Opinion
No. 72-882.
February 27, 1973.
Petition from the State Board of Dispensing Opticians.
David A. Graves, Coral Gables, for petitioner.
Robert L. Shevin, Atty. Gen., and S. Strom Maxwell, Asst. Atty. Gen., Tallahassee, for respondent.
Before PEARSON, CHARLES CARROLL and HAVERFIELD, JJ.
Petitioner seeks a writ of certiorari to review a ruling of the Florida State Board of Dispensing Opticians finding him guilty of violations of Florida Chapter 484 and Opticians Rules Chapter 21P-1. The basis for the charges arose out of a letter addressed to all members of the United Transportation Union, State of Florida, and signed by one L.C. Rogge. The letter advised the members of a complete optical service, including eye examinations, at a reduced cost to them and their dependents upon presentation of the card attached thereto at any of petitioner's five business addresses printed on the reverse side of the letter. A hearing was held before the Board on February 19, 1972 at which time the Board found petitioner guilty of three out of four counts and suspended his license to practice the trade or occupation of dispensing optician for a period of six months.
"ALL MEMBERS UTU(T)
STATE OF FLORIDA
Attached herewith is a card which provides for a complete optical service at a reduced cost for members and their dependents who present the card at any of the addresses shown thereon. The optical service referred to here means eye examination, glasses fitted, contract lenses, tinted glasses, etc. For those members who do not live near these addresses, further arrangements are in the making for this service to be established in other cities. These arrangements were made through your State Legislative Board (T) for the benefit of our members and their dependents with the understanding that this is a cooperative service without any obligation on the member or the organization.
L.C. Rogge, SLD"
The basic violation of Florida Statutes Chapter 484 and Opticians Rules Chapter 21P-1 appears to be that the petitioner in its communication to the union members advised that complete optical services, including eye examinations, would be furnished. Opticians by statute are restricted from eye examinations as this is a function of an optometrist. See F.S. § 484.02 F.S.A. and Opticians Rules 21P-1.02. Therefore, the communication on its face violated the statute and related rule and petitioner offered little or no testimony at the time of the hearing before the Board on this point.
We feel the Board has abused its discretion in that the six month suspension is not warranted under the circumstances and would result in an undue economic hardship to the petitioner and, therefore, the order of the Board should be modified.
Accordingly, the writ of certiorari is granted and the order is modified to read as follows: the licensee, Donald Juhl as owner and/or officer of Community Optical Service f/k/a Family Optical Service is hereby suspended from the practice of dispensing optician for a period of thirty (30) days from the date of the service of copy of this order.
In all other particulars, the order of the Florida State Board of Dispensing Opticians shall remain in full force and effect.
It is so ordered.