CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1997 WL 60865
...Turning to the merits, the appellants contend that Rule 59V3.008 constitutes an invalid exercise of delegated legislative authority. We find no basis for reversing the hearing officer's determinations as to each of the arguments asserted by appellants. Appellants first assert that the hearing officer's construction of section 463.014(1)(a) and (b), Florida Statutes, implemented by the Board in Rule 59V-3.008, as prohibiting business associations or affiliations between optometrists and optical corporations is clearly erroneous. We disagree. Section 463.014(1)(a), Florida Statutes (1993), 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, co...
...te. Nothing in this section shall be deemed to prohibit the association of a licensed practitioner with a multidisciplinary group of licensed health care professionals, the primary objective of which is the diagnosis and treatment of the human body. Section 463.014(1)(b), Florida Statutes (1993), provides: *408 No licensed practitioner shall engage in the practice of optometry with any corporation, organization, group, or lay individual....
...onal 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. Contrary to the arguments of appellants, sections
463.014(1)(a) and (1)(b) do not conflict with sections
463.014(1)(c),
484.006(2) and
455.201(4). Section
463.014(1)(c), Florida Statutes (1993), provides: "No rule of the board shall forbid the practice of optometry in or on the premises of a commercial or mercantile establishment." Section
463.014(1)(c) is not inconsistent with sections
463.014(1)(a) and (b). Sections
463.014(1)(a) and (b) prohibit an optometrist from associating with a lay entity in a manner that would allow the lay entity to provide optometric services. Unlike sections
463.014(1)(a) and (b), which address a prohibited relationship, section
463.014(1)(c) concerns a permissible location at which an optometrist can practice....
...Section
484.006(2), Florida Statutes (1993), provides: "No rule or policy of the board shall prohibit any optician from practicing jointly with optometrists or medical doctors licensed in this state." Section
484.006(2) does not conflict with sections
463.014(1)(a) and (b) because chapter 484 concerns the practice of opticianry and chapter 463 concerns the practice of optometry. Under section
463.014(1)(a) and (b), an optometrist cannot form a partnership or professional association with an optician because opticianry is not a licensed health care profession "the primary objective of which is the diagnosis of the human body." See §
484.013(3), Fla. Stat.(1993). Sections
463.014(1)(a) and (b) and section
484.006(2), when read together, mean that, while optometrists cannot form partnerships or professional associations with or be employed by opticians, opticians can be employed by optometrists....
...Finally, section
455.201(4), Florida Statutes (1993), provides in pertinent part: No board, nor the department, shall take any action which tends to create or maintain an economic condition that unreasonably restricts competition, except as specifically provided by law. Sections
463.014(1)(a) and (b) do not conflict with section
455.201(4). As found by the hearing officer, sections
463.014(1)(a) and (b), by expressly restricting the circumstances and business relationships in which an optometrist can practice, are legislatively created restraints of trade that do not violate section
455.201(4). Section
463.014(1) was reenacted in 1991....
...1973); Peninsular Supply Co. v. C.B. Day Realty of Florida, Inc.,
423 So.2d 500, 502 (Fla. 3d DCA 1982). As noted in the hearing officer's findings, the Board for many years before 1991, in rules, declaratory statements and disciplinary proceedings, interpreted sections
463.014(1)(a) and (b) as prohibiting professional associations and affiliations between optometrists and optical corporations....
...en optometrists and lay corporations for the provision of optometric services are unlawful when it reenacted the statute in 1991. Turning to appellants' second argument, we hold that rule 59V3.008 does not *409 enlarge, modify or contravene sections 463.014(1)(a) and (b)....
...The legislature did not intend to address the scope of permissible business relationships an optometrist may have with an unlicensed entity or person in section
463.002(5). Rather, the scope of permissible business relationships an optometrist may have with unlicensed entities and individuals is addressed in section
463.014(1). Rule 59V-3.008 implements section
463.014, not section
463.002....
...y and capricious, we find this argument waived for appeal because the appellants withdrew their challenge to rule 59V3.008 on that ground prior to hearing. Appellants next argue that paragraph (15) of rule 59V-3.008 enlarges, modifies or contravenes section
463.014 because that statute does not impose a prohibition on "association or affiliation" with corporate entities. This argument is without merit because section
463.014(1)(b), Florida Statutes (1993), specifically provides: "No licensed practitioner shall engage in the practice of optometry with any corporation, organization, group, or lay individual." The hearing officer rejected as not supported by the evidence the argument that the effect of rule 59V-3.008 is to impose broad restrictions on the business practices and personal conduct of optometrists practicing in commercial establishments. Appellants' argument that section
463.014 prohibits only the direct employment of an optometrist by a commercial establishment is without merit. Section
463.014(1)(a), Florida Statutes (1993), 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 or inducement, of any person licensed to practice optometry in this state." Section
463.014(1)(b), Florida Statutes (1993), provides: "No licensed practitioner shall engage in the practice of optometry with any corporation, organization, group, or lay individual." As argued by the Board, if the legislature had intended only to restrict the employment of an optometrist by a commercial establishment, it could have done so. Appellants rely on S.S. Hollender, Inc. v. Morqus,
156 Fla. 173,
23 So.2d 89 (1945), in support of their argument that section
463.014 only prohibits an optometrist from being directly employed by an optical corporation....
...of an optometrist's practice. Chapter 463 contains various provisions that regulate the "business" aspect of an optometrist's practice. See e.g., §
463.005(1)(d), (e), Fla. Stat. (1993); §
463.009, Fla. Stat. (1993); §
463.011, Fla. Stat. (1993); §
463.014(1)(d), (e), Fla....
...irements of the similar existing rule. Finally, paragraph (15) of rule 59V-3.008 establishes adequate standards to assist optometrists in determining whether they are engaged in a business relationship with a commercial establishment in violation of section 463.014(1)....
...th the hearing officer that paragraph (15) "merely spells out the criteria or factors the Board considers relevant in interpreting whether an optometrist's professional judgment is free from any compromising control, as required by the provisions of Section 463.014, Florida Statutes." Turning to the fifth argument, the hearing officer correctly determined that paragraphs (10)(i) and (15)(a), (e) and (f) of Rule 59V-3.008 do not unlawfully restrict commercial free speech in violation of the First Amendment....
...at 2351,
65 L.Ed.2d at 351. In the present case, the hearing officer determined that the petitioners had not satisfied the first prong of the Central Hudson analysis because the activities and relationships they sought to protect were not shown to be lawful under sections
463.014(1)(a) and (b)....
...The hearing officer determined that, even if the speech was protected, the board clearly demonstrated a substantial interest in restricting or regulating it. The hearing officer concluded: 147.... While the practice of optometry on a mercantile establishment is authorized by Section 463.014(1)(c), Florida Statutes, subparagraphs (a) and (b) of that section also proscribe the lay practice of optometry and the association of licensed optometrists with unlicensed entities....
...unreasonably restricts competition, except as specifically provided by law." (Emphasis added.) The hearing officer properly determined that "Chapter 463, Florida Statutes, by limiting the practice of optometry to licensed persons and, in particular, Section 463.014(1)(a) and (b), Florida Statutes, by expressly restricting the circumstances and business relationships in which an optometrist can practice optometry, are provisions which amount to legislatively-created and sanctioned restraints of t...
