Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is hereby CLOSED. DONE AND ORDERED on this day of Aol’ -2644-in Tallahassee, Florida. Elizabeth (Dudek Aecretary Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. AHCA vs. Superior Stores Discount Distributor d/b/a Surgical World Final Order (C.I. #11-2146-000) Page 1 of 2 Copies furnished to: Louise T. Jeroslow, Esquire 6075 Sunset Drive, Suite 201 Miami, Florida 33143 Telephone: (305) 740-7431 Facsimile: (305) 740-8960 (Via Facsimile and U.S. Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive - Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Interoffice Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Interoffice Mail) Mike Blackburn, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Eric Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Agency for Persons with Disabilities 4030 Esplanade, Suite 380 Tallahassee, Florida 32399-0950 (Via Email Only) CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, or the method designated, on this the x day of Pyar arf , 2014-7 a= ee Richard Shoop, Esquire Agency Clerk State of Florida, Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308 Telephone: (850) 412-3630 AHCA vs. Superior Stores Discount Distributor d/b/a Surgical World Final Order (C.1. #11-2146-000} Page 2 of 2
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is hereby CLOSED. DONE AND ORDERED on this “a” day of Deste , 2013, in Tallahassee, Florida. ye Dudek, cle t Agency for Health Care Administration Agency for Health Care Administration v. Maxim Health Care Services, Inc. Final Order — Page 1 of 3 Filed October 24, 2013 3:16 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Michael J. Glazer, Esquire Jennifer F. Hinson, Esquire AUSLEY & McMULLEN 123 S. Calhoun Street, P.O. Box 391 Tallahassee, Florida 32301 melazer@ausley.com jhinson@ausley.com (Via Electronic Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Electronic Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Electronic Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Electronic Mail) Richard Zenuch, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Electronic Mail) Eric W. Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Electronic Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Electronic Mail) Florida Department of Health Medical License #ME0060415 (Via Email Only) Agency for Health Care Administration v. Maxim Health Care Services, Inc. Final Order - Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, or the method designated, on this the ZZ “day of LASDf2S 2013. Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630/(850) 921-0158 FAX Agency for Health Care Administration v. Maxim Health Care Services, Inc. Final Order — Page 3 of 3
The Issue The issue in this matter is whether the Respondent, Gloria Scavella, should be suspended from her employment for thirty days for just cause. The Petitioner, School Board of Miami-Dade County, Florida, (Petitioner or Board) maintains the suspension should be upheld.
Findings Of Fact The Petitioner is authorized by Florida law to operate and administer the public schools within the Miami-Dade County School District. Accordingly, all personnel decisions, such as the matter at issue herein, fall within its operational authority. At all times material to the issues of this case, the Respondent was an employee of the School District. The Respondent served as a full-time paraprofessional assigned to Skyway Elementary School. The Respondent has been so assigned for approximately eight years. The terms and conditions of her employment with the School District are governed by a collective bargaining agreement between the Petitioner and the United Teachers of Dade (UTD contract). School employees receive training annually regarding the rules and regulations of the School District. More specifically, staff members, including the Respondent herein, are apprised of the School Board’s policy regarding corporal punishment. At all times material to the incident complained of in this case, the Petitioner maintained a policy that prohibited corporal punishment. That policy, School Board Rule 6Gx13-5D- 1.07 (prohibiting the use of corporal punishment), was clearly and fully outlined in a handbook distributed to school employees. There is no dispute that the Respondent knew or should have known of the policy. In fact, according to records maintained at Skyway Elementary School, the Respondent was present during the staff meeting when employees were reminded, among other topics, of the policy regarding corporal punishment for the school year at issue in this proceeding. It is undisputed that the Respondent’s assignment at Skyway Elementary was difficult. At times the Respondent was charged with the responsibility of maintaining order among numerous students, some acted disruptively. Prior to the incident complained of, the Respondent enjoyed a reputation as an excellent employee. She had no prior disciplinary incidents and had been recommended for commendations for her fine work. Nevertheless, on February 27, 2003, the Respondent struck a student in such a manner that it caused the student embarrassment and minor physical discomfort. On the date in question, the Respondent was supervising a group of students on the “hard court” outside the school building during the early pre-school time. Students congregate in the area before entering the classrooms at the time designated for school to start. It is common for parents to wait with their children in this area as well. The incident complained of in this case occurred while one student, R. F., played with the younger sibling of another student who was present on the hard court waiting with the parent. Following a minor exchange between the parent and R. F., the Respondent came to the scene to ask what had happened. The parent, who had observed the young sibling and the student, R. F., told the Respondent that R. F. had hit the sibling. When the Respondent was so advised, she turned to R. F. and slapped him on the head. The manner of the “slap” did not result in physical injury to R. F. Although the student cried, the credible evident would suggest that the tears were prompted more from embarrassment than from physical pain. Later, on realizing the student had been embarrassed, the Respondent promptly went to the student, apologized for the incident, and believed the matter had been fully resolved. The Respondent maintains that she did not intend to embarrass the student and did not strike the student as an act of corporal punishment. The Respondent claims she “pushed” the student’s head to get his attention so that he would refrain from involvement with the young sibling. As one might expect, word of the incident spread among members of the school community. Eventually the principal learned of the incident. The principal spoke to several persons regarding the incident including R. F., his parents, and the Respondent. Pursuant to School District protocol, the principal referred the matter to the school police for investigation. The school police followed up with an investigation of their own and decided to substantiate the claim that Respondent had violated the Board’s corporal punishment policy. School employees are expected to conduct themselves in a manner that will reflect credit on themselves and the School District. The Petitioner’s Office of Professional Standards (OPS) conducted a conference for the record to address the findings substantiated by the school police’s investigation. During that conference the Respondent was again offered an opportunity to explain the incident that occurred on February 27, 2003. The Respondent has not offered a credible explanation for why she touched the student, R. F., on the date in question. There is undisputed evidence that there was physical contact between the student and the Respondent. It is undisputed that Respondent initiated that contact. It is undisputed that the student was sufficiently embarrassed by that contact that he began to cry. And it is undisputed that the Respondent knew she had caused the student distress because she went to him and apologized. It is immaterial whether the touching was a “tap,” a full force “slap,” a “smack,” or a “pop.” It was directed from the Respondent to the student and it was intended to get his attention and to modify his behavior. It was an inappropriate touching. When the OPS reviewed the incident a recommendation for a 30-day suspension was made to the Petitioner. According to Ms. Siblesz the Petitioner does not suspend employees for more or less than 30 days. Presumably, if a suspension is warranted it must be for 30 days. Presumably, if more than a 30-day suspension is warranted, termination is appropriate. Thus the question becomes, what if less than a 30-day suspension is warranted? Apparently the Petitioner has no mechanism to discipline an employee with less than a 30-day suspension. The Respondent is a 13-year employee of the School District with an excellent work history. The Respondent serves in a difficult role and is invaluable to the teachers she assists.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order affirming the 30-day suspension of the Respondent. S DONE AND ENTERED this 30th day of March, 2004, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 30th day of March, 2004. COPIES FURNISHED: Merrett R. Stierheim Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Marci A. R. Rosenthal, Esquire Miami-Dade County School Board Suite 400 1450 Northeast Second Avenue Miami, Florida 33132
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is hereby CLOSED. DONE AND ORDERED on this “a” day of Deste , 2013, in Tallahassee, Florida. ye Dudek, cle t Agency for Health Care Administration Agency for Health Care Administration v. Maxim Health Care Services, Inc. Final Order — Page 1 of 3 Filed October 24, 2013 3:11 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Michael J. Glazer, Esquire Jennifer F. Hinson, Esquire AUSLEY & McMULLEN 123 S. Calhoun Street, P.O. Box 391 Tallahassee, Florida 32301 melazer@ausley.com jhinson@ausley.com (Via Electronic Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Electronic Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Electronic Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Electronic Mail) Richard Zenuch, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Electronic Mail) Eric W. Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Electronic Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Electronic Mail) Florida Department of Health Medical License #ME0060415 (Via Email Only) Agency for Health Care Administration v. Maxim Health Care Services, Inc. Final Order - Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, or the method designated, on this the ZZ “day of LASDf2S 2013. Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630/(850) 921-0158 FAX Agency for Health Care Administration v. Maxim Health Care Services, Inc. Final Order — Page 3 of 3
Conclusions THIS CAUSE is before me for issuance of a Final Order. In a letter dated September 6, 2012, a copy of which is attached as Exhibit A, Health Services of Dade, Inc. (“Respondent”) was informed that the State of Florida, Agency for Health Care Administration (“AHCA” or “Agency”) was seeking to recoup Medicaid overpayments in the amount of Eleven Thousand, Eight Hundred Forty-Two Dollars and Sixty-Five Cents ($11,842.65). The Respondent was further informed in the letter that the Agency intended to impose a fine of Two Thousand, Three Hundred Sixty-Eight Dollars and Fifty-Three Cents ($2,368.53) for violation(s) of Florida Administrative Code Rule 59G-9.070(7) (e), and costs in the amount of One Hundred Fourteen Dollars and Sixty-Eight Cents ($114.68), for a total amount due of Page 1 of 5 Filed December 4, 2013 4:20 PM Division of Administrative Hearings CASE NO. 13-3862MPI AHCA v. Health Services of Dade, Inc. Final Order Fourteen Thousand, Three Hundred Twenty-Five Dollars and EBighty-Six Cents ($14,325.86). Pursuant to §409.913(6), Florida Statutes, the letter was sent by FedEx® Delivery to Respondent at the address last shown on the provider enrollment file. Respondent received the letter by FedEx® Delivery on September 12, 2012. A Petition for a Formal Administrative Hearing was received by AHCA on September 25, 2012. AHCA initially referred the Petition to the Division of Administrative Hearings (DOAH) for assignment to an Administrative Law Judge (“Judge”) on November 1, 2012. The case was assigned DOAH Case No. 12-3543MPI. Upon Joint Motion of both parties, on November 2, 2012, the Judge entered an Order Closing File and therein remanded the case back to AHCA. On October 3, 2013, AHCA filed with DOAH a Motion to Reopen Proceeding. This case was assigned DOAH Case No. 13-3862MPI. On October 9, 2013, the Respondent filed with DOAH a Motion to Rescind Petition for Formal Hearing. On October 10, 2013, the DOAH Judge entered an Order Closing File and Relinquishing Jurisdiction to AHCA. Page 2 of 5 CASE NO. 13-3862MPI AHCA v. Health Services of Dade, Inc. Final Order
The Issue Whether Respondent violated Section 463.014, Florida Statutes, by violating Rule 64B13-3.008(15)(a), Florida Administrative Code; violated Section 463.014, Florida Statutes, by violating Rule 64B13-3.008(15)(f), Florida Administrative Code; violated Section 463.016(1)(h), Florida Statutes, by violating Rule 64B13-3.009(2)(b), Florida Administrative Code; and violated Section 463.016(1)(f), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact At all times material, Respondent was licensed to practice optometry by the State of Florida, Board of Optometry. On or about April 19, 1998, Respondent entered into a lease agreement captioned "Equipment License," with U.S. Visions, Corp., to lease space and equipment as an optometric office in the J. C. Penney retail store on Mary Esther Avenue, Mary Esther, Florida. This location also constitutes the Santa Rosa Mall. Respondent paid $100.00 monthly rent for this office space. At all times material, Respondent also maintained a separate office for the practice of optometry under the name "Coastal Vision Center" in rental space in Destin, Florida. Respondent paid $2,900.00 monthly rent for the Destin office space. Respondent practiced in both locations during 1998. Respondent practiced under a professional corporation, named Shannon Fowler, O.D., P.A. Respondent's office space at the J.C. Penney location was inside the J.C. Penney retail store. Adjacent to Respondent's office space was the "J.C. Penney Optical Center," in which an optometrist practiced, and in which eyeglasses, contact lenses, and other optical merchandise could be purchased. Respondent personally placed a sign at the entrance to his office space at the J.C. Penney location identifying himself by name, stating that an independent practice of optometry was located there, and stating that he was not affiliated with the J.C. Penney retail store. During the time he practiced at the leased office space located in the J.C. Penney store, Respondent maintained telephones listed in his name at both his office locations. The telephone number for his office in J.C. Penney was different than the telephone number for his Destin office. Only Respondent, himself, answered Respondent's telephone at the J.C. Penney location. This telephone and telephone number were separate and had a different telephone number from the telephones for the J.C. Penney Optical Center. The receptionist at the J.C. Penney Optical Center occasionally made appointments with Respondent for persons who walked into the J. C. Penney Optical Center or who telephoned the J. C. Penney Optical Center telephone, but all such appointments were subject to confirmation by Respondent. There was no formal arrangement or agreement for the J. C. Penney Optical Center receptionist to make appointments over the Optical Center telephone for Respondent, and Respondent did not pay the receptionist. However, Petitioner benefited if the appointments she made were confirmed by him and actually kept by the patient. All of Respondent's patients at either location were advised that Respondent maintained an office in Destin, and all of his patients were advised to call a third telephone number, Respondent's cell phone number, for after-hours or emergency matters. All after-hours matters were handled at the Destin office by Respondent. However, patient files for patients that Respondent saw solely at the J.C. Penney location were stored by Respondent at that location. Respondent had no after-hours access to the J.C. Penney store. If there were an emergency, Respondent would have to obtain the patient's file the following day. At both office locations, Respondent, alone, determined which patients to see, what examinations and procedures to conduct, what optometry services to render, and what fees to charge any patients for his services. The lease agreement for Respondent's office space at J.C. Penney contained provisions precluding U.S. Visions Corp. from interfering with, or regulating, Respondent's independent practice of optometry in the office space he had leased. The lease agreement also contained a provision by which U.S. Vision Corp. covenanted not to violate Florida law. Respondent's lease with U.S. Visions Corp. prohibited his selling "frames, contacts, and related items" at the J.C. Penney location. Respondent did maintain inventory, employ an optometrist, and sell eyeglasses, lenses and frames at the Destin location. Respondent worked out of the J.C. Penney location three half-days per week on Mondays, Tuesdays, and Wednesdays. When requested by the patient, Respondent accepted the J.C. Penney credit card as payment for optometric services rendered at that location. When such card was used by a patient to pay for Respondent's services, J.C. Penney processed the payment and billed the patient directly. J.C. Penney rendered accounting and payment in full to Respondent for services charged on the credit cards on a bi-monthly basis. There is no evidence as to whether payment to Respondent was, or was not, affected by a delinquent payment by a patient to J.C. Penney. Respondent also accepted payment for his services rendered to patients at either location by check, cash, and Visa, Mastercard, and American Express credit cards. The patient elected which manner of payment to tender. Respondent's business records indicate that all of these forms of payment were utilized by patients at both locations. J.C. Penney charged a two-percent (2%) processing fee for the collection and accounting of services charged by patients on their J.C. Penney credit card. This fee, and the manner in which J.C. Penney processed the payments charged to the J. C. Penney credit card, are comparable to, and do not materially differ from, the typical arrangements between small business merchants and issuers of the other major credit cards which Respondent accepted. Unrefuted testimony of a certified public accountant employed by Respondent was to the effect that the financial records of Respondent's two optometry offices for 1998 show no indication that J.C. Penney exercised any influence or control over Respondent's independent practice of optometry or billing practices, and in fact, indicate that J.C. Penney did not. There is no evidence that the Respondent ever used prescription forms or any other forms referring to J.C. Penney at either of his office locations. On July 12, 1998, an advertisement appeared in the Sunday supplement to the "Northwest Florida Daily News" under the heading "J.C. Penney Optical Center," advertising a "FREE eye exam & 50% off frames." In very small print, the advertisement said, "we'll pay for your eye exam for eyeglasses by deducting up to $40 from your prescription eyeglass purchase." The advertisement specified "Santa Rosa Mall." The J.C. Penney Optical Center is not a licensed optometrist. A corporation can never hold an optometrist license. Only an individual can be licensed as an optometrist in Florida. The record is silent as to who or what entity placed the advertisement. Respondent was not named in the advertisement. Respondent did not place the advertisement. There is no evidence that Respondent had any involvement in the text or publication of the advertisement. Respondent did not have any prior knowledge that the advertisement was going to be published. U.S. Visions Corp. had never published any advertisement prior to July 1998, and Respondent did not foresee that the subject advertisement would be published. Respondent had no opportunity or means to prevent the publication of the advertisement. Respondent did not approve of, or consent to, the publication or content of the advertisement. Respondent had no opportunity to review the advertisement prior to publication. The lease for the J.C. Penney office location did not provide for U.S. Vision Corp. to do any advertising for Respondent. Respondent had no arrangements for advertising with either U.S. Vision Corp. or J.C. Penney. Respondent did not contemporaneously see the advertisement. He learned about it only through service of notice of the Department of Health's investigation into the advertisement, which ultimately resulted in this case. No patient or potential patient ever brought the advertisement or the coupon in the advertisement to Respondent or ever requested that the Respondent provide optometry services in accordance with the advertisement or the coupon. Respondent did not provide any optometry services in accordance with the advertisement or coupon, and would not have done so if requested. Respondent received no benefit from the advertisement. Respondent provided no "FREE" eye exams. The Respondent charged $49 per eye exam. The agency's expert witness, a licensed optometrist and former member of the Board of Optometry, testified that he believed that, on its face, the advertisement implied an association or affiliation between Respondent and J.C. Penney; that an optometrist practicing at J.C. Penney could be expected to benefit from the advertisement because of the content of the advertisement; that the advertisement was misleading because a person reading it would expect an eye exam to be "FREE"; and that when there is a lessor-lessee relationship of the type presented in this case, the Respondent optometrist has a responsibility to ensure that advertisements conform to the optometry statute and rules. The same expert witness testified that Chapter 463, Florida Statutes, does not prohibit optometrists from commercial establishments.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board of Optometry enter a final order dismissing Counts II, III, and IV, finding Respondent guilty of Count I of the Second Amended Administrative Complaint, and issuing a reprimand. DONE AND ENTERED this 2nd day of March, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 2nd day of March, 2001.
