Findings Of Fact Petitioner Dyer Kemp Garvin, Jr., has never completed a course of study at a recognized school of opticianry. On April 2, 1957, however, he began working and training under Ralph C. Cronbaugh, a licensed optician, at Daytona Optical Center in Daytona Beach, Florida. He learned how to read a lensometer, interpret prescriptions for eyeglasses, figure base curves, measure the seg height and various physiognomic features, cut and edge lenses, fit lenses to the frame and so forth. Petitioner worked under Mr. Cronbaugh's supervision an average of 48 or 50 hours a week continuously until June of 1961, even though the training program as such ended after three years. Some time before June of 1961, petitioner registered as an apprentice with and paid a fee to the Florida Association of Dispensing Opticians. On June 3, 1961, petitioner became a member of the Florida Association of Dispensing Opticians. Some 15 years later the Florida Board of Opticianry instituted its own apprenticeship program for the first time. From June of 1961 until at least June of 1963, petitioner remained at the Daytona Optical Center under the supervision of Steve Stevenson, a licensed optician. For nine months or a year longer, he worked under a third licensed optician at the Daytona Optical Center, Andrew H. Hollaway. Petitioner moved to Alabama from Daytona Beach. There he managed an office for Bausch-Lomb in Birmingham, then went into business for himself under the name Jasper Optical Center in Jasper, Alabama. He actively practiced as a dispensing optician in Jasper for more than three years immediately preceding his application for licensure in Florida. Petitioner is a past vice-president of the Alabama Society of Dispensing Opticians and a former member of the board of directors of the International Society of Dispensing Opticians. He is now licensed as a dispensing optician in Alabama and has been for the last 18 years. Petitioner's Exhibit Nos. 3 and 4. Although the licensing scheme in Alabama is different from Florida's, petitioner's uncontroverted testimony was that he holds and has held a state occupational license in Alabama. This is corroborated by the affidavit of an Alabama judge, Petitioner's Exhibit No. 4, and a copy of petitioner's 1981-1982 license. Petitioner's Exhibit No. 3. For the past six years, petitioner and other dispensing opticians have worked to establish a state board to regulate opticianry in Alabama, but these efforts have been stymied by optometrists who have successfully opposed the legislation. As a matter of policy, respondent refuses to let dispensing opticians licensed in Alabama and other states with similar regulatory arrangements take the Florida dispensing opticianry examination. In preparing the foregoing findings of fact, the hearing officer has had the benefit of petitioner's post-hearing correspondence and respondent's proposed recommended order. Proposed fact findings that have not been adopted have been rejected as irrelevant or unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent admit petitioner to the dispensing opiticanry examination and license petitioner as a dispensing optician if he successfully completes the examination. DONE and ENTERED this 4th day of June, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1982. COPIES FURNISHED: Dyer Kemp Garvin, Jr. Post Office Box 1127 Destin, Florida 32541 Chris D. Rolle, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Suite 1602 Tallahassee, Florida 32301 H. Fred Varn, Executive Director Board of Opticianry 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION DYER KEMP GARVIN, JR. Petitioner, vs. DOAH CASE NO. 82-484 STATE OF FLORIDA, DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTICIANRY, Respondent. /
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
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 The Petitioner is Elizabeth Nicolitz who has been actively licensed in Florida as an optician since May 1, 1985. The Respondents are the Board of Opticianry and the Department of Professional Regulation. The Petitioner sought her attorney's fees and costs from an administrative proceeding, DOAH Case No. 92-1477, which was initiated by the filing of an administrative complaint on October 23, 1991, seeking disciplinary action against the Petitioner. The First District Court of Appeal summarized the facts and law leading up to this attorney's fees and costs case in Nicolitz v. Board of Opticianry and Department of Professional Regulation, 609 So.2d 92 (Fla. 1st DCA 1993), as: Nicolitz was previously placed on probation and ordered to file quarterly reports. When two of those reports were late filed, an administrative complaint was filed against her. Through counsel she executed an "election of rights" form and disputed the allegations of fact and sought a formal hearing before a Division of Administrative Hearings (DOAH) hearing officer in accordance with Section 120.57(1), Florida Statutes. The matter was referred to DOAH, where counsel for the Depart- ment of Professional Regulation (Department) and counsel for Nicolitz entered into a prehearing stipulation. The Department construed this stipula- tion as demonstrating an absence of disputed issues of material fact and, in accordance with Florida Administrative Code Rule 22I-6.033, moved the hearing officer to relinquish jurisdiction. The DOAH hearing officer considered Nicolitz's response in opposition to the motion to relinquish jurisdiction, heard oral argument, and denied the motion. Several weeks later, and one day before the scheduled formal hearing, counsel for the Department filed an "notice of voluntary dismissal without prejudice." This pleading essentially tracked the earlier motion to relinquish jurisdiction in concluding that no material issues of fact were in dispute, and sought dismissal without prejudice to the Department's right to proceed before the Board of Opticianry (Board) in an informal hearing pursuant to Section 120.57(2), Florida Statutes. The hearing officer entered an order which "ratified" the voluntary dismissal and purported to dismiss the administrative complaint. See F.A.C. Rule 22I-6.037. When an informal hearing was scheduled before the Board, Nicolitz petitioned this court for a writ of prohibition and we issued an order to show cause. We have considered the petition, the responses of the Department and the Board, and petitioner's reply, and grant relief. . . . [The opposition] is based in part on an argument that [Ms. Nicolitz] has failed to acknowledge and comprehend the relationship between the Department and the Board in disciplinary proceedings. While we agree that relationship is key to proper resolution of this dispute, we find it is respondents [Department and Board] who miss the mark. The disciplinary proceeding essentially evolves in three stages, the first being an investigation by the Department and its report to the Board as to the existence of probable cause. See SS. 455.225(1), (2), and (3), Fla. Stat. (1991). The Board then may direct the Department to file an formal complaint and the Department shall "prosecute that complaint pursuant to the provisions of chapter 120." S. 455.225(4), Fla. Stat. The prosecution, second stage of the disciplinary proceeding, may or may not result in a referral to DOAH, but if it does, the relationship of the Board and the Department is altered. In the first stage, and during the third stage when jurisdiction returns to the Board and it enters a final order in accordance with section 455.225(6), the Board is a quasi-judicial body and the Department acts as an investigative and prosecuting authority. While jurisdiction lies with DOAH, however, that tribunal has jurisdiction and the Board is a party to the proceedings. S.120.57(1)(b)(3). During the DOAH proceedings, the Department acts as counsel of record for the Board and, we conclude, the Board must be bound by its counsel's actions. Those actions include voluntary dismissal of a complaint. Petitioner filed her attorney's fees and costs petition pursuant to Section 57.111 F.S. with the Division of Administrative Hearings on February 26, 1993, less than sixty days after the District Court's mandate issued. That is the case sub judice. She seeks attorney's fees and costs starting from October 29, 1991. The disciplinary litigation and administrative background between Ms. Nicolitz and Respondents could be described as a long and dreary "mini war," fought in sequential encounters. An abbreviated chronology of this epic struggle is essential to reach the material issues at bar, and illustrates that most of the time the right hand of the bureaucracy had no idea what its left hand was doing, even when the right hand directed the left hand to act. Ms. Nicolitz was licensed in Florida as a Dispensing Optician Lic. No. DO 0002492, and owned an optical establishment in Jacksonville known as "Specs and Company, Inc." During the summer of 1986, Ms. Nicolitz became the sponsor of an apprentice optician named Douglas H. Stewart. Chapter 484 F.S. permits licensed opticians to sponsor an apprentice optician for training purposes and allows the apprentice to perform a limited number of opticianry tasks, subject to the regulations contained in Rules 21P-16.001 through 21P-16.011 F.A.C. On June 30, 1986, while Ms. Nicolitz was away from the establishment, apprentice Stewart measured a patient's pupillary distance and segment height for assembling and fitting a pair of glasses in apparent violation of Rule 21P- 16.003 F.A.C. On December 12, 1986, the Department initiated disciplinary action against Ms. Nicolitz's license through the filing of a formal complaint styled DPR v. Elizabeth Nicolitz, Case No. 0072717. The case was subsequently resolved by stipulation of the parties, and Ms. Nicolitz signed the stipulation on March 23, 1987. The stipulation was then presented to the Board of Opticianry on April 10, 1987. A final order was filed May 12, 1987, ordering Ms. Nicolitz to pay an administrative fine of $250.00 within 30 days. Additionally, she would be placed on probation for one year and as a condition of probation, she was required to file quarterly reports, commencing the first of the month three months from the date of the filing of the final order. On May 12, 1987, Ms. Patricia B. Guilford, Executive Director of the Board of Opticianry wrote Ms. Nicolitz pointing out that the final order had been officially filed and as such, the terms of the March 23, 1987 stipulation must now be fulfilled. Ms. Guilford also pointed out that the administrative fine of $250.00 was due on or before June 12, 1987 and that Ms. Nicolitz's probation had begun, effective May 12, 1987, and would end June 12, 1988. The letter further specified that there were "specific terms and conditions" of probation that had to be met. As part of the letter, she included a copy of the filed final order. This package was sent by U.S. Certified Mail to Ms. Nicolitz and was signed for by her agent. Ms. Nicolitz paid the $250 fine on June 1, 1987. However, she did not thereafter file her quarterly reports with the Board in satisfaction of the other terms of her stipulation. On October 6, 1990, the Board of Opticianry filed a new administrative complaint, styled DPR v. Elizabeth Nicolitz, Case No. 0106310, alleging that Ms. Nicolitz had violated the previous final order by failing to submit the required quarterly reports in a timely fashion. Ms. Nicolitz responded to the Department by asserting that she had never received the final order, especially in reference to the probation requirement. On the advice of counsel, Ms. Nicolitz suggested that a new stipulation agreement be entered between her and the Department calling for new starting dates for her probation and quarterly reports. As agreed to, the new stipulation required Ms. Nicolitz to file quarterly reports on March 31, 1990, June 30, 1990, September 30, 1990, and December 31, 1990. In entering into the new stipulation agreement, the Department took into consideration allegations made by Ms. Nicolitz and her counsel that the final order may not have been properly served upon her, and agreed to dismiss pending complaint DPR v. Elizabeth Nicolitz, Case No. 0106310, filed October 6, 1990. That case was presented to the November 18, 1989 Probable Cause Panel for closure. The Panel heard the arguments and agreed to closure. During all of this period, agency personnel had harbored suspicions of Ms. Nicolitz because they felt she should have known what to do and when to do it because she had signed the stipulation and because of the agent's signature on the receipt for the final order. There were misinterpretations of the earlier closing order and attorneys for both parties fired off accusatory, and eventually explanatory and apologetic, letters. In any case, it was abundantly clear as of November 18, 1989 at the latest, that Ms. Nicolitz knew she must file her quarterly reports on March 31, 1990, June 30, 1990, September 30, 1990, and December 31, 1990. As per her agreement, Ms. Nicolitz submitted her first and second quarterly report on March 22, 1990 and June 1, 1990, respectively. However, she failed to submit the third quarterly report which was due September 30, 1990. The Board sent her a letter notifying her that she was delinquent. She then submitted the third report on October 16, 1990. She was again late with the filing of her last quarterly report due December 31, 1990. The Board once again notified her of the delinquency, and she submitted the last quarterly report on February 11, 1991. On October 23, 1991, a formal administrative complaint was filed. It charged Ms. Nicolitz with a violation of Section 484.014(1)(i) F.S., which provides for discipline of a licensee for: Violation of a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department. That administrative complaint became the underlying DOAH Case No. 92-1477, the procedural history of which is set out in Findings of Fact 3-4 supra. A more detailed factual history behind how the administrative complaint came to be filed is set out infra. There has never been any dispute that Ms. Nicolitz filed her first two of four required probation reports on time or that they were properly mailed directly to the Department of Professional Regulation instead of the Board. Since it was due on September 30, 1990, Ms. Nicolitz's third report, dated October 16, 1990, was 16 days late when she wrote it. Administrative Assistant Leah R. Hickel is an employee of the Board of Opticianry, whose paycheck is issued by the Department. In a letter dated October 17, 1990 Ms. Hickel advised Ms. Nicolitz that her quarterly report due September 30 had not been timely received and that she had thirty days from the date of Ms. Hickel's October 17, 1990 letter (i.e. November 16, 1990) to file the third quarterly report and comply with the terms of the final order. Ms. Nicolitz's October 16, 1990 report was stamped in as received by the Board on October 23, 1990. Ms. Hickel's letter and Ms. Nicolitz's third report must have crossed in the mail, but the third report was clearly timely received by the Board within the terms of Ms. Hickel's letter, and it may be reasonably inferred to have been received even earlier by the Department. Ms. Hickel sent a similar letter to Ms. Nicolitz on February 6, 1991 to the effect that Ms. Nicolitz's December 31, 1990 final quarterly report had not yet been received and that she must submit it within 30 days (i.e. March 8, 1991). The fourth report was filed with both Respondents within the time-frame provided in that letter. Contrary to the testimony of Susan J. Foster, the current Executive Director of the Board of Opticianry, and Manty Morse, a member of the Board and one of the members of the Probable Cause Panel which arrived at the new administrative complaint on September 16, 1991, the overwhelming record evidence is to the effect that Leah Hickel had apparent authority to extend the time for Ms. Nicolitz to file her third and fourth reports. Also, on the issue of whether or not Ms. Hickel had actual authority to extend probationers' time for reporting, it is found that she did. The Board had adopted a policy of extending by 30 days the time for filing probation reports as reflected by the minutes of an open meeting held November 3, 1989, stating: "The Board directed Ms. Hickel to send a 30-day letter any time a person is found not in compliance with a Final Order and to refer to complaints if they do not respond." (Emphasis supplied). Board Member Dale Wenal, the Board attorney, Theresa Bender, and the Department prosecutor, Renee Alsobrook, were present at the February 9, 1990 Board meeting when the November 3, 1989 Board meeting minutes were discussed and adopted. Board members, including Ms. Wenal, voted for adoption of the minutes, and both sets of minutes were preserved as a standard business record of the Board. This method of doing regular Board business, i.e. the instruction of its support service personnel, was common practice of this particular collegiate body. Under these circumstances, it is immaterial that a formal motion and vote to "create" such a policy did not occur at either meeting. It is also immaterial that Ms. Wenal and Ms. Morse were not present at the November 3, 1989 meeting and that Ms. Morse was not present at the February 9, 1990 meeting. No one for either the Board or the Department notified Ms. Nicolitz that she was in violation upon her late-filing of the third or fourth probation reports, filed within the extensions granted by Ms. Hickel on October 17, 1990 and February 6, 1991. However, on February 12, 1991, Ms. Hickel sent a memorandum to Denise Love, Senior Complaint Analyst, to the effect that she now wanted to initiate a complaint for violating the prior final order. Ms. Love advised Ms. Nicolitz via a February 26, 1991 letter of a preliminary investigation. Ms. Love already had signed the Department's internal uniform complaint form on February 21, 1991. To further obfuscate what the agency(ies) were doing, while the Department was initiating the investigation preparatory to an administrative complaint for late filed reports, Ms. Hickel notified Ms. Nicolitz by letter dated March 1, 1991 that: This will acknowledge receipt of your last quarterly report, received in this office on February 15, 1991. Please be advised we are notifying the office of licensure to remove your license from pro- bationary status, this date. The effect of the foregoing letter was to remove Ms. Nicolitz's license from probationary status as of March 1, 1991. By letter of March 28, 1991, Ms. Love invited a response to her February 26, 1991 letter from Ms. Nicolitz. Ms. Nicolitz, now thoroughly confused and frustrated, responded that she had sent all her reports and Ms. Hickel had acknowledged receipt thereof. On April 30, 1991, Ms. Love sent a similar letter to Ms. Nicolitz stating that no response from Ms. Nicolitz had been received. Ms. Nicolitz's attorney then entered the fray and wrote Ms. Love on May 21, 1991 advising her of the March 1, 1991 Hickel letter removing Ms. Nicolitz from probation. Ms. Love had already prepared an investigative synopsis to the file dated May 8, 1991. It was not altered thereafter by her. It reads: SECTION I - ALLEGED VIOLATION Failure to comply with terms of Final Order previously entered in a disciplinary hearing; violation of a rule. STATUTE/RULE NUMBER Rule 21P-8.020(2)(i), FAC; Section 484.014(1)(g), Fla. Stat. SECTION II - SYNOPSIS This investigation is predicated on the receipt of a complaint on 2/14/91 from the Board of Opticianry, alleging that Subject has failed to comply with the terms of the Final Order issued in DPR case #0072717. Subject was placed on probation and required to submit quarterly reports to the Board, but has not done so; Subject was notified of the complaint by letter to inquire dated 2/26/91 and again on 4/30/91. Response from Subject was received 4/24/91. Subject states that she has now complied with the terms of the Final Order and has submitted all of her quarterly reports. She says that Leah Hickel of the Board of Opticianry will confirm this. (Emphasis supplied). The Probable Cause Panel (Ms. Manty Morse and Ms. Dale Wenal) had at least the following items before them when considering Ms. Nicolitz's case on September 16, 1991: a uniform complaint form, a proposed closing order and a recommendation for a letter of guidance, an administrative complaint, a previously issued final order and attached affidavit of service, a memorandum of finding of probable cause, the four letters from Ms. Nicolitz to the Board purporting to be her quarterly reports, findings made by the Department, the two "extension" letters from Leah Hickel dated October 17, 1990 and February 6, 1991, the investigative synopsis, and the March 1, 1991 Hickel letter removing Ms. Nicolitz from probation. The materials had been received and reviewed by panel members earlier. Ms. Marcel Flannigan of the Department, Renee Alsobrook and Lucy Sneider, attorneys for the Department, and Theresa Bender, Counsel for the Board of Opticianry, were also present for the meeting. The direct evidence at formal hearing by Manty Morse was that she was unaware as of the September 16, 1991 Probable Cause Panel meeting of the Board's prior delegation of authority to Ms. Hickel and that she had not interpreted the Hickel letters as granting an extension for Ms. Nicolitz's third and fourth reports. With the advice of counsel, the panel had viewed each day which the probation reports were late as a separate violation of the prior final order which had never been formally modified. The exchange at the Probable Cause Panel Meeting went as follows: A VOICE: She's saying she filed her reports on April 17th of 1991. MS. ALSOBROOK: After Lea wrote. A VOICE: After. In other words, had she not written to her we'd still be waiting for her. MS. ALSOBROOK: And we also wrote her on September 30th of 1990 and she sent her report for that quarter in on October 23rd. So you may want to file an AC. It's up to you. A VOICE: An AC, air conditioning? MS. ALSOBROOK: An administrative complaint. What would you all like? You have probable cause; you can do either one. It's up to you. A VOICE: Well I would find probable cause, okay, and do file an Administrative Complaint. MS. BENDER: Okay. So you previously had found probable cause and -- A VOICE: Letter of Guidance. MS. BENDER: -- wanted to close it with a letter of guidance. A VOICE: But I would like to change that and have an Administrative Complaint. I don't feel good about this the other way. THE CHAIRPERSON: Okay. MS. ALSOBROOK: What section, 484.014(i), failure to comply with Final Orders? THE CHAIRPERSON: You don't want to send a letter to -- you want a response. A VOICE: I can't imagine that they would have attorneys -- MS. ALSOBROOK: Ready for the next one? (Whereupon, the above matter was concluded) Ms. Morse's formal hearing testimony essentially corroborated the statements made by the panel members at the September 16, 1991, Probable Cause Panel meeting. Her comments reflect the following, in part: Q With regard to the Nicolitz case, do you remember being provided with the entire investigative file? A Yes. Q When you reviewed this file to find probable cause, can you explain briefly why probable cause was found? A Probable cause was found because she didn't file her reports on time. Q Did the panel consider that each day that the reports were beyond the cutoff date for the quarter to be a violation? A Yes, we did. And we were upset that it had taken this long for her compliance and still she had not done it in a timely manner. Q Did you consider her to be, in essence, ignoring the Board? [objection] Q How did you interpret Ms. Nicolitz's actions as far as the late filing? A Well, the way the panel saw them, myself and Mrs. Wenal, was that she really didn't care, you know, and that's why we were both upset. So, she was just disregarding all the orders that were given to her previously and now, even though we had extended for her to file her reports, you know, two years, three years later. Q Do you recall if the prosecutor had recommended that you find probable cause? A Yes. Q Do you recall if the prosecutor had indicated a recommended penalty or action after you found probable cause? A I remember that they wanted a letter of guidance at that time. Q What is a letter of guidance? A It's to explain to her that there was probable cause found and for her to, you know, tell what went wrong and to guide her so she would not do it again, I guess. Q Did the panel decide to issue a letter of guidance? A At first we thought that was the proper thing to do. But then when we got into discussion, that we saw how far the case went and we saw all this inconsistency, you know, and she still filed late, that's when we decided not to go with the recommendation of the attorney. Q And what was the direction of the probable cause panel to the prosecutor? A It was to find probable cause, that we had found, and to file an administrative complaint. (Emphasis supplied) It is accepted that at the time of the Probable Cause Panel meeting, Ms. Morse did not have actual knowledge of the actual authority reposed in Ms. Hickel by the Board's actions of November 3, 1989 and February 9, 1990, but Ms. Morse's lack of actual knowledge of the Board's directive to Ms. Hickel is not controlling as to whether or not the panel's decision to file a new administrative complaint was substantially justified. Board members have a duty to advise themselves concerning the Board directives which have been previously issued to staff. Nor is it indicative of substantial justification whether or not Ms. Nicolitz knew of the content of the prior Board minutes. It is material whether the Probable Cause Panel knew or should have known on September 16, 1991, when it determined there was probable cause Petitioner had committed a violation, rejected the Department's recommendation for closing, and instructed the Department to file an administrative complaint, that the prior Board directive permitting extensions had been issued and what the panel did, knowing that the extensions had been granted. From her presence and vote on February 9, 1990, it may be inferred that on September 16, 1991 Ms. Wenel had actual knowledge of Ms. Hickel's actual authority to grant extensions and ignored it. It also is clear that on September 16, 1991, both Ms. Wenal and Ms. Morse also ignored the apparent authority of Ms. Hickel's October 17, 1990 and February 6, 1991 letters, which were physically before them, and knew of and also ignored Ms. Nicolitz's ultimate compliance with those letters, which were also before them, and that both Panel members did so because the Hickel letters were contrary to the members' subjective perception that Ms. Nicolitz had been ignoring them and their prior final orders. They also ignored the apparent ratification of Ms. Nicolitz's probation compliance contained in the March 1, 1991 Hickel letter. Their deliberations indicate no adequate basis for a probable cause determination since they had Ms. Nicolitz's quarterly reports and Ms. Hickel's extension letters before them and could not have been misled by the Department's report to the effect that Ms. Nicolitz only "states that she has now complied." (Emphasis supplied) The Department report also told them that Ms. Nicolitz requested that they ask Ms. Hickel to confirm all her assertions. Leah Hickel worked for the Board. Had the Panel consulted Leah Hickel, any doubts concerning her authority to grant extensions could have been cleared up. Therefore, the Panel ignored all exculpatory evidence pointed out by the accused. The Panel did not have a basis in law or fact for the administrative complaint actually filed. The Panel also deviated from proper legal and standard procedure by not conducting a clear vote on a finding of probable cause. 1/ Ms. Nicolitz's first report (March 22, 1990) stated that as of December 1989, she had closed Specs and Company Inc.'s optical business and that for the first quarter she had not practiced opticianry. The second report (June 1, 1990) stated she had not practiced opticianry in the second quarter. The third report (October 16, 1990) stated she had done nothing optical at all during the third quarter, other than going to a few optical meetings. The fourth report (February 11, 1991) reported that nothing had changed, Petitioner was not working for anyone as an optician and she had not done so for the last quarter of 1990. Ms. Nicolitz's four reports to the Board under the terms of her probation were that she had "closed Spec's and Company's Optical Business;" was home "out of all business settings;" "had not practiced opticianry," "was not operating a business and had not done anything optical at all," and "was not working optically or for anyone as an optician," throughout the whole of 1990. Despite a great deal of backpedalling on the foregoing representations as contained in pleadings and papers filed immediately prior to formal hearing with the intent to defuse Respondents' motion for summary final order of dismissal, Ms. Nicolitz's oral testimony at formal hearing does not appear to materially alter the representations contained in her four reports for the year 1990. To the extent that she has made any inconsistent statements in any form concerning the year 1990, those statements are found not to be credible. It is therefore found that Ms. Nicolitz was not operating as a "small business party" during the whole of 1990. With regard to her situation in 1991-1992, the only years relevant to the attorney's fees and costs incurred in the underlying case, Ms. Nicolitz testified that she operated Specs and Company, Inc. as an optical shop only until December 1989, when she closed it and moved into her two residential garages the portion of optical equipment which she was unable to sell. She did this, because, as she put it, "a question of conflict of interest arose" with her opthalmologist husband's work at Baptist Eye Institute. Specs and Company, Inc. was not administratively dissolved until October 9, 1992, but it was clearly no more than a de facto corporation at all times material. Ms. Nicolitz appeared in her individual capacity in the underlying case, and Specs and Company, Inc. was not a party. Prior to her licensure, Ms. Nicolitz was apparently only an appentice employee of the corporation. It is unclear if that status of "employee" altered after she was licensed in 1985. From 1982 until Ms. Nicolitz ceased to compete with her husband due to alleged "conflict of interest" in 1989, her corporation had all the indicia of doing business including maintaining a location open to the public during normal business hours; providing opticianry services to customers; having optical equipment, a lease agreement, secretarial staff, office equipment, finishing lab, city occupational license, business stationery, advertising, income, bank accounts; filing returns and paying sales and corporate taxes; and filing W-2 forms for employees. After 1989, any equipment which had not been sold sat in residential garages, and Ms. Nicolitz maintained no occupational license or any other indicia of a business. She specifically did not operate a business for profit out of any location labelled "Specs and Company, Inc." or "Elizabeth Nicolitz, O.D." at any time after December, 1989. Ms. Nicolitz's testimony and her answers to discovery were inconsistent or vacillated with regard to whether or not she considered what she personally did during 1991-1992 to constitute "practicing opticianry." Putting the best light on it, Ms. Nicolitz was clear that she did not think anything she did for family or friends during 1991-1992 constituted practicing opticianry "until I thought about it," immediately before a hearing on the motion for summary final order in this fees case. Her position at formal hearing was that merely maintaining an active individual professional opticianry license was sufficient to constitute "practicing opticianry." She gave as an example of what she was capable of doing as, "[A]t any time if I wanted to practice opticianry that I could. If someone was absent at, let's say Lens Crafters and they needed me to come in, I would bring my license in with me and practice under Lens Crafters with my new license for them." Admittedly, however, she never was actually employed anywhere by any other optician during this period of time. Rather, she listed herself for income tax purposes in both 1991 and 1992 as a "consultant" employee of her husband's business, "Ernest Nicolitz, M.D. P.A." She testified that this term meant "design consultant." Her husband is a medical physician, an opthalmologist. The total of the practice of opticianry now recollected by Ms. Nicolitz for 1991-1992 is that over some unspecified period of time, on sporadic occasions, she pushed lenses back into glasses frames for children whose names she did not know and with whom she had no ongoing relationship when their tumbling activities at a gym she belongs to resulted in the lenses popping out; in March or April of 1991, she replaced stripped screws in a neighbor's damaged glasses frames and heated the frames in hot water to mold them back in shape for the neighbor's face; later, she sold the same neighbor some glasses frames with nonprescription display lenses for the neighbor's mother, apparently without ever seeing the mother, and definitely without reporting the $50 sale as professional or any other type of income, and without paying any sales or other tax thereon. Ms. Nicolitz derived no pay as an optician for any of these activities and had no prescription for the tumblers, the neighbor, or the neighbor's mother. She had her professional license but no occupational license in her own name. Also, at a time no more definite than "in the fall" of 1991, Ms. Nicolitz was involved in fitting hunting glasses for her husband and son, one pair each. At her home, upon written prescriptions from her opthalmologist husband, Ms. Nicolitz fitted frames to her husband's face and her son's face, took the offset of the pupillary distance due to the scope on a gun and then "we figured out the density of the lenses we would be using and we figured out, what, you know, color tones we wanted to use in the lens. And then we ordered the lenses and had them ground at a lab to my specifications." Although she testified that her husband did not know how to offset the optical center for the hunting glasses and could not physically measure himself, her overall description shows Ms. Nicolitz was working under the direction, not of a customer, but of her husband, the opthalmologist, for whom she worked as a "consultant." She charged no separate opticianry fees and had no occupational license in her own name. Clearly, she was intentionally not in competition individually in her own right or as "Specs and Company, Inc." with her husband for "conflict of interest" purposes. Ms. Nicolitz and her C.P.A., Mr. Shelton, whose expert testimony came by way of deposition, estimated her personal net worth as between $400,000 and $450,000 for 1991-1992, but given that Ms. Nicolitz's C.P.A. made his estimates purely for family financial planning purposes 2/ and Ms. Nicolitz eschewed any concrete knowledge of her own financial affairs, their evidence does not establish Petitioner's net worth. The Department's C.P.A. expert witness estimated the combined worth of Ms. Nicolitz and her husband as $2,190,000, based upon tax returns and Mr. Shelton's deposition. No evidence categorized Petitioner's personal net worth as derived in any significant part as related to her practice of opticianry, or established the net worth of Specs and Company, Inc. or broke out with reasonable clarity Ms. Nicolitz's "personal net worth from personal and business investments." The testimony of the three attorneys who testified as to fees and costs has been thoughtfully considered and weighed. It is found that Petitioner was obligated to her attorney for fees and costs for 15.30 hours and no allowable costs as of the date of voluntary dismissal of the underlying case, for 40.30 hours and $279.70 in allowable costs as of the date the initial petition for fees and costs was filed February 26, 1993, for 40.30 hours and $279.70 in allowable costs as of the date of filing of the amended fees and costs petition herein; and for 126.30 attorney hours and $368.05 costs as of the commencement of formal hearing on fees and costs herein. The rate of $200.00 dollars per hour charged by Petitioner's counsel is a reasonable hourly rate, given the unique circumstances of this case. At that rate, Petitioner's counsel established sufficient hours to reach the $15,000 statutory cap prior to the commencement of formal hearing on the attorney's fees and costs issues. 3/
The Issue Whether Dunlop violated Rules 21P-1.012 and 21P-6.07, Florida Administrative Code, by permitting an unlicensed person to use his license for the purpose of dispensing optics.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida State Board of Dispensing Opticians take no action against the license of Francis (Frank) Dunlop. DONE and ORDERED this 9th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel Wiser, Esquire Post Office Box 1752 Tallahassee, Florida 32304 Thomas F. Lang, Esquire Suite 302 801 North Magnolia Avenue Orlando, Florida 32803 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF DISPENSING OPTICIANS In the Matter of the Suspension or revocation of the License to Practice the Trade or Occupation of Dispensing Optician in this State of FRANCIS NELSON DUNLAP DOAH CASE NO. 77-2291 As a duly licensed dispensing optician authorized to supervise the preparing, fitting and adjusting of optical devices at Vent-Air Contact Lens Service, Florida National Bank Building, Jacksonville, Florida /
The Issue The issue for determination in this case is whether Respondent's license to practice medicine in the State of Florida should be disciplined for disseminating, or causing the dissemination of an advertisement that was false, deceptive or misleading in violation of Rule 59R-11.001, Florida Administrative Code, and Section 458.331(1)(x), Florida Statutes.
Findings Of Fact Petitioner, AGENCY FOR HEALTH CARE ADMINISTRATION (AHCA), is the agency of the State of Florida vested with the statutory authority under Chapter 458, Florida Statutes, to regulate the practice of medicine. Respondent, JONATHAN M. FRANTZ, M.D., is and at all material times has been, a licensed physician in the State of Florida, having been issued license number ME 0054884. Respondent graduated from the University of Miami School of Medicine in 1983, and thereafter entered a residency program in Opthamology at the Louisiana State University Eye Center in New Orleans, Louisiana, where from 1987 to 1989 Respondent was a Fellow in Cornea, External Disease, and Refractive Surgery. During his Fellowship at the Louisiana State University Eye Center, Respondent participated in the initial research projects involving the Excimer Laser Procedure, which at that time was exclusively an investigational device. The term "investigational device" is a technical term used by the Food and Drug Administration (FDA) and medical researchers. The term means that a device has yet to be approved for treatment of human patients by the FDA and that its use is limited by the FDA to research investigations. The Excimer Laser is a device that projects a wavelength of light over the surface of the cornea to treat nearsightedness and astigmatism. The wavelength of light removes irregularities on the surface of the cornea or anterior corneal tissue in order to change the refraction of the eye and improve the patient's eyesight. At all material times, the Excimer Laser was an investigational device. Radial Keratotomy is, and at all material times was an FDA approved procedure for the treatment of nearsightedness and astigmatism. The Excimer Laser procedure differs from Radial Keratotomy in that Radial Keratotomy is a procedure in which incisions are made to the corneal tissue itself. The incisions allow for the flattening of the center of the cornea, and thus, unlike the Excimer Laser, actually change the structure of the cornea. During his Fellowship, Respondent participated in primate and human research involving the Excimer Laser, and assisted in the development of protocols for use in the first treatment of human patients with the device. Respondent received a research award from the National Eye Institute for his investigative work with the Excimer Laser. Respondent has published several articles in medical literature relating to the Excimer Laser. Respondent is certified by the American Board of Opthamology, and is a member of the American Academy of Opthamology. After completion of his Fellowship, Respondent entered private practice in Ft. Myers, Florida. While in private practice, Respondent continued his research work with the Excimer Laser. In 1990, Respondent was selected as one of a small group of physicians to conduct Excimer Laser investigational treatments on patients. As a principal investigator, Respondent treated patients with all degrees of nearsightedness and astigmatism. In May of 1993 Respondent was employed by Eye Centers of Florida located in Ft. Myers, Florida. Respondent performed Excimer Laser investigational procedures while so employed. At this time, the Excimer Laser procedure was also being performed by Dr. James J. Rowsey, Jr., Chairman of the Department of Opthamology at the University of South Florida in Tampa, Florida. The Excimer Laser procedure performed at the University of South Florida offered a different protocol than that offered by Respondent at the Eye Centers of Florida. Respondent was the only Opthamologist in Florida offering Excimer Laser procedures for patients with all degrees of nearsightedness and astigmatism, as well as offering Radial Keratotomy. In addition to his expertise in Opthamology, Dr. Rowsey has extensive expertise in the area of ethical medical advertising. On May 23, 1993, the following advertisement was published in the Charlotte Sun Herald, a Florida newspaper: Jonathan M. Frantz, M.D., corneal specialist with the Eye Centers of Florida, invites you to join him for an exciting lecture on the newest breakthroughs in eye surgery - the Excimer laser and Radial Keratotomy (RK). Eye Care Centers of Florida is the only eye care center in Florida that offers both options. Come to our free seminar and find out how you can reduce your need for glasses or contact lenses. EXCIMER LASER RADIAL KERATOTOMY THE CORRECTION OF NEARSIGHTEDNESS AND ASTIGMATISM FREE ADMISSION AND SCREENING FOR EXCIMER LASER AVAILABLE PLEASE BRING GLASSES AND/OR CURRENT EYE GLASS PRESCRIPTION WEDNESDAY, MAY 26 7:00 PM FIRST FEDERAL BANK BUILDING 3524 D TAMIAMI TRAIL (SECOND FLOOR) PORT CHARLOTTE RESERVATIONS 1-800-226-3377 OR 1-813-939-3456 EYE CENTERS OF FLORIDA Helping You See Your Best 4101 Evans Avenue Fort Myers, Florida (Caution: The Excimer Laser is an Investigational Device. Limited by Federal Law to Investigational Use.) The advertisement also contained Respondent's picture, and the logo for the Eye Centers of Florida. The advertisement was composed by a marketing agency retained by the Eye Centers of Florida. Respondent was generally aware of the contents of the advertisement, but did not give specific approval for the placement of the advertisement. Respondent was aware that the advertisement of the Excimer Laser required cautionary language stating that the procedure was an investigational device limited by the FDA. The advertisement clearly states that the Excimer Laser is an investigational device limited by the FDA. The advertisement is a public invitation to attend a lecture given by Respondent concerning the Excimer Laser and Radial Keratotomy. At the lecture, Respondent explained that the Excimer Laser was an investigational device. Thereafter a person seeking Excimer Laser treatment was given a consent form that explained in detail the investigatory nature of the procedure. As a principal investigator Respondent was limited in the number of patients he could treat with the Excimer Laser. Respondent received an economic benefit from the treatment of patients with the Excimer Laser. As a result of the investigational efforts of Respondent and other medical researchers, the Excimer Laser was proved to have beneficial results in the treatment of nearsightedness and astigmatism. Subsequent to the publication of the advertisement, the Excimer Laser received FDA approval. The advertisement was reviewed by Norman S. Levy, M.D., Ph.D., an Opthamologist, and Director of the Florida Opthamologic Institute in Gainesville, Florida. As an expert in Opthamology, Dr. Levy opined that the advertisement published in this case was deceptive in that the advertisement implied that the Excimer Laser and Radial Keratotomy procedures were equally available, and the experimental nature of the Excimer Laser procedure was not clear from the advertisement. The advertisement was also reviewed by Dr. Rowsey, who opined that the advertisement was not misleading or deceptive, that the advertisement clearly contained cautionary language stating that the Excimer Laser was at that time an investigational device, and that the advertisement was merely a public invitation to a lecture to obtain more information regarding these procedures. In this respect, Dr. Rowsey has specific and extensive experience with the Excimer Laser, as well as in medical ethics, and his opinion on this issue is deemed more credible. There is no evidence that a patient of the Respondent's was deceived or mislead by the advertisement.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Petitioner, the AGENCY FOR HEALTH CARE ADMINISTRATION, enter a final order dismissing the Administrative Complaint filed against Respondent JONATHAN M. FRANTZ, M.D., in the above-styled case. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of January, 1996. RICHARD HIXSON, 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 24th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3773 Petitioner's Proposed Findings of Fact. 1.-6 Accepted and incorporated. Rejected to the extent that Respondent personally approved the advertisement. Rejected to the extent that a lay person could be misled. Rejected as not supported by the weight of evidence. Respondent's Proposed Findings of Fact. 1.&2. Accepted and incorporated. 3. Rejected as irrelevant. 4.-.7. Accepted and incorporated. 8.&9. Rejected as not necessary. 10.-12. Accepted and incorporated. 13. Rejected as not necessary. 14.-16. Accepted and incorporated. 17. Rejected as not necessary. 18.-26. Accepted and incorporated. COPIES FURNISHED: Joseph S. Garwood, Esquire AHCA - Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Lauro, Esquire Barnett Plaza, Suite 3950 101 East Kennedy Boulevard Tampa, Florida 33602
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 Department acted arbitrarily and capriciously in giving notice of its intended award of a contract for the purchase of optical character reading equipment to Scan Optics?
Findings Of Fact The Department is the state agency charged with the administration of Florida's unemployment compensation insurance program. The Department's Bureau of Claims and Benefits (hereinafter referred to as the "Bureau") is responsible for receiving claims for unemployment insurance benefits and for the disbursement of unemployment insurance payments. In processing and paying claims for unemployment insurance benefits, the Bureau must work with the Comptroller, who issues the payment checks. The Comptroller's office has been issuing checks on IBM punch cards. The Bureau has also been using IBM punch cards in processing unemployment insurance claims so that the punch cards could be collated with the IBM punch card checks issued by the Comptroller. In early 1984, the Bureau was informed that IBM card stock would no longer be printed. In early 1985, the Bureau was informed by the Comptroller's office that the Comptroller was going to begin to use paper warrants for the payment of benefits instead of IBM cards. As a result of this change, the Department is no longer able to use checks issued by the Comptroller to collate with its IBM punch cards. Because of the switch to paper warrants by the Comptroller, the Department began in 1985 to look at other technologies capable of efficiently working with paper warrants. The Bureau formed a committee to explore alternatives. That committee researched alternatives and visited other states to determine how other states were processing claims. The Department decided to purchase an optical character reader (hereinafter referred to as an OCR), for use in processing unemployment compensation claims. An OCR is a device which reads printed or handwritten characters. It scans a document, reads characters by comparing them to a mask or template and reads and records the data. The Department plans to use the OCR to read and record data from certifications for unemployment compensation insurance benefits. The data recorded will be transferred to the Department's mainframe IBM computer for use in processing by an automated benefits system. The Petitioner and Scan Optics are manufacturers of OCR equipment. Scan Optics has been manufacturing OCR equipment for 20 years. The Department requested a list of vendors from the Division of Purchasing and received a list of 167 potential vendors. On July 14, 1986, the Department issued a Request for Proposals (hereinafter referred to as the "RFP"), seeking competitive bids for the purchase by the Department of an OCR. All 167 potential vendors were notified of the RFP by the Department. Approximately 25 of the potential vendors requested a copy of the RFP. Only the Petitioner and Scan Optics submitted proposals in response to the RFP. A 6 member committee appointed by the Department prepared the RFP. Three members of the committee were employees of the Bureau and three members were employees of the Department's Bureau of Computer Data Systems. A request for proposal is a solicitation by an agency of offers from potential vendors to provide a needed commodity or service. It is different from a bid where the agency simply identifies the product it wishes to purchase and chooses the vendor offering the product at the lowest cost. The RFP set forth the Department's functional requirements and asked vendors to respond in any manner which they believed would meet those requirements. In the RFP, the Department stated the requirements which vendors were required to meet, evaluation criteria and the weight to be given to those criteria. It was also provided that responses would be verified by documentation and demonstration in a benchmark test. In the RFP, vendors were informed that if they disputed the reasonableness, necessity, or competitiveness of the RFP they must file a protest in accordance with Section 120.53(5), Florida Statutes. Paragraph 8 of the General Conditions. Vendors were also informed that any questions concerning the conditions and specifications of the RFP had to be submitted in writing to the Department no later than 10 days prior to the proposal opening and that "[n]o interpretation shall be considered binding unless provided in writing by the State of Florida in response to request in full compliance with this provision." Paragraph 5 of the General Conditions. Section 1.07 of the RFP instructed vendors to examine the RFP to determine if the requirements were clearly stated. Section 1.10 of the RFP provided that only written and signed vendor communications would be considered and that only written communications from the purchasing off ice would be considered authoritative. The Petitioner did not file a protest of the terms of the RFP pursuant to Section 120.53(5), Florida Statutes. Section 1.03 of the RFP provided for a vendors conference at which the contents of the RFP and any written inquiries from the vendors could be discussed. The Petitioner and Scan Optics submitted written questions to the Department. The vendors' conference was scheduled and conducted on July 30, 1986. Representatives of the Petitioner and Scan Optics attended the vendors' conference. The questions submitted by the Petitioner and Scan Optics were discussed. At the commencement of the vendors' conference, the Department's representative cautioned all present that statements made during the conference would not modify the RFP. This representation was heard and understood by the Petitioner's representative at the vendors' conference. Subsequent to the vendors' conference, the Department issued amendments to the RFP. The cover letter dated August 7, 1986, conveying the amendments to the Petitioner stated that any questions about the amendments had to be received in writing in the Office of Purchasing no later than 5:00 p.m., August 12, 1986. Draft samples of claims' certification forms and paper stock described in Section 3.01.18 of the RFP were also sent to the Petitioner and Scan Optics. The Petitioner did not submit any additional questions about the RFP or the amendments before 5:00 p.m., August 12, 1986. The Department proposed to accept Scan Optics' proposal and purchase the OCR from Scan Optics. The Petitioner brought this administrative action challenging the Department's proposed action. Chapter I of the RFP contains administrative and general information. Chapter II of the RFP contains a description of the Department's current system, a list of proposed OCR applications and the objective of the Department. Chapter III of the RFP sets out the technical requirements. Mandatory requirements and desirable requirements are provided. The terms "mandatory requirement" are defined in Section 1.17.ao of the RFP as follows: "Mandatory Requirement" shall be defined as a requirement the vendor must meet for the proposal to be considered responsive, failure to meet a mandatory requirement will cause the proposal to be rejected. The terms desirable requirement" are defined in Section 1.17.ak of the RFP as follows: "Desirable Requirement" shall be defined as a function, feature, or service the State considers necessary for optimal application flexibility, ease of system operation, or system reliability. Failure to meet a desirable requirement will result in a lower technical evaluation. The technical requirements set out the specifications which the Department had determined must (mandatory) or should (desirable) be met in order for an OCR to fulfill the Department's objectives. Chapter IV of the RFP provides the evaluation process the Department was to follow in determining which proposal to accept. The evaluation process was to include the awarding of points for compliance with the technical requirements. The RFP also included provisions designed to ensure that the representations of a vendor in a proposal would be fulfilled, including a benchmark test to verify certain representations of a vendor and acceptance testing after the equipment was purchased and installed. The general objective of the Department was provided in Section 2.04 of the RFP: The State wishes to procure an Optical Character Reading System with related soft- ware capable of meeting the requirements for the reading of UI benefit certifications and other UI applications that are feasible. The Optical Character Reading System will consist of a [sic] Optical Character Reader (OCR) and Correction System. The complete System will be bought from a single vendor. Section 1.17.ap of the RFP defines "objective" as: A statement describing generally the system to be procured. Any proposed system not meeting the objective will be rejected. Although Section 2.03.3 of the RFP provides that processing of quarterly wage reports is a major application, the RFP does not require that the proposed OCR equipment must be capable of this application. The only requirement is that the objective" be met. The reference to "other UI applications that are feasible" in the objective was intended to refer to future applications of the OCR which the Department only wanted to be aware of. There was no requirement that proposed OCR's be capable of other applications. The RFP made it clear that proposals would be based on the technical requirements of Chapter III of the RFP and would be evaluated pursuant to Chapter IV of the RFP. When these chapters and the "objective" are considered it is clear that the Department was proposing to purchase an OCR to perform the task of reading unemployment insurance claims forms and not wage reports. The responses to the RFP submitted by the Petitioner and Scan Optics were evaluated by the committee established by the Department to prepare the RFP. The committee determined whether the vendors met the mandatory requirements of the RFP and allocated points for mandatory and desirable requirements based upon the vendors' responses. The committee's evaluation consisted of 3 stages as required by the RFP. First, the committee evaluated and scored the vendors' technical responses. Each vendor was awarded points for their responses to the mandatory and desirable requirements as provided in the RFP. The committee fairly and reasonably applied the scoring system. Secondly, the committee evaluated and scored the vendors' cost responses as provided in the RFP. Finally, each vendor's scores were added. The vendor with the highest score was then given an opportunity to subject its proposed system to a benchmark test. The RFP provided that only the vendor with the highest points from the first 2 stages of the evaluation would be subjected to the benchmark test. The benchmark test was used by the Department to verify some of the statements in the highest scoring vendor's response, including some responses which the committee had some questions about during the evaluation. Based upon the committee's evaluation, Scan Optics was selected as the highest scoring vendor and its proposed system was subjected to the benchmark test. The benchmark test is provided for in Chapter X of the RFP. If Scan Optics' system had failed the benchmark test with regard to a mandatory requirement, its proposal would have been rejected. If it had failed to fulfill a desirable requirement, its response would have been rescored. The benchmark test was designed to give some assurances that a vendor's claims were correct. The test gave the committee confidence that the vendor was providing accurate information. Scan Optics' system successfully completed the benchmark test. During the first two stages of the evaluation, the committee looked at each vendor's total response, read all of the documentation submitted by the vendors and did all the research it could without actually having the system itself to evaluate. Not every response of the vendor was verified with absolute certainty. It was necessary for the Department to exercise judgment and discretion in determining whether responses were responsive to the RFP. Each response was evaluated as a whole and relevant information contained in one response was considered in evaluating other responses. Both vendors' responses were reviewed carefully. Both vendors provided responses which were not as thorough as the committee desired. The committee exercised its discretion in those instances and reviewed all documentation and the complete response to determine if sufficient information had been provided to conclude that a response was acceptable. Clarification or explanation of some responses was requested by the committee from both vendors. The manner in which mandatory responses were to be evaluated is provided in Section 1.06 of the RFP: The State has established certain requirements with respect to Request for Proposals to be submitted by vendors. The use of "shall", must" or "will" (except to indicate simple futurity) in this Request indicates a require- ment or condition from which a material deviation may not be waived by the State. A deviation is material if the deficient response is not in substantial accord with this Request for Proposal requirements [sic] provides an advantage to one vendor over other vendors, has a potentially significant effect on the quantity or quality or items proposed, or on the cost to the State. Material deviations cannot be waived. Determining whether a deviation was material required the Department to use discretion. The RFP does not require rejection of a proposal if a desirable requirement was not met. Section 1.06 of the RFP provides the following with regard to desirable requirements: The words "should" or "may" in this Request for Proposal indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a proposal. In determining whether a mandatory requirement was met, the committee determined if a vendor's response indicated that the requirement could be met. If there was any question about the vendor's response, the committee then evaluated the response to determine if the response was sufficient to justify rejecting the entire proposal. This is a reasonable approach. The Department, through its committee, exercised its discretion fairly and equitably in reviewing each vendor's response. Scan Optics proposed a 442 system in response to the RFP. A 4542 system consists of two primary hardware component: a 4500 editing system and a 542 optical scanner. Section 3.01.1 of the RFP provides the following mandatory requirement The Vendor must supply documentation indicating the proposed System's capabilities to meet each mandatory and desirable item listed in this RFP. The documentation must refer to the section and item number it applies to in this RFP. There is no requirement in the RFP that the documentation provided by a vendor be listed. Scan Optics provided a great deal of documentation with its response. The Department reasonably concluded that the documentation provided met the requirement of Section 3.01.1 of the RFP. A list of most of Scan Optics' documentation was provided with its response. In addition to the documentation listed, Scan Optics provided a Model 542 Product Guide and a Model 533/542 Operator's Manual. Scan Optics' Models 530 and 540 optical scanners are very similar to their Model 542. The designation 540 refers to a family of optical scanners which includes the Model 542. Most of the information concerning the operation and capacity of the 540 also applies to the 542. Differences are due to greater capacity and speed of the 542 and internal differences. All of the documentation supplied by Scan Optics was considered by the committee in its evaluation and was determined to satisfy the requirement of Section 3.01.1 of the RFP. The committee talked with representatives of Scan Optics to determine whether documents pertaining to Model 530/540 supplied to the Department were relevant. The Department was informed that the Model 542 was a member of the same family of models and the information provided in the Model 530/540 documents was also applicable to the Model 542. Manufacturers of computer equipment have constantly evolving families of models with a number of similarities. The use of manuals and guides which apply to a family line is a common practice. The committee reasonably accepted the Model 530/540 documents as documentation supporting the Model 542 proposed. Section 3.01.10.f of the RFP initially required that vendors show how the Initial System could be upgraded to meet a number of requirements, including the " [a]bility to read 700 different fonts including handprint in a multifont mode." The Petitioner submitted a written question which was discussed at the vendors' conference concerning the use of the term "fonts." There are not 700 fonts in the English language. An OCR is capable of scanning written documents and reading and recording the data contained thereon. Each particular design or style of a1phabetic (A to Z, in upper and lower case) and numeric (0 to 9) characters typed or written is called a font. Each style, or font, is unique and different from other styles. Characters are recognized and read by an OCR by templates or masks. Templates or masks determine an OCR's ability to read a particular character of different fonts. To read all the characters of one font, 36 masks or templates are needed. A single mask or template can read the same character, such as the letter "A" in more than one font. The question raised by the Petitioner was discussed at the vendors' conference and resulted in a written amendment to the mandatory requirement of Section 3.01.10.f. Section 3. 01.l0.f of the RFP, as amended, required that the Initial System be upgradeable to include the " [a]bility to read 700 different fonts/masks/templates, plus alpha numeric hand print." The Department and the vendors realized that Section 3. 01.10.f of the RFP, as amended, required that the ability to read 700 templates or masks, and not 700 fonts, was what was required. The Petitioner did not submit any questions concerning the amendment to Section 3.01.10.f of the RFP. The Petitioner's representative at the vendors' conference indicated that he understood the amendment and that the amendment eliminated the confusion created by the original requirement concerning "700 fonts." No statements were made by representatives of the Department during the vendors' conference concerning the requirement of Section 3.O1.10.f of the RFP, as amended. A statement concerning proposing a "maximum capability machine" was directed only to the Petitioner. The Department was aware that the Petitioner's maximum capability machine with regard to templates or masks was a machine with 720 templates. Therefore, the Petitioner was told that if it bid its maximum capability machine it would meet the requirement of Section 3.01.10.f of the RFP, as amended. This discussion was directed only at the Petitioner and was in response to the Petitioner's question, submitted in writing, about the requirement of Section 3.01.10.f of the RFP before it was amended. Section 3.01.10 of the RFP contains 7 subparagraphs labeled "a" through "g". Scan Optics' response to Section 3.01.10 of the RFP contained only 5 subparagraphs labeled "a" through "e". The responses of Scan Optics did not correspond to the subparagraphs of Section 3.01.10 of the RFP. There was no requirement that they do so. One of the subparagraphs for which there was no labeled response from Scan Optics, Section 3.01.10.f of the RFP, pertains to upgrading the Initial System to read 700 templates. Scan Optics proposed a system which already contained 768 templates. There was therefore no requirement to explain how the system could be upgraded. The other subparagraph for which there was no labeled response from Scan Optics, Section 3.01.10.g of the RFP, pertains to upgrading the Initial System to include "necessary system CPU's and controllers." Scan Optics' response to Section 3.01.10 of the RFP, when considered with other responses and the documentation provided, indicated that the Initial System would meet this provision. The Department reasonably determined that the response of Scan Optics to Section 3.01.10 of the RFP adequately explained how its system could be upgraded. Section 3.01.13 of the RFP contains the following mandatory requirement: The OCR must capture and store data on a 9-Track, 1600 and/or 6250 BPI EBCDIC Tape compatible with the equipment in use at the Caldwell Data Center at the State's Central Office in Tallahassee. Each tape drive in the proposed system must be usable for both output and input operations. The requirement of Section 3.01.13 of the RFP was amended to add the following sentence: The drives in use in the Data Caldwell Center [sic] are IBM 3420 Dual Density (1600 6250 BPI) with odd parity. In its response Scan Optics quoted the requirement without the amendment and then provided the following answer: The Scan-Optics Tape Drive provided is an operator selectable 1600 or 6250 BPI EBCDIC drive compatible with IBM equipment including the equipment in use at the Caldwell Data Center, and is capable of output or input. Although Scan Optics did not quote the requirement with the amendment, the amendment was included elsewhere in its response and Scan Optics' representatives were aware of the amendment. Even though Scan Optics did not correctly quote the requirement as amended, its response indicates that Scan Optics' proposal meets the amended requirement. Scan Optics indicated that its system is compatible with the Caldwell Data Center's equipment and identified the drives which it uses. The failure to quote the amended requirement was merely an oversight on the part of Scan Optics. There is no requirement that the requirements of the RFP be properly quoted or quoted at all in a response. Section 3.01.15 of the RFP, as amended, provides the following mandatory requirement: The OCR Microfilm camera must provide an image reduction ratio within the range of 40:1 to 50:1, image reduction in duplex mode and provide at least two (2) blip sizes based on Kodak IMT specifications which can be selected under program control. The system must be capable of filming any blip sizes based on predefined conditions on a document by document basis. In its response Scan Optics identified the range of its image reduction ratios and indicated that it would provide the blip sizes required. Although Scan Optics' response can be interpreted to indicate something which Scan Optics will be able to do in the future, the Department reasonably accepted Scan Optics' response. The committee knew that technology for meeting the microfilm requirement existed and was in use in the industry. Based upon documentation provided by Scan Optics, the committee also knew that the reduction ratios could be provided by Scan Optics because its camera was under program control and was therefore adjustable. Because the camera was under program control, the committee knew that it could be adjusted to provide two blip sizes. The committee also knew that if Scan Optics was selected as the high scorer as a result of the first two phases of the evaluation its camera would be subjected to the benchmark test. In fact, Scan Optics' camera was subjected to the benchmark test and demonstrated that the requirements of Section 3.01.15 of the RFP could be met. Scan Optics properly responded Section 3.01.15 of the RFP and the Department reasonably accepted its response. Section 3.01.18 of the RFP provides the following mandatory requirement: The OCR must be capable of processing documents with a paper weight range from 20 lbs. to 110 lbs. A paper thickness of .0075 inch capability is required. Scan Optics' response to Section 3.01.18 of the RFP was as follows: Standard Scan-Optics specification of paper weight is from 20 lbs. to 100 lbs. However, Scan-Optics personnel will modify the transport vacuum pumps and perform the necessary pre- ventative maintenance routines to accomplish the additional 10 percent requirement at the higher paper range, as we have done in numerous other installations. Scan Optics' total response indicates that it can meet the requirement of Section 3.01.18 of the RFP. The Department reasonably accepted the response. The Department-knew that similar equipment was frequently modified to fit specific jobs, that Scan Optics had indicated that it had modified its equipment in "numerous other installations" and that Scan Optics had indicated that it would modify its transport system. The Department also knew that the ability to process 110 lb. paper would be benchmark tested. The vendors were provided with sample forms which were .0075 inch thick and 110 lb. weight. This was the actual paper used by the Comptroller. Scan Optics' ability to meet the requirement of Section 3.01.18 of the RFP was tested and demonstrated in the benchmark test. Section 3.01.43 of the RFP provides the following mandatory requirement: "The Vendor must propose to provide four (4) manuals for application and program development." Section 3.01.44 of the RFP provides the following mandatory requirement: "The Vendor must propose to provide three (3) sets of manuals for support of system operations. Scan Optics indicated that it would provide the manuals at the time the contract was awarded. There was no requirement that a vendor provide the manuals at the time a response was filed. Section 3.01.43 and Section 3.01.44 of the RFP only sought assurances that the manuals would be provided. Scan Optics' response to Section 3.01.43 and Section 3.01.44 of the RFP and the Department's acceptance of the response was reasonable. Prior to amendment, Section 3.03.2 of the RFP provided the following desirable requirement: The Vendor should be able to upgrade the OCR font recognition as the Vendor makes improve- ments in font recognition to improve OCR read rates. This upgrade should be installable by the State. Section 3.03.2 of the RF was renumbered as Section 3.02.2 and the last sentence was amended to provide: "This upgrade should be installable by the State or, if installed by the Vendor, at no additional cost to the State." Scan Optics' response quoted the requirement before the amendment. The response, however, indicated that the requirement, as amended, could be met and the amendment was included in another portion of the Scan Optics' response. The Department reasonably accepted the response of Scan Optics to Section 3.02.2 of the RFP. Section 3.02.3 of the RFP (originally numbered 3.03.3) includes a desirable requirement that vendors specify the projected number of desk weekly unemployment insurance claim certification documents a vendor's proposed system could process in one hour with no more than three operators -- one to operate the OCR and two to correct unrecognized characters. Section 3.02.3 of the RFP provides that the document to be processed and the rules for processing are described in Chapter x, Section 10.2 of the RFP. The vendor with the highest score was to be benchmark-tested pursuant to these rules to determine if the vendor's response was accurate. Chapter x, Section 10.2 of the RFP describes the data that would be included in the claim form, how the form would be completed, the weight of the paper and the styles or fonts which would be used. Section 3.02.3 of the RFP only requires that the number of documents processed be provided. Scan Optics' response to Section 3.02.3 of the RFP provided that "Scan-Optics throughput based upon your requirements above will be: 3,500 desk weekly UI claim certification forms in one hours [sic]." Scan Optics' response went on to repeat the criteria set out in the RFP and provided: "Therefore, because of the above variables, Scan-Optics throughput has been calculated using the following assumptions:" The response goes on to provide certain assumptions made by Scan Optics in calculating the number of documents it projected could be processed. The assumptions set out in Scan Optics' response do not expressly limit or condition its estimate of 3,500 documents per hour. The response was given with knowledge that the estimate would have to be proved to be accurate in the benchmark test. Scan Optics' response was based upon the use of a standard formula and was reduced from 4,800 to 3,500 in order to give a projection which could be met and accounted for loss of productivity due to jams, operator absence and other problems. The projection was tested by Scan Optics before the proposal was submitted to the Department. The Department accepted the projection of Scan Optics and awarded Scan Optics the maximum points available for the desirable requirement of Section 3.02.3 of the RFP, 280 points. The Department did not take into account the assumptions expressed by Scan Optics in its response. The evidence did not prove if the assumptions expressed by Scan Optics are inconsistent with the rules for processing which would be followed in the benchmark test. Scan Optics successfully demonstrated its ability to process 3,500 forms per hour in the benchmark test. The benchmark test did not incorporate the assumptions made by Scan Optics. The forms used in the test were completed by individuals who received less instructions than claimants and State employees who will actually complete the forms. Even the instructions given were not completely followed. The benchmark test provided an accurate test of Scan Optics' ability to process claims. The Department reasonably accepted Scan Optics response to Section 3.02.3 of the RFP. Section 1.14 of the RFP required vendors to provide five references where "similar or exact proposed equipment and Licensed Software is installed and operational." Section 4.05 of the RFP provided for the manner in which references were to be evaluated. Up to 10 points per reference could be awarded, up to a maximum of 50 points. Section 4.05.6 of the RFP defined "similar equipment and software" to mean equipment consisting of "an OCR with microfilm option that reads either numeric handprint or multifont." [Emphasis added]. The Petitioner and Scan Optics provided more than five references. All references were contacted. Five of the references provided by both vendors had similar equipment and software as defined by Section 4.05.6 of the RFP. Scan Optics' five satisfactory references were Newport News Ship Building, IRS Atlanta, Barnett Bank of Florida, State of Ohio Department of Taxation and State of Tennessee Department of Revenue. The Department reasonably concluded that the references provided by Scan Optics satisfied the requirement of Section 1.14 of the RFP. The Department did not evaluate Scan Optics' response in an arbitrary and capricious manner.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Formal Written Protest and Petition for Formal Administrative Proceeding filed by the Petitioner, Recognition Equipment, Inc., be dismissed. DONE AND ORDERED this 26th day of February, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4570 BID The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accepted. Those proposed findings of fact which have been rejected and the reasons for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." THE PETITIONER'S PROPOSED FINDINGS OF FACT: Proposed Finding RO Number of Acceptance or of Fact Number Reason for Rejection 1 RO 13. 2 RO 9 and 75-76. 3 Not supported by the weight of the evidence. 4 RO 25, 27 and 29. 5 Although this statement was made, see RO 81. 6 RO 34-35 and 60. 7 RO 45. 8 RO 34, 36 and 47. 9 RO 48. 10 Irrelevant. 11 RO 124 and 126. Although the first sentence is true, it is irrelevant. The second sentence is not supported by the weight of the evidence. The first sentence is accepted in RO 83. The rest of the proposed finding of fact is irrelevant. Not supported by the weight of the evidence. Not supported by the weight of the evidence. The first sentence is argument. The second sentence is irrelevant. If the Petitioner relied on oral state- ments such reliance was not reasonable. Not supported by the weight of the evidence. Not supported by the weight of the evidence. Although Mr. Stallworth did make the quoted statement, it does not expand the requirements specifically included in the RFP. Not supported by the weight of the evidence. The first two sentences are accepted in RO 49. The third and fourth sentences are not supported by the weight of the evidence. 21 RO 57. 22 Not supported by the weight of the evidence. THE DEPARTMENT'S PROPOSED FINDINGS OF FACT: 1 RO 1, 3 and 5. 2 RO 5-6 and 8. 3 RO 13 and 38. 4 RO 12 and 14-16. 5 RO 22-23. 6 RO 25. 7 RO 26-27. 8 RO 29. 9 RO 29-30. 10 RO 73-74. 11 RO 77-78. 12 RO 80. 13-15 RO 81. 16 RO 40-44. 17 RO 44. 18 RO 67-68. 19 RO 70. 20 RO 82-84. 21 RO 84. 22 RO 87-88 and 90. 23 RO 91. 24 RO 93-97. 25 RO 96. 26 RO 99-100. 27 RO 100 and 102. 28 RO 112-113. 29 RO 115-116. 30 RO 122. 31 RO 57. 32 RO 47-49. 33 RO 53. 34 RO 54-55. 35 Irrelevant. 36 RO 54. 37 RO 124 and 127. 38 RO 125. 39 RO 126. 40 RO 127. 41 RO 128. SCAN OPTICS' PROPOSED FINDINGS OF FACT: 1 RO 1. RO 8. RO 9. 4 RO 75-76. 5 RO 76. 6 Irrelevant. 7 RO 10. 8 RO 11 and 26. 9 RO 11. 10 RO 1-2. 11 Irrelevant. 12 RO 3. 13 Hereby accepted. 14 RO 4. 15 RO 5. 16 RO 6. 17 RO 7. 18 RO 8. 19 RO 13. 20 RO 17. 21 RO 18 and 57. 22 RO 19. 23 RO 20. 24 RO 14-16. 25 RO 21. 26 RO 26. 27 RO 27. 28-29 RO 28. 30 Hereby accepted. 31 RO 29. 32 RO 30. 33 RO 32. 34 RO 33. 35 RO 34 and 37. 36 RO 37. 37 RO 38. 38 RO 39. 39 RO 39. The second and third sentences are irrelevant. 40 RO 40. 41 RO 43. 42 RO 44. 43 RO 42 and 44. 44 The first sentence is not supported by the weight of the evidence. The second sentence is hereby accepted. 45 RO 45. 46 RO 56. 47 RO 57. 48 RO 58. 49 RO 59. 50 RO 60. 51 RO 61. 52 RO 62. 53 RO 52. 54 RO 53. 55 RO 54. 56 RO 63. Irrelevant. Hereby accepted. 59 RO 64. 60-64 Irrelevant. 65 RO 38, 47 and 49. 66 RO 47-49. 67 RO 49-51 and 55. 68 RO 65. 69 Hereby accepted. 70 RO 78. 71 RO 66-68 and 70. 72 Hereby accepted. 73 RO 69. 74 RO 70. 75 RO 71. 76 RO 72. 77 RO 78. 78 The first and last sentences are accepted in RO 78-79. The second sentence is not supported by the weight of the evidence. 79 RO 75. 80 RO 82-84. 81 RO 84. 82 RO 85. 83 RO 92. 84 RO 93. 85 RO 95. 86 RO 96. 87 RO 97. 88 RO 98. 89 RO 99-100. 90 RO 101. 91 RO 100. 92 RO 102. 93 RO 86. 94 RO 87. 95 RO 88-90. 96 RO 103. 97 RO 106. 98 RO 105. 99 RO 106. 100 RO 107. 101 RO 104. 102 RO 105. 103 RO 107. 104 RO 108-109. 105 RO 110. 106 RO 111. 107 RO 112-113. 108 RO 114. 109 RO 113. 110 RO 115. 111 RO 116-117. 112 RO 119. The last sentence is irrelevant. 113 RO 118. 114 RO 121-122 Cumulative. Hereby accepted. 117 RO 123. 118 RO 124. 119 RO 125. 120 RO 126. 121 RO 127. 122 RO 128. 123 RO 129. 124 RO 130. 125 Not a finding of fact. COPIES FURNISHED: Edwin F. Blanton, Esquire Post Office Box 12808 Tallahassee, Florida 32317 Hugo Menendez Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32301 Kenneth H. Hart, Jr., Esquire General Counsel Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 Leonard A. Carson, Esquire John D. C. Newton, II, Esquire Mahan Station 1711-D Mahan Drive Tallahassee, Florida 32301 Thomas J. McHale, Esquire Gager, Henry & Narkis One Exchange Place Post Office Box 2480 Waterbury, Connecticut 06722
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her age in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a 56-year-old female. Petitioner has over 26 years of retail sales experience. Petitioner had both outside sales and store management experience, but most of her experience was as a retail floor salesperson. Petitioner worked as a salesperson at GM Appliance, a retail appliance business currently owned and operated by Respondent. She had worked for GM Appliance for over 21 years. Petitioner was a good and capable salesperson. She had never been formally reprimanded in her 21 years with GM Appliance. According to Respondent's owner and manager Todd Williams, there were no problems at all with Petitioner's performance. She was qualified as a salesperson. In 2004, Williams Corporation, a single shareholder entity owned by Mr. Williams, purchased GM Appliance from its previous owner, Curtis Murphy. Mr. Murphy was retiring after owning GM Appliance for many years. Mr. Williams had worked with Mr. Murphy as a wholesaler and was relocating to the Panama City area from Atlanta. At the time of the GM Appliance purchase, Mr. Williams was approximately 40 years old. As would be expected when taking over a business, Mr. Williams made some changes at GM Appliance. He created a new outside sales position. He created and hired a new sales manager. He opened two offices outside of Panama City. Mr. Williams made all the business decisions at GM Appliance. As he was the sole shareholder and owner, Mr. Williams had the sole authority to hire and fire employees. Under Mr. Williams, GM Appliance did not have any formal written employment policies. Respondent has no sexual harassment or anti-discrimination policies and no process on how to handle employment complaints related to age or sex. GM Appliance has no written employee evaluations or job descriptions. If someone had a complaint, he or she needed to "take it to the EEOC," according to Mr. Williams. As a result of Mr. Williams' hiring and firing decisions, the GM Appliance workforce became decidedly younger in Panama City, especially in the sales positions. Since purchasing GM Appliance through 2010, Mr. Williams hired Matt Davis (born 1970) as a sales manager; Ashley Williams (born 1976) in an outside sales position; Kris Westgate (born 1979) as inside sales and delivery; and Amy Farris (born 1982) as inside sales and administrative. In 2010, two sales persons also remained on the staff of GM Appliance from the former owner: Bobby Tew (aged 63) and Petitioner (aged 54). Both primarily worked inside sales. Mr. Williams' hiring decisions made the culture at GM Appliance more "youth" oriented. There was much more juvenile and sexual talk. Mr. Williams was overheard saying that Petitioner wore old women clothes. Some members of GM Appliance's younger workforce often called Petitioner "Mama" or "Old Mama" to her face and behind her back. As a result of the worldwide economic slowdown, the business environment deteriorated for GM Appliance in 2008. To save money, GM Appliance began to cut back on its operations and expenses. In late 2010, unable to stem the tide of losses, Mr. Williams decided he needed to cut additional staff from the sales department in Panama City. Of the six salespeople working in Panama City, he laid off the two oldest: Mr. Tew and Petitioner. The four younger sales persons kept their jobs, but one, Kris Westgate, was reassigned to the warehouse instead of laid off. Also, the two highest paid salespersons, Ashley Williams, Todd Williams' brother, and Matt Davis, remained employed with GM Appliance. Ashley Williams and Davis annually made $45,000 and $80,000, respectfully. Petitioner, at the final hearing, identified the three younger employees retained following her termination as evidence of discriminatory intent: Margaret Walden, Amy Farris, and Matt Davis. Matt Davis, aged 46, was the sales manager and Petitioner's immediate supervisor. Petitioner reported directly to Matt Davis. Amy Farris, aged 30, was originally hired as a secretary to the outside salesman. Although she would sometimes come on the sales floor, her job was to provide support for outside sales. During the course of her employment, her duties expanded to include purchasing agent and SPIFF (manufacturer's incentive program) administrator. Respondent employed outside salespersons and other salespersons (retail sales associates) such as Petitioner, who worked the showroom floor. Outside salespersons reported directly to Respondent's president, Mr. Williams. Margaret Walden, aged 45, was an outside salesperson in Respondent's office in Destin, Florida, and was responsible for developing and maintaining relationships outside the office with client contractors in Destin and South Walton County. A showroom was not maintained at the Destin office. All three identified co-workers held positions with different duties and responsibilities from the position held by Petitioner. Petitioner was not replaced, and no younger (or older) sales associate was retained in a similar position. In July 2011, Respondent hired 51-year-old Steve Williams as a sales associate. This hire was made after the Charge of Discrimination was filed by Petitioner. Steve Williams, a former Sears appliance salesman and manager, solicited a job with Respondent as Respondent had not advertised an available position. After being told repeatedly that Respondent was not hiring sales associates, he offered to accept compensation on a commissioned sales basis. Prior to terminating Petitioner, Respondent terminated six employees, ages 25 (outside sales), 27 (purchasing agent), 52 (warehouse/delivery), 41 (warehouse manager), 59 (accounting manager), and 45 (outside sales) from a period beginning on May 8, 2008, through July 31, 2009. Prior to discharge, Petitioner and the only other associate salesperson on the retail showroom floor, Mr. Tew, had their hours reduced to four days a week. In addition and during Petitioner's tenure, Respondent made changes in the corporation's 401-K plan, health insurance, paid leave, and overtime compensation all changes designed to save money. Mr. Tew was terminated on the same day as Petitioner, September 7, 2010. Janice Heinze (aged 66), Jeff Reeder (aged 54), and Angus Thomas (aged 70), all employees at the Panama City location and all older than Petitioner, were retained by the company. Respondent hired his father (a 1099 contractor), aged 68, to assume outside sales duties at the location in Foley, Alabama, and Cindy Powell, aged 54, was hired to answer the telephone there. Kelly Hill, aged 45, was hired to replace Ms. Walden upon her subsequent resignation and relocation. Petitioner and Mr. Tew were laid off with the intent to rehire. There were no performance or other identified issues with their employment. Mr. Williams stated that he wanted to bring them back to work. Petitioner had better objective sales qualifications than the younger salespeople that were retained. According to the latest records that GM Appliance had, Petitioner was the highest profit margin generating salesperson in Panama City. Mr. Tew had the second highest profit margin. Petitioner and Mr. Tew also had more sales experience and seniority than any of the younger retained workers. Petitioner earned approximately $40,000 in total over the past three years of her employment and has been unemployed since she was laid off in 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding Respondent did not commit the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 25th day of June, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Daniel Harmon, Esquire Daniel Harmon, P.A. 23 East 8th Street Panama City, Florida 32401 Robert Christopher Jackson, Esquire Harrison Sale McCloy 304 Magnolia Avenue Post Office Box 1579 Panama City, Florida 32402-1579 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
