The Issue Whether the Department acted arbitrarily and capriciously in giving notice of its intended award of a contract for the purchase of optical character reading equipment to Scan Optics?
Findings Of Fact The Department is the state agency charged with the administration of Florida's unemployment compensation insurance program. The Department's Bureau of Claims and Benefits (hereinafter referred to as the "Bureau") is responsible for receiving claims for unemployment insurance benefits and for the disbursement of unemployment insurance payments. In processing and paying claims for unemployment insurance benefits, the Bureau must work with the Comptroller, who issues the payment checks. The Comptroller's office has been issuing checks on IBM punch cards. The Bureau has also been using IBM punch cards in processing unemployment insurance claims so that the punch cards could be collated with the IBM punch card checks issued by the Comptroller. In early 1984, the Bureau was informed that IBM card stock would no longer be printed. In early 1985, the Bureau was informed by the Comptroller's office that the Comptroller was going to begin to use paper warrants for the payment of benefits instead of IBM cards. As a result of this change, the Department is no longer able to use checks issued by the Comptroller to collate with its IBM punch cards. Because of the switch to paper warrants by the Comptroller, the Department began in 1985 to look at other technologies capable of efficiently working with paper warrants. The Bureau formed a committee to explore alternatives. That committee researched alternatives and visited other states to determine how other states were processing claims. The Department decided to purchase an optical character reader (hereinafter referred to as an OCR), for use in processing unemployment compensation claims. An OCR is a device which reads printed or handwritten characters. It scans a document, reads characters by comparing them to a mask or template and reads and records the data. The Department plans to use the OCR to read and record data from certifications for unemployment compensation insurance benefits. The data recorded will be transferred to the Department's mainframe IBM computer for use in processing by an automated benefits system. The Petitioner and Scan Optics are manufacturers of OCR equipment. Scan Optics has been manufacturing OCR equipment for 20 years. The Department requested a list of vendors from the Division of Purchasing and received a list of 167 potential vendors. On July 14, 1986, the Department issued a Request for Proposals (hereinafter referred to as the "RFP"), seeking competitive bids for the purchase by the Department of an OCR. All 167 potential vendors were notified of the RFP by the Department. Approximately 25 of the potential vendors requested a copy of the RFP. Only the Petitioner and Scan Optics submitted proposals in response to the RFP. A 6 member committee appointed by the Department prepared the RFP. Three members of the committee were employees of the Bureau and three members were employees of the Department's Bureau of Computer Data Systems. A request for proposal is a solicitation by an agency of offers from potential vendors to provide a needed commodity or service. It is different from a bid where the agency simply identifies the product it wishes to purchase and chooses the vendor offering the product at the lowest cost. The RFP set forth the Department's functional requirements and asked vendors to respond in any manner which they believed would meet those requirements. In the RFP, the Department stated the requirements which vendors were required to meet, evaluation criteria and the weight to be given to those criteria. It was also provided that responses would be verified by documentation and demonstration in a benchmark test. In the RFP, vendors were informed that if they disputed the reasonableness, necessity, or competitiveness of the RFP they must file a protest in accordance with Section 120.53(5), Florida Statutes. Paragraph 8 of the General Conditions. Vendors were also informed that any questions concerning the conditions and specifications of the RFP had to be submitted in writing to the Department no later than 10 days prior to the proposal opening and that "[n]o interpretation shall be considered binding unless provided in writing by the State of Florida in response to request in full compliance with this provision." Paragraph 5 of the General Conditions. Section 1.07 of the RFP instructed vendors to examine the RFP to determine if the requirements were clearly stated. Section 1.10 of the RFP provided that only written and signed vendor communications would be considered and that only written communications from the purchasing off ice would be considered authoritative. The Petitioner did not file a protest of the terms of the RFP pursuant to Section 120.53(5), Florida Statutes. Section 1.03 of the RFP provided for a vendors conference at which the contents of the RFP and any written inquiries from the vendors could be discussed. The Petitioner and Scan Optics submitted written questions to the Department. The vendors' conference was scheduled and conducted on July 30, 1986. Representatives of the Petitioner and Scan Optics attended the vendors' conference. The questions submitted by the Petitioner and Scan Optics were discussed. At the commencement of the vendors' conference, the Department's representative cautioned all present that statements made during the conference would not modify the RFP. This representation was heard and understood by the Petitioner's representative at the vendors' conference. Subsequent to the vendors' conference, the Department issued amendments to the RFP. The cover letter dated August 7, 1986, conveying the amendments to the Petitioner stated that any questions about the amendments had to be received in writing in the Office of Purchasing no later than 5:00 p.m., August 12, 1986. Draft samples of claims' certification forms and paper stock described in Section 3.01.18 of the RFP were also sent to the Petitioner and Scan Optics. The Petitioner did not submit any additional questions about the RFP or the amendments before 5:00 p.m., August 12, 1986. The Department proposed to accept Scan Optics' proposal and purchase the OCR from Scan Optics. The Petitioner brought this administrative action challenging the Department's proposed action. Chapter I of the RFP contains administrative and general information. Chapter II of the RFP contains a description of the Department's current system, a list of proposed OCR applications and the objective of the Department. Chapter III of the RFP sets out the technical requirements. Mandatory requirements and desirable requirements are provided. The terms "mandatory requirement" are defined in Section 1.17.ao of the RFP as follows: "Mandatory Requirement" shall be defined as a requirement the vendor must meet for the proposal to be considered responsive, failure to meet a mandatory requirement will cause the proposal to be rejected. The terms desirable requirement" are defined in Section 1.17.ak of the RFP as follows: "Desirable Requirement" shall be defined as a function, feature, or service the State considers necessary for optimal application flexibility, ease of system operation, or system reliability. Failure to meet a desirable requirement will result in a lower technical evaluation. The technical requirements set out the specifications which the Department had determined must (mandatory) or should (desirable) be met in order for an OCR to fulfill the Department's objectives. Chapter IV of the RFP provides the evaluation process the Department was to follow in determining which proposal to accept. The evaluation process was to include the awarding of points for compliance with the technical requirements. The RFP also included provisions designed to ensure that the representations of a vendor in a proposal would be fulfilled, including a benchmark test to verify certain representations of a vendor and acceptance testing after the equipment was purchased and installed. The general objective of the Department was provided in Section 2.04 of the RFP: The State wishes to procure an Optical Character Reading System with related soft- ware capable of meeting the requirements for the reading of UI benefit certifications and other UI applications that are feasible. The Optical Character Reading System will consist of a [sic] Optical Character Reader (OCR) and Correction System. The complete System will be bought from a single vendor. Section 1.17.ap of the RFP defines "objective" as: A statement describing generally the system to be procured. Any proposed system not meeting the objective will be rejected. Although Section 2.03.3 of the RFP provides that processing of quarterly wage reports is a major application, the RFP does not require that the proposed OCR equipment must be capable of this application. The only requirement is that the objective" be met. The reference to "other UI applications that are feasible" in the objective was intended to refer to future applications of the OCR which the Department only wanted to be aware of. There was no requirement that proposed OCR's be capable of other applications. The RFP made it clear that proposals would be based on the technical requirements of Chapter III of the RFP and would be evaluated pursuant to Chapter IV of the RFP. When these chapters and the "objective" are considered it is clear that the Department was proposing to purchase an OCR to perform the task of reading unemployment insurance claims forms and not wage reports. The responses to the RFP submitted by the Petitioner and Scan Optics were evaluated by the committee established by the Department to prepare the RFP. The committee determined whether the vendors met the mandatory requirements of the RFP and allocated points for mandatory and desirable requirements based upon the vendors' responses. The committee's evaluation consisted of 3 stages as required by the RFP. First, the committee evaluated and scored the vendors' technical responses. Each vendor was awarded points for their responses to the mandatory and desirable requirements as provided in the RFP. The committee fairly and reasonably applied the scoring system. Secondly, the committee evaluated and scored the vendors' cost responses as provided in the RFP. Finally, each vendor's scores were added. The vendor with the highest score was then given an opportunity to subject its proposed system to a benchmark test. The RFP provided that only the vendor with the highest points from the first 2 stages of the evaluation would be subjected to the benchmark test. The benchmark test was used by the Department to verify some of the statements in the highest scoring vendor's response, including some responses which the committee had some questions about during the evaluation. Based upon the committee's evaluation, Scan Optics was selected as the highest scoring vendor and its proposed system was subjected to the benchmark test. The benchmark test is provided for in Chapter X of the RFP. If Scan Optics' system had failed the benchmark test with regard to a mandatory requirement, its proposal would have been rejected. If it had failed to fulfill a desirable requirement, its response would have been rescored. The benchmark test was designed to give some assurances that a vendor's claims were correct. The test gave the committee confidence that the vendor was providing accurate information. Scan Optics' system successfully completed the benchmark test. During the first two stages of the evaluation, the committee looked at each vendor's total response, read all of the documentation submitted by the vendors and did all the research it could without actually having the system itself to evaluate. Not every response of the vendor was verified with absolute certainty. It was necessary for the Department to exercise judgment and discretion in determining whether responses were responsive to the RFP. Each response was evaluated as a whole and relevant information contained in one response was considered in evaluating other responses. Both vendors' responses were reviewed carefully. Both vendors provided responses which were not as thorough as the committee desired. The committee exercised its discretion in those instances and reviewed all documentation and the complete response to determine if sufficient information had been provided to conclude that a response was acceptable. Clarification or explanation of some responses was requested by the committee from both vendors. The manner in which mandatory responses were to be evaluated is provided in Section 1.06 of the RFP: The State has established certain requirements with respect to Request for Proposals to be submitted by vendors. The use of "shall", must" or "will" (except to indicate simple futurity) in this Request indicates a require- ment or condition from which a material deviation may not be waived by the State. A deviation is material if the deficient response is not in substantial accord with this Request for Proposal requirements [sic] provides an advantage to one vendor over other vendors, has a potentially significant effect on the quantity or quality or items proposed, or on the cost to the State. Material deviations cannot be waived. Determining whether a deviation was material required the Department to use discretion. The RFP does not require rejection of a proposal if a desirable requirement was not met. Section 1.06 of the RFP provides the following with regard to desirable requirements: The words "should" or "may" in this Request for Proposal indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a proposal. In determining whether a mandatory requirement was met, the committee determined if a vendor's response indicated that the requirement could be met. If there was any question about the vendor's response, the committee then evaluated the response to determine if the response was sufficient to justify rejecting the entire proposal. This is a reasonable approach. The Department, through its committee, exercised its discretion fairly and equitably in reviewing each vendor's response. Scan Optics proposed a 442 system in response to the RFP. A 4542 system consists of two primary hardware component: a 4500 editing system and a 542 optical scanner. Section 3.01.1 of the RFP provides the following mandatory requirement The Vendor must supply documentation indicating the proposed System's capabilities to meet each mandatory and desirable item listed in this RFP. The documentation must refer to the section and item number it applies to in this RFP. There is no requirement in the RFP that the documentation provided by a vendor be listed. Scan Optics provided a great deal of documentation with its response. The Department reasonably concluded that the documentation provided met the requirement of Section 3.01.1 of the RFP. A list of most of Scan Optics' documentation was provided with its response. In addition to the documentation listed, Scan Optics provided a Model 542 Product Guide and a Model 533/542 Operator's Manual. Scan Optics' Models 530 and 540 optical scanners are very similar to their Model 542. The designation 540 refers to a family of optical scanners which includes the Model 542. Most of the information concerning the operation and capacity of the 540 also applies to the 542. Differences are due to greater capacity and speed of the 542 and internal differences. All of the documentation supplied by Scan Optics was considered by the committee in its evaluation and was determined to satisfy the requirement of Section 3.01.1 of the RFP. The committee talked with representatives of Scan Optics to determine whether documents pertaining to Model 530/540 supplied to the Department were relevant. The Department was informed that the Model 542 was a member of the same family of models and the information provided in the Model 530/540 documents was also applicable to the Model 542. Manufacturers of computer equipment have constantly evolving families of models with a number of similarities. The use of manuals and guides which apply to a family line is a common practice. The committee reasonably accepted the Model 530/540 documents as documentation supporting the Model 542 proposed. Section 3.01.10.f of the RFP initially required that vendors show how the Initial System could be upgraded to meet a number of requirements, including the " [a]bility to read 700 different fonts including handprint in a multifont mode." The Petitioner submitted a written question which was discussed at the vendors' conference concerning the use of the term "fonts." There are not 700 fonts in the English language. An OCR is capable of scanning written documents and reading and recording the data contained thereon. Each particular design or style of a1phabetic (A to Z, in upper and lower case) and numeric (0 to 9) characters typed or written is called a font. Each style, or font, is unique and different from other styles. Characters are recognized and read by an OCR by templates or masks. Templates or masks determine an OCR's ability to read a particular character of different fonts. To read all the characters of one font, 36 masks or templates are needed. A single mask or template can read the same character, such as the letter "A" in more than one font. The question raised by the Petitioner was discussed at the vendors' conference and resulted in a written amendment to the mandatory requirement of Section 3.01.10.f. Section 3. 01.l0.f of the RFP, as amended, required that the Initial System be upgradeable to include the " [a]bility to read 700 different fonts/masks/templates, plus alpha numeric hand print." The Department and the vendors realized that Section 3. 01.10.f of the RFP, as amended, required that the ability to read 700 templates or masks, and not 700 fonts, was what was required. The Petitioner did not submit any questions concerning the amendment to Section 3.01.10.f of the RFP. The Petitioner's representative at the vendors' conference indicated that he understood the amendment and that the amendment eliminated the confusion created by the original requirement concerning "700 fonts." No statements were made by representatives of the Department during the vendors' conference concerning the requirement of Section 3.O1.10.f of the RFP, as amended. A statement concerning proposing a "maximum capability machine" was directed only to the Petitioner. The Department was aware that the Petitioner's maximum capability machine with regard to templates or masks was a machine with 720 templates. Therefore, the Petitioner was told that if it bid its maximum capability machine it would meet the requirement of Section 3.01.10.f of the RFP, as amended. This discussion was directed only at the Petitioner and was in response to the Petitioner's question, submitted in writing, about the requirement of Section 3.01.10.f of the RFP before it was amended. Section 3.01.10 of the RFP contains 7 subparagraphs labeled "a" through "g". Scan Optics' response to Section 3.01.10 of the RFP contained only 5 subparagraphs labeled "a" through "e". The responses of Scan Optics did not correspond to the subparagraphs of Section 3.01.10 of the RFP. There was no requirement that they do so. One of the subparagraphs for which there was no labeled response from Scan Optics, Section 3.01.10.f of the RFP, pertains to upgrading the Initial System to read 700 templates. Scan Optics proposed a system which already contained 768 templates. There was therefore no requirement to explain how the system could be upgraded. The other subparagraph for which there was no labeled response from Scan Optics, Section 3.01.10.g of the RFP, pertains to upgrading the Initial System to include "necessary system CPU's and controllers." Scan Optics' response to Section 3.01.10 of the RFP, when considered with other responses and the documentation provided, indicated that the Initial System would meet this provision. The Department reasonably determined that the response of Scan Optics to Section 3.01.10 of the RFP adequately explained how its system could be upgraded. Section 3.01.13 of the RFP contains the following mandatory requirement: The OCR must capture and store data on a 9-Track, 1600 and/or 6250 BPI EBCDIC Tape compatible with the equipment in use at the Caldwell Data Center at the State's Central Office in Tallahassee. Each tape drive in the proposed system must be usable for both output and input operations. The requirement of Section 3.01.13 of the RFP was amended to add the following sentence: The drives in use in the Data Caldwell Center [sic] are IBM 3420 Dual Density (1600 6250 BPI) with odd parity. In its response Scan Optics quoted the requirement without the amendment and then provided the following answer: The Scan-Optics Tape Drive provided is an operator selectable 1600 or 6250 BPI EBCDIC drive compatible with IBM equipment including the equipment in use at the Caldwell Data Center, and is capable of output or input. Although Scan Optics did not quote the requirement with the amendment, the amendment was included elsewhere in its response and Scan Optics' representatives were aware of the amendment. Even though Scan Optics did not correctly quote the requirement as amended, its response indicates that Scan Optics' proposal meets the amended requirement. Scan Optics indicated that its system is compatible with the Caldwell Data Center's equipment and identified the drives which it uses. The failure to quote the amended requirement was merely an oversight on the part of Scan Optics. There is no requirement that the requirements of the RFP be properly quoted or quoted at all in a response. Section 3.01.15 of the RFP, as amended, provides the following mandatory requirement: The OCR Microfilm camera must provide an image reduction ratio within the range of 40:1 to 50:1, image reduction in duplex mode and provide at least two (2) blip sizes based on Kodak IMT specifications which can be selected under program control. The system must be capable of filming any blip sizes based on predefined conditions on a document by document basis. In its response Scan Optics identified the range of its image reduction ratios and indicated that it would provide the blip sizes required. Although Scan Optics' response can be interpreted to indicate something which Scan Optics will be able to do in the future, the Department reasonably accepted Scan Optics' response. The committee knew that technology for meeting the microfilm requirement existed and was in use in the industry. Based upon documentation provided by Scan Optics, the committee also knew that the reduction ratios could be provided by Scan Optics because its camera was under program control and was therefore adjustable. Because the camera was under program control, the committee knew that it could be adjusted to provide two blip sizes. The committee also knew that if Scan Optics was selected as the high scorer as a result of the first two phases of the evaluation its camera would be subjected to the benchmark test. In fact, Scan Optics' camera was subjected to the benchmark test and demonstrated that the requirements of Section 3.01.15 of the RFP could be met. Scan Optics properly responded Section 3.01.15 of the RFP and the Department reasonably accepted its response. Section 3.01.18 of the RFP provides the following mandatory requirement: The OCR must be capable of processing documents with a paper weight range from 20 lbs. to 110 lbs. A paper thickness of .0075 inch capability is required. Scan Optics' response to Section 3.01.18 of the RFP was as follows: Standard Scan-Optics specification of paper weight is from 20 lbs. to 100 lbs. However, Scan-Optics personnel will modify the transport vacuum pumps and perform the necessary pre- ventative maintenance routines to accomplish the additional 10 percent requirement at the higher paper range, as we have done in numerous other installations. Scan Optics' total response indicates that it can meet the requirement of Section 3.01.18 of the RFP. The Department reasonably accepted the response. The Department-knew that similar equipment was frequently modified to fit specific jobs, that Scan Optics had indicated that it had modified its equipment in "numerous other installations" and that Scan Optics had indicated that it would modify its transport system. The Department also knew that the ability to process 110 lb. paper would be benchmark tested. The vendors were provided with sample forms which were .0075 inch thick and 110 lb. weight. This was the actual paper used by the Comptroller. Scan Optics' ability to meet the requirement of Section 3.01.18 of the RFP was tested and demonstrated in the benchmark test. Section 3.01.43 of the RFP provides the following mandatory requirement: "The Vendor must propose to provide four (4) manuals for application and program development." Section 3.01.44 of the RFP provides the following mandatory requirement: "The Vendor must propose to provide three (3) sets of manuals for support of system operations. Scan Optics indicated that it would provide the manuals at the time the contract was awarded. There was no requirement that a vendor provide the manuals at the time a response was filed. Section 3.01.43 and Section 3.01.44 of the RFP only sought assurances that the manuals would be provided. Scan Optics' response to Section 3.01.43 and Section 3.01.44 of the RFP and the Department's acceptance of the response was reasonable. Prior to amendment, Section 3.03.2 of the RFP provided the following desirable requirement: The Vendor should be able to upgrade the OCR font recognition as the Vendor makes improve- ments in font recognition to improve OCR read rates. This upgrade should be installable by the State. Section 3.03.2 of the RF was renumbered as Section 3.02.2 and the last sentence was amended to provide: "This upgrade should be installable by the State or, if installed by the Vendor, at no additional cost to the State." Scan Optics' response quoted the requirement before the amendment. The response, however, indicated that the requirement, as amended, could be met and the amendment was included in another portion of the Scan Optics' response. The Department reasonably accepted the response of Scan Optics to Section 3.02.2 of the RFP. Section 3.02.3 of the RFP (originally numbered 3.03.3) includes a desirable requirement that vendors specify the projected number of desk weekly unemployment insurance claim certification documents a vendor's proposed system could process in one hour with no more than three operators -- one to operate the OCR and two to correct unrecognized characters. Section 3.02.3 of the RFP provides that the document to be processed and the rules for processing are described in Chapter x, Section 10.2 of the RFP. The vendor with the highest score was to be benchmark-tested pursuant to these rules to determine if the vendor's response was accurate. Chapter x, Section 10.2 of the RFP describes the data that would be included in the claim form, how the form would be completed, the weight of the paper and the styles or fonts which would be used. Section 3.02.3 of the RFP only requires that the number of documents processed be provided. Scan Optics' response to Section 3.02.3 of the RFP provided that "Scan-Optics throughput based upon your requirements above will be: 3,500 desk weekly UI claim certification forms in one hours [sic]." Scan Optics' response went on to repeat the criteria set out in the RFP and provided: "Therefore, because of the above variables, Scan-Optics throughput has been calculated using the following assumptions:" The response goes on to provide certain assumptions made by Scan Optics in calculating the number of documents it projected could be processed. The assumptions set out in Scan Optics' response do not expressly limit or condition its estimate of 3,500 documents per hour. The response was given with knowledge that the estimate would have to be proved to be accurate in the benchmark test. Scan Optics' response was based upon the use of a standard formula and was reduced from 4,800 to 3,500 in order to give a projection which could be met and accounted for loss of productivity due to jams, operator absence and other problems. The projection was tested by Scan Optics before the proposal was submitted to the Department. The Department accepted the projection of Scan Optics and awarded Scan Optics the maximum points available for the desirable requirement of Section 3.02.3 of the RFP, 280 points. The Department did not take into account the assumptions expressed by Scan Optics in its response. The evidence did not prove if the assumptions expressed by Scan Optics are inconsistent with the rules for processing which would be followed in the benchmark test. Scan Optics successfully demonstrated its ability to process 3,500 forms per hour in the benchmark test. The benchmark test did not incorporate the assumptions made by Scan Optics. The forms used in the test were completed by individuals who received less instructions than claimants and State employees who will actually complete the forms. Even the instructions given were not completely followed. The benchmark test provided an accurate test of Scan Optics' ability to process claims. The Department reasonably accepted Scan Optics response to Section 3.02.3 of the RFP. Section 1.14 of the RFP required vendors to provide five references where "similar or exact proposed equipment and Licensed Software is installed and operational." Section 4.05 of the RFP provided for the manner in which references were to be evaluated. Up to 10 points per reference could be awarded, up to a maximum of 50 points. Section 4.05.6 of the RFP defined "similar equipment and software" to mean equipment consisting of "an OCR with microfilm option that reads either numeric handprint or multifont." [Emphasis added]. The Petitioner and Scan Optics provided more than five references. All references were contacted. Five of the references provided by both vendors had similar equipment and software as defined by Section 4.05.6 of the RFP. Scan Optics' five satisfactory references were Newport News Ship Building, IRS Atlanta, Barnett Bank of Florida, State of Ohio Department of Taxation and State of Tennessee Department of Revenue. The Department reasonably concluded that the references provided by Scan Optics satisfied the requirement of Section 1.14 of the RFP. The Department did not evaluate Scan Optics' response in an arbitrary and capricious manner.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Formal Written Protest and Petition for Formal Administrative Proceeding filed by the Petitioner, Recognition Equipment, Inc., be dismissed. DONE AND ORDERED this 26th day of February, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 26th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4570 BID The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accepted. Those proposed findings of fact which have been rejected and the reasons for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." THE PETITIONER'S PROPOSED FINDINGS OF FACT: Proposed Finding RO Number of Acceptance or of Fact Number Reason for Rejection 1 RO 13. 2 RO 9 and 75-76. 3 Not supported by the weight of the evidence. 4 RO 25, 27 and 29. 5 Although this statement was made, see RO 81. 6 RO 34-35 and 60. 7 RO 45. 8 RO 34, 36 and 47. 9 RO 48. 10 Irrelevant. 11 RO 124 and 126. Although the first sentence is true, it is irrelevant. The second sentence is not supported by the weight of the evidence. The first sentence is accepted in RO 83. The rest of the proposed finding of fact is irrelevant. Not supported by the weight of the evidence. Not supported by the weight of the evidence. The first sentence is argument. The second sentence is irrelevant. If the Petitioner relied on oral state- ments such reliance was not reasonable. Not supported by the weight of the evidence. Not supported by the weight of the evidence. Although Mr. Stallworth did make the quoted statement, it does not expand the requirements specifically included in the RFP. Not supported by the weight of the evidence. The first two sentences are accepted in RO 49. The third and fourth sentences are not supported by the weight of the evidence. 21 RO 57. 22 Not supported by the weight of the evidence. THE DEPARTMENT'S PROPOSED FINDINGS OF FACT: 1 RO 1, 3 and 5. 2 RO 5-6 and 8. 3 RO 13 and 38. 4 RO 12 and 14-16. 5 RO 22-23. 6 RO 25. 7 RO 26-27. 8 RO 29. 9 RO 29-30. 10 RO 73-74. 11 RO 77-78. 12 RO 80. 13-15 RO 81. 16 RO 40-44. 17 RO 44. 18 RO 67-68. 19 RO 70. 20 RO 82-84. 21 RO 84. 22 RO 87-88 and 90. 23 RO 91. 24 RO 93-97. 25 RO 96. 26 RO 99-100. 27 RO 100 and 102. 28 RO 112-113. 29 RO 115-116. 30 RO 122. 31 RO 57. 32 RO 47-49. 33 RO 53. 34 RO 54-55. 35 Irrelevant. 36 RO 54. 37 RO 124 and 127. 38 RO 125. 39 RO 126. 40 RO 127. 41 RO 128. SCAN OPTICS' PROPOSED FINDINGS OF FACT: 1 RO 1. RO 8. RO 9. 4 RO 75-76. 5 RO 76. 6 Irrelevant. 7 RO 10. 8 RO 11 and 26. 9 RO 11. 10 RO 1-2. 11 Irrelevant. 12 RO 3. 13 Hereby accepted. 14 RO 4. 15 RO 5. 16 RO 6. 17 RO 7. 18 RO 8. 19 RO 13. 20 RO 17. 21 RO 18 and 57. 22 RO 19. 23 RO 20. 24 RO 14-16. 25 RO 21. 26 RO 26. 27 RO 27. 28-29 RO 28. 30 Hereby accepted. 31 RO 29. 32 RO 30. 33 RO 32. 34 RO 33. 35 RO 34 and 37. 36 RO 37. 37 RO 38. 38 RO 39. 39 RO 39. The second and third sentences are irrelevant. 40 RO 40. 41 RO 43. 42 RO 44. 43 RO 42 and 44. 44 The first sentence is not supported by the weight of the evidence. The second sentence is hereby accepted. 45 RO 45. 46 RO 56. 47 RO 57. 48 RO 58. 49 RO 59. 50 RO 60. 51 RO 61. 52 RO 62. 53 RO 52. 54 RO 53. 55 RO 54. 56 RO 63. Irrelevant. Hereby accepted. 59 RO 64. 60-64 Irrelevant. 65 RO 38, 47 and 49. 66 RO 47-49. 67 RO 49-51 and 55. 68 RO 65. 69 Hereby accepted. 70 RO 78. 71 RO 66-68 and 70. 72 Hereby accepted. 73 RO 69. 74 RO 70. 75 RO 71. 76 RO 72. 77 RO 78. 78 The first and last sentences are accepted in RO 78-79. The second sentence is not supported by the weight of the evidence. 79 RO 75. 80 RO 82-84. 81 RO 84. 82 RO 85. 83 RO 92. 84 RO 93. 85 RO 95. 86 RO 96. 87 RO 97. 88 RO 98. 89 RO 99-100. 90 RO 101. 91 RO 100. 92 RO 102. 93 RO 86. 94 RO 87. 95 RO 88-90. 96 RO 103. 97 RO 106. 98 RO 105. 99 RO 106. 100 RO 107. 101 RO 104. 102 RO 105. 103 RO 107. 104 RO 108-109. 105 RO 110. 106 RO 111. 107 RO 112-113. 108 RO 114. 109 RO 113. 110 RO 115. 111 RO 116-117. 112 RO 119. The last sentence is irrelevant. 113 RO 118. 114 RO 121-122 Cumulative. Hereby accepted. 117 RO 123. 118 RO 124. 119 RO 125. 120 RO 126. 121 RO 127. 122 RO 128. 123 RO 129. 124 RO 130. 125 Not a finding of fact. COPIES FURNISHED: Edwin F. Blanton, Esquire Post Office Box 12808 Tallahassee, Florida 32317 Hugo Menendez Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32301 Kenneth H. Hart, Jr., Esquire General Counsel Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 Leonard A. Carson, Esquire John D. C. Newton, II, Esquire Mahan Station 1711-D Mahan Drive Tallahassee, Florida 32301 Thomas J. McHale, Esquire Gager, Henry & Narkis One Exchange Place Post Office Box 2480 Waterbury, Connecticut 06722
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. /
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
Findings Of Fact Petitioner filed with the Board of Medical Examiners an application for licensure by examination in 1983. Included with that application were original "affidavits" submitted on Petitioner's behalf by Dr. Borroto and Dr. Velez. Petitioner filed an application for licensure by endorsement in October of 1984. In conjunction with his application for licensure by endorsement, Petitioner submitted photocopies of the "affidavits" submitted with his 1983 application for licensure by examination. These photocopies of Dr. Borroto's and Dr. Velez's "affidavits" were submitted by Petitioner with notarized attestations that the notary had in fact seen the originals. Petitioner knew that this was not true. On December 28, 1984, Dorothy Faircloth, Executive Director of the Board of Medical Examiners (hereinafter "the Board"), sent Petitioner a letter indicating, among other things, that Petitioner had submitted photocopies rather than original letters establishing his five years of licensed medical practice. Furthermore, he was notified that his application would not be complete until the originals were received. The same letter notified Petitioner that all documents to be notarized must be certified as true and correct copies of the original and stated so by the notary. Petitioner was specifically warned that the notary must see the original and copy in order to make the required statement. In January of 1985, Petitioner submitted new affidavits concerning five years of licensed medical practice. On August 2, 1985, Petitioner attended a meeting of the Board's Foreign Medical Graduate Committee (hereinafter "FMGC") in order to address problems with his application for licensure by endorsement. At that meeting, Petitioner failed to satisfactorily address the issues concerning affidavits attesting to his five years of licensed medical practice. The committee voted to recommend denial of Petitioner's application based upon the lack of personal knowledge of the affiants, improper notarization of the purported affidavits and fraudulent notarization of the 1983 affidavits of Dr. Borroto and Dr. Velez. The Board considered Petitioner's application for licensure by endorsement on August 3, 1985, and voted to deny licensure based on the recommendations of the FMGC. An Order to that effect was filed on August 26, 1985. On October 4, 1985, the FMGC reconsidered Petitioner's application, including new affidavits from Dr. Oscar R. Bravo-Campa, Dr. Juan A. Enriquez- Elesgaray and two other licensed physicians. However, the FMGC determined that the new affidavits did not overcome the problems raised during Petitioner's original attempt to obtain licensure by endorsement and voted to reaffirm their previous recommendation. On October 5, 1985, the Board reconsidered Petitioner's application for licensure by endorsement and voted to reaffirm its previous denial. An Order to that effect was filed on March 27, 1986. Dr. Pedro G. Velez's certification dated January 10, 1983, stated that he had personal knowledge of Petitioner's medical practice in Cuba from January 1971 to June 1980. At the final hearing in this cause, Dr. Velez testified that he has known Petitioner personally only since the 1980s and that he did not know him professionally in Cuba at all. Dr. Velez also testified that he left Cuba in 1966 and that he might have met Petitioner when Petitioner was a student in 1964. Dr. Velez further testified that he signed a second letter in behalf of Petitioner. He testified that Petitioner had probably prepared it for his signature and that no one was present when he signed it. Specifically, the notary who attested to his signature was not present. Dr. Pedro G. Velez clearly had no personal knowledge that Petitioner was licensed to practice or did practice medicine in Cuba from January 1971 through June 1980. The certification completed by Dr. Esperanza Arce-Nunez, regarding Petitioner's five years of licensed medical practice and submitted by Petitioner to the Board in 1985, was not notarized as an affidavit. Dr. Arce-Nunez testified that she could not remember anything about seeing Petitioner in a practice setting in 1971, one of the years covered by her certification. In fact, her only personal knowledge of Petitioner's practice of medicine in Cuba occurred in 1977. Dr. Oscar R. Bravo-Campa testified that he coincided with Petitioner during annual medical rotations in Havana every year. He also testified that he could not remember when or where he saw Petitioner in a practice setting during the nine years covered by his affidavit, which specifically stated that he had contact with Petitioner in a practice setting three times a year in addition to rotations every year between 1971 and 1980. In fact, his only personal knowledge of Petitioner's practice of medicine in Cuba occurred in 1977. Dr. Ignacio Coro initially testified that he knew Petitioner for six years. In fact, Petitioner has resided in this country for approximately six years, since June of 1980. Dr. Coro subsequently claimed to know Petitioner longer than six years, about thirteen years. Although Dr. Coro's certification claimed he saw Petitioner in a practice setting twice a year from 1971 to 1980, he testified that he saw Petitioner only once in 1980. Dr. Coro could not remember seeing Petitioner in a practice setting during 1973. Dr. Coro further testified that the clarification statement, dated September 20, 1985 and attached to his September 9, 1985 affidavit, was included because Petitioner specifically requested it, and he did not know where the document was typed. The certification prepared by Dr. Juan A. Enriquez-Elesagaray and submitted by Petitioner did not contain a notarization. Petitioner testified that the letters dated September 20, 1985 and signed by Dr. Esperanza Arce-Nunez, Dr. Oscar R. Hravo-Campa, Dr. Ignacio Core, and Dr. Juan A. Enriquez- Elesgaray were each composed by the individual doctors. However, the letters are almost identical as to their wording, punctuation mistakes and misspellings. Petitioner testified both that he received his medical degree in 1971 and in 1977. Petitioner further testified that he allowed his application to be notarized by someone who did not witness his signature. Dorothy Faircloth, Executive Director of the Board, testified that the Board initially had concerns about Petitioner's application, specifically because he submitted affidavits with attestations stating that the notary had seen the originals. The Board doubted the veracity of such a statement because the originals were in the Board's possession. Ms. Faircloth also testified that the change in the Board's certification forms that took place subsequent to 1983 was an attempt to clarify and emphasize the Board's previous requirement that affiants have actual knowledge, by determining the basis and frequency of such knowledge. Petitioner took his blank application (except for Petitioner's signature) to Dr. Luis Manuel Rodriguez Molina who prepares licensure application documents for Cuba doctors seeking licensure in Florida. Molina translated and/or filled in all documents, obtained signatures, and then later had his son notarize those documents even though none was actually signed in the presence of his son, the notary public. When he submitted it to the Board, Petitioner knew that he had not signed his application in front of a notary public, and, therefore, Petitioner's affidavit portion of his application was knowingly false. The purported "personal knowledge" of each affiant and witness testifying as to Petitioner's five years of actual practice is that each between the years of 1971 and 1980 saw Petitioner at the equivalent of medical association meetings. These meetings were, however, also attended by students. Only Dr. Elesgaray could testify that he saw Petitioner in a practice setting twice each year.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure by endorsement. DONE and RECOMMENDED this 13th day of January, 1987, at Tallahassee, Florida. LINDA M. RIGOT, 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 13th day of January, 1987. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Ramon S. Santos, Jr., Esquire 1000 Ponce de Leon Boulevard, Suite 303 Coral Gables, Florida 33134 M. Catherine Lannon, Esquire Allen R. Grossman, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent, Santiago F. Suarez (Suarez), was at all times material hereto licensed as a physician in the State of Florida, and held license number ME 0030132. Suarez is a family practitioner, and has no specialized training relating to the human eye. He has never performed a refraction or prescribed eyeglasses during his medical career, nor has he had any training or experience in prescribing and fitting contact lenses.1 Commencing in the latter part of 1983 and continuing through the early part of 1984, Suarez acted as the supervising physician for Reynaldo Avello (Avello) when he performed refractions or fit contact lenses on clients of the Optical Medical Center; a business owned by Avello. During this time period, Avello routinely refracted the vision of his clients; measured the eyes of clients who desired contact lenses; prescribed eyeglasses and contact lenses; and prepared, dispensed or fit eyeglasses and contact lenses for his clients as well as clients of optometrists and ophthalmologists. Avello is not, and never has been, a licensed optician or optometrist, and he has no formal education or training beyond high school. Consequently, his activities were proscribed by law unless they were appropriately delegated and supervised by a medical doctor.2 Chapter 463 and 484, Part I, Florida Statutes. In this case Avello, not Suarez, prescribed eyeglasses and contact lenses. Avello conducted the eye examination, but limited his practice to refracting the eye and, when appropriate, to measuring the eye for contact lenses. Although Avello was ostensibly practicing under Suarez' supervision, Suarez was not competent to perform a refraction, or to prescribe and fit eyeglasses and contact lenses. In fact, Suarez took no active part when client's eyes were refracted, but deferred to Avello's "expertise." Suarez limited his involvement to securing a brief medical history from the client, and being available in case an emergency arose.3 Suarez' reliance on Avello's "expertise," without inquiring as to his training and experience, was a serious error in judgment. The only training Avello had in refracting the human eye occurred while he was employed part-time by the Union Latina clinic in Hialeah, immediately before he opened the Optical Medical Center. During his employment at the clinic, Avello was shown how to do a refraction by a board qualified ophthalmologist, but he never performed any refractions under that ophthalmologist's supervision. In March 1980, Avello opened the Optical Medical Center. With the exception of the period during which Suarez supervised Avello, the center has always had in its employ a board qualified or certified ophthalmologist. During those times, all eye examinations were performed by the ophthalmologist, and Avello did no refracting. While Avello considers himself qualified to do refracting, the proof regarding his training and experience renders his opinion unpersuasive. At no time was he shown to have worked under the supervision of a qualified practitioner, and no qualified practitioner was shown to be familiar with the quality of his work. Further, Avello was not shown to have had any qualified training or experience in measuring the human eye; prescribing eye glasses and contact lenses; or preparing, dispensing, and fitting eyeglasses and contact lenses. Accordingly, the proof established that Suarez accepted and performed professional responsibilities which he knew he was not competent to perform, that he assisted an unlicensed person to practice medicine contrary to law, and that he delegated professional responsibilities to a person he should have known was not qualified to perform them. The proof further established that the existent community standard required that a complete eye examination be performed before eyeglasses or contact lenses could be prescribed, and that such standard was breached. Suarez' failings could have resulted in profound adverse consequences to those patrons who were ostensibly refracted and fitted under his supervision. Improperly fit eyeglasses can result in blurred vision and nausea. More importantly, improperly fit contact lenses can result in permanent visual damage to the eye. In mitigation, Suarez avers that he agreed to supervise Avello out of a sense of personal obligation, not profit; that his employment was to be for the limited time it took Avello to secure the services of another physician; and, that when he undertook to supervise Avello he believed such activity to be legal. Suarez also offered for consideration in mitigation the fact that he cooperated in the investigation of the Optical Medical Center, and the fact that he had never previously been disciplined. Suarez' plea in mitigation is largely unpersuasive. While he may have undertaken Avello's supervision out of a sense of personal obligation, it was not without the expectation of compensation. Suarez and Avello had agreed, that if their association proved profitable, he would be compensated for his services. Notably, while Suarez' desire to fulfill a personal obligation is admirable, its priority is far below that owed to those to whom he professed to render a professional service. In this case, Suarez' supervision permitted an unqualified person to render professional services that he, as a medical doctor, was not qualified to perform, and therefore not qualified to supervise. No physician could reasonably believe such conduct was appropriate.4 Suarez' assertion that his association with Avello was to be of limited duration is not only irrelevant, but contrary to the proof. Suarez supervised Avello for 1 1/2 years, and there was no showing that Avello or Suarez made any effort during that period to hasten his replacement. Notably, during his association with Avello's business, the front of the store proclaimed in bold guilding "Optical Medical Center, Santiago F. Suarez, M.D." Under the circumstances, the proof does not suggest that their association was to be casual or of short duration.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The medical license of Respondent, Santiago F. Suarez, be suspended for a period of one (1) year, and that during the period of such suspension Respondent be required to complete such courses as the Board of Medicine may require to demonstrate an adequate comprehension of professional ethics, scope of practice for a family practitioner and delegation of professional responsibility; and An administrative fine in the sum of $2,000.00 be ~ assessed against Respondent, Santiago F. Suarez. DONE and ORDERED this 15th day of September, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1987.
The Issue 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.
Findings Of Fact On October 9, 1992 Petitioner executed a sworn application for licensure as a life and variable annuity and health insurance agent. Such application was filed with the Department on October 13, 1992. At the Department's request, the Petitioner sent a second application by facsimile transmission on February 19, 1993. This second application was unexecuted, that is, unsworn but was on the same form as previously described in paragraph 1. On each copy of the application, Petitioner responded "yes" to the question: Has your application for a license ever been declined or denied by this or any other Insurance Department or has your License or eligibility to hold a license ever been declined, denied, suspended, revoked, placed on probation or an administrative fine or penalty levied? On each copy of the application, Petitioner responded "no" to the question: Does any insurer or general agency claim that you are indebted under any agency con- tract or otherwise? If yes, please attach a letter of explanation. When the Department requested additional information regarding Petitioner's answer to the question described in paragraph 3, the Petitioner gave a response that led to the review of a final order entered by the Department on October 30, 1990. As set forth in the final order and the recommended order attached thereto, the basis for the Petitioner's prior revocation, was a pattern of deceit evidenced by false statements on applications for insurance, by the forgery of names on applications for proposed insureds, and by forging names for requests for cancellation of coverage. As a result of the actions described in paragraph 6, the insurer for whom Petitioner worked at the time, Colonial Life and Accident Insurance Company (Colonial), took legal action against Petitioner for damages incurred or to be incurred by the company as a result of the deceit. That civil suit was settled by the entry of a settlement judgment in which Petitioner agreed to repay Colonial damages in the amount of $60,000. The amount was to be repaid pursuant to a payment schedule. At the times Petitioner filed applications with the Department (October and February), such monies had not been repaid and Petitioner was, in fact, in default on the payment schedule. Colonial is currently owed approximately $32,000 of the original settlement. Additionally, when Colonial sought to enforce its judgment against Petitioner, he filed for bankruptcy to protect his assets and to restructure his debt. Thus when Petitioner answered in the negative to the question outlined in paragraph 4, such answer was incorrect and misleading. On February 24, 1993, the Department notified Petitioner that his application for licensure had been denied. The actions complained of, and which gave rise to Petitioner's prior revocation, were fully established in the prior proceeding. Petitioner's misstatement on the current application gives concern as to whether misleading statements or misrepresentations may recur.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order that denies Petitioner's application for licensure. DONE AND RECOMMENDED this 11th day of August, 1993, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 11th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2587 The Petitioner submitted proposed findings in the form of a letter. Only the second and third paragraphs of that letter set forth findings of fact, the remainder of the letter is hereby rejected as argument, comment, or conclusions of law, not fact. Rulings on the proposed findings of fact submitted by Petitioner: With regard to the second paragraph, it is accepted that the Department was aware of the Petitioner's indebtedness to Colonial. That Petitioner, or his agent, wrote to Mr. O'Neil is rejected as irrelevant. Further, such letter is not accepted for the truthfulness of the matters asserted in it. When confronted, Petitioner has been truthful regarding the indebtedness to Colonial; such indebtedness, however, was not accurately depicted on the application for licensure. With regard to the third paragraph, it is accepted that Petitioner has repaid some of the indebtedness to Colonial; otherwise, the paragraph is rejected as not supported by the credible evidence presented in this case. Rulings on the proposed findings of fact submitted by Respondent: 1. Paragraphs 1 through 19 are accepted. COPIES FURNISHED: Lawrence Sherman Lowe, III, pro se 9150 South West 23rd Street, Apt. D Fort Lauderdale, Florida 33324 John R. Dunphy Department of Insurance and Treasurer Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact David R. Ness, Petitioner, attended Southern College of Optometry in Memphis, Tennessee, and graduated in May 1990. Part of his training included a three-month externship with James C. Lanier, O.D., an optometrist practicing in Jacksonville, Florida. Dr. Lanier found him a very competent student, thorough in his fact finding and case histories; and satisfactory, if not above average, in his examination of the patients. Dr. Lanier did not participate in the grading of the examination in issue and has no personal knowledge of Petitioner's performance on the examination. Petitioner sat for the September 1990 Optometry licensure examination. He passed the certification portion of the examination and the laws and rules section; he failed the pharm./ocular portion and the clinical portion. After several challenges to the examination, the Board adjusted some scores, but Petitioner's scores in the pharm./ocular section and the clinical sections were still below passing. Written Examination The pharmacology/ocular written portion of the examination consists of a series of case histories, with five questions directed to each. Petitioner explained that he challenged his score on the following specific questions: History #1, question #4; History #5; question #23; History #7, questions #32-35; and History #10, question #48. Case history #1 describes a 19-year old female soft contact lens wearer with symptoms correctly identified by Petitioner as Giant Papillary Conjunctivitis. The patient relies on her contact lenses because she is an actress. The severity of her condition is 3+ on a scale of 1-4, with four being the most severe. Question #4 requires selection from six choices of the initial management course of choice. Petitioner chose "c", Pred Forte suspension, every two hours. Pred Forte is the strongest commercially available steroid and its application every two hours is reserved for very severe cases. While the condition described is moderate to severe, the better answer is "f", "switch to preservative free system, enzyme cleaning 1 time a week". The patient's cleaning solution, described in the case history, is an old solution with a preservative which is known to cause conjunctivitis. While the safest course would be to discontinue contact lens wear, this is a radical option for a patient who must wear the lenses for her work. The preferred course then is to change the solution to see if the condition improves before moving to a less conservative treatment such as Pred Forte. Case history #5 describes symptoms and includes a color photograph of the eye in issue. Petitioner correctly identified the differential diagnosis as "Essential Iris Atrophy" and "Reiger's Anomaly". The next question, #23, states that the fellow eye shows similar findings in a slit lamp examination, and asks which of the differential diagnoses is the final diagnosis. Petitioner selected "Essential Iris Atrophy". The correct answer is "Reiger's anomaly". Essential Iris Atrophy is almost always unilateral and Reiger's is bilateral. The question required the examinee to know this distinction. Case history #7, describes a 37-year old patient with alleged recent vision field loss which occurred after thoracic surgery. The history describes an examination in which the patient remarks that he "isn't going to sue the physician" and where, with coaxing, his vision is much better than he admits. The patient also presented summary results of carotid artery testing and CT studies, which were normal. In his answers to questions 32-35, Petitioner chose diagnoses and treatment based on his conviction that he should try to help anyone who would come to him. He missed the fact that the patient described in the case history is a malingerer who likely is trying to sue his surgeon, and who requires no treatment. Case history #10 describes a 68-year old patient who is being examined for fitting of an extended wear contact lens. The best corrected vision is 20/50 OD, with or without a contact lens. The examination question includes two photographs, one of the fundus examination, the other of a fluorescein angiogram. An angiogram is obtained by injecting dye in the forearm and taking pictures with a special filter as the dye circulates through the blood vessels within the eye. This process is able to reveal abnormalities in the eye. Petitioner missed the question relating to the final diagnosis, which should have been "age-related macular degeneration with secondary choroidal neovascular membrane". Final diagnosis relied, in part, on the fluorescein angiogram. While Petitioner is not arguing that his answer is correct, he contends that the question itself is invalid, because it depends on a process which optometrists are not licensed to perform and it was too technical for recent graduates. People coming out of school have been exposed to live patients and have seen fluorescein angiograms performed and have seen their photographs. Moreover, in Florida, the number of elderly patients makes it necessary that optometrists be proficient in diagnosing age-related macular degeneration. The Practical/Clinical Examination Section 1 of the clinical portion of the practical examination involves the two examiners' review of the examinee's performance of an actual eye examination of a live patient. The two examiners are briefed extensively prior to the examination as to what to look for, but they do not confer during the examination when scoring various functions. For this reason, there may be disagreement between the two examiners. The scores are averaged. On section 1, item #6, with regard to the patient's case history, "follow-up information", the point spread is 0-7, with points being subtracted for failure to follow up on certain information. One examiner gave Petitioner the maximum number of points for the entire case history section. The other examiner gave Petitioner a "no" (0 points) under "personal ocular history", and commented on the examination score sheet that the examinee did not ask ocular history. The same examiner took off 2 points on item #6, "follow-up information" and commented, "did not ask ocular history". At some point during Petitioner's initial challenge, he was given credit for item #3, because it was determined that he did obtain an ocular history. The additional points were not restored to item #6, but should have been; as the failure to obtain that history is the basis for the reduced score. The examiner was not present at hearing to explain any other basis. Section 2 of the clinical portion of the practical examination requires the examinee to perform a series of functions under the scrutiny of two examiners (not the same two as in section 1). Again, the scores are awarded without consultation and there are discrepancies. In each area the examiner marks "yes" or "no" as to whether the procedure is properly performed. A "no" must be supported with the examiner's comment. Two yes marks entitle the examinee to 2 points; a yes/no is worth one point; and two no's are scored zero. For each function, the examinee must demonstrate twice. That is, he says "ready", and the first examinee views the result, then he prepares again and signals, "ready", for the second examiner. For section 2, the candidate is performing techniques or functions on his own patient, a patient whom he brings to the examination and with whom he is familiar. Petitioner is challenging the grading method for Section 2. In 6 out of 16 techniques or functions, the two examinees disagreed; that is, one gave a "yes", and the other, a "no". Petitioner contends that he should get full credit anytime he got one "yes", since that indicates that two people, the examinee and one examiner, agree. There are several reasons why two examiners may disagree on whether the examinee performed a function or technique properly. In some instances one examiner may give the individual the benefit of the doubt; in other cases the patient might move or blink or the examinee might lose his focus. The fact that two examiners independently assess the results gives the examinee two chances to demonstrate his skill. The third section of the clinical examination requires an examination of a live patient where the refractive error of the patient's vision is determined, and a prescription is made. Before being presented to the examinee, the patient is examined independently by three licensed optometrists serving as "monitors". Their examinations give the refraction results against which the examinee's results are compared. Their examinations also determine whether the patient is suitable; that is, the eye must be refracted correctable to 20/20 and the other eye correctable to 20/50. A fourth monitor reviews the results before the patient is presented to the examinee. In this case the patient was examined by the monitors and was found acceptable. Petitioner had problems with the patient; the best he could read was the 20/25 line. Petitioner felt that the patient should have been disqualified and commented in writing on that at the end of his examination, as was appropriate. The comments were reviewed by Dr. Attaway, who considered that the patient had met the criteria when examined by the monitors. Petitioner's refractions varied significantly from the monitors' refractions, which also varied somewhat from each other. Petitioner received a score of 3, out of possible 20, on this portion of the examination. Dr. Attaway did not, himself, examine the patient and the monitors who performed the examinations were not present to testify. The only evidence to rebut Petitioner's findings was the written report of the monitors. Pass Rate for the Examination Out of 130 candidates, approximately 34 percent passed all parts of the September optometry examination. In 1986, 51 percent passed; in 1987, 33.5 percent passed; in 1988, 59.6 percent passed; and in 1989, 52 percent passed. These figures do not, alone, establish that the test is too technical or unfair, nor does the fact that very good students failed. When the examinations are evaluated, when the examinee's performance is rated, there is no established pass rate; the monitors have no idea how close the individual examinee is to passing, either originally or when a challenge is being addressed. Petitioner was a very articulate and candid witness. His two experts were clearly knowledgeable and were sincerely concerned that he should be licensed. None had the experience of Respondent's witnesses, also well-qualified licensed optometrists, in working with the examination. With the exception of the inconsistent score on Section 1, item #6, Petitioner failed to prove that he is entitled to a higher score on any portion of the examination, or that the examination itself was invalid or unfair.
Recommendation Based on the foregoing, it is hereby, recommended that Petitioner's final score on Section 1 of the clinical examination be adjusted to reflect full credit for Item #6; that he be permitted to retake Section 3 of the clinical examination; and that his remaining challenges to the examination be denied. RECOMMENDED this 29th day of May, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0700 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings 1.-2. Adopted in paragraph 2. 3. Adopted in substance in paragraph 20. 4.-6. Rejected as irrelevant. Adopted in summary in paragraph 2. Rejected as contrary to the evidence. Finding of Fact #15 reflects the grades after adjustment. Rejected as unnecessary. Adopted in paragraph 1. Rejected as unnecessary. Rejected as irrelevant. This fact does not make the examination invalid so long as it fairly evaluates the qualification of the applicant. 13.-14. Rejected as statements of statutory language rather than findings of fact. Respondent's Proposed Findings The Hearing Officer is unable to find where in the record the exact final score of Petitioner is reflected. Adopted in paragraph 1. Rejected as restatement of testimony rather than findings of fact. 4.-5. Rejected as unnecessary. 6.-15. Rejected as restatement of testimony; summary statements, or argument, rather than findings of fact. COPIES FURNISHED: David R. Ness 611 Poinsettia Avenue Titusville, FL 32780 Vytas J. Urba, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Patricia Guilford, Exec. Director Dept. of Professional Regulation Board of Optometry 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792
