Findings Of Fact Respondent, Mark N. Dobin (Dobin), was at all times material hereto licensed to practice optometry in the State of Florida, and held license number OP 0001202. Inadequate Eye Examinations On November 5, 1985, Alison Lichtenstein, an investigator employed by the Department of Professional Regulation (DPR), entered Dobin's offices in Margate, Florida. Using the assumed name of Alison Smith, Ms. Lichtenstein, who was wearing glasses at the time, requested that Dobin perform a routine eye examination, with the exception of tonometry. Dobin undertook the requested examination, and was paid his fee of $25.00. The visual analysis performed by Dobin on Ms. Lichtenstein failed to include the following minimum proceduresrequired by Rule 21Q-3.007, Florida Administrative Code: (a) an adequate patient history, since he failed to inquire whether Lichtenstein was taking any medication; (b) an external examination; (c) a pupillary examination; (d) visual field testing; and (e) a biomicroscopy. On November 5, 1985, Mary Pfab, a licensed optometrist in the State of Florida, entered Dobin's offices in Margate, Florida. Using the assumed name of Mary Parker, Ms. Pfab, who was wearing contact lenses, requested that Dobin perform a routine eye examination, with the exception of tonometry. Dobin undertook the requested examination, and was paid his fee of $25.00. The visual analysis performed by Dobin on Ms. Pfab failed to include the following minimum procedures required by Rule 21Q-3.007, Florida Administrative Code: (a) an adequate patient history, since he failed to inquire of Pfab's personal medical history, her medications, her family medical history, or her family ocular history; (b) a pupillary examination; and (c) visual field testing. An optometrist's failure to perform the minimum procedures required by Rule 21Q-3.007, Florida Administrative Code, can have a profound impact on the results of his examination. Pertinent to this case, the procedures omitted by Dobin were of import because: Many medications mask the symptoms of a number of eye diseases. A failure to ascertain what medications a patient is taking could, therefore, result in the optometrist missing or not checking for certain diseases. A personal medical history is likewise important to an informed examination. Pre-existing injuries and diseases can have a profound impact on an optometrist's findings, and the cause of that finding is important too the ultimate diagnosis and treatment of the patient. The patient's family medical and ocular history is also important to an informed examination. For example, a person with a family history of diabetes, cataracts or glaucoma is more likely to have such disease than one without such family history. Consequently, if alerted by such information, the optometrist could diagnose the presence of such disease and prescribe treatment at a much earlier stage of its development than might ordinarily be the case. A pupillary examination evaluates the nervous system which connects the eye and retina to the brain. A failure to perform such examination could cause the optometrist to overlook the existence of a brain tumor or other forms of nerve damage. Visual field testing is a diagnostic tool used to detect the presence of gross nerve damage, traumatic cataracts, glaucoma, diabetes, and certain peripheral retinal diseases. Absent such test, these diseases might not be detected. In this case, the import of Dobin's failure to perform a visual field test was heightened. Visual field testing and tonometry are two of the three diagnostic procedures utilized to detect glaucoma. Where, as here, tonometry was not performed, the importance of visual field testing is more significant to the early detection of that disease. Biomicroscopy is a diagnostic tool used to detect the presence of bacterial conjunctivitis, corneal ulcers, corneal scars, blepharitis, and some lid injuries. Absent stich test, these diseases or injuries might not be detected. An external examination is important to the detection of skin cancer, skin lesions, blepharitis, and bacterial or allergic conjunctivitis. Absent such examination, these ocular problems might be overlooked. Inadequate Patient Records Contrary to the requirement of Rule 2IQ-3.007, Florida Administrative Code, the patient case record for Ms. Lichtenstein and Ms. Pfab did not reflect whether the following tests were performed or if performed the results: (a) a complete patient history, (b) an external examination, (c) a pupillary examination, (d) a visual field test, (e) an internal examina- tion, (f) a biomicroscopy, and (g) diagnosis and treatment. The inadequacy of Dobin's patient records would adversely affect his ability, and that of a subsequent treating optometrist, in treating these patients. Absent a medical history and the results of the tests performed, an optometrist is severely hampered in his ability to track the progress of diseases, or to detect their onset. Exercising Influence For Financial Gain Petitioner asserts that Dobin, by accepting a fee for a vision analysis that did not comply with the minimum requirements of Rule 2IQ-3.007(1), Florida Administrative Code, violated Section 463.0l6(1)(m), Florida Statutes. That section prohibits: Exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or of a third party. Petitioner's proof was not persuasive. While the patients in this case may not have received the minimum examination mandated by law, I am not persuaded that such failure constituted the exercise of influence to exploit a patient contemplated by Section 463.016(1)(m). There was no showing that Dobin recommended unnecessary tests or unnecessary products, or that he otherwise sought to influence their choice of procedures or materials for financial gain. Such being the proof, the Petitioner failed to demonstrate a violation of Section 463.016(1)(m) Unlicensed Practice Of Optometry Petitioner further asserts that Dobin's "association" with Eye-Wear Glasses, Inc., his landlord, violated the provisions of Section 463.0l4(1)(c), Florida Statutes, and Rule 2IQ-3.008, Florida Administrative Code. Section 463.014(1) provides: (c) No optometrist shall engage in the practice of optometry with any organization, corporation, group, or lay individual. This provision shall not prohibit optometrists from employing, or from forming partnerships or professional associations with, optometrists licensed in this state. And, pertinent to this case, Rule 2IQ-3.008 provides: No licensed practitioner shall enter into any agreement which adversely affects the licensed practitioner's exercise of free, independent and unlimited professional judgment and responsibility, or which permits any unlicensed person or entity to practice optometry through the licensed practitioner by controlling and/or offering `optometric services to the public. The professional judgment of a licensed practitioner should be exercised solely for the benefit of his patients and free from any compromising influences and loyalties. The Board will consider the circumstances of the practice including but not limited to, the following factors in determining whether a violation of Section 463.014, F.S., has occurred: Whether the licensed practitioner holds himself out to the public as available to render professional services in any manner which implies that the licensed practitioner is professionally associated with or employed by an entity which itself is not a licensed practitioner. For purposes of this rule "entity" shall refer to any corporation, lay body, organization, individual or commercial or mercantile establishment which is not a licensed practitioner. The term "commercial or mercantile establishment" shall include, but not be limited to, an establishment in which the practice of opticianry is conducted pursuant to Chapter 484. Whether the professional office space occupied by the licensed practitioner is such that it does not clearly and sufficiently indicate to the public that his practice of optometry is independent of, and not associated with the entity. Whether the licensed practitiQner has a telephone listing and number that is separate and distinct from that of the entity or whether the phone is answered in a manner that does not identify his optometric practice or whether the telephone is answered in a way that indicates that the licensed practitioner is professionally associated with or employed by the entity. Whether the entrance to the building or commercial or mercantile area in which the licensed practitioner's practice is located sufficiently identifies that the licensed practitioner is practicing his profession independent of, and not associated with the entity. Whether advertisements, including those placed in a newspaper and/or telephone directory, imply that the licensed practitioner is professionally associated with, or employed by an entity. Whether the licensed practitioner maintains full and total responsibility and control of all files and records relating to patients and the optometric practice, in accordance with Rule 2IQ-3.003. Whether the licensed practitioner has full and complete control and discretion over fees charged to patients for his services and billing methods. Whether the provisions of a lease or space agreement between the licensed practitioner and the entity operate so as to impair the licensed practitioner's free, independent, and unlimited professional judgment and responsibility. Whether the arrangements for the furnishing of equipment or supplies to the licensed practitioner operate so as to impair the licensed practitioner's free, independent, and unlimited professional judgment and responsibility. Eye-Wear Glasses, Inc., is owned and operated by two licensed opticians. By a "rental agreement" dated October 12, 1983, Eye-Wear Glasses, Inc., and Dobin entered into an agreement whereby Dobin was sublet space within Eye-Wear Glasses' premises. That "rental agreement" provided: RENTAL AGREEMENT BETWEEN EYEWEAR GLASSES INC. AND DR. MARK N. DOBIN Rent shall be $1.00 per month, and shall continue for a 2 year period with continuing 2 year options. This lease will go into affect on October 17th 1983. The rent of $1.00 per month shall include water, electricity, and air conditioning. Dr. Mark N. Dobin will be responsible to supply all equipment, stationary, and supplies needed to run an Optometric Office. Dr. Mark N. Dobin will have a phone installed at his own expense and his monthly bill along with Yellow Pages advertising c shall be paid by him. Dr. Mark N. Dobin will be allowed to advertise independent of Eyewear Glasses Inc. at his own expense. A key allowing access to the premises shall be given to Dr. Mark N. Dobin. Fees for Services performed by Dr. Mark N. Dobin, will be determined by Dr. Mark N. Dobin and shall be collected independent of those fees from Eyewear Glasses. Being a private entity, Dr. Mark N. Dobin shall have the right to determine his own office hours, days worked and vacation time, but he shall try to coordinate these days with those of Eyewear Glasses Inc. if this is possible. Renter, Dr. Mark N. Dobin, has the option of selling his practice and its contents to another Eye Doctor. This sale may include all records and files of patients belonging to Dr. Mark N. Dobin. At the time of sale, Eyewear Glasses Inc. has the right to renegotiate the lease, but not to alter it in such a way as to make the sale of the practice uninviting. Before the sale is finalized a 3 month trial period may be requested by either party. If Dr. Mark N. Dobin is unable to sell his practice, Eyewear Glasses Inc. has the right of first refusal to purchase his practice or his equipment. If the office is unoccupied for a period of 30 days, Eyewear Glasses Inc. has the option of subleasing the practice to another Eye Doctor, until which time the practice is sold or Dr. Mark N. Dobin returns. Dr. Mark N. Dobin has the right to hire another Eye Doctor to work his office during vacation time, or other times when he is not available. If Eyewear Glasses Inc. is not happy with the performance of said Eye Doctor. it may request that another Doctor be hired by Dr. Mark N. Dobin, but the final decision shall be his. Dr. Mark N. Dobin has the right to hire c an employee at his own expense, to assist in his office. A key to the premises may be given to said employee, but permission must first be granted by Eyewear Glasses inc. If either partner of Eyewear Glasses Inc. decides to sell his share of the corporation to the other, all points of this lease agreement shall remain in affect. If both owners agree to sell their share of the corporation, Dr. Mark N. Dobin shall have the right of first refusal to purchase Eyewear Glasses Inc. and its contents. Eyewear Glasses Inc. agrees to build a partition at its own expense in order to meet Florida State Optometric Board requirements. A Covenant of Restriction with a radius of 5 miles shall go into affect 2 years from the beginning of this lease, and shall last for a period of 3 years from the termination of this lease. Dr. Mark N. Dobin shall not sell eyeglasses or other optical excessories, excluding all items pertaining to the sale and dispensing of contact lenses. The space occupied by Dobin, which consisted of approximately 248 square feet, was located at the rear of the optician's store, and accessible by way of a sliding glass door from the store or through a back glass door from the shopping mall area. Consequently, customers of either business had an unrestricted view and access to the business of either profession. Considering the physical layout of the premises, as well as the view of the premises afforded by Petitioner's exhibit 5, the proof established that Dobin held himself out to the public in a manner that implied he was professionally associated with or employed by Eye-Wear Glasses, Inc. Indeed, the "rental agreement" itself depicts a business association more far reaching than that of landlord and tenant, and served to impair Dobin's exercise of free, independent, and unlimited professional judgment and responsibility. 1/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOM)MENDED that Respondent, Mark N. Dobin, be placed on probation for twelve (12) months, and that an administrative fine of $3,000 be imposed upon him. DONE AND ORDERED this 24th day of July, 1987, in Tallahassee, Leon County, 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 24th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4484 Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2-3. Addressed in paragraph 2. 4. Addressed in paragraph 3. 5-6. Addressed in paragraph 2. 7-9. Addressed in paragraph 4. 10. Addressed in paragraph 5. 11-12. Addressed in paragraph 4. 13-22. Addressed in paragraph 6(a) -(g). 23-24. Addressed in paragraph 7. 25. Addressed in paragraph 8. 26. Addressed in paragraphs 9-10. 27-31. Addressed in paragraphs 11-13. COPIES FURNISHED: Phillip B. Miller, Esquire c Robert D. Newell, Jr., Esquire 102 South Monroe Street Tallahassee, Florida 32301 Mark N. Dobin 7384 West Atlantic Boulevard Margate, Florida 33063 Mildred Gardner, Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Honorable Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether or not Respondent administered a legend drug other than in the course of his professional practice as a dentist, failed to maintain written dental and medical history records justifying the course of treatment, and failed to practice dentistry within the minimum standards of performance in diagnosis and treatment when measured against the prevailing peer community in violation of Subsections 466.028(1)(y), (m) and (q), Florida Statutes and, if so, what if any, administrative penalty should be imposed.
Findings Of Fact During times material hereto, Respondent, Kleyn B. Russell, Jr., held a license as a dentist in Florida, having been issued license number DN 0008401 by Petitioner, Department of Professional Regulation. During times material hereto, Respondent practiced dentistry in Florida. Bethany Morris (Bethany), a three year old female patient of Respondent, weighed 34 pounds when she was treated by Respondent. Bethany was born with hemangiomas (port wine scars) on the majority of her body. Cheryl Morris, the mother of Bethany, brought Bethany to Florida to undergo laser surgery treatment to remove hemangiomas, following consultation with laser surgery experts in California, Duke University in North Carolina and with several practitioners in the Midwest and in Florida. Bethany Morris' first laser surgery was performed by Dr. Massad on March 9, 1990. Between March 9, 1990 and May 15, 1990, Cheryl Morris had discussions with Dr. Massad and Jeffrey Waterer, a business representative for the laser equipment which was used in the surgical procedures for Bethany, regarding possible alternatives to general anesthesia, specifically a dental nerve "block". On or about May 15, 1990, Respondent was consulted and retained by Dr. Massad to provide a trigeminal facial nerve block to Bethany's face to alleviate any discomfort she may experience during laser surgery to remove the port wine scars on her face and lips. Respondent produced a trigeminal facial nerve block on Bethany on three separate occasions by using local anesthesia. Local anesthesia is the loss of sensation of pain in a specific area of the body, generally produced by a topically applied agent or injected agent without causing loss of consciousness. Rule 21G-14.001, Florida Administrative Code. 1/ On May 15, 1990, Respondent administered 12.5 carpulets of 2% Lidocaine with 1:100,000 Epinephrine to Bethany. On or about July 11, 1990, Respondent administered 11 carpulets of 2% Lidocaine with 1:100,000 Epinephrine to Bethany. On or about August 22, 1990, Respondent administered 8.5 carpulets, 280-306 mg., of 2% Lidocaine with 1:100,000 Epinephrine to Bethany within a one- hour period. Lidocaine is a medicinal drug. Section 465.003(7), Florida Statutes. On or about August 22, 1990, Bethany began to experience seizures, respiratory difficulty and respiratory arrest shortly after Respondent administered the last injection of local anesthetic to her. Bethany stopped breathing and Dr. Massad and Respondent began cardiopulmonary resuscitation. These efforts were unsuccessful and "911" was called and Bethany was transported to Mease Hospital in Dunedin, Florida. Bethany Morris died on August 25, 1990, and the cause of her death was anoxic encephalopathy due to cardiac arrest due to Lidocaine toxicity. Prior to her death, Bethany exhibited symptoms indicating that Respondent injected Lidocaine to her facial area in an amount in excess of the manufacturer's recommended dosage for a patient of her age/size. Specifically, on the first occasion that Respondent administered the nerve block, Bethany had to be repeatedly slapped in the face to avoid slipping into a coma. On the second occasion following Respondent's administration of Lidocaine to effect a nerve block, Bethany had to be carried to her car and slept from Respondent's office in Tampa to her temporary residence in the Brandon area. On three separate occasions, specifically May 15, 1990, July 11, 1990 and August 22, 1990, Respondent administered 2% Lidocaine with 1:100,000 Epinephrine to his patient, Bethany Morris, in an amount that exceeded the manufacturer's maximum recommended dosage. Respondent failed to recognize that special calculations were required when administering local anesthetics to children. During the administration of local anesthetics to Bethany, Respondent admitted that he failed to comprehend the correct amount of anesthetic that could be safely administered to her. Respondent's admission was borne out by his calculations of the amount of Lidocaine he administered to Bethany. Respondent's administration of 280 mg. - 306 mg. of 2% Lidocaine with 1:100,000 Epinephrine to Bethany on August 22, 1990, was an amount in excess of the recommended maximum dosage for a patient of Bethany Morris' size. Respondent failed to maintain records in his office indicating his administration of anesthesia to Bethany Morris. Respondent failed to properly recognize, diagnose and treat Bethany Morris once she began exhibiting signs of respiratory depression which led to cardiac failure due to Lidocaine toxicity. Respondent has recently been the subject of prior disciplinary action by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Respondent's license to practice dentistry in Florida for a period of five (5) years and prior to his reinstatement to practice dentistry, Respondent take and successfully complete continuing education courses in the administration of legend drugs in the course of his professional practice of dentistry under such terms and conditions as the Board of Dentistry may impose. RECOMMENDED this 29th day of August, 1991, 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 29th day of August, 1991.
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 Respondent, Department of Financial Services, Division of Workers' Compensation (Department or Respondent), should pay Petitioners’, Stephen Ogles, LLC, or RL Ogles Roofing, LLC (Petitioners), attorney's fees and costs under section 57.111, Florida Statutes (2013),1/ for initiating Division of Administrative Hearings (DOAH) Case Nos. 13-2448 and 13-2517.
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees and officers, pursuant to section 440.107, Florida Statutes. Petitioners are in the business of roofing, within the construction industry, as defined by subsection 440.02(8), and are Florida employers over whom Respondent has jurisdiction to enforce the payment of workers' compensation premiums for the benefit of Petitioners' employees. Petitioners are the sole members of their respective limited liability companies, each with one employee. An officer of a corporation may elect to be exempt from chapter 440, Workers' Compensation, by filing a notice of election with the Respondent. § 440.02(15)(b)1., Fla. Stat. An officer of a corporation who elects to be exempt from Florida's Workers' Compensation Law is not an employee. § 440.02 (15)(b)3., Fla. Stat. Jonas Hall is employed as an investigator for the Division of Workers’ Compensation. He has been conducting workers’ compensation compliance investigations for approximately five years, and during that time has been involved in between 2,000 and 3,000 investigations. On June 12, 2013, Respondent issued a Stop-Work Order and Order of Penalty Assessment to Stephen Ogles, LLC, and RL Ogles Roofing, LLC, and a Stop Work Order For Specific Worksite Only to Ogles Construction and Roofing, LLC. Findings of Fact 8 through 18 below set forth the specific facts and circumstances known to Respondent at the time the SWO was issued. These facts are based upon the testimony at hearing of Jonas Hall, which is found credible, as well as documentary evidence offered by Respondent, which is corroborative of Mr. Hall’s testimony. Mr. Hall began a random site investigation on June 12, 2013, after he noticed construction work about to be performed at a single-family dwelling located in Live Oak, Florida. Upon investigation, four men were found to be installing roofing at a private residence. One of those workers, Robert Ogles, advised Respondent's investigator that he was working with his three sons, Stephen, Matt, and Robert, Jr. Investigator Hall first spoke to the elder Robert Ogles who advised Investigator Hall that he was the general contractor on the job and that his sons were working as subcontractors. At no time during the interview did Robert Ogles state that his sons were employees of his company, Ogles Construction and Roofing, LLC. Investigator Hall next spoke to Stephen Ogles who stated that he owned his own business and had a valid workers’ compensation exemption. Investigator Hall then spoke to the younger Robert Ogles who also advised him that he owned his own business and had a valid workers’ compensation exemption. Finally, Investigator Hall spoke to the third son, Matt Ogles, who also stated that he owned his own business and had a valid workers’ compensation exemption. At no time during the interview of June 12, 2013, did any of the three sons state that they were employees of their father’s business. After interviewing the four Ogles, Investigator Hall left the jobsite in order to gain access to a wireless internet connection for his computer. Once he obtained a connection, Investigator Hall accessed the Division of Corporations website to look up the correct names of the businesses owned by the four Ogles. With respect to the two Petitioners, the website revealed that Stephen Ogles was the sole member of Stephen Ogles, LLC, and that Robert Ogles, Jr., was the sole member of RL Ogles Roofing, LLC. Investigator Hall then accessed the Coverage and Compliance Automated System (CCAS) to ascertain the status of workers compensation coverage for the four individuals. CCAS revealed that while both Petitioners had at one time held exemptions, both exemptions had expired at the time of Investigator Hall’s site visit on June 12, 2013. Based upon this information, Investigator Hall reasonably concluded that both Petitioners were not in compliance with Florida workers’ compensation coverage requirements. With respect to the third son, Matt, Mr. Hall’s investigation revealed that his company, Matt Ogles, LLC, held a valid exemption, and was therefore compliant with the workers compensation coverage requirements. As such, Investigator Hall did not issue an SWO to Matt Ogles, LLC. After accessing information about Petitioners’ status on his computer, Investigator Hall returned to the jobsite. Upon his return, he observed all four of the Ogles working at the jobsite, with two actively working on the roof of the home. Investigator Hall then called those on the roof down, and served the SWOs on Petitioners. The facts uncovered in Investigator Hall's investigation on June 12, 2013, provided the Department with a reasonable basis to issue the SWOs to Petitioners. On June 17, 2013, Petitioners timely filed a Request for Hearing alleging the affirmative defense that Petitioners had valid workers' compensation exemptions. The Request for Hearing filed on behalf of Stephen Ogles, LLC, specifically stated: The Respondent disputes the SWO, to wit: The Owner’s exemption was not expired. And although worded somewhat differently, the Request for Hearing filed on behalf of RL Ogles Roofing, LLC, stated: The Respondent disputes the SWO, to wit: The WC Exemption was current. The Requests for Hearing filed by Petitioners on June 17, 2013, are consistent with the representations made to Investigator Hall on June 12, 2013, to wit, both Petitioners were subcontractors on the job, and held valid exemptions. On September 10, 2013, Petitioners filed an Amended Request for Hearing disputing the penalty assessment, and contending that Petitioners were employees of Ogles Construction and Roofing, LLC. The Amended Request for Hearing stated in pertinent part: The Respondents disputes the SWO, to wit: Ogles Construction and Roofing LLC disputes the penalty assessment. RL Ogles, LLC contends that he was an employee of Ogles Construction and Roofing, LLC. Stephen Ogles, LLC contends that he was an employee of Ogles Construction and Roofing, LLC. On October 8, 2013, Respondent issued an Order Releasing Stop-Work Order (Revocation) to Stephen Ogles, LLC, and RL Ogles Roofing, LLC. Two witnesses testified as to the reasonableness of the attorney’s fees being sought by Petitioners. Petitioners’ witness on the subject, John Middleton, is a Jacksonville attorney with eight years’ experience in handling workers’ compensation defense matters. Mr. Middleton opined that the $5,000 in fees being claimed by each Petitioner was not excessive, particularly in view of the successful outcomes for Petitioners in the underlying cases. Respondent’s witness, Ralph Paul Douglas, Jr., is a Tallahassee attorney who has concentrated his practice on workers’ compensation matters for twenty years. Mr. Douglas testified that Petitioners’ attorney in the underlying cases claimed 13.3 hours per case for legal services. However, according to Mr. Douglas, at least 1.3 hours of the total hours should be deducted as not awardable due to those hours relating to the preparation of a motion in response to an order to compel. Such fees “cannot be related to any delay, any confusion caused by that party claiming the fees, . . . obfuscation, . . . anything that does not move the case along in the docket.” It was Mr. Douglas’s opinion that 12 hours of legal services is a reasonable number for the underlying cases. However, since the same itemized list of services was submitted for both cases, Mr. Douglas concluded that the second itemized list was duplicative and mostly amounted to only ministerial work. The second itemized list should be, therefore, apportioned. Mr. Douglas testified that a $10,000 fee for the work done on the underlying cases would not be appropriate or reasonable based on the pleadings, the deposition testimony of the attorney performing the work, and the itemization of services. Rather, a reasonable fee would be 12 hours at $200 per hour for one case ($2,400) and $1,200 on the second case. Thus, the total fees that should be awardable for both cases would be $3,600. While the testimony of both Mr. Middleton and Mr. Douglas is credible, the undersigned gives greater weight to the testimony of Mr. Douglas due to his greater experience in the field of workers’ compensation law, and his more detailed analysis of the legal services performed in the underlying cases. The unrebutted testimony presented by Stephen Ogles and Robert Ogles, Jr., established that their respective LLC’s employ fewer than 25 full-time employees and have a net worth of less than $2 million each.
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 Whether the State Hoard of Optometry's policy statement of November 8, 1975, which interprets Chapter 463, Florida Statues (1983)("F.S."), as allowing optometrists to Prescribe legend drugs, is an unpromulgated "rule" within the meaning of Section 120.52(15), F.S., and therefore an invalid exercise of delegated legislative authority under Section 120.56, F.S. 1/ Whether the Board of Optometry's Proposed Rule 21Q-3.10, Florida Administrative Code ("F.A.C."), relating to the use and prescription of legend drugs by optometrists, lacks statutory authority and is therefore an invalid exercise of delegated legislative authority under Section 120.54(4)(a), F.S.; Whether Proposed Rule 21Q-3.10 is invalid for failure to provide an adequate statement of economic impact, as required by Section 120.54(2)(c), F.S.
Findings Of Fact STANDING OF PARTIES Petitioner FMA. Petitioner FLORIDA MEDICAL ASSOCIATION, INC. ("FMA"), a non-profit corporation, is organized and maintained for the benefit of the 13,500 Florida physicians who comprise its membership. The FMA acts on behalf of its members in matters of common importance. In addition to representing its members, FMA is committed to protecting, maintaining, and improving the quality of health care available to the public. The stated nature and purpose of the FMA is to promote the science and art of medicine, and improve the public health. Under its bylaws the FMA maintains a standing Council on Medical Services, which is primarily concerned with the delivery of medical services to the elderly and school children; to the impaired; and to recipients of public health service. One of the primary objectives of the Council is to Protect and enhance the delivery of health services in Florida to these health care recipients. The FMA initiated this rule challenge on behalf of all its members to protect those interests within the purview of its organization. Petitioner FSO. The FLORIDA SOCIETY OF OPHTHALMOLOGY, INC. ("FSO"), a non-profit corporation, is composed of members who are ophthalmologists-- physicians (M.D.'s) who specialize in diagnosing and treating eye disorders with drugs, surgery, and appliances such as corrective lenses and prisms. The practice of ophthalmology includes many types of eye care--from Sophisticated surgery techniques to prevent blindness to the more familiar eye examination. FSO acts, and is organized, to further the educational, political and professional interest of Florida ophthalmologists. The FSO is committed as an organization to protecting, maintaining and improving the quality of eye care available to the public. The FSO's membership includes over 400 of the approximately 550 ophthalmologists practicing in Florida. Many members of the FSO are also members of the FMA. The FSO initiated this rule challenge on behalf of itself and its members. Petitioner Broussard. WILLIAM J. BROUSSARD, M.D., is a licensed Florida physician. Since 1967, he has been a resident of Broward County, Florida, and has engaged in the practice of medicine, specializing in ophthalmology. He and the other physician members of petitioners FMA and FSO hold licenses to practice medicine issued under the authority of Chapter 458, F.S. Unauthorized Practice of Medicine. Under Chapter 458, F.S. other health care professionals are prohibited from practicing medicine unless within the confines of their organic act, which, in the case of optometrists, is Chapter 463, F.S. If Optometrists are not authorized by Chapter 463 to prescribe and use legend drugs in their practice, the prescription and use of such drugs could constitute an unlawful encroachment on the practice of medicine. Moreover, physicians, especially ophthalmologists, would suffer economic injury since it is likely that Some patients who would have otherwise Sought their services would, instead, seek the services of optometrists. 5 Respondent Board of Optometry. Respondent STATE OF FLORIDA, DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY, ("BOARD") is a state agency within the meaning of Section 120.52(1), F.S. Intervenor Florida Optometric Association, Inc. FLORIDA OPTOMETRIC ASSOCIATION, INC., ("FOA") is an incorporated organization of approximately 700 licensed optometrists in Florida. Its purpose is to promote and protect the interests of optometrists and the public by ensuring the availability of quality optometric service at reasonable prices. It represents its membership by participating in administrative, judicial, and legislative proceedings. Intervenor James A. Stephens, O.D. Dr. Stephens is a licensed optometrist in Quincy, Florida, who uses drugs in his practice. Intervenor Donnie D. Dance, O.D. Dr. Dance is a licensed optometrist in Ft. Myers, Florida, who uses drugs in his practice. Intervenors FOA, Stephens, and Dance. These intervenors have been, and will be, substantially affected by the challenged policy statement and rule, which regulate, and implicitly authorize, the prescription and use of legend drugs by optometrists in their practice. THE CHALLENGED POLICY STATEMENT AND PROPOSED RULE The 1975 Policy Statement. At various workshops held in 1975, the BOARD discussed adopting a rule on the use of drugs by optometrists in their practice. It asked its attorney to draft a rule on the subject. He submitted, instead, a written policy statement on the use of drugs in optometry, which the BOARD adopted at its November 8, 1975, meeting. On November 12, 1975, the statement was disseminated to all licensed optometrists in Florida. It was transmitted by a BOARD cover letter: To All Licensed Optometrists: On November 8, 1975, the Florida State Board of Optometry adopted a policy statement on the use of drugs in optometry. A copy is enclosed. This statement is important. It should be carefully read and then retained for future reference and review. Questions should be submitted to the Board in writing. (Emphasis in original) (Petitioner's Exhibit No. 2) This BOARD policy statement concluded, among other things, that there was "no specific or absolute prohibition" of the use of drugs by optometrists; that the need for health care services was so great that no action should be taken to restrict such services unless necessary to protect the public from injury; and that the education requirements of optometrists had been raised so that they had become at least as well educated in pharmacology as other health care professionals, whose right to use drugs in their practice had not been questioned. By this Policy statement, the BOARD, without citing or relying on any specific language in the statute, announced its interpretation that Chapter 463, F.S. (1975) allowed optometrists to use drugs in the practice of optometry. It cautioned optometrists, however, not to practice beyond their level of individual competency. Although not expressly stated, the policy statement was referring to the use of legend drugs--that is, drugs which were required by federal or state law to be dispensed only on prescription. This policy statement was never adopted as a rule in accordance with the rulemaking procedures of Section 120.54, F.S. (1975). It has never been rescinded or changed by the BOARD--and has been in effect since 1975. This written policy statement effectively notified all licensed optometrists in Florida that they were authorized to use legend drugs in the practice of optometry, provided they were individually competent to do so. This was the purpose of the statement, and this was its effect. Optometrists relied on this statement as authority for the use of legend drugs in their practice. The Proposed Rule: 21Q-3.10. On June 25, 1982, the BOARD, published notice of its intent to adopt an amendment to Rule 21Q-3.10, F.A.C., setting standards for the prescribing and use of legend drugs by optometrists and providing guidelines for determining the competence of individual optometrists who use such drugs. A public hearing on the proposed rule was held on July 22 and 23, 1982. Transcripts and exhibits presented during the previous rulemaking workshops were received into the record, and no witnesses were presented by either petitioners or intervenors. As a result of the hearing, the BOARD made several changes to the proposed rule. Notice of these changes was published in the Florida Administrative Weekly and the proposed rule (with changes) was filed for adoption on November 30, 1982. (Respondent/Intervenors' Exhibit No. 1) The proposed rule warns optometrists against performing treatment which they are not competent to perform; requires optometrists diagnosing angle closure, infantile, or congenital forms of glaucoma to refer such patients to a physician; requires optometrists treating an eye condition with steroids to refer such patients to a physician when the condition does not improve; requires BOARD approval prior to employing 10 percent phenylepherine hydrochloride, which approval will be granted only after training in life-sustaining emergency medical procedures; requires consultation with a physician when, in the optometrist's judgment, an infectious corneal disease has not responded to treatment; authorizes optometrists to employ non-controlled oral analgesics for relief of severe pain associated with eye trauma, for up to 48 hours, and for longer periods after consulting with a physician; defines legend drugs as substances required by federal or state law to be dispensed only on prescription, and excludes controlled substances defined by Chapter 893, F.S.; and establishes qualifications (consisting of completion of specified course work and clinical training in designated subject areas) which create a rebuttable presumption that an optometrist is competent to prescribe legend drugs in the practice of optometry. (Respondent/Intervenors' Exhibit No. 1(r)). The proposed rule is premised on the BOARD's long-standing interpretation that Chapter 463, F.S. authorizes optometrists to use legend drugs to diagnose and treat eye disorders, including diseases and injuries. The rule attempts to narrow or refine that authority by providing standards for employing and prescribing legend drugs, and by providing guidelines for determining the competence of individual optometrists to prescribe and use such drugs. The proposed rule contains definite and objective standards. Petitioners have not substantiated their allegation that the rule is unduly vague. The economic impact statement which accompanies the proposed rule addresses, in detailed fashion, each factor listed in Section 120.54(2)(a), F.S. The statement assumes that Chapter 463 does not prohibit the use of legend drugs by optometrists and that the use of legend drugs by optometrists has become a pattern of practice in Florida. OPTOMETRY: ORIGIN, SCOPE OF PRACTICE, AND TECHNICAL TERMS Origin. The profession of Optometry Originated in the late 1800's when some opticians--who were qualified to fill prescriptions for glasses, fit frames, and grind lenses--assumed the additional function of refraction. Up to that time refraction had been the exclusive responsibility of physicians. (Refraction consists of measuring the ability of the eye to refract or bend light rays entering it so as to form an image on the retina.) These refracting opticians became known as optometrists. In the early 1900's most states, including Florida, passed laws defining optometry and expressly authorizing optometrists to examine eyes for refractive error. Dictionary and Commonly Understood Definition of Optometry. Since the early 1900's, optometry has been commonly understood, and defined in dictionaries, as excluding the use of drugs or surgery. Webster's New Collegiate Dictionary (1981) at 799, defines optometry as: the art or profession of examining the eye for defects and faults of refraction and prescribing correctional lenses or exercises but not drugs or surgery. Professional Definition of the Scope of Optometry. During the 1940's and 50's, optometry was viewed as the art and science of visual care. Optometrists did not view their profession as embracing the use of drugs. In 1945, the American Optometric Association approved the following occupational definition: "OPTOMETRISTS (profess & kin) 0-53.10. Examines eyes, determines their con- dition, and prescribes treatment to conserve or improve vision without use of medicine, drugs or surgery; determines visual difficulties (refracts) by means of instruments such as ophthalmometer skiascope, and ophthalmoscope; refers patients having ocular manifestations of disease to a medical practitioner; prescribes lenses, prisms, or visual training as necessary to correct or improve vision; tests finished lenses to insure conformance to prescriptions, using lens testing machines. May Specialize in a particular phase of optometry such as prescribing and fitting contact lenses and telescopic spectacles or surveying and correcting visual deficiencies among industrial workers." (e.s.) (Petitioners' Exhibit No. 52, page 329) In 1967, Congress was considering a bill which would have amended a District of Columbia law to include within the definition of optometry, "the employment of any . . . means for the examination of the human eye." H.R. 12276, 90th Congress, 1st Session, Section 3(2)(1967). Dr. Judd Chapman, a Florida optometrist serving as Chairman for Legislation of the American Optometric AsSociation, testified about the amendment before a congressional subcommittee. When asked if this proposed language would authorize optometrists to use drugs, he replied: No, sir, it does not . . . in fact that language is in a great number of the statutes defining optometry throughout the nation. That is very common . . . No, sir, that does not include the use of drugs. (Petitioners' Exhibit No. 43) Optometrists did not view their profession as including the diagnosing and treating of eye injury or eye disease. The treating of eye disease normally required use of drugs or surgery. When optometrists detected eye disease, or ocular manifestation of systemic disease (or pathology) they referred the patient to a qualified physician. Scope of Optometry as Defined by Florida Law. Since 1939, Florida's statutory definition of optometry (and its scope of Practice) has remained relatively unchanged. 2/ Section 463.002(4), F.S. provides: "Optometry" means the diagnosis of the human eye and its appendages; the employment of any objective or subjective means or methods for the purpose of determining the refractive powers of the human eyes, or any visual, muscular, neurological, or anatomic anomalies of the human eyes and their appendages; and the prescribing and employment of lenses, prisms, frames, mountings, contact lenses, orthoptic exercises, light frequencies, and any other means or methods for the correction, remedy, or relief of any insufficiencies or abnormal conditions of the human eyes and their appendages. The BOARD asserts that this statutory definition is broad enough to authorize adoption of the proposed rule regulating (and permitting) the use of legend drugs by optometrists. The question of whether Chapter 463, generally, and this definition of optometry, in particular, authorize optometrists to use drugs in their practice has been asked before with varying, and sometimes conflicting answers. Florida Attorney Generals' opinions have answered this question differently. In 1957, AGO 057-79, concluded that: The practice of optometry, as defined by Section 463.01, F.S., and cases from other jurisdictions obviously does not authorize optometrists to administer drugs, or perform surgery in the diagnosis of, or treatment of the refractive powers of the human eye. Therefore, question 1 [is an optometrist permitted to administer drugs and perform surgery?] is answered in the negative. (e.s.) In 1959, AGO 059-24, addressed whether an eye care publication was misleading advertising. The Attorney General, citing Section 463.01 (defining the practice of optometry) stated: In view of the foregoing definitions of optometry, it appears that the treatment of ocular diseases is not a part of the practice of optometry; * * * It further appears by the statutes and possibly from the professional definition that an optometrist is restricted to diagnosing the things mentioned in Section 463.01, Florida Statutes, and not diseases. (e.s.) What was obvious to one Attorney General in 1957, was less obvious to another in 1975, who was asked this question by the attorney for the BOARD: Does Chapter 463, F.S., prohibit licensed optometrists from utilizing drugs within the scope of the practice of optometry as defined by Section 463.01, F.S.? The Attorney General, by letter dated December 22, 1975 (an unpublished Attorney General`s opinion), answered this question in the negative, ice. Chapter 463 does not forbid the use of drugs by optometrists. Various Florida Boards of Optometry have also answered this question differently. Although the 1975 Board (which adopted the challenged policy statement) and the present Board (which proposed the challenged rule) both agree--without citing specific language Chapter 463 authorizes optometrists to use legend drugs, an earlier 1962 Board of Optometry was less certain. In June, 1962, that Board adopted a rule prohibiting the use of drugs except under certain circumstances: 250-1.32. Use of Drugs Prohibited Except Under Certain Circumstances In the practice of optometry as defined in Section 463.01, Florida Statutes, a registered optometrist in this state is prohibited from using or prescribing drugs in connection with the treatment of pathological conditions of the eye or any of its appendages, provided, however, that drugs may be used and prescribed in connection with the fitting of contact lenses and examinations for purpose of testing or diagnosis of the eyes but not for treatment thereof. Three months later, the Board repealed this rule, explaining: [T]his existing Rule 250-1.32 was repealed by the Board because it was felt that the rule was probably beyond the power of the Board to promulgate inasmuch as the law itself, Chapter 463, Florida Statutes, made no mention of drugs in its definition of the practice of optometry. (Petitioners' Exhibit No. 16) Unsuccessful Legislative Efforts to Resolve the Question. In 1974, two bills were introduced in the Florida Legislature which would have expressly prohibited the prescription and use of legend drugs by optometrists. Both bills were defeated. (Respondent's Intervenors Exhibit No. 5) In 1975, the legislature created a commission to study the use of drugs by Optometrists and make recommendations to the 1975 legislature. Ch. 75-239, Laws of Florida (1975). This commission composed of 4 legislators, 2 optometrists and 2 opathalmogists studied the question and, on January 5, 1976, recommended that the legislature take no action: The Commission recommends that legislative action on this issue of the appropriateness of the use of drugs by Optometrists is not warranted at the present time. This recommendation should not be construed as an endorsement of the prescribing of, or use of, drugs by optometrists but re- flects an agreement on the part of members of the Commission that this issue is of a professional nature and would best be resolved through cooperative discussions between the respective Boards and Societies of the Optometrists and Ophthalmologists. (Respondent's Exhibit No. 2(c); 6(a), (b).) In 1981 and 1982, bills were introduced which would have expressly allowed Optometrists to use legend drugs under specified conditions. Those bills were also defeated. In 1983, the legislature passed Senate Bill 168, which would have allowed Optometrists to use legend drugs. It was vetoed by the Governor and never became law. The Use of Legend Drugs by Optometrists. Some Florida optometrists have been using legend drugs for diagnostic and therapeutic purposes. Since the Florida Board of Pharmacy does not permit pharmacists to honor their prescriptions optometrists have to obtain their drugs from other Sources. Most of the drugs they have used are intended for topical application to the eye. Generally, they are classified as topical anesthetics, mydriatics, cycloplegics, miotics, and antibiotics. Topical anesthetics ease discomfort when tonometry is used to measure intraocular pressure of the eyes--a test for glaucoma. Mydriatics dilate the pupil so that the examiner can view the interior of the eye with an ophthalmoscope or slit lamp. Cyclopegics cause paralysis of accomodation and facilitate refractions in children. Miotics constrict the pupil after it has been dilated with mydriatics. Antibiotics are used mainly to treat conjunctivitis Although these drugs may be helpful, they are not essential to examining or refracting human eyes. These drugs have known side effects which, although rare, may be quite severe. Technical Meaning of Statutory Terms. As stated earlier, Section 463.002(4), F.S., contains the legislative definition of optometry: "Optometry" means the diagnosis of the human eye and its appendages; the employment of any objective or subjective means or methods for the purpose of determining the refractive powers of the human eyes, or any visual, muscular, neurological, or anatomic anomalies of the human eyes and their appendages; and the prescribing and employment of lenses, prisms, frames, mountings, contact lenses, orthoptic exercises, light frequencies, and any other means or methods for the correction, remedy, or relief of any insufficiencies or abnormal conditions of the human eyes and their appendages. (e.s.) This definition contains terms and phrases which have assumed commonly understood, or technical, meanings among optometrists and ophthalmologists: "Diagnosis of the human eye," means identification of the organ and its function as an optical instrument. It does not mean "diagnosis of diseases of the human eye," a function involving the medical process of differential diagnosis, whereby all other possible diseases are eliminated--one by one--until only the suspected disease remains. "Objective . . . means . . . for . . . determining the refractive powers of the human eyes," means the use of instruments for measuring visual acuity. "Subjective means . . . for . . . determining the refractive powers" means the placing of various lenses in front of a patient's eyes and asking how the lenses affect the patient's sight. "Anomalies" of the human eyes includes developmental or functional defects, not diseases--which are caused by pathological processes. The latter part of this statutory definition lists specific modalities of treatment which may be prescribed or employed by optometrists, including "lenses, prisms, frames, mountings, contact lenses, orthoptic exercises [and] light frequencies." These constitute a class of items which are prosthetic devices, or appliances, and exercises. Their common characteristics are that they are neither invasive nor intrusive; and they do not operate at the level of cell physiology. Neither do they exhaust the class. Lid crutches (which are mounted in the frame and tend to hold a lid open) and eye patches (which prevent the light image from falling on the retina) are examples of items omitted from the list. In the language of optometrists and ophthalmologists these optic appliances are "prescribed" for a patient. These specifically listed appliances or exercises have a common purpose: to correct refractive error. This occurs when there is nothing basically wrong with the eye, except it is too big, or overpowered, or underpowered, and images are distorted. "Prisms" and "lenses" are mounted into the eyeglass frame. A "mounting" refers to propping glasses on the nose and hanging them from the ears. "Contact lenses" are mounted on the eye's surface and, like eyeglasses, weaken or strengthen the eye--as needed--to cause the image to fall onto the retina.
Conclusions Jurisdiction. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this Proceeding. 120.54(4), 120.56, F.S. Standing. Petitioner's have standing to challenge--as do intervenors to defend--the validity of the 1975 policy statement and the recently proposed amendment to Rule 21Q-3.10, F.A.C. These parties are, or will be, substantially affected within the meaning of Sections 120.54(4)(a) and 120.56(1), F.S. See, Florida Medical Association, Inc. et al. v. Department of Professional Regulation Board of Optometry, et al., 426 So.2d 1112 (Fla. 1st DCA 1983). Constraints on Agency Rulemaking. Agencies are creatures of statute and have no inherent authority. 120.54(14), P.S. Their powers are limited to those expressly granted or necessarily implied by statute. See, 4 Jur. 2d, Administrative Law 46. When the legislature delegates rulemaking power to administrative agencies, such power is limited and circumscribed by the statute conferring it. State v. Atlantic Coastline R. Co., 47 So. 969 (Fla. 1908). No agency can adopt a rule which amends, adds to, or conflicts with a statute. Seitz v. Duval County School Board, 366 So.2d 119, 121 (Fla. 1st DCA 1979), cert. den. 375 So.2d 911; State Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980); Department of Health and Rehabilitative Services v. Florida Psychiatric Society, Inc., 382 So.2d 1280, 1285 (Fla. 1st DCA 1980). No agency can adopt rules which exceed its delegated power or are contrary to the intent of the legislature. See, Dept. of Citrus v. Office of Comptroller 416 So.2d 820 (Fla. 2d DCA 1982). Any rule which attempts to do so is an invalid exercise of delegated legislative authority. If there is reasonable doubt about the existence of a power being exercised by an agency, the further exercise of that power should be arrested. Atlantic Coastline R. Co., supra Edgerton v. International Co., 89 So.2d 488, 489-90 (Fla. 1956); State ex rel. Greenberg v. State Board of Dentistry, 297 So.2d 628, 636 (Fla. 1st DCA 1974). Position of Petitioners. In the instant case, petitioners contend that the BOARD'S policy statement and proposed rule regulate, and implicitly authorize, the use of legend drugs by optometrists in their practice; that the BOARD lacks statutory authority to regulate or authorize the use of such drugs by optometrists; and that the use of such drugs to diagnose and treat eye conditions constitutes the unauthorized practice of medicine. Further, they contend that the economic impact statement is inadequate because it mistakenly assumes that optometrists may lawfully prescribe and use legend drugs in their practice, and that there is an existing pattern of such practice; and that the 1975 policy statement on the use of drugs is invalid because it is, in effect, a rule but was not adopted as such in accordance with the rulemaking procedures of Chapter 120, F.S. Position of Board of Optometry and Intervenors. The Board of Optometry and the intervenors argue, among other things, that the BOARD has authority to adopt the rule; that it is authorized to do so by the plain wording of Chapter 463; that, subject to the rule, optometrists are qualified by training and education to safely prescribe and use legend drugs in diagnosing and treating eye disorders, including refractive error and pathological diseases; that the rule contains standards of practice for optometrists and simply refines the statutory definition of the scope of optometry; that the use of legend drugs by optometrists is useful and necessary; that the statute should be construed to allow Optometrists to use any means or methods taught by the various schools of optometry and recognized by the BOARD; and that deference should be granted the BOARD's interpretation of the statute in its charge. Further, they argue that the 1975 policy statement is not a rule" because it was not intended to create rights, require compliance, or otherwise have the direct and consistent effect of law. II. For the reasons which follow, it is concluded that the proposed rule lacks statutory authority and is an invalid exercise of delegated legislative authority. It is also concluded that the BOARD's 1975 policy statement on the use of drugs is a "rule," as defined by Chapter 120, F.S., but was not adopted as such in accordance with prescribed rule-making procedures. It too is, therefore, an invalid exercise of delegated legislative authority. Legislative Intent and Ambiguous Statutory Language. Legislative intent is the essence of the law. State v. Sullivan, 116 So.255 (Fla. 1928). The cardinal rule of statutory construction is that "a statute should be construed so as to ascertain and give effect to the intention of the legislature as expressed in the statute." Deltona Corp. v. Florida Pub. Serv. Comm'n., 220 So.2d 905, 907 (Fla. 1969). When a statute is plain and unambiguous, there is no room for construction the plain meaning need only be given effect. State v. Egan, 287 So.2d 1, 49 (Fla. 1973). But Chapter 463 and Section 463.002(4), in particular, do not express legislative intent in plain and unambiguous terms. The statute does not expressly authorize or prohibit the prescription and use of legend drugs by optometrists. The question is whether this statute may be permissibly interpreted as authorizing optometrists to use legend drugs. When a statute is ambiguous, as is the case here, various rules of statutory construction may be used to ascertain legislative intent. Statutes are considered to have been enacted with knowledge that they would be interpreted in accordance with these rules. 73 Am. Jur. 2d, Statutes, 142. The legislative history or evolution, of a statute may be material. Blount v. State, 138 So.2d 2 (Fla. 1931). Ordinarily, the statute should be given the meaning assigned to it at the time it was enacted. State v. JackSonville, 50 So.2d 532 (Fla. 1951) Statutory History and Meaning Assigned at Time of Enactment. The first statute regulating the practice of optometry in Florida was adopted in 1909, and defined the practice of optometry as: The use or employment of tests or examinations for the determination of the natural and functional deficiencies of the eye and the adaption of lenses for the aid thereof. 1 Ch. 5947, Laws of Florida (1909). Physicians were expressly exempted from the law regulating optometrists and have always been authorized to provide services included within the scope of optometry. In 1921, the legislature expanded the definition of optometry and expressly prohibited the use of drugs, medicine, or surgery: The practice of optometry for the purposes of the Act is hereby defined as being either one or any combination or part of the following: The examination of the human eye, without the use of drugs, medicine, or surgery, to ascertain the presence of defects or abnormal conditions which may be corrected, remedied or relieved or the effects of which may be corrected, remedied or relieved by the use of lenses or prisms. The employment of subjective or objective mechanical means without the use of drugs, medicine or surgery to determine the accommodative or refractive conditions, or the range of powers of vision, or muscular equilibrium of the human eye. The adaptation or the adjustment of lenses or prisms without the use of drugs, medicine or surgery to correct, relieve or remedy any defect or abnormal condition, or to correct, relieve or remedy the effects of any defect or abnormal con- dition of the human eye or to adjust the human eye to the conditions of a special occupation. The adaptation or adjustment of lenses or prisms, without the use of drugs, medicine or surgery, in any manner to the human eye for any purpose, either directly or indirectly. (e.s.) 1 Ch. 8580, Laws of Florida (1921). In 1931, the definition of optometry was amended again. The prohibition on use of drugs or surgery in refracting human eyes was retained, but it was deleted in connection with the prescribing and employment of lenses, prisms, and ocular exercises: That the practice of Optometry, for the purposes of this Act, is hereby defined as follows, viz.: to be the employment of any objective or subjective means or methods without drugs or surgery for the purpose of determining the refractive powers of the human eyes, or any visual or muscular anomalies of the human eye and its appendages, and the prescribing and the employment of lenses, prisms, ocular exercises for the correction, remedy, or relief of any insufficiencies or abnormal conditions of the same; an optometrist is one who practices Optometry in accordance with the provisions of this Act. (e.s.) This deletion of the earlier prohibition did not, however, authorize optometrists to use drugs (or any other form of treatment) not mentioned in the statute. Under the rule, expression unius est exclusio alterius, the listing of specific modes of treatment effectively excluded all others. Dobbs v. Sea Isle Hotel, 56 So.2d 341, 342 (Fla. 1952). It was in 1939 that the legislature revised, once more, the definition of optometry (1) by removing the remaining prohibition against using drugs to determine refractive powers and (2) by adding a general description, "and any other means or methods," after the specifically listed modes of treatment: That the practice of Optometry is hereby declared a profession, and for the purpose of this Act, is hereby defined as follows, viz: to be the diagnosis of the human eye and its appendages, and the employment of any objective or subjective means or methods for the purpose of determining the refractive powers of the human eyes, or any visual, muscular, neurological or anatomic anomalies of the human eyes and their appendages, and the pre- scribing and employment of lenses, prisms, frames, mountings, orthoptic exercises, light frequencies and any other means or methods for the correction, remedy, or relief of any insufficiencies or abnormal conditions of the human eyes and their appendages, and an Optometrist is one who practices Optometry in accordance with provisions of this Act. (e.s.) 1 Ch. 19031, Laws of Florida (1939) The question then becomes whether, by these two changes, the 1939 Legislature intended to authorize optometrists to use and prescribe legend drugs in the practice of optometry, including the treating of eye injury and disease. A law cannot be interpreted to encompass a situation not within its purview at the time of its enactment. Radio Telephone Communications, Inc. v. Southeastern Telephone Company, 170 So.2d 577 (Fla. 1964). Although statutory language may appear to have a clear meaning, it may not be assigned a meaning which is inconsistent with other statutes in pari materia. See, 30 Fla. Jur., Statutes 101. A construction which places related statutes in conflict should be avoided. Howarth v. City of Deland, 158 So.294 (Fla. 1934; From 1921 to the present, the Medical Practice Act, now Chapter 458, F.S., has exempted those perSons from its coverage who, without the use of drugs, fit lenses or other appliances or examined eyes for such purposes: Definition of Practice of Medicine; Exceptions-- * * * This Chapter [the Medical Practice Act] shall not be construed to affect any person or manufacturer who without the use of drugs or medicines mechanically fits or sells lenses, artificial eyes, limbs or other apparatus or appliances, or is engaged in the mechanical examination of eyes for the purpose of constructing or adjusting spectacles, eyeglasses or lenses; (e.s.) 458.13, F.S. (1941). See also, 14 Ch. 8415, Laws of Florida, (1921); 458.3031(1)(h), F.S. In 1939, this was the only exemption in the Medical Practice Act which protected optometrists--who were not exempted by name--from charges of engaging in the unauthorized practice of medicine. Yet this provision applied only to persons who examined eyes and fit lenses without the use of drugs. It follows that the 1939 legislature could not have intended that its removal of a prohibition against the use of drugs be interpreted as authorizing their use. Such a construction would have placed the Optometric Practice Act and the Medical Practice Act in direct conflict--and placed optometrists in an untenable position. They would have been authorized by the Optometric Practice Act to use drugs to examine eyes or fit lenses; but as soon as they did so, they would be in violation of the Medical Practice Act and subject to charges of unauthorized practice of medicine since such acts--beyond the exemption constitute the practice of medicine. See, 458.13, F.S. (1941). It is concluded, therefore, that the 1939 legislature did not intend that its deletion of a prohibition equate to an authorization. Since the definition of optometry has not significantly changed since 1939, the legislative intent at the time of enactment must be given effect. This conclusion that the legislature did not intend to authorize optometrists to use drugs is reinforced by application of the rule of ejusdem generis to that part of the definition which describes the forms of treatment which optometrists may render. The Rule of Ejusdem Generis. In ex parte Amos, 112 So.289 at 293 (Fla. 1927), the Florida Supreme Court recognized this as a controlling rule of statutory construction. It means: "Where an author makes use first of terms each evidently confined and limited to a particular class of a known species of things, and then after such specific enumeration subjoins a term of very extensive signification, this term, however general and comprehensive in its possible import, yet when thus used embraces only things ejusdem generis; that is, of the same kind of species with those comprehended by the preceding limited and confined terms." The maxim is a more specific application of the broader maxim "noscitur a sociis," which means that general and specific words which are capable of an analogous meaning being associated together take color from each other, so that the general words are restricted to a sense analogous to the less general. [Cases omitted] Id. The rule aids in the construction of a statute which enumerates specific items of a class, which is not exhausted by the enumeration, and which concludes the series with a general term descriptive of the class. State v. Town of Davie, 127 So.2d 671, 673 (Fla. 1961) Here, that portion of the statutory definition which describes forms of treatment which may be used in optometry provides: "Optometry" means . . . the prescribing and employment of lenses, prisms, frames, mountings, contact lenses, orthoptic exercises, light frequencies, and any other means or methods for the correction, remedy, or relief of any sufficiencies or abnormal conditions of the human eyes and their appendages. (e.s.) 463.002(4), F.S. The rule of ejusdem generis applies, since the enumerated forms of treatment constitute a class not exhausted by the enumeration. The general description (which follows the series), "any other means or methods," must, therefore, be construed as meaning forms of treatment of the same kind or species as those enumerated. See, Hanna Sunrise Recreation, Inc. 94 So.2d 597 (Fla. 1957). Legend drugs, which can be invasive or intrusive, operate at the cellular level and are not of the same kind or species as the enumerated forms of treatment. The use of legend drugs by optometrists to correct, remedy, or relieve any insufficiencies or abnormal conditions of the eyes exceeds the scope of optometry, as defined by Florida law. The proposed rule implicitly authorizes such use and is, therefore, invalid. If the Legislature Intended to Authorize Optometrists to Prescribe and Use Legend Drugs in the Practice of Optometry It Would Have Expressly Stated It. If the 1939 legislature had intended to authorize optometrists to, prescribe and use legend drugs--something it never before permitted--it would have expressed this intent in clear and unmistakable terms. In 1939, the granting of such power to optometrists would have been a complete reversal of prior legislative policy and would have greatly expanded the scope of optometry in Florida. Such an expansion would have been inconsistent with the definition and scope of optometry as commonly understood, and as understood by optometrists themselves. Furthermore, the 1939 amendment uses language which, among optometrists and ophthalmologists, conveys specific meaning. Assigned this meaning, the 1939 amendment (redefining the scope of optometry) does not expressly, or by reasonable inference, authorize optometrists to prescribe or use legend drugs in the practice of optometry. Authorization to Prescribe and Use Legend Drugs Must be Affirmatively Granted by Statute, Not Agency Rule. Section 458.305(3), F.S., part of the Medical Practice Act, defines the "practice of medicine" in broad and all- encompassing terms. Recognizing the reach of this definition, the legislature specifically exempted from the Medical Practice Act: Other duly licensed health care practitioners acting within their scope of practice authorized by statute. (e.s.) 458.303(1)(a), F.S. so to the extent other health care practitioners, such as optometrists engage in acts that would fall within the broad definition of "practice of medicine," such persons will not be in violation of Chapter 458 (and subject to unauthorized practice of medicine charges) as long as their acts fall within their scope of practice authorized by statute. The legislature defined, in similar manner, those persons who may write prescriptions for legend drugs in Florida. Chapter 465, F.S., the Florida Pharmacy Act, makes it a third degree felony for any person to sell or dispense legend drugs without first being furnished prescription. 465.003(7),465.015(2)(c), F.S. "Prescription" is defined as any order for legend drugs "by a duly licensed practitioner authorized by the laws of the State to prescribe such drugs." (e.s.) 465.003(13). In the instant case, the BOARD acknowledges that it has never relied on any particular or specific phase in Chapter 463 as authorizing optometrists to prescribe and use legend drugs. Indeed, it asserts that: [S]tatutory authority alone is insufficient to permit optometrists to use drugs. The scope of practice of optometry (including what is taught in the schools and colleges of optometry) must be considered. The Board of Optometry is responsible for determining the scope of practice. (BOARD'S Proposed Final Order, proposed finding no. 188). It repeatedly asserts that it is the BOARD which defines the scope of practice of optometry, and that the definition is continually evolving. (BOARD's Proposed Final Order, proposed finding no. 194.) It broadly interprets the comprehensive "any other means or methods" language of Section 463.002(4) as including any means or methods taught by schools of optometry and recognized as standard methods by the BOARD. (BOARD's Proposed Final Order, proposed finding no. 50) The BOARD fails to comprehend the limits of its power. It may only adopt rules consistent with Chapter 463 and for the purpose of carrying out the terms of the statute. 463.005. It may adopt standards of practice for licensed optometrists, Id. But it may not adopt standards which exceed or attempt to expand the scope of optometry as defined by Section 463.002(4). There may be, as the BOARD argues, good reasons for expanding the bounds of optometry, but the power to do so rests with the legislature, not the BOARD. Here, the statute does not authorize optometrists to prescribe or use legend drugs in their practice. The BOARD cannot adopt a rule which attempts to supply this authority. The proposed rule, standing alone, can neither add to nor vary the scope of practice defined by Section 463.002(4), F.S. See, 458.303(1)(a), 465.003(13), F.S. Comparison of Chapter 463, F.S. With Statutes Regulating Other Health Care Practitioners. There is further support for the proposition that if the legislature had intended to authorize optometrists to prescribe and use legend drugs, it would have done so in clear and unmistakable language. It left little room for doubt when it enacted laws granting this authority to other health care practitioners when these statutes are examined, a common legislative scheme emerges: Each grant of authority is accompanied by a legislative restriction-- making the misuse of drugs an explicit ground for disciplinary action. 3/ See, statutes regulating the Professions of Medical Practice, 458.305(3), 458.331(1)(q); Osteopathy, 459.003(3), 459.015(1)(q); Podiatry, 461.003(3), 461.013(1)(p); Naturopathy, 462.01, 462.14(1)(h); Dentistry, 466.003, 466.017, 466.028(1)(q); Veterinary Medical Practice, 474.202(4), 474.214(1)(z), (aa), F.S. Yet, Chapter 463 does not--either in the definition of optometry or in any disciplinary provision--clearly authorize optometrists to prescribe and use legend drugs in their practice. Indeed, misuse of legend drugs (by an optometrist inside or outside of his or her scope of practice) is not specified as a ground for discipline. The clear implication is that the legislature did not intend to authorize optometrists to prescribe and use legend drugs in their practice. If it had intended to do so, it is likely that it would have followed the same statutory scheme it used to grant such authority to other health care practitioners. Scope of Optometry Is Defined by Statute, Not Various Schools of Optometry. As mentioned earlier, the BOARD urges that it is empowered to define and change the scope of optometry, based on what is taught in the various schools of optometry and what it approves as standard means and methods. This is not a permissible construction of Section 463.002(4), F.S., which defines the scope of optometry. The statutory definition does not expressly, or by reasonable inference, relate to what is taught in the schools of optometry. If the legislature had intended such a result, it would have stated it--as it did in the law regulating osteopathic medicine. From at least 1941 to 1978, the scope of osteopathic medicine was defined as that system or school of medicine which "is taught and practiced in the standard colleges of osteopathy and Surgery . . . ." 459.01, F.S. (1975). "Standard colleges of osteopathy" were defined in terms of the educational requirements which must be met before one could obtain a degree of doctor of osteopathy. 459.08, F.S. (1975). Less Weight Given Other Statutory Rules of Construction. In construing Chapter 463, F.S., and under the particular circumstances of this case, less weight is given other, countervailing, rules of statutory construction. While deference is accorded an agency's rule interpreting the statute in its charge, Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981), such deference applies only to permissible interpretations. Id. The weight to be given an agency's current interpretation may be affected by its past interpretations to the contrary. Moreover, deference to an agency's interpretative power can never be used to justify a rule which is beyond its authority to adopt. Although a Florida Attorney General's opinion is entitled to great weight in construing statutes, State v. Office of Comptroller, 416 So.2d 820 (Fla. 2d DCA 1982), where the opinions are conflicting and unclear--as they are in this case--they should be accorded less weight. Deference is also accorded a rule which has been in effect for several sessions, without interference from the legislature or its Administrative Procedures Committee. Jax Liquors, Inc. v. Division of Alcoholic Beverages and Tobacco, 388 So.2d 1306 (Fla. 1st DCA 1980). But this principle has less effect when applied, as here, to an agency's policy statement never promulgated as a rule or subjected to the public notice and scrutiny requirements of Section 120.54, F.S. Finally, legislative action--propose or defeated--may aid in construing a statute. 30 Fla. Jur., Statutes 103. But, in the instant case, recent legislative activity is inconclusive and provides little guidance to the correct interpretation of the statute. The 1975 statute creating the Study Commission sheds little light, Since the statute took a neutral position; and the Commission which subsequently studied the question took no definite position, and recommended no action. Proposed Rule 21Q-3.10 Is Invalid, in Its Entirety. Proposed Rule 21Q- 3.10, in its entirety, constitutes an invalid exercise of delegated legislative authority. The rule--which purports to regulate the prescription and use of legend drugs by optometrists in the practice of optometry--clearly implies that optometrists have such authority under Chapter 463, F.S. They do not, and the BOARD has no power to confer it. Although subsection (2) of the rule does not expressly regulate the use of drugs by optometrists, it directly relates to the remaining--and--objectionable--portions of the proposed rule. There is no evidence that the BOARD intended to adopt subsection (2) without the accompanying subsections (3)(4), and (5). Under these circumstances, subsection (2) is also invalid. III. Unnecessary to Determine Validity of Economic Impact Statement. The adequacy of the BOARD's economic impact statement is not reached since the proposed rule which it addresses is deemed an invalid exercise of delegated legislative authority. The Board's 1975 Policy Statement on the Use of Drugs by Optometrists is an Invalid "Rule." Section 120.52(15), F.S. defines a rule as: (14) . . . each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedures or practice requirements of an agency and includes any form which imposes any requirement or Solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule . . . . An agency's characterization of its statement is not controlling. If the statement is intended, by its own effect, to create rights, require compliance, or otherwise have the direct and consistent effect of law, it is a "rule," and invalid unless adopted in accordance with the rulemaking procedures of section 120.54, F.S. See, State Department of Administration v. Harvey, 356 So.2d 323 (Fla. 1st DCA 1977); State Department of Administration v. Stevens, 344 So.2d 291 (Fla. 1st DCA 1977). One of the goals of the Administrative Procedure Act was to abolish invisible policymaking--those "unwritten rules" which agency's can adopt, change, and enforce with unrestrained dis-cretion. Straughn v. O'Riordan, 338 So.2d 832, 834 (Fla. 1976). In the instant case, the BOARD's 1975 policy statement on the use of drugs by ptometrists announced its interpretation of Chapter 463, and an attendant disciplinary policy, which it would follow in the future. This statement was generally applicab1e addressed and disseminated to all licensed optometrists in Florida. The BOARD intended that it be used and relied on in the future; optometrists were told that it was an important BOARD statement which they should read and retain for future reference. It was intended to create rights and require compliance. It effectively informed all licensed optometrists in Florida that they could lawfully prescribe and use legend drugs in their practice; and that if they did So providing they were individually competent, no disciplinary action would be taken against them. The statement was not incipient or emerging agency policy. See, McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), It was not announced tentatively, or in uncertain terms, and it has remained--intact and unchanged-- as a statement of BOARD policy since 1975. This 1975 policy statement is thus a "rule" within the meaning of Section 120.52(15), but was not adopted as such in accordance with Section 120.54 rulemaking procedures, It was adopted with lightning-like effect, without notice to affected persons, without providing them opportunity to comment or participate, and without eventual publication in the Florida Administrative Code. Hence, the BOARD's 1975 policy statement, dated November 12, 1975, constitutes an invalid exercise of delegated legislative authority. Adoption and Rejection of Proposed Findings of Fact. The parties submitted proposed findings of fact which have been considered and, when appropriate, Incorporated in this order. To the extent they are not incorporated, they are rejected as not supported by the weight of credible evidence, subordinate, cumulative, immaterial, or unnecessary to resolution of the issues presented. Extensive findings were proposed pertaining to the training and education of optometrists; their ability to safely prescribe and use legend drugs in their practice; and the extent to which they have used--or now use--legend drugs in their practice, including their record of performance. Proposed findings on these subjects are rejected as immaterial to the dispositive issue--the BOARD's authority vel non to adopt a rule which, expressly or impliedly, authorizes optometrists to prescribe and use legend drugs in their practice of optometry. Based on the foregoing, it is ORDERED: That the Amended Petition to Invalidate Agency Rules, dated September 15, 1983, is granted. Accordingly, Proposed Rule 21Q-3.10, as proposed by the BOARD and filed with the Department of State, is declared an invalid exercise of delegated legislative authority; and The BOARD's written policy statement on the use of drugs in optometry, dated November 12, 1975, is declared an invalid exercise of delegated legislative authority. DONE and ENTERED this 22nd day of March, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 22nd day of March, 1984
The Issue At issue is whether Respondent materially failed to follow applicable ruling making procedures required by Section 120.54(2)(a), Florida Statutes, with regard to promulgation of proposed Rule 21P-16.002, Florida Administrative Code, relating toqualifications of sponsors for apprentice opticians; whether the proposed rule is an invalid exercise of delegated authority by Respondent; and whether Petitioners are parties substantially affected by the proposed rule.
Findings Of Fact Respondent is the state agency responsible for regulation of an apprenticeship program for candidates desiring licensure as opticians in the State of Florida. The apprenticeship program provides an alternate route to qualification to take the examination for licensure as an optician. Candidates may also qualify for examination by receipt of an associate degree in opticianry from an accredited educational institution or previous practice and licensure in other jurisdictions. Candidates electing to pursue licensure examination through the apprenticeship program as currently established must comply with provisions of Rule 21P-16.002, Florida Administrative Code. The current version of Rule 21P-16.002, Florida Administrative Code, states: 21P-16.002 Qualifications for Apprentices and Sponsors. Apprentices and sponsors for apprenticeship programs must meet the following qualifications: An apprentice must be at least 17 years old at the date of application; must submit a complete application for apprenticeship along with proof of having obtained a qualified sponsor; and must submit the registration fee required in Rule 21P-11.013. A sponsor must be an optician, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 21P-10.007 on the premises of any establishment in which apprentices are trained. Proposed Rule 21P-16.002, makes no changes to the existing sponsorship requirements found in paragraphs (1) and (2) of the present rule, but adds a new paragraph (3) which specifies the following: (3) No optician, physician or optometrist may serve as a sponsor unless he actually dispenses eyewear and maintains the required equipment on the same premises where the apprentice works. For example, an optician, physician or optometrist whose premises and equipment are distinct from the intended apprentice's work area cannot serve as a sponsor, even though the optician's, physician's or optometrist's premises are within the same office area or building. The proposed rule seeks to implement Section 484.007(1)(d)4., Florida Statutes, which provides an applicant may qualify to take the state opticianry licensure examination following completion of a three year apprenticeship "under the supervision of an optician, a physician, or an optometrist licensed under the laws of this state." Through promulgation of the new rule, Respondent seeks to correct a perceived deficiency in the degree of supervision provided by some sponsors to their apprentice opticians. The new proposed rule seeks to correct such deficiency through the prohibition of separate or "distinct" work areas for sponsor and apprentice; the requirement that the sponsor "dispense eyewear"; and the requirement for the sponsor to "maintain the equipment" used by the apprentice on the premises where both apprentice and sponsor work. Petitioners are corporate entities licensed to do business in the State of Florida. Petitioners operate various retail optical establishments engaged in providing opticianry services. While not licensed to perform opticianry services, Petitioners employ opticians and apprentice opticians for that purpose. Petitioners also have contractual relationships with licensed optometrists for the provision of optometric services at Petitioners' retail establishments. The employed opticians and contracted optometrists often act as sponsors for apprentice opticians employed in Petitioners' retail establishments. Generally, Petitioners' retail establishments haveseparated areas for optometry services, dispensing of eye wear and a laboratory for the preparation of lenses. In the various establishments, these areas are separated from each other by a permanent wall constructed of either glass or other solid, opaque substance. Two to four licensed opticians are employed in each of Petitioners' retail establishments. Each of these individual opticians, or a licensed optometrist under contract, may sponsor an apprentice optician employed by Petitioners. Often the sponsoring professional is otherwise occupied in these establishments and the apprentice, who is also generally an employee, may be required to perform certain functions without direct supervision by the sponsor. The proposed rule's requirement that a sponsor actually "dispense eyewear" results from Respondent's position that a sponsor should actually be performing that task in order to properly train an apprentice in the performance of that procedure. The proposed rule's requirement that a sponsor "maintains the required equipment on the same premises where the apprentice works" dictates that a sponsor must own the equipment used by the apprentice or otherwise be responsible for the provision of that equipment. Such a requirement may effectively prohibit opticians and optometrists employed by Petitioner from serving as sponsors where those employees do not own and are not otherwise responsible for providing, generally, the "required equipment" on the premises of Petitioners' various establishments. Petitioners argue that such de facto denial of sponsorship opportunities to opticians, optomertrists and physicians employed by them contravenes the statutory provision of Section 484.007(1)(d)4, Florida Statutes, that an apprenticeship be completed under the supervision of "an optician, a physician, or optomertrist licensed under the laws of this state." Such an argument is not credited in the absence of expressed legislative intent to grant sponsorship status to any of the licensed professionals denominated in the statute. Specifically, it is found that the referenced statutory provision sets a minimum requirement for sponsorship, as opposed to a limitation to establishment of further qualifications. Respondent's economic impact statement was prepared by counsel. Respondent's position, as expressed through testimony of its executive director, is that the proposed rule has no discernible direct adverse economic impact, although testimony presented by Petitioners supports the finding that the proposed rule change shall require at least some alteration of the physical arrangement at some of Petitioners' retail establishments in the event that Petitioners desire to continue present apprentice programs in their businesses.
The Issue 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
