pertinent part, that Mr. Polacek would provide the following services to Biltmore: Propose to remove and replace two matching exterior access ladders to elevator service shafts. Remove all existing steel support brackets and prepare new surface for the installation of the new aluminum ladders. . . . Provide and install new 16' custom fabricated alluminum [sic] ladders same locations with no powder coated finish. In exchange for the foregoing services, Biltmore agreed to pay Mr. Polacek $5,000.00, "50% of the total sum due upon agreement; 50% of total sum due promptly upon completion." Biltmore paid Mr. Polacek $2,500.00 via check on August 18, 2004. Despite having been paid half the Biltmore Contract price, Mr. Polacek performed none of the services he had agreed to perform. Mr. Brooks made several efforts to communicate with Mr. Polacek by telephone and mail, but was unsuccessful. Mr. Polacek abandoned the Biltmore Contract for well in excess of 90 days. Mr. Polacek failed to refund any amount of the $2,500.00 down-payment paid to him by Biltmore. Thus Biltmore suffered damages of $2,500.00. The Department incurred costs investigating Case No. 2005-045647 of $266.33. A. Carter Pottash; Department Case No. 2005-034560. On August 9, 2004, A. Carter Pottash, M.D., entered into a contract with Dr. Polacek, doing business as Endeavor (hereinafter referred to as the "Pottash Contract"). The Pottash Contract provided, in pertinent part, that Mr. Polacek would remodel three condominium apartments owned by Dr. Pottash, converting the three apartments into one living space. In exchange for his services Mr. Polacek agreed to provide under the Pottash Contract, Dr. Pottash agreed to pay Mr. Polacek $170,821.00, "50% of the total due upon agreement; 35% of total sum due at 50% of completion; 15% of total sum due upon completion." Mr. Polacek failed to include notification of the existence and availability of the Construction Industry Recovery Fund in the Pottash Contract. See § 489.1425(a), Fla. Stat. As contemplated by the Pottash Contract, Dr. Pottash paid Mr. Polacek a total of $155,322.50, or 90 percent of the total contract price, between August 19, 2004, and October 22, 2004. The payments were made via check and wire transfer. Mr. Polacek commenced work on the Pottash Contract by performing demolition work, installing drywall, and performing some but not all of the finishing work. After November 1, 2004, no work was performed on the Pottash Contract by Mr. Polacek. Between November 1, 2004, and January 5, 2005, having invested a significant amount of money in the project, Dr. Pottash made numerous unsuccessful attempts via telephone, personal visits, and in writing to contact Mr. Polacek. As a result of the work Mr. Polacek did perform, he incurred financial obligations to sub-contractors. Some of the obligations were not paid by Mr. Polacek, resulting in three Claims of Liens being filed against Dr. Pottash's property. The liens, each one for $2,166.50, were filed by T & F General Contracting, Inc. (hereinafter referred to as "T & F"). T & F had performed some of the finishing work on the project. On or about March 22, 2005, Mr. Polacek abandoned the Pottash Contract when he wrote a letter to Dr. Pottash, in which he stated the following: Please acknowledge this written notice that ENDEAVOR DEV. INC. will no longer be performing any construction related services to you at the Palm Bch. Biltmore. By law I am bound to cancel all my permits or transfer them to your new contractor. I will inform the Palm Bch. Bldg. Dept. in writing. I am truley [sic] sorry for the problems we have had between us. I want to do whatever is possible to resolve this situation in your favor. Please respond if you are willing. Mr. Polacek did nothing to resolve his failure to perform. Nor did he make any refund of the moneys paid to him under the Pottash Contract, which exceeded the amount paid by Dr. Pottash to Mr. Polacek. Due to Mr. Polacek's failure to perform, Dr. Pottash had to hire other contractors to complete the project. He did so, acting as his own general contractor, completing the project in essentially the same manner contemplated by the Pottash Contract. Dr. Pottash incurred costs to complete the Pottash Contract totaling $90,280.77. These costs were paid by checks ($58,716.48) and credit card ($31,564.29). Dr. Pottash also paid a total of $3,653.50 to remove one of the three T & F liens. The total cost of completing the Pottash Contract incurred by Dr. Pottash was $93,934.27. Damages sustained by Dr. Pottash as a result of Mr. Polacek's abandonment of the Pottash Contract total $78,435.77, calculated as follows: Total Contract Price: $170,821.00 Amount Paid: 155,322.50 Amount To Be Paid: $ 15,498.50 Amount Paid To Complete: $ 93,934,27 Amount To Be Paid: 15,498.50 Total Financial Harm: $ 78,435.77 The Department incurred costs investigating Case No. 2005-034560 of $565.61. Alexander Rentz and Diane Jackson; Department Case No. 2005-036101. On January 13, 2005, Alexander Rentz and Diane Jackson, entered into a contract with Mr. Polacek, doing business as Endeavor (hereinafter referred to as the "Rentz/Jackson Contract"). The Rentz/Jackson Contract provided, in pertinent part, that Mr. Polacek would make repairs to their Lake Park, Florida, home caused by hurricane damage. In exchange for Mr. Polacek's services, Mr. Rentz and Ms. Jackson agreed to pay him $26,346.10, "1/3 upon agreement/ 1/3 at 50%/ 1/3 at complete." On January 14, 2005, an addendum to the Rentz/Jackson Contract was executed by Mr. Polacek whereby he agreed to remove and replace carpeting and padding. In exchange for these services, Mr. Rentz and Ms. Jackson agreed to pay an additional $1,520.00. Mr. Polacek failed to include notification of the existence and availability of the Construction Industry Recovery Fund in the Rentz/Jackson Contract. See § 489.1425(a), Fla. Stat. Mr. Rentz and Ms. Jackson paid Mr. Polacek a total of $13,933.05 via three checks issued on January 13, 2005, February 1, 2005, and February 11, 2005. Mr. Polacek commenced work on the Rentz/Jackson Contract by partially taking down a wooden fence on the property. After taking down the fence, no work, not even the removal of the fencing material, was performed on the Rentz/Jackson Contract by Mr. Polacek. On February 22, 2005, after efforts to get Mr. Polacek to return to the job failed, Mr. Polacek wrote a letter to Mr. Rentz and Ms. Jackson in which he abandoned the Rentz/Jackson Contract, stating: Please acknowledge this written notice. Since we have not heard from you w/ a decision on whether to proceed w/your job we can only assume you want to terminate the contract. Out last conversation on 2-15-05 Ms. Jackson was irate and threatened to sue our Co. if we could not produce roofing shingles. All supply Co's are on a back log and shingles are being allocated. We do not controll [sic] the production of shingles and we warned you of this problem at the start of our engagement. Fax us a letter of termination and the total of all $ will be returned in 30 days. Mr. Polacek's explanation concerning the unavailability of shingles, even if it had been supported by evidence at the final hearing, which it was not, fails to explain why none of the other work called for in the Rentz/Jackson Contract was performed. Mr. Rentz and Ms. Jackson did not at anytime terminate their contract. Instead, they made numerous efforts to get Mr. Polacek to carry out the terms of their agreement. Efforts to discuss the matter with Mr. Polacek were ultimately unsuccessful. Due to Mr. Polacek's failure to perform, Mr. Rentz and Ms. Jackson were required to hire another contractor, Built Right Construction, Inc. (hereinafter referred to as "Built Right"), to complete the project. The same services contemplated by the Rentz/Jackson Contract were ultimately performed by Built Right. The contract price for Built Right's services, including contract addendums, totaled $33,293.95. This amount was paid via checks by Mr. Rentz and Ms. Jackson. Damages sustained by Mr. Rentz and Ms. Jackson as a result of Mr. Polacek's abandonment of the Rentz/Jackson Contract totaled $19,360.90, calculated as follows: Total Contract Price: $27,866.10 Amount Paid: 13,933.05 Amount To Be Paid: $13,933.05 Amount Paid To Complete $33,293.95 Amount To Be Paid: 13,933.05 Total Financial Harm: $19,360.90 54. The Department incurred costs investigating Case No. 2005-036101 of $457.00. The evidence failed to prove that Mr. Polacek failed to apply for any permits required by the Rentz/Jackson Contract or that Endeavor was not in compliance with fictitious-name statutes. Nancy Sarro; Department Case No. 2005-035843. On April 17, 2005, Nancy Sarro, entered into a contract with Mr. Polacek, doing business as Endeavor (hereinafter referred to as the "Sarro Contract"). The Sarro Contract provided, in pertinent part, that Mr. Polacek would remodel the Sarro residence located in Jupiter, Florida. In exchange for Mr. Polacek's services, the Sarros agreed to pay Mr. Polacek $23,919.75, "50% of total sum upon agreement; 25% of total sum at 50% complete; 15% of total sum at 75% complete; 10% of total sum at 100% complete." Mr. Polacek failed to include notification of the existence and availability of the Construction Industry Recovery Fund in the Sarro Contract. See § 489.1425(a), Fla. Stat. Ms. Sarro paid Mr. Polacek a total of $11,039.87, or 46 percent of the total contract price, via check issued April 17, 2005. Mr. Polacek commenced work on the Sarro Contract by demolishing a small wooden deck at the rear of the Sarro residence and removing the front door of the residence, leaving the residence without a front door. After taking performing the foregoing work, no further work was performed on the Sarro Contract by Mr. Polacek. On May 16, 2005, after efforts to get Mr. Polacek to return to the job failed, Mr. Polacek wrote a letter to Ms. Sarro in which he abandoned the Sarro Contract, stating: Please acknowledge this written notice that Endeavor Dev. Inc. will no longer be providing construction services to you at . . . . My attorney will contact you to discuss the matter of our deposit. Do not attempt to contact Ms. Jessica Jolley or her family members regarding this matter. They are going to press charges against you for harassment. Endeavor Dev. Ind. Has had no in-tent [sic] to defraud or abandone [sic] your job and Ms. Jolley is not an employee of the Co. nor did she recieve [sic] anymoneys from you so please leave my girlfriend out of this matter. I will be contacting you via my attorney. Ms. Sarro made attempts to contact Mr. Polacek, but was unsuccessful. At no time, however, did Ms. Sarro abandon or otherwise attempt to terminate the Sarro Contract. Mr. Polacek subsequently sent a second letter to Ms. Sarro promising that the money paid as a deposit on the Sarro Contract would be refunded. Mr. Polacek did not, however, return any moneys to Ms. Sarro or complete any further work on the Sarro Contract. Damages sustained by Ms. Sarro as a result of Mr. Polacek's abandonment of the Sarro Contract totaled $11,039.87. The Department incurred costs investigating Case No. 2005-035843 of $368.76. Incompetency or Mismanagement in the Practice of Contracting. Mr. Polacek caused damages on the five contracts at issue in this case totaling $120,278.37. He did so without explanation to the individuals for whom he had contracted with.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Finding that Frank Joseph Polacek, V, committed the violations alleged in Counts I, IV through VII, IX through XII, and XV through XXV of the Administrative Complaint; Dismissing Counts II, III, VIII, XIII, and XIV of the Administrative Complaint; and Imposing an administrative fine in the total amount of $26,000.00; requiring that Mr. Polacek pay restitution on the five contracts equal to the amount of damages found in this Recommended Order; requiring that Mr. Polacek pay $2,275.58 as the costs of the investigation and prosecution of this matter; and that his license be permanently revoked. DONE AND ENTERED this 20th day of September, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 20th day of September, 2006. COPIES FURNISHED: Jeffrey J. Kelly, Esquire Department of Business and Professional Regulation Post Office Box 1489 Tallahassee, Florida 32302 Frank Joseph Polacek, V 5245 Center Street Jupiter, Florida 33401 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Petitioner Dyer Kemp Garvin, Jr., has never completed a course of study at a recognized school of opticianry. On April 2, 1957, however, he began working and training under Ralph C. Cronbaugh, a licensed optician, at Daytona Optical Center in Daytona Beach, Florida. He learned how to read a lensometer, interpret prescriptions for eyeglasses, figure base curves, measure the seg height and various physiognomic features, cut and edge lenses, fit lenses to the frame and so forth. Petitioner worked under Mr. Cronbaugh's supervision an average of 48 or 50 hours a week continuously until June of 1961, even though the training program as such ended after three years. Some time before June of 1961, petitioner registered as an apprentice with and paid a fee to the Florida Association of Dispensing Opticians. On June 3, 1961, petitioner became a member of the Florida Association of Dispensing Opticians. Some 15 years later the Florida Board of Opticianry instituted its own apprenticeship program for the first time. From June of 1961 until at least June of 1963, petitioner remained at the Daytona Optical Center under the supervision of Steve Stevenson, a licensed optician. For nine months or a year longer, he worked under a third licensed optician at the Daytona Optical Center, Andrew H. Hollaway. Petitioner moved to Alabama from Daytona Beach. There he managed an office for Bausch-Lomb in Birmingham, then went into business for himself under the name Jasper Optical Center in Jasper, Alabama. He actively practiced as a dispensing optician in Jasper for more than three years immediately preceding his application for licensure in Florida. Petitioner is a past vice-president of the Alabama Society of Dispensing Opticians and a former member of the board of directors of the International Society of Dispensing Opticians. He is now licensed as a dispensing optician in Alabama and has been for the last 18 years. Petitioner's Exhibit Nos. 3 and 4. Although the licensing scheme in Alabama is different from Florida's, petitioner's uncontroverted testimony was that he holds and has held a state occupational license in Alabama. This is corroborated by the affidavit of an Alabama judge, Petitioner's Exhibit No. 4, and a copy of petitioner's 1981-1982 license. Petitioner's Exhibit No. 3. For the past six years, petitioner and other dispensing opticians have worked to establish a state board to regulate opticianry in Alabama, but these efforts have been stymied by optometrists who have successfully opposed the legislation. As a matter of policy, respondent refuses to let dispensing opticians licensed in Alabama and other states with similar regulatory arrangements take the Florida dispensing opticianry examination. In preparing the foregoing findings of fact, the hearing officer has had the benefit of petitioner's post-hearing correspondence and respondent's proposed recommended order. Proposed fact findings that have not been adopted have been rejected as irrelevant or unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent admit petitioner to the dispensing opiticanry examination and license petitioner as a dispensing optician if he successfully completes the examination. DONE and ENTERED this 4th day of June, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1982. COPIES FURNISHED: Dyer Kemp Garvin, Jr. Post Office Box 1127 Destin, Florida 32541 Chris D. Rolle, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Suite 1602 Tallahassee, Florida 32301 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 ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION DYER KEMP GARVIN, JR. Petitioner, vs. DOAH CASE NO. 82-484 STATE OF FLORIDA, DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTICIANRY, Respondent. /
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."
