03-004028PL Department Of Health, Board Of Opticianry vs. Norman Goodman Status: Closed Recommended Order on Thursday, April 1, 2004.

Summary: Charges should be dismissed when not proved by clear and convincing evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

OPTICIANRY, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4028PL

)

NORMAN GOODMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pur suant to notice, a final hearing was held in this case

on January 15, 2004, before Administrative Law Judge Michael M.

Parrish of the Division of Administrative Hearings in West Palm

Beach, Florida.

APPEARANCES

For Petitioner: Brian J. Stabley, Esqu ire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: Norman Goodman, pro se

8246 Jog Road

Boynton Bea ch, Florida 33437

STATEMENT OF THE ISSUES

The issue in this case concerns whether Respondent violated

Section 484.014(1)(f), Florida Statutes, in the manner alleged

in an administrative complaint and, if so, what penalties should

be imposed.

PRELIMINAR Y STATEMENT

At the final hearing in this case, Petitioner called

Respondent as its only live witness, but also presented the

testimony of two other witnesses by means of transcripts of the

depositions of those witnesses. Petitioner offered a total of

fi ve exhibits, two of which were the previously mentioned

deposition transcripts. All five of Petitioner's exhibits were

received in evidence.

Respondent testified on his own behalf. Respondent did not

call any additional witnesses and did not offer any e xhibits.

At the conclusion of the hearing, the parties were allowed

ten days from the filing of the transcript within which to file

their respective proposed recommended orders. The transcript of

the final hearing was filed on February 24, 2004. Both par ties

filed written post - hearing submissions which have been carefully

considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is, and at all times material has been, a

licensed optician in the State of Florida, having been issued

license number DO 2390 on November 29, 1984. At all times

material, Respondent has operated, or has assisted in the

operation of, a business named Fast Eyes Optical, located at

8246 Jog Road, Boynton Beach, Florida 33437.

2. On or about Jan uary 3, 2002, customer R.S., accompanied

by a friend (L.E.), visited Fast Eyes Optical, where they were

attended by Respondent. Both R.S. and L.E. decided they would

each buy a pair of Oakley sunglasses. Respondent quoted an

initial price of $634.00 per pair for the Oakley sunglasses with

prescription lenses. Ultimately, Respondent agreed to sell the

Oakley sunglasses for $500.00 per pair.

3. At the time in question, the Oakley sunglasses came

from the manufacturer with non - prescription lenses made fro m a

material known as polycarbonate. Polycarbonate lenses are noted

for being impact resistant. Polycarbonate lenses are more

impact resistant than lenses made of a plastic material known as

CR - 39. Polycarbonate lenses are particularly desirable for

peo ple who frequently engage in sports or otherwise lead a very

active lifestyle in which they are at greater risk of some form

of impact to their eyewear. Plastic lenses made from CR - 39 have

better optical characteristics than polycarbonate lenses, and,

fro m a visual acuity point of view, are a better choice material

than polycarbonate.

4. R.S. wanted to have prescription lenses in his new

Oakley sunglasses. Respondent told R.S. that Respondent could

put prescription lenses in the new Oakley sunglasses th at would

duplicate the prescription in the glasses R.S. was wearing when

he came into the store, but that he would have to send off for

the prescription lenses for the Oakley sunglasses. It was

ultimately agree that Respondent would obtain prescription

le nses for the new Oakley sunglasses and that when the new

sunglasses were ready, Respondent would mail them to R.S. at

R.S.'s home in Ohio. 1

5. Using a device called a lensometer, Respondent examined

the glasses R.S. was wearing when he came into the shop and

determined the prescriptions that were in the lenses in those

glasses. Respondent ordered lenses for the Oakley sunglasses

that matched the prescriptions in the glasses R.S. was wearing

that day. While R.S. was still in the shop, Respondent

explaine d to him that Oakley did not (at that time) make

prescription lenses for the frame model R.S. was buying, that

the prescription lenses for the sunglasses would not be Oakley

lenses, and that the lenses would be made from a plastic

material called CR - 39 bec ause Respondent thought CR - 39 was a

better choice lens material in view of the purposes for which

R.S. was buying the sunglasses. 2

6. In due course Respondent mailed a pair of Oakley

sunglasses to R.S. in Ohio. Shortly after receiving the

sunglasses, R. S. went on a trip to Mexico. While in Mexico, and

while wearing the sunglasses he had received from Respondent,

R.S. fell down at least three different times at the same place

on the same set of stairs in the same Mexican restaurant. His

last fall on tho se stairs caused R.S. to have a bruised chin, a

bruised wrist, and a broken big toe on his left foot. 3

7. Shortly after returning from his trip to Mexico, R.S.

went to an optician in Ohio and asked the Ohio optician to

examine the Oakley sunglasses he ha d purchased from Respondent.

Upon examining the sunglasses made by Respondent, the Ohio

optician communicated the following conclusions to R.S.: The

right lens in those sunglasses did not match R.S.'s

prescription, the lenses were made from CR - 39 plastic material,

and the lenses were chipped. 4

8. On March 14, 2002, the Ohio optician sold R.S. a pair

of prescription polycarbonate lenses in his correct prescription

for his Oakley frame, and replaced the plastic lenses that

Respondent had originally placed in the Oakley frame. The Ohio

optician charged $321.00 for the new lenses. The polycarbonate

lenses sold by the Ohio optician were not Oakley lenses.

9. Not long after his visit with the Ohio optician, R.S.

communicated with Respondent and complained about the things the

Ohio optician had told him were wrong with the lenses furnished

by Respondent. Respondent told R.S. that R.S. should mail the

sunglasses to Respondent and Respondent would correct any

problems with the sunglasses. R.S. refused to se nd the

sunglasses back to Respondent because he no longer had any

confidence in Respondent. Instead, R.S. asked Respondent to

send him a refund of approximately $300.00 to cover the cost of

the lenses R.S. bought from the optician in Ohio. Respondent

ref used to send a refund to R.S., but repeated his offer to make

any necessary corrections to the sunglasses. Respondent has a

policy of not giving refunds to customers, but Respondent also

has a policy of doing whatever is necessary to correct any

problems with any of the products he sells. 5

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

case. §§ 120.569 and 120.57(1), Fla. Stat.

11. In a case of this nature, Petitioner bears the burden

of proving that the licensee engaged in the conduct, and thereby

committed the violations, alleged in the charging instrument.

Proof greater than a mere preponderance of the evidence must be

presented by Petitioner to meet its burden of p roof. Clear and

convincing evidence of the licensee's guilt is required. See

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d

932, 935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292, 294

(Fla. 1987); Pou v. Department of Insurance and Treasurer , 707

So. 2d 941 (Fla. 3d DCA 1998); and Section 120.57(1)(j),

Florida Statutes ("Findings of fact shall be based upon a

preponderance of the evidence, except in penal or licensure

discipli nary proceedings or except as otherwise provided by

statute . . . .").

12. Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard."

Id. For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983). "Although this standard of proof may be met where the

evidence is in confl ict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corporation, Inc. v.

Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

13. In determining whether Petitioner has met its burden

of proof, it is necessary to eva luate Petitioner's evidentiary

presentation in light of the specific factual allegations made

in the charging instrument. Due process prohibits an agency

from taking disciplinary action against a licensee based upon

conduct not specifically alleged in the charging instrument.

See Hamilton v. Department of Business and Professional

Regulation , 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v.

Agency for Health Care Administration , 731 So. 2d 67, 69 (Fla.

4th DCA 1999); and Cottrill v. Department of Insurance , 685 So.

2d 1371, 1372 (Fla. 1st DCA 1996).

14. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the charging instrument]

to have been violated." Delk v. Department of Professional

Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In

deciding whether "the statute or rule claimed [in the charging

instrument] to have been violated" was in fact violated, as

alleged by Petitioner, if there is any reasonable doubt, that

doubt must be resolved in favor of the licens ee. See Whitaker

v. Department of Insurance and Treasurer , 680 So. 2d 528, 531

(Fla. 1st DCA 1996); Elmariah v. Department of Professional

Regulation, Board of Medicine , 574 So. 2d 164, 165 (Fla. 1st DCA

1990); and Lester v. Department of Professional and Occupational

Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

15. Paragraph 13 of the Amended Administrative Complaint

asserts the following:

13. Respondent's opticianry license is

subject to discipline by this Board as

Respondent violated § 484. 014(1)(f), Fla.

Stat., by committing fraud or deception,

negligence, incompetence, or misconduct, in

the authorized practice of opticianry when

he charged R.S. $500.00 for prescription

Oakley sunglasses with a [sic] polycarbonate

lenses and provided R.S. O akley sunglasses

that contained the wrong prescription lenses

and did not provide R.S. with polycarbonate

lenses.

16. Pursuant to Section 484.014(1)(f), Florida Statutes,

the following acts constitute grounds for disciplinary action,

as specified in Sec tion 456.072(2), Florida Statutes: "(f)

Fraud or deceit, or negligence, incompetency, or misconduct, in

the authorized practice of opticianry."

17. Petitioner has failed to present clear and convincing

evidence of all of the elements of the violations c harged in the

Administrative Complaint. Specifically, there is no clear and

convincing evidence that Respondent engaged in fraud or deceit,

there is no clear and convincing evidence that Respondent was

negligent or incompetent, and there is no clear and c onvincing

evidence of any other misconduct by Respondent in the authorized

practice of opticianry. In the absence of such evidence, the

charges must be dismissed.

RECOMMENDATION

On the basis of the foregoing findings of fact and

conclusions of law, it i s RECOMMENDED that the Board of

Opticianry enter a Final Order concluding that the violations

charged in the Administrative Complaint should be dismissed

because the evidence is insufficient to prove the violations

alleged by clear and convincing evidence.

DONE AND ENTERED this 1st day of April, 2004 , in

Tallahassee, Leon County, Florida.

S

___________________________________

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 2 78 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of Apri l, 2004 .

ENDNOTES

1/ Respondent also made similar arrangements with the friend

(L.E.) who came into the shop with R.S. This case does not

involve any issues regarding the sale to L.E.

2/ There was conflicting testimony regarding some of the

findings of fact in this paragraph. The conflicts have been

resolved in favor of Respondent's version of the facts, which

version has been found to be more credible than the conflicting

testimony of R.S.

3/ In his testimony R.S. suggests that his falls on the s tairs

were caused, at least in part, by distorted vision resulting

from an incorrect prescription in one of the lenses of the

glasses he purchased from Respondent. The fact that R.S. fell

at least three times at the same place on the same set of stairs

in the same restaurant, but did not fall anywhere else, suggests

that it is more likely that the falls were due to some defect in

the design of the stairs than to a defect in the sunglasses.

4/ Only one of the conclusions reached by the Ohio optician is

su pported by clear and convincing evidence. That is the

conclusion that the lenses were made from CR - 39 plastic

material. The conclusion that the prescription in one of the

lenses provided by Respondent did not match R.S.'s prescription

is not supported by clear and convincing evidence for several

reasons. First, the Ohio optician did not write down the

results of her examination of the lenses provided by Respondent,

so she cannot say whether any difference was a slight difference

or a large difference. S econd, it is not clear from the

testimony of the Ohio optician whether she compared the

sunglasses provided by Respondent to the glasses R.S. was

wearing when R.S. bought the Oakley sunglasses. That is the

only comparison that is relevant to whether Respo ndent provided

the correct prescriptions. The conclusion that the lenses in

the Oakley sunglasses were chipped is not supported by clear and

convincing evidence because it is inconsistent with the

testimony of R.S. (R.S. contends he saw a chip on the ins ide of

one lens, but the Ohio optician claims to have seen chips on the

outside of the lenses.) Further, in view of R.S.'s mishaps on

the Mexican stairs, it is more likely that any chips on the

lenses of the sunglasses were caused by the falls than by any

act or omission of Respondent.

5/ Respondent's willingness to make good on the products he

sells is reflected in the fact that L.E., the friend who bought

Oakley sunglasses at the same time as R.S., was unhappy with his

sunglasses and Respondent provide d L.E. with a new frame and new

lenses with no additional charge to L.E.

COPIES FURNISHED:

Brian J. Stabley, Esquire

Assistant Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Norman Goodman

8246 Jog Road

Boynton Beach, Florida 33437

R. S. Power, Agency Clerk

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, Flo rida 32399 - 1701

Dr. John O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

Susan Foster, Executive Director

Board of Opticianry

Department of Health

4052 Bald Cypress Way, Bin C08

Tallahassee, Fl orida 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 is sue the Final Order in this case.