00-000853 Department Of Health, Board Of Optometry vs. Shannon Dewayne Fowler Status: Closed Recommended Order on Friday, March 2, 2001.

Summary: Case distinguishes previous case finding violation of advertising rules for optometrists and rules against practicing with other entities.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

OPTOMETRY, )

)

Petitioner, )

)

vs. ) Case No. 00-0853

)

SHANNON DEWAYNE FOWLER, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings

by its designated Administrative Law Judge, Ella Jane P. Davis,

held a disputed-fact hearing in the above-styled case on

January 9, 2001, in Destin, Florida.

APPEARANCES

For Petitioner: Mary Denise O'Brien, Esquire

Agen cy for Health Care Administration

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

For Respondent: Matthew W. Burns, Esquire

Post Office Box 1226

Destin, Florida 32540

STATEMENT OF THE ISSUES

Whether Respondent viola ted Section 463.014, Florida

Statutes, by violating Rule 64B13-3.008(15)(a), Florida

Administrative Code; violated Section 463.014, Florida Statutes,

by violating Rule 64B13-3.008(15)(f), Florida Administrative

Code; violated Section 463.016(1)(h), Florida Statutes, by

violating Rule 64B13-3.009(2)(b), Florida Administrative Code;

and violated Section 463.016(1)(f), Florida Statutes, and if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

On September 2, 1999, the Department of Health, Board of

Optometry, filed the initial Administrative Complaint against

Respondent Shannon Dewayne Fowler alleging that he had violated

the foregoing sections of the Optometry Practice Act. The

initial Administrative Complaint had an additional count that

charged a violation of Rule 64B13-3.008(15)(k), Florida

Administrative Code. On July 27, 2000, the Administrative

Complaint was amended to delete this particular count.

A Second Amended Administrative Complaint was filed on

November 29, 2000, to correctly cite the appropriate statutory

sections. Rule 64B13-3.0089(15), Florida Administrative Code,

specifically states that if a licensed practitioner commits the

acts described in subparagraphs (a) - (p), it shall constitute

evidence of a violation of Section 463.014, Florida Statutes.

On December 29, 2000, Respondent filed a Motion to Dismiss

and Refer for Probable Cause Determination. That Motion was

argued and denied on January 9, 2001, immediately prior to

commencement of the disputed-fact hearing on the merits. 1/

Petitioner presented the oral testimony of Michael

Fregger, O.D., James Andrews, O.D., and Respondent, and had

three exhibits admitted in evidence.

Official recognition was taken of Rules 64B13-3.008 and

64B13-3.009, Florida Administrative Code.

Respondent testified on his own behalf and presented the

oral testimony of Robert Patrick, C.P.A. Respondent had one

exhibit admitted in evidence.

A Transcript was filed on January 22, 2001. Each party

timely filed a Proposed Recommended Order, each of which has

been considered.

FINDINGS OF FACT

1. At all times material, Respondent was licensed to

practice optometry by the State of Florida, Board of Optometry.

2. On or about April 19, 1998, Respondent entered into a

lease agreement captioned "Equipment License," with U.S.

Visions, Corp., to lease space and equipment as an optometric

office in the J. C. Penney retail store on Mary Esther Avenue,

Mary Esther, Florida. This location also constitutes the Santa

Rosa Mall. Respondent paid $100.00 monthly rent for this office

space.

3. At all times material, Respondent also maintained a

separate office for the practice of optometry under the name

"Coastal Vision Center" in rental space in Destin, Florida.

Respondent paid $2,900.00 monthly rent for the Destin office

space.

4. Respondent practiced in both locations during 1998.

Respondent practiced under a professional corporation, named

Shannon Fowler, O.D., P.A.

5. Respondent's office space at the J.C. Penney location

was inside the J.C. Penney retail store. Adjacent to

Respondent's office space was the "J.C. Penney Optical Center,"

in which an optometrist practiced, and in which eyeglasses,

contact lenses, and other optical merchandise could be

purchased.

6. Respondent personally placed a sign at the entrance to

his office space at the J.C. Penney location identifying himself

by name, stating that an independent practice of optometry was

located there, and stating that he was not affiliated with the

J.C. Penney retail store.

7. During the time he practiced at the leased office space

located in the J.C. Penney store, Respondent maintained

telephones listed in his name at both his office locations. The

telephone number for his office in J.C. Penney was different

than the telephone number for his Destin office.

8. Only Respondent, himself, answered Respondent's

telephone at the J.C. Penney location. This telephone and

telephone number were separate and had a different telephone

number from the telephones for the J.C. Penney Optical Center.

9. The receptionist at the J.C. Penney Optical Center

occasionally made appointments with Respondent for persons who

walked into the J. C. Penney Optical Center or who telephoned

the J. C. Penney Optical Center telephone, but all such

appointments were subject to confirmation by Respondent.

10. There was no formal arrangement or agreement for the

J. C. Penney Optical Center receptionist to make appointments

over the Optical Center telephone for Respondent, and Respondent

did not pay the receptionist. However, Petitioner benefited if

the appointments she made were confirmed by him and actually

kept by the patient.

11. All of Respondent's patients at either location were

advised that Respondent maintained an office in Destin, and all

of his patients were advised to call a third telephone number,

Respondent's cell phone number, for after-hours or emergency

matters. All after-hours matters were handled at the Destin

office by Respondent.

12. However, patient files for patients that Respondent

saw solely at the J.C. Penney location were stored by Respondent

at that location. Respondent had no after-hours access to the

J.C. Penney store. If there were an emergency, Respondent would

have to obtain the patient's file the following day.

13. At both office locations, Respondent, alone,

determined which patients to see, what examinations and

procedures to conduct, what optometry services to render, and

what fees to charge any patients for his services.

14. The lease agreement for Respondent's office space at

J.C. Penney contained provisions precluding U.S. Visions Corp.

from interfering with, or regulating, Respondent's independent

practice of optometry in the office space he had leased. The

lease agreement also contained a provision by which U.S. Vision

Corp. covenanted not to violate Florida law.

15. Respondent's lease with U.S. Visions Corp. prohibited

his selling "frames, contacts, and related items" at the

J.C. Penney location.

16. Respondent did maintain inventory, employ an

optometrist, and sell eyeglasses, lenses and frames at the

Destin location.

17. Respondent worked out of the J.C. Penney location

three half-days per week on Mondays, Tuesdays, and Wednesdays.

18. When requested by the patient, Respondent accepted the

J.C. Penney credit card as payment for optometric services

rendered at that location. When such card was used by a patient

to pay for Respondent's services, J.C. Penney processed the

payment and billed the patient directly. J.C. Penney rendered

accounting and payment in full to Respondent for services

charged on the credit cards on a bi-monthly basis. There is no

evidence as to whether payment to Respondent was, or was not,

affected by a delinquent payment by a patient to J.C. Penney.

19. Respondent also accept ed payment for his services

rendered to patients at either location by check, cash, and

Visa, Mastercard, and American Express credit cards. The

patient elected which manner of payment to tender. Respondent's

business records indicate that all of these forms of payment

were utilized by patients at both locations.

20. J.C. Penney charged a two-percent (2%) processing fee

for the collection and accounting of services charged by

patients on their J.C. Penney credit card. This fee, and the

manner in which J.C. Penney processed the payments charged to

the J. C. Penney credit card, are comparable to, and do not

materially differ from, the typical arrangements between small

business merchants and issuers of the other major credit cards

which Respondent accepted.

21. Unrefuted testimony of a certified public accountant

employed by Respondent was to the effect that the financial

records of Respondent's two optometry offices for 1998 show no

indication that J.C. Penney exercised any influence or control

over Respondent's independent practice of optometry or billing

practices, and in fact, indicate that J.C. Penney did not.

22. There is no evidence that the Respondent ever used

prescription forms or any other forms referring to J.C. Penney

at either of his office locations.

23. On July 12, 1998, an advertisement appeared in the

Sunday supplement to the "Northwest Florida Daily News" under

the heading "J.C. Penney Optical Center," advertising a "FREE

eye exam & 50% off frames." In very small print, the

advertisement said, "we'll pay for your eye exam for eyeglasses

by deducting up to $40 from your prescription eyeglass

purchase." The advertisement specified "Santa Rosa Mall."

24. The J.C. Penney Optical Center is not a licensed

optometrist. A corporation can never hold an optometrist

license. Only an individual can be licensed as an optometrist

in Florida.

25. The record is silent as to who or what entity placed

the advertisement.

26. Respondent was not named in the advertisement.

Respondent did not place the advertisement. There is no

evidence that Respondent had any involvement in the text or

publication of the advertisement. Respondent did not have any

prior knowledge that the advertisement was going to be

published. U.S. Visions Corp. had never published any

advertisement prior to July 1998, and Respondent did not foresee

that the subject advertisement would be published. Respondent

had no opportunity or means to prevent the publication of the

advertisement. Respondent did not approve of, or consent to,

the publication or content of the advertisement. Respondent had

no opportunity to review the advertisement prior to publication.

27. The lease for the J.C. Penney office location did not

provide for U.S. Vision Corp. to do any advertising for

Respondent. Respondent had no arrangements for advertising with

either U.S. Vision Corp. or J.C. Penney. Respondent did not

contemporaneously see the advertisement. He learned about it

only through service of notice of the Department of Health's

investigation into the advertisement, which ultimately resulted

in this case.

28. No patient or potential patient ever brought the

advertisement or the coupon in the advertisement to Respondent

or ever requested that the Respondent provide optometry services

in accordance with the advertisement or the coupon. Respondent

did not provide any optometry services in accordance with the

advertisement or coupon, and would not have done so if

requested. Respondent received no benefit from the

advertisement.

29. Respondent provided no "FREE" eye exams. The

Respondent charged $49 per eye exam.

30. The agency's expert witness, a licensed optometrist

and former member of the Board of Optometry, testified that he

believed that, on its face, the advertisement implied an

association or affiliation between Respondent and J.C. Penney;

that an optometrist practicing at J.C. Penney could be expected

to benefit from the advertisement because of the content of the

advertisement; that the advertisement was misleading because a

person reading it would expect an eye exam to be "FREE"; and

that when there is a lessor-lessee relationship of the type

presented in this case, the Respondent optometrist has a

responsibility to ensure that advertisements conform to the

optometry statute and rules.

31. The same expert witness testified that Chapter 463,

Florida Statutes, does not prohibit optometrists from commercial

establishments.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding, pursuant to Sections 120.569, 120.57(1) and

381.0065, Florida Statutes, and Chapter 64E-6, Florida

Administrative Code.

33. Petitioner has the duty to go forward with the burden

of proving by clear and convincing evidence that Respondent has

violated the rules and statutes under which he has been charged.

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

34. Count I of the Second Amended Administrative Complaint

alleges that Respondent is subject to discipline pursuant to

Section 463.014, Florida Statutes (no subsection specified) by

violating Rule 64B13-3.008(15)(a), Florida Administrative Code,

by holding himself out to the public as available to render

professional services in any manner which suggests that the

licensed practitioner is professionally associated, or

affiliated with, or employed by, an entity which itself is not a

licensed practitioner.

35. Count II alleges that Respondent is subject to

discipline pursuant to Section 463.014, Florida Statutes (no

subsection specified) by violating Rule 64B13-3.008(15)(f),

Florida Administrative Code, by allowing, permitting,

encouraging, forbearing, or condoning any advertisement

including those placed in a newspaper, magazine, brochure, flier

or telephone directory which implies or suggests that the

licensed practitioner is professionally associated or affiliated

with an entity which itself is not a licensed practitioner.

36. In fact, Section 463.014, Florida Statutes, provides

numerous types of violations, but Rules 64B13-3.008(15)(a) and

(f), provide:

Rule 64B13-3.008(15), Florida Administrative

Code states:

The following shall constitute evidence that

the licensed practitioner has violated

Section 463.014, Florida Statutes:

(a) Holding him/herself out to the public,

or allowing him/herself to be held out to

the public, as available to render

professional services in any manner which

states, implies, or suggests that the

licensed practitioner is professionally

associated or affiliated with, or employed

by, an entity which itself is not a licensed

practitioner;

(f) Allowing, permitting, encouraging,

forbearing, or condoning any advertisement,

including those placed in a newspaper,

magazine, brochure, flier, telephone

directory, or on television or radio, which

implies or suggests that the licensed

practitioner is professionally associated or

affiliated with an entity which itself is

not a licensed practitioner;

37. Count III of the Second Amended Administrative

Complaint alleges that Respondent is subject to discipline

pursuant to Section 463.016(1)(h), Florida Statutes, by

violating Rule 64B13-3.009(2)(b), Florida Administrative Code,

by causing an advertisement to mislead or deceive because in its

content, or in the context in which it is presented, it makes

only a partial disclosure of relevant fact.

38. In fact, Section 463.016(1)(h), Florida Statutes, and

Rule 64B13-3.009(2)(b), Florida Statutes, provide as follows:

Section 463.016 Grounds for disciplinary

action; action by the board.

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(h) A violation or repeated violations of

provisions of this chapter, or of chapter

456, and any rules promulgated pursuant

hereto.

Rule 64B13-3.009 False, Fraudulent,

Deceptive, and Misleading Advertising

Prohibited; Policy; Definitions; Affirmative

Disclosure.

(2) A licensed practitioner shall not

disseminate or cause the dissemination of

any advertisement or advertising which is in

any way fraudulent, false, deceptive or

misleading. Any advertisement or

advertising shall be deemed by the Board to

be fraudulent, false, deceptive, or

misleading, if it:

(b) Has the capacity or tendency to mislead

or deceive because in its content or in the

context which it is presented makes only a

partial disclosure of relevant facts;

39. Count IV alleges that Respondent is subject to

discipline pursuant to Section 463.016(1)(f), Florida Statutes,

by advertising goods or services in a manner which is

fraudulent, false, deceptive, or misleading in form or content.

40. In fact, Section 463.014(1)(f), Florida Statutes,

provides as follows:

463.016 Grounds for disciplinary action;

action by the board.

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(f) Advertising goods or services in a

manner which is fraudulent, false,

deceptive, or misleading in form or content.

41. It is worrisome that Respondent's patient files in the

J. C. Penney location were not accessible to him, in

emergencies, but he has not been charged with any violation that

relates to that situation. Petitioner raised that issue only in

its Proposed Recommended Order. Moreover, that situation in no

way relates to how Respondent held himself out to the public ,

since the public had no reason to know about it.

42. The evidence in this cause establishes that

Respondent's office location at all times material was

maintained separately from the J. C. Penney retail store or its

Optical Center. The record fails to establish that Respondent

ever held himself out in any way as an employee or

representative of either J. C. Penney or its Optical Center. In

fact, the record establishes that Respondent always indicated to

the consuming public that he was an independent optometric

practitioner. To the degree any misunderstanding concerning

appointments made by the Optical Center receptionist might have

occurred, Petitioner at least had the opportunity to correct

them when he confirmed or refused the appointment. There was no

evidence that any customer confusion occurred. There was no

evidence that an incorrect inference had been drawn by any

customer, let alone implied by Respondent. Respondent's J. C.

Penney's office was clearly marked with his name and profession.

Respondent did not share prescription blanks with the

J. C. Penney Optical Center. Telephones and telephone numbers

were not shared. Credit arrangements with J. C. Penney were no

more misleading than credit arrangements with Visa, Mastercard,

or American Express, which credit arrangements do not seem to

trouble the Board.

43. Respondent admitted that the advertisement was

inappropriate. It appeared only once, and it appeared without

any collusion by Respondent. Based on the terms of Respondent's

lease prohibiting U.S. Visions Corp. from violating Florida law,

and his experience with both U.S. Visions Corp. and J. C. Penney

prior to the surprise publication of the inappropriate

advertisement, Respondent could not have reasonably guessed he

had to prohibit the advertisement in advance. He derived no

benefit therefrom.

44. As to Count I, Respondent's situation is different

from prior cases wherein a violation was determined to exist

upon similar, but not identical, facts in that Respondent herein

personally placed a sign clearly identifying his independent

status and his lack of affiliation with the J. C. Penney retail

store and its Optical Center. In the instant case, the only

touchstone which could reasonably have been misconstrued by a

member of the public occurred when the J. C. Penney Optical

Center receptionist at her own volition, answered that entity's

phone and made appointments on Respondent's behalf. In line

with the assessment in Department of Health, Board of Dentistry

[sic] v. Weber , DOAH Case No. 94-6366 (Recommended Order to the

Board of Optometry dated November 1997), Respondent may be

subject to discipline on the basis of the appointments made for

him through the J. C. Penney Optical Center.

45. As to Counts II, III, and IV, there is no evidence

that Respondent committed any active, intentional, or volitional

act which led to the publication of the advertisement. There is

no evidence that Respondent knew or had reason to know the

advertisement was going to be published. Notwithstanding the

subjective beliefs of the agency expert and the reasoning of the

Final Order in Department of Business and Professional

Regulation, Board of Optometry v. Schwartz , DOAH Case

No. 82-2193 (Final Order dated June 1, 1983), which determined

upon similar, but not identical, facts that a violation had

occurred, and Lens Express, Inc., and Mordechai Golan v.

Department of Business and Professional Regulation, Board of

Optometry, et.al. , 18 FALR 817 (Fla. Dep't. of Bus. & Prof. Reg.

1996), aff'd, 688 So. 2d 404 (Fla. 1st DCA 1997), which explains

the purpose behind Rule 64B13-3.008, Florida Administrative

Code, a professional should not be punished simply for not

anticipating the advertisement herein. In the instant case, a

commercial enterprise which had never before published an

advertisement concerning Respondent's services seems to have

done so without notifying Respondent first. To hold Respondent

guilty of violating the cited rules in such a situation would be

akin to holding someone liable for receiving unsolicited mail.

The commission of fraud requires an intentional act. Here,

there was not even a volitional act by Respondent. For this

case, the better reasoning is to be found in the March 3, 1983,

Recommended Order in Department of Business and Professional

Regulation, Board of Optometry v. Schwartz , DOAH Case

No. 82-2193 (overruled by the Final Order dated June 1, 1983).

46. Therefore, Counts II, III, and IV should be dismissed

due to the lack of clear and convincing evidence, and

accordingly, the $3,000 penalty ($1,000 per Count) sought by the

Agency should be denied.

47. Count I may be sustained only upon the evidence that

Respondent allowed appointments to be made for him through the

Optical Center receptionist. However, since he personally

either confirmed or rejected these appointments, it is clear he

mitigated or eliminated any suggestion of affiliation.

Therefore, this element is not worthy of a $1,000 fine as

requested. A reprimand is sufficient under the circumstances.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED:

That the Board of Optometry enter a final order dismissing

Counts II, III, and IV, finding Respondent guilty of Count I of

the Second Amended Administrative Complaint, and issuing a

reprimand.

DONE AND ENTERED this 2nd day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

A dministrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

File d with the Clerk of the

Division of Administrative Hearings

this 2nd day of March , 2001.

ENDNOTE

1/ Two exhibits were offered with regard to this issue:

Agency for Health Care Administration Exhibit 1 (Probable Cause

Panel No. 1), and Agency for Health Care Administration Exhibit

2 (Probable Cause Panel No. 2). Ultimately, the rule violations

listed in the Memorandum of Finding Probable Cause signed by the

Chairman of the Probable Cause Panel of the Board of Optometry

are the same rule violations charged in the Second Amended

Administrative Complaint. Only the statutory reference was

corrected. There was no lack of notice or lack of procedural

compliance.

COPIES FURNISHED:

Mary Denise O'Brien, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Matthew W. Burns, Esquire

Post Office Box 1226

Destin, Florida 32540

Joe Baker, Jr., Executive

Board of Optometry

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Esquire

Department of Health

4052 bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

William W. Large, General Counsel

Department of Health

4052 bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.