The Issue The issue presented is whether Petitioner is entitled to be reimbursed for his attorney's fees and costs incurred in defending the underlying proceeding.
Findings Of Fact On July 2, 1992, the Department of Professional Regulation filed an Administrative Complaint against Petitioner, alleging that Petitioner had used the letters "D.D.S." following his name on letterhead and had testified as an expert in the field of dentistry in a case involving a Florida licensed dentist. The Administrative Complaint alleged that such conduct by Petitioner constituted the unlicensed practice of dentistry. Petitioner requested a formal hearing regarding those allegations. That cause was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceeding and was assigned DOAH Case No. 92-4570. On January 27, 1993, a Recommended Order was entered in DOAH Case No. 92-4570, holding that Petitioner's use of the letters "D.D.S." did not represent that he was licensed to practice dentistry in the State of Florida, but merely reflected Petitioner's educational background, and that Petitioner was not required by the Florida Evidence Code or any other law to be licensed in the State of Florida in order to testify as an expert in an administrative or judicial proceeding. The Recommended Order concluded that Petitioner should be found not guilty of the allegations in the Administrative Complaint. The Department of Professional Regulation entered a Final Order rejecting findings of fact and conclusions of law in that Recommended Order and found Petitioner guilty of the unauthorized practice of dentistry. Petitioner appealed that Final Order to the District Court of Appeal of Florida, Third District. The appellate court reversed the Department's Final Order and remanded the cause for entry of an order consistent with the Recommended Order. The attorney for the Department who prosecuted the underlying proceeding reviewed the investigative file and then discussed his recommendation with his supervisor. He recommended that Petitioner be prosecuted criminally, not administratively, because he believed that Petitioner was committing a criminal offense and not an administrative violation by holding himself out to be a dentist licensed in the State of Florida. No evidence was offered to show who made the decision to initiate the underlying proceeding on behalf of the Department, and, therefore, no evidence was offered to show what was considered by that person or persons when the decision was made to initiate the underlying proceeding against Petitioner. There is, accordingly, no evidence to show the factual basis for the Department's determination to issue an Administrative Complaint against Petitioner. No evidence was offered to show that anyone on behalf of the Department determined that there was a legal basis for initiating a proceeding against Petitioner for disclosing his educational credentials on letterhead or testifying as an expert witness without being licensed in the state where that testimony was given. In 1990 (the year during which Petitioner testified as an expert witness) and in 1991 (the year during which Petitioner wrote an opinion on the letterhead which concerned the Department), Petitioner performed his services as a legal-dental consultant as a sole proprietor of an unincorporated business, under his own name, although some other services were performed through Dental-Legal Advisors, Inc. Petitioner's principal office was located in Florida, he was domiciled in Florida, he had no employees, and Petitioner's net worth was less than $2,000,000, including both personal and business investments. The Department was not substantially justified in initiating the underlying proceeding against Petitioner. Petitioner qualified as a small business party when the underlying proceeding was brought against him. Petitioner is entitled to recover $15,000 from the Department for his costs and attorney's fees in defending the underlying proceeding.
Findings Of Fact William L. McCallister was the Respondent in Dept. of State, Division of Licensing vs. William L. McCallister, DOAH Case No. 86-1480. The Department of State, Division of Licensing, initiated Case No. 86- 1480. In that action, the Department of State sought to revoke the detection of deception examiner's license of William L. McCallister. It also entered an emergency order of suspension. William L. McCallister was the prevailing party in DOAH Case No. 86- 1480. The total value of reasonable attorney's fees and costs in this proceeding is $15,000. The Department of State was not a nominal party in these proceedings. During 1985, William L. McCallister was the sole owner of McCallister Polygraph Service, Inc. During 1985, he was employed by the Polk County Sheriff's office as a sworn officer serving as Staff Polygraphist. When he conducted the polygraph examinations of the three complaining witnesses in DOAH Case No. 86-1480, he did so in fulfillment of his duties as Staff Polygraphist. McCallister Polygraph Service, Inc. was not a party in DOAH Case No. 86-1480. Prior to initiating proceedings in DOAH Case No. 86-1480, the Department of State conducted an adequate factual investigation of the allegations by Phyllis Langdale, Rose Giannotti, and Joanne Meyer. The evidence presented at final hearing regarding standards applied by the Department to detection of deception examiners in disciplinary proceedings describes the standards in effect at the time the complaint was filed.
The Issue The issues remaining to be resolved in this proceeding concern whether the above-named Petitioner is a "small business party" as described in Section 57.111(3)(d)1.a. b. and c., Florida Statutes (2007); whether the action of the above-named Agency in the underlying case was substantially justified in law and fact and whether an award of attorney's fees and costs would be unjust.
Findings Of Fact In the instant case the Respondent Agency (Department) does not dispute the amount of attorney's fees and costs sought in this proceeding and does not contest that the Petitioner is a prevailing party. Moreover, the Department admits that it was a real party in interest in the underlying proceeding involving the Administrative Complaint and was not merely a nominal party. The parties also waived an evidentiary hearing in this attorney fee proceeding. The parties, rather, submitted memoranda and affidavits in support of their respective positions. The present Petition for Attorney's Fees and Costs is based upon the above-referenced Administrative Complaint action brought against Wittmer and JR. Wittmer's Remodeling, Inc., by the Department, which came before the Division of Administrative Hearings by a request for formal hearing filed by Wittmer. Prior to filing that Administrative Complaint the Department performed an investigation related to the Complaint which had been filed by Kenneth Hatin of Palm Coast, Florida, against Wittmer. The Complaint by Hatin alleged that on August 10, 2005, he and Wittmer had entered into a contract for the building of an addition to the complainant's home in Palm Coast, Florida. Hatin had alleged and testified at hearing that Wittmer was unlicensed to perform the work under the contract and had been paid in excess of $30,000.00 for the project. Hatin maintained that Wittmer had abandoned the job before completion and that he had to hire another person or entity to complete the work, at further expense. The Department considered the results of its investigation, in the form of an investigative report, and considered the investigative file it had developed concerning Hatin's complaint. This included the original contract on JR. Wittmer's Remodeling, Inc.'s, stationary, signed by Wittmer, as well as copies of original checks amounting to approximately $30,000.00 written to Wittmer and/or his company or business. It also considered a copy of the local licensing records concerning Wittmer, revealing an expired occupational license, as well as records of the Department showing that Wittmer was unlicensed as any sort of contractor in the State of Florida. The Department also considered various invoices and receipts regarding the work contracted by complainant Hatin with another person or entity, to finish the job purportedly abandoned by Wittmer. During the investigation, the complainant and the complainant's fiancée were interviewed and made no mention of any familial relationship or friendship relationship between Wittmer and the complainant and his family members at the time of the investigation. Wittmer himself was interviewed by the investigator and did not mention any familial or personal relationship he had with the complainant or the complainant's family. The familial or friendship relationship between Wittmer and the complainant and the complainant's family only arose through the evidence adduced at the hearing. That evidence became a significant portion of the reason for the Findings of Fact and Conclusions which resulted in the Complaint against Wittmer being ultimately dismissed. JR. Wittmer's Remodeling, Inc., was dissolved by the State of Florida, Department of State, Division of Corporations on September 16, 2005, for failure to file required annual reports or Uniform Business Report. This fact was confirmed by Wittmer's affidavit submitted on January 18, 2008, in this proceeding, attesting that his corporation was dissolved and that it ceased business due to "financial hardship of the business." As a result of the hearing it was determined in the Recommended Order (with Findings of Fact adopted in the Final Order) that Wittmer performed work on the subject construction project without making any profit. It was performed, in essence, as a cooperative project between family and friends of Wittmer, in the sense that Wittmer's fiancée was related to the complaining witness's family and/or they were close friends. The circumstances established by preponderant evidence did not show that Wittmer was actually performing contracting, as defined in the above-referenced statutory authority underlying the charges in the Administrative Complaint. It was also determined, based upon the preponderant evidence at that hearing, that Wittmer made no profit on the project after paying all the subcontractors. The Department, in essence, adopted the Recommended Order of the Administrative Law Judge (with non-dispositive modifications of several Conclusions of Law) and entered a Final Order dismissing the charges in the Administrative Complaint. The subject Petition for Attorney's Fees and Costs was thereafter filed and this case ensued. The Department proceeded against Wittmer by naming as Respondents, in the underlying, case JR Wittmer's Remodeling, Inc., which corporation had actually already been dissolved at the time of the filing of the Administrative Complaint. It also named in that Complaint, and proceeded against, Willis Wittmer, Jr., personally. The Petitioners herein have established that Wittmer never had more than 25 full-time employees or a net worth in excess of two million dollars, whether functioning as JR Wittmer, Jr., an individual or as JR Wittmer's Remodeling, Inc. The Petitioner has also established that the construction contract at issue in the underlying case was entered into by the Petitioner herein under the name "JR Wittmer's Remodeling" and not "JR Wittmer's Remodeling, Inc." Moreover, that contact was not signed by Mr. Wittmer as president of JR Wittmer Remodeling, Inc. Aside from the fact that the Department filed the original Administrative Complaint against JR Wittmer Remodeling, Inc., it also named JR Wittmer individually as a Respondent in that Administrative Complaint, so he had defend against the action personally, regardless of the question of whether the corporation was in legal existence at the time of the filing of the Administrative Complaint. The evidence, as referenced above, shows that he met the requirements of having less than 25 full- time employees and a net worth of less than two million dollars. Thus, the totality of the evidence shows that Mr. Wittmer has standing, as the sole proprietor of an unincorporated business, to pursue the subject attorney's fee claim as a sole proprietor, even if not as a corporation or the president of the originally named, but now dissolved corporation. The Petitioner contends that the Department should have recognized the lack of a factual basis for the Administrative Complaint and, before finding probable cause, should have been able to determine that the construction arrangement between Wittmer and Hatin did not meet the legal definition of contracting or contracting services based upon the familial/friendship relationship of the protagonists. The Department, however, conducted a reasonable investigation and has been shown to have had a reasonable basis to determine, before hearing, that contracting and contracting services had been, in a legal sense, performed by Wittmer, based upon the results of its investigation (interviews, etc.). This is especially the case since Wittmer himself, when interviewed, had not revealed such exculpatory facts to the Department.
The Issue Whether Respondent Hagen violated Chapter 484, Florida Statutes, and Rule 21P-4.01, Florida Administrative Code, by allowing his license to be used by an unlicensed person to engage in the occupation of dispensing optician without his presence and direct supervision. Whether the license of Respondent Hagen should be revoked, annulled, withdrawn or suspended for violation of Chapter 484, Florida Statutes, and Rule 21P-4.01, Florida Administrative Code.
Findings Of Fact Respondent Wayne L. Hagen, the licensed optician in the Pearl Vision Center, Tyson Square Mall, St. Petersburg, Florida, holds License No. 180, a license in good standing, issued by the Florida Board of Dispensing Opticians pursuant to Chapter 484, Florida Statutes. The Board in formal meeting on March 28, 1975, directed Mr. Allen R. Smith, Jr., a coordinator for the Department of Professional and Occupational Regulations, Division of Occupations, to file the subject Administrative Complaint against Respondent Hagen. The charge in the Complaint is the violation of Rule 21P-4.01, Florida Administrative Code, in that an unlicensed person engaged in "dispensing optical goods while Mr. Hagen was absence for the premises". Respondent received a copy of the Administrative Complaint, Explanation and Election of Rights containing notice that said Complaint was mailed the 29th day of April, 1975. Respondent had no notice by certified mail or actual notice of these proceedings or an opportunity to show that he had complied with all lawful requirement for the retention of his license, prior to the receipt of the Administrative Complaint, Explanation and Election of Rights. Petitioner admitted that no notice prior to the mailing of the Administrative Complaint, Explanation and Election of Rights was sent to Respondent giving notice of the facts or conduct which are delineated in the Administrative Complaint, Explanation and Election of Rights. Petitioner admitted that prior to the initiation of the Administrative Procedures Act in former proceedings the Board had given notice of receipt of Complaints against licensees. Respondent Hagen had posted in the office of Pearl Vision Center signs indicating that no fittings or adjustments would be made while Respondent was off duty. The unlicensed employee of Respondent, Lynda Vickers, performed acts in violation of the Rules and Regulations of the Board without the knowledge or permission of Respondent and was discharged prior to the filing of the Complaint against Respondent. Respondent did not allow his license to be used by an unlicensed person to engage in the trade or occupation of dispensing optician without his presense and direct supervision. Respondent through his attorney moved to dismiss the Complaint on the grounds that the Board of Dispensing Opticians failed to give him prior notice and and an opportunity to rectify in accordance with the requirements of the licensing statute, Section 120.60(4), Florida Statutes.
The Issue The issues to be resolved in this proceeding concern whether the Respondent should certify the Petitioner as a minority business enterprise (MBE) and, specifically, whether the corporate Petitioner is an affiliate of a non-minority-owned business for purposes of Rule 38A-20.005(4)(b), Florida Administrative Code, and whether the Petitioner's business is performing a "useful business function" in accordance with Rule 38A-20.007, Florida Administrative Code.
Findings Of Fact The Petitioner is engaged in the business of operating an out-patient medical diagnostic imaging center. The Petitioner is a closely-held Florida corporation. It was organized in 1996. All of the Petitioner's stock is owned by Sherrin G. Sowers and Beverly S. King. Each of them own fifty percent of the corporation. Both Ms. Sowers and Ms. King are minority persons within the meaning of Section 288.703(3), Florida Statutes, and are hereinafter described as the "minority owners." The Respondent is an agency of the State of Florida responsible for granting or denying applications for minority business enterprise (MBE) certification in accordance with Section 288.703(1), Florida Statutes, and Rules 60A-2.001 and 60A-2.005, Florida Administrative Code. The minority owners of the corporation, Ms. Sowers and Ms. King, are majority shareholders in the corporation owning at least fifty-one percent of the Petitioner's stock within the meaning of Rule 60A-2.005(2)1, Florida Administrative Code. The minority owners exercise sufficient management and technical responsibilities and capabilities to control the operation of the business. Ms. Sowers is the President and Administrator. She has a broad background in the medical administrative field and is primarily responsible for corporate operations. The control exercised by these two owners is real, substantial and continuing. Ms. Sowers oversees and controls corporate purchasing. She is also responsible for hiring and firing employees and oversees the financial affairs of the corporation. She is a college graduate who worked as a genetic counselor and has served as the administrator of the Division of Genetics of the Bowman Gray School of Medicine of Wake Forest University. She handles all contract negotiations for the corporation and serves as administrator of the entire facility. The corporation is an independently owned and operated business concern. Both Ms. Sowers and Ms. King are the sole directors and shareholders of the corporation. No other person has any interest in the corporate profits. The corporation is not an affiliate of a non-minority business. Although the corporation has a contract with South Baldwin Imaging Associates, this contract could as well be with another group if desired. The minority owners have no ownership interest in South Baldwin Imaging Associates. There are no common directors; there is no common management; there are no common employees; there is no common inventory and there is no co-owned equipment. Although two of the principals of South Baldwin Imaging Associates are the husbands of Ms. Sowers and Ms. King, the Petitioner has demonstrated that the two owners of the Petitioner corporation exercise sole financial and operational control and do not share profits with Dr. King and Dr. Sowers. Rather, they are physicians whose professional association, South Baldwin Imaging Associates, simply use the services of the Petitioner, The Imaging Center of Pensacola, Inc. Although the Respondent asserts that Dr. Sowers and Dr. King guaranteed the Petitioner's mortgage and line of credit, that does not indicate any affiliation nor any relinquishment of control by Ms. King and Ms. Sowers to them or to South Baldwin Imaging Associates. Rather, it was shown to be a requirement of the lending institution that in order for it to grant and underwrite a mortgage for the Petitioner corporation, both the owners of the corporation and their spouses had to undertake the mortgage-related debt and line of credit. This was necessary in order to render the bank secure in the event that one or both of the minority shareholders who own the Petitioner corporation should die or otherwise default on re-payment of the note subject to the mortgage or the line of credit. Thus the lender, by standard, generally-accepted legal and banking practice, would have a guarantor to look to for re-payment and would have both owners of any jointly owned collateral bound by the note and mortgage. The corporation serves thirty-five and forty patients a day referred by physicians for diagnostic imaging services. It performs various services, such as MRI's, CT scans and ultrasound imaging. The corporation thus serves a useful business function. It is not simply a "shell corporation" or a captive corporation of another affiliated business. The corporation itself is not required to have any licenses. No license is required for a corporate business to operate a free-standing, diagnostic imaging center. Rather, the technical personnel who operate the diagnostic imaging equipment such as CT scanners, MRI devices and the like, are required to have individual licenses as operators of such machines. The operation of a free-standing diagnostic center, such as the one involved in this proceeding, is not a trade or profession in itself which must be licensed or certified under Florida law.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Department of Labor and Employment Security granting the Petitioner's application for minority business enterprise certification. DONE AND ENTERED this 6th day of October, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1999. COPIES FURNISHED: Charles L. Hoffman, Jr., Esquire Shell, Fleming, Davis & Menge Ninth Floor Seville Tower 226 Palafox Place Pensacola, Florida 32501 Joseph L. Shields, Senior Attorney Department of Labor and Employment Security Division of Minority Business Advocacy and Assistance Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security Division of Minority Business Advocacy and Assistance Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Mary Hooks, Secretary Department of Labor and Employment Security Division of Minority Business Advocacy and Assistance Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189
The Issue The ultimate issue for determination in this proceeding is whether Respondent is entitled to fees and cost pursuant to the Florida Equal Access to Justice Act promulgated in Section 57.111, Florida Statutes.
Findings Of Fact Petitioner seeks reimbursement of fees and costs paid to defend an administrative proceeding conducted by former Hearing Officer Jane Hayman in Case Number 89-3883, Division of Administrative Hearings (the "Division"). Respondent sought fines against Kehoe on the Bay, a licensed Adult Congregate Living Facility, for four alleged deficiencies determined to have existed during a follow up visit to an annual survey of the facility. The four allegations of deficiencies were: (a) one smoke detector did not work; (b) the facility had failed to document that the fire alarm system had been tested; (c) the facility failed to document that the smoke detectors had been tested; and (d) seven doors did not close properly in violation of fire safety requirements. At the outset of the formal hearing, Respondent voluntarily dismissed the allegation concerning the faulty smoke detector and proceeded on the remaining three allegations. Respondent prevailed in the Final Order with respect to two of the three allegations at issue. The Final Order reversed findings of fact in the Recommended Order with respect to two of the allegations. The Final Order found that the facility had failed to document that the smoke detectors had been tested, and that seven of the doors did not close properly. The Final Order sustained the findings in the Recommended Order that the facility had documented the testing of the fire alarm system. No penalty was imposed in the Final Order due to mitigating circumstances proved at the formal hearing. Petitioner did not appeal the Final Order, and the time for seeking judicial review of the Final Order has expired. Petitioner's fees and costs are not allocated or apportioned among the four original allegations in Case Number 89-3883. The affidavit of counsel for Petitioner contains 39 entries for fees and costs totalling $4,729.49. Additional fees in the amount of $705 and costs in the amount of $225 were incurred by Petitioner through the date of the formal hearing in this proceeding. The total amount of fees and costs stipulated to by the parties is $5,002.50. There is no evidence, however, of what proportion of those fees and costs are attributable to either the single allegation in Case Number 89-3883 with respect to which Petitioner prevailed or the allegation voluntarily dismissed by Respondent. Petitioner has 30 employees at all the five facilities owned and operated by Petitioner in Florida. Petitioner owns and operates five facilities. Two are Dade County facilities, two are Department of Health and Rehabilitative Services facilities, and one is a veteran's administration facility. Petitioner has reported no profit on his facilities for seven years. The administrative proceeding brought by Respondent in Case Number 89- 3883 had a reasonable basis in law and fact at the time it was initiated by Respondent. That proceeding was based upon an annual survey and follow up visit conducted by one of Respondent's inspectors in the ordinary course of business, and the credibility assessment of the testimony of Respondent's inspector. Respondent's inspector had been inspecting similar facilities since 1986. Prior to that, the inspector inspected homes for the elderly in New York for approximately 23 years. The assessment of the inspector's testimony regarding the results of the annual survey and follow up visit was not so unclear that no general counsel would have prosecuted the case, and it was not unreasonable for Respondent to do so.
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".
The Issue Whether Petitioner is entitled to receive a passing score on the clinical portion of the August 1999 optometry licensure examination.
Findings Of Fact Petitioner, Sandra Farhady (Farhady), took the Florida optometry licensure examination in August 1999. The examination is divided into four portions: laws and rules, pharmacology, clinical, and certification. Prior to the administration of the test, each examiner is given grading standards, which are the requirements that must be met by a candidate to successfully demonstrate a particular procedure. All examiners receive standardization training, during which the examiners are trained to apply grading standards consistently. Examiners are instructed to wear their best corrective lenses. Examiners are instructed to grade each applicant independently of each other and are not permitted to confer with each other concerning a candidate's score. If both examiners agree, the candidate receives no credit or full credit, depending on whether they considered the candidate to have properly performed the procedure requested. If they disagree, the candidate is given partial credit on that procedure. The clinical portion of the examination requires the applicant to perform a number of tasks while two examiners evaluate the procedures. The examiners observe the procedure through a viewing system known as a teaching tube which is attached to the optometrist's equipment used by the candidate. Only one teaching tube is used so each examiner views the procedure separately. The candidate may ask the first examiner to grade his view and hold the view for the second examiner without having to refocus, or the candidate may perform the procedure for each examiner. Farhady passed the laws and rules, pharmacology, and certification portions of the examination, but failed the clinical portion of the examination with a score of 69.1. The passing score for the clinical examination is 75.0. Farhady challenged the score that she received on question 11a of the clinical examination. The question dealt with a procedure called retinoscopy, and the Department conceded at final hearing that Farhady should have been given credit for her answer. The additional points associated with question 11a raised Farhady's final score to 70.125. Farhady challenged the score she received for questions 33a, 33b, 33c, and 34a of the clinical examination. The questions relate to a procedure known as applanation tonometry, which is used to check a patient for glaucoma by measuring the intraocular pressure. This portion of the examination was worth ten points. Applanation tonometry is performed using a tonometer. The tonometers used by all the candidates for the August 1999 examination were part of a Zeiss slit lamp, which is also called a Zeiss microscope. It is an apparatus commonly used by optometrists within the scope of their practice. Each of the tonometers had a large fixation device mounted on the left side of the microscope. On the day of the clinical portion of the examination, the tonometer used by Farhady was in working order. No other candidate made a complaint concerning the working condition of the tonometer. The tonometer used by Farhady was not altered before, during, or after Farhady's session. There are time limits for section two of the clinical portion of the examination, which includes the applanation tonometry procedure. The Candidate Information Booklet for the Optometry Examination, which is provided to all candidates prior to the examination, provides: To protect the patient and to evaluate clinical competency, we will put time limits on the amount of time you will have to attempt each of the Section Two procedures. Timing will start after you receive the initial instructions for each procedure from the examiners and will continue until completion of the procedure or until time expires. . . . The time limit for the applanation tonometry procedure is six minutes. Farahady was unable to complete the applanation tonometry within the time allowed during the examination. She could not make the probe of the tonometer contact the patient's eye. During the procedure she advised the examiners, "Something is up with the tonometer." Farhady filled in a Candidate Comment Form and stated the following: Unable to acquire a view on tonometry. Mires were clear but fluorescent pattern not correct. It appeared like ground glass. I reapplied NAFI, but same view was seen so no grading was possible & I ran out of time. One of the examiner's noted the following on the Examiner's Comment Form: Pt. Ran out of time on tonometry--was apparently unable to see mires. Mires did not 'Flouress' well but was easily visible. Light source was close to 90 [degrees] away which may have contributed. Tonometry was repeated by this examiner without instilling new NaFl successfully by brightening the light source & bringing it to 60 [degrees]. Farhady contends that the position of the fixation device prevented her from being able complete the tonometry procedure. The fixation device can be easily moved to one side, pushed back, or folded up. If the fixation device was hindering Farhady in bringing the tonometer probe in contact with the patient's eye, Farhady could have quickly and easily moved the device out of her way. The position of the fixation device is not a defect in the tonometer equipment, which would have prevented a candidate from successfully performing applanation tonometry. Item 33a was the evaluation of whether the illumination source was a proper angle of 40 to 60 degrees. Item 33b evaluated whether the mires were the proper width. Item 33c evaluated whether the mires alignment was correct. Item 34 was the evaluation of whether the candidate obtained an accurate reading of the intraocular pressure. Farhady did not have the proper angle, did not demonstrate whether the mires were the proper width, did not align the mires correctly, and did not obtain a reading of intraocular pressure. Farhady challenged the score she received for questions 25a, 26a, 27a, 28a, 30a, and 32a, in section two of the clinical examination. These questions relate to a procedure referred to as biomicroscopy of the fundus. The scores given by the examiners for these questions were not identical. Examiner 199 did not give Farhady any points for questions 25a, 26a, 27a, 28a, and 32a. Examiner 199 noted that Farhady did not establish the proper focus with respect to these procedures. While examiner 231 did give Farhady points for procedure 25a, examiner 231 noted that Farhady had achieved only a borderline focus. Both examiners noted poor focus with respect to question 32a and did not give Farhady credit for that question. Question 25a required proper focus of nerve head. Examiner 199 noted the following on the grade sheet with respect to question 25a: Could not get it in view in left ocular. Candidate even verbalized this. For questions 26a, 27a, and 28a, examiner 199 noted that Farhady had no focus. For question 32a, examiner 199 noted, "could not/would not maintain focus." Farhady challenges the scores she received for questions 2a and 4a on section one of the clinical examination. These questions relate to visual field testing. The candidate is shown a visual field and is asked questions pertaining to the visual field. When Farhady was shown the visual field, she immediately said out loud that it was a glaucomatous loss before the examiner could read the instructions to her. The examiner said, "no" and began to read the instructions. Farhady thought that the examiner meant that it was not a glaucomatous loss. The examiner manual advises the examiners to avoid any comments which the candidate could interpret as favorable or unfavorable. For question 2a, Farhady was asked to name the visual field defect. She stated that it was arcuate scotoma. The correct answer was superior arcuate scotoma. Credit is not given for partial answers. It is important that the candidate identify whether it is a superior or an inferior arcuate scotoma in order to establish the location of the lesion so that the correct diagnosis can be made. Whether the examiner said "no" is irrelevant to the answer which Farhady gave to question 2a because she did identify that it was an arcuate scotoma. For question 4a, Farhady was asked which disease would be most consistent with the visual field defect. Farhady answered supracellar craniopharyngioma, which is incorrect. In layman's terms, a supracellar craniopharyngioma is a tumor of the pituitary gland. A visual field of a tumor of the pituitary gland is a bitemporal configuration not an arcuate configuration, meaning that Farhady's answer did not correlate in any way with the visual field defect. It was improper for the examiner to have said "no" after Farhady responded that it was a glaucomatous loss. It could have been interpreted by a candidate, as it was by Farhady, that her response was incorrect. The examiner should have told Farhady to wait until the instructions were read. Question 4a was worth 1.5 points, giving Farhady a total percent score of 71.6, which is not a passing score.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Sandra D. Farhady did not pass the clinical portion of the August 1999 optometry licensure examination and dismissing her petition. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2000. COPIES FURNISHED: Joe Baker, Jr., Executive Director Board of Optometry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Angela T. Hall, Esquire Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Sandra D. Farhady 6404 Wiley Street Hollywood, Florida 33023
