20-003419PL Department Of Health, Board Of Opticianry vs. David A. Bressette, L.D.O. Status: Closed Recommended Order on Tuesday, October 27, 2020.

Summary: Petitioner demonstrated by clear and convincing evidence, that Respondent pled nolo contendre to a crime that relates to the practice of opticianry. Recommended five-year suspension of license.

484.014(1)(q), Florida Statutes , as alleged in the Administrative Complaint

and, if so, the appropriate penalty.

P RELIMINARY S TATEMENT

On March 3, 2020 , Petitioner , Department of Health (Department or

Petit ioner ) , filed its Administrative Complaint (Administrative Complaint)

against Respondent , David Allen Bressette , a licensed optician . The

complaint charged Respondent with having pled nolo contendere to one count

of Aggravated Assault, a third - degree felon y violation of s ection 784.021(1)(a) ,

Florida Statutes (2018) , alleged to be a crime that relate s to the practice of, or

the ability to practice, opticianry , in violation of s ection 484.014(1)(q) .

On March 26, 2020 , Respondent filed a Statement Requesti ng

Administrative Hearing (Petition) in which he disputed several issues as

alleged by the Department, including whether the crime pled in the Administrative Complaint related to the practice of opticianry , and requested

an administrative hearing.

On Ju ly 30, 2020 , the P etition was referred to the Division of

Administrative Hearings. The final hearing was scheduled for September 17,

2020 .

On September 11, 2020 , the parties filed their Joint Pre - hearing

Stipulation , and on September 15, 2020, filed an Am ended Joint Pre - hear i ng

Stipulation (JPS) , which contained seven st ipulated facts. Those facts have

been incorporated in this Recommended Order. The JPS also contained five

stipulations regarding issues of law on which there was agreement. Those

stipulatio ns, which are determined to accurately set forth applicable issues of

law , are incorporated in this Recommended Order.

The final hearing was convened on September 17, 2020 , as scheduled.

At the commencement of the final hearing, Petitioner’s Motion in L imine,

w hich sought to exclude the testimony of five witnesses and the introduction

of four exhibits as constituting inadmissible character evidence , was taken

up. Ruling on the Motion in Limine was deferred, pending the decision by

Respondent to call the witnesses or offer the exhibits. The five witnesses and

four exhibits were not offered by Respondent. Therefore, the Motion in

Limine is denied as moot.

A t hearing, the Department offered the testimony of Ethan Kersey, an

a gent with the Brevard County She riff’s Office; and Gloria Aeh, a licensed

optician who, after a discussion of the factors set forth in Charles W.

Ehrhardt, Ehrhardt’s Florida Evidence , § 702.4, fn. 37 (20 20 Edition) , was

accepted as an expert in opticianry . The Department o ffered Petitio ner’s

Exhibit s 1 through 3 and 5 through 8 in evidence. Petitioner ’s Exhibit s 2 and

3 are a deposition transcript and audio interview of Respondent. The use of

the deposition is authorized by Florida Rules of Civil Procedure 1.330(a) (2)

and Florida Adminis trative Code Rule 28 - 106.206 . The transcript and the

audio interview are admissions of a party and , therefore , subject to the

exception from the hearsay rule in section 90.803( 1 8), Florida Statutes.

Respondent testified on his own behalf, and offered no exhibits in

evidence.

Petitioner indicated that one of its witnesses, Joyce Anderson, was not

available to appear at the hearing due to an unexpected medical emergency .

The inability to appear for that reason is grounds for accepting otherwise admissible testimony by deposition. Fl a. R. Civ. P. 1.330(a)(3) (C) .

The deposition of Ms. Anderson was taken , and the transcript was filed on

October 7, 2020 , as Petitioner’s Exhibit 9 . A review of the transcript reveals

that the circumstances described by Ms. Ande rson occurred in August 2008.

They were not so similar in nature or so close in time to make them

indicative of Respondent’s acts in this case. The evidence would only be

r elevant to prove the bad character or propensity of Respondent. It is ,

therefore , no t admissible. Charles W. Ehrhardt, Ehrhardt’s Florida Evidence ,

§ 404.9 (2020 Edition) . Furthermore, section 120.57(1)(d) , Florida Statutes,

provides that

... similar fact evidence of other violations, wrongs,

or acts is admissible when relevant to prove a

material fact in issue, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to

prove bad character or propensity. When the sta te

in an administrative proceeding intends to offer

evidence of other acts or offenses under this

paragraph, the state shall furnish to the party whose substantial interests are being determined

and whose other acts or offenses will be the subject

of such evidence, no fewer than 10 days before commencement of the proceeding, a written statement of the acts or offenses it intends to offer,

describing them and the evidence the state intends

to offer with particularity. Notice is not required for evidence of a cts or offenses which is used for

impeachment or on rebuttal.

First, Ms. Anderson’s deposition provided no evidence related to Respondent’s

motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident as related to the 2017 incident that is the

subject of the Administrative Complaint. Second, Petitioner did not provide

notice of its intent to use Ms. Anderson’s character or propensity evidence

10 days prior to the final hearing. Such notice is statutorily required , and

cannot be disregarded. Third , Petitioner’s argument that the evidence is

rebuttal to statements in Respondent’s deposition overlooks the fact that the

deposition was put in evidence by Petitioner during its case - in - chief.

Respondent’s case - in - chief w as extremely limited, and contained nothing that

Ms. Anderson’s testimony would “rebut.” Finally, given the lack of specificity

in what Ms. Anderson observed (drop - down menu descriptions - not images),

the fact that others had access to the computer at iss ue, and the length of

time between the allegedly similar acts and the facts of this case, the

probative value of the evidence is substantially outweighed by the danger of

unfair prejudice , and is , therefore , inadmissible. § 90.40 3 , Fla. Stat. For the

reaso ns set forth herein, Petitioner’s Exhibit 9 is not received in evidence.

Nonetheless , Petitioner’s Exhibit 9 will be accepted as a proffer , and will

accompany the record of this proceeding, but will not be used for any purpose

in the development of this Re commended Order.

The one - volume final hearing T ranscript was filed on October 7, 2020, and

the record was closed. Both parties timely filed p roposed r ecommended o rder s

that were considered in preparation of this Recommended Order.

This proceeding is governed by the law in effect at the time of the

commission of the acts alleged to warrant discipline , i.e., Respondent’s

March 20, 2019 , plea of nolo contendere . See McCloskey v. Dep’t of Fin. Servs. ,

115 So. 3d 441 (Fla. 5th DCA 2013). Thus, references to statutes are to Florida Statutes (201 8 ), unless otherwise noted.

F INDINGS O F F ACT

Stipulated Facts

1. At all times material to this proceeding, Respondent, David Allen

Bressette, L.D.O., was a licensed optician within the State of Florida, having firs t been issued license number DO 3755 on or about May 1, 1992.

2. Respondent's address of record is 4545 Sweet Bay Avenue, Melbourne,

Florida 32935.

3. On or about November 29, 2017, the Brevard County Sheriff's Office

arrested Respondent for 10 counts of P ossession/Viewing Materials Depicting

Child Sexual Conduct, in violation of section 827.07(5), Florida Statutes

(2017).

4. On or about March 2, 2018, Resp ondent was charged with four counts of

Possession/Viewing Materials Depicting Child Sexual Conduct, in violation of

section 827.07(5), Florida Statutes (2017), in Case No. 05 - 2017 - CF - 052816 -

AXXX - XX .

5. On or about March 20, 2019, Respondent pled no lo contendere to one

count of Aggravated Assault, a third - degree felony, in Case No. 05 - 2017 - CF -

052816 - AXX X - XX .

6. The ability to practice or the practice of opticianry requires interacting

with children built on trust and maintaining social boundaries.

7. A special condition of Respondent's order of probation for his plea to the

crime of Aggravated Assault requir es that Respondent have “ no unsupervised

contact with a child under the age of eighteen (18) unless supervised by the

child's parent or legal guardian or by a court order. ”

Evidentiary Findings of Fact

8 . Respondent owned a practice with Dr. Ronald Ryan, a n

ophthalmologist . Dr. Ryan sold his interest in the practice in 2016 to

Dr. David Hendrix. Respondent sold his interest in April 2018. He has not

practiced opticianry since that time.

9 . Respondent intends to resume practicing opticianry when this case is

resolved.

10 . During the investigation of the complaint that led to Res pondent’s

arrest and his ultimately being charged with four counts of

Possession/Viewing Materials Depicting C hild Sexual Conduct in Case

No. 05 - 2017 - CF - 052816 - AXXX - XX , Respondent sub mitted to a recorded

interview. In the interview, Respondent alluded to the possibility of his

having used his devices to view images of girls in their mid - teens -- 14 or 15

years of age -- though his description of what may have been on his devices

was in sufficient , in itself, to support a finding that they were unclothed or

engaged in sexual conduct . Nonetheless, Respond ent admitted to

masturbating to, and deriving sexual gratification from those images.

11 . A t the conclusion of the interview , Agent Kerse y seized Respondent’s

iPad and iPhone . A warrant was subsequently executed at Respondent’s

home where other devices were seized.

12 . Agent Kersey testified that he personally observed images of what he

described as child pornography, depicting sexual acts or genitalia of what he

believed to include pre - teen juveniles, retrieved from Respondent’s electronic

devices. Agent Kersey’s employ ment since 2014 as a n agent for the Special

Victims Unit , charged with investigating , inter alia , child abuse, child sex

cr imes, and possession of child pornography, provides weight to his testimony

that the images were of juveniles, and his testimony is accepted .

13 . Agent Kersey prepared a Case Supplement Report dated January 2,

2019, in which he provided a more detailed des cription of the images he

observed. His descriptions are substantiated by his testimony, and are

sufficient to support a finding that the images retrieved from Respondent’s

electronic devices were of under - aged girls engaged in sexual acts or exposing

thei r genitalia .

14 . Respondent argues th at , as a matter of law, the crime to which he pled

nolo contendere, Aggravated Assault, is not a “ lesser included offense” to the

crime of Possession of Material Depicting Sexual Conduct by Child. He

further argues that he did not commit the crime of Aggravated Assault: i.e. ,

there was no intentional, unlawful threat by word or act to do violence to the

person of another, coupled with an apparent ability to do so, and doing some act which creates a well - founded fear in s uch other person that such violence

is imminent , involving a deadly weapon without intent to kill . See §§ 784.011

and 784.021, Fla. Stat.

15 . The Court Minutes that accompanied Respondent’s plea of nolo

contendere to one count of Aggravated Assault in Cas e No. 05 - 2017 - CF -

052816 - AXXX - XX, including the Judgment/Order of Probation and the Plea

Offer accepted by Respondent , establish the parameters under which

Respondent understood and accepted his plea agreement. The Court Minutes

establish that the charge of Possession of Material Depicting Sexual Conduct

by Child was “Reduced” to Aggravated Assault. The Court Minutes further

provide that “[t]he Defendant withdrew the previously entered plea of not

guilty,” and that “[t]he Defendant entered a plea of nolo con tendere to the

lesser included offense of A GGRAVATED A SSAULT .”

16 . There are countless reasons why a person would chose to accept a plea

to a crime, not all of which constitute a direct expression of culpability.

Nonetheless, regardless of whether Aggrava ted Assault is a “lesser included

offense” to the crime of Possession of Material Depicting Sexual Conduct by

Child , his plea , made in open court and wi th representation of counsel , was

made with the intent that it be accepted as a lesser include d offense . The plea

was accepted by the circuit court on those terms. The Court Minutes

demonstrate the link between the offense to which he pled, and the offense

for which he was charged.

17 . The terms of Respondent’s probation included a number of Special Sex

Offe nse conditions in addition to that identified in the Stipulated F acts. For

example, the terms of probation included a psycho - sexual re - evaluation and,

if recommended by the re - evaluation, “participation in and suc c essful

completion of a sex offender treatm ent program with qualified practitioners

specifically trained to treat sex offenders” ; annual polygraph examinations by

a polygrapher trained in the use of the polygraph “for the monitoring of sex

offenders” and for the purpose of obtaining “information ne cessary for risk

management and treatment” ; a restriction on accessing mate r ials “that are

relevant to the offender’s deviant behavior pattern” ; and restrictions against

distributing candy to children at Halloween, dressing as Santa Claus or the

Easter Bun ny “or other costume to appeal to children ,” entertaining at

children ’ s parties, or visiting schools, child care facilities, parks , and

playgrounds.

18 . Section 120.569(2)(g) allows for the consideration of “ evidence of a type

commonly relied upon by reaso nably prudent persons in the conduct of their

affairs ” in a proceeding under chapter 120. The terms of the plea and of the

terms of probation, and Respondent’s agreement with those terms , are

admissible and persuasive evidence that the crime to which Respo ndent pled

nolo contendere is one that supports a finding that R espondent poses a sexual

threat to children.

19 . Dr. Aeh testified that opticians operate from a position of trust, and

that there is an expectation of professionalism and good judgment on the part

of persons holding a license to practice opticianry . As stipulated by the

parties, opticianry requires interacting with children built on trust and

maintaining social boundaries. Upon h er review of the police reports and

court documents related to Re spondent’s crime, Dr. Aeh opined that the acts

described therein evince an erosion of the interests of trust and safety

between the healthcare provider and the patient . Although she did not state

that Aggravated Assault , per se, affect s the ability to prac tice opticianry,

when coupled with the evidence that the crime was a direct offshoot of child pornography, she had no hesitation in opining that Respondent’s crime did

affect the ability to practice opticianry .

20 . Under the specific facts of this case, in cluding the circuit court’s

minutes demonstrating that the judgment of Aggravated Assault and the

conditions of probation related to the charge of Possession of Material

Depicting Sexual Conduct by Child , t he evidence clearly and convincingly

demonstrates that Respondent’s plea of nolo contendere to Aggravated

Assault relates to his ability to practice o pticianry .

C ONCLUSIONS O F L AW

A. Jurisdiction

21 . The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of th is proceeding . §§ 4 56.073 ( 5 ), 120. 569 , and

120.57(1) , Fl a. Stat. (201 6 ) .

22 . The Department of Health, Board of Opticianry, is the state agency

charged with regulating the practice of o pticianry in the state of Florida,

pursuant to section 20.43, and chap ters 456 and 484, Florida Statutes. The

Department has authority to investigate and file administrative complaints

charging violations of the laws governing opticians . § 456.073, Fla. Stat.

B. Standards

23 . Section 4 84.014 (1)( q ) provide s , in pertinent par t, that:

(1) The following acts constitute grounds for denial

of a license or discipli nary action, as specified in

s. 456.072(2) :

* * *

( q ) Being convicted or found guilty of, or entering a

plea of nolo contendere to, regardless of adjudication, in a c ourt of this state or other jurisdiction, a crime which relates to the ability to practice opticianry or to the practice of opticianry.

24 . Section 4 56 . 072 (1)(c) provide s that:

(1) The following acts shall constitute grounds for

which the disciplinary act ions specified in

subsection (2) may be taken:

* * *

(c) Being convicted or found guilty of, or entering a

plea of guilty or nolo contendere to, regardless of

adjudication, a crime in any jurisdiction which

relates to the practice of, or the ability to practice, a

licensee’s profession.

C. Burden and Standard of Proof

25 . The D epartment bears the burden of proving the specific allegations

that support the charges alleged in the Administrative Complaint by clear

and convincing evidence. Dep’t of Banking & Fin., Div. of Sec. & Inv. Prot. v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292 (Fla. 1987); Fox v. Dep't of Health , 994 So. 2d 416 (Fla. 1st DCA 2008);

Pou v. Dep’t of Ins. & Treas. , 707 So. 2d 941 (Fla. 3d DCA 1998).

26 . 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). The clear

and convincing evidence leve l of proof :

[E]ntails both a qualitative and quantitative

standard. The evidence must be credible; the

memories of the witnesses must be clear and

without confusion; and the sum total of the

evidence must be of sufficient weight to convince the trier of f act without hesitancy.

Clear and convincing evidence requires that 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 lack ing 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,

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re

Henson , 913 So. 2d 579, 590 (Fla. 2005). “ Although this standard of proof may

be met where the evidence is in conflict, it se ems to preclude evidence that is

ambiguous. ” Westinghouse Elec tric Corp. v. Shuler Bros. , 590 So. 2d 986, 989

(Fla. 1st DCA 1991).

27 . A proceeding to suspend, revoke, or impose other discipline upon a

license is penal in nature. State ex rel. Vining v. Fl a. Real Estate Comm'n,

281 So. 2d 487, 491 (Fla. 1973). Penal statutes must be construed in terms of

their literal meaning and words used by the Legislature may not be expanded

to broaden the application of such statutes. Thus, the provisions of law upon

w hich this disciplinary action has been brought must be strictly construed,

with any ambiguity construed against Petitioner. Elmariah v. Dep’t of Prof’l

Reg., Bd. of Med. , 574 So. 2d 164, 165 (Fla. 1st DCA 1990); see also Griffis v.

Fi sh & Wildlife Conserv. Comm'n, 57 So. 3d 929, 931 (Fla. 1st DCA 2011);

Beckett v. Dep’t of Fin. Servs., 982 So. 2d 94, 100 (Fla. 1st DCA 2008);

Whitaker v. Dep’t of Ins. & Treas. , 680 So. 2d 528, 531 (Fla. 1st DCA 1996);

Dyer v. Dep’t of Ins. & Treas . , 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).

28 . The allegations of fact set forth in the Administrative Complaint are

the grounds upon which this proceeding is predicated. Trevisani v. Dep’t of

Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); see also Cottrill v. Dep’t of

Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus, the scope of this

proceeding is properly restricted to those ma tters as framed by Petitioner.

M.H. v. Dep’t of Child. & Fam. Servs., 977 So. 2d 755, 763 (Fla. 2d DC A

2008).

D . Case Supplement Report as Evidence

29 . The Case Supplement Report constitute s hearsay. Though hearsay is

admissible in administrative proceedings, it can only be used to explain or

supplement other admissible evidence; a finding of fact cannot be based on

hearsay alone unless that evidence would be admissible in a civil action over

objection. § 120.57(1)(c), Fla. Stat.; Fla. Admin. Code R. 28 - 106.213(3) .

30 . The Case Supplement Report, and the circumstances under which it

was prepared, was des cribed by its author, Agent Kersey. Under section

90.803(8), records based on “a public official’s first - hand observation of an

event” are admissible. Y israel v. State , 993 So. 2d 952, 959 (Fla. 2008).

Although section 90.803(8) exclud es reports in crimina l cases of matters

observed by law enforcement personnel , this case is not a criminal

proceeding. Thus, the Case Supplement Report, to the extent it reflects Agent

Kersey’s first - hand observations, is admissible as an exception to the hearsay

rule pursuant to section 90.803(8).

31 . Even if the Case Supplement Report did not fall under the exception

in section 90.803(8), it serves to explain and supplement other non - hearsay

evidence. Thus, the report has evidentiary value in this proceeding. The

weight to be given such evidence is left to the undersigned’s discretion.

E . Analysis

32 . The Administrative Complaint alleges that:

Respondent entered a plea of nolo contendere to the

reduced charge of one count of Aggravated Assault, a third - degree felony violation of Section

784.021(1)(a) Florida Statutes (2018) . ... The

conviction stemmed from the investigation by

BCSO and the original charges for Possession/

Viewing Materials Depicting Child Sexual Conduct.

... [and] Aggravated Assault is a crime that relate to t he practice of, or the ability to practice,

Opticianry.

Based thereon, Petitioner alleged that Respondent committed a crime that

“relates to the practice of opticianry ” in violation of section 484.014(1)(q) .

33 . The recorded interview of Respondent in whi ch he admitted, inter alia ,

viewing and masturbating to images of 14 - and 15 - year - old ( and possibly

younger ) girls (a party admission that would be admissible over objection in a

civil action, thus allowing its use in making findings of fact pursuant to se ctions 90.803(18) and 120.57(1)(c)), combined with the observations of

Agent Kersey, described both in his testimony and in the Case Supplement

Report, and the terms and conditions of the plea agreement and probation

are, taken as a whole, clear and convin cing evidence that Respondent

engaged in acts related to the sexual exploitation of children.

34 . As set forth in Doll v. Department of Healt h , 969 So. 2d 1103, 1106

( Fla. 1st DCA 2007):

Several cases demonstrate that, although the

statutory definition of a particular profession does

not specifically refer to acts involved in the crime

committed, the crime may nevertheless relate to

the profession. In Greenwald v. Department of

Professional Regulatio n , the court affirmed the

revocation of a medical doctor's license after the

doctor was convicted of solicitation to commit first -

degree murder. 501 So. 2d 740 (Fla. 3d DCA 1987).

The Fifth District Court of Appeal has held that although an accountant's fraudulent acts involving

gambling did not relate to his tec hnical ability to

practice public accounting, the acts did justify revocation of the accountant's license for being

convicted of a crime that directly relates to the

practice of public accounting. Ashe v. Dep't of Prof'l

Regulation, Bd. of Accountancy , 467 So. 2d 814

(Fla. 5th DCA 1985). We held in Rush v.

Department of Professional Regulation, Board of Podiatr y , that a conviction for conspiracy to import

marijuana is directly related to the practice or ability to practice podiatry. 448 So. 2d 26 (Fla. 1st

DCA 1984). These cases demonstrate, in our view,

that appellee did not err by concluding

[Respondent’s] conviction was “ related to ” the

practice of chiropractic medicine or the ability to practice chiropractic medicine.

35 . Respondent now disclaims commis sion of the acts leading to his plea

and judgment, going so far as to argue that he did not commit the acts

necessary to sustain the charge to which he pled. However, the decision of the circuit court to accept the plea to Aggravated Assault as a reduced c harge to

Possession of Material Depicting Sexual Conduct by Child, and imposing

conditions of probation suitable to a sex offender, including restrictions on being near children, is sufficient to demonstrate that Aggravated Assault ,

under the facts of this case, is a crime that relate s to the practice of, or the

ability to practice, o pticianry , especially since, as stipulated by Respondent,

“[t] he ability to practice or the practice of opticianry requires interacting with

children built on trust and maintai ning social boundaries .”

F . Penalty

36 . Pursuant to section 456.072(2), the Board of Opticianry may impose

one or more of the following penalties: suspension or permanent revocation of

a license; restriction of practice of license; imposition of an admin istrative

fine; issuance of a reprimand or letter of concern; placement of the licensee on probation for a period of time; corrective action; and remedial education.

37 . Florida Administrative Code Rule 64B 12 - 8. 020 establishes the range

of penalties agains t an existing l icense for a first offense of section

484.014(1)(q) as being “[f] rom reprimand to suspension of the license, and an

administrative fine ranging from $500.00 to $750.00, or refusal to certify an

application for licensure. ”

38 . Rule 64B 12 - 8 . 02 0(6) establishes the following aggravating and

mitigating circumstances for consideration when deviation from the penalties

established by rule is necessary :

(a) The danger to the public;

(b) The length of time since the violation;

(c) The number of time s the licensee has been

previously disciplined by the Board;

(d) The length of time licensee has practiced;

(e) The actual damage, physical or otherwise, caused by the violation;

(f) The deterrent effect of the penalty imposed;

(g) The effect of the pe nalty upon the licensee’s

livelihood;

(h) Any effort of rehabilitation by the licensee;

(i) The actual knowledge of the licensee pertaining

to the violation;

(j) Attempts by licensee to correct or stop violation

or refusal by licensee to correct or stop violation;

(k) Related violations against licensee in another state including findings of guilt or innocence, penalties imposed and penalties served;

(l) Actual negligence of the licensee pertaining to

any violation;

(m) Penalties imposed for related of fenses under

subsections (1) and (2), above;

(n) Any other relevant mitigating or aggravating

under the circumstances.

Given the broad penalty range, deviation is not necessary. Furthermore,

there are both aggravating and mitigating circumstances that, t aken as a

whole, balance each other.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Health, Board of Opticianry , enter a

final order :

a) determining that Respondent violated section 484.014(1)(q) ;

b) suspending Respondent’s license for a period of 60 months, to run from

the March 20, 2019 , date of his Order of Probation in C ase No. 05 - 2017 -

CF052816 - A in the 18th Judicial Circuit Court in and for Brevard County,

Florida ;

c) placing R espondent’s license on probation for a period of 60 months , to

commence upon the expiration of the suspension, subject to such conditions

as the Board may specify, including requiring Respondent to submit to

treatment or to work under the supervision of an other optician as authorized

by rule 64B 12 - 8. 020(7)(d); and

d ) imposing an administrative fine of $ 750.00.

D ONE A ND E NTERED this 27th day of October , 20 20 , in Tallahassee, Leon

County, Florida.

E. G ARY E ARLY

Administrative Law Judge

Division of Adminis trative 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

t his 27th day of October , 20 20 .

C O PIES F URNISHED :

Rose L. Garrison, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Douglas D. Marks, Esquire

Douglas D. Marks, P.A.

P ost O ffice Box 33790

Indialantic, Florida 32 903

(eServed)

Alexander Ciupalo, J.D.

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Janet Hartman, Interim Executive Director

Board of Opticianry

Department of Health

4052 Bal d Cypress Way , Bin C - 08

Tallahassee, Florida 32399 - 3257

(eServed)

Louise St. Laurent, General Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

N OTICE O F R IGHT T O S UBMIT E XCEPTIONS

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.