U.S. Shoe Corp., Precisions Lenscrafters Div. v. Department of Professional Regulation, Bd. of Opticianry, 90-1554
| Decision Date | 11 April 1991 |
| Docket Number | No. 90-1554,90-1554 |
| Citation | 16 Fla. L. Weekly 998,578 So.2d 376 |
| Parties | The UNITED STATES SHOE CORPORATION, PRECISIONS LENSCRAFTERS DIVISION; Pearle Vision, Inc.; and Cole Vision Corporation, Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD of OPTICIANRY, Appellee. 578 So.2d 376, 16 Fla. L. Week. 998 |
| Court | Florida District Court of Appeals |
David D. Eastman, Ronald A. Labasky, Patrick J. Phelan of Parker, Skelding, Labasky & Corry, Tallahassee, for appellants.
Robert A. Butterworth, Atty. Gen., Theresa M. Bender, Asst. Atty. Gen., for appellee.
The appellants, corporate entities who operate retail optical establishments and provide opticianry services, filed a Section 120.54(4), Florida Statutes, rule challenge to determine the invalidity of a proposed rule promulgated by the Department of Professional Regulation, Board of Opticianry (Board).
The proposed rule, Rule 21P-16.002(3), Florida Administrative Code, relates to qualifications of sponsors for apprentice opticians. Rule 21P-16.002, FAC, currently states:
21P-16.002 Qualifications of Apprentices and Sponsors. Apprentices and sponsors for apprenticeship programs must meet the following qualifications:
(1) An apprentice must be at least 17 years old at the date of application; must submit a complete application for apprenticeship along with proof of having obtained a qualified sponsor; and must submit the registration fee specified in Rule 21P-11.013.
(2) A sponsor must be an optician, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 21P-10.007 on the premises of any establishment in which apprentices are trained.
The proposed rule makes no changes to paragraphs (1) and (2) but adds a new paragraph which states:
(3) No optician, physician or optometrist may serve as a sponsor unless he actually dispenses eyewear and maintains the required equipment on the same premises where the apprentice works. For example, an optician, physician or optometrist whose premises and equipment are distinct from the intended apprentice's work area cannot serve as a sponsor, even though the optician's, physician's or optometrist's premises are within the same office area or building.
Chapter 484, Florida Statutes (1989), is the controlling statute for the practice of opticianry. According to Section 484.001, the purpose of the statute and the rules implementing the statute is to protect the health, safety, and welfare of the public from the incompetent practice of opticianry. This can be accomplished, according to the legislature, by establishing minimum qualifications for entry into the profession and through swift and effective discipline for those practitioners who violate the law.
At the hearing on the rule challenge, neither party offered live testimony. Instead, depositions of the Board's Executive Director, an optician and former member of the Board, and several managers employed by the appellants were submitted.
The Board's Executive Director testified that the proposed rule was enacted because sponsors were not properly supervising the apprentices. The Director also testified that the Board felt the proposed rule would force the physicians, optometrists, and all opticians to have the proper equipment in order to properly supervise the apprentices. Regarding the proposed requirement that sponsors actually dispense eyewear, the Board's director testified that the Board felt that unless one is actually dispensing eyewear, he is not qualified to train someone else to perform that function.
With regard to the proposed rule's requirement that sponsors maintain the required equipment on the same premises where the apprentice works, the Board's director testified that the provision means a sponsor would be responsible for the upkeep of the equipment used by the apprentice.
The Board's expert witness had a different explanation for the purpose and meaning of the proposed rule. In his view, the effect of the proposed rule was to enable the Board to consistently apply the rules and disciplinary actions instituted thereunder so as to regulate sponsors not directly under the Board's supervision.
As to the proposed rule's requirement of maintaining equipment, the Board's expert stated that it means sponsors would have to make sure the equipment is physically on the premises and have access to it. The expert opined that the apprentice's work area would be where the frames, instruments and equipment are kept. Regarding the proposed rule's requirement that the sponsor's premises and equipment cannot be distinct from the apprentice's work area, the expert stated that the physician, optometrist or optician, in order to serve as a sponsor, would have to perform his or her functions in the apprentice's work area.
The testimony of the appellant's witnesses indicate the work area requirements will result in substantial mandatory modifications to some of the existing retail outlets which provide a variety of optical services. The building modifications would be, at the very least, cost prohibitive and, in some instances, impossible due to existing lease agreements between the corporation and their landlords.
In his findings of fact, the hearing officer noted that the appellants, though not licensed to perform opticianry services, employ opticians and apprentice opticians and have a contractual relationship with licensed optometrists who often act as sponsors.
The hearing officer also noted that the appellants' retail establishments have separate areas for optometry services and dispensing eyewear, and a laboratory for lens preparation which areas are separated by a wall of glass or other solid, opaque substance.
The hearing officer interpreted the requirement that sponsors maintain equipment on the same premises where the apprentice works to mean that a sponsor must own the equipment or otherwise be responsible for the provision of it. The hearing officer acknowledged that the requirement may effectively prohibit opticians and optometrists employed by the appellants from serving as sponsors if those employees do not own or are otherwise not responsible for providing the required equipment on their employer's premises.
The hearing officer also found that the testimony presented by the appellants supports the finding that the proposed rule change shall require at least some alteration of the physical arrangement at some of the appellants' retail establishments if the apprenticeship programs are to be continued in their businesses.
In spite of his findings, the hearing officer concluded that the requirements that a sponsor should actually dispense eyewear, maintain required equipment on the same premises where the apprentice works, and directly supervise the apprentice in the performance of his duties is consistent with and rationally related to the statutory purpose of educating and training an apprentice on some basic level of competence in the practice of opticianry and assuring the protection of public health, safety and welfare. We disagree.
Prior to the proposed rule, Rule 21P-16.002(2), FAC (previously quoted herein), required a sponsor to be a licensed optician, physician, or optometrist, and to be actively engaged in the practice of the qualifying profession. Most importantly, the existing rule also stated that a sponsor must provide the equipment mandated by the rules on the premises of any establishment in which apprentices are trained.
In addition, Rule 21P-16.003(5), FAC, which addressed the apprenticeship requirements and the training program, set out the supervisory duties of sponsors. The rule states that in order for the apprentice to be awarded credit for hours worked under the supervision of the sponsor, the sponsor must be on the premises at all times that opticianry services are performed by an apprentice. Further, the sponsor must personally inspect and approve any work produced by an apprentice.
It is clear that the proposed rule does not resolve the concerns expressed by the Board's director and the expert witness--concerns which ostensibly provided the impetus for the promulgation of the...
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