94-006366 Board Of Optometry vs. Brian Lloyd Weber Status: Closed Recommended Order on Monday, November 3, 1997.

Summary: Evidence does not show improper practice but does establish one improper advertisement which supports only minimal penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 94-6366

)

BRIAN LLOYD WEBER, O.D., )

)

Respondent . )

___________________________________ )

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida, on

September 23, 1997, before Arnold H. Pollock, an Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alexandria E. Walters, Esquire

William C. Childers, Esqui re

Agency for Health Care

Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Angela T. Hall, Esquire

Department of Health

1317 Winewood Boulevard

Building 6

Tallahassee, Florida 32399-0700

For Respondent: Grover Freeman, Esquire

201 East Kennedy Boulevard

Suite 1950

Tampa, Florida 33602

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether

Respondent's license as an optometrist in Florida should be

disciplined because of the matters alleged in the Administrative

Complaint filed herein.

PRELIMINARY MATTERS

By a three-count Administrative Complaint dated February 8,

1992, Nancy Snurkowski, then chief attorney for the Florida

Department of Professional Regulation, on behalf of the Board of

Optometry, charged Respondent, Brian L. Weber, O.D., with

multiple violations of Sections 463.014(1) and 463.016(1),

Florida Statutes, by engaging in the practice of optometry with a

corporation comprised of individuals other than licensed

optometrists; by entering into a corporate arrangement which

permitted an unlicensed person or entity to practice optometry

through the Respondent; and by holding himself out to the public

as available to render professional services in a manner which

implies he is professionally associated with an entity which

itself is not a licensed practitioner. Respondent requested

formal hearing on the allegations, and after a series of delays,

some at the behest of Petitioner and some at the behest of

Respondent, this hearing ensued. In the interim, the Board of

Optometry was transferred from the Department of Business and

Professional Regulation to the Agency for Health Care

Administration, and then to the Department of Health. The

prosecution of allegations of misconduct of regulated health care

professionals, however, remains the responsibility of the Agency

for Health Care Administration.

At the hearing, Petitioner presented the testimony of

Anthony D. Record, a licensed optician, and president of 29/49

Optical, Inc., the organization with which Respondent is alleged

to have practiced inappropriately; Drs. Richard Ingrahm and

Andrew Walkowiak, licensed optometrists and associates of

Respondent in Brian L. Weber and Associates; the Respondent and

Dr. Peter D. Liane, a licensed optometrist and expert in the

field of optometry. Petitioner also introduced Petitioner's

Exhibits 1 through 4, 6 and 8. Petitioner's Exhibit 5 for

Identification was withdrawn, and Petitioner's Exhibit 7 for

Identification was not admitted. The latter is appended to the

record as a proffer of evidence, however.

Respondent also testified in his own behalf and introduced

Respondent's Exhibits A through F.

A transcript of these proceedings was provided, and

subsequent to the receipt thereof, counsel for both parties

submitted written argument and other proper matters which were

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the

Petitioner, Board of Optometry, was responsible for the licensing

of optometrists and the regulation of the practice of optometry

in this state. Respondent was licensed as an optometrist in

Florida, practicing under license number OP0001451, originally

issued on September 21, 1978.

2. Some time prior to or during 1987, Respondent, Dr. Brian

L. Weber, dissatisfied with what he found to be the practice of

large optical dispensers with regard to pressuring optometrists

to prescribe lenses, decided to open a facility where patients

needing glasses could receive an eye examination from a licensed

optometrist and also, if the patient so desired, obtain the eye

wear prescribed. Consistent with what he perceived to be the

rules of the Board of Optometry at that time, Dr. Weber entered

into a business venture with Mr. Record, a licensed optician,

through which a patient could do just that.

3. In 1990, Dr. Weber and Mr. Record changed the name of

the business to 29/49 Optical, Inc., and as of March 2, 1990,

operated five separate stores under that name. Dr. Weber and

Mr. Record incorporated the company within which each ultimately

owned 50 percent of the stock of the corporation. Dr. Weber

provided the funds to start the business, and Mr. Record, the

"sweat equity." Mr. Record was made president of the company

because he had the experience in opticianry and was responsible

for operations. Weber was the "money man," and provided the

overall business goals and strategy. Once the corporation was

established and the initial filing was completed, Mr. Record was

responsible for recurring filings as a matter of course.

4. The firm, 29/49 Optical, Inc., was in the business of

providing optician services. The leases for the stores were

taken out in the name of the company which, in essence, provided

a "turn-key" office to a licensed optometrist who was one of

those individuals associated with Respondent in the optometry

practice known as Brian L. Weber and Associates. Each of the

optometrists in the association was an independent contractor,

associated in practice with Respondent. None of them were

employees of 29/49 Optical, Inc.

5. In each of the offices of 29/49 Optical, Inc., was a

display area where glass frames were displayed and fitted, a

waiting room used both by customers of the optical shop and

patients of the resident optometrist, a storage room, and, for

the exclusive use of an optometrist, an examining room equipped

with those items and supplies necessary for the accomplishment of

eye examinations. As was the custom in the profession at the

time, this office, owned or leased by 29/49 Optical, Inc., was

furnished to the optometrist at little or no cost. Though it was

hoped that the optometry patients would choose to have their

prescriptions for glasses or contact lenses filled at 29/49

Optical, Inc., they were under no obligation to do so, and many

did not.

6. Patients seen by an optometrist in the 29/49 Optical,

Inc. offices were billed by the optometrist for the optometry

services and by the optical company for the cost of any glasses

or contact lenses purchased. The two charges were paid

separately, the payments placed in separate accounts. Payments

for eye examinations by an optometrist were deposited to the

account of Brian L. Weber, optometrist. Payments for glasses or

lenses were deposited to the accounts of 29/49 Optical, Inc. The

funds were neither mixed nor co-mingled, and funds placed in the

account of Brian L. Weber were not used to pay the expenses of

the 29/49 Optical, Inc. stores. Each optometrist maintained his

or her own patient records which were stored in a filing cabinet

maintained for that purpose separate and apart from the files

relating to the operation of the 29/49 Optical, Inc. stores.

Only the optometrists made entries to those records.

7. Since the optometrists who manned the offices in the

29/49 Optical, Inc., stores were independent contractors, within

basic guidelines as to routine procedures and office hours, they

were free to work such hours as they chose and to charge what

they believed to be appropriate fees for other than routine

procedures. They were paid with funds drawn from the account of

Brian L. Weber, into which the patient fees for optometry

services were deposited. In addition to the associates who

practiced at the individual shops, Dr. Weber also practiced at

each and all of the shops periodically. Mr. Record was paid from

the checking account maintained by 29/49 Optical, Inc., on which

account either Record or the Respondent could write checks.

8. Dr. Weber is quick to admit that the advertisement for

29/49 Optical, Inc., which appeared in the March 1, 1990, edition

of the St. Petersburg Times is a poorly worded advertisement. So

much of the advertisement which implies a total price to be paid

to 29/49 which includes examination and glasses is admittedly

inappropriate, and when he saw the proof prior to publication, he

claims to have made appropriate changes which would have

corrected the deficiencies. However, the corrections dictated by

Respondent were not made, and the inappropriate advertisement was

published. His immediate complaint to the newspaper after the

first publication date resulted in an immediate correction.

9. Respondent claims that when the disciplinary action was

initiated against him in 1992, he immediately contacted the

newspaper and requested a letter which would clarify the

situation. He did not tell the paper what to say, and the

subsequent letter from the paper relates to a failure to have his

name appear in the March 1, 1990, advertisement. This is not the

defect in the advertisement of which the Board complains.

10. Dr. Liane, a Board certified optometric physician, a

former Chairman of the Board of Optometry and now an expert for

and consultant to the Board, reviewed the case file in this

matter for the Board, along with the transcripts of other cases

relating to Dr. Weber. None of the other matters was based on

disciplinary action. To his recollection, the Board's rule on

corporate practice was promulgated in 1986, at the time he was a

member of the Board. At that time, the Board conducted numerous

workshops around the state to advice practitioners of the

standard of practice in that regard. Dr. Liane was also on the

Board's legislative committee when Chapter 463, Florida Statutes,

was enacted.

11. The Board of Optometry was concerned with the

protection of the public from the danger of allowing opticians or

unlicensed entities to have input into whether lenses were

needed. The Board, and the legislature, wanted to allow

optometrists to practice with other licensed health care

practitioners, but not with unlicensed opticians. After the

legislation was passed, the Board promulgated its Rule 21O-3.008,

which outlines factors which must be shown in order to prove

corporate practice.

12. One of the prohibitions in the rule relates to any

practice or pronouncement which "implies" that the corporate or

unlicensed entity is providing professional services. In the

instant case, Dr. Liane is of the opinion that the original

advertisement in question implies that 29/49 Optical, Inc., is

offering a complete eye examination. As was noted previously,

Respondent agrees, and it is so found.

13. Having considered all the evidence available to him,

including the advertisement of March 2, 1990, and the assumption

of the lease arrangements existing prior and up to 1990, Dr.

Liane concluded that Respondent was involved in an unauthorized

corporate practice. While a side-by side practice between

optometrists and opticians is common and approved, it may not be

within a corporate practice by the same individuals who are in

business together.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. Section 120.57(1), Florida Statutes.

15. Petitioner seeks to discipline Respondent’s license

based on its allegations that Respondent violated the provisions

of Section 463.014(1), Florida Statutes, by (1) engaging in the

practice of optometry with a corporation comprised of individuals

other than licensed optometrists; and (2) entering into a

corporate agreement which permitted an unlicensed person or

entity to practice optometry through the Respondent. The Board

also alleges that Respondent violated Rule 21Q-3.009(2)(a),

Florida Administrative Code by holding himself out to the public,

(through advertisement), as available to render professional

services with an entity which itself is not a licensed

practitioner.

16. Section 463.016(1), authorizes the Board of Optometry to

discipline a license for “a violation or repeated violations of

the provisions of this chapter, or of chapter 455, and any rules

promulgated pursuant thereto.” Section 463.014(1)(b), Florida

Statutes, provides:

(b) No licensed practitioner shall engage in

the practice of optometry with any

corporation, organization group, or lay

individual. This provision shall not

prohibit licensed practitioners from

employing, or from forming partnerships or

professional associations with, licensed

practitioners licensed in this state or with

other licensed health care professionals, the

primary objective of whom is the diagnosis

and treatment of the human body.

17. Rule 21Q-3.008(1), Florida Administrative Code

provides:

No corporation, lay body, organization, or

individual other than a licensed practitioner

shall engage in the practice of optometry

through the means of engaging the services,

upon a salary, commission, or other means of

inducement, of any person licensed to

practice optometry in this state. For

purposes of this rule, the phrase, “other

means of inducement” shall include, but not

be limited to, the provision of equipment or

leased space to a licensed practitioner, if

the provision of such leased space or

equipment is dependent upon the licensed

practitioner’s agreement to any conditions

relative to the practice of optometry. Such

conditions shall include, but not be limited

to, the establishment of fee schedules for

optometric services and materials, or the

establishment of time limitations on patient

examinations or any limitations on the type

of optometric services or ophthalmic

materials available, prescribed or dispensed.

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 shall be

exercised solely for the benefit of his

patients and free from any compromising

influences and loyalties.

18. Rule 21Q-3.009(2)(a) provides that 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, inter alia , contains a misrepresentation of

facts.

19. The burden in this case rests with the Board to

establish Respondent’s guilt of the matters alleged by clear and

convincing evidence. Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987).

20. The Board contends that because Respondent is a 50

percent owner of 29/49, and because, through Brian L. Weber and

Associates, he practices optometry at retail outlets operated by

the corporation, he is in violation of the provisions of the

cited statute and Rule 21Q-3.008(1). The evidence of record to

establish that position, however, is neither clear nor

convincing.

21. The evidence presented by the parties, taken in its

entirety, demonstrates that Respondent practices optometry

through Brian L. Weber and Associates, a group practice comprised

solely of licensed optometrists. Brian L. Weber and Associates

conducts the physical practice in facilities owned by 29/49, a

corporation which is half-owned by Mr. Record, an optician. The

evidence of record also shows, however, that the optometric

practice in each 29/49 facility is kept separate and apart from

the operation of 29/49. Patient records are kept separately;

services are billed separately and aside from the fact that the

two entities share a waiting room, there is no inappropriate

connection between the two. No evidence was presented to

establish that personnel from 29/49 were permitted to engage or

participate in an optometric practice, or that optometry patients

were obligated to purchase their eye wear from 29/49.

22. The evidence doe s show, however, and Respondent admits,

that the advertisement complained of, placed in the St.

Petersburg paper by 29/49, which refers or implies a single price

for examination and eye wear, was inappropriate. It appeared

only once, and the evidence is clear that when Respondent learned

of it he had it withdrawn immediately. Nonetheless, the

inappropriate advertisement was published and constitutes a

violation of Rule 21Q-3.009(2)(a). A violation of a Department

rule constitutes a violation of Section 436.016(1)(h), Florida

Statutes.

23. Petitioner seeks to impose an administrative fine of

$3,000 fine, to reprimand Respondent’s license, to suspend his

license for six months and to place his license on probation for

one year under such terms and conditions as the Board deems

appropriate. Had Respondent been shown to be guilty of all

offenses alleged, with clear evidence of aggravation

demonstrated, such a severe penalty might be appropriate. This

is not the case here, however. The only misconduct by Respondent

proven in this case is his advertisement, defined by Rule 21Q-

15.002(2) as a “Major Administrative Violation,” and even there,

no aggravating circumstances were shown to exist. In fact, as

soon as the inappropriate advertisement appeared one time,

Respondent had it cancelled, a task which he had unsuccessfully

attempted upon review before the advertisement was published.

24. Under the provision of the rules dealing with quantum

of punishment, 21Q-15.002 and 21Q-15.003, a major administrative

violation may result in the imposition of a reprimand and an

administrative fine of $3,000. In light of the fact that the

offense proven deals with an advertisement and not inappropriate

practice; in light of the fact that the evidence shows Respondent

tried to prevent its appearance when he reviewed it prior to

publication; and in light of the fact that Respondent had the

offending advertisement removed after only one appearance,

clearly the imposition of the maximum penalty is not appropriate

here.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Board of Optometry enter a Final

Order dismissing Counts I and II of the Administrative Complaint;

finding him guilty of Count III thereof and imposing an

administrative fine of $250.00.

DONE AND ENTERED this 3rd day of November, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of November, 1997.

COPIES FURNISHED:

Alexandria E. Walters, Esquire

William C. Childers, Esquire

Agency for Health Care

Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Angela T. Hall

Agency Clerk

Department of Health

1317 Winewood Boulevard

Building 6

Tallahassee, Florida 32399-0700

Grover Freeman, Esquire

201 East Kennedy Boulevard

Suite 1950

Tampa, Florida 33602

Eric G. Walker

Executive Director

Board of Optometry

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Pete Peterson

General Counsel

Department of Health

1317 Winewood Boulevard

Building 6, Room 102-E

Tallahassee, Florida 32399-0700

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.