Findings Of Fact Respondent, Santiago F. Suarez (Suarez), was at all times material hereto licensed as a physician in the State of Florida, and held license number ME 0030132. Suarez is a family practitioner, and has no specialized training relating to the human eye. He has never performed a refraction or prescribed eyeglasses during his medical career, nor has he had any training or experience in prescribing and fitting contact lenses.1 Commencing in the latter part of 1983 and continuing through the early part of 1984, Suarez acted as the supervising physician for Reynaldo Avello (Avello) when he performed refractions or fit contact lenses on clients of the Optical Medical Center; a business owned by Avello. During this time period, Avello routinely refracted the vision of his clients; measured the eyes of clients who desired contact lenses; prescribed eyeglasses and contact lenses; and prepared, dispensed or fit eyeglasses and contact lenses for his clients as well as clients of optometrists and ophthalmologists. Avello is not, and never has been, a licensed optician or optometrist, and he has no formal education or training beyond high school. Consequently, his activities were proscribed by law unless they were appropriately delegated and supervised by a medical doctor.2 Chapter 463 and 484, Part I, Florida Statutes. In this case Avello, not Suarez, prescribed eyeglasses and contact lenses. Avello conducted the eye examination, but limited his practice to refracting the eye and, when appropriate, to measuring the eye for contact lenses. Although Avello was ostensibly practicing under Suarez' supervision, Suarez was not competent to perform a refraction, or to prescribe and fit eyeglasses and contact lenses. In fact, Suarez took no active part when client's eyes were refracted, but deferred to Avello's "expertise." Suarez limited his involvement to securing a brief medical history from the client, and being available in case an emergency arose.3 Suarez' reliance on Avello's "expertise," without inquiring as to his training and experience, was a serious error in judgment. The only training Avello had in refracting the human eye occurred while he was employed part-time by the Union Latina clinic in Hialeah, immediately before he opened the Optical Medical Center. During his employment at the clinic, Avello was shown how to do a refraction by a board qualified ophthalmologist, but he never performed any refractions under that ophthalmologist's supervision. In March 1980, Avello opened the Optical Medical Center. With the exception of the period during which Suarez supervised Avello, the center has always had in its employ a board qualified or certified ophthalmologist. During those times, all eye examinations were performed by the ophthalmologist, and Avello did no refracting. While Avello considers himself qualified to do refracting, the proof regarding his training and experience renders his opinion unpersuasive. At no time was he shown to have worked under the supervision of a qualified practitioner, and no qualified practitioner was shown to be familiar with the quality of his work. Further, Avello was not shown to have had any qualified training or experience in measuring the human eye; prescribing eye glasses and contact lenses; or preparing, dispensing, and fitting eyeglasses and contact lenses. Accordingly, the proof established that Suarez accepted and performed professional responsibilities which he knew he was not competent to perform, that he assisted an unlicensed person to practice medicine contrary to law, and that he delegated professional responsibilities to a person he should have known was not qualified to perform them. The proof further established that the existent community standard required that a complete eye examination be performed before eyeglasses or contact lenses could be prescribed, and that such standard was breached. Suarez' failings could have resulted in profound adverse consequences to those patrons who were ostensibly refracted and fitted under his supervision. Improperly fit eyeglasses can result in blurred vision and nausea. More importantly, improperly fit contact lenses can result in permanent visual damage to the eye. In mitigation, Suarez avers that he agreed to supervise Avello out of a sense of personal obligation, not profit; that his employment was to be for the limited time it took Avello to secure the services of another physician; and, that when he undertook to supervise Avello he believed such activity to be legal. Suarez also offered for consideration in mitigation the fact that he cooperated in the investigation of the Optical Medical Center, and the fact that he had never previously been disciplined. Suarez' plea in mitigation is largely unpersuasive. While he may have undertaken Avello's supervision out of a sense of personal obligation, it was not without the expectation of compensation. Suarez and Avello had agreed, that if their association proved profitable, he would be compensated for his services. Notably, while Suarez' desire to fulfill a personal obligation is admirable, its priority is far below that owed to those to whom he professed to render a professional service. In this case, Suarez' supervision permitted an unqualified person to render professional services that he, as a medical doctor, was not qualified to perform, and therefore not qualified to supervise. No physician could reasonably believe such conduct was appropriate.4 Suarez' assertion that his association with Avello was to be of limited duration is not only irrelevant, but contrary to the proof. Suarez supervised Avello for 1 1/2 years, and there was no showing that Avello or Suarez made any effort during that period to hasten his replacement. Notably, during his association with Avello's business, the front of the store proclaimed in bold guilding "Optical Medical Center, Santiago F. Suarez, M.D." Under the circumstances, the proof does not suggest that their association was to be casual or of short duration.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The medical license of Respondent, Santiago F. Suarez, be suspended for a period of one (1) year, and that during the period of such suspension Respondent be required to complete such courses as the Board of Medicine may require to demonstrate an adequate comprehension of professional ethics, scope of practice for a family practitioner and delegation of professional responsibility; and An administrative fine in the sum of $2,000.00 be ~ assessed against Respondent, Santiago F. Suarez. DONE and ORDERED this 15th day of September, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1987.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Laser Rite is a partnership owned by Helen Pell and her husband, Richard Pell. Helen Pell owns fifty-five percent and Richard Pell owns forty- five percent. Laser Rite sought MBE certification in two areas: (1) laser cartridge remanufacture; and (2) laser printer repair. Laser cartridge remanufacture is the major portion (85 percent) of Laser Rite's business. Helen Pell controls the laser cartridge remanufacture for Laser Rite. Laser printer repair makes up approximately 15 percent of Laser Rite's business. Richard Pell performs the repair of laser printers with the help of Jose Disilva, a part-time employee. Disilva was trained in laser printer repair by Richard Pell and works under Richard Pell's supervision. Most of the laser printer repair takes place in the field. Disilva is also learning laser cartridge remanufacuture from Helen Pell. Helen Pell does not have the knowledge or expertise to repair laser printers. Laser Rite has only one business bank account. Helen Pell, Richard Pell and Knyvett Lee (Helen Pell's daughter) each have individual signature authority for the business bank account. The bank has authority to honor a check drawn on the Laser Rite business bank account that is signed by any one of those having individual signature authority. Richard Pell has on occasions signed checks drawn on the Laser Rite account. Richard Pell and Helen Pell at one time owned another business called Metro Audio Visual, which they bought in 1977 for $150,000. A $40,000 down payment on Metro Audio Visual came from the sale of Helen Pell's home which was in her name solely. The remainder of the purchase price for Metro Audio Visuals was financed by notes signed by both Helen Pell and Richard Pell. Metro Audio Visual was sold for $425,000. The profits from the sale of Metro Audio Visuals were invested in Vanguard Securities. The record is not clear whether these securities were held jointly or individually by Helen Pell and Richard Pell. Vanguard Securities were sold for $50,631.18. A wire transfer of those funds was made in the name of Helen Pell and deposited in the joint account of Helen Pell and Richard B. Pell at the American Bank of Bradenton. On October 30, 1993, in contemplation of purchasing Laser Rite, Helen Pell and Richard B. Pell executed a Partnership Agreement wherein Helen Pell would own 55 percent of Laser Rite and Richard B. Peel would own 45 percent of Laser Rite. Additionally, Helen Pell would control the general management and day to day operations of Laser Rite whereas Richard B. Pell would be responsible for the technical direction of the Laser Rite. In January 1994, Helen Pell and Richard B. Pell purchased Laser Rite for a purchase price of $134,375 which included, among other things, the purchase of assets and consulting services. Fifty thousand dollars of the funds received from the sale of the Vanguard Securities was used as a down payment. The balance of the purchase price ($84,375) was financed by a note signed jointly by Helen Pell and Richard B. Pell. The first payment on the note was due and payable on February 15, 1994, in the amount of $23,500 which was paid by check drawn on the Pell's joint money market account. The balance of the note was to be paid in equal monthly installments of $1,476.29 beginning March 15, 1994. The Asset Purchase Agreement for Laser Rite was signed by Helen K. Pell and Richard B. Pell collectively as buyers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order denying Petitioner's application for certification as a Minority Business Enterprise. RECOMMENDED this day 21st of April, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, 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 21st day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5997 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Commission in this case. Petitioner's Proposed Findings of Fact. 1. Petitioner elected not to file any proposed findings of fact. Commission's Proposed Findings of Fact. 1. Proposed findings of fact 1 through 9 are adopted in substance as modified in Findings of Fact 1 through 13. COPIES FURNISHED: William H. Roberts, Esquire Department of Legal Affairs The Capitol, PL-01 Tallahassee, Florida 32399-1050 Helen Pell, President Laser Rite 1165-A Gillespie Ave. Sarasota, Florida 34236 Mr. Crandall Jones Executive Administrator Knight Building 2727 Centerview Drive Tallahassee, Florida 32399-0950
The Issue This cause arose as an action pursuant to Section 120.56(2), Florida Statutes, challenging the validity of the amendment to Rule 59U-16.002(2), Florida Administrative Code, proposed and published by the Board of Opticianry on February 14, 1997. The issues are: Do Petitioners have standing to bring this rule challenge? Is the following proposed amendment of Rule 59U- 16.002(2), Florida Administrative Code, an invalid exercise of delegated legislative authority, pursuant to Sections 120.52(8)(c) and (8)(e), Florida Statutes? A sponsor must be an optician who is licensed under Chapter 484, F.S., for no less than one (1) year, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 59U-10.007 on the premises of any establishment in which apprentices are trained. (Amended language underlined) Are Petitioners entitled to attorney's fees, pursuant to Section 120.595(2), Florida Statutes?
Findings Of Fact All persons seeking to be licensed as opticians in Florida must first pass a minimal qualifications licensure examination. Before being qualified to sit for this examination, one of the following courses of preparation provided in Section 484.007, Florida Statutes, must be met. In relevant part, this section provides that one must have (1) received an associate degree, or its equivalent, in Opticianry from an accredited educational institution; (2) be an individual who is licensed to practice the profession of Opticianry in another state, territory, or jurisdiction, who has actively practiced for more than three years; or (3) come from a state or jurisdiction which is not licensed and have actively practiced in that state, territory, or jurisdiction for more than five years immediately preceding application; or (4) be an individual who has completed an apprentice program consisting of 6,240 hours of training under the supervision of an optician, a physician, or an optometrist licensed under the law of this state. Respondent Board of Opticianry published on February 14, 1997 a proposed change to Rule 59U-16.002(2), Florida Administrative Code, as set out below. The underlined language is the only substantive change: 59U-16.002 Qualifications for Apprentices and Sponsors. Apprentices and sponsors for apprenticeship programs must meet the following qualifications: No change. A sponsor must be an optician who is licensed under Chapter 484, F.S., for no less than one (1) year, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 59U-10.007 on the premises of any establishment in which apprentices are trained. Specific Authority - 484.005 F.S. Law Implemented - 484.007(1)(d)4. F.S. The parties' Amended Prehearing Stipulation agreed that, Petitioners did not request a public hearing pursuant to the Florida Administrative Weekly notice. A Notice of Additional Public Hearing scheduled for May 16, 1997, was published on April 18, 1997, Volume 23, No. 16, Florida Administrative Weekly. At that hearing, the Board of Opticianry discussed and approved an amendment to proposed amendment to Rule 59U- 16.002. At formal hearing, counsel for the Board represented that the Board had voted to amend the challenged proposed rule so that it would not restrict persons who had completed more than one year of opticianry practice out of state prior to passing the Florida Opticianry licensure examination from acting as sponsors of apprentices within their first year of Florida practice; however, the Board would not withdraw the challenged rule as published and would not publish/file a Notice of Change until a Final Order is entered on the instant challenge. The Board's position was that this vote did not constitute a stipulation of invalidity, arbitrariness, capriciousness, or overreaching its statutory authority. According to the Board, this representation was made only because the Board would not be putting on evidence to support certain portions of the rule language, as published. Nonetheless, Sam Jones, licensed optician and Board member, testified, on behalf of the Board, that new Florida licensees from out of state could not properly sponsor apprentices for at least one year because they "need a little more exposure" to Florida laws and rules before teaching others and because some other states have no licensure criteria at all and no continuing education requirements. The Petition challenges the ability of the Board to require that opticians be licensed for at least one year prior to serving as apprentice sponsors, alleging that the Board lacks statutory authority to promulgate such a rule and that the proposed change is arbitrary and capricious and not based on appropriate factual or legal justification. Petitioner Lenscrafters, Inc. is a corporation that does business in the State of Florida, offering optical services and goods to the public. Lenscrafters hires employees to work as opticians, as well as hiring other unlicensed store employees. Petitioner Sanjiv Matta is Lenscrafters' Regional Trainer of Operations and apparently Lenscrafters' primary Florida employment recruiter. He also locates coaches for Lenscrafters' training programs. He has been a licensed optician in Florida for more than one year. He does not currently sponsor an apprentice. Lenscrafters and Mr. Matta allege that they will be substantially affected because the proposed rule amendment will reduce the number of available sponsors, which will in turn reduce the number of apprentices, which will in turn reduce the number of available employees now and the number of available licensed opticians in the future. As a subset of this alleged chain of unavailability of sponsors, apprentices, and employees generally, Petitioners claim great difficulty will arise in attempting to coordinate apprentice work hours with sponsor work hours. Lenscrafters has 64 stores in Florida. Each store is staffed by opticians, but there is often an independent optometrist next door. Lenscrafters employs approximately 200 opticians in Florida, with an average of three opticians working in each of its stores. Approximately 25 of the 200 opticians employed by Lenscrafters in Florida have been licensed for less than one year. These 25 were among the 60 new employees hired by Lenscrafters last year. Some of the licensed opticians Lenscrafters hires unilaterally elect to serve as sponsors to other employees who would like to obtain their opticianry license by completing an apprenticeship program. However, according to Mr. Matta, it would not be "integrity based" for Lenscrafters to urge or encourage optician employees to take on sponsorship. Lenscrafters provides the optometric equipment used by sponsors and apprentices in its employ. Although Lenscrafters provides programs to help all its employees, including apprentices, achieve expertise in fitting and adjusting eyeglasses and provides situational training, equipment training, training tests, performance tests, and lending libraries, it has no specific apprenticeship program, as such, in place. Some of Lenscrafters' programs assist apprentices in attaining credit hours towards licensure. Some supplement the apprentice program requirements. The primary purpose of Lenscrafters' programs is to educate and train its employees for servicing its customers. The ultimate testimony of Mr. Matta that there currently are three opticians employed by Lenscrafters who have been licensed in Florida for less than one year and who are also currently serving as sponsors was anecdotal at best and at worst was speculative and self-contradictory of prior testimony. Lenscrafters currently has 66 apprentices in its employ in Florida. Pursuant to Board rules, each sponsor may oversee two apprentices and any apprentice may have both a primary and a secondary sponsor. Credit hours in the apprentice program are only earned when the apprentice works under a sponsor's supervision. Board rules would permit Lenscrafters' 200 opticians to sponsor 400 apprentices if each licensee had two apprentices. The proposed change in the rule would allow 175 Lenscrafters' opticians to sponsor 350 apprentices. Simple mathematics shows that Lenscrafters has between 33 and 66 optician employees who serve as apprentice sponsors, primary or secondary. Clearly, Lenscrafters currently employs many more non-sponsors than sponsors. Section 484.011, Florida Statutes, allows any employee of an optician to perform any of the functions an optician performs, as long as the acts are performed under the direct supervision of the optician. Lenscrafters allows apprentices to perform more tasks than other unlicensed employees. Lenscrafters considers apprentices to have greater expertise, employee commitment, and career commitment than other unlicensed employees. Lenscrafters pays apprentices more than other unlicensed employees. Lenscrafters and Mr. Matta believe that apprentices who have worked in Lenscrafters' stores and trained on Lenscrafters' equipment will eventually provide a pool of trained opticians for hire or promotion. However, Lenscrafters submitted no statistical data to confirm this "belief" expressed by Mr. Matta, and based on the ratio of available sponsors to apprentices which was developed at formal hearing, this "belief" constitutes pure speculation. It could be just as beneficial for Lenscrafters to train non-apprentices at a lower salary. Intervenor Odette Gayoso has been involved in opticianry for 15 years. She has an Associate of Arts (AA) degree in Optical Science and has been licensed as an optician in Puerto Rico since 1991. Ms. Gayoso is employed as an optician by Lenscrafters. She has been a licensed optician in Florida since December 1996. Therefore, at the time of formal hearing, she had been Florida- licensed for less than one year. Under the proposed rule amendment, she would be unable to act as a sponsor for five more months. Ms. Gayoso does not sponsor an apprentice currently, although the current rule permits her to do so. She has never applied to be a sponsor. No apprentice currently wants her as a sponsor. In the past, two Lenscrafters employees needed sponsors, but both left Lenscrafters' employ before any agreements concerning sponsorship were reached. Ms. Gayoso feels she is qualified to sponsor an apprentice and that she would derive satisfaction from teaching one. The parties' Amended Prehearing Stipulation stipulated that POF had standing to intervene. POF put on no evidence of standing. Mr. Matta and Ms. Gayoso testified that they recruit for Lenscrafters. Ms. Gayoso is an assistant retail manager in a single store. Mr. Matta recruits state-wide. Only Mr. Matta testified that, in his experience, there is a shortage of qualified opticians available to be hired. Only Mr. Matta testified that due to the Board's rule requirement of direct supervision it was difficult for him to match apprentices' work hours with those of their sponsors. Ms. Gayoso did not corroborate Mr. Matta's perception that it is difficult to match apprentices' work hours with those of their sponsors. Although she could see how that could be, it apparently was not a problem in her store where the optician/manager sponsored two apprentices and where another optician who had been employed less than 90 days was prohibited by Lenscrafters from acting as a sponsor. The fact that Lenscrafters prohibits some of its licensed opticians from sponsoring apprentices undermines Lenscrafters' position that the proposed rule change alone would undermine apprentices locating willing sponsors. Mr. Sam Jones perceived no shortage of licensed opticians, only a shortage of licensed opticians he would care to hire in his establishment. The Board office receives approximately 86 calls about the apprenticeship program each month. The Board has never received a call concerning a prospective apprentice's inability to find a sponsor. There are currently approximately 2,500 actively licensed opticians in Florida. Of these 2,500 licensees, 174 were licensed last year. This number of annual new licensees has stayed relatively stable for many years. Of 544 current apprentices in Florida, only 27 currently have sponsors of less than one year licensure. The statistics show that many more potential sponsors are available both state-wide and within Lenscrafters' Florida operation than there are those who want to be apprentices. Under the current rule, only those licensees who are currently under disciplinary action are precluded from being sponsors. Under the proposed rule, and excluding any disciplinary concerns, only the 174 new admittees could not be sponsors for one year. A year later, those 174 could become sponsors. So in effect, the only licensees who could not be sponsors each year are the newest licensees, while each year the total number of potential sponsors grows respectively. Of course, the number of eligible physicians and optometrists who could also serve as sponsors would not fall below the current number and would continue to grow respectively year by year. Florida has two junior colleges with an Opticianry AA degree program. These colleges graduate approximately 60 opticians per year. Approximately half of the successful opticianry licensure examinees come from the AA program, and half come from the apprentice program. There is a 90 percent first time pass rate on the examination. The number of apprentice program examinees who fail on both the initial examination and "retake" examinations is higher than for AA degree holders. Since 1991, the Board has been concerned that the apprenticeship route has not been adequately educating future opticians and ensuring the safety of their public practice after licensure even if they were being adequately prepared to pass the standardized minimal qualifications examination. The Board consulted no empirical data for formulating its rule as published, but it held between nine and 12 Board meetings which included discussions on upgrading the apprenticeship program. Board members reported information from nationally recognized professional associations and reviewed a national trend whereby more states are requiring licensure and more states are phasing out apprenticeship programs. Some Board members took the minimum qualifications licensure examination so that they could understand what was involved and how the examination could be improved and report back to the Board. Board members heard reports from staff and investigators on reasons more disciplinary cases were not prosecuted. These Board meetings were open to the public and solicited public input. Some were referred to as "workshops," although they might not meet the generally understood Chapter 120, Florida Statutes, definition of "workshop." In 1996, a bill to amend Chapter 484, Florida Statutes, so as to require optician licensees to have three years of licensure before becoming sponsors did not pass into law. The Board viewed the one-year rule amendment as a more conservative step than requiring three years of licensure for sponsorship. All witnesses agreed that an experienced optician knows more about the practice of opticianry than a newly licensed optician. Lenscrafters' witnesses contended that newly licensed opticians were more enthusiastic sponsors and more able to teach what would be required on the licensure examination. Sam Jones was one of the Board members who retook and passed the current licensure examination. On behalf of the Board, he stated that the teaching of how to pass the licensure examination did not equate with teaching the practice of opticianry. In drafting the rule challenged herein to apply to all new optician licensees regardless of which of the four alternative routes they had taken to licensure, the Board viewed the new one-year requirement as constituting an internship akin to the internship required of other health care professionals. The new rule does not require physicians and optometrists to be licensed for one year before acting as a sponsor. In not applying the one-year requirement to physicians and optometrists, but only to opticians, the Board considered that licensed physicians and optometrists already had clinical experience in excess of licensed opticians. The parties stipulated that the Board is authorized to make such rules as are necessary to protect the health, safety, and welfare of the public as it relates to the practice of opticianry and is authorized, "to establish administrative processing fees sufficient to cover the cost of administering apprentice rules as promulgated by the Board."
The Issue Whether DPR should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact After graduation from the Florida Barber College the year before, respondent Roy Don Redman registered as an apprentice with the Florida Barbers' Sanitary Commission, effective January 12, 1967. Petitioner's Exhibit No. 2. Four days later he began work as a barber, id., and six months after that he started at Walt's Better Barber Shop in Jacksonville. Id.; (T. 67) On January 9, 1969, Mr. Redman received his master barber's license, originally issued by a predecessor to the Barbers' Board and numbered 18729, his license has been regularly renewed and now bears the designation BB-0018729. Petitioner's Exhibit No. 2. Some 16 years ago, Mr. Redman acquired Walt's Better Barber Shop from his erstwhile employer, Walter M. Kembro. It was then that he purchased and installed the carpet which covers almost the entire barber shop floor. Only a back room is uncarpeted. (T. 41) Renamed Don's Sportsman's Barber Shop, the barber shop has its own license, No. 85-0001690. Petitioner's Exhibit No. 1. Jimmy S. Hicks and Glen Lowe work alongside respondent as barbers at Don's Sportsman's Barber Shop. Mr. Hicks started about ten years ago, and Mr. Lowe began approximately nine years ago. At each of the three stations in the barber shop, a rubber mat lies on the floor behind a barber's chair. Each barber keeps combs, scissors, clippers and similar implements in the metal cabinet which sits on a counter or shelf at each station. When turned on, ultraviolet lights inside these cabinets have an antiseptic effect. On July 10, 1987, Gail H. Hand, one of two DPR inspectors responsible for barber shops and beauty salons in Duval County, visited Don's Sportsman's Barber Shop. She found the ultraviolet light bulbs unlit. Although the barbers turn those lights on when they begin work, they all go off when the air conditioner kicks in or when three 1500 watt hair dryers are in use. Around the edges of the mats, and where the carpeted floor meets the vertical face of the "back bar" or abuts the partitions which separate the stations, she found a compact accumulation of "old hair," a quarter to a half inch high and a quarter to a half inch wide, almost as if the joints had been caulked with hair. Fresher hair, the remnants of several haircuts, lay on the floor near the barber's chairs. She saw little clumps and globs of hair inside the metal cabinets in the corners and underneath the trays on which the barbers kept their tools. In the barber shop bathroom, Ms. Hand smelt a "bad odor," and noted dirty fixtures. In discussing Ms. Hand's findings, Mr. Redman commented that he had been doing things the same way for 20 years without ever before being accused of unsanitary practices. Not only do the barbers at Don's Sportsman's Barber Shop sweep and vacuum at the end of every work day, they clean up during the day, sometimes as many as five times, depending on breaks in the flow of customers. They do not sweep after each customer, however, if another is waiting, because they do not view this as a feasible business practice. Frequently the hair they cut is dry, and dry hair is "real flyaway." (T. 51) It accumulates in the air conditioning filter. Mr. Hicks coughs it up sometimes. (T. 41) So it is not surprising that it accumulates at the edges of the carpet in the barbers' stations. Between sweepings, the barbers use hair dryers to blow hair off the barber's chairs and toward the "back bar." Because they stand on the mats as they work, the barbers grind hair on the mats' perimeters into the carpet, as they shift their weight and move about, cutting hair. In December of 1987, when she returned for a re-inspection, Ms. Hand again found unlit ultraviolet light bulbs, and a dirty, malodorous bathroom. The extent and distribution of hair were essentially the same, except that hair had also been tracked into the bathroom. Friday before the hearing, Ms. Hand inspected a third time, this time in the company of Russ Huling, a DPR investigator. Again the ultraviolet lights were off, and old, compacted hair was visible around the mats and along the station walls. The sink in the bathroom was not in working order, and Mr. Redman's dog had the run of the premises.
The Issue The issue in this case is whether Respondent is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of cosmetology and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a licensed cosmetologist, holding license number CL 0143625. She has been licensed for about ten years. Her license is current and in good standing. Respondent has been applying acrylic nails since 1989. She also performs manicures and pedicures. On May 28, 1992, Sharon Seamon visited the Hair Plus salon, which is located in the Belk-Lindsey department store. Ms. Seamon works at Belk-Lindsey. During the May 28 visit, Respondent applied a full set of acrylic nails onto Ms. Seamon's existing fingernails. Although she dried the nails with a towel, Respondent failed to apply a dehydrating agent to the existing nails before applying the acrylic nails. However, the evidence does not establish that this omission resulted in the fungus that later attacked Ms. Seamon's natural fingernails. On June 6, 1992, Ms. Seamon returned to Hair Plus, and Respondent filled her nails. At this time, the natural fingernails were fine. On June 12, 1992, Ms. Seamon returned to Hair Plus and complained about black spots that had showed up on about four of her fingernails. Respondent advised Ms. Seamon that the spots were bruises. In fact, the spots were fungus. On July 7, 1992, Ms. Seamon returned to Hair Plus and showed Respondent her fingernails. All ten had black lines on them. The nails were clearly infected with fungus. However, Respondent did not indicate what the problem was, if she knew, and failed to give Ms. Seamon pertinent advice as to how to care for the problem. Ms. Seamon promptly visited a physician, who correctly diagnosed the problem as a fungus. After two or three months, the fungus cleared up completely.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Cosmetology enter a final order finding Respondent guilty of gross negligence in the practice of cosmetology, reprimanding Respondent's license, and imposing an administrative fine of $300. ENTERED on April 19, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 19th day of April, 1993. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-10 (first sentence): adopted or adopted in substance. 10 (second sentence): rejected as irrelevant. 11: rejected as unsupported by the appropriate weight of the evidence. 12: adopted. 13: rejected as subordinate. 14-21: rejected as unnecessary. Liability in this case is predicated upon Respondent's failure to diagnose. Petitioner did not prove by clear and convincing evidence that the liability may be predicated by the inception of the fungus. 22-23: adopted. 24: rejected as unsupported by the appropriate weight of the evidence. 25: adopted. 26-29: rejected as legal argument. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Kaye Howerton, Executive Director Board of Cosmetology 1940 North Monroe Street Tallahassee, FL 32399-0792 Anthony Cammarata, Senior Attorney Department of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Delia Urrutia, pro se 8307 Paddle Wheel Tampa, FL 33637
Findings Of Fact At all times relevant hereto, respondent, Daniel R. Young, operated My Barber Shop at 17 Tequesta Drive, Tequesta, Florida. Young was issued barbershop license number BS 0006466 by petitioner, Department of Professional Regulation, Florida Barbers' Board, in 1978, and has operated the shop continuously since that time. Petitioner is required to conduct annual inspections of barber shops to ensure that such barber shops are in compliance with applicable sanitation regulations, and that services are being provided by licensed personnel. Accordingly, an agency inspector (J. Robinson) visited respondent's shop on July 11, 1985 and February 12, 1986, for the purpose of conducting a routine annual inspection. An inspection report from each visit has been received into evidence as petitioner's exhibits 5 and 6. Agency regulations (Rule 21C-22.01, F.A.C.) require that implements used by a barber in cutting hair, such as combs, brushes, razors and scissors, be washed or cleaned, wiped free of hair, and then sanitized before being used on another customer. This requires first washing the implement in a detergent or wiping it with alcohol, and then sanitizing the same under one of several methods prescribed in the rule. These methods include the use of formaldehyde tablets, a quarternary ammonia solution (barbicide), and an ultra-violet light. After being sanitized, the implements must be placed and kept in a "clean, closed cabinet until next ready for use". A closed cabinet is one that is shut tightly on all four sides so that the implements inside are protected from hair that has been cut. If an ultra-violet light is used, Subsection (8)(b) of the same agency rule, requires that the implements be sanitized in the following manner: Placed in an ultra-violet ray sterilizing cabinet bactericidal 2536A radiation for a period of 15 minutes, or for a period as recommended by the manufacturers of such radiation lamp, sufficient to equal the germicidal and organism destruction of a 2 percent carbolic acid solution, or its equivalent. However, subsection (8)(c) provides the following alternative: (c) Cleansed and prepared for use by any other method that shall be the equivalent in germicidal or organism destructive effort, as provided in subsection (8)(a) above. During the course of Robinson's inspection on July 11, 1985, she cited respondent for three violations of agency rules. These included (a) "implements not cleaned after use on each customer", (b) "implements not stored in covered, sanitized area", and (c) "ultra-violet light not being used correctly to effect sanitation". After the inspection was completed, Robinson met with respondent a few weeks later to discuss the violations. a repeat inspection was conducted by Robinson on February 12, 1986. She found the previously cited violations uncorrected. The issuance of an administrative complaint followed. At the time of the inspections, respondent's shop had five stations (chairs). There were a total of three wells in the counter which was located behind the chairs. Each well was shaped in a square design approximately 18" to 20" by 18" to 20" and was eight inches deep. At the top of the rear ledge (lip) of the two wells were ultra-violet lights covered with a shade. A photographic depiction of the same is found in petitioner's exhibit 3. One well had no ultra-violet light. While observing the employees, Robinson noted that after cutting a customer's hair, they were not first wiped clean with alcohol. The employees were then placing the used implements at the front of the well, or almost a foot away from the ultra-violet light. According to the inspector, this distance, when coupled with the fact that the lights had shades over them, was too far from the light's rays to permit adequate sanitation. This opinion was based upon a telephone conversation with a product specialist for North American Lighting. It was further based upon the supposition that Young used a type A light as referred to in the rule. Since the wells were not covered, hair from the customer then receiving a haircut was dropping into the well where the implements were being sanitized. One employee (S. Littleford) had no ultra- violet light at her station, and was supposed to be using a barbicide in lieu of a light to sterilize her implements. However, she did not sanitize her cutting implements in any manner between customers. Respondent attributed the violations to a "misinterpretation of rules and regulations". He pointed out that he has had the same type of equipment for ten years and has never before been cited for a violation. Young uses a type C ultra-violet light which is permissible under the agency rule so long as it "is the equivalent in germicidal or organism destructive effect" as is provided in subsection (8)(a) of the rule. Young contends the type C light is superior to the bactericidal type A light referred to in the rule, and that a proper amount of light was emitted to sanitize the implements even though they were placed almost a foot away from the covered light. This contention was based upon a telephone conversation with a technical support employee of General Electric Company, and technical literature forwarded by that person to Young. Respondent has subsequently removed the shades and repositioned the ultra-violet lights in the wells so that they are closer to the front.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That respondent be found guilty of violating Rule 21C- 22.01(1)(e) and (8)(d), Florida Administrative Code, and that he be fined $500, to be paid within thirty days after a Final Order is rendered in this proceeding. The remaining charge should be dismissed. DONE AND ORDERED this 18th day of December, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 18th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2581 Petitioner: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 5. Covered in finding of fact 3. Partially covered in finding of fact 6. The remainder has been rejected as being irrelevant since Robinson did not testify that implements were piled-up, or scissor blades unexposed, or the implements were not turned over. Covered in finding of fact 6. Rejected as being unnecessary. Covered in finding of fact 6. Covered in finding of fact 6. Covered in finding of fact 5. Rejected as being unnecessary. Rejected as being hearsay. Rejected as being irrelevant. Rejected as being irrelevant. Covered in finding of fact 6. Covered in finding of fact 3. Covered in finding of fact 7. Rejected as being unnecessary. Covered in finding of fact 7. Covered in finding of fact 7. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 David R. Young 187 Tequesta Drive Tequesta, Florida 33469 Myrtle Aase, Executive Director Florida Barbers' Board 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue for decision herein is whether or not Respondent exhibited fraud, deceit, negligence, incompetence, or misconduct in the examination and fitting of a patient for contact lenses in violation of Subsection 463.016(1)(g) and (h), Florida Statutes, and, if so, what, if any, administrative penalty should be imposed.
Findings Of Fact Petitioner, Department of Professional Regulation, Board of Optometry, is the state agency charged with regulating the practice of optometry in Florida, pursuant to Section 20.30 and Chapters 455 and 463, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed optometrist who holds license number 0000437, and his last address of record is Zodiac Optical, 1211 South Dale Mabry Highway, Tampa, Florida 33 On February 21, 1987, Respondent examined and fitted Patricia Gama for hard contact lenses and Ms. Gama paid $154.00 for the lenses. On that date, Respondent obtained an initial refraction for the right eye of -1.25 and for the left eye of -1.00 (eye glass prescription only) and by use thereof, fitted Gama with contact lenses. At the time, Gama was employed as a cashier at a commercial retail establishment. Gama immediately began experiencing discomfort with the contacts, specifically blurred vision, red eyes and headaches. Gama found it difficult to read the cash register keys and function as a cashier. Gama advised Respondent of her discomfort on February 25, 1987, and at that time, Respondent fitted Gama with another set of contact lenses. Gama continued to experience discomfort with the contact lenses and after advising Respondent of such, Respondent on February 27, 1987, fitted Gama with a third set of contact lenses. Gama's discomfort with the contact lenses continued and she again advised Respondent of his discomfort. On March 18, 1987, Respondent fitted Gama with a fourth set of contact lenses. Through it all, Respondent used eleven different lenses in an effort to properly fit Gama; however, she continued to experience discomfort. Throughout Respondent's endeavor to properly fit Gama with contact lenses, he did so in a courteous and professional manner. However, Gama's husband insisted that she seek a second opinion from another optometrist, obtain a refund from Respondent and discontinue using the lenses Respondent prescribed. On April 22, 1987, Respondent's partner, Dr. William Hunter, refunded $74.00 of the total purchase price of $154.00 that Gama paid. He also gave Gama the prescription prepared for her by Respondent. Respondent works in a group practice which is owned by Dr. Hunter. Dr. Hunter has a policy of giving only a 50% refund within thirty days of purchase if the patient is not satisfied. On the following day, April 23, 1987, Gama was examined and fitted for contact lenses by Dr. Julian Newman. Respondent's initial refraction was twice as strong as Dr. Newman's refraction. It is not uncommon for patients, such as Gama, to test differently for glasses on different days which can result in different refraction readings on different days. Likewise, it is not unusual for an optometrist to note different refractions for the same patient on different days, or to make an error in the refraction readings for the same patient. When this is done however, the optometrist should try to correct the mistake if, in fact a mistake is made. Here, Respondent strived to satisfy Gama and never ceased efforts to comfortably fit her with contact lenses. Respondent made a refund to Gama in keeping with office policy which appeared reasonable under the circumstances considering the time spent with Gama before she decided to seek another opinion from another optometrist. (Testimony of Drs. Julian D. Newman, O.D. and Joel Marantz, O.D. both of whom were expert witnesses in this proceeding.) Respondent's receptionist, Beatrice Franklin, paid $100.00 to Gama on or about December 11, 1987, in exchange for Gama signing a request to drop her charges against Respondent at the Department of Professional Regulation. Respondent had no knowledge of Ms. Franklin's actions, and in fact, Sharon Hosey, a receptionist employed by Respondent, corroborated Respondent's testimony respecting lack of knowledge on his part as to any payments to Gama other than the $74.00 refund in exchange for her withdrawal of the complaint with Petitioner or to otherwise obtain Gama's signature on a release. Respondent was conscientiously attempting to comfortably fit Gama with contact lenses when Gama decided to seek a second opinion. He did so by changing the prescriptions on several occasions, including changing to lenses made by a different manufacturer. In the process, Respondent tried eleven different contact lenses. Respondent was willing to continue treating Ms. Gama and provide the required follow-up care.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Board of Optometry enter a Final Order dismissing the Administrative Complaint filed herein in its entirety. DONE and ENTERED this 16th day of February, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of February, 1990. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Jack L. Hargraves, O.D. 1211 South Dale Mabry Highway Tampa, Florida 33629 Patricia Guilford, Executive Director Florida Board of Optometry Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 =================================================================
The Issue There are three issues to be determined in this case: (1) whether the Petitioner, Arlington Ridge Community Association, Inc. (Arlington Ridge), demonstrated standing to challenge the proposed agency actions; (2) whether the terms of Consent Order OGC No. 18-0077 (proposed Consent Order) constituted a reasonable exercise of the Respondent, Department of Environmental Protection's (Department), enforcement discretion; and (3) whether the Department's notice of intent to issue minor source air construction permit 0694866-009-AC (009 Permit) to the Respondent, GI Shavings, LLC (GI Shavings), met the applicable rule and statutory criteria for issuance.
Findings Of Fact The Parties The Arlington Ridge community is located in Lake County comprising approximately 500 acres. The community is a 55-year- old plus active adult community with approximately 730 homes. The community includes an 18-hole golf course, swimming pool, tennis courts, pickle ball courts, walking trails, conservation areas, and common areas. Arlington Ridge is a Florida not-for-profit community association governed by its Declaration of Restrictive Covenants for Arlington Ridge, recorded on April 15, 2005, at Official Records Book 2809, Page 1622, of the Public Records of Lake County, Florida, as amended. Arlington Ridge's Articles of Incorporation demonstrate that it was formed, in part, to promote the health, safety, and welfare of the owners within its community and to provide for the ownership, operation, maintenance, and preservation of the common areas. Arlington Ridge is made up of the Declarant, CB Arlington Ridge Landco, LLC, as long as the Declarant still owns lots and the residents who own lots. Robert Salzman is vice president of the Declarant. He serves as president and is a member of the board of directors of the community association. The Declarant still owns 170 undeveloped lots and 91 lots that are under development. There are 730 existing homes that are owned by individual residents who are members of the community association along with the Declarant. The community association owns a section of the roadway and land around the rear gate of the subdivision. GI Shavings is a Florida limited liability company and is the applicant for the minor source air construction permit at issue in this proceeding. The GI Shavings property is located adjacent to the Arlington Ridge community. The address is 26444 County Road 33, Okahumpka, Lake County, Florida 34736. GI Shavings also signed the proposed Consent Order at issue in this proceeding. The Department is the administrative agency of the state having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of chapter 403, Florida Statutes, and rules promulgated thereunder in Florida Administrative Code Title 62 regarding activities which have the potential to cause air pollution. Facility History of Permitting and Operations On February 7, 2014, GI Shavings' predecessor, Quality Shavings of South Florida, LLC, applied to the Department for an initial air construction permit. The application described the proposed project as a wood chip dryer that included a 30 million British thermal unit per hour (mmBtu/hr) burner fueled by wood chips and sawdust. The burner provided heat to the rotary kiln chip dryer and exhausted to a cyclone dust separator prior to venting to the atmosphere through an exhaust stack. The application materials contained information about the United States Environmental Protection Agency's (USEPA) AP-42 emissions factors for combustion of wood products, with estimations of regulated air pollutant potential and estimated actual emissions from the wood chip drying process. The potential emissions for each pollutant and group of pollutants were listed in tons per year (TPY), and were based on a 30 mmBtu/hr facility running 8,760 hours per year, i.e., no hourly limit. The estimated actual emissions were based on the facility running a typical production schedule of 3,600 hours per year. The listed air pollutants were carbon monoxide (CO), nitrous oxides (NOX), particulate matter (PM), volatile organic compounds (VOCs), sulphur dioxide (SO2), carbon dioxide (CO2), and hazardous air pollutants (HAPs). Although there were potential emissions and estimated actual emissions for each pollutant and group of pollutants, the major source thresholds were not triggered. Therefore, the facility would be classified, from a regulatory standpoint, as a minor source of air pollution. The only air pollution control device was the cyclone dust separator that was rated at 99 percent removal efficiency for PM10, i.e., particulate matter of grain size 10 microns or less, from the exhaust airstream. The application reflected that there were no controls proposed for CO, NOX, VOCs, SO2, CO2, or HAPs. The application was silent as to control of fine particulates or PM2.5, i.e., particulate matter of grain size 2.5 microns or less. The application contained a site location map based on an aerial map. The proposed location of the facility was on a parcel adjacent to the Arlington Ridge community's golf course, and further east a road labeled as Arlington Ridge Boulevard. Other roads, in what appeared to be a not fully built-out subdivision, were White Plains Way and Manassas Drive. The facility plot plan in the application located the wood drip dryer, rotary kiln, cyclone dust separator and exhaust stack on the eastern end of the parcel closest to the boundary with the Arlington Ridge community's golf course. On April 4, 2014, the Department issued minor source air construction permit 0694866-001-AC (001 Permit). The 001 Permit established a visible emissions (VE) limit of five percent opacity, which is the limit specified under the materials handling rules. Like all air permits issued under the Department's rules, the 001 Permit was also subject to certain general conditions. These included the prohibition against "objectionable odor" as defined in the Department's air pollution rules. At the time the 001 Permit was issued, neither GI Shavings nor the Department recognized that the rules for carbonaceous fuel burning equipment were applicable to GI Shavings and that there should also have been a limit for PM in the 001 Permit. Instead, the rules for a materials handling operation were applied to the facility, which required a VE limit of five percent opacity. The 001 Permit required GI Shavings to demonstrate initial compliance and apply for an operating permit no later than 60 days before it expired on June 30, 2015. On December 18, 2014, the Department issued an amendment of the 001 Permit to grant a transfer of ownership from Quality Shavings of South Florida, LLC, to GI Shavings (002 Permit). On May 11, 2015, GI Shavings submitted a request for additional time to demonstrate initial compliance. The reason given for the request was that operations had not started because GI Shavings was waiting on a certificate of occupancy from Lake County, which was expected within the next 60 days. On May 28, 2015, DEP granted the request and issued a permit amendment (003 Permit), which extended the expiration date from June 30, 2015, to December 31, 2015. On November 24, 2015, GI Shavings submitted a second request for additional time to demonstrate initial compliance. The reason given for the request was coding issues at the new warehouse. The request noted that "[a]ll the equipment has been up and runs." On December 7, 2015, the Department granted the request and issued a permit extension (004 Permit), which extended the expiration date from December 30, 2015, to June 30, 2016. In the 004 Permit extension, the Department reminded GI Shavings that there must be notification to the Department within five days of commencing operations, compliance testing within 30 days of commencing operations, 15 days notification to the Department prior to compliance testing, and application for an initial air operation permit no later than 60 days prior to the new expiration date. On April 27, 2016, GI Shavings submitted a third request for additional time to demonstrate initial compliance. There was not any reason given for this 120-day extension request. On May 11, 2016, the Department granted the request and extended the permit's expiration date to October 31, 2016 (005 Permit). The Department reiterated the same reminders as in the 004 Permit extension. On October 24, 2016, the Department conducted its first formal site inspection of GI Shavings in response to complaints from Arlington Ridge residents about smoke, airborne PM, and odor. The Inspection Report confirmed it was a complaint inspection. The Inspection Report also stated that the Department's permitting engineer, Jeff Rustin, had made a previous site visit at which time he had requested to review facility records. The inspection revealed that GI Shavings had commenced operations without notifying the Department, and had not scheduled or submitted a VE compliance test to demonstrate compliance with the permit's five percent opacity limit. During the site inspection, Jeff Rustin and his supervisor, Tom Lubozynski, also a professional engineer, noted that GI Shavings was emitting white smoke from the exhaust stack that did not dissipate quickly and that the smoke may have both moisture and particulates. As they stood 60 feet from the burner and the burner's smoke stack, there was the odor of burning smoke, and particles fell onto Mr. Lubozynski's notepad. Based on their observations, the Department's engineers concluded that the cyclone dust separator was not adequately controlling PM emissions, that the method of operations was unlikely to keep emissions below the five percent opacity VE limitation, and that the equipment should not be operated, except for test purposes. On October 26, 2016, GI Shavings submitted a fourth request for additional time to demonstrate initial compliance. The request was for a 180-day extension with no reason given for the request. On November 23, 2016, the Department granted the request and extended the expiration date from October 31, 2016, to April 4, 2017 (006 Permit). The Department specifically stated in the 006 Permit that the facility was not authorized for normal operations and suggested the alternatives of adding another pollution control device in the form of a bag house, or replacing the cyclone dust separator. Despite the Department's limitations on operations stated in writing at the times of issuing the 004 and 005 Permit extensions, the credible and persuasive evidence was that GI Shavings operated throughout 2016 up until it hired Bruno Ferraro in late November 2016. Actions Taken Before Rerating the Burner Mr. Ferraro is the president of Grove Scientific and Engineering Company, and an expert in air emissions, combustion and visible emissions testing, and air permitting. Mr. Ferraro contacted the Department in early December 2016, stating that he was hired by GI Shavings to evaluate emissions and hoped to visit the facility that month. He requested the original emissions calculations and was provided the original air construction permit application, which contained that information. On December 22, 2016, Mr. Ferraro provided to the Department a report of his initial investigation of the GI Shavings facility. He conducted a site visit on December 20, 2016, accompanied by three representatives from the Department that included Jeff Rustin, Brianna Gowan, and Wanda Parker- Garvin. Ms. Parker-Garvin was the environmental manager for the Central District Office's compliance assurance program. Of particular relevance in the report was the following statement: The cyclone works as designed by separating the dry wood shavings and sawdust from the hot combustion air. However, the cyclone is not designed to remove fine particulates from the combustion of wood. The particulate matter (PM) emitted from the combustion of wood is unburned carbon and too small a particle size to be removed by the cyclone. This carbonaceous PM is best controlled by increasing the efficiency of combustion or through the use of post combustion control equipment. (Emphasis added). J. Ex. 1 at DEP 1-360. Mr. Ferraro recommended certain actions to increase the efficiency of combustion, such as changing the starter fuel to wood logs and varying the sawdust feed rate. He also recommended that GI Shavings seek a permit modification to allow excess emissions during startup, shutdown, and malfunction. He also recommended seeking a permit modification to allow a higher VE limit, such as 20 percent opacity, for normal operating conditions. He recommended, as a last resort, the use of post combustion control equipment. This would involve the installation of a bag house, which he described as a "very costly alternative and an excessive measure for controlling carbonaceous PM from the combustion of clean wood." The Department responded to Mr. Ferraro's report on January 5, 2017. Ms. Parker-Garvin provided the Department's comments and response in a lengthy email that also approved a two-week experimental testing phase. The email specifically limited opacity to no more than 20 percent for a smoke plume that would be carried by a west wind in an easterly direction toward the adjacent residents and golf course in a 90-degree quadrant designated on an aerial map as the area of concern or "AOC." The email summarized an expectation that a future air operation permit would require a showing of reasonable assurance that the relevant carbonaceous fuel burning rules for a 30 mmBtu/hr burner could be met. This would include a VE limit of 30 percent opacity and a PM limit of 0.2 pounds per mmBtu of heat input of carbonaceous fuel. Both limitations would need to be initially demonstrated before an air operation permit could be issued. On January 8, 2017, Mr. Ferraro provided a draft startup, shutdown, and malfunction operation plan (SSMOP) to the Department. In his email, Mr. Ferraro stated that the facility would start the two-week experimental testing phase the next day, on January 9, and keep the Department updated. He also stated that they would submit an application to modify the air construction permit. On January 17, 2019, GI Shavings applied for a permit modification, specifying only a change in VE limit from five percent opacity to 30 percent opacity. On March 8, 2017, the Department met with Mr. Ferraro, and an attorney for GI Shavings who attended by telephone. The meeting summary documented a discussion of issues that included requirements for annual PM testing, annual VE testing, and the SSMOP's restrictions on hours of operation and wind direction. The Department's response referred to "health concerns of the complainants," "adverse impacts off property," "numerous complaints," and "proximity to a retirement-age community" as reasons for the SSMOP's restrictions. On March 31, 2017, the Department's intent to modify GI Shavings' air construction permit was published. Arlington Ridge residents made verbal comments and filed complaints with the Central District Office regarding the draft air construction permit. The residents also filed a petition for administrative hearing that was eventually resolved in some manner, because the evidence showed that the final permit was issued on June 26, 2017. On June 26, 2017, the Department modified the air construction permit (007 Permit). The 007 Permit authorized a change in the VE limit, added a PM limit, added a SSMOP, added initial compliance requirements, and extended the expiration date to November 30, 2017. The 007 Permit also included a separate hours of operation agreement (HOA) between the Department and GI Shavings. The HOA initially provided for "[t]wo consecutive 8-hour shifts per day, between the hours of 6:00am and 10:00pm, Sunday thru Friday." These hours could be increased based on lack of compliance issues and lack of complaints over a 90-day period after the 007 Permit was issued. Mr. Ferraro testified that one of the permit requirements was to do a PM compliance test using EPA Method 5. This involved establishing a protocol that would be approved by the Department prior to conducting the compliance test. He testified that during June and July of 2017, the facility started having operational problems that made it difficult to calibrate the fuel feed system to establish the maximum fuel rate and the maximum shavings production rate. During calibration, the sawdust feed system motor kept burning out. Finally, he was able to schedule and conduct the PM compliance test on August 25, 2017. Mr. Ferraro testified that he ran the burner at maximum capacity during the test, which turned out to be an average of 18.252 mmBtu/hr. That is when he observed that this burner's maximum capacity was not 30 mmBtu/hr. The facility failed the PM compliance test with a three-run average PM of 0.531 pounds per mmBtu of heat input of carbonaceous fuel. The facility complied with the VE limit using the EPA Method 9 test, with the highest six-minute average of 13.33 percent opacity. The compliance test results were reported to the Department on September 8, 2017. In his report, Mr. Ferraro concluded "[i]t is our opinion that the PM caused by the burning of carbonaceous fuel, plus the process emission from the wood shavings dust combined in the method 5 sample filter to cause the observed PM emission rate." He stated that GI Shavings wanted to resolve the situation by exploring a change to the PM limit in the permit. Mr. Ferraro testified that there continued to be startup and operational difficulties at the facility. At maximum operation, the facility was not able to get the burner to the specified heat output of 30 mmBtu/hr. After multiple calibrations and tests, the facility was still unable to function as originally specified by the manufacturer. After consulting with the Department, Mr. Ferraro designed a demonstration test in which the sawdust fuel was fed into the burner without the drying of wood shavings. The demonstration test's purpose was to address the PM and VE from the combustion of sawdust. The test was conducted on October 11, 2017, and reported to the Department on October 30, 2017. The facility failed the PM test with a three-run average PM of 0.824 pounds per mmBtu of heat input of carbonaceous fuel. The facility complied with the VE limit using the EPA Method 9 test, with the highest six-minute average of 5.6 percent opacity. Mr. Ferraro concluded that the October test confirmed the PM measured was a result of unburned carbon or incomplete combustion of the carbonaceous fuel, i.e., sawdust. He stated that the cyclone dust separator appears to do a good job of removing all large PM. However, the burner was not designed for complete combustion, i.e., did not burn hot enough for long enough. This resulted in the black soot deposited on the method 5 filters during the compliance tests. Meanwhile, on October 10, 2017, Mr. Ferraro forwarded an email to the Department with a request from GI Shavings to increase its hours of operation since it was "commencing our six months busy season," and was negotiating with additional clients. After receiving the initial October 10, 2017, test results from Mr. Ferraro, the Department's permitting program administrator at the time, Kimberly Rush, responded that "[b]ased upon the requirements outlined in the [HOA], the Department cannot approve the request[ed] hours of operation change at this time due to the pending compliance test and the complaint received on 8/16/17." Mr. Ferraro testified that GI Shavings decided to bring in Energy Unlimited Inc., the equipment manufacturer, to commission the facility. At this time, GI Shavings, through Mr. Ferraro, also requested an extension of the air construction permit that was set to expire in December of 2017. The reason given was that more time was needed to conduct and complete the commissioning process and continue working on facility compliance. On November 20, 2017, the Department extended the expiration date of the air construction permit to November 30, 2018 (008 Permit). The 008 Permit did not make any other changes to the provisions and requirements of the 007 Permit. In January 2018, the manufacturer did significant work to the facility's systems including reworking the fuel feed system, installing a new programmable logic controller and temperature controllers, as well as mechanical and programmatic changes. Upon completion of the commissioning process, Energy Unlimited, Inc., certified and rerated the equipment at a design rate maximum of 26 mmBtu/hr and an actual rate of 21 mmBtu/hr. Mr. Ferraro testified that typical operation was between 15 and 18 mmBtu/hr depending on the temperature outside and the amount of moisture in the air. Impacts to Arlington Ridge Residents Dennis Hartman lives on Arlington Ridge Boulevard and has been a member of the community association since early 2018. Mr. Hartman testified that GI Shavings is located on a diagonal from his home adjacent to the 11th fairway of the golf course. He testified that the smoke and smell from GI Shavings irritates his lungs, throat, and nasal passages. Mr. Hartman testified that he is impacted by the facility, in this manner, at least twice a week. Notably, he does not experience these impacts when he is away from Arlington Ridge. James Piersall has been a member of the community association since July 6, 2018, when he closed on his home in Arlington Ridge. Mr. Piersall testified that on November 27, 2018, while playing golf on the 11th hole, a dark blue wave of smoke came across and covered the green. The smell was prevalent, which he equated to burning wood. Mr. Piersall captured the smoke on video with his cell phone. He testified that it was common knowledge that GI Shavings was located on the other side of the 11th hole. The 150-yard marker and a cell tower serve as landmarks that help the residents locate the GI Shavings facility. Mr. Piersall also testified that this was the time of year to open the windows and doors, and let the breeze blow through the house. However, it was not possible to do so, as there was "sediment and soot that comes out on the patio." Rhonda Lugo has lived in Arlington Ridge since August of 2014, and has been a member of the community association. She testified that GI Shavings began operating two years after she moved to Arlington Ridge. She lives on Arlington Ridge Boulevard, where her home is directly behind GI Shavings and her backyard is approximately 300 yards from the facility. Ms. Lugo testified that her first two years in her home were great. She used her lanai and enjoyed her home. She now describes her home as "unlivable." She does not open any doors or windows, and has not used the lanai for almost two years. The soot and ash covers her lanai furniture. She testified that her eyes burn, and described the odor as more than "just a wood burning smell." Ms. Lugo testified that over the last two years, the residents as a group, have gone to the City of Leesburg and to Lake County, have written senators and state representatives, and have contacted the Department many times. Cheryl Thomack has lived on Arlington Ridge Boulevard since August 2017, and has been a member of the community association. She experiences headaches and breathing difficulties, and uses an inhaler, which she attributes to smoke and soot from the GI Shavings facility. She testified that she went on vacation for a week away from her home and did not experience any headaches or breathing problems while away from Arlington Ridge. She also testified that the GI Shavings facility has operated when the wind is blowing in the direction of the community. Michael Becker has lived on Manassas Drive in the Arlington Ridge community since August 4, 2017. Mr. Becker enjoys the outdoor activities at the Arlington Ridge community and is a member of the softball team. He testified that the operations of the GI Shavings facility are disruptive to himself and his wife, and that they stay indoors with all windows and doors closed. He testified that they only enjoy their lanai in the late hours of the night, when GI Shavings is not operating. He described the smoke fumes as "pretty toxic" when the wind is blowing their way, with a scorched wood type of smell. Mr. Becker testified that he and his wife have taken several videos of dark smoke billowing from the GI Shavings facility, and provided them to the community association representatives. Mr. Becker also testified that he was aware of the location of at least two industrial facilities near the Arlington Ridge subdivision. He testified that Covanta, a clean waste facility, was located outside the subdivision's gate, and, what he believed was a cement plant, was located off Rogers Industrial Park Road. Douglas Deforge has lived on Manassas Drive since December 2017. He testified that when he first moved in, there was "a lot of noise and I saw a lot of smoke coming out of the trees that are behind us." Eventually, he figured out that it was the location of the GI Shavings facility. Mr. Deforge testified that his wife likes to go out on the lanai to drink her coffee and read the paper, but she is not able to do so on certain days when the machinery is running. Particles on the lanai have to be removed frequently. Mr. Deforge testified that the smoke has a pungent odor like a paper mill. He expressed concern that he may eventually have respiratory issues because of the particles he inhales when out on his lanai. Mr. Deforge testified that since late November 2018, up until the morning of the final hearing, "[i]t seems more frequently that I'm seeing plumes coming out of GI Shavings." Sherry O'Brien lives on Arlington Ridge Boulevard and has been a member of the community association since October 2014. The GI Shavings facility is directly behind her home across the 11th fairway of the golf course. She has even walked the fence line at the 11th fairway to locate GI Shavings' smoke stack. Ms. O'Brien testified that the dark smoke and odor from the GI Shavings facility prevents her from enjoying the lanai and from golfing. She experiences a more hoarse and raspy voice and sinus problems. Ms. O'Brien testified that even with the windows closed, inside her home smells like burning wood. She testified that she observed the smoke directly behind the 11th green, which is directly behind her home. In her testimony, Ms. O'Brien distinguished between the location of smoke from the GI Shavings facility and the Covanta facility. Robert Salzman has been at Arlington Ridge for several years, four to five days per week, 10 to 12 hours per day. He is involved with the day-to-day activities of the sales office, community association management; and he is on the architectural control committee. He testified that GI Shavings' operations impact the 11th and 12th holes of the golf course, which is still owned by the Declarant. Mr. Salzman testified that resident complaints about GI Shavings have increased over the years, particularly in the months of October and November when the operations increase from five to seven days per week and into the night. He testified that while GI Shavings is operating, the residents are not active outdoors, they do not seem to leave their homes, and golfers skip the 11th and 12th holes. Mr. Salzman testified that he was familiar with the industrial facilities around Arlington Ridge. He testified to the locations of an adjacent peat facility, an aggregate company, and the Covanta waste-to-energy facility. He testified that there was not a cement plant nearby, but that it was a concrete mixing company. Mr. Salzman also testified that Covanta has a giant stack that puts out steam, but it is not located in the same direction as the GI Shavings facility. All the residents who testified stated that they get "black stuff" on their lanais when there is smoke coming from GI Shavings. The residents also testified that they cannot open their windows and cannot enjoy their lanais. All the residents believed that an increase in hours of operation and no restriction on wind direction for GI Shavings would negatively impact their quality of life. Complaints to the Department The preponderance of the competent and substantial evidence showed that the residents lodged complaints with the community association, the Department, and the local governments about GI Shavings' operation for most of 2016, 2017, and 2018. The complaints increased in October of each year when GI Shavings increased operations to meet business demands. The complaints varied from the operations being a nuisance and affecting their quality of life in their retirement community, to genuine concerns for their health and well-being. During the hearing, GI Shavings tried to suggest that its facility was not the source of the smoke seen and videoed by the residents. Although the Arlington Ridge subdivision is adjacent to an industrial park, the residents' description and observation of GI Shavings' location behind the tree line at the 11th hole of the golf course was consistent and was supported by the preponderance of the competent and substantial evidence. Arlington Ridges' expert witness, Mitchell J. Hait, Ph.D., and GI Shavings' expert witness, Mr. Ferraro, both provided similar descriptions of the atmospheric conditions during the summer and winter months. They explained that during the winter months, when the atmospheric conditions are cooler, the plume from the exhaust stack does not dissipate as quickly as during the warmer summer months. Thus, the plume would tend to remain visible and be carried by the wind. The increase in residents' complaints starting in October of each year could be explained by a combination of the cooler atmospheric conditions and GI Shavings' increased operations to meet business demands. GI Shavings tried to suggest that the plumes were only comprised of steam from the drying process and that PM was removed at 99 percent efficiency by the cyclone dust separator. However, the preponderance of the competent and substantial evidence established that the cyclone dust separator did not remove fine PM identified as "unburned carbon . . . too small a particle size to be removed by the cyclone." In other words, the "black stuff" that the residents found on their lanais, and the odor that irritated their noses, throats, and lungs. Enforcement and Consent Order Despite overwhelming lay and expert evidence of ongoing objectionable odor violations, the Department sought only to resolve the August and October 2017 PM emission limit exceedances with the proposed Consent Order. Even though both Mr. Ferraro and Ms. Rush agreed that the October 2017 test was not run under normal operating and compliance conditions, the Department decided to label it as a violation in the proposed Consent Order. The proposed Consent Order gave GI Shavings a choice of corrective actions, and did not impose any monetary penalty. The choice given was to either install a pollution control device, such as a bag house, or perform a rerating of the burner. The preponderance of the competent and substantial evidence established that the cyclone dust separator did not remove the fine PM that was the source of the residents' objectionable odor complaints. The adequate and reasonable course of action would be to order GI Shavings to both install a bag house and perform the rerating of the burner. Instead, GI Shavings was allowed to rerate the unit and apply for the associated permit that would remove the requirement of a PM emission limit. Notably, the proposed Consent Order was not finally executed until April 20, 2018, at which time GI Shavings had already rerated the facility, applied for a permit, and received a notice of intent to issue with the draft 009 Permit. These completed actions were even stated in the proposed Consent Order. The Department's expert witness, Ms. Rush, testified that considering the difficulties with the facility's operations at its original specifications, rerating the burner was a viable option for obtaining compliance. However, giving GI Shavings a choice of corrective actions, which allowed it to avoid addressing the objectionable odor complaints, was not an adequate and reasonable exercise of the Department's enforcement discretion under the facts and circumstances described above. 009 Permit Application On January 31, 2018, Mr. Ferraro, on behalf of GI Shavings, submitted the 009 Permit application to the Department. Mr. Ferraro testified that the purpose of the application was to apply the correct part of the carbonaceous fuel burning equipment rule to the facility. The switch would be from the standards applicable to a 30 mmBtu/hr burner to the standards applicable to a less than 30 mmBtu/hr burner. This switch would entirely remove the PM limit and change the VE limit to 20 percent opacity. Mr. Ferraro testified that the application did not request any other change, and the Department did not request any additional information. The application described its purpose as "to update emission limiting standard for carbonaceous [fuel] burning equipment with a rating of less than 30 mmBtu/hr." The emissions unit control equipment was described as a single cyclone device that "separates wood shavings and sawdust from airstream, but does not control products of combustion." Although the inability of the cyclone dust separator to "control products of combustion" was acknowledged, the application indicated that PM would not be synthetically limited, and that a PM limit would not apply to the facility. The application did not propose a pollutant control device for the continuously acknowledged unburned carbon described as "too small a particle size to be removed by the cyclone." Ms. Rush testified that the only PM expected from the facility was PM10. However, as Mr. Ferraro pointed out in his testimony, actual site specific information and data should be considered whenever it is available, instead of simply relying on what is expected based on the literature from the USEPA. The 009 Permit's notice of intent to issue also stated that "the operational hours agreement has been removed from the permit," although GI Shavings did not apply for any change to the 008 Permit beyond the rule switch. Ms. Rush testified that the HOA was voluntary and the Department did not have the authority to require GI Shavings to incorporate these terms into future permits. However, the HOA continues to be a condition of GI Shavings' current 008 Permit. The Department and GI Shavings did not present any persuasive evidence to show that this condition was now obsolete and should not be carried forward into the 009 Permit. The 009 Application did not request any revision to the current SSMOP. Ms. Rush testified that any minor source air permittee may request to revise its SSMOP at any time. However, such a request would be subject to Department approval as specified in condition A.15. of the draft 009 Permit. Although Dr. Hait testified that the facility should be reviewed as a 30 mmBtu/hr burner, the more persuasive evidence was that the rerating by the manufacturer established a design fire rating of 26 mmBtu/hr and an actual rating of 21 mmBtu/hr. Ms. Rush testified that the draft 009 Permit would contain a feed rate limitation that would restrict the facility to a maximum firing rate of 21 mmBtu/hr. Thus, the carbonaceous fuel equipment burning rule was the most appropriate category for this facility, and it was appropriately regulated as a minor source of air pollution. The preponderance of the competent and substantial evidence proved that GI Shavings did not provide reasonable assurance that the facility would control the cause of the objectionable odor violations, i.e., fine PM identified as "unburned carbon . . . too small a particle size to be removed by the cyclone." In other words, the "black stuff" that the residents had constantly and consistently complained about. Ultimate Findings The preponderance of the competent and substantial evidence established that the GI Shavings facility emits fine PM or "black soot" into the outdoor atmosphere, which by itself or in combination with other odors, unreasonably interferes with the comfortable use and enjoyment of life or property at the Arlington Ridge community, and which creates a nuisance. The preponderance of the competent and substantial evidence established that the cyclone dust separator did not remove the fine PM that was the source of the residents' objectionable odor complaints. Therefore, it was an unreasonable exercise of enforcement discretion for the Department to not require that GI Shavings directly address the objectionable odor issue. In addition, the utility of entering the proposed Consent Order was diminished by the fact that the October 2017 alleged violation was not an appropriate compliance test. Also, by the fact that the proposed Consent Order was not finally executed until April 20, 2018, at which time GI Shavings had already rerated the facility, applied for a permit, and received a notice of intent to issue with the draft 009 Permit. The preponderance of the competent and substantial evidence proved that GI Shavings did not provide reasonable assurance that the facility would control fine PM, which the evidence established was the source of the residents' objectionable odor complaints. All other contentions that Arlington Ridge raised in this proceeding that were not specifically discussed above have been considered and rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying GI Shavings' application for minor source air construction permit 0694866-009-AC, and disapproving Consent Order OGC No. 18-0077. DONE AND ENTERED this 19th day of June, 2019, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2019. COPIES FURNISHED: Stephen "Toby" Tobias Snively, Esquire Law Offices of John L. Di Masi, P.A. 801 North Orange Avenue, Suite 500 Orlando, Florida 32801 (eServed) John L. Di Masi, Esquire Law Offices of John L. Di Masi, P.A. 801 North Orange Avenue, Suite 500 Orlando, Florida 32801 Dorothy E. Watson, Esquire Foley & Lardner, LLP 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 (eServed) Matthew J. Knoll, Esquire Department of Environmental Protection Office of the General Counsel Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Peter A. Tomasi, Esquire Foley & Lardner, LLP 777 East Wisconsin Avenue Milwaukee, Wisconsin 53202-5306 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
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.
