Findings Of Fact Petitioner is an applicant for licensure as an optometrist in the State of Florida. He received a Bachelor's Degree in Biology from Youngstown State University in 1985. In 1989, Dr. Martuccio graduated from the Ohio State University College of Optometry where he had followed a four-year course of study prior to receiving his optometry degree. Dr. Martuccio has been practicing optometry in Ohio since 1989. When Dr. Martuccio took the 1989 optometry examination for licensure in Florida, he received a passing grade on the written portion of the examination but not on the clinical portion. That passing grade on the written examination remained valid when he took the 1990 optometry exam. Therefore, in 1990 Dr. Martuccio only had to repeat the clinical part of the examination. Dr. Martuccio received lower than a passing grade on that clinical examination. For the clinical examination, an applicant is required to bring his or her own "patient." The clinical examination is conducted by having a candidate perform procedures requested by the examiners on the "patient." The clinical portion of the optometry examination is divided into two sections. On Section 1 an applicant can receive a possible score of 48 points. Dr. Martuccio received a perfect score of 48 points on that Section. The total passing grade for Section 1 and Section 2 is 80 points. Therefore, Dr. Martuccio needed to receive a total of 32 points out of a possible 52 points on Section 2. However, the grades given to Dr. Martuccio on Section 2 totaled only 27.5. His total score for the clinical portion of the 1990 optometry exam was, therefore, 75.5. Section 2 of the clinical examination is divided into 16 different procedures. Each of the 16 procedures has a maximum score that varies depending on the weight given to the procedure. The grading is done by two examiners who are practicing optometrists. If both examiners agree, the candidate either receives no credit or full credit depending on whether they considered him to have properly performed the procedure requested. If they disagree, the candidate is given one-half of the possible points on that procedure. Dr. Martuccio has challenged the scores he received on four of the procedures in Section 2 of the September, 1990, clinical exam. Those four procedures, in the order in which they were performed, are: BIO 2 (Binocular Indirect Opthalmoscope), Anterior Biomicro 4 (Anterior Biomicroscopy), Anterior Biomicro 9 (Anterior Biomicroscopy), and Gonio 15 (Gonioscopy). In Binocular Indirect Opthalmoscope 2 Dr. Martuccio was required to show a clear view of the fundus (back of the eye). The back of the eye is visible through the dilated eye by means of a binocular headpiece worn by the candidate and a hand-held lens, which are focused together. This procedure is very simple to perform. It is a procedure which he has been doing since "day one in optometry school," and which Petitioner performs daily in his private practice. One of the graders who evaluated Dr. Martuccio's performance on BIO 2 indicated that he performed the procedure properly, but the other grader indicated that his demonstration was "out of focus". Dr. Martuccio's sight is perfect in both eyes, and he is capable of detecting whether an image is out of focus. Since the "patient" did not move during the examination process, then one of the graders made a mistake in his evaluation. Dr. Martuccio correctly performed BIO 2, and he should receive 2.5 additional points for that procedure. The next procedure in dispute is Anterior Biomicroscopy 4, which was worth a total of four points. The two graders disagreed as to whether Dr. Martuccio properly performed the procedure, and he, therefore, received only two points. This procedure required him to display the corneal endothelium. To do that, Dr. Martuccio used a slit lamp which is an instrument that projects a beam of light into the patient's eye. One grader gave Dr. Martuccio full credit for this procedure. The other gave no credit, commenting that Dr. Martuccio used an optic section rather than a parallelpiped. There is an elementary and fundamental difference between a parallelpiped and an optic section of light projected from a slit lamp. The slit lamp has a separate adjustment that determines the width of this beam of light. Since Dr. Martuccio did not change the width of the beam of light after he began the procedure, that width did not change between the time the first examiner and the second examiner evaluated his work. One of the examiners was mistaken in grading Dr. Martuccio's performance, and Dr. Martuccio was scored incorrectly on this procedure. For Anterior Biomicroscopy 9, Dr. Martuccio was instructed to focus on the anterior vitreous, part of the gel-like substance in the middle of the eye. In some patients vitreous strands are present and may be visible during the examination. However, in healthy patients vitreous strands are not present and the anterior vitreous is extremely clear. In those situations, the beam of light from the slit lamp will have nothing from which to reflect. Dr. Martuccio utilized the standard method of examining the anterior vitreous by focusing the instrument on the back of the lens, which is immediately adjacent to the beginning of the anterior vitreous. The focus is then projected inward, into the eye, which will automatically set the focus within the anterior vitreous. Dr. Martuccio's patient had no vitreous strands, protein particles, or other objects in his anterior vitreous. Thus, there was an absence of particles which would reflect light back to the observer from the subject. The examiner who gave Dr. Martuccio no points for this procedure noted, as his explanation, that vitreous strands were not visible. However, as explained by Dr. Martuccio and corroborated by the Department's expert witness, that was an inappropriate comment if the patient had no vitreous strands. Since the examiner's comments were inappropriate, indicating he used an erroneous criterion, Dr. Martuccio was given an incorrect score on this procedure. Instead of two points, he should have received the full four points. The last procedure in issue is Gonio 15. This was worth a total of four points for which Dr. Martuccio received only two. This process requires a gonioscope to be placed on the patient's eye, in much the same fashion as a contact lens is placed on the eye. Once the gonioscope is placed, a mirror inside this instrument allows the optometrist to examine structures of the eye at a sideways angle and see portions of the eye which are not visible by looking straight into the eye. Dr. Martuccio installed the gonioscope properly and adjusted it so that the structures in question were clearly visible. He received full credit from one of the examiners but no credit from the other examiner whose comment was that the structures were "out of focus". It is unreasonable to believe that Dr. Martuccio did not keep the structures of the eye in question in focus during this examination. He was able to perform all of the procedures easily, without any delays, and had no problem doing all the procedures in the allotted time, which was relatively brief. Dr. Martuccio's "patient" was an ideal subject who did not move in any fashion so as to cause the focus to change for any of these procedures. Further, Dr. Martuccio is knowledgeable about structures of the eye and the use of all of the instruments involved in this case. He has had extensive training and experience in these areas not only through his formal education in optometry, but also due to the fact that Dr. Martuccio has been in private practice for over two years, using these instruments on a daily basis. Considering that Dr. Martuccio has perfect vision in both eyes, it is difficult to conceive that he could not keep his instruments in focus for the few seconds it took for both examiners to review his work. The Department's expert witness, Dr. Chrycy, characterized the procedures that are called for in Section 2 of the clinical examination as being fundamental and relatively simple. Candidates who cannot perform these functions are clearly unqualified to be an optometrist. Dr. Chrycy expects all graduates of optometric school to be able to keep images in focus. Dr. Martuccio has been licensed in the State of Ohio for over two years and has recently been licensed in the state of Pennsylvania. He passed the National Board examination which is recognized in at least 10 states for licensure. Both the National Board and the Ohio licensure examinations have clinical components similar to Florida's. Dr. Martuccio passed both of those clinical examinations on his first attempt. When considered in light of Dr. Chrycy's characterization that the examination tests fundamental, basic ability and is not difficult, one cannot accept the proposition that Dr. Martuccio was fairly graded in this examination process. The general passing rates that candidates taking the Florida optometry exam have experienced since 1986 are quite low. In 1987, only 51% of those taking the clinical portion of the examination passed; in 1988, 59%; in 1989, 57%, and in 1990, 53%. The overall pass rate for the entire exam is even lower: in 1987, only 30%; in 1988, only 42%; in 1989, only 45%, and in 1990, only 34%. If taken literally, these scores mean that the typical applicant for licensure as an optometrist in Florida is incompetent at using the basic, everyday instruments employed by optometrists and by optometric technicians and is incapable of identifying the different parts of the eye. Such a conclusion is without credibility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered awarding to Petitioner 8.5 additional points on the clinical portion and finding that Petitioner achieved a passing score on the September, 1990, optometry examination. RECOMMENDED this 13th day of November, 1991, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2354 Respondent's proposed findings of fact numbered 1-3 have been adopted in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4 and 6 have been rejected as being subordinate to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 5 and 7 have been rejected as being irrelevant to the issues under determination herein. Respondent's proposed finding of fact numbered 8 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. COPIES FURNISHED: Diane Orcutt, Executive Director Department of Professional Regulation/Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth G. Oertel, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road, Suite C Tallahassee, Florida 32301 Vytas J. Urba, Esquire Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Prior to hearing, Respondent moved to dismiss the administrative complaint. This motion was granted in part and denied in part for the reasons stated in the order dated June 22, 1982. Those portions of the amended complaint asserting violation of Sections 484.03 and 484.09, Florida Statutes, were stricken by an order dated June 22, 1982, leaving only the allegation that the Respondent misrepresented material information on his application contrary to Section 484.014(1)(a), Florida Statutes. This was the only issue remaining for resolution at the hearing. Specifically, the factual dispute surrounded the representation by Respondent on his application that he had done his apprenticeship at House of Vision in South Hadley, Massachusetts, between 1973 and 1976. The Board of Opticianry asserted that the Respondent had not done his apprenticeship as he had represented. The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Respondent, Gilbert Rosenbrier, is a licensed optician under the laws of the State of Florida, holding License #DO 0001378 issued by the Board of Opticianry. On or about December 2, 1977, Respondent filed an application for admission to the licensure examination in ophthalmic dispensing with the Florida State Board of Dispensing Opticians (now Board of Opticianry). A copy of said application was received as Petitioner's Exhibit #2. Respondent's application contains a form for reporting experience in ophthalmic dispensing under a licensed optician, optometrist or physician. The Respondent completed such a form as follows: Print full name: Gilbert Rosenbrier Street Address: 7825 Red Road Miami FL Title of position held: Optician Employed in position from: Nov 1973 to August 1976 Print full name of employer: House of Vision Full address of employer: Mountain Farms Mall, So Hadley Mass Print full name of supervisor: Harry Marsh Full address of supervisor (if different from employer): Presently: 7825 Red Road, Miami Fl. 33143 Check the type of establishment or office: (applicant indicated) Ophthalmic dispensers Check the specific duties of applicant and give approximate time (in hours) engaged in each during a normal work week of approximately 40 hours: (Applicant indicated) Fitting and adjusting spectacles to human faces 15 hours; Interpreting prescriptions and verifying optical calculations 10 hours; Optical laboratory work (Manufacturing) 15 hours House of Vision was owned by Harry Marsh. Marsh sold it to Kent Whalen. Whalen worked for Marsh and House of Vision of Mountain Farms Mall in South Hadley, Massachusetts, from May of 1974, until Whalen purchased the business in late 1976. Whalen knew the Respondent as a neighbor of Marsh's but only saw the Respondent in the store on two occasions, late in 1976. Whalen stated that to the best of his knowledge Respondent was never an employee of House of Vision. The Respondent testified in his own behalf. He had become interested in opticianry in 1973 by virtue of his association with his neighbor, Marsh. At that time, Respondent had started working at House of Vision with Marsh at a time when the Respondent was supervisor of an educational consulting firm and could set his own hours. Marsh's store had to be open during the hours the mall was open, and Marsh needed the Respondent's help. In the spring of 1974, Respondent needed to spend more time with his business but still wanted to learn about opticianry. Marsh agreed to provide Respondent with optical equipment of the type used at the store, which Respondent placed in his basement, in exchange for Respondent's promise that the would invest money in a venture with Marsh at a later date. This equipment was used by Respondent to perform the shaping of lenses, assembly of frames, tinting of lenses, etc., under Marsh's supervision in the afternoons, on weekends, and during Respondent's other free time. In addition, Respondent would go to the store on weekends and help Marsh when Whalen was off. Marsh sold the store in November of 1976, and he and Respondent came to Florida, where Respondent did invest money in a joint venture with Marsh in the opticianry business. Witnesses who had known Respondent and had visited his home between 1973 and 1976, corroborated the fact that the Respondent had optical laboratory equipment in his basement during that time, had spent his spare time working with this equipment, and had made one of the witnesses a pair of glasses using frames picked out at House of Vision. Respondent did not spend his time doing a specific task while he was learning opticianry, but started with simple procedures such as tinting and assembling frames and progressed to making patterns for grinding lenses, shaping, and grinding lenses in his basement lab. He obtained his experience in fitting glasses and selling at the store prior to the spring of 1974, and after that date when he worked with Marsh on weekends. Respondent did not mention drawing a salary from Marsh but gave the impression that this time was traded to Marsh for Marsh's expertise in teaching him. The Respondent has a doctorate degree in an academic area and was engaged in academic work and consultant work for years prior to 1973.
Recommendation Having found that the statute under which the Board of Opticianry seeks to discipline the Respondent, Gilbert Rosenbrier, was passed after the alleged acts occurred upon which the complaint is based, it is recommended that the Board dismiss the amended administrative complaint and take no action. DONE and ORDERED this 3rd day of September, 1982, in Tallahassee, Florida, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1982. COPIES FURNISHED: Tina Hipple, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lionel Barnet, Esquire Miller Square 13842 Southwest 56 Street Miami, Florida 33183 H. Fred Varn, Executive Director Board of Opticianry 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact Respondent Curtis E. Webb was a licensed apprentice optician from June 1, 1981, until he obtained a state license, number 2133, on October 15, 1982, to practice opticianry on his own. In order to obtain the license he now holds, respondent was obliged to pass written and practical examinations, and complete a three-year apprenticeship. The Board of Opticianry "gave Mr. Webb credit for . . . employment prior to his registering as an apprentice, which would make him complete his apprenticeship 3-82." Petitioner's Exhibit No. 1. Along with respondent, Martin Marini, the licensed optician to whom respondent was apprenticed in the spring of 1982, worked as an employee of Optical World, Inc. in Pensacola, Florida. In May of 1982, the relationship between Mr. Marini and Theodore F. Frederickson, the principal in Optical World, Inc., deteriorated, and Mr. Marini stopped coming to work. Respondent Webb continued to show up for work, however, and, when he had a question, contacted Billy H. Hammett, a licensed optician and the proprietor of Hammett Eyeglasses, Inc., a competitor located two blocks away. Mr. Hammett reported to petitioner that Optical World, Inc., was selling eyeglasses in Mr. Marini's absence. On the morning of May 18, 1982, respondent was at Optical World, Inc., practicing opticianry without supervision when petitioner's investigator, John W. Gahn, stopped in and identified himself. During the 15 minutes he waited to talk to Mr. Webb, the investigator saw him measure one person for glasses; and fit eyeglasses on another person, to whom he gave the glasses in exchange for money. Respondent admitted that Mr. Marini had not been to work for over a week and predicted, "I'm going to be the loser in this whole mess." He did not know when or if Mr. Marini would return or how to reach him. Later the day of the interview with Mr. Gahn, respondent quit work at Optical World, Inc.
Recommendation Upon consideration of all the circumstances, it is RECOMMENDED: That petitioner, reprimand respondent. DONE AND ENTERED this 9th day of December, 1983, at Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles M. Mims, Esquire Suite 255, 24 W. Government Street Pensacola, Florida 32501 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Opticianry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OPTICIANRY DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NOS. 0024314 (DPR) 82-2814 (DOAH) vs. LICENSE N0S. DO 0000781 OA 0000781 CURTIS E. WEBB, Respondent. /
The Issue Whether Petitioner, Karen L. Ehlers was wrongfully terminated from her position with Respondent, Florida Employers Insurance Service Corporation because of her handicap or perceived handicap in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: FEISCO is a Florida corporation which is in the business of providing insurance-related services to insurance companies, self-insurer funds and self- insured employers, and is an employer as that term is defined in Section 760.02(6), Florida Statutes. FEISCO has a department called Information Services (formerly known as Management Information Services) which is responsible for providing the computer information systems within FEISCO and maintaining the many applications and data bases used by other FEISCO departments. The Petitioner, Karen L. Ehlers, was employed by FEISCO from July 17, 1989, to November 15, 1990, as a computer programmer in the Information Services department. The minimum education requirement for the position of computer programmer was two years' computer science education or equivalent Micro/Mini exposure. Petitioner holds a bachelor's degree in mathematics with an emphasis in computer science. As a computer programmer, Petitioner's job duties included writing computer programs, designed by analysts, using several computer languages and working and communicating with analysts and program users to correct design problems to assure the final program fit the user's needs. At all times during her employment with FEISCO, Petitioner was supervised by Joan Zare, Production Supervisor, Information Services department. Zare was responsible for overseeing Petitioner's training during her probationary period and for all formal evaluations of Petitioner's work. John Keegan, Manager of FEISCO's Information Services department, was Zare's immediate supervisor at all times relevant to this proceeding. Keegan reviewed and approved the written evaluations of Petitioner by Zare, but did not review Petitioner's work. Keegan did not have any direct knowledge of Petitioner's competence, and did not interview either Zare or Petitioner regarding the evaluations. Jim Venza, Director of Information Services for FEISCO, was Keegan's immediate supervisor at all times relevant to this proceeding. Venza had no direct knowledge of Petitioner's work performance. Upon being hired by FEISCO, Petitioner was subject to a ninety-day probationary period. After this probationary period (July 7, 1989 to October 13, 1989), Zare gave Petitioner a positive evaluation which included ratings of "Achieves" in all performance standards. Zare viewed Petitioner's overall performance during her probationary period as satisfactory and recommended Petitioner for full employee status. In January, 1990, Petitioner received a salary adjustment upward from $20,000.00 to $20,500.00 In June, 1990, Petitioner received a congratulatory memorandum and a $50.00 bonus for successfully completing a Property and Liability Insurance course and examination. FEISCO encouraged its employees to take course work to increase their knowledge of insurance and to join Toastmasters, a group organized to help its members improve self-confidence and public speaking skills. Petitioner participated in outsider course work and Toastmasters. On July 4, 1990, Petitioner was diagnosed as having chronic fatigue syndrome. This condition did not restrict Petitioner in her job as a computer programmer or effect her work negatively. On July 9, 1990, Petitioner advised Zare that she had chronic fatigue syndrome. On July 17, 1990, Zare gave Petitioner her first annual performance evaluation. Although Petitioner had experienced some problems with her work during the period after her probationary performance evaluation, Zare felt that her job performance in the latter part of the evaluation period indicated that Petitioner had overcome those problems. Zare rated the Petitioner as achieving at or above the standards expected of her in all areas of her job performance. In one area of work Petitioner was rated as "Exceeds". While Zare considered Petitioner as performing satisfactory at the time of her first annual performance evaluation, it was understood between Petitioner and Zare that continued improvement by the Petitioner would be necessary in order for Petitioner to maintain a satisfactory performance rating. On October 15, 1990, Keegan and Bob Burgoon, a program analyst, assigned Petitioner to the extra duty of Problem Manager. The duties of Problem Manager involved reviewing and solving problems with programs which were called in by users, and required being on-call to assist operations during off-hours. The job of Problem Manager had previously been rotated among analysts and not assigned to programmers. However, the job of Problem Manager was assigned to Petitioner because Keegan and Burgoon felt that she could handle the job. On October 16, 1990, Petitioner advised Keegan of her previously diagnosed medical condition, and presented Keegan with a written statement from her doctor recommending that Petitioner restrict herself to a forty-hour week. Petitioner advised Keegan that she still wanted to try the Problem Manager's job. However, Keegan decided not to "second guess" the doctor and removed Petitioner from the Problem Manager duties. There is insufficient evidence to establish facts to show that Keegan at any time, including the meeting with Petitioner on October 15, 1990, advised the Petitioner that her medical condition would adversely affect her job with FEISCO. Petitioner became concerned about her job after the meeting with Keegan on October 15, 1990 and discussed this matter with Frances White in personnel on October 22, 1990. Petitioner also shared these same concerns about her job with Zare on October 23, 1990. At this meeting with Zare there was no reference to Petitioner's job performance by Zare. On this same day, Zare met with Venza and Keegan together and with White individually in regard to Petitioner's concerns. On October 24, 1990, Petitioner met with Zare and White. At this meeting, Zare and Petitioner discussed concerns about Petitioner's job performance. They also discussed Zare's intention to develop a detailed list of skills necessary for the satisfactory performance of the programmer position which would be used to revise the current programmer position description, and would involve a self-assessment by all programmers. The purpose of the self- assessment was to identify the areas in which the programmers felt they needed improvement. After each programmer finished their respective self-assessment, Zare reviewed the self-assessment individually with each programmer. In reviewing Petitioner's self-assessment, Zare concluded that Petitioner had overrated her abilities in several areas. After Zare concluded the review of the individual self-assessments with each programmer, Zare prepared a memorandum of her findings to all programmers. The memorandum outlined a proposed training project that was to be given in conjunction with the individual self-assessment. As with other programmers, Petitioner was assigned a series of projects to be completed as part of this training. As each part of the project was completed, Zare orally evaluated the Petitioner's performance and tested the program and reviewed the coding used by Petitioner. Errors were pointed out to Petitioner and she was given an opportunity to correct the errors. On November 14, 1990, after completion of the entire project, Zare reviewed Petitioner's work and prepared a written appraisal of Petitioner's performance on the project. The written appraisal described Petitioner's shortcomings but also included some positive criticism. Zare concluded that Petitioner's work on the project was below the expected standard. Basically, the written appraisal was contradictory to all performance evaluations previously given to Petitioner by Zare. The programmers, other than Petitioner and Chris Brady, were unable to begin work on the project due to prior work commitments before Zare was transferred to another department. After Zare was transferred this project was terminated. While Zare did verbally counsel Brady about his work, Brady did not receive a written appraisal by Zare before her transfer. Therefore, Petitioner was the only programmer to receive a written appraisal of her work on the project. On November 14, 1990 when Petitioner met with Zare to review Zare's written appraisal of her performance, the Petitioner became upset and defensive. Therefore, Zare suggested that the Petitioner review the appraisal overnight and come back the next day to discuss the appraisal. Petitioner did not return to discuss the appraisal with Zare. Petitioner's failure to return and discuss the appraisal with Zare resulted in Zare concluding that Petitioner was unwilling to accept constructive criticism of her performance. This precluded Zare from working with Petitioner to attain any progress. Therefore, Zare concluded that nothing could be accomplished in attempting to work with Petitioner in the future. Therefore, Zare recommended to Keegan and Venza that Petitioner be terminated. Although Zare considered Petitioner's work performance to be below standards, Zare would not have recommended Petitioner's termination had it not been for Petitioner's very negative reaction and her unwillingness to discuss the appraisal with Zare. Petitioner's employment with FEISCO was involuntarily terminated on November 15, 1990. Between being terminated with FEISCO and being re-employed, Petitioner lost ten weeks of pay at $418.00 per week, an annual bonus equal to one month's pay and other monetary damages in the form of lost medical benefits. Although FEISCO had several employees that suffered a medical condition during times relevant to this proceeding, there was no evidence that FEISCO discriminated against any of these employees because of their medical condition. There was insufficient evidence to establish facts to show that FEISCO discriminated against Petitioner because of her medical condition, chronic fatigue syndrome, when FEISCO terminated Petitioner on November 15, 1990.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order finding that the Petitioner, Karen Ehlers, was not discharged due to her handicap or perceived handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be dismissed. RECOMMENDED this 26th day of May, 1993, 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 26th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3782 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 parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 31 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony, with the exception of the second sentence of Proposed Finding of Fact 30 which is rejected as not being supported by competent substantial evidence in the record. Respondent's Proposed Findings of Fact. Proposed Findings of Fact 1 through 18 and 22 through 55 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial. Proposed Findings of Fact 19 through 21 are rejected as not being supported by competent substantial evidence in the record. COPIES FURNISHED: Snowden S. Mowry, Esquire KANETSKY, MOOR & DEBOER, P. A. Post Office Box 1767 Venice, Florida 34284-1767 David J. Stefany, Esquire HOGG, ALLEN, NORTON & BLUER, P. A. S. Hyde Park Avenue, Suite 350 Tampa, Florida 33606 Sharon Moultry, Clerk Human Relations Commission John Knox Road Building F, Suite 240 Tallahasse, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Patrick Gallagher was a licensed optician in Florida, having been issued license number D00001006. From approximately March of 1979 until December of 1981, except for the months of June and July, 1981, respondent was employed as a licensed optician for Union Optical in Tampa, Florida. Prior to May, 1981, respondent worked full time. When he returned to Union Optical in late July or August, 1981, he worked only three days a week. Another optician, Bobby Prohenza, was employed at Union Optical on a part-time basis in June and July of 1981. Rose Ochs, the manager and/or supervisor of Union Optical in Tampa is not now, and has never been, licensed as an optician in the State of Florida. Having received a complaint from Bobbie Prohenza against Union Optical and Rose Ochs, petitioner's investigator, Wayne Lopez, went to Union Optical on December 3, 1981, to investigate unlicensed opticianry activities. The only employee on the premises was Rose Ochs. While on the premises, Mr. Lopez observed Ms. Ochs handing a glasses case and glasses to a customer. Investigator Lopez, identifying himself to Ms. Ochs as a long , distance truck driver asked her if she could duplicate his existing prescription "glasses"" into "sunglasses." When Ms. Ochs refused to do so without a written prescription, Lopez told her he would obtain one. The investigator obtained a duplicate prescription from his personal physician and returned to Union Optical a few hours later. He handed the written prescription to Ms. Ochs and she took his eyeglasses and put them on a lensometer to see if the two prescriptions were the same. Mr. Lopez and Ms. Ochs then sat at a table across from one another and she began taking measurements with a small ruler across the bridge of his nose. She then wrote some numbers on a piece of paper and attached that paper to the prescription. Investigator Lopez, attempted to leave a deposit with Ms. Ochs, but was told he could pay for the glasses when he returned some weeks later. When Mr. Lopez departed from the Union Optical premises, he observed a Florida opticianry license hanging over the entrance door, which license was issued to respondent Patrick Gallagher. After learning of respondent's address, Mr. Lopez went to respondent's residence on December 3rd, identified himself as an investigator with the Department of Professional Regulation and told respondent that he wanted to discuss with him the operation of Union Optical. Respondent worked at Union Optical 24 hours a week on Mondays, Tuesdays and Fridays. While he knew the store was open on his days off, respondent had been assured that opticianry work would not be performed on those days. It was the respondent's understanding that when he was not on the premises, the only business which would be transacted was the selling of non-prescription items, glass care items and cleaning solutions. Respondent was aware that Rose Ochs would receive written prescriptions in his absence and would, on occasion, transfer or copy the prescriptions onto an invoice which went to an independent laboratory. He was also aware that Ms. Ochs occasionally assisted customers in the selection of a frame for their lenses and quoted prices to customers in his absence. Respondent did not suspect that Ms. Ochs took pupillary distance measurements or used the lensometer when he was not on the premises. He does not believe that Ms. Ochs has sufficient knowledge or experience to properly operate the lensometer. Respondent was not present at Union Optical on December 3, 1981, when Investigator Lopez was on the premises. When Mr. Lopez described to him the events which had transpired at Union Optical on that date, some one-half hour after their occurrence, respondent was surprised to hear that Ms. Ochs had performed the functions of operating the lensometer and taking pupillary distances. Respondent had no managerial control over the premises of Union Optical or Rose Ochs.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint charging respondent with a violation of Section 484.014(1)(n), Florida Statutes, be DISMISSED. Respectfully submitted and entered this 16th day of May, 1983, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Paul W. Lambert, Esquire Slepin, Slepin, Lambert & Waas 1115 East Park Avenue Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Opticianry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the State Hoard of Optometry's policy statement of November 8, 1975, which interprets Chapter 463, Florida Statues (1983)("F.S."), as allowing optometrists to Prescribe legend drugs, is an unpromulgated "rule" within the meaning of Section 120.52(15), F.S., and therefore an invalid exercise of delegated legislative authority under Section 120.56, F.S. 1/ Whether the Board of Optometry's Proposed Rule 21Q-3.10, Florida Administrative Code ("F.A.C."), relating to the use and prescription of legend drugs by optometrists, lacks statutory authority and is therefore an invalid exercise of delegated legislative authority under Section 120.54(4)(a), F.S.; Whether Proposed Rule 21Q-3.10 is invalid for failure to provide an adequate statement of economic impact, as required by Section 120.54(2)(c), F.S.
Findings Of Fact STANDING OF PARTIES Petitioner FMA. Petitioner FLORIDA MEDICAL ASSOCIATION, INC. ("FMA"), a non-profit corporation, is organized and maintained for the benefit of the 13,500 Florida physicians who comprise its membership. The FMA acts on behalf of its members in matters of common importance. In addition to representing its members, FMA is committed to protecting, maintaining, and improving the quality of health care available to the public. The stated nature and purpose of the FMA is to promote the science and art of medicine, and improve the public health. Under its bylaws the FMA maintains a standing Council on Medical Services, which is primarily concerned with the delivery of medical services to the elderly and school children; to the impaired; and to recipients of public health service. One of the primary objectives of the Council is to Protect and enhance the delivery of health services in Florida to these health care recipients. The FMA initiated this rule challenge on behalf of all its members to protect those interests within the purview of its organization. Petitioner FSO. The FLORIDA SOCIETY OF OPHTHALMOLOGY, INC. ("FSO"), a non-profit corporation, is composed of members who are ophthalmologists-- physicians (M.D.'s) who specialize in diagnosing and treating eye disorders with drugs, surgery, and appliances such as corrective lenses and prisms. The practice of ophthalmology includes many types of eye care--from Sophisticated surgery techniques to prevent blindness to the more familiar eye examination. FSO acts, and is organized, to further the educational, political and professional interest of Florida ophthalmologists. The FSO is committed as an organization to protecting, maintaining and improving the quality of eye care available to the public. The FSO's membership includes over 400 of the approximately 550 ophthalmologists practicing in Florida. Many members of the FSO are also members of the FMA. The FSO initiated this rule challenge on behalf of itself and its members. Petitioner Broussard. WILLIAM J. BROUSSARD, M.D., is a licensed Florida physician. Since 1967, he has been a resident of Broward County, Florida, and has engaged in the practice of medicine, specializing in ophthalmology. He and the other physician members of petitioners FMA and FSO hold licenses to practice medicine issued under the authority of Chapter 458, F.S. Unauthorized Practice of Medicine. Under Chapter 458, F.S. other health care professionals are prohibited from practicing medicine unless within the confines of their organic act, which, in the case of optometrists, is Chapter 463, F.S. If Optometrists are not authorized by Chapter 463 to prescribe and use legend drugs in their practice, the prescription and use of such drugs could constitute an unlawful encroachment on the practice of medicine. Moreover, physicians, especially ophthalmologists, would suffer economic injury since it is likely that Some patients who would have otherwise Sought their services would, instead, seek the services of optometrists. 5 Respondent Board of Optometry. Respondent STATE OF FLORIDA, DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY, ("BOARD") is a state agency within the meaning of Section 120.52(1), F.S. Intervenor Florida Optometric Association, Inc. FLORIDA OPTOMETRIC ASSOCIATION, INC., ("FOA") is an incorporated organization of approximately 700 licensed optometrists in Florida. Its purpose is to promote and protect the interests of optometrists and the public by ensuring the availability of quality optometric service at reasonable prices. It represents its membership by participating in administrative, judicial, and legislative proceedings. Intervenor James A. Stephens, O.D. Dr. Stephens is a licensed optometrist in Quincy, Florida, who uses drugs in his practice. Intervenor Donnie D. Dance, O.D. Dr. Dance is a licensed optometrist in Ft. Myers, Florida, who uses drugs in his practice. Intervenors FOA, Stephens, and Dance. These intervenors have been, and will be, substantially affected by the challenged policy statement and rule, which regulate, and implicitly authorize, the prescription and use of legend drugs by optometrists in their practice. THE CHALLENGED POLICY STATEMENT AND PROPOSED RULE The 1975 Policy Statement. At various workshops held in 1975, the BOARD discussed adopting a rule on the use of drugs by optometrists in their practice. It asked its attorney to draft a rule on the subject. He submitted, instead, a written policy statement on the use of drugs in optometry, which the BOARD adopted at its November 8, 1975, meeting. On November 12, 1975, the statement was disseminated to all licensed optometrists in Florida. It was transmitted by a BOARD cover letter: To All Licensed Optometrists: On November 8, 1975, the Florida State Board of Optometry adopted a policy statement on the use of drugs in optometry. A copy is enclosed. This statement is important. It should be carefully read and then retained for future reference and review. Questions should be submitted to the Board in writing. (Emphasis in original) (Petitioner's Exhibit No. 2) This BOARD policy statement concluded, among other things, that there was "no specific or absolute prohibition" of the use of drugs by optometrists; that the need for health care services was so great that no action should be taken to restrict such services unless necessary to protect the public from injury; and that the education requirements of optometrists had been raised so that they had become at least as well educated in pharmacology as other health care professionals, whose right to use drugs in their practice had not been questioned. By this Policy statement, the BOARD, without citing or relying on any specific language in the statute, announced its interpretation that Chapter 463, F.S. (1975) allowed optometrists to use drugs in the practice of optometry. It cautioned optometrists, however, not to practice beyond their level of individual competency. Although not expressly stated, the policy statement was referring to the use of legend drugs--that is, drugs which were required by federal or state law to be dispensed only on prescription. This policy statement was never adopted as a rule in accordance with the rulemaking procedures of Section 120.54, F.S. (1975). It has never been rescinded or changed by the BOARD--and has been in effect since 1975. This written policy statement effectively notified all licensed optometrists in Florida that they were authorized to use legend drugs in the practice of optometry, provided they were individually competent to do so. This was the purpose of the statement, and this was its effect. Optometrists relied on this statement as authority for the use of legend drugs in their practice. The Proposed Rule: 21Q-3.10. On June 25, 1982, the BOARD, published notice of its intent to adopt an amendment to Rule 21Q-3.10, F.A.C., setting standards for the prescribing and use of legend drugs by optometrists and providing guidelines for determining the competence of individual optometrists who use such drugs. A public hearing on the proposed rule was held on July 22 and 23, 1982. Transcripts and exhibits presented during the previous rulemaking workshops were received into the record, and no witnesses were presented by either petitioners or intervenors. As a result of the hearing, the BOARD made several changes to the proposed rule. Notice of these changes was published in the Florida Administrative Weekly and the proposed rule (with changes) was filed for adoption on November 30, 1982. (Respondent/Intervenors' Exhibit No. 1) The proposed rule warns optometrists against performing treatment which they are not competent to perform; requires optometrists diagnosing angle closure, infantile, or congenital forms of glaucoma to refer such patients to a physician; requires optometrists treating an eye condition with steroids to refer such patients to a physician when the condition does not improve; requires BOARD approval prior to employing 10 percent phenylepherine hydrochloride, which approval will be granted only after training in life-sustaining emergency medical procedures; requires consultation with a physician when, in the optometrist's judgment, an infectious corneal disease has not responded to treatment; authorizes optometrists to employ non-controlled oral analgesics for relief of severe pain associated with eye trauma, for up to 48 hours, and for longer periods after consulting with a physician; defines legend drugs as substances required by federal or state law to be dispensed only on prescription, and excludes controlled substances defined by Chapter 893, F.S.; and establishes qualifications (consisting of completion of specified course work and clinical training in designated subject areas) which create a rebuttable presumption that an optometrist is competent to prescribe legend drugs in the practice of optometry. (Respondent/Intervenors' Exhibit No. 1(r)). The proposed rule is premised on the BOARD's long-standing interpretation that Chapter 463, F.S. authorizes optometrists to use legend drugs to diagnose and treat eye disorders, including diseases and injuries. The rule attempts to narrow or refine that authority by providing standards for employing and prescribing legend drugs, and by providing guidelines for determining the competence of individual optometrists to prescribe and use such drugs. The proposed rule contains definite and objective standards. Petitioners have not substantiated their allegation that the rule is unduly vague. The economic impact statement which accompanies the proposed rule addresses, in detailed fashion, each factor listed in Section 120.54(2)(a), F.S. The statement assumes that Chapter 463 does not prohibit the use of legend drugs by optometrists and that the use of legend drugs by optometrists has become a pattern of practice in Florida. OPTOMETRY: ORIGIN, SCOPE OF PRACTICE, AND TECHNICAL TERMS Origin. The profession of Optometry Originated in the late 1800's when some opticians--who were qualified to fill prescriptions for glasses, fit frames, and grind lenses--assumed the additional function of refraction. Up to that time refraction had been the exclusive responsibility of physicians. (Refraction consists of measuring the ability of the eye to refract or bend light rays entering it so as to form an image on the retina.) These refracting opticians became known as optometrists. In the early 1900's most states, including Florida, passed laws defining optometry and expressly authorizing optometrists to examine eyes for refractive error. Dictionary and Commonly Understood Definition of Optometry. Since the early 1900's, optometry has been commonly understood, and defined in dictionaries, as excluding the use of drugs or surgery. Webster's New Collegiate Dictionary (1981) at 799, defines optometry as: the art or profession of examining the eye for defects and faults of refraction and prescribing correctional lenses or exercises but not drugs or surgery. Professional Definition of the Scope of Optometry. During the 1940's and 50's, optometry was viewed as the art and science of visual care. Optometrists did not view their profession as embracing the use of drugs. In 1945, the American Optometric Association approved the following occupational definition: "OPTOMETRISTS (profess & kin) 0-53.10. Examines eyes, determines their con- dition, and prescribes treatment to conserve or improve vision without use of medicine, drugs or surgery; determines visual difficulties (refracts) by means of instruments such as ophthalmometer skiascope, and ophthalmoscope; refers patients having ocular manifestations of disease to a medical practitioner; prescribes lenses, prisms, or visual training as necessary to correct or improve vision; tests finished lenses to insure conformance to prescriptions, using lens testing machines. May Specialize in a particular phase of optometry such as prescribing and fitting contact lenses and telescopic spectacles or surveying and correcting visual deficiencies among industrial workers." (e.s.) (Petitioners' Exhibit No. 52, page 329) In 1967, Congress was considering a bill which would have amended a District of Columbia law to include within the definition of optometry, "the employment of any . . . means for the examination of the human eye." H.R. 12276, 90th Congress, 1st Session, Section 3(2)(1967). Dr. Judd Chapman, a Florida optometrist serving as Chairman for Legislation of the American Optometric AsSociation, testified about the amendment before a congressional subcommittee. When asked if this proposed language would authorize optometrists to use drugs, he replied: No, sir, it does not . . . in fact that language is in a great number of the statutes defining optometry throughout the nation. That is very common . . . No, sir, that does not include the use of drugs. (Petitioners' Exhibit No. 43) Optometrists did not view their profession as including the diagnosing and treating of eye injury or eye disease. The treating of eye disease normally required use of drugs or surgery. When optometrists detected eye disease, or ocular manifestation of systemic disease (or pathology) they referred the patient to a qualified physician. Scope of Optometry as Defined by Florida Law. Since 1939, Florida's statutory definition of optometry (and its scope of Practice) has remained relatively unchanged. 2/ Section 463.002(4), F.S. provides: "Optometry" means the diagnosis of the human eye and its appendages; the employment of any objective or subjective means or methods for the purpose of determining the refractive powers of the human eyes, or any visual, muscular, neurological, or anatomic anomalies of the human eyes and their appendages; and the prescribing and employment of lenses, prisms, frames, mountings, contact lenses, orthoptic exercises, light frequencies, and any other means or methods for the correction, remedy, or relief of any insufficiencies or abnormal conditions of the human eyes and their appendages. The BOARD asserts that this statutory definition is broad enough to authorize adoption of the proposed rule regulating (and permitting) the use of legend drugs by optometrists. The question of whether Chapter 463, generally, and this definition of optometry, in particular, authorize optometrists to use drugs in their practice has been asked before with varying, and sometimes conflicting answers. Florida Attorney Generals' opinions have answered this question differently. In 1957, AGO 057-79, concluded that: The practice of optometry, as defined by Section 463.01, F.S., and cases from other jurisdictions obviously does not authorize optometrists to administer drugs, or perform surgery in the diagnosis of, or treatment of the refractive powers of the human eye. Therefore, question 1 [is an optometrist permitted to administer drugs and perform surgery?] is answered in the negative. (e.s.) In 1959, AGO 059-24, addressed whether an eye care publication was misleading advertising. The Attorney General, citing Section 463.01 (defining the practice of optometry) stated: In view of the foregoing definitions of optometry, it appears that the treatment of ocular diseases is not a part of the practice of optometry; * * * It further appears by the statutes and possibly from the professional definition that an optometrist is restricted to diagnosing the things mentioned in Section 463.01, Florida Statutes, and not diseases. (e.s.) What was obvious to one Attorney General in 1957, was less obvious to another in 1975, who was asked this question by the attorney for the BOARD: Does Chapter 463, F.S., prohibit licensed optometrists from utilizing drugs within the scope of the practice of optometry as defined by Section 463.01, F.S.? The Attorney General, by letter dated December 22, 1975 (an unpublished Attorney General`s opinion), answered this question in the negative, ice. Chapter 463 does not forbid the use of drugs by optometrists. Various Florida Boards of Optometry have also answered this question differently. Although the 1975 Board (which adopted the challenged policy statement) and the present Board (which proposed the challenged rule) both agree--without citing specific language Chapter 463 authorizes optometrists to use legend drugs, an earlier 1962 Board of Optometry was less certain. In June, 1962, that Board adopted a rule prohibiting the use of drugs except under certain circumstances: 250-1.32. Use of Drugs Prohibited Except Under Certain Circumstances In the practice of optometry as defined in Section 463.01, Florida Statutes, a registered optometrist in this state is prohibited from using or prescribing drugs in connection with the treatment of pathological conditions of the eye or any of its appendages, provided, however, that drugs may be used and prescribed in connection with the fitting of contact lenses and examinations for purpose of testing or diagnosis of the eyes but not for treatment thereof. Three months later, the Board repealed this rule, explaining: [T]his existing Rule 250-1.32 was repealed by the Board because it was felt that the rule was probably beyond the power of the Board to promulgate inasmuch as the law itself, Chapter 463, Florida Statutes, made no mention of drugs in its definition of the practice of optometry. (Petitioners' Exhibit No. 16) Unsuccessful Legislative Efforts to Resolve the Question. In 1974, two bills were introduced in the Florida Legislature which would have expressly prohibited the prescription and use of legend drugs by optometrists. Both bills were defeated. (Respondent's Intervenors Exhibit No. 5) In 1975, the legislature created a commission to study the use of drugs by Optometrists and make recommendations to the 1975 legislature. Ch. 75-239, Laws of Florida (1975). This commission composed of 4 legislators, 2 optometrists and 2 opathalmogists studied the question and, on January 5, 1976, recommended that the legislature take no action: The Commission recommends that legislative action on this issue of the appropriateness of the use of drugs by Optometrists is not warranted at the present time. This recommendation should not be construed as an endorsement of the prescribing of, or use of, drugs by optometrists but re- flects an agreement on the part of members of the Commission that this issue is of a professional nature and would best be resolved through cooperative discussions between the respective Boards and Societies of the Optometrists and Ophthalmologists. (Respondent's Exhibit No. 2(c); 6(a), (b).) In 1981 and 1982, bills were introduced which would have expressly allowed Optometrists to use legend drugs under specified conditions. Those bills were also defeated. In 1983, the legislature passed Senate Bill 168, which would have allowed Optometrists to use legend drugs. It was vetoed by the Governor and never became law. The Use of Legend Drugs by Optometrists. Some Florida optometrists have been using legend drugs for diagnostic and therapeutic purposes. Since the Florida Board of Pharmacy does not permit pharmacists to honor their prescriptions optometrists have to obtain their drugs from other Sources. Most of the drugs they have used are intended for topical application to the eye. Generally, they are classified as topical anesthetics, mydriatics, cycloplegics, miotics, and antibiotics. Topical anesthetics ease discomfort when tonometry is used to measure intraocular pressure of the eyes--a test for glaucoma. Mydriatics dilate the pupil so that the examiner can view the interior of the eye with an ophthalmoscope or slit lamp. Cyclopegics cause paralysis of accomodation and facilitate refractions in children. Miotics constrict the pupil after it has been dilated with mydriatics. Antibiotics are used mainly to treat conjunctivitis Although these drugs may be helpful, they are not essential to examining or refracting human eyes. These drugs have known side effects which, although rare, may be quite severe. Technical Meaning of Statutory Terms. As stated earlier, Section 463.002(4), F.S., contains the legislative definition of optometry: "Optometry" means the diagnosis of the human eye and its appendages; the employment of any objective or subjective means or methods for the purpose of determining the refractive powers of the human eyes, or any visual, muscular, neurological, or anatomic anomalies of the human eyes and their appendages; and the prescribing and employment of lenses, prisms, frames, mountings, contact lenses, orthoptic exercises, light frequencies, and any other means or methods for the correction, remedy, or relief of any insufficiencies or abnormal conditions of the human eyes and their appendages. (e.s.) This definition contains terms and phrases which have assumed commonly understood, or technical, meanings among optometrists and ophthalmologists: "Diagnosis of the human eye," means identification of the organ and its function as an optical instrument. It does not mean "diagnosis of diseases of the human eye," a function involving the medical process of differential diagnosis, whereby all other possible diseases are eliminated--one by one--until only the suspected disease remains. "Objective . . . means . . . for . . . determining the refractive powers of the human eyes," means the use of instruments for measuring visual acuity. "Subjective means . . . for . . . determining the refractive powers" means the placing of various lenses in front of a patient's eyes and asking how the lenses affect the patient's sight. "Anomalies" of the human eyes includes developmental or functional defects, not diseases--which are caused by pathological processes. The latter part of this statutory definition lists specific modalities of treatment which may be prescribed or employed by optometrists, including "lenses, prisms, frames, mountings, contact lenses, orthoptic exercises [and] light frequencies." These constitute a class of items which are prosthetic devices, or appliances, and exercises. Their common characteristics are that they are neither invasive nor intrusive; and they do not operate at the level of cell physiology. Neither do they exhaust the class. Lid crutches (which are mounted in the frame and tend to hold a lid open) and eye patches (which prevent the light image from falling on the retina) are examples of items omitted from the list. In the language of optometrists and ophthalmologists these optic appliances are "prescribed" for a patient. These specifically listed appliances or exercises have a common purpose: to correct refractive error. This occurs when there is nothing basically wrong with the eye, except it is too big, or overpowered, or underpowered, and images are distorted. "Prisms" and "lenses" are mounted into the eyeglass frame. A "mounting" refers to propping glasses on the nose and hanging them from the ears. "Contact lenses" are mounted on the eye's surface and, like eyeglasses, weaken or strengthen the eye--as needed--to cause the image to fall onto the retina.
Conclusions Jurisdiction. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this Proceeding. 120.54(4), 120.56, F.S. Standing. Petitioner's have standing to challenge--as do intervenors to defend--the validity of the 1975 policy statement and the recently proposed amendment to Rule 21Q-3.10, F.A.C. These parties are, or will be, substantially affected within the meaning of Sections 120.54(4)(a) and 120.56(1), F.S. See, Florida Medical Association, Inc. et al. v. Department of Professional Regulation Board of Optometry, et al., 426 So.2d 1112 (Fla. 1st DCA 1983). Constraints on Agency Rulemaking. Agencies are creatures of statute and have no inherent authority. 120.54(14), P.S. Their powers are limited to those expressly granted or necessarily implied by statute. See, 4 Jur. 2d, Administrative Law 46. When the legislature delegates rulemaking power to administrative agencies, such power is limited and circumscribed by the statute conferring it. State v. Atlantic Coastline R. Co., 47 So. 969 (Fla. 1908). No agency can adopt a rule which amends, adds to, or conflicts with a statute. Seitz v. Duval County School Board, 366 So.2d 119, 121 (Fla. 1st DCA 1979), cert. den. 375 So.2d 911; State Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980); Department of Health and Rehabilitative Services v. Florida Psychiatric Society, Inc., 382 So.2d 1280, 1285 (Fla. 1st DCA 1980). No agency can adopt rules which exceed its delegated power or are contrary to the intent of the legislature. See, Dept. of Citrus v. Office of Comptroller 416 So.2d 820 (Fla. 2d DCA 1982). Any rule which attempts to do so is an invalid exercise of delegated legislative authority. If there is reasonable doubt about the existence of a power being exercised by an agency, the further exercise of that power should be arrested. Atlantic Coastline R. Co., supra Edgerton v. International Co., 89 So.2d 488, 489-90 (Fla. 1956); State ex rel. Greenberg v. State Board of Dentistry, 297 So.2d 628, 636 (Fla. 1st DCA 1974). Position of Petitioners. In the instant case, petitioners contend that the BOARD'S policy statement and proposed rule regulate, and implicitly authorize, the use of legend drugs by optometrists in their practice; that the BOARD lacks statutory authority to regulate or authorize the use of such drugs by optometrists; and that the use of such drugs to diagnose and treat eye conditions constitutes the unauthorized practice of medicine. Further, they contend that the economic impact statement is inadequate because it mistakenly assumes that optometrists may lawfully prescribe and use legend drugs in their practice, and that there is an existing pattern of such practice; and that the 1975 policy statement on the use of drugs is invalid because it is, in effect, a rule but was not adopted as such in accordance with the rulemaking procedures of Chapter 120, F.S. Position of Board of Optometry and Intervenors. The Board of Optometry and the intervenors argue, among other things, that the BOARD has authority to adopt the rule; that it is authorized to do so by the plain wording of Chapter 463; that, subject to the rule, optometrists are qualified by training and education to safely prescribe and use legend drugs in diagnosing and treating eye disorders, including refractive error and pathological diseases; that the rule contains standards of practice for optometrists and simply refines the statutory definition of the scope of optometry; that the use of legend drugs by optometrists is useful and necessary; that the statute should be construed to allow Optometrists to use any means or methods taught by the various schools of optometry and recognized by the BOARD; and that deference should be granted the BOARD's interpretation of the statute in its charge. Further, they argue that the 1975 policy statement is not a rule" because it was not intended to create rights, require compliance, or otherwise have the direct and consistent effect of law. II. For the reasons which follow, it is concluded that the proposed rule lacks statutory authority and is an invalid exercise of delegated legislative authority. It is also concluded that the BOARD's 1975 policy statement on the use of drugs is a "rule," as defined by Chapter 120, F.S., but was not adopted as such in accordance with prescribed rule-making procedures. It too is, therefore, an invalid exercise of delegated legislative authority. Legislative Intent and Ambiguous Statutory Language. Legislative intent is the essence of the law. State v. Sullivan, 116 So.255 (Fla. 1928). The cardinal rule of statutory construction is that "a statute should be construed so as to ascertain and give effect to the intention of the legislature as expressed in the statute." Deltona Corp. v. Florida Pub. Serv. Comm'n., 220 So.2d 905, 907 (Fla. 1969). When a statute is plain and unambiguous, there is no room for construction the plain meaning need only be given effect. State v. Egan, 287 So.2d 1, 49 (Fla. 1973). But Chapter 463 and Section 463.002(4), in particular, do not express legislative intent in plain and unambiguous terms. The statute does not expressly authorize or prohibit the prescription and use of legend drugs by optometrists. The question is whether this statute may be permissibly interpreted as authorizing optometrists to use legend drugs. When a statute is ambiguous, as is the case here, various rules of statutory construction may be used to ascertain legislative intent. Statutes are considered to have been enacted with knowledge that they would be interpreted in accordance with these rules. 73 Am. Jur. 2d, Statutes, 142. The legislative history or evolution, of a statute may be material. Blount v. State, 138 So.2d 2 (Fla. 1931). Ordinarily, the statute should be given the meaning assigned to it at the time it was enacted. State v. JackSonville, 50 So.2d 532 (Fla. 1951) Statutory History and Meaning Assigned at Time of Enactment. The first statute regulating the practice of optometry in Florida was adopted in 1909, and defined the practice of optometry as: The use or employment of tests or examinations for the determination of the natural and functional deficiencies of the eye and the adaption of lenses for the aid thereof. 1 Ch. 5947, Laws of Florida (1909). Physicians were expressly exempted from the law regulating optometrists and have always been authorized to provide services included within the scope of optometry. In 1921, the legislature expanded the definition of optometry and expressly prohibited the use of drugs, medicine, or surgery: The practice of optometry for the purposes of the Act is hereby defined as being either one or any combination or part of the following: The examination of the human eye, without the use of drugs, medicine, or surgery, to ascertain the presence of defects or abnormal conditions which may be corrected, remedied or relieved or the effects of which may be corrected, remedied or relieved by the use of lenses or prisms. The employment of subjective or objective mechanical means without the use of drugs, medicine or surgery to determine the accommodative or refractive conditions, or the range of powers of vision, or muscular equilibrium of the human eye. The adaptation or the adjustment of lenses or prisms without the use of drugs, medicine or surgery to correct, relieve or remedy any defect or abnormal condition, or to correct, relieve or remedy the effects of any defect or abnormal con- dition of the human eye or to adjust the human eye to the conditions of a special occupation. The adaptation or adjustment of lenses or prisms, without the use of drugs, medicine or surgery, in any manner to the human eye for any purpose, either directly or indirectly. (e.s.) 1 Ch. 8580, Laws of Florida (1921). In 1931, the definition of optometry was amended again. The prohibition on use of drugs or surgery in refracting human eyes was retained, but it was deleted in connection with the prescribing and employment of lenses, prisms, and ocular exercises: That the practice of Optometry, for the purposes of this Act, is hereby defined as follows, viz.: to be the employment of any objective or subjective means or methods without drugs or surgery for the purpose of determining the refractive powers of the human eyes, or any visual or muscular anomalies of the human eye and its appendages, and the prescribing and the employment of lenses, prisms, ocular exercises for the correction, remedy, or relief of any insufficiencies or abnormal conditions of the same; an optometrist is one who practices Optometry in accordance with the provisions of this Act. (e.s.) This deletion of the earlier prohibition did not, however, authorize optometrists to use drugs (or any other form of treatment) not mentioned in the statute. Under the rule, expression unius est exclusio alterius, the listing of specific modes of treatment effectively excluded all others. Dobbs v. Sea Isle Hotel, 56 So.2d 341, 342 (Fla. 1952). It was in 1939 that the legislature revised, once more, the definition of optometry (1) by removing the remaining prohibition against using drugs to determine refractive powers and (2) by adding a general description, "and any other means or methods," after the specifically listed modes of treatment: That the practice of Optometry is hereby declared a profession, and for the purpose of this Act, is hereby defined as follows, viz: to be the diagnosis of the human eye and its appendages, and the employment of any objective or subjective means or methods for the purpose of determining the refractive powers of the human eyes, or any visual, muscular, neurological or anatomic anomalies of the human eyes and their appendages, and the pre- scribing and employment of lenses, prisms, frames, mountings, orthoptic exercises, light frequencies and any other means or methods for the correction, remedy, or relief of any insufficiencies or abnormal conditions of the human eyes and their appendages, and an Optometrist is one who practices Optometry in accordance with provisions of this Act. (e.s.) 1 Ch. 19031, Laws of Florida (1939) The question then becomes whether, by these two changes, the 1939 Legislature intended to authorize optometrists to use and prescribe legend drugs in the practice of optometry, including the treating of eye injury and disease. A law cannot be interpreted to encompass a situation not within its purview at the time of its enactment. Radio Telephone Communications, Inc. v. Southeastern Telephone Company, 170 So.2d 577 (Fla. 1964). Although statutory language may appear to have a clear meaning, it may not be assigned a meaning which is inconsistent with other statutes in pari materia. See, 30 Fla. Jur., Statutes 101. A construction which places related statutes in conflict should be avoided. Howarth v. City of Deland, 158 So.294 (Fla. 1934; From 1921 to the present, the Medical Practice Act, now Chapter 458, F.S., has exempted those perSons from its coverage who, without the use of drugs, fit lenses or other appliances or examined eyes for such purposes: Definition of Practice of Medicine; Exceptions-- * * * This Chapter [the Medical Practice Act] shall not be construed to affect any person or manufacturer who without the use of drugs or medicines mechanically fits or sells lenses, artificial eyes, limbs or other apparatus or appliances, or is engaged in the mechanical examination of eyes for the purpose of constructing or adjusting spectacles, eyeglasses or lenses; (e.s.) 458.13, F.S. (1941). See also, 14 Ch. 8415, Laws of Florida, (1921); 458.3031(1)(h), F.S. In 1939, this was the only exemption in the Medical Practice Act which protected optometrists--who were not exempted by name--from charges of engaging in the unauthorized practice of medicine. Yet this provision applied only to persons who examined eyes and fit lenses without the use of drugs. It follows that the 1939 legislature could not have intended that its removal of a prohibition against the use of drugs be interpreted as authorizing their use. Such a construction would have placed the Optometric Practice Act and the Medical Practice Act in direct conflict--and placed optometrists in an untenable position. They would have been authorized by the Optometric Practice Act to use drugs to examine eyes or fit lenses; but as soon as they did so, they would be in violation of the Medical Practice Act and subject to charges of unauthorized practice of medicine since such acts--beyond the exemption constitute the practice of medicine. See, 458.13, F.S. (1941). It is concluded, therefore, that the 1939 legislature did not intend that its deletion of a prohibition equate to an authorization. Since the definition of optometry has not significantly changed since 1939, the legislative intent at the time of enactment must be given effect. This conclusion that the legislature did not intend to authorize optometrists to use drugs is reinforced by application of the rule of ejusdem generis to that part of the definition which describes the forms of treatment which optometrists may render. The Rule of Ejusdem Generis. In ex parte Amos, 112 So.289 at 293 (Fla. 1927), the Florida Supreme Court recognized this as a controlling rule of statutory construction. It means: "Where an author makes use first of terms each evidently confined and limited to a particular class of a known species of things, and then after such specific enumeration subjoins a term of very extensive signification, this term, however general and comprehensive in its possible import, yet when thus used embraces only things ejusdem generis; that is, of the same kind of species with those comprehended by the preceding limited and confined terms." The maxim is a more specific application of the broader maxim "noscitur a sociis," which means that general and specific words which are capable of an analogous meaning being associated together take color from each other, so that the general words are restricted to a sense analogous to the less general. [Cases omitted] Id. The rule aids in the construction of a statute which enumerates specific items of a class, which is not exhausted by the enumeration, and which concludes the series with a general term descriptive of the class. State v. Town of Davie, 127 So.2d 671, 673 (Fla. 1961) Here, that portion of the statutory definition which describes forms of treatment which may be used in optometry provides: "Optometry" means . . . the prescribing and employment of lenses, prisms, frames, mountings, contact lenses, orthoptic exercises, light frequencies, and any other means or methods for the correction, remedy, or relief of any sufficiencies or abnormal conditions of the human eyes and their appendages. (e.s.) 463.002(4), F.S. The rule of ejusdem generis applies, since the enumerated forms of treatment constitute a class not exhausted by the enumeration. The general description (which follows the series), "any other means or methods," must, therefore, be construed as meaning forms of treatment of the same kind or species as those enumerated. See, Hanna Sunrise Recreation, Inc. 94 So.2d 597 (Fla. 1957). Legend drugs, which can be invasive or intrusive, operate at the cellular level and are not of the same kind or species as the enumerated forms of treatment. The use of legend drugs by optometrists to correct, remedy, or relieve any insufficiencies or abnormal conditions of the eyes exceeds the scope of optometry, as defined by Florida law. The proposed rule implicitly authorizes such use and is, therefore, invalid. If the Legislature Intended to Authorize Optometrists to Prescribe and Use Legend Drugs in the Practice of Optometry It Would Have Expressly Stated It. If the 1939 legislature had intended to authorize optometrists to, prescribe and use legend drugs--something it never before permitted--it would have expressed this intent in clear and unmistakable terms. In 1939, the granting of such power to optometrists would have been a complete reversal of prior legislative policy and would have greatly expanded the scope of optometry in Florida. Such an expansion would have been inconsistent with the definition and scope of optometry as commonly understood, and as understood by optometrists themselves. Furthermore, the 1939 amendment uses language which, among optometrists and ophthalmologists, conveys specific meaning. Assigned this meaning, the 1939 amendment (redefining the scope of optometry) does not expressly, or by reasonable inference, authorize optometrists to prescribe or use legend drugs in the practice of optometry. Authorization to Prescribe and Use Legend Drugs Must be Affirmatively Granted by Statute, Not Agency Rule. Section 458.305(3), F.S., part of the Medical Practice Act, defines the "practice of medicine" in broad and all- encompassing terms. Recognizing the reach of this definition, the legislature specifically exempted from the Medical Practice Act: Other duly licensed health care practitioners acting within their scope of practice authorized by statute. (e.s.) 458.303(1)(a), F.S. so to the extent other health care practitioners, such as optometrists engage in acts that would fall within the broad definition of "practice of medicine," such persons will not be in violation of Chapter 458 (and subject to unauthorized practice of medicine charges) as long as their acts fall within their scope of practice authorized by statute. The legislature defined, in similar manner, those persons who may write prescriptions for legend drugs in Florida. Chapter 465, F.S., the Florida Pharmacy Act, makes it a third degree felony for any person to sell or dispense legend drugs without first being furnished prescription. 465.003(7),465.015(2)(c), F.S. "Prescription" is defined as any order for legend drugs "by a duly licensed practitioner authorized by the laws of the State to prescribe such drugs." (e.s.) 465.003(13). In the instant case, the BOARD acknowledges that it has never relied on any particular or specific phase in Chapter 463 as authorizing optometrists to prescribe and use legend drugs. Indeed, it asserts that: [S]tatutory authority alone is insufficient to permit optometrists to use drugs. The scope of practice of optometry (including what is taught in the schools and colleges of optometry) must be considered. The Board of Optometry is responsible for determining the scope of practice. (BOARD'S Proposed Final Order, proposed finding no. 188). It repeatedly asserts that it is the BOARD which defines the scope of practice of optometry, and that the definition is continually evolving. (BOARD's Proposed Final Order, proposed finding no. 194.) It broadly interprets the comprehensive "any other means or methods" language of Section 463.002(4) as including any means or methods taught by schools of optometry and recognized as standard methods by the BOARD. (BOARD's Proposed Final Order, proposed finding no. 50) The BOARD fails to comprehend the limits of its power. It may only adopt rules consistent with Chapter 463 and for the purpose of carrying out the terms of the statute. 463.005. It may adopt standards of practice for licensed optometrists, Id. But it may not adopt standards which exceed or attempt to expand the scope of optometry as defined by Section 463.002(4). There may be, as the BOARD argues, good reasons for expanding the bounds of optometry, but the power to do so rests with the legislature, not the BOARD. Here, the statute does not authorize optometrists to prescribe or use legend drugs in their practice. The BOARD cannot adopt a rule which attempts to supply this authority. The proposed rule, standing alone, can neither add to nor vary the scope of practice defined by Section 463.002(4), F.S. See, 458.303(1)(a), 465.003(13), F.S. Comparison of Chapter 463, F.S. With Statutes Regulating Other Health Care Practitioners. There is further support for the proposition that if the legislature had intended to authorize optometrists to prescribe and use legend drugs, it would have done so in clear and unmistakable language. It left little room for doubt when it enacted laws granting this authority to other health care practitioners when these statutes are examined, a common legislative scheme emerges: Each grant of authority is accompanied by a legislative restriction-- making the misuse of drugs an explicit ground for disciplinary action. 3/ See, statutes regulating the Professions of Medical Practice, 458.305(3), 458.331(1)(q); Osteopathy, 459.003(3), 459.015(1)(q); Podiatry, 461.003(3), 461.013(1)(p); Naturopathy, 462.01, 462.14(1)(h); Dentistry, 466.003, 466.017, 466.028(1)(q); Veterinary Medical Practice, 474.202(4), 474.214(1)(z), (aa), F.S. Yet, Chapter 463 does not--either in the definition of optometry or in any disciplinary provision--clearly authorize optometrists to prescribe and use legend drugs in their practice. Indeed, misuse of legend drugs (by an optometrist inside or outside of his or her scope of practice) is not specified as a ground for discipline. The clear implication is that the legislature did not intend to authorize optometrists to prescribe and use legend drugs in their practice. If it had intended to do so, it is likely that it would have followed the same statutory scheme it used to grant such authority to other health care practitioners. Scope of Optometry Is Defined by Statute, Not Various Schools of Optometry. As mentioned earlier, the BOARD urges that it is empowered to define and change the scope of optometry, based on what is taught in the various schools of optometry and what it approves as standard means and methods. This is not a permissible construction of Section 463.002(4), F.S., which defines the scope of optometry. The statutory definition does not expressly, or by reasonable inference, relate to what is taught in the schools of optometry. If the legislature had intended such a result, it would have stated it--as it did in the law regulating osteopathic medicine. From at least 1941 to 1978, the scope of osteopathic medicine was defined as that system or school of medicine which "is taught and practiced in the standard colleges of osteopathy and Surgery . . . ." 459.01, F.S. (1975). "Standard colleges of osteopathy" were defined in terms of the educational requirements which must be met before one could obtain a degree of doctor of osteopathy. 459.08, F.S. (1975). Less Weight Given Other Statutory Rules of Construction. In construing Chapter 463, F.S., and under the particular circumstances of this case, less weight is given other, countervailing, rules of statutory construction. While deference is accorded an agency's rule interpreting the statute in its charge, Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981), such deference applies only to permissible interpretations. Id. The weight to be given an agency's current interpretation may be affected by its past interpretations to the contrary. Moreover, deference to an agency's interpretative power can never be used to justify a rule which is beyond its authority to adopt. Although a Florida Attorney General's opinion is entitled to great weight in construing statutes, State v. Office of Comptroller, 416 So.2d 820 (Fla. 2d DCA 1982), where the opinions are conflicting and unclear--as they are in this case--they should be accorded less weight. Deference is also accorded a rule which has been in effect for several sessions, without interference from the legislature or its Administrative Procedures Committee. Jax Liquors, Inc. v. Division of Alcoholic Beverages and Tobacco, 388 So.2d 1306 (Fla. 1st DCA 1980). But this principle has less effect when applied, as here, to an agency's policy statement never promulgated as a rule or subjected to the public notice and scrutiny requirements of Section 120.54, F.S. Finally, legislative action--propose or defeated--may aid in construing a statute. 30 Fla. Jur., Statutes 103. But, in the instant case, recent legislative activity is inconclusive and provides little guidance to the correct interpretation of the statute. The 1975 statute creating the Study Commission sheds little light, Since the statute took a neutral position; and the Commission which subsequently studied the question took no definite position, and recommended no action. Proposed Rule 21Q-3.10 Is Invalid, in Its Entirety. Proposed Rule 21Q- 3.10, in its entirety, constitutes an invalid exercise of delegated legislative authority. The rule--which purports to regulate the prescription and use of legend drugs by optometrists in the practice of optometry--clearly implies that optometrists have such authority under Chapter 463, F.S. They do not, and the BOARD has no power to confer it. Although subsection (2) of the rule does not expressly regulate the use of drugs by optometrists, it directly relates to the remaining--and--objectionable--portions of the proposed rule. There is no evidence that the BOARD intended to adopt subsection (2) without the accompanying subsections (3)(4), and (5). Under these circumstances, subsection (2) is also invalid. III. Unnecessary to Determine Validity of Economic Impact Statement. The adequacy of the BOARD's economic impact statement is not reached since the proposed rule which it addresses is deemed an invalid exercise of delegated legislative authority. The Board's 1975 Policy Statement on the Use of Drugs by Optometrists is an Invalid "Rule." Section 120.52(15), F.S. defines a rule as: (14) . . . each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedures or practice requirements of an agency and includes any form which imposes any requirement or Solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule . . . . An agency's characterization of its statement is not controlling. If the statement is intended, by its own effect, to create rights, require compliance, or otherwise have the direct and consistent effect of law, it is a "rule," and invalid unless adopted in accordance with the rulemaking procedures of section 120.54, F.S. See, State Department of Administration v. Harvey, 356 So.2d 323 (Fla. 1st DCA 1977); State Department of Administration v. Stevens, 344 So.2d 291 (Fla. 1st DCA 1977). One of the goals of the Administrative Procedure Act was to abolish invisible policymaking--those "unwritten rules" which agency's can adopt, change, and enforce with unrestrained dis-cretion. Straughn v. O'Riordan, 338 So.2d 832, 834 (Fla. 1976). In the instant case, the BOARD's 1975 policy statement on the use of drugs by ptometrists announced its interpretation of Chapter 463, and an attendant disciplinary policy, which it would follow in the future. This statement was generally applicab1e addressed and disseminated to all licensed optometrists in Florida. The BOARD intended that it be used and relied on in the future; optometrists were told that it was an important BOARD statement which they should read and retain for future reference. It was intended to create rights and require compliance. It effectively informed all licensed optometrists in Florida that they could lawfully prescribe and use legend drugs in their practice; and that if they did So providing they were individually competent, no disciplinary action would be taken against them. The statement was not incipient or emerging agency policy. See, McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), It was not announced tentatively, or in uncertain terms, and it has remained--intact and unchanged-- as a statement of BOARD policy since 1975. This 1975 policy statement is thus a "rule" within the meaning of Section 120.52(15), but was not adopted as such in accordance with Section 120.54 rulemaking procedures, It was adopted with lightning-like effect, without notice to affected persons, without providing them opportunity to comment or participate, and without eventual publication in the Florida Administrative Code. Hence, the BOARD's 1975 policy statement, dated November 12, 1975, constitutes an invalid exercise of delegated legislative authority. Adoption and Rejection of Proposed Findings of Fact. The parties submitted proposed findings of fact which have been considered and, when appropriate, Incorporated in this order. To the extent they are not incorporated, they are rejected as not supported by the weight of credible evidence, subordinate, cumulative, immaterial, or unnecessary to resolution of the issues presented. Extensive findings were proposed pertaining to the training and education of optometrists; their ability to safely prescribe and use legend drugs in their practice; and the extent to which they have used--or now use--legend drugs in their practice, including their record of performance. Proposed findings on these subjects are rejected as immaterial to the dispositive issue--the BOARD's authority vel non to adopt a rule which, expressly or impliedly, authorizes optometrists to prescribe and use legend drugs in their practice of optometry. Based on the foregoing, it is ORDERED: That the Amended Petition to Invalidate Agency Rules, dated September 15, 1983, is granted. Accordingly, Proposed Rule 21Q-3.10, as proposed by the BOARD and filed with the Department of State, is declared an invalid exercise of delegated legislative authority; and The BOARD's written policy statement on the use of drugs in optometry, dated November 12, 1975, is declared an invalid exercise of delegated legislative authority. DONE and ENTERED this 22nd day of March, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1984
Findings Of Fact Respondent, Rafael Daman, is an optician, having been issued License No. 0001712. (Petitioner's Exhibit 1) Respondent filed an apprentice application with the Board of Opticianry. (Petitioner's Exhibit 1) As part of that application, a form entitled "Apprentice Application to be Completed by Employer" was submitted to the Board of Opticianry. (Petitioner's Exhibit 1) This form is signed and sworn to by Ramon del Busto, M.D., as supervisor of Respondent. (Petitioner's Exhibit 1) Dr. del Busto acknowledged his signature on this document. (Deposition 7) Additionally, Ramon del Busto, M.D., submitted an Affidavit By Sponsor, and swore that he was the sponsor of the Respondent. (petitioner's Exhibit 1, Deposition 5) Respondent was not employed by Ramon del Busto, M.D. (Transcript - 22, Deposition 7, 8, 9) However, Respondent worked as an unpaid employee or student of Dr. del Busto (Transcript -48, Deposition 8, 9) The Apprentice Application to be Completed by Employer was actually completed by the Respondent and a secretary employed by G&B Optical. (Transcript - 36, 38) Ramon del Busto, M.D., signed the Apprentice Application to be Completed by Employer, but had no personal knowledge of the accuracy of the information contained therein. (Transcript - 24, 36, 38; Deposition - 7, 8, 9) Ramon del Busto, M.D., supervised the Respondent when they were both at G&B Optical, but Dr. del Busto was present at G&B Optical only on Tuesdays, Thursdays, and others times as necessary. Transcript - 22, 35, 36, 37, 40, 41; Deposition - 5, 9) However, Respondent was always present when Dr. del Busto was in this office. (Deposition - 9) Dr. del Busto did not remain on the premises while all the work of Respondent was being accomplished. (Transcript - 46)
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of procuring an optician's license by misrepresentation in violation of Subsection 484.015(1)(a) , F.S., and placing Respondent on probation under the supervision of another optician as provided by Subsection 484.015(2)(e), F.S., until Respondent demonstrates compliance with Section 484.007, F.S. DONE and ORDERED this 23rd day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1982. COPIES FURNISHED: Diane K. Kiesling, Esquire Davis, Kiesling & McCall 517 East College Avenue Tallahassee. Florida 32302 Mr. Rafael Daman 5426 N.W. 169th Street Mr. Samuel R. Shorstein Miami, Florida Secretary Department of Professional Mr. Fred Varn, Executive Director Regulation Board of Dispensing Opticians 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTICIANRY, Petitioner, vs. CASE NO. 82-337 LIC. NO. 0001712 RAFAEL DAMAN, Respondent. /
The Issue The issue to be resolved in this proceeding concerns whether Rule 61F8- 3.015, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority, as defined in Section 120.52(8), Florida Statutes, and whether the Petitioners have standing to challenge that rule.
Findings Of Fact Petitioner POF is a non-profit Florida corporation organized under the laws of Florida for the purpose of representing its members who are licensed opticians. Petitioner Riddlebaugh is a board-certified, licensed optician pursuant to the laws of Florida and has been so licensed since 1987. After first becoming licensed in Florida, Petitioner Riddlebaugh worked in his family's optical business in Ormond Beach, Florida. He later worked for Burdine's Optical and Omni Optical. From April 1990 to February 1994, he owned and operated an independent opticianry business in Florida and was the sole employee of that business during the entire time of its operation. The Respondent is a state agency authorized to promulgate rules and regulations concerning the practice of optometry and licensure of optometrists, by authority of Chapter 463, Florida Statutes. The Intervenor is a non-profit Florida corporation whose membership is comprised of optometrists licensed under Chapter 463, Florida Statutes, and who are authorized to practice optometry in Florida. Petitioner POF's organizational purposes are to promote, protect, and improve the professional status of persons engaged in the practice of opticianry and to encourage, establish, and maintain standards of competence, knowledge, and performance through the provision of educational programs, training, and uniform licensing of optical dispensers. Petitioner POF has seven classes of membership entitled Professional Member Class I, Professional Member Class II, Professional Non-Licensed Member, Associate Member, Affiliate Member, Student Member, and Honorary Member. Only Professional Member Class I has Florida licensed opticians as members. Any member of Petitioner POF may terminate membership upon 60 days written notice to the executive director. Members of POF who fail to pay dues and other obligations within 60 days are removed from the membership rolls. It is impossible to determine the number of members of Petitioner POF, since the membership roster can change daily, based upon resignations and terminations. Petitioner POF did not introduce its most current or any membership roll designating the members by their appropriate membership class. The 1993-94 directory and desk guide of Petitioner POF lists the members of Petitioner POF followed by a number designation in parentheses. The number designation (1), which does not indicate only Professional Member Class I membership, as defined by the Bylaws of the association, represents members who are not licensed in Florida as opticians, as well as some members who are licensed in Florida as opticians. It is impossible to determine how many members besides Riddlebaugh and Richard W. Williams are licensed in Florida as opticians, although a substantial number of the total membership are Florida licensed opticians. No preponderant evidence was offered to show that the membership of Petitioner POF was substantially affected by the challenged rule. During the six years the rule has been in effect, Petitioner POF did not gather any information to show how or if the challenged rule affected its membership even though it had challenged the rule when first promulgated, later withdrawing the challenge. The number of licensed Florida opticians has increased during the entire six-year period the challenged rule has been in effect. Petitioner Riddlebaugh is a Florida licensed optician who was licensed in 1987. He closed his optical business "Spectacles" in February 1994. He closed that business because of generally declining economic conditions in Volusia County, Florida, where he practiced, due in large part to the competitive effects on his business in that vicinity posed by physicians (ophthalmologists), who, in addition to practicing as ophthalmologists, can also practice opticianry. Additional competition was posed by optometrists, other opticians, and large optical purveying firms, such as Opti-World, Pearle Vision Express, J.C. Penney Company, Inc., Lens Crafters, Inc., and Sears Optical. Petitioner Riddlebaugh was able to obtain employment at Omni Optical from February 1989 to February 1990 during the time the challenged rule was in effect, it having taken effect in 1988. He was able to open his business in April 1990 and operate it for four years during the time the rule was in effect. Ophthalmologists and optometrists are allowed under their practice acts to employ non-licensed personnel, who can perform optician-type functions and duties under appropriate supervision, delineated in those practice acts. This poses competition to opticians situated such as Petitioner Riddlebaugh, wholly apart from perceived and purported competitive effects posed by the subject rule under challenge. Petitioners POF and Riddlebaugh simply failed to demonstrate that any deleterious competitive effects imposed on Petitioner Riddlebaugh's business, or the business of any members of Petitioner POF, were occasioned by the operative effects of the rule under challenge. Although Petitioner Riddlebaugh testified that one of the primary factors for closing his business was the competition posed by the effect of the rule, that testimony is not deemed preponderant nor credible as evidence, since Petitioner Riddlebaugh had previously given testimony by deposition that another set of rules promulgated by the Board, unrelated to the challenged rule, was the only reason for closing his business. It appears, however, that the real reason for the closing of his business was due to the combined effects of competition from various optical establishments and other optometric and ophthalmologic professionals, as well as a general economic decline in Volusia County, Florida, in the early 1990's when he was attempting to operate his business and ultimately closed it. Unlicensed persons may work for opticians doing all functions within the definition of opticianry, under appropriate supervision, as delineated in the pertinent provisions of Chapter 484, Florida Statutes, and the opticianry practice rules promulgated thereunder. Unlicensed persons working for opticians can perform such functions as selection of frames and transfer of optical devices without the optician being on the premises. Unlicensed persons can also work for ophthalmologists, performing opticianry duties. In October 1986, the Respondent, with a view toward promulgating this rule, requested that the Board of Opticianry define "fitting, adjusting, and dispensing". This was an effort by the Respondent to avoid conflicting with the legally-defined practice requirements for opticianry. The Board of Opticianry was aware of the rule promulgation effort by the Respondent, however, it never responded to the request. Because it never obtained any definitional information from the Board of Opticianry, the Respondent elected to delete the terms "dispensing" and "measuring" from its proposed rule at that time. The words "delivery of eyeglasses" were inserted. Optician, Richard E. Williams, who testified at the hearing, defined "dispensing" as being the adjustments necessary to make certain that eyeglasses properly fit a patient. Mr. Williams defined "fitting" as determining whether the glasses were set properly on an individual's face. He also defined "fitting" as making certain that pupillary distance was accurate and defined "dispensing" as fitting and adjusting. Petitioner Riddlebaugh defined "fitting" as making certain that the frames of eyeglasses were properly adjusted to the patient. According to the preponderant evidence of record, the "adjustment of frames" is not the practice of opticianry. The purpose of adjusting frames is simply to get them to set comfortably and properly on a patient's face. Adjusting may also be used to align lenses properly within the frame. The "delivery of eyeglasses" is not the practice of opticianry either, nor is the "selection of frames". Unlicensed persons can also work for ophthalmologists, performing opticianry. Petitioner Riddlebaugh testified that the challenged rule affects the integrity of his opticianry license and the viability of his practice because it allows unlicensed persons to perform opticianry functions when working for an optometrist or an ophthalmologist. His testimony is not preponderant or credible, however, since there is no limit to the number of unlicensed persons that opticians themselves can employ to perform opticianry functions under appropriate supervision, just as optometrists and ophthalmologists may employ such unlicensed personnel to perform opticianry under the appropriate supervision, as delineated in their practice act and rules. There is no meaningful distinction between the competitive effects of unlicensed persons working for an optician and those working for ophthalmologists and optometrists. Richard E. Williams, a licensed optician, testified that he had to close his office in Panama City Beach, Florida, because a "group of doctors" opened an office in competition with him. On some days, their office was only staffed by unlicensed persons. He did not indicate in his testimony whether the "group of doctors" were ophthalmologists or optometrists. His testimony also described his practice on Panama City Beach dwindling because of the effects of ophthalmologists, regulated by Chapter 458, Florida Statutes, and the rules promulgated thereunder, who were in practice in the Panama City area. The Petitioners adduced evidence of preparation and dispensing of eyeglasses by unlicensed personnel in an optometry practice and establishment, done under general, rather than direct, supervision, which were more than merely ministerial in nature. Tasks which were performed under purported authority of the challenged rule, that were more than ministerial in nature, and constituted the practice of opticianry by an unlicensed person, were shown by the testimony of Deborah L. Metz-Andrews. Ms. Andrews is not licensed in either opticianry, optometry, or ophthalmology. She was employed by the Newberry Eye Clinic in Chipley, Florida, from January 1991 to August 1992. That establishment is an optometric practice owned and operated by an optometrist and which has an optical department. It has satellite offices in Chipley, Port St. Joe, Panama City Beach, and Panama City, Florida. While employed at Newberry, Ms. Andrews was referred to as "the optician" by the optometrist, but her job title was really "optical technician". During her employment with Newberry, she neutralized glasses with the use of a lensometer, to determine the prescription on the existing glasses worn by a patient. She took prescriptions and determined what the prescription was, what kind of frame would facilitate that prescription, and performed pupillary distance measurements. She determined if a patient needed trifocals or bifocals and did all of the required measurements. She also was responsible for ordering the eyeglasses from the laboratory in Panama City. Once the glasses were made and returned to Chipley, she would place them in the lensometer to check them, and the patient would be notified that the glasses were ready to be picked up. When the patient came in to pick up the glasses, she typically performed the following duties: She fit the glasses on the patient, double- checking the segment height, if they were bifocals; fit the eyeglasses to the nose; adjusted the frame; and made sure that the pantoscopic tilt was correct. She would inquire of the patient's ability to see and if satisfied, the patient would take the eyeglass case, go to a window, pay the bill, and leave. She performed these duties, some of which fall within the practice of opticianry, without the optometrist being on the premises in direct supervision. She stated that she did not feel confident doing some of the types of duties and tasks she was performing and received no guidance from the optometrist. Mr. Williams was accepted as an expert in the practice of opticianry (excluding the field of contact lenses). He opined that the duties being performed by Ms. Andrews, purportedly pursuant to the challenged rule, constitute the practice of opticianry. Dr. John McClane is a licensed Florida optometrist. Dr. McClane's Florida office employs 10 or 11 employees, only one of whom is a licensed optician. The unlicensed personnel in his office adjust frames and perform neutralization of lenses without the lenses having been checked by a licensed optometrist before final delivery to the patient. In operating a lensometer in the neutralization process, unlicensed personnel in Dr. McClane's office also read prisms and transpose prescriptions. The glasses are not always checked by either the licensed optician or the licensed optometrist prior to final delivery to the patient by the unlicensed personnel. According to Dr. McClane's understanding of the term "ministerial", as used in the rule, an unlicensed person can perform any tasks that an optometrist orders and determines, if it is appropriate for patient care. Any delegated task, by his understanding, may be performed under general, rather than direct, supervision. He believes that "direct supervision" is a situation where the optometrist is on the premises directly supervising the work of the unlicensed person. Even if the duties, or some of them, performed by unlicensed personnel at the Newberry and McClane establishments constitute the practice of opticianry by unlicensed personnel, under the general, rather than direct, supervision of optometrists, the testimony of Ms. Andrews and Dr. McClane does not definitively indicate which of the purported opticianry duties Ms. Andrews and other unlicensed personnel performed were actually done with the optometrist away from the premises and not in direct supervision. Further, even if such unlicensed personnel were doing some task which constituted the practice of opticianry, without the direct supervision of an optometrist, there was no competent, credible evidence to show that such practices, under the aegis of the challenged rule, are so widespread or common in practice as to indicate that the language and terminology embodied in the rule is fraught with vagueness so as to cause frequent, recurring misunderstandings by optometrists in conducting their practices with the use of unlicensed personnel. Rather, these two examples offered by the Petitioners may raise simply an issue of the application of the subject rule and a question as to uniformity of its enforcement. In 1986, the legislature enacted a substantial amendment to Section 463.009, Florida Statutes, regarding supportive personnel, by allowing such unlicensed personnel to perform functions for an optometrist under either general or direct supervision. The definition of direct supervision was changed and a definition of general supervision was added in Section 463.002(6)&(7), Florida Statutes. See Chapter 86-288, Laws of Florida. Pursuant to the 1986 amendments, the Respondent began rule-making at its August 21, 1986 annual meeting and rule workshop. The resulting Rule 21Q-3.015, Florida Administrative Code, at paragraph (3), listed the tasks which unlicensed personnel could perform under general supervision as dispensing, selection of frames, measuring and adjusting eyeglasses, and instruction in the insertion, removal and care of contact lenses. On October 3, 1986, Petitioner POF filed a rule challenge to the proposed rule alleging, inter alia, that the rule allowed unlicensed persons to practice opticianry under general supervision, thus, purportedly constituting a departure from the authorizing statute. After the filing of the rule challenge, at a public hearing on October 15, 1986, the Respondent withdrew the proposed rule. During that October public hearing, a member of the Respondent was requested by the Board Chairman to attend the Opticianry Board's rules committee meeting the following day, on October 16, 1986, and to request the opticianry rule committee to develop a rule to provide a definition of "fit, adapt, adjust, and dispense". During the October 16, 1986 meeting of the rules committee of the Board of Opticianry, a member of the Board, Ms. Card, reported that the Respondent was waiting for the Board of Opticianry to define "fitting and adjusting" before the Respondent continued with its rule-making regarding support personnel. She also stated that the Respondent had a meeting scheduled for December 19, 1986. The Board of Opticianry met on November 20, 1986 and approved the minutes of the rules committee meeting of October 16, 1986, but took no action regarding promulgating rules defining the terms which the Respondent requested it to define, even though the Board of Opticianry took extensive action on rule-making on other subjects. Thereafter, at the January 22, 1987 meeting of the Respondent, after receiving no information from the Board of Opticianry regarding the definitions requested, the Respondent approved an amended version of Rule 21Q-3.015, Florida Administrative Code, changing the list of tasks in paragraph (3) to "delivery of eyeglasses, selection of frames, adjustment of frames, and instruction in insertion and removal and care of contact lenses". The tasks of "dispensing and measuring and adjusting eyeglasses", contained in the prior version of the rule, were deleted. A meeting and public hearing was again held on April 10, 1987, during which the proposed rule was addressed; and it was reported that Petitioner POF had again filed a rule challenge to Rule 21Q-3.015, Florida Administrative Code. The proposed rule was then again withdrawn. Workshops by the Respondent were thereafter held in November 1987 and on February 12, 1988 concerning Rule 21Q-3.015, Florida Administrative Code, and the rule was noticed for promulgation on April 29, 1988. Rule challenges were thereafter filed by Petitioner POF and Jack Eckerd Corporation. The Respondent then met on August 5, 1988 and changed the word "employee" to "nonlicensed, supportive personnel" in paragraph (4) of the proposed rule. The two rule challenges were then voluntarily dismissed by those petitioners, and the rule was adopted and became effective on October 23, 1988 and has been in effect since. The Board of Opticianry was well aware of the Respondent's efforts to promulgate the rule on support personnel. The Board of Opticianry never promulgated rules defining "fitting, adjusting, and dispensing" of optical devices, despite the Respondent's request. During the time period that the Respondent was considering the rule in its present form, the members of the Board of Opticianry never agreed on a definition of "dispensing".
Findings Of Fact Upon consideration of the oral and documentary evidence produced at hearing, the following relevant facts are found: At all times pertinent to this proceeding, Respondent was licensed to practice optometry by the State of Florida, Board of Optometry. On or about May 8, 1980, Respondent entered into a lease agreement with Cole National Corporation to lease 154 square feet of space as an optometric office in the location of the retail store of Sears, Roebuck and Co. at 1420 Northwest 23rd Boulevard, Gainesville, Florida. Respondent practiced in that location approximately two days per week until on or about October 1, 1982. Respondent's optometric office was located in a Sears, Roebuck retail store next door to the "Sears Optical Department," in which eyeglasses and contact lenses and other optical merchandise could be purchased. Respondent's office was identified by a large sign overhead reading "Optometrist," in the same print as the sign above the Sears Optical Department. In addition, a small plaque on the door leading into Respondent's examination room read "Dr. L. A. Schwartz, Optometrist." During the time he practiced at the 1420 Northwest 23rd Boulevard location of Sears, appointments could be made with Respondent by calling the Sears Optical Department telephone number. The phone was answered "Sears Contact and Lenses Center" by employees of Cole National Corporation, which controlled and owned the Sears Optical Department. The Cole employees were not paid for this service by Respondent. Respondent had no telephone listing in either the yellow or white pages of the Gainesville, Florida, telephone directory between May, 1980, and July 12, 1982, the date of the Administrative Complaint. The Cole National Corporation employees maintained Respondent's scheduling book and made tentative appointments for his prospective patients, although Respondent customarily would call the patient back to confirm the date and time of the appointment prior to the time of the scheduled visit. Respondent's hours of service and fee information were also given to prospective optometric patients by Cole National personnel. Respondent accepted the Sears, Roebuck and Co. credit card as payment for optometric services. Sears then billed the patients directly and Respondent received monies billed to the patients in full through Sears on a monthly basis, regardless of whether the patient paid the bill fully monthly or carried the debt over to succeeding months. Respondent, pursuant to his lease with Cole National Corporation, was precluded from selling optometric supplies to his patients. Rather, Respondent would in all cases issue prescriptions for optometric goods and supplies, such as glasses and contact lenses, which in most cases were placed on a prescription blank bearing his name. At times, however, when Respondent did not have prescription forms available bearing his own name, he would use such a form from the Sears Optical Department, crossing out all references to Sears and inserting his name and address in place of that of Sears Optical Department. On or about February 22, 1982, the Sears Optical Department mailed letters to various consumers in the Gainesville area. These letters, in part, advised that Respondent, an independent doctor of optometry, was available for eye examinations in his private office in the Sears building and that he could be reached for appointments at a telephone number which was listed in the telephone directory for Sears Optical Department. The evidence in this cause establishes that Respondent's office location at all times material hereto was maintained separately from both Sears, Roebuck and Co. and the Sears Optical Department. In addition, the record in this cause fails to in any way establish that Respondent ever held himself out as an employee or representative of either Sears, Roebuck and Co. or the Sears Optical Department. In fact, the record clearly establishes that both Respondent and employees of the Sears Optical Department always indicated to the consuming public that Respondent was an independent optometric practitioner.
The Issue The issue for consideration in this case is whether Respondent's license as an optometrist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Optometry, was responsible for the licensing of optometrists and the regulation of the practice of optometry in this state. Respondent was licensed as an optometrist in Florida, practicing under license number OP0001451, originally issued on September 21, 1978. Some time prior to or during 1987, Respondent, Dr. Brian L. Weber, dissatisfied with what he found to be the practice of large optical dispensers with regard to pressuring optometrists to prescribe lenses, decided to open a facility where patients needing glasses could receive an eye examination from a licensed optometrist and also, if the patient so desired, obtain the eye wear prescribed. Consistent with what he perceived to be the rules of the Board of Optometry at that time, Dr. Weber entered into a business venture with Mr. Record, a licensed optician, through which a patient could do just that. In 1990, Dr. Weber and Mr. Record changed the name of the business to 29/49 Optical, Inc., and as of March 2, 1990, operated five separate stores under that name. Dr. Weber and Mr. Record incorporated the company within which each ultimately owned 50 percent of the stock of the corporation. Dr. Weber provided the funds to start the business, and Mr. Record, the "sweat equity." Mr. Record was made president of the company because he had the experience in opticianry and was responsible for operations. Weber was the "money man," and provided the overall business goals and strategy. Once the corporation was established and the initial filing was completed, Mr. Record was responsible for recurring filings as a matter of course. The firm, 29/49 Optical, Inc., was in the business of providing optician services. The leases for the stores were taken out in the name of the company which, in essence, provided a "turn-key" office to a licensed optometrist who was one of those individuals associated with Respondent in the optometry practice known as Brian L. Weber and Associates. Each of the optometrists in the association was an independent contractor, associated in practice with Respondent. None of them were employees of 29/49 Optical, Inc. In each of the offices of 29/49 Optical, Inc., was a display area where glass frames were displayed and fitted, a waiting room used both by customers of the optical shop and patients of the resident optometrist, a storage room, and, for the exclusive use of an optometrist, an examining room equipped with those items and supplies necessary for the accomplishment of eye examinations. As was the custom in the profession at the time, this office, owned or leased by 29/49 Optical, Inc., was furnished to the optometrist at little or no cost. Though it was hoped that the optometry patients would choose to have their prescriptions for glasses or contact lenses filled at 29/49 Optical, Inc., they were under no obligation to do so, and many did not. Patients seen by an optometrist in the 29/49 Optical, Inc. offices were billed by the optometrist for the optometry services and by the optical company for the cost of any glasses or contact lenses purchased. The two charges were paid separately, the payments placed in separate accounts. Payments for eye examinations by an optometrist were deposited to the account of Brian L. Weber, optometrist. Payments for glasses or lenses were deposited to the accounts of 29/49 Optical, Inc. The funds were neither mixed nor co-mingled, and funds placed in the account of Brian L. Weber were not used to pay the expenses of the 29/49 Optical, Inc. stores. Each optometrist maintained his or her own patient records which were stored in a filing cabinet maintained for that purpose separate and apart from the files relating to the operation of the 29/49 Optical, Inc. stores. Only the optometrists made entries to those records. Since the optometrists who manned the offices in the 29/49 Optical, Inc., stores were independent contractors, within basic guidelines as to routine procedures and office hours, they were free to work such hours as they chose and to charge what they believed to be appropriate fees for other than routine procedures. They were paid with funds drawn from the account of Brian L. Weber, into which the patient fees for optometry services were deposited. In addition to the associates who practiced at the individual shops, Dr. Weber also practiced at each and all of the shops periodically. Mr. Record was paid from the checking account maintained by 29/49 Optical, Inc., on which account either Record or the Respondent could write checks. Dr. Weber is quick to admit that the advertisement for 29/49 Optical, Inc., which appeared in the March 1, 1990, edition of the St. Petersburg Times is a poorly worded advertisement. So much of the advertisement which implies a total price to be paid to 29/49 which includes examination and glasses is admittedly inappropriate, and when he saw the proof prior to publication, he claims to have made appropriate changes which would have corrected the deficiencies. However, the corrections dictated by Respondent were not made, and the inappropriate advertisement was published. His immediate complaint to the newspaper after the first publication date resulted in an immediate correction. Respondent claims that when the disciplinary action was initiated against him in 1992, he immediately contacted the newspaper and requested a letter which would clarify the situation. He did not tell the paper what to say, and the subsequent letter from the paper relates to a failure to have his name appear in the March 1, 1990, advertisement. This is not the defect in the advertisement of which the Board complains. Dr. Liane, a Board certified optometric physician, a former Chairman of the Board of Optometry and now an expert for and consultant to the Board, reviewed the case file in this matter for the Board, along with the transcripts of other cases relating to Dr. Weber. None of the other matters was based on disciplinary action. To his recollection, the Board's rule on corporate practice was promulgated in 1986, at the time he was a member of the Board. At that time, the Board conducted numerous workshops around the state to advice practitioners of the standard of practice in that regard. Dr. Liane was also on the Board's legislative committee when Chapter 463, Florida Statutes, was enacted. The Board of Optometry was concerned with the protection of the public from the danger of allowing opticians or unlicensed entities to have input into whether lenses were needed. The Board, and the legislature, wanted to allow optometrists to practice with other licensed health care practitioners, but not with unlicensed opticians. After the legislation was passed, the Board promulgated its Rule 21O-3.008, which outlines factors which must be shown in order to prove corporate practice. One of the prohibitions in the rule relates to any practice or pronouncement which "implies" that the corporate or unlicensed entity is providing professional services. In the instant case, Dr. Liane is of the opinion that the original advertisement in question implies that 29/49 Optical, Inc., is offering a complete eye examination. As was noted previously, Respondent agrees, and it is so found. Having considered all the evidence available to him, including the advertisement of March 2, 1990, and the assumption of the lease arrangements existing prior and up to 1990, Dr. Liane concluded that Respondent was involved in an unauthorized corporate practice. While a side-by side practice between optometrists and opticians is common and approved, it may not be within a corporate practice by the same individuals who are in business together.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Optometry enter a Final Order dismissing Counts I and II of the Administrative Complaint; finding him guilty of Count III thereof and imposing an administrative fine of $250.00. DONE AND ENTERED this 3rd day of November, 1997, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1997. COPIES FURNISHED: Alexandria E. Walters, Esquire William C. Childers, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Angela T. Hall Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Grover Freeman, Esquire 201 East Kennedy Boulevard Suite 1950 Tampa, Florida 33602 Eric G. Walker Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Pete Peterson General Counsel Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700
