82-002193 Board Of Optometry vs. Louis A. Schwartz Status: Closed Recommended Order on Tuesday, March 1, 1983.

Summary: Respondent practiced optometry in Sears store but did not practice under corporate trade name as alleged. Recommend dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF OPTOMETRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2193

)

LOUIS A. SCHWARTZ, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its

undersigned Hearing Officer, William E. Williams, held a final hearing in this

cause on October 20, 1983, in Gainesville, Florida. The issue for determination

at the hearing was whether disciplinary action should be taken against

Respondent's license as an optometrist.

APPEARANCES

For Petitioner: Joseph W. Lawrence, II, Esquire

Department of Professional Regulation

130 North Monroe Street

Tallahassee, Florida 32301

For Respondent: F. Philip Blank, Esquire

Suite 320, Lewis State Bank Building

Tallahassee, Florida 32301

By Administrative Complaint dated July 12, 1982, Respondent was charged

with violating Section 463.014(1)(a) Florida Statutes. Specifically, it was

alleged in the Administrative Complaint that Respondent was practicing optometry

under the trade name "Sears Contact and Lenses Center," at 420 Northwest 23rd

Boulevard, Gainesville, Florida, in violation of the aforementioned statute,

and, as a result, was subject to disciplinary action pursuant to Section

463.016(1)(h) Florida Statutes. No specific dates for the alleged offenses were

set forth in the Administrative Complaint and, as a result, for purposes of this

proceeding it will be assumed that the offenses for which the Respondent is

allegedly chargeable arose prior to July 12, 1982, the date of the

Administrative Complaint.

In support of the allegations of the Administrative Complaint, Petitioner

presented the testimony of Evelyn McNeely, and Petitioner's Exhibits 1 through

11, which were received into evidence. The Respondent testified in his own

behalf, presented the testimony of Eileen Roberts, and offered Respondent's

Exhibits 1 through 5, which were received into evidence.

Both Petitioner and Respondent have submitted proposed findings of fact for

consideration by the Hearing Officer. To the extent that those proposed

findings of fact are not included in this Recommended Order, they have been

specifically rejected as either being irrelevant to the issues involved in this

cause, or as not having been supported by evidence of record.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence produced at

hearing, the following relevant facts are found:

1. At all times pertinent to this proceeding, Respondent was licensed to

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

2. On or about May 8, 1980, Respondent entered into a lease agreement with

Cole National Corporation to lease 154 square feet of space as an optometric

office in the location of the retail store of Sears, Roebuck and Co. at 1420

Northwest 23rd Boulevard, Gainesville, Florida. Respondent practiced in that

location approximately two days per week until on or about October 1, 1982.

3. Respondent's optometric office was located in a Sears, Roebuck retail

store next door to the "Sears Optical Department," in which eyeglasses and

contact lenses and other optical merchandise could be purchased. Respondent's

office was identified by a large sign overhead reading "Optometrist," in the

same print as the sign above the Sears Optical Department. In addition, a small

plaque on the door leading into Respondent's examination room read "Dr. L. A.

Schwartz, Optometrist."

4. During the time he practiced at the 1420 Northwest 23rd Boulevard

location of Sears, appointments could be made with Respondent by calling the

Sears Optical Department telephone number. The phone was answered "Sears

Contact and Lenses Center" by employees of Cole National Corporation, which

controlled and owned the Sears Optical Department. The Cole employees were not

paid for this service by Respondent. Respondent had no telephone listing in

either the yellow or white pages of the Gainesville, Florida, telephone

directory between May, 1980, and July 12, 1982, the date of the Administrative

Complaint. The Cole National Corporation employees maintained Respondent's

scheduling book and made tentative appointments for his prospective patients,

although Respondent customarily would call the patient back to confirm the date

and time of the appointment prior to the time of the scheduled visit.

Respondent's hours of service and fee information were also given to prospective

optometric patients by Cole National personnel.

5. Respondent accepted the Sears, Roebuck and Co. credit card as payment

for optometric services. Sears then billed the patients directly and Respondent

received monies billed to the patients in full through Sears on a monthly basis,

regardless of whether the patient paid the bill fully monthly or carried the

debt over to succeeding months.

6. Respondent, pursuant to his lease with Cole National Corporation, was

precluded from selling optometric supplies to his patients. Rather, Respondent

would in all cases issue prescriptions for optometric goods and supplies, such

as glasses and contact lenses, which in most cases were placed on a prescription

blank bearing his name. At times, however, when Respondent did not have

prescription forms available bearing his own name, he would use such a form from

the Sears Optical Department, crossing out all references to Sears and inserting

his name and address in place of that of Sears Optical Department.

7. On or about February 22, 1982, the Sears Optical Department mailed

letters to various consumers in the Gainesville area. These letters, in part,

advised that Respondent, an independent doctor of optometry, was available for

eye examinations in his private office in the Sears building and that he could

be reached for appointments at a telephone number which was listed in the

telephone directory for Sears Optical Department.

8. The evidence in this cause establishes that Respondent's office

location at all times material hereto was maintained separately from both Sears,

Roebuck and Co. and the Sears Optical Department. In addition, the record in

this cause fails to in any way establish that Respondent ever held himself out

as an employee or representative of either Sears, Roebuck and Co. or the Sears

Optical Department. In fact, the record clearly establishes that both

Respondent and employees of the Sears Optical Department always indicated to the

consuming public that Respondent was an independent optometric practitioner.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction over the

subject matter of and the parties to this proceeding. Section 120.57(1) ,

Florida Statutes.

10. Respondent is charged with violation of Section 463.014(1)(a), Florida

Statutes, which provides as follows:

(1)(a) No optometrist shall

practice or attempt to practice

under a name other than his own or

under the name of a professional

association. No optometrist shall

practice under the name of any

company, corporation, trade name,

business name, or other fictitious

entity.

11. Section 463.014(d), Florida Statutes, provides that:

[n]o rule of the [Board of

Optometry] shall forbid the practice

of optometry in or on the premises

of a commercial or mercantile

establishment.

12. Evidence of record in this proceeding wholly fails to establish that

Respondent in any way violated the provisions of Section 463.014(1)(a), Florida

Statutes. Respondent's office was always clearly marked with his name,

prescription blanks and other stationery always clearly indicated that his

practice was conducted in his own name, and when stationery other than his own

was used it was always altered by deleting the name of "Sears Optical

Department" and substituting the name of the Respondent. As far as can be

determined from this record, when appointments were made with Respondent through

"Sears Optical Department" efforts were always made to advise prospective

patients that Respondent's practice was independent of "Sears Optical

Department" and the prospective patient would be recontacted by Respondent in

order to confirm an appointment.

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

RECOMMENDED that a Final Order be entered by the Department of Professional

Regulation, Board of Optometry, dismissing the Administrative Complaint herein.

DONE AND ENTERED this 1st day of March, 1983, at Tallahassee, Florida.

___________________________________

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of March, 1983.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32301

F. Philip Blank, Esquire

Tucker & Blank, P.A.

320 Lewis State Bank Building

Tallahassee, Florida 32301

Mildred Gardner, Executive Director

Board of Optometry

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32301

Fred M. Roche, Secretary

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF OPTOMETRY

DEPARTMENT OF PROFESSIONAL

REGULATION,

Petitioner,

vs. Case No. 82-2193

LOUIS A SCHWARTZ, O.D.,

Respondent.

________________________________/

FINAL ORDER

This matter came for final action by the Board of Optometry on May 13,

1983, in Orlando, Florida. An administrative hearing held pursuant to the

provisions of Section 120.57(1), F.S., resulted in the issuance of a Recommended

Order (attached hereto as Exhibit A). Petitioner filed Exceptions to said

Order. Both Petitioner and the Respondent appeared before the Board. Following

a review of the complete record in the proceeding, it is ORDERED:

1. The Findings of Fact in the Recommended Order are approved and adopted

and incorporated herein by reference. However the Board also makes the

following additional findings of fact, as suggested in Petitioner's exceptions,

and finds these additional findings of fact to be supported by the record:

a. Paragraph 8 of the Findings of Fact of

the Recommended Order is amended to add the

underscored language:

The evidence in this cause establishes that Respondent's office location at

all times material hereto was maintained separately from both Sears, Roebuck and

Co. and the Sears Optical Department. In addition, the record fails to In any

way establish that Respondent ever directly held himself out as an employee or

representative of either Sears, Roebuck and Co. or the Sears Optical Department.

In fact, the record clearly establishes that both Respondent and employees of

the Sears Optical Department always indicated to the consuming public that

Respondent was an independent optometric practitioner, when asked.

b. The following additional findings of fact

are adopted:

a. The Respondent's optometric practice telephone was answered "Sears Contact

and Lenses Center" a trade name, and Respondent had no telephone listing under

his own name;

b. The practice location was within a Sears, Roebuck retail store with no

designation that he was not associated with or practicing for said

establishment.

c. The Sears Optical Department employees were the ones who arranged during

most hours of operation the appointments for optometric service of the

Respondent.

d. Sears, Roebuck and Co. credit cards were accepted as payment by Respondent

and said company would bill the patient for the optometric services provided by

Respondent, with monthly bills by Sears itself.

e. Prescription forms of Sears Optical Department were utilized at times by

Respondent;

f. Sears, Roebuck and Co. advertised Respondent's availability as an

optometrist to its clientele.

2. The Conclusions of Law set forth in paragraphs 1, 2, and 3 of the

Recommended Order are hereby approved and adopted and incorporated herein by

reference. The Board rejects paragraph 4 of the Conclusions of Law as an

erroneous interpretation of the law, and hereby adopts Petitioner's Exceptions

to said conclusion of law and finds:

Section 463.014(1)(a), Florida Statutes, states:

(1) Except as otherwise provided in this

section:

(a) No optometrist shall practice or

attempt to practice under a name other than

his own or under the name of a professional

association. No optometrist shall practice

under the name of any company, corporation,

trade name, business name, or other fictitious

entity.

The Legislature has expressly observed in Section 463.01, Florida Statutes,

that "it is difficult for the public to make an informed choice when selecting

an optometrist, and that the consequences of a wrong choice could severely

endanger the public health and safety." The public has the right to make a

knowledgeable choice about optometric care, and that the public is entitled to

make this decision in an atmosphere free of deceptive or potentially misleading

practices. See also, Section 463.016(1)(f), Florida Statutes.

Section-463.014(1)(a), Florida Statutes, is consistent with the expression

of legislative intent outlined above. The United States Supreme Court in

upholding the constitutionality of a similar Texas Statute imposing a ban upon

the use of trade names by optometrists pointedly observed:

Here, we are concerned with a form of

commercial speech that has no intrinsic

meaning. A trade name conveys no information

about the price and nature of the services

offered by an optometrist until it acquires

meaning over a period of time by associations

formed in the minds of the public between the

name and some standard of price or quality.

Because these ill-defined associations of

trade names with price and quality information

can be manipulated by the users of trade

names, there is a significant possibility that

trade names will be used to mislead the public.

The possibilities for deception are numerous.

The trade name of an optometrical practice can

remain unchanged despite changes in the staff

of optometrists upon whose skill and care the

public depends when it patronized the practice.

Thus, the public may be attracted by a trade

name that reflects the reputation of an

optometrist no longer associated with the

practice. A trade name frees an optometrist

from dependence on his personal reputation to

attract clients and even allows him to assume

a new trade name if negligence or misconduct

casts a shadow over the old one. By using

different trade names at shops under his

common ownership, an optometrist can give the

public the false impression of competition

among the shops. The use of a trade name also

facilitates the advertising essential to

large-scale commercial practices with numerous

branch offices, conduct the State rationally

may wish to discourage while not prohibiting

commercial optometrical practice altogether.

Friedman v. Rogers, 440 U.S. 1, 12-13 (1979)

See also, Parker v. Board of Dental Examiners, 14 P.2d 67 (Calif. 1932); Texas

State Board of Examiners v. Carp, 412 SW 2d 307 (Texas 1967); State ex rel.

Standard Optical Co. v. Superior Court for Chelan County, 135 P.2d 839 (Wash.

1943). See, e.g., Ritholz v. Commonwealth, 35 S.E. 378 (Mass. 1940); Fisher v.

Schumacher, 72 So.2d 804 (Fla. 1954); and State Board of Optometry v. Gilmore, 3

So.2d 708 (Fla. 1941).

Based upon the factual predicate, it is clear that Respondent has violated

Section 463.014(1)(a), Florida Statutes and as such, Section 463.016(1)(h),

Florida Statutes.

3. The Recommendation in the Recommended Order is rejected as

inappropriate in light of the above findings of fact and conclusions of law.

THEREFORE,

It is order and adjudged that the Respondent be and is hereby officially

reprimanded, and that he pay a Five Hundred Dollar civil penalty.

DONE and ORDERED this 1st day of June , 1983.

______________________________

GEORGE A. PENA, O.D.

Chairman

cc: Joseph W. Lawrence, II, Esquire

F. Philip Blank, Esquire