The Issue The issue in this case concerns whether Respondent violated Section 484.014(1)(f), Florida Statutes, in the manner alleged in an administrative complaint and, if so, what penalties should be imposed.
Findings Of Fact Respondent is, and at all times material has been, a licensed optician in the State of Florida, having been issued license number DO 2390 on November 29, 1984. At all times material, Respondent has operated, or has assisted in the operation of, a business named Fast Eyes Optical, located at 8246 Jog Road, Boynton Beach, Florida 33437. On or about January 3, 2002, customer R.S., accompanied by a friend (L.E.), visited Fast Eyes Optical, where they were attended by Respondent. Both R.S. and L.E. decided they would each buy a pair of Oakley sunglasses. Respondent quoted an initial price of $634.00 per pair for the Oakley sunglasses with prescription lenses. Ultimately, Respondent agreed to sell the Oakley sunglasses for $500.00 per pair. At the time in question, the Oakley sunglasses came from the manufacturer with non-prescription lenses made from a material known as polycarbonate. Polycarbonate lenses are noted for being impact resistant. Polycarbonate lenses are more impact resistant than lenses made of a plastic material known as CR-39. Polycarbonate lenses are particularly desirable for people who frequently engage in sports or otherwise lead a very active lifestyle in which they are at greater risk of some form of impact to their eyewear. Plastic lenses made from CR-39 have better optical characteristics than polycarbonate lenses, and, from a visual acuity point of view, are a better choice material than polycarbonate. R.S. wanted to have prescription lenses in his new Oakley sunglasses. Respondent told R.S. that Respondent could put prescription lenses in the new Oakley sunglasses that would duplicate the prescription in the glasses R.S. was wearing when he came into the store, but that he would have to send off for the prescription lenses for the Oakley sunglasses. It was ultimately agree that Respondent would obtain prescription lenses for the new Oakley sunglasses and that when the new sunglasses were ready, Respondent would mail them to R.S. at R.S.'s home in Ohio.1 Using a device called a lensometer, Respondent examined the glasses R.S. was wearing when he came into the shop and determined the prescriptions that were in the lenses in those glasses. Respondent ordered lenses for the Oakley sunglasses that matched the prescriptions in the glasses R.S. was wearing that day. While R.S. was still in the shop, Respondent explained to him that Oakley did not (at that time) make prescription lenses for the frame model R.S. was buying, that the prescription lenses for the sunglasses would not be Oakley lenses, and that the lenses would be made from a plastic material called CR-39 because Respondent thought CR-39 was a better choice lens material in view of the purposes for which R.S. was buying the sunglasses.2 In due course Respondent mailed a pair of Oakley sunglasses to R.S. in Ohio. Shortly after receiving the sunglasses, R.S. went on a trip to Mexico. While in Mexico, and while wearing the sunglasses he had received from Respondent, R.S. fell down at least three different times at the same place on the same set of stairs in the same Mexican restaurant. His last fall on those stairs caused R.S. to have a bruised chin, a bruised wrist, and a broken big toe on his left foot.3 Shortly after returning from his trip to Mexico, R.S. went to an optician in Ohio and asked the Ohio optician to examine the Oakley sunglasses he had purchased from Respondent. Upon examining the sunglasses made by Respondent, the Ohio optician communicated the following conclusions to R.S.: The right lens in those sunglasses did not match R.S.'s prescription, the lenses were made from CR-39 plastic material, and the lenses were chipped.4 On March 14, 2002, the Ohio optician sold R.S. a pair of prescription polycarbonate lenses in his correct prescription for his Oakley frame, and replaced the plastic lenses that Respondent had originally placed in the Oakley frame. The Ohio optician charged $321.00 for the new lenses. The polycarbonate lenses sold by the Ohio optician were not Oakley lenses. Not long after his visit with the Ohio optician, R.S. communicated with Respondent and complained about the things the Ohio optician had told him were wrong with the lenses furnished by Respondent. Respondent told R.S. that R.S. should mail the sunglasses to Respondent and Respondent would correct any problems with the sunglasses. R.S. refused to send the sunglasses back to Respondent because he no longer had any confidence in Respondent. Instead, R.S. asked Respondent to send him a refund of approximately $300.00 to cover the cost of the lenses R.S. bought from the optician in Ohio. Respondent refused to send a refund to R.S., but repeated his offer to make any necessary corrections to the sunglasses. Respondent has a policy of not giving refunds to customers, but Respondent also has a policy of doing whatever is necessary to correct any problems with any of the products he sells.5
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Opticianry enter a Final Order concluding that the violations charged in the Administrative Complaint should be dismissed because the evidence is insufficient to prove the violations alleged by clear and convincing evidence. DONE AND ENTERED this 1st day of April, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. 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 1st day of April, 2004.
The Issue Whether the changes to the Department's Invitation to Bid (Rebid II) suggested by Polaroid and/or NBS should be made? GENERAL. The Parties. The Department is the state agency charged with, among other things, the responsibility to adopt and implement a program for the production of color photographic drivers' licenses for the State of Florida, pursuant to Chapter 322, Florida Statutes. Polaroid and NBS are the two major suppliers of equipment and materials used in the majority of states to produce color photographic drivers' licenses. Both serve approximately 50 percent of the States. NBS is the current supplier of color photographic drivers' licenses in the State of Florida. Definitions. Florida's color photographic drivers' license is essentially a picture of the driver and a data card containing pertinent information about the driver. A camera takes a picture of the driver and the data card simultaneously. The picture is developed in a relatively short period of time and the resulting picture is laminated with a clear plastic. The size of the portion of the driver photographed and the data card are reduced, obviously, when the picture is taken. The terms reduction factor refer to the size of the resulting license compared to the original data card. For example, a requirement that the license not have a reduction factor of greater than 40 percent means that the resulting size of the picture of the data card photographed must be a least 60 percent of its original size. The resulting picture of the driver and the data card is referred to as the core. The core consists of a picture of the driver's face, neck and shoulders, the data card and a "header bar" which is the area above the data card containing "Florida Driver License" on the currently used drivers' license in Florida. The core may be fully laminated with clear plastic. If so, the laminate may be sealed in two ways: "flush-cut" or "lip-seal." If the lamination goes just to the edges of the core, this is referred to as a flush- cut design. If the laminate goes beyond the edges of the core and the front and back lamination is sealed together, this is referred to as a lip-seal design. The type of film used generally is referred to as either "paper-based film" or "plastic or polyester-based film." If the core consist of paper-based film the core will consist of a layer of plastic on the front and back and a paper center. If the core consist of plastic-based film the core will be all plastic. An ultraviolet or black-light security feature means that letters or an image of some kind can be seen with the naked eye only under an ultraviolet or black-light. HISTORY OF FLORIDA'S COLOR PHOTOGRAPHIC DRIVERS' LICENSE. The Initial Contract. Color photographic drivers' licenses (hereinafter referred to as "License" or "Licenses"), have been used in the State of Florida since December 3, 1973. The initial contract entered into by the Department for the provision of Licenses (hereinafter referred to as the "Initial Contract") was with DEK Processes Division of Scott & Fetzer Company. The DEK Processes Division of Scott & Fetzer Company was acquired by NBS in March of 1985. The Initial Contract was entered into for the period 1973 to 1977. The Licenses produced pursuant to the Initial Contract were laminated with a lip seal, measured 3-3/8" x 2-1/8", had a paper-based film core which measured 2-3/4" x 1-3/4" and cost the State 37.98 cents per License. The Initial Contract was renewed in 1977. The renewed contract was valid through 1981 and provided for Licenses which measured 3-3/8" x 2-1/8", flush-cut sealed lamination, a polyester-based film core and cost the State 36.725 cents per License. By using a flush-cut seal, the size of the film core increased to the same size as the License. This increase in size was instituted because of negative reactions to the legibility of the Licenses produced under the Initial Contract raised by law enforcement, merchants and the public. The 1982 Contract. In 1981 the Department solicited bids for a new four-year contract with a four-year extension option (increasing the length of the contract to June 30, 1990). The 1981 Invitation to Bid allowed a large or small license and the use of a paper-based or plastic-based film core. Both Polaroid and NBS submitted bids on the 1981 Invitation to Bid. NBS was awarded the contract, which it entered into with the Department on February 22, 1982 (hereinafter referred to as the "1982 Contract"). The 1982 Contract contained the following relevant provisions: The initial term of the contract was through June 30, 1986; Licenses were to be lip-sealed; The Licenses were to measure not less than 2-3/4" wide and 1-3/4" high and not more than 3-3/8" x 2-1/4" before lamination; A paper-based film core measuring 2-3/9" x 2-3/4"; The price per License to the State during the first four years was to be 42.9 cents; The price per License to the State during any extension was to be 42.9 cents plus or minus the increase or decrease in the cost of material; and The contract could be extended for an additional four years through June 30, 1990. The laminate had to be bonded to the License in such a way that it would be impossible to remove the laminate without destroying the License; and The License had to have an ultraviolet or "black- light" security feature. The current Florida License is produced pursuant to an extension of the 1982 Contract. The First Invitation to Bid - 1985. In June of 1985 the Department decided to issue an invitation to bid seeking to let a new License contract rather than exercising the option to renew the 1982 Contract. This decision was made because of a desire to improve the legibility, security and durability of the currently produced License. In June, 1985, Major Clay W. Keith, former Director of the Department's Division of Drivers' Licenses, proposed the appointment of a task force to study the License in use in 1985 under the 1982 Contract and possible improvements thereto. Major Keith proposed the task force in anticipation of the June, 1986, expiration of the initial four-year term of the 1982 Contract. Three major concerns were raised by the Department with regard to any License the State issued: legibility, durability and security. The Department had received complaints from law enforcement and merchants concerning eligibility of the existing License and previous Licenses. The Department had also received complaints concerning the ability to counterfeit or alter the existing License and previous Licenses. The Department had also had problems with the durability of previous Licenses. Additionally, current law allows renewal of Licenses for six year terms and up to eight or ten years in some cases. On July 3, 1985, Major Keith advised Mr. Leonard R. Mellon, the Director of the Department, and Mr. Fred Dickinson, Deputy Director of the Department, by memorandum that a task force of persons with the expertise believed to be needed to study the existing License was being formed to decide what type of License to use in the future. 0n July 10, 1985, Mr. Mellon wrote a note to Major Keith indicating the following: I do not want a task force established for this purpose. Please see me as soon as possible to discuss this matter. Major Keith, as directed, saw Mr. Mellon. Mr. Mellon gave Major Keith a sample License and told Major Keith that the sample License was what the Department wanted. The sample License was an all-plastic License, similar in design and thickness to a credit card. It had embossed letters, like a credit card, of certain information. Mr. Mellon explained that the sample License would meet the Department's desire to provide a License which was durable, legible and secure. Mr. Mellon obtained the sample License he gave to Major Keith from representatives of NBS, including Barry Horenbein, during a demonstration of identification cards made by DEK sometime during 1985. The 1985 demonstration was attended by Mr. Mellon, Mr. Horenbein, Mr. Vince Toffany, Mr. Carlos Urrutia and Mr. Bobby Bowick. Mr. Toffany, Mr. Urrutia and Mr. Bowick are representatives of NBS. Mr. Horenbein is the legislative liaison of NBS in Florida and has been a close personal friend of Mr. Mellon for over 27 years. The Department ultimately learned that the sample License given to Major Keith by Mr. Mellon could not be produced in the manner that Licenses are produced in Florida. The sample License was produced in a laboratory-type setting and it would be too costly to produce "over the counter" as Licenses are produced in Florida. In the Fall of 1985 the Department issued an invitation to bid instead of renewing the 1982 Contract with NBS and decided not to attempt to produce a License identical to the sample License given to Major Keith by Mr. Mellon. The Department decided to issue an invitation to bid in order to obtained a more legible, durable and secure License. The Department issued an Invitation to Bid on November 27, 1985 (hereinafter referred to as the "First ITB"). Among the specifications contained in the First ITB, were the following: The film core of the License was to be a plastic-based film core; Lamination: flush-cut seal; The License was to measure 3-3/8" x 2-1/8"; and An ultraviolet security system. No requirement as to the maximum reduction factor was contained in the First ITB. At the time the First ITB was issued, Polaroid did not yet have plastic-based film. The Department was not aware of this fact at the time. NBS did have plastic-based film. Based upon information provided to the Department by Polaroid representative, the Department believed that Polaroid could provide a plastic-based film. In fact, Christ Rousseff, an employee of Polaroid, sent a letter dated August 2, 1985, to Mr. Mellon informing him that Polaroid could provide an all plastic-based License. Polaroid and NBS submitted bids in response to the First ITB in January, 1986. Polaroid's bid cost per License was 49.9 cents and NBS's bid cost per License was 56.6 cents. On January 27, 1986 the first bid tabulations indicated that Polaroid's bid was non-responsive as a result of Department of Agriculture testing of the License bid by Polaroid. Polaroid had used a paper-based film core which was revealed in the testing and was contrary to the specifications of the First ITB. NBS's bid to the First ITB was also rejected because the Department of General Services determined that there had not been two responsive bids submitted. The rejection of bids on the First ITB became final agency action. The Department began to prepare a new invitation to bid. On March 6, 1986, Polaroid, at the request of the Department, conducted a demonstration of the type of License it could provide to the Department. Polaroid demonstrated a fully-laminated, lip-sealed, paper-based film core License. The demonstration was attended by Major Keith, Mr. James W. McInnis and other employees of the Department. Mr. Mellon spent about 5 minutes at the demonstration. On March 12, 1986, Major Keith sent a memorandum to Mr. Mellon through Mr. Dickinson concerning the Polaroid demonstration. The Memorandum indicated that Division of Drivers' License personnel agreed that Polaroid had demonstrated the ability to provide an acceptable License. Extension of the 1982 Contract. On March 23 1986, a Sunday, Mr. Mellon and Mr. Dickinson spent the afternoon at the home of Mr. Horenbein. Present were Mr. Horenbein, Mr. Toffany and Mr. Bowick, all of whom represented NBS. A buffet dinner was served. Discussions occurred on this date concerning the price which would be charged for Licenses and whether additional cameras could be provided if the 1982 contract was extended for an additional four years pursuant to the renewal option contained in the 1982 Contract. Mr. Mellon, on behalf of the Department, and the representatives of NBS agreed at the Sunday dinner that the 1982 Contract would be extended. Agreement was reached on a price per License to be paid and on the provision of additional cameras. Other discussions had taken place concerning whether to extend the 1982 Contract. On Monday, March 24, 1986, Mr. Dickinson met with Department personnel and informed them that the 1982 Contract would be extended. A Renewal of Color Photographic Driver License Agreement was prepared. This agreement provided that the price per License for the extended term would be a set price of 42.9 cents instead of the 42.9 cents per License adjusted for any increase or decrease in the cost of sensitized photographic materials and laminates as specified in the 1982 Contract. The renewal also provided that NBS would provide additional camera equipment. The Department executed and tendered to the Department of General Services its proposed exercise of the option to renew the 1982 Contract. This action by the Department extended the 1982 Contract through June, 1990. Major Keith was not aware of the renewal until after the renewed agreement had been executed. At the time the Department exercised its option to extend the 1982 Contract, the Department only had one week left in which to exercise its option. The option to renew had to be exercised at least ninety days prior to the expiration of the initial term of the 1982 Contract. Because of the lack of time remaining during which the Department could exercise its option, Mr. Mellon decided that renewing the 1982 Contract was in the best interest of the Department. The Department was able to obtain a License at no substantial increase in cost for an additional four years. Following the execution of the renewal of the 1982 Contract, Polaroid filed two Notices of Protest which were filed with the Division of Administrative Hearings by the Department. The Protests were assigned case numbers 86-1337 and 86-1372. On May 6, 1986, Polaroid, the Department and NBS entered into an agreement settling the dispute in case numbers 86-1337 and 86-1372. Pursuant to the settlement agreement, NBS agreed to continue providing Licenses at a cost of 49.58 cents per License. The term of the renewal was shortened to expire on August 31, 1987 and the parties agreed that there would be no further extensions of the 1982 Contract agreed upon without the approval of the Governor and the Cabinet. Finally, the parties agreed that a new invitation to bid would be issued to obtain a provider of Licenses beginning September 1, 1987. The Governor and Cabinet approved the settlement in May of 1986. The settlement became final agency action. Licenses currently being produced in Florida pursuant to the renewal agreement approved by the Governors and the Cabinet contain a core slightly smaller than 1-3/4" x 2-3/4", are enclosed in lip-sealed lamination and use ultraviolet security markings on the back of the Licenses. The data card reduction factor is 42 percent. Rebid I. On June 6, 1986, the Department issued a Request for Information in an effort to preclude the development of noncompetitive specifications for future invitations to bid. In response to this request, Polaroid informed the Department that it could not provide an all-plastic License and NBS indicated that it could. On July 22, 1986, Mr. McInnis circulated the first draft of the specifications for the next invitation to bid to Department personnel. It specified a License with full lamination, lip-seal and a plastic-based or paper- based film core. The draft provided that the core of the License was to measure 3-1/8" x 1-7/8" prior to lamination. Ultraviolet light security markings were also required. For the first time, the draft of the specifications included a reduction factor requirement: The document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the data card shall not be less than 60 percent of the size of the photographed document. Section 4.8.1 of the draft invitation to rebid. This provision was included partially because of the responses to the Request for Information submitted to the Department by Polaroid and NBS. Major Keith was told by Mr. Dickinson that "the front office" wanted Rebid I to require a plastic-based film core. Major Keith understood the "front office" to mean Mr. Mellon. In developing the next invitation to bid, the Department determined that enhanced security was a critical concern that needed to be addressed. At least in part, the Department's concern for security was based upon questions raised about security from the Governor's office, the Cabinet and law enforcement. The Department attempted to determine what security features were available. The Department received sales and promotional brochures for various security products from Polaroid, 3M and Armstrong World Industries, Inc. Polaroid, NBS and 3M were all invited to demonstrate their security features to the Department and they made presentations. Polaroid demonstrated "Polasecure" and 3M demonstrated "Confirm." These products and Armstrong's "Armstrong Advantage" are security markings contained in laminating materials which change appearance when the viewing angle of a License changes. Polaroid and NBS made their presentations to the Department, at the Department's request, in September of 1986. The primary emphasis of the demonstrations was security. On October 3, 1986, the Department issued Invitation to Bid (Rebid I) (hereinafter referred to a "Rebid I"). In Rebid I, the Department included the same overall size requirement (3-3/8" x 2-1/8") included in the First ITB. The requirement that the film core be plastic (polyester, polycarbonate or an equivalent plastic) included in the First ITB was also included in Rebid I. The Department changed the seal specified in Rebid I to a lip-seal, added a requirement that the reduction factor should not exceed 40 percent and required a new security feature. Because lip-seal was specified, the Department also provided that the core of the License should measure 3-1/8" x 1-7/8." Rebid I also included the following security requirement which was not included in the First ITB: The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed. Section 4.8.3. of Rebid I. The new security feature specified in Rebid I provided for the following: The finished license or identification card shall contain pre-applied security markings affixed to the inside surface of the front of the laminate which, when laminated to the film core, will become an integral part of the core ... The security marking feature shall utilize a process which will render the security markings alternately visible and invisible as the viewing angle changes. Any alteration of the security marking must be easily discernible with the naked eye, requiring no auxiliary reading devises for verification. The pre-applied security markings must be secure against being photographically reproduced or copied. [Emphasis added]. Section 4.8.4 of Rebid I. Although the Department did not intend to provide any competitive advantage to Polaroid in specifying the security feature of Section 4.8.4 of Rebid I, NBS informed the Department that the description of the security feature underlined in finding of fact 65 was a generic description of "Polasecure." In fact, the language used came out of a speech given by a Mr. DeKeiver at a conference held in Washington D.C. Although Mr. DeKeiver apparently had no connection with Polaroid, the copy of the speech relied upon in drafting Section 4.8.4 of Rebid I was provided to the Department by Mr. Weer, a Polaroid representative. Rebid I provided that potential bidders could submit written changes to the specifications recommended by a potential bidder. In a letter dated October 16, 1986, NBS recommended that "the state require a specific security feature or security product... " other than Polasecure which would be available to both Polaroid and NBS. NBS also recommended that Section 4.8.3 of Rebid I be changed to require a full-cut seal instead of a lip-seal. Polaroid, in a letter dated October 16, 1986, recommended that paper- based film be allowed. On October 21, 1986, the Department rejected Polaroid's recommended change to allow paper-based film and NBS's recommendation to require a full-cut seal. The Department, because of its concern that Section 4.8.4 of Rebid I contained a description of Polasecure, accepted, in part, NBS's recommendation concerning the security feature. The Department changed the security requirement to provide that "Armstrong Advantage or Polaroid Polasecure or department approved equivalent pre-applied security markings ... " be affixed to the inside of the laminate. The Department made this change in an effort to eliminate any competitive advantage to potential bidders. Polaroid and NBS both submitted bids in response to Rebid I. On December 10, 1986, the Department's committee which evaluated the bids submitted in response to Rebid I reviewed the results of tests conducted on the License bid by Polaroid and NBS. NBS's bid was rejected because its License failed to disintegrate, as required by Rebid I, when the laminate was separated from the core. The committee therefore rejected NBS's bid without considering the price it had bid. Although NBS had recommended that the Department specify Armstrong Advantage as a security feature, this security feature was incompatible with the requirement that the photographic image be destroyed upon removal of the laminate. NBS was aware of this and so informed the Department. NBS did not timely inform the Department, however. NBS's proposed License failed to satisfy the test performed on the License because of this incompatibility. Polaroid's bid met the specifications of Rebid I and, upon opening the cost proposals, it was determined that Polaroid's bid price was 71.804 cents per License. On December 10, 1986, the evaluation committee prepared a memorandum in which it indicated that the Polaroid bid should be accepted. Major Keith approved the recommendation and sent the recommendation to Mr. Dickinson. Mr. Dickinson also recommended approval of Polaroid's bid and sent the recommendation on to Mr. Mellon. Mr. Mellon rejected Polaroid's bid because the Department had only budgeted 60.9 cents per License and Polaroid's bid of 71.804 cents was too far in excess of the budgeted amount. The amount budgeted by the Department was based in part on Polaroid's bid in the State of Ohio in September of 1986. Polaroid had bid 55.9 cents per license in Ohio. The Department arrived at 60.9 cents per License by adding approximately 5 cents to the amount bid in Ohio for the additional requirement contained in Rebid I of Polasecure. The product bid in Ohio was not, however, sufficiently similar to the License being sought by the Department to arrive at a budgeted amount for the Florida License. Ohio, unlike Florida, was not seeking a License with full lamination. Therefore, Ohio did not include the cost of laminating equipment, laminating materials or die cutters. There were other differences in Ohio's program which affected the cost bid by Polaroid in Ohio. The Department was not aware of the differences with the License bid in Ohio and the License the Department was seeking in Rebid I. The Department posted its tabulation on December 16, 1986. The Department indicated its decision to reject Polaroid's bid because "cost exceeds budget request." The Department's action with regard to Rebid I is final agency action. Rebid II. In January, 1987, the Department began drafting specifications for the next invitation to bid. Mr. McInnis was one of the primary technical drafters of the invitation to bid. Under the normal "chain-of-command" in the Department, Mr. McInnis received his instructions through or from Major Keith. In early January of 1986, Mr. McInnis was given a note on Mr. Dickinson's note paper by Mr. McCaskill containing the following: Plastic Size Security - Negotiable Maintenance/Serviceability Number of Cameras Mr. McCaskill explained to Mr. McInnis that the first two items, plastic and size, were not negotiable and that the 16 other items were to be studied further. Mr. McCaskill explained that the next invitation to bid was to provide for a License with a plastic- based film core and was to be the same size as in Rebid I, 3-1/8" x 1-7/8". The note from Mr. Dickinson was not received through Major Keith, which was the normal way that Mr. McInnis received instructions from Mr. Dickinson. Mr. McInnis prepared draft specifications and showed them to Major Keith along with the note from Mr. Dickinson. Major Keith instructed Mr. McInnis to submit the revised specifications back to Mr. Dickinson in the chain that he had received the note since Major Keith had not been involved in the instructions Mr. McInnis had received. Mr. Mellon's decision to instruct Mr. McInnis to specify plastic and to stick to the larger size License was made because Mr. Mellon believed that those items would insure a License that was durable, readable and had some security to it. The Department asked for the assistance of the Department of General Services in reviewing the draft of the invitation to bid. The Department of General Services reviewed the draft primarily with regard to the special conditions and not the technical specifications of the draft invitation to bid. On January 27, 1987, the Department issued its third invitation to bid, Invitation to Bid (Rebid II)(hereinafter referred to as "Rebid II"). Rebid II specified that the License was to have a plastic-based film core, lip seal, no more than a 40 percent reduction factor and was to measure 3- 1/8" x 1-7/8". These were the same specifications contained in Rebid I. The security feature contained in Rebid I was replaced with the ultraviolet light requirement of the First ITB. The decision to continue to require plastic-based film core was made by the Department because of Mr. Mellon's belief that it would result in a more durable, readable and secure License. The elimination of the security feature to be contained in the laminate was based upon the Department's desire to obtain a cost bid within the Department's budget. Potential bidders were required to submit any suggested changes to Rebid II in writing. On February 3, 1987, Polaroid timely submitted recommended changes in writing to the Department. The relevant recommended changes included the following: That the requirement of Section 4.8.1 of Rebid II that "photo sensitized polyester, polycarbonate, or an equivalent plastic material be changed to "photo sensitized material Polaroid recommended this change based upon its argument that sealing the photo core in a sealed and bonded polyester laminate would provide the necessary security and durability the Department was seeking and that paper-based film offered substantial cost savings; That the requirement of Section 4.8.1 of Rebid II as to the size of the photo core be changed to allow a range of sizes from 2-3/4" x 1-3/4" to 3-1/8" x 1-7/8". Polaroid recommended this change based upon its argument that the 40 percent maximum reduction factor could be met on a smaller film core and therefore reduce the cost of Licenses; That the ultraviolet light security feature be replaced with a requirement that Polasecure, Armstrong Advantage or equivalent security laminate be provided. Polaroid recommended this change based upon its argument that security would be enhanced at relatively little cost. The recommended changes in the size of the License and the film-core material are similar to the current License specifications. NBS did not submit any written recommended changes to Rebid II. By letter dated February 4, 1987, Secretary of State George Firestone asked Mr. Mellon about the Department's response to the suggested changes from Polaroid and requested an explanation of the specifications of Rebid II. In response to the Secretary of State's inquiry, Mr. Mellon submitted a letter and report to the Secretary of State. In part, Mr. Mellon told the Secretary of State the following: Both Polaroid and NBS have demonstrated their ability to provide a plastic core license. However, NBS informed the Department in a presentation made on September 17, 1986, that it will be unable to obtain paper film after the conclusion of their current contract with the State of Florida (August 31, 1987). They will be unable to bid on any contract for paper-based licenses after that date. In order to provide the State of Florida with the most durable license at the lowest cost, at least two bids providing the same durable core must be considered. Allowing vendors to bid two unlike products, either paper or plastic, would create a situation in which the products could not be objectively evaluated. That type of specification would also give a built-in price advantage to the vendor bidding a paper core, thereby prohibiting a competitive bid for the license, and increasing the price for the State. Mr. Mellon also suggested that the Department's decision to require a large license would make the License more legible and that requiring only an ultraviolet light feature for security was designed to reduce cost. In the draft of the response to the Secretary of State, the Department indicated that Polasecure, Armstrong advantage or similar security laminate would improve security and was preferred by the Department. This language was not contained in the final letter. On February 17, 1987, a meeting was conducted by the Department. It was attended by Mr. Mellon, Mr. Dickinson, Major Keith, Jim Cox and Mr. McCaskill. As a result of this meeting the Department decided to amend the specification contained in Section 4.8.1 of Rebid II pertaining to the film-core of the License. The Department decided to allow a paper-based or plastic-based film core in the hope that the cost bid by the vendors would come within the Department's budgeted amount. Polaroid's other suggested changes were rejected. On February 19, 1987, the Department issued Addenda III to Rebid II. Addenda III amended Rebid II by deleting the requirement that the core be plastic-based film and substituted the requirement that the core be "full color photosensitized material", i.e., paper-based or plastic-based. Addenda III also amended the requirements pertaining to samples. 0n February 20, 1987, Polaroid submitted a Notice of Protest to Rebid II, as amended. NBS submitted a Notice of Protest to Rebid II, as amended, on February 23, 1987. Polaroid and NBS both subsequently timely filed Formal Protests and Requests for Administrative Hearing. THE ALLEGED DEFICIENCIES OF REBID II, AS AMENDED. General Requirements of Rebid II, as Amended. A successful bidder to Rebid II would be required to furnish the Department with camera systems, photographic backdrops, film, laminating materials and equipment, training, support, maintenance and all other equipment and supplies necessary to produce Licenses and identification cards at License issuing offices of the Department throughout Florida. For each License or identification card produced, three film negatives must also be produced. The Department's License examiners will operate the equipment and produce Licenses. Approximately 1,000 examiners will have to be trained and supported. A fixed price for each License actually issued will be paid. Licenses not issued because of equipment problems or defective materials are not paid for by the Department. The driver, data card and header bar are photographed simultaneously and the images are optically combined by the camera system on a single piece of instant photographic film. The film is trimmed to the appropriate size in a "die cutter." The combined image recorded on the film core is simultaneously recorded on color negative roll film. Each negative is imprinted with a number. Two black and white, 16 millimeter roll film negative copies are made. A "rapid retrieval system" including two microfilm reader/printers, to retrieve copies of the negatives must be furnished by the successful bidder. The film core is to be laminated with a 1/8" lip seal. The License is to be the same size as a credit card, 2-1/8" high by 3-3/8" wide. This is the size of Licenses issued in most states. The License must be sufficiently durable to last seven years without deteriorating to the point that its functions are compromised. Printed data on the License should be sufficiently legible for law enforcement officers and others who rely on the License as a form of identification. The License should be secure it should be difficult to alter a License or to product a counterfeit License without the altered or counterfeit License being detectable. The primary goal of the Department in issuing Rebid II, as amended, was to provide a License at a reasonable cost which is legible, durable and secure. Polaroid's and NBS's Challenge to Rebid II, as Amended. Rebid II, as amended, represents the Department's third attempt to let a new contract for the issuance of Licenses. The Department's rejection of the first two attempts, the First ITB and Rebid I, have become final agency action. The extension of the 1982 Contract has also become final agency action. In this proceeding NBS has challenged the following portions of Rebid II, as amended: The requirement of Section 4.8.1 of Rebid II, as amended by Addendum III, that the film core is to be "full color photo sensitized material." NBS has contended that the film core should be composed of "polyester, polycarbonate or equivalent plastic material." The requirement of Section 4.8.1 of Rebid II that the "document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the date card shall be not less than 60 percent of the size of the photographed document." NBS has contended that a 30 percent reduction factor should be specified. The requirement of Section 4.8.3 of Rebid II that a lip-seal lamination design be used. NBS contends that a flush-cut design should be required. Polaroid challenged the following portions of Rebid II, as amended: The requirement of Section 4.8.1 of Rebid II, as amended by Addendum III that the film core be "3-1/8 inches wide and 1-7/8 inches high prior to lamination." Polaroid contends that a range of sizes should be specified, from 2-7/8 to 3-1/8 inches wide and from 1- 3/4 to 1-7/8 inches high. The requirement of Section 4.8.4 of Rebid II which requires a black-light security feature. Polaroid contends that the Department should specify a security marking applied to the inside of the front laminate which is visible in ordinary light and is alternately visible and invisible as the angle of viewing the License is changed. The requirement of Section 4.10.4 of Rebid II that no applicant be required to wait for a second applicant before the first applicant's License is processed. The parties stipulated that this challenge arose as a result of a misunderstanding of the requirements of Section 4.10.4 of Rebid II. Based upon a clarification of this Section by the Department Polaroid agreed not to pursue this portion of its challenge to Rebid II. At the final hearing, Polaroid and NBS maintained that the Department had evidenced a bias in favor of the other. Film Core; Section 4.8.1 of Rebid II, as Amended by Addendum III. Section 4.8.1 of Rebid II, as amended by Addendum III, provides, in pertinent part: The finished color photo core of the driver license or identification card shall be full color photo sensitized material .... This provision replaces the requirement of Rebid II before amendment that the License be "full color photosensitized polyester, polycarbonate, or an equivalent plastic material Other pertinent provisions of Rebid II which affect the type of film- core material include the following: The Color photographic image must remain stable and survive intact under conditions of strenuous wear and tear and the photographic image must not significantly deteriorate or become illegible during the life of the license (seven years). The Contractor shall bear the cost of materials and supplies for the reissuance of each license or identification card which must be reissued due to failure to meet these requirements. The license or identification card shall be fully laminated, front and back, with a 1/3 inch lip seal. The laminate shall be not less than .007 inches thick per side and the back must have a surface which can be written upon. Data to be specified by the Department shall be printed on the side of the laminate. The finished license shall be 3-3/8 inches wide by 2-1/8 inches high including lip-seal lamination. The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed. The finished license shall be not less than .021 inch and not more than .062 inch thick after lamination. The contractor shall be responsible for the supply of laminating equipment, materials, support services (e.g. training) and all other commodities necessary to assure that driver licenses have appropriate protection and security laminates. As a part of their equipment demonstration, bidders shall submit with their bid twenty- five (25) sample licenses and ten (10) sample identification cards for testing and evaluation by the State of Florida. The samples must be identical to the proposed license and identification cards. If the proposed samples submitted for testing do not fulfill the requirements of this ITB, the State may reject the bid solely on this basis. Samples must be submitted at no additional cost to the State and additional quantities specified by the Department for further testing after opening of the bid must be supplied as long as said quantity does not exceed 100. Sample licenses and identification cards will be tested by the Division of Chemistry, Department of Agriculture and Consumer Services of the State of Florida. These tests will include a tear test, an abrasion test, a tensile test, the use of a fadeometer, and a test of the ease of alteration. The tear test must exhibit a strength of at least 100 lbs., while the license must have a tensile strength of at least 250 lbs/in of width. The abrasion resistance must show either no or only a slight dulling of the surface after 300 strokes with a dry nylon brush and there should be no or only slight fading visible with the use of the fadeometer. The provision of Rebid II pertaining to the film-core material used cannot be reviewed in a vacuum. The provisions of Sections 4.8.2, 4.8.3 and 4.8.7 of Rebid II quoted above have not been challenged by Polaroid or NBS and must be considered when reviewing the film-core material requirement of Rebid II. When the provisions of Sections 4.8.2, 4.8.3 and 4.8.7 of Rebid II and the film-core requirement of Rebid II, as amended, are taken into account, the Department's goal of providing a legible, secure and durable License should be insured. The effect of Addendum III is to allow potential vendors to bid a License which contains a paper-based or plastic-based film core. NBS has contended that the Department is restricting competition by allowing a paper-based film core License to be bid. The evidence fails to support this contention. Polaroid is the primary manufacturer of paper-based instant photographic film, producing as much as 85 percent of such film. There is, however, at least one other manufacturer of paper-based film. That manufacturers is currently supplying paper-based film to NBS for use in producing the current License used in Florida. NBS has been notified by its current supplier of paper-based film that the film cannot be produced and supplied to NBS at the current price because it is only being manufactured for NBS's use in Florida. The evidence did not prove whether the statements made to NBS are true. Even if it is assumed that NBS cannot obtain paper-based film except at a higher price, the evidence did not prove that NBS cannot obtain paper-based film. Nor did the evidence prove that only one of the potential bidders could produce a License with "full color photo sensitized material." In the response to Rebid I, Polaroid and NBS produced a license which would meet this requirement. NBS's plastic-based film which it uses to produce Licenses has better contrast and resolution than Polaroid's paper-based film. NBS's Dekachrome polyester material, which is manufactured by Ciba-Geigy, will resolve in excess of 100 lines per millimeter, and may resolve up to 140 lines per millimeter, resulting in the ability to render a high degree of resolution for smaller items, including type or letters. Polaroid's film generally resolves at approximately 14 lines per millimeter, with a maximum resolution of 20 lines per millimeter. The NBS Dekachrome film has approximately a five to one factor of sharpness and clarity over Polaroid film. The contrast ratio of NBS Dekachrome material is approximately 77 percent and the contrast ratio of Polaroid film is approximately 73 percent. The difference in contrast and resolution can be measured in the laboratory. The evidence failed to prove that the differences significantly affect the legibility of Licenses actually produced using the film of Polaroid or NBS. The evidence also failed to prove that there is any significant difference in the legibility of Licenses produced with plastic-based film or paper-based film. There is no difference between Polaroid's plastic-based film and its paper-based film with regards to contrast and resolution. The difference in Polaroid film and NBS film is caused by the instant development process used by Polaroid and not by the difference in the material it uses. Therefore, the differences in contrast and resolution would exist even if Polaroid bid a plastic-based film. The evidence failed to prove that plastic-based alterations to Licenses or counterfeiting of Licenses. Rebid II, as amended, provides that sample Licenses are to be produced under the Department's supervision after bids are submitted. Those Licenses then must pass tests for tear strength, tensile strength, scratch resistance and resistance to fade. These provisions of Rebid II have not been challenged. These provisions will test the durability of the Licenses whether paper-based film or plastic-based film is used. Rebid II, as amended, allows the laminate to be a minimum of 0.007 inches to a maximum of 0.062 inches thick. The thickness of the laminate selected and the film core will affect the tear strength and tensile strength of Licenses. Use of a lip-seal laminate will also affect the durability of the License and eliminate the durability problems of paper-based film. Both Polaroid and NBS can bid in response to the requirement of Section 4.8.1 of Rebid II, as amended by Addendum III, that plastic-based or paper-based film be used. Reduction Factor; Section 4.8.1 of Rebid II, as Amended. Section 4.8.1 of Rebid II, as amended, provides, in pertinent part, the following requirement: The document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the data card shall be not less than 60 percent of the size of the photographed documents. The above quoted portion of Section 4.8.1 of Rebid II was contained in the original Rebid II issued by the Department on January 27, 1987, and was not amended by the Department. Section 4.8.1 of Rebid II also requires that the License core is to be 3-1/8 inches wide and 1-7/8 inches high prior to lamination. Section 4.8.3 of Rebid 11 requires that the finished License is to measure 3-3/8 inches wide by 2-1/8 inches high including lip-seal lamination. These requirements were contained in the original Rebid II issued by the Department on January 27, 1987, and were not amended by the Department. Sections 3.2 and 3.3.2 of Rebid II provide for consideration by the Department of proposed changes to Rebid II. Section 3.3.2 of Rebid II provides the following requirements with regard to the manner in which changes were to proposed by potential bidders: The bidder, who requests changes to the State's specifications, must identify and describe the bidder's difficulty in meeting the State's specifications, must provide detailed justification for a change, and must provide recommended changes to the specifications. Requests for changes to the Invitation to Bid must be received by the state not later than 5:00 p.m., February 3, 1987. A Bidder's failure to request changes by the date described above, shall be considered to constitute bidder's acceptance of State's specifications. NBS's challenge to the 40 percent reduction factor requirement of Section 4.8.1 of Rebid II was not suggested as a change to Rebid II by NBS prior to February 3, 1987. NBS did not, therefore, comply with the requirements of Sections 3.2 and 3.3.2 of Rebid II in suggesting that the maximum 40 percent reduction factor be changed to a maximum 30 percent reduction factor. Sections 3.2 and 3.3.2 of Rebid II have not been challenged by Polaroid or NBS. At the commencement of the final hearing of this case the Department announced that it intended to change the reduction factor requirement of Section 4.8.1 of Rebid II to require a maximum reduction factor of 30 percent instead of the maximum of 40 percent contained in Rebid II as challenged in this proceeding. Lip Seal; Section 4.8.3 of Rebid II, as Amended. Section 4.8.3 of Rebid II requires, in pertinent part, the following: The license or identification card shall be fully laminated, front and back, with a 1/8 inch lip seal. The laminate shall be no less than .007 inches thick per side and the back must have a surface which can be written upon. Data to be specified by the Department shall be printed on the inside of the laminate. The finished license shall be 3- 3/8 inches wide by 2-1/8 inches high including lip-seal lamination. The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed... [Emphasis added]. NBS's challenge to the lip-seal lamination requirement of Section 4.8.3 of Rebid II was not suggested as a change to Rebid II by NBS prior to February 3, 1987. NBS did not, therefore, comply with the requirements of Sections 3.2 and 3.3.2 of Rebid II in suggesting that a flush-cut seal be substituted for a lip-seal method of sealing the lamination. The estimated cost per unit of lip-seal lamination for NBS's Licenses is six to eight cents per License. The requirement of a lip-seal laminate contained in Rebid II was intended to provide additional security and durability. Lamination tends to prevent moisture, which causes deterioration of the License, from penetrating the photo emulsion of the photo-core. Whether plastic-based or paper-based film is used, the film emulsion layer may be scratched off if no lamination is used. Emulsion can also be removed from plastic-based film by moistening the film surface. The Department used a plastic, unlaminated License in 1978. The photo emulsions of this License came unattached from the license core and had to be laminated. The Department tried to use a flush-cut seal on paper-based film as a result of the problems it had with deterioration of the License produced by NBS in 1978. Flush-cut sealing of a paper-based film License does not stop the deterioration problems caused by water damage. The requirement of Section 4.8.3 of Rebid II that the License be lip- sealed is reasonably calculated to enhance the security and durability of the License. It will also enhance legibility by eliminating deterioration of the License. The requirement of Section 4.8.3 of Rebid II concerning lip-seal lamination does not restrict competition. Both Polaroid and NBS can bid a License with lip-seal lamination. F. Security; Section 4.8.4 of Rebid II, as Amended. Section 4.8.4 of Rebid II provides: The finished license or identification card shall contain security markings to be specified by the Department. The security markings shall be printed in fluorescent dye or a similar process so that they become visible when exposed to ultraviolet light. The security markings may be a part of the laminating process. Section 4.8.4 of Rebid I, as amended by Addenda III, provided: The finished license or identification card shall contain pre-applied security markings affixed to the inside surface of the front of the laminate which, when laminated to the film core, will become an integral part of the core. The graphic design of the pro- applied security markings must be approved by the Department. The security markings feature shall utilize a process which will render the security markings alternately visible and invisible as the viewing angle changes. Any alteration of the security markings must be easily discernible with the naked eye, requiring no auxiliary reading devices for verification. The pre-applied security markings must be secure against being photographically reproduced or copied. The First ITB contained the same security feature contained in Rebid II. A security feature like Polasecure, which changes appearance when the viewing angle changes, would provide a bettor deterrent to alterations and counterfeiting of Licenses than ultraviolet light. Such a security feature can be seen by law enforcement and others without any auxiliary viewing devices or special lighting. Although the security feature contained in Rebid I would enhance the security of Licenses, it was eliminated from Rebid II because of the inability of NBS to bid a License which contains such a feature and is consistent with the adhesion of the lamination specifications contained in Rebid I and Rebid II and because of the additional cost of such a feature. Polaroid had represented to the Department that Polasecure would increase the cost of a License by approximately five cents per License. The evidence failed to prove that this information is correct. The evidence suggests that additional cost of Polasecure is in excess of five cents per License. The ultraviolet security feature will provide security against unsophisticated counterfeiters and ensure the security goal of the Department is met. The Department is attempting to provide security against amateurs. Given enough time, any security feature can be counterfeited. Even products like Polasecure can be stolen from driver license offices and used to produce counterfeit Licenses. The Department properly weighed the need for a security feature for Licenses and the cost of such security features and has provided a reasonable security feature in Rebid II. Polaroid and NBS can produce a License which meets the security requirement of Rebid II. License Size; Section 4.8.1 of Rebid II, as Amended. Section 4.8.1 of Rebid II, as amended, requires that the core of Licenses measure 1-7/8 inches by 3-1/8 inches. Polaroid has suggested that this provision be changed to allow a range of 1-3/4 inches by 2-3/4 inches to 1-7/8 inches by 3-1/8 inches. The smaller size core suggested by Polaroid is used in 26 of the 27 states presently served by Polaroid and by various agencies of the federal government. If the smaller size core is allowed, Polaroid can produce two Licenses from one sheet of its film. If the larger size core is required Polaroid can only make one License from each sheet of film. The Department has required a larger License size in order to improve the legibility of Licenses. The Department is concerned about complaints it has received from law enforcement officers and others about the legibility of the currently used License. The current License is legible by anyone who meets the vision requirements for employment by the Florida Highway Patrol, given good lighting and proper lenses to correct any vision problems the person may have. Not everyone, however, meets the vision requirements for employment by the Florida Highway Patrol. More importantly, law enforcement officers are sometimes required to read Licenses under poor lighting conditions. It is therefore reasonable for the Department to attempt to improve License legibility. Factors which affect the legibility of a License include the quality of the printing on the data card used, the degree of contrast on the data card, the optical-reduction factor in the camera, and the quality of the photographic image produced by the camera and the film. The evidence did not prove that the difference in the size of the License specified in Section 4.8.1 of Rebid II, as amended, and the size suggested by Polaroid will affect the legibility of the License. Although evidence was presented during the final hearing concerning plans of the Department to improve the method in which the data card is printed, Sections 3.18 and 4.6.5 of Rebid II, as amended, specify that the Department's existing and currently used data card is to be used in submitting bids to Rebid II, as amended. These provisions have not been challenged. Legibility will be affected by the extent of the maximum reduction factor allowed. The smaller the maximum reduction factor allowed, the better the legibility will be. Once reduced, the data card must fit into the size specified for the License core. Therefore, the reduction factor specified and the size of the License core must be consistent. In the current License produced in Florida, the data card is reduced by 42 percent from its original size. The License produced in 1978 featured a 33 percent reduction factor. The requirement as to the size of the License core and the maximum 40 percent reduction factor contained in Rebid II, as amended, are inconsistent. Mr. McCaskell conducted a study which indicated that if a 40 percent reduction factor is used there will be a considerable amount of unused space on a License core which measures 1-7/8 inches by 3-1/8 inches. If the size of the License core is reduced to allow a License core measuring 1-3/4 inches by 2-3/4 inches, a data card reduced by 40 percent will not leave unused space. The specification as to the maximum 40 percent reduction factor was included in Rebid II as a compromise between what Polaroid and NBS had informed Mr. McInnis they could produce. It was not based upon any scientific analysis by Mr. McInnis. Although a data card reduced by a maximum 40 percent reduction factor will fit on the smaller License suggested by Polaroid, the legibility of the License will not be improved. If the maximum reduction factor is reduced from 40 percent to 30 percent, however, the legibility of the License will be enhanced. A data card reduced by a maximum reduction factor of 31 percent will fit into the space for the data card specified for a License core of the size specified in Section 4.8.1 of Rebid II, as amended. If the header bar is reduced slightly a data card reduced by a maximum reduction factor of 30 percent will fit onto a License core of the size specified in Section 4.8.1 of Rebid II, as amended. A data card reduced by a maximum reduction factor of 31 percent will also fit into the space for the data card specified for a License core of the smaller size suggested by Polaroid. If the header bar and the area for the driver's picture are reduced slightly, a data card reduced by a maximum reduction factor of 30 percent will fit onto a License core of the smaller size suggested by Polaroid. The size specified by the Department in Rebid II, as amended, will not directly affect the goal of improving the legibility of the License. Reducing the maximum reduction factor to 31 percent will improve legibility and will be consistent with the other requirements of Rebid II, as amended, as to the size of the header bar and the size of the photograph of the driver. Allowing the range of sizes in the License core suggested by Polaroid is consistent with a reduction of the maximum reduction factor. Allowing the suggested range of sizes may also result in a cost savings to the Department since Polaroid would be able to produce two Licenses from one sheet of film. The Department's actions with respect to the License core size and the reduction factor have been arbitrary. Reducing the maximum reduction factor and allowing the Polaroid's suggested range of sizes for the License core are more reasonable specifications. Both Polaroid and NBS can bid a License meeting a 31 percent maximum reduction factor requirement and the Polaroid suggested range of License core sizes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department add a paragraph to its invitation to bid informing potential bidders that failure to challenge the specifications of the invitation to bid within the time prescribed in Section 120.53(5), Florida Statutes (1985), and Rule 15-2.003(2)(b), Florida Administrative Code, will constitute a waiver of proceedings under Chapter 120, Florida Statutes. It is further RECOMMENDED that NBS's suggested changes to Rebid II, as amended, concerning the film core material specified in Section 4.8.1 of Rebid II, as amended, and lip-seal lamination specified in Section 4.8.3 of Rebid II, as amended, be denied. It is further RECOMMENDED that Section 4.8.1 of Rebid II, as amended, be amended to allow a maximum reduction factor of 30 percent. It is further RECOMMENDED that Polaroid's suggested changes to Rebid II, as amended, concerning the type of security feature specified in Section 4.8.4 of Rabid II, as amended, and the specification of Section 4.10.4 of Rebid II, as amended, be denied. It is further RECOMMENDED that Section 4.8.1 of Rebid II, as amended, be amended to allow the film core to measure 2-7/8 to 3-1/8 inches wide and 1-3/4 to 1-7/0 inches high. It is further RECOMMENDED that the size of the header bar and the space for the drivers' photograph be modified to accommodate a maximum 30 percent reduction factor and the smaller size License core. DONE and ENTERED this 4th day of June, 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 4th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1125BID 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 have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Polaroid's Proposed Findings of Fact Proposed Finding RO Number of Acceptance of Fact Number or Reason for Rejection 1. 1. 2. This proposed finding of fact is irrelevant except to the extent that Polaroid and NBS serve about half of the states. See paragraph 2. 3. 103. 4. 104. 5. 105. 6. 4 and 6. 7. 106. 8. 107. 9. 7 and 108. 10. 109. 11. 7. 12. 108. 13. 113. 14. 110. 15. 111. 16. 112. 17. Not supported by the weight of the evidence. 18. 114. 19. 116 and 117. 20-22 116. The portion of proposed finding of fact 22 which begins "but careful ..." is rejected as argument. 23-25. 117. 26. 114. 27. 118. 28-31. 20. 32. 52. 33-36. Hereby accepted. 37-38. Irrelevant. 39. 22-24. 40. 28. 41. 29. 42. 30-31. 43. 32-33. 44. 34-35. The last sentence is not supported by the weight of the evidence. 45. 36. 46. 37 and 40. 47. 40-41. 48. 42. 49. 43. 50. 44. 51. 45-46. 52. 45 and 48-49. 53. 48. 54. Hereby accepted. 55. 56. 49. The fact that "the Department did not approach Polaroid Corporation to determine if Polaroid could temporarily supply driver license systems during the same interim period is irrelevant. Irrelevant. 57. 50. 58. 51. 59-60. 53. 61. 54. 62. 54 and 63. 63. 54. 64-65. 55. 66. Not supported by the weight of the evidence. 67. 56. 68-69. 57. 70-71. 58. 72. 60. 73. 158. 74. 60. 75. 61. 76. 160. 77. Irrelevant. 78. 62. 79. 63. 80. 64. 81. 65. 82. 66. 83. Irrelevant. 84. 67. 85. 70. 86. 68. 87. 69. 88-90. 71. 91. 72. 92. 73. 93. 75. 94. Irrelevant. 95. Hereby accepted. 96. 75. 97. 76. 98-99. 77. 100. 82. 101. 78. 102. 79. 103. 80. 104. Irrelevant. 105. 83. Mr. McInnis was one of the 106. primary technical drafters. 84-85. The last sentence is not 107-108. supported by the weight of the evidence. 84. 109. 86. The last sentence is irrelevant. 110-111. 88. 112. 89. 113. 90. 114. 91-92. 115. 90. 116-117. Irrelevant. 118. 93. 119. 94. 120. 96. 121. 97. 122-123. 98. 124. Not supported by the weight of the evidence. 125-126. 99. 127-132. Not supported by the weight of the evidence. 133-134. 100. Irrelevant. Not supported by the weight of the evidence. 137. 101. 138. Not supported by the weight of the evidence. 139. 101 and 119. 140. 138. 141. 126. 142-144. Statements of law. 145. 128 and 133. 146. 132. 147. 134. 148. 135. 149. 136. 150. 137. 151. 153. 152. 150 and 153. 153. 151. 154. 164-165. 155. 166. 156. 157. 167. The last two sentences are not supported by the weight of the evidence. 168. 158. 169. 159. 170. 160. 161-165. Not supported by the weight of the evidence. Irrelevant. 166. 174-175. 167. Irrelevant. 168. 174. 169. Irrelevant. 170. 180. 171. 179. 172. 181. 173. Not supported by the weight of the evidence. 174-175. 183. 176. 184. 177. Hereby accepted. 178. Not supported by the weight of the evidence. 179. 159. 180. Not supported by the weight of the evidence. NBS's Proposed Findings of Fact 1. 1. 2. 2. The last-sentence is irrelevant. 3. 10-14. 4. 15. The last sentence is not supported by the weight of the evidence. 5. 16-18, 20-21 and 51. 6. 19. 7. 23. 8. 24. 9. 25-27. 10. Not supported by the weight of the evidence. 11. 37. 12. 35. 13. 36. The last sentence is irrelevant. 14. 38-40. 41. The second sentence is uncorroborated hearsay. 47-48. The last sentence is not supported by the weight of the evidence. 46. The last sentence is not supported by the weight of the evidence. 18. 49. 19. 50. 20. 51. 21. 43-44. Polaroid did not request permission to conduct a demonstration Polaroid was requested by the Department. The opinion expressed by Major Keith was the opinion of his office. 22. 53, 61-63, 65-68 and 71. 23. 72 and 74. 24. 73 and 75. 25. 76. 26. 76-77. 27. Irrelevant. 28. 77. 29. 89-90 and 93. 30. 94. 31. 97. 32. 98. 33. 100. 34. 101. 35. 102. 36. 139, 141 and 164. 37. 144. 38. Hereby accepted. 39. 177. 40. 174. 41. 179. 42. 175-176. 43. 175. Hereby accepted. Hereby accepted. 46. 145. 47. 7. Not supported by the weight of the evidence. Irrelevant. Not supported by the weight of the evidence. 51. 147. 52-56. Not supported by the weight of the evidence. 57. Irrelevant. 58. 155. 59. 156. 60. 157. 61. 162. 62-63. 66. 64-65. Irrelevant. 66-67. 74. 68. Not supported by the weight of the evidence. 69. 160. 70. 163. 71. 101 and 119. 72. 119. Not supported by the weight of the evidence. 125. The evidence failed to prove that "there exists virtually no other economical source for a similar paper based instant photographic product." 75. 126. 76-80. Not supported by the weight of the evidence. 81. 134. 82. Irrelevant. 83-86. Not supported by the weight of the evidence. 87. 128. 88. 129. 89. 130. 90. 131. 91. Irrelevant. 92. 133. The last sentence is not supported by the weight of the evidence. 93. 138. 94. 113. 95-96. Irrelevant. 97-102. Not supported by the weight of the evidence, irrelevant or statement of law. The Department's Proposed Findings of Fact 1. 4. 2. 119. 3-5. 120. 6. 121-122. 7. Statement of position. 8. 128. 9. 145. 10. 148-149. 11. 152. 12. 151-152. 13. Hereby accepted. 14. 154. 15. 139 and 144. 16-17. 168. 18. 173. 19. 179. 20. 172-173. 21. 22. 172. The last sentence is not supported by the weight of the evidence. 164. 23. 24. Not supported by the weight of the evidence. 113. 25. Irrelevant. 26. 27. Not supported by the weight of the evidence. 180. 28. 185. 29. 155. 30. 156. 31-32. 74 and 81. 33. 159. 34. 160. 35-38. 161. 39. 163. COPIES FURNISHED: Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504 Enoch J. Whitney, Esquire General Counsel Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399-0504 H. Michael Madsen, Esquire Douglas J. Rillstone, Esquire Messer, Vickers, Caparello, French & Madsen Post Office Box 1876 Tallahassee, Florida 32302-1876 Keith C. Tischler, Esquire Parker, Skelding, McVoy & Labasky Post Office Box 669 Tallahassee, Florida 32302 Robert G. Holderness, Esquire Robert G. Holderness & Associates 925 L. Street, Suite 1490 Sacramento, California 95814
Findings Of Fact The following facts are based upon the stipulation of the parties (Exhibit 1): Petitioner, KAREN G. THIBODEAU, was licensed as an optician by the State of Massachusetts in 1979. Petitioner, KAREN G. THIBODEAU, was licensed as an optician by the State of Connecticut in 1980. Petitioner, KAREN G. THIBODEAU, was an apprenticed optician with various licensed opticians in the States of Massachusetts and Connecticut for the past four to five years. Petitioner, KAREN G. THIBODEAU, on or about May, 1980, while living and employed in Connecticut, made a telephone call to the Board of Opticians in the State of Florida, with reference to her eligibility in taking the examination for a dispensing opticians license. After Petitioner detailed her formal training and work experience, she was advised that she was qualified to take the Florida Opticians Examination as the result of her having been licensed in both the States of Massachusetts and Connecticut and having five years apprentice experience. The Board of Opticians then mailed her an application form which she filled out and returned to them with a seventy five dollar ($75.00) money order for the examination and twenty dollars ($20.00) to register with the State of Florida. As a direct result of this telephone conversation with a representative of the Board of Opticians of the Department of Professional Regulations of the State of Florida, the Petitioner, KAREN G. THIBODEAU, quit her job in Connecticut and moved to Florida anticipating taking the aforesaid examination. After she had moved to Florida in reliance of the representations made to her by the Board of Opticians, she was notified that she was not qualified to take the said examination. Petitioner's application was considered by the Board of Opticianry on July 10, 1981 in Tallahassee, Florida and it was found that the Petitioner, KAREN G. THIBODEAU, did not meet the statutory requirements of s. 484.007(1), Florida Statutes (1979), although at the time she contacted the Board, she did meet the requirements of s. 484.03, Florida Statutes (1977), which was the prior licensing statute for the Board of Opticianry and was no longer in effect at the time. The Board further held that they did not have the authority to admit Petitioner, KAREN G. THIBODEAU, into the examination .for licensure as an optician in the State of Florida since she did not qualify under the current statute, s. 484.007(1), Florida Statutes (1979), even if they felt she had relied on the Board's prior representations that she would be allowed to take the examination to her detriment. The sole issue for consideration at this hearing is whether the Board of Opticianry has the authority to allow the Petitioner, KAREN G. THIBODEAU, to sit for the next examination for a license to be a dispensing optician in the State of Florida on the basis that the Board of Opticianry is estopped for asserting the new statute as a denial of her right to sit for the next exam since she has detrimentally relied on their representation that her qualifications under the old statute, s. 484.03, Florida Statutes (1977), qualified her to sit immediately for said examination." The following are additional Findings of Fact based upon testimony adduced at the hearing: When Petitioner made her telephone call to the Board of Opticians in May, 1980, she asked to speak to one of the Board members, but was assured by a woman who answered the phone that she could answer any questions Petitioner might have concerning her qualifications. At this time, Petitioner informed the person taking the call that she planned to move to Florida if she was qualified to take the examination for a dispensing optician license. Petitioner thereafter moved to Florida and is now employed by Sheppard Optical at Delray Beach, Florida where she is earning $200.00 a week. She was making approximately $300.00 a week when she left Connecticut and anticipated a higher income when she commenced practicing under her opticians license in Connecticut. (Testimony of Petitioner) Prior to the consolidation of the various state licensing boards into the Department of Professional Regulation in 1979, the practice of the Board of Opticianry, under the apprentice requirements of Section 484.03, Florida Statutes, (1977) was to permit individuals who had apprenticed in another state, but not in Florida, for the specified time of not less than three years, to register with the Board, and then make application for and take the examination for licensure. This was frequently done by means of telephone calls authorizing the individual to make application. In some cases, letters were sent which contained a similar authorization. Subsequent to Petitioner's telephone call to the Board in May, 1980, the new Executive Director of the Board of Opticianry, Herbert F. Varn, changed this practice to conform to the applicable statute which requires individuals to register as an apprentice with the Board and not admit such individuals to examination until after they had thereafter completed the requisite three year period of apprenticeship. In some isolated cases, the Board had permitted individuals who had previously received a letter authorizing them to take the examination, even though they had not been registered in Florida for the requisite three year period, to take the examination. However, after reorganization, the Board did not permit individuals to take the examination based solely upon any oral assurances received from persons in the prior Executive Director's office. (Testimony of Varn) The order of the Board of Opticianry, dated September 2, 1981, denying Petitioner's application stated that she had not met the statutory requirements for licensure by examination pursuant to Section 484.067(1), Florida Statutes, because she had not completed the requisite two school year course of study in a recognized school of opticianry, had not actively practiced as a licensed optician in another state for more than three years preceding the application, and had not registered as an apprentice with the Department and served not less than a three year apprenticeship under appropriate supervision. The present Executive Director of the Board is of the opinion that there would be no detriment to the public if Petitioner was allowed to sit for the examination based on her prior training and experience, but acknowledges that this is a matter for Board determination. (Testimony of Varn, pleadings)
Findings Of Fact Respondent, Mark N. Dobin (Dobin), was at all times material hereto licensed to practice optometry in the State of Florida, and held license number OP 0001202. Inadequate Eye Examinations On November 5, 1985, Alison Lichtenstein, an investigator employed by the Department of Professional Regulation (DPR), entered Dobin's offices in Margate, Florida. Using the assumed name of Alison Smith, Ms. Lichtenstein, who was wearing glasses at the time, requested that Dobin perform a routine eye examination, with the exception of tonometry. Dobin undertook the requested examination, and was paid his fee of $25.00. The visual analysis performed by Dobin on Ms. Lichtenstein failed to include the following minimum proceduresrequired by Rule 21Q-3.007, Florida Administrative Code: (a) an adequate patient history, since he failed to inquire whether Lichtenstein was taking any medication; (b) an external examination; (c) a pupillary examination; (d) visual field testing; and (e) a biomicroscopy. On November 5, 1985, Mary Pfab, a licensed optometrist in the State of Florida, entered Dobin's offices in Margate, Florida. Using the assumed name of Mary Parker, Ms. Pfab, who was wearing contact lenses, requested that Dobin perform a routine eye examination, with the exception of tonometry. Dobin undertook the requested examination, and was paid his fee of $25.00. The visual analysis performed by Dobin on Ms. Pfab failed to include the following minimum procedures required by Rule 21Q-3.007, Florida Administrative Code: (a) an adequate patient history, since he failed to inquire of Pfab's personal medical history, her medications, her family medical history, or her family ocular history; (b) a pupillary examination; and (c) visual field testing. An optometrist's failure to perform the minimum procedures required by Rule 21Q-3.007, Florida Administrative Code, can have a profound impact on the results of his examination. Pertinent to this case, the procedures omitted by Dobin were of import because: Many medications mask the symptoms of a number of eye diseases. A failure to ascertain what medications a patient is taking could, therefore, result in the optometrist missing or not checking for certain diseases. A personal medical history is likewise important to an informed examination. Pre-existing injuries and diseases can have a profound impact on an optometrist's findings, and the cause of that finding is important too the ultimate diagnosis and treatment of the patient. The patient's family medical and ocular history is also important to an informed examination. For example, a person with a family history of diabetes, cataracts or glaucoma is more likely to have such disease than one without such family history. Consequently, if alerted by such information, the optometrist could diagnose the presence of such disease and prescribe treatment at a much earlier stage of its development than might ordinarily be the case. A pupillary examination evaluates the nervous system which connects the eye and retina to the brain. A failure to perform such examination could cause the optometrist to overlook the existence of a brain tumor or other forms of nerve damage. Visual field testing is a diagnostic tool used to detect the presence of gross nerve damage, traumatic cataracts, glaucoma, diabetes, and certain peripheral retinal diseases. Absent such test, these diseases might not be detected. In this case, the import of Dobin's failure to perform a visual field test was heightened. Visual field testing and tonometry are two of the three diagnostic procedures utilized to detect glaucoma. Where, as here, tonometry was not performed, the importance of visual field testing is more significant to the early detection of that disease. Biomicroscopy is a diagnostic tool used to detect the presence of bacterial conjunctivitis, corneal ulcers, corneal scars, blepharitis, and some lid injuries. Absent stich test, these diseases or injuries might not be detected. An external examination is important to the detection of skin cancer, skin lesions, blepharitis, and bacterial or allergic conjunctivitis. Absent such examination, these ocular problems might be overlooked. Inadequate Patient Records Contrary to the requirement of Rule 2IQ-3.007, Florida Administrative Code, the patient case record for Ms. Lichtenstein and Ms. Pfab did not reflect whether the following tests were performed or if performed the results: (a) a complete patient history, (b) an external examination, (c) a pupillary examination, (d) a visual field test, (e) an internal examina- tion, (f) a biomicroscopy, and (g) diagnosis and treatment. The inadequacy of Dobin's patient records would adversely affect his ability, and that of a subsequent treating optometrist, in treating these patients. Absent a medical history and the results of the tests performed, an optometrist is severely hampered in his ability to track the progress of diseases, or to detect their onset. Exercising Influence For Financial Gain Petitioner asserts that Dobin, by accepting a fee for a vision analysis that did not comply with the minimum requirements of Rule 2IQ-3.007(1), Florida Administrative Code, violated Section 463.0l6(1)(m), Florida Statutes. That section prohibits: Exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or of a third party. Petitioner's proof was not persuasive. While the patients in this case may not have received the minimum examination mandated by law, I am not persuaded that such failure constituted the exercise of influence to exploit a patient contemplated by Section 463.016(1)(m). There was no showing that Dobin recommended unnecessary tests or unnecessary products, or that he otherwise sought to influence their choice of procedures or materials for financial gain. Such being the proof, the Petitioner failed to demonstrate a violation of Section 463.016(1)(m) Unlicensed Practice Of Optometry Petitioner further asserts that Dobin's "association" with Eye-Wear Glasses, Inc., his landlord, violated the provisions of Section 463.0l4(1)(c), Florida Statutes, and Rule 2IQ-3.008, Florida Administrative Code. Section 463.014(1) provides: (c) No optometrist shall engage in the practice of optometry with any organization, corporation, group, or lay individual. This provision shall not prohibit optometrists from employing, or from forming partnerships or professional associations with, optometrists licensed in this state. And, pertinent to this case, Rule 2IQ-3.008 provides: No licensed practitioner shall enter into any agreement which adversely affects the licensed practitioner's exercise of free, independent and unlimited professional judgment and responsibility, or which permits any unlicensed person or entity to practice optometry through the licensed practitioner by controlling and/or offering `optometric services to the public. The professional judgment of a licensed practitioner should be exercised solely for the benefit of his patients and free from any compromising influences and loyalties. The Board will consider the circumstances of the practice including but not limited to, the following factors in determining whether a violation of Section 463.014, F.S., has occurred: Whether the licensed practitioner holds himself out to the public as available to render professional services in any manner which implies that the licensed practitioner is professionally associated with or employed by an entity which itself is not a licensed practitioner. For purposes of this rule "entity" shall refer to any corporation, lay body, organization, individual or commercial or mercantile establishment which is not a licensed practitioner. The term "commercial or mercantile establishment" shall include, but not be limited to, an establishment in which the practice of opticianry is conducted pursuant to Chapter 484. Whether the professional office space occupied by the licensed practitioner is such that it does not clearly and sufficiently indicate to the public that his practice of optometry is independent of, and not associated with the entity. Whether the licensed practitiQner has a telephone listing and number that is separate and distinct from that of the entity or whether the phone is answered in a manner that does not identify his optometric practice or whether the telephone is answered in a way that indicates that the licensed practitioner is professionally associated with or employed by the entity. Whether the entrance to the building or commercial or mercantile area in which the licensed practitioner's practice is located sufficiently identifies that the licensed practitioner is practicing his profession independent of, and not associated with the entity. Whether advertisements, including those placed in a newspaper and/or telephone directory, imply that the licensed practitioner is professionally associated with, or employed by an entity. Whether the licensed practitioner maintains full and total responsibility and control of all files and records relating to patients and the optometric practice, in accordance with Rule 2IQ-3.003. Whether the licensed practitioner has full and complete control and discretion over fees charged to patients for his services and billing methods. Whether the provisions of a lease or space agreement between the licensed practitioner and the entity operate so as to impair the licensed practitioner's free, independent, and unlimited professional judgment and responsibility. Whether the arrangements for the furnishing of equipment or supplies to the licensed practitioner operate so as to impair the licensed practitioner's free, independent, and unlimited professional judgment and responsibility. Eye-Wear Glasses, Inc., is owned and operated by two licensed opticians. By a "rental agreement" dated October 12, 1983, Eye-Wear Glasses, Inc., and Dobin entered into an agreement whereby Dobin was sublet space within Eye-Wear Glasses' premises. That "rental agreement" provided: RENTAL AGREEMENT BETWEEN EYEWEAR GLASSES INC. AND DR. MARK N. DOBIN Rent shall be $1.00 per month, and shall continue for a 2 year period with continuing 2 year options. This lease will go into affect on October 17th 1983. The rent of $1.00 per month shall include water, electricity, and air conditioning. Dr. Mark N. Dobin will be responsible to supply all equipment, stationary, and supplies needed to run an Optometric Office. Dr. Mark N. Dobin will have a phone installed at his own expense and his monthly bill along with Yellow Pages advertising c shall be paid by him. Dr. Mark N. Dobin will be allowed to advertise independent of Eyewear Glasses Inc. at his own expense. A key allowing access to the premises shall be given to Dr. Mark N. Dobin. Fees for Services performed by Dr. Mark N. Dobin, will be determined by Dr. Mark N. Dobin and shall be collected independent of those fees from Eyewear Glasses. Being a private entity, Dr. Mark N. Dobin shall have the right to determine his own office hours, days worked and vacation time, but he shall try to coordinate these days with those of Eyewear Glasses Inc. if this is possible. Renter, Dr. Mark N. Dobin, has the option of selling his practice and its contents to another Eye Doctor. This sale may include all records and files of patients belonging to Dr. Mark N. Dobin. At the time of sale, Eyewear Glasses Inc. has the right to renegotiate the lease, but not to alter it in such a way as to make the sale of the practice uninviting. Before the sale is finalized a 3 month trial period may be requested by either party. If Dr. Mark N. Dobin is unable to sell his practice, Eyewear Glasses Inc. has the right of first refusal to purchase his practice or his equipment. If the office is unoccupied for a period of 30 days, Eyewear Glasses Inc. has the option of subleasing the practice to another Eye Doctor, until which time the practice is sold or Dr. Mark N. Dobin returns. Dr. Mark N. Dobin has the right to hire another Eye Doctor to work his office during vacation time, or other times when he is not available. If Eyewear Glasses Inc. is not happy with the performance of said Eye Doctor. it may request that another Doctor be hired by Dr. Mark N. Dobin, but the final decision shall be his. Dr. Mark N. Dobin has the right to hire c an employee at his own expense, to assist in his office. A key to the premises may be given to said employee, but permission must first be granted by Eyewear Glasses inc. If either partner of Eyewear Glasses Inc. decides to sell his share of the corporation to the other, all points of this lease agreement shall remain in affect. If both owners agree to sell their share of the corporation, Dr. Mark N. Dobin shall have the right of first refusal to purchase Eyewear Glasses Inc. and its contents. Eyewear Glasses Inc. agrees to build a partition at its own expense in order to meet Florida State Optometric Board requirements. A Covenant of Restriction with a radius of 5 miles shall go into affect 2 years from the beginning of this lease, and shall last for a period of 3 years from the termination of this lease. Dr. Mark N. Dobin shall not sell eyeglasses or other optical excessories, excluding all items pertaining to the sale and dispensing of contact lenses. The space occupied by Dobin, which consisted of approximately 248 square feet, was located at the rear of the optician's store, and accessible by way of a sliding glass door from the store or through a back glass door from the shopping mall area. Consequently, customers of either business had an unrestricted view and access to the business of either profession. Considering the physical layout of the premises, as well as the view of the premises afforded by Petitioner's exhibit 5, the proof established that Dobin held himself out to the public in a manner that implied he was professionally associated with or employed by Eye-Wear Glasses, Inc. Indeed, the "rental agreement" itself depicts a business association more far reaching than that of landlord and tenant, and served to impair Dobin's exercise of free, independent, and unlimited professional judgment and responsibility. 1/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOM)MENDED that Respondent, Mark N. Dobin, be placed on probation for twelve (12) months, and that an administrative fine of $3,000 be imposed upon him. DONE AND ORDERED this 24th day of July, 1987, in Tallahassee, Leon County, 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 24th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4484 Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2-3. Addressed in paragraph 2. 4. Addressed in paragraph 3. 5-6. Addressed in paragraph 2. 7-9. Addressed in paragraph 4. 10. Addressed in paragraph 5. 11-12. Addressed in paragraph 4. 13-22. Addressed in paragraph 6(a) -(g). 23-24. Addressed in paragraph 7. 25. Addressed in paragraph 8. 26. Addressed in paragraphs 9-10. 27-31. Addressed in paragraphs 11-13. COPIES FURNISHED: Phillip B. Miller, Esquire c Robert D. Newell, Jr., Esquire 102 South Monroe Street Tallahassee, Florida 32301 Mark N. Dobin 7384 West Atlantic Boulevard Margate, Florida 33063 Mildred Gardner, Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Honorable Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent Hagen violated Chapter 484, Florida Statutes, and Rule 21P-4.01, Florida Administrative Code, by allowing his license to be used by an unlicensed person to engage in the occupation of dispensing optician without his presence and direct supervision. Whether the license of Respondent Hagen should be revoked, annulled, withdrawn or suspended for violation of Chapter 484, Florida Statutes, and Rule 21P-4.01, Florida Administrative Code.
Findings Of Fact Respondent Wayne L. Hagen, the licensed optician in the Pearl Vision Center, Tyson Square Mall, St. Petersburg, Florida, holds License No. 180, a license in good standing, issued by the Florida Board of Dispensing Opticians pursuant to Chapter 484, Florida Statutes. The Board in formal meeting on March 28, 1975, directed Mr. Allen R. Smith, Jr., a coordinator for the Department of Professional and Occupational Regulations, Division of Occupations, to file the subject Administrative Complaint against Respondent Hagen. The charge in the Complaint is the violation of Rule 21P-4.01, Florida Administrative Code, in that an unlicensed person engaged in "dispensing optical goods while Mr. Hagen was absence for the premises". Respondent received a copy of the Administrative Complaint, Explanation and Election of Rights containing notice that said Complaint was mailed the 29th day of April, 1975. Respondent had no notice by certified mail or actual notice of these proceedings or an opportunity to show that he had complied with all lawful requirement for the retention of his license, prior to the receipt of the Administrative Complaint, Explanation and Election of Rights. Petitioner admitted that no notice prior to the mailing of the Administrative Complaint, Explanation and Election of Rights was sent to Respondent giving notice of the facts or conduct which are delineated in the Administrative Complaint, Explanation and Election of Rights. Petitioner admitted that prior to the initiation of the Administrative Procedures Act in former proceedings the Board had given notice of receipt of Complaints against licensees. Respondent Hagen had posted in the office of Pearl Vision Center signs indicating that no fittings or adjustments would be made while Respondent was off duty. The unlicensed employee of Respondent, Lynda Vickers, performed acts in violation of the Rules and Regulations of the Board without the knowledge or permission of Respondent and was discharged prior to the filing of the Complaint against Respondent. Respondent did not allow his license to be used by an unlicensed person to engage in the trade or occupation of dispensing optician without his presense and direct supervision. Respondent through his attorney moved to dismiss the Complaint on the grounds that the Board of Dispensing Opticians failed to give him prior notice and and an opportunity to rectify in accordance with the requirements of the licensing statute, Section 120.60(4), Florida Statutes.
The Issue Whether the Petitioner must reimburse the Respondent for Medicaid overpayments as set out in the Final Agency Audit Report dated October 29, 2003, and, if so, the amount to be repaid.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: AHCA is, and was at all times material to this proceeding, the state agency charged with administering Florida's Medicaid Program; with making payments to providers of goods and services on behalf of Medicaid recipients; and with overseeing the Medicaid Program, auditing Medicaid providers, and recovering overpayments made to Medicaid providers. See §§ 409.901, 409.902, and 409.913, Fla. Stat. (2003). During the Audit Period, Ady Optical was an authorized Medicaid provider of opticianry services,3 having been issued Medicaid provider number 2002949-00. To become a Medicaid provider, Ady Optical executed a Medicaid Provider Agreement. The FAAR dated October 29, 2003, was based on a review by Dr. Regina Manes of Ady Optical's records for the 30 randomly-selected Medicaid recipients. At the time of the final hearing, Dr. Manes was no longer under contract with AHCA and, therefore, was not available to testify. AHCA requested that Dr. Walby testify at the final hearing as its expert in optometry. In preparation for the final hearing, Dr. Walby reviewed the records submitted by Ady Optical and made an independent determination of the appropriateness of the 294 claims at issue for the Audit Period. Dr. Walby's conclusions were not always consistent with those of Dr. Manes. Ms. Whaley reconciled the two reviews and allowed a claim if either Dr. Walby or Dr. Manes determined that it was covered by Medicaid. As a result of Dr. Walby's review and Ms. Whaley's reconciliation, AHCA lowered the amount it seeks to recover from Ady Optical to $45,914.17. The purpose of Medicaid visual services, as stated in the Coverage and Limitations Handbook, is "to provide medically necessary eyeglasses, contact lenses, eyeglass repair services, and prosthetic eyes to Medicaid recipients." "Visual services" are described in the Coverage and Limitations Handbook as "the medically necessary provision of eyeglasses, prosthetic eyes, and contact lenses; the fitting, dispensing, and adjusting of eyeglasses; and eyeglass repair services." The Coverage and Limitations Handbook is to be used in conjunction with the Reimbursement Handbook, which provides information and guidance to assist Medicaid providers in filing claims properly. The claims at issue in this case involve the provision of eyeglass lenses to Medicaid recipients by Ady Optical. Medicaid recipients bring their eyeglass prescriptions to Ady Optical, and Mr. Jimenez, as the licensed optician at Ady Optical, helps the recipient select eyeglass frames and orders lenses in the powers required by the prescription. An optician such as Mr. Jimenez has the discretion to order lenses with special features such as tints, plastic or glass lenses, variable asphericity lenses, and lenses with a special base curve, depending on the needs of the individual. The lenses selected by an optician for a Medicaid recipient must be optically necessary, that is, necessary to enhance visual acuity, and information establishing the optical necessity for the selection of non-standard lenses must be contained in the documentation maintained by the optician. Sometimes the need for a non-standard lens is apparent from the prescription, but in most cases, the optical necessity must be noted in the documentation. The claims for which AHCA disallowed full or partial payment to Ady Optical are claims for variable asphericity lenses, claims for lenses with special base curves, one claim for an oversized lens, claims for which Ady Optical provided inadequate documentation to establish that lenses were ordered for Medicaid recipients, and claims involving errors in coding. Claims for variable asphericity lenses Prescriptions for eyeglass lenses are expressed in "plus or minus" diopter units. Variable asphericity lenses were originally designed to ameliorate the magnification and "off-of- the-center" effects of the very thick lenses necessary to correct the vision of persons with extremely high diopter prescriptions, such as the prescriptions of ± 15 diopters or more needed in the past by persons who had had cataract surgery.4 With advances in technology and surgical techniques, there are few patients with prescriptions this high, and variable asphericity lenses are now made for prescriptions with much lower diopters. The curve of a variable asphericity lens is different from that of a regular lens, and variable asphericity lenses are lighter in weight than regular lenses, which can be a factor for persons with high diopter prescriptions. Variable asphericity lenses also provide significantly better peripheral vision for persons with high diopter prescriptions than regular lenses can provide. There is, however, a minimal difference in weight between variable asphericity lenses and regular lenses with low diopter prescriptions, and peripheral vision is usually not affected when regular lenses are used for low diopter prescriptions. The Coverage and Limitations Handbook in effect during the Audit Period provides that both single vision variable asphericity lenses, assigned procedure code V2410, and bifocal variable asphericity lenses, assigned procedure code V2430, may be billed under the same codes for all powers ranging from .25 to over 6.0 diopters.5 In his review of the Medicaid claims submitted by Ady Optical for the 30 randomly-selected Medicaid recipients included in the audit, Dr. Walby disallowed all claims for variable asphericity lenses because the prescriptions were lower than ± 7.00 diopters. Dr. Walby reasoned that any optician should know that variable asphericity lenses should not be prescribed for prescriptions with diopters lower than ± 7 units. Dr. Walby variously described the ± 7 diopter cut-off for variable asphericity lenses as the standard he considered "the industry standard" and as the standard he chooses to use in his practice. Dr. Walby also testified that the ± 7-diopter standard had previously been chosen by Medicaid as the minimum prescription for which contact lenses are covered and that this standard was adopted in the current Coverage and Limitations Handbook "because somebody had to draw a line in the sand, and that's where it got drawn."6 Dr. Walby has failed to establish by persuasive evidence that, in the practice of opticianry, there is an absolute industry standard that dictates that variable asphericity lenses are never optically necessary for a person whose prescription is lower than ± 7.00 diopters.7 Because the Coverage and Limitations Handbook in effect during the Audit Period permitted the use of variable asphericity lenses for prescriptions of ± 0.25 diopters and above, Ady Optical is entitled to reimbursement for variable asphericity lenses provided to Medicaid recipients whose prescriptions are below ± 7.00 diopters as long as Ady Optical documented that variable asphericity lenses were optically necessary to provide adequate visual acuity and reasonable comfort. Ady Optical ordered variable asphericity lenses for Recipients 1 through 3, 5 through 8, and 10 through 30. None of these recipients' prescriptions exceeded ± 5.25 diopters. Most of the prescriptions for these recipients were below ± 3.00 diopters, and several of the prescriptions called for "plano" lenses, that is, lenses with no magnification power. Ady Optical failed to indicate on any of the laboratory order forms any optical necessity for providing variable asphericity lenses to these recipients. The claims submitted by Ady Optical to Medicaid for payment for variable asphericity lenses for these recipients are, therefore, disallowed. Claims for lenses with special base curves Although there is a standard base curve for eyeglass lenses, lenses can be made with different base curves to accommodate the special needs of an individual. The Coverage and Limitations Handbook in effect during the Audit Period provides that special base curves, assigned procedure code V2730, may be billed with no stated limitations. In order to be covered by Medicaid, lenses with special base curves must be optically necessary, and the optical necessity must either be inherent in the prescription or documented in the optician's records. In addition, the optician is responsible for specifying the particular curvature of the lens required to meet the needs of the individual whenever a special base curve lens is ordered. There is optical necessity for lenses with special base curves when a person's prescription for one eye is significantly larger than the prescription for the other eye; the image size in both lenses can be made the same by adjusting the curves of the lenses. There is also optical necessity for a lens with a special base curve when a person's eyelashes scrape the back of the lens in their eyeglasses; the lenses could be made with a steeper base curve than the standard base curve to remedy this problem. Although Dr. Walby testified that there are optical reasons for ordering a lens with a special base curve, he did not explain any reasons except those noted. Ady Optical ordered lenses with special base curves for Recipients 1, 2, 4 through 8, 11 through 14, and 17 through There is nothing on the laboratory order forms for these recipients to indicate that special base curves for the lenses ordered were optically necessary, and there is nothing inherent in the prescriptions that would justify lenses with special base curves. On the laboratory order forms for all of the above recipients except for Recipient 8 and Recipient 23, the special base curve specified was "variable," "special," "thinnest," "flat," "flattest," and "match Rx." These descriptive terms do not provide a specific base curve measurement to the laboratory, and the base curve measurement was determined by the laboratory rather than by an optician. On the laboratory order form for Recipients 8 and 23, base curve measurements of +4.0 and +6.0, respectively, were specified; these base curve measurements are, however, standard for the prescriptions of Recipients 8 and 23. The claims submitted by Ady Optical for payment for lenses with special base curves for these recipients are, therefore, disallowed. The laboratory order forms for Recipients 10, 15, 16, 20, and 30 did not include an order for lenses with special base curves. The claims submitted by Ady Optical to Medicaid for payment for lenses with special base curves for these recipients are disallowed. Oversized lenses Pursuant to the Coverage and Limitations Handbook, Medicaid will pay for oversized lenses, assigned procedure code V2780, for recipients whose eye-size is 56 millimeters or greater. Ady Optical submitted a claim to Medicaid for payment for oversized lenses for Recipient 23. Recipient 23's eye-size was specified on the laboratory order form as 50 millimeters, and the claim for payment for oversized lenses for this recipient is disallowed. Claims not supported by documentation All claims submitted to Medicaid for Recipient 6 for lenses ordered on June 13, 2000, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. All claims submitted to Medicaid for Recipient 9 for August 11, 1999, and for October 28, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include laboratory order forms for those dates. All claims submitted to Medicaid for Recipient 10 for lenses ordered on September 29, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. All claims submitted to Medicaid for Recipient 19 for lenses ordered on May 29, 1999, and June 12, 2000, are disallowed because the documentation provided by Ady Optical to AHCA does not include laboratory order forms for those dates. All claims submitted to Medicaid for Recipient 22 for lenses ordered on April 7, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. All claims submitted to Medicaid for Recipient 26 for lenses ordered on July 16, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. All claims submitted to Medicaid for Recipient 27 for lenses ordered on August 23, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. Claims containing billing errors Mr. Jimenez does not challenge the disallowance of claims billed in error, specifically the claims for bifocal seg widths of over 28 millimeters for Recipients 20, 23, 26, and 27. Summary The evidence presented by AHCA is sufficient to support its determination that Ady Optical received Medicaid overpayments in the amount of $45,914.17.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Ady Optical, Inc., received overpayments from the Medicaid program in the amount of $45,914.17 during the period extending from January 1, 1999, through June 30, 2000, and requiring Ady Optical, Inc., to repay the overpayment amount. DONE AND ENTERED this 27th day of May, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 27th day of May, 2004.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated August 23, 2007, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for registering and regulating motor vehicle repair shops. See §§ 559.904, .920, and .921, Fla. Stat. Ms. Gore is the current president and sole shareholder of American Auto Glass. She is also its only employee. American Auto Glass's physical address is 873 Orchid Drive, Plantation, Florida 33317, which is Ms. Gore's residence. American Auto Glass's business records are kept at this address, and its invoices and billings to various insurance companies are prepared there. All business correspondence and payments go to Post Office Box 17484, Fort Lauderdale, Florida 33318; and its the business telephone is Ms. Gore's cell phone. American Auto Glass is a "Sub-Chapter S" corporation. Prior to June 2006, Ms. Gore and Ana Diaz jointly owned American Auto Glass; Ms. Gore purchased the business in June 2006, and Ms. Diaz has not been involved in the business since that time. American Auto Glass is an approved vendor of automobile glass replacement claims for several insurance companies, and it acts as a broker handling automobile glass replacement claims for persons insured by those insurance companies. When an insurance company receives a claim from an insured for replacement of damaged automobile glass, the insurance company assigns the claim to American Auto Glass. American Auto Glass receives the assignment either through a telephone call from the insurance company's claims department or in a facsimile transmission from a glass vendor, that is, an administrator under contract with the insurance company to sub- contract automobile glass replacement claims to other agents in the field. The insurance company or glass vendor tells its insureds that it will handle the assignment of the claims and does not refer its insureds to American Auto Glass. Rather, it advises the insureds that they will be contacted by the person who will do the work of replacing the glass. Once American Auto Glass receives the claim referral, Ms. Gore contacts an independent sub-contractor who will do the installation of the automobile glass replacement. The sub- contractors used by American Auto Glass also work for other companies. As part of the assignment, American Auto Glass receives complete information regarding the type of vehicle, the damages, and the materials that need to be replaced, which Ms. Gore transmits to the sub-contractor. The sub-contractor assigned the installation job contacts the insured and arranges an appointment with the insured to bring in the car to the sub-contractor for the replacement installation. American Auto Glass does not, at any time, have possession of the vehicles for which it arranges automobile glass replacement installations, nor does it share a business location with the sub-contractors it engages to do the automobile glass replacement installations. Some sub-contractors used by American Auto Glass for automobile glass replacement installations furnish both parts and labor. If the sub-contractor does not furnish the parts but only the labor, the sub-contractor orders the necessary parts from AGS Auto Glass Export or another parts supplier. American Auto Glass has an account with AGS Auto Glass Export. The sub-contractor picks up the necessary parts for a job, and AGS Auto Glass Export bills American Auto Glass directly for these parts. Once the glass replacement installation is completed, the sub-contractor either sends an invoice to American Auto Glass or contacts Ms. Gore and provides the vehicle information required by the insurance company and the cost of the installation. American Auto Glass bills the insurance company for the work done, and the insurance company pays American Auto Glass. American Auto Glass pays the sub-contractors for parts and labor if the sub-contractor has furnished the parts necessary for the replacement or for labor only if the sub- contractor has ordered the parts from AGS Auto Glass Export, the cost of which are billed directly to American Auto Glass. Ms. Gore adds a certain percentage to these charges when she bills the insurance company. American Auto Glass's primary sub-contractor does not furnish parts, and he has a negotiated price with American Auto Glass for each installation. American Auto Glass acts exclusively as a broker arranging with independent sub-contractors for the automobile glass replacement installations on behalf of insurance companies.2 American Auto Glass at no time has any contact with the insurance company's insureds or their vehicles. At one time prior June 2006, when Ms. Gore purchased sole interest in the business, American Auto Glass employed an "installer" who did the actual work of installing automobile glass replacements. During this time, American Auto Glass was registered with the Department as a motor vehicle repair shop. The registration expired on May 29, 2007.3 The evidence presented by the Department is not sufficient to establish that American Auto Glass is a motor vehicle repair shop whose business is motor vehicle repairs. Rather, American Auto Glass acts as a middleman between insurance companies and motor vehicle repair shops that do the actual glass replacement installation. Its only physical location is Ms. Gore's residence, and the business activities that take place at that location do not include any activities related to the actual work of motor vehicle repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the Administrative Complaint filed against American Auto Glass Network, Inc. DONE AND ENTERED this 11th day of March, 2008, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 11th day of March, 2008.
The Issue The issue for decision herein is whether or not Respondent exhibited fraud, deceit, negligence, incompetence, or misconduct in the examination and fitting of a patient for contact lenses in violation of Subsection 463.016(1)(g) and (h), Florida Statutes, and, if so, what, if any, administrative penalty should be imposed.
Findings Of Fact Petitioner, Department of Professional Regulation, Board of Optometry, is the state agency charged with regulating the practice of optometry in Florida, pursuant to Section 20.30 and Chapters 455 and 463, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed optometrist who holds license number 0000437, and his last address of record is Zodiac Optical, 1211 South Dale Mabry Highway, Tampa, Florida 33 On February 21, 1987, Respondent examined and fitted Patricia Gama for hard contact lenses and Ms. Gama paid $154.00 for the lenses. On that date, Respondent obtained an initial refraction for the right eye of -1.25 and for the left eye of -1.00 (eye glass prescription only) and by use thereof, fitted Gama with contact lenses. At the time, Gama was employed as a cashier at a commercial retail establishment. Gama immediately began experiencing discomfort with the contacts, specifically blurred vision, red eyes and headaches. Gama found it difficult to read the cash register keys and function as a cashier. Gama advised Respondent of her discomfort on February 25, 1987, and at that time, Respondent fitted Gama with another set of contact lenses. Gama continued to experience discomfort with the contact lenses and after advising Respondent of such, Respondent on February 27, 1987, fitted Gama with a third set of contact lenses. Gama's discomfort with the contact lenses continued and she again advised Respondent of his discomfort. On March 18, 1987, Respondent fitted Gama with a fourth set of contact lenses. Through it all, Respondent used eleven different lenses in an effort to properly fit Gama; however, she continued to experience discomfort. Throughout Respondent's endeavor to properly fit Gama with contact lenses, he did so in a courteous and professional manner. However, Gama's husband insisted that she seek a second opinion from another optometrist, obtain a refund from Respondent and discontinue using the lenses Respondent prescribed. On April 22, 1987, Respondent's partner, Dr. William Hunter, refunded $74.00 of the total purchase price of $154.00 that Gama paid. He also gave Gama the prescription prepared for her by Respondent. Respondent works in a group practice which is owned by Dr. Hunter. Dr. Hunter has a policy of giving only a 50% refund within thirty days of purchase if the patient is not satisfied. On the following day, April 23, 1987, Gama was examined and fitted for contact lenses by Dr. Julian Newman. Respondent's initial refraction was twice as strong as Dr. Newman's refraction. It is not uncommon for patients, such as Gama, to test differently for glasses on different days which can result in different refraction readings on different days. Likewise, it is not unusual for an optometrist to note different refractions for the same patient on different days, or to make an error in the refraction readings for the same patient. When this is done however, the optometrist should try to correct the mistake if, in fact a mistake is made. Here, Respondent strived to satisfy Gama and never ceased efforts to comfortably fit her with contact lenses. Respondent made a refund to Gama in keeping with office policy which appeared reasonable under the circumstances considering the time spent with Gama before she decided to seek another opinion from another optometrist. (Testimony of Drs. Julian D. Newman, O.D. and Joel Marantz, O.D. both of whom were expert witnesses in this proceeding.) Respondent's receptionist, Beatrice Franklin, paid $100.00 to Gama on or about December 11, 1987, in exchange for Gama signing a request to drop her charges against Respondent at the Department of Professional Regulation. Respondent had no knowledge of Ms. Franklin's actions, and in fact, Sharon Hosey, a receptionist employed by Respondent, corroborated Respondent's testimony respecting lack of knowledge on his part as to any payments to Gama other than the $74.00 refund in exchange for her withdrawal of the complaint with Petitioner or to otherwise obtain Gama's signature on a release. Respondent was conscientiously attempting to comfortably fit Gama with contact lenses when Gama decided to seek a second opinion. He did so by changing the prescriptions on several occasions, including changing to lenses made by a different manufacturer. In the process, Respondent tried eleven different contact lenses. Respondent was willing to continue treating Ms. Gama and provide the required follow-up care.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Board of Optometry enter a Final Order dismissing the Administrative Complaint filed herein in its entirety. DONE and ENTERED this 16th day of February, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of February, 1990. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Jack L. Hargraves, O.D. 1211 South Dale Mabry Highway Tampa, Florida 33629 Patricia Guilford, Executive Director Florida Board of Optometry Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent is, and was at all times material to these proceedings, a licensed optometrist in the state of Florida, having been issued license number OP 000773. Respondent has been a practicing optometrist in the state of Florida for 24 years having graduated from the Southern College of Optometry in Memphis, Tennessee in 1964. Respondent has maintained his practice in Orange Park, Florida since 1964. Respondent has been treating patients with orthokeratology for approximately 20 years. Count I: Treatment of Keith Roberson with Orthokeratology and Follow-Up Care Therefor. On or about October 23, 1979, Alan Keith Roberson and his mother visited Respondent for the first time concerning a program of orthokeratology. During that visit, Respondent gave Roberson literature regarding orthokeratology. Roberson expressed a strong desire to obtain a driver's license. Roberson was 21 years of age at the time. Respondent told Roberson that orthokeratology would possibly enhance his vision and possibly enable him to achieve those things that he desired, more specifically, a driver's license. Orthokeratology has been defined as the programmed application of contact lenses to reduce or eliminate refractive anomalies and to sphericalize the cornea in order to reduce myopia, contain myopia, and to bring back a more functional vision. Orthokeratology has also been used for the reduction of astigmatism. The American Academy of Optometry does not recognize diplomacy for orthokeratology. Neither the American Optometric Association nor the Florida Optometric Association recognizes orthokeratology as a separate section. No special license or certification is required to practice orthokeratology in Florida. The initial refraction of Roberson by Respondent showed that the patient's eyes were a minus 21 diopter. Roberson was extremely myopic, which means he was extremely nearsighted. Roberson also had a high degree of nystagmus (constant movement of the eyes from side to side) and very large eyes. Respondent treated Roberson with a modified orthokeratology program in an attempt to improve Roberson's vision so that Roberson could obtain a driver's license. Through this modified orthokeratology program, Respondent hoped to reduce and contain Roberson's myopia, to reduce Roberson's nystagmus, and to improve Roberson's vision. Roberson's aided vision improved from the initial visit of 20/200 in each eye to that of 20/70 in the right eye and 20/100 in the left eye. Although Petitioner contends that Roberson's improved vision was not attributable to the orthokeratology treatment, there is insufficient evidence to show otherwise. From 1979 through September 1982, Roberson's vision did not slip and his myopia did not get any worse, and indeed, his vision had improved. During that period, Roberson was seen approximately eight times by Respondent, of which six visits were for orthokeratology and contact lens treatment. On March 17, 1981, Roberson was issued an operator's license with corrective lens restrictions by the State of Florida, Department of Highway Safety and Motor Vehicles. Prior to the issuance of this driver's license, Roberson had obtained a form entitled "Report of Eye Examination with a Certification of Eye Specialist" which was completed and apparently used to obtain Roberson's driver's license. There is insufficient evidence to show that Respondent completed and signed that portion of the form entitled "Certification of Eye Specialist". Although Roberson testified that his driver's license was issued the day after this form was dated on October 4, 1980, it is clear from the record that Roberson's driver's license was not issued until March 17, 1981. Respondent did not make any promises to Roberson that treatment with modified orthokeratology would improve his vision, unaided by glasses or contact lenses, so that Roberson could pass the vision requirement of the Florida Driver's Test unaided by glasses or contact lens, notwithstanding that the ultimate goal of orthokeratology may be to allow the patient to go for periods of time without refractive devices and function normally. Although Roberson's condition at the time of his first visit may have contraindicated a "strict" orthokeratology treatment, there were indications that the "modified" orthokeratology treatment suggested and used by the Respondent, after full explanation to Roberson, would produce the results that Roberson was seeking. In fact, it did improve Roberson's vision aided by refractive device sufficiently to allow Roberson to obtain a driver's license. Respondent did not promise Roberson that the "modified" orthokeratology treatment would enhance his vision, unaided by refractive devices, to the point of allowing Roberson to pass the driver's license test or that Roberson would be able to function normally for any period of time without refractive devices to aid his vision. There is insufficient evidence to show that Respondent could have obtained the same results using a less expensive treatment such as gas permeable contact lens. There was insufficient evidence that Respondent's follow-up care of Roberson was inadequate, particularly considering the use of "modified" orthokeratology treatment. There was insufficient evidence to show that Respondent's treatment of Roberson with "modified" orthokeratology fell below the standard of care in the community or that such treatment was inappropriate under the facts and circumstances of this case. Count II: Whether Respondent charged Patient Roberson an Excessive Fee for Orthokeratology. Because Roberson was the highest myopic (-21 diopter) patient ever seen by Respondent and initially unsure whether orthokeratology would work on this patient, Respondent quoted a fee of $1,000.00 with the understanding that if treatment was not successful then the fee would only be $500.00. The parties stipulated that Respondent ultimately received $1,000.00 in payment from Roberson for orthokeratology. Dr. Carter's normal fee in 1979 for orthokeratology was $2,000.00. There is insufficient evidence to show that Respondent prescribed orthokeratology treatment for Roberson to facilitate charging him a higher fee. Count III: Whether Respondent Failed to Properly Treat Patient Roberson and Follow Patient Roberson's Condition. At approximately 7:30 p.m., on September 7, 1982, Roberson visited Respondent's office after accidentally being "poked" in the left eye four days earlier causing a bright blue flash of light resulting in a curtain over Roberson's eye and poor sight vision in the nasal field. Roberson complained about fluctuating vision, seeing light flashes, a veil-like curtain coming over his left eye, watering of the left eye and slipping of contact lens. Respondent spent approximately 20-25 minutes examining Roberson. After examining Roberson's visual acuities, Respondent examined Roberson with a slitlamp or biomicroscope and attempted an optomoscopy in an attempt to view Roberson's retina. Because of Roberson's high degree of myopia and nystagmus and because Respondent did not dilate eyes during this time period, Respondent was unable to determine for certain that Roberson had a detached retina. However, Respondent was aware of the high possibility that Roberson had a detached retina. Although Respondent may have advised Roberson to visit his previous ophthalmologist the next day, Respondent did not call an ophthalmologist on the evening of September 7, 1982 to facilitate referral, nor did Respondent follow- up by calling a ophthalmologist at any other time. After Roberson left Respondent's office he went home. The next day Roberson went to work and while at work he continued to experience the veil like curtain over his eye and a dark spot. Roberson then went home and played drums for about 3 1/2 to 4 hours. When he finished playing the drums he took a shower. While shaking his hair dry he lost the vision in his left eye. Roberson, on the advice of his mother, then went to the University Hospital where he was immobilized and diagnosed as having a probable retinal detachment, and thereafter transported to Shands Hospital, where he was diagnosed as having a giant retinal tear. While at Shands Hospital, Roberson underwent three major operations on his eye and 45 minutes of laser surgery. He was informed that he would probably always be blind in his left eye. Because of Roberson's high degree of myopia, statistically he was at a very high risk of experiencing a detached retina with or without injury. Respondent was aware that patient's eyes were sensitive to a retinal detachment as early as 1979. In 1979, Respondent went to great lengths to inform Respondent that if he ever had the symptoms of a detached retina he should go directly to an ophthalmologist. The classic symptoms of a detached retina are flashes of light with what appears to be a veil or curtain floating over the eye. Roberson experienced the classic symptoms of a retinal detachment and communicated them to Respondent on the evening of September 7, 1982. A detached retina usually occurs secondarily to a retinal tear. A detached retina becomes an ocular emergency once detected or when it should have been detected. The circumstances presented in this case, inter alia, the history of the patient's eyes; a high degree of myopia; difficulty Respondent had with viewing patient's eyes and the symptoms complained of made the situation an ocular emergency. It was of paramount importance to get the patient to an ophthalmic specialist. The failure to promptly refer a patient who has a possible detached retina to the appropriate specialist is a grave departure from the prevailing standard of care for reasonable and prudent optometrists in Respondent's community under similar circumstances. The longer the blood supply is cut off from the retina the less chance there is that the retina will continue to function. The fact that 4 days had elapsed between the time Roberson had been struck in the eye on September 3, 1982, and the time he visited Respondent on September 7, 1982, makes referral that much more important. Merely telling Roberson to see an ophthalmologist the next day is not enough. Respondent should have called the retinal specialist and made the referral. The appropriate referral protocol and standard of care under the circumstances presented in this case would have been for Respondent to call the ophthalmologist himself that evening and, if the ophthalmologist was not in the office, it would have been appropriate to leave a message with the doctor's service explaining the emergency nature of the circumstances. Count IV: Whether Patient Roberson's Records were Altered or Made After the Fact by Respondent. When Roberson first visited Respondent's office in 1979, Respondent recorded Roberson's case history on a 5 x 8 card which was kept with Roberson's patient jacket. The results of Respondent's examination and testing of patients were records on a letter size document. In 1984, after receiving and responding to numerous inquiries regarding Roberson, Respondent transferred information from the 5 x 8 card onto the larger patient record so that all of the information would be contained on one form. The 5 x 8 card was then returned to the patient jacket. Respondent no longer has the patient jacket as all of his original records were subpoenaed from him during the civil litigation. While Dr. Carter candidly admits to transferring part of the patient record from one document onto another document, there was no testimony or evidence presented that Dr. Carter altered or changed any of the patient records or added any information thereto. Count V: Whether Respondent has Engaged in Gross or Repeated Malpractice in the Practice of Optometry Regarding his Treatment and Examination of Keith Roberson. The Respondent was disciplined by the Board of Optometry in its Final Order dated July 17, 1981 in Department of Professional Regulation v. R.T. Carter, O.D., Case No. 81-403, wherein Respondent was assessed an administrative fine of $5,000.00, ordered to make restitution in the total amount of $1,471.00, placed on probation for 18 months and had restrictions placed on his advertising. In General Although the record reveals that Petitioner has not always timely complied with time limits set out in Section 455.225(2) and (3), Florida Statutes, there has been no showing by the Respondent that he was prejudiced by the delays.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent guilty of Count III and Count V, in regard to Count III of the Amended Administrative Complaint, and suspending his license to practice optometry in the state of Florida for a period of one year followed by one (1) year of supervised probation with conditions the Board may consider appropriate, and imposing an administrative fine of $5,000.00. It is further RECOMMENDED that Count I, Count II, Count IV and Count V as it relates to Counts I, II and IV be dismissed. RESPECTFULLY SUBMITTED and ENTERED this 8th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2032 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings in Proposed Findings of Fact Submitted by Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3, except date which was October 23, 1979. Adopted in Findings of Fact 4. Adopted in substance' in Finding of Fact 5, except last sentence which is rejected as not being supported by the substantial competent evidence in the record. 5.-6. Adopted in Findings of Fact 6 and 7, respectively. Subordinate to facts actually found in this Recommended Order. The first sentence adopted in Findings of Fact 10. The balance of this findings of rejected as not being supported by substantial competent evidence in the record. 9.-12. Subordinate to facts actually found in the Recommended Order. Adopted in Finding of Fact 20. Rejected as not being supported by substantial competent evidence in the record. 15.-22. Adopted in Findings of Fact 23,24,25,27,28,29,30 and 31, respectively. The first sentence is only a restatement of Respondent's testimony rather than a finding of fact. The balance of this finding is subordinate to the facts actually found in this Recommended Order. Adopted in Findings of Fact 26 and 35. 25.-28. Adopted in Findings of Fact 32, 33, 34 and 40. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1.-13. Adopted in Findings of Fact 1, 2, 3, 7, 3, 2, 5, 8, 9, 10, 11, 12 and 16, respectively. Adopted in Findings of Fact 14, 15 and 16. Adopted in Findings of Fact 17 and 18. -20. Are not findings of fact, but statements as to the weight given certain evidence. Adopted in Findings of Fact 17 and 18. Covered in Background. 23.-26. Adopted in Findings of Fact 19, 19, 20 and 21, respectively. 27.-28. Not a finding of fact, but rather a restatement of testimony. 29.-35. Adopted in Findings of Fact 23, 23, 24, 25, 25, 25 and 25, respectively. Adopted in Findings of Fact 25 and 26, but modified. The first sentence is subordinate to facts actually found in this Recommended Order. The balance is adopted in Finding of Fact 27. 39.-41. Adopted in Finding of Fact 28. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 28. Is a restatement of testimony rather than a finding of fact but, if stated as a finding of fact would reject as subordinate to facts actually found in this Recommended Order. Rejected as being argument rather than a finding of fact. Covered in Background. Rejected as not being material or relevant. 48.-51. Adopted in Findings of Fact 36, 37, 38 and 39. Rejected as argument not a finding of fact. The first, third and fifth sentences are rejected as not being supported by substantial competent evidence in the record. The balance of this finding is subordinate to facts actually found in this Recommended Order. 54.-67. Rejected as not being material or relevant since Respondent produced insufficient evidence to show that he was prejudiced by these acts. 68. Rejected as not supported by substantial competent evidence in the record. 69.-70. Rejected as not being material or relevant. 71. Rejected as not being supported by substantial competent evidence in the record. COPIES FURNISHED: Robert D. Newell, Jr., Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 Gary J. Anton, Esquire Stowell, Anton & Kraemer Post Office Box 11059 Tallahassee, Florida 32302 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mildred Gardner, Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
