WILLIAM E. WALKER, O.D., PETITIONER,
v.
FLORIDA STATE BOARD OF OPTOMETRY, RESPONDENT
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An optometrist challenges his suspension by the Florida State Board of Optometry for alleged violations related to his purchase of an adjacent optician's business and delayed removal of advertising. The court quashes the Board's disciplinary decision, finding the evidence insufficient to meet the clear and convincing standard required to deprive a professional of his livelihood.
The court held that the evidence was not clear and convincing because it did not establish that Walker secured an advantage through association with the optician. The evidence affirmatively showed Walker took steps to remove the advertising and names, and the yellow pages advertisement could not have been withdrawn during the relevant period.
[1] Evidence must be clear and convincing to support a finding of unprofessional conduct that results in the deprivation of a professional's livelihood.
[2] A professional's failure to immediately remove an advertisement for a purchased business from a telephone directory, when the directory's publication period has not yet e…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Inasmuch as the gravamen of the offense charged was the securing of an advantage of the association by way of advertising, or other such business methods, with an optician and inasmuch as the offense charged was not simply that of being adjacent to an optician, we hold that the evidence in this case does not meet the requirement that the evidence must be clear and convincing in order to deprive a professional man of his means of livelihood.”
The court's core holding that the evidence must be clear and convincing to justify professional discipline, and that the evidence failed to show Walker obtained any improper advantage.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWalker, an optometrist, purchased an optician's business in an adjacent office. For nearly two months after the purchase, an advertisement for the for…
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[*613] PEARSON, Judge.
William E. Walker, an optometrist, brings this petition to review a decision of the Florida State Board of Optometry which found him guilty upon two counts of a complaint alleging violations of § 463.11 (2)(a), Fla.Stat.1 and the rules of the Board and suspended him from the practice of optometry for one year, placed him on probation for five years and fined him the sum of $500.00. The two rules which Walker was found to have violated are 21q-1.290 and 21q-1.291.2 The evidence before the Board viewed in the light most favorable to its decision was that Walker maintained an office adjacent to that of an optician and that after having purchased the optician’s business, he did not, for a period of nearly two months, have an advertisement removed from the yellow pages of the telephone directory giving the name of the former optician’s office and that he did not secure the removal of the name of the optical business from two office directories posted at the building. The evidence shows affirmatively that the advertisement in the yellow pages could not have been withdrawn inasmuch as the period for the issuance of the telephone directories had not yet expired but that the listed telephone was disconnected and no reference number given. In addition, the evidence affirmatively shows that Walker had requested the building manager to remove the name of the purchased business from the office directory signs and further that Walker himself had physically removed the name of the purchased business from the door of the office.
Inasmuch as the gravamen of the offense charged was the securing of an advantage of the association by way of advertising, or other such business methods, with an optician and inasmuch as the offense charged was not simply that of being adjacent to an optician, we hold that the evidence in this case does not meet the requirement that the evidence must be clear and convincing in order to deprive a professional man of his means of livelihood. See The Florida Bar v. Rayman, Fla.1970, 238 So. 2d 594; see also Zachary v. State, 1907, 53 Fla. 94, 43 So. 925, and State ex rel. The Florida Bar v. Bass, Fla.1958, 106 So. 2d 77.
For the reasons stated, the petition for certiorari is granted and the order of the Florida State Board of Optometry finding petitioner guilty is quashed.
It is so ordered.
. Section 463.11(2) (a), Florida Statutes, provides :
“(2) ‘Unprofessional conduct’ for the purposes of this chapter is defined as any act or conduct that deceives or defrauds the public or any individual and includes, but is not limited to:
“(a) The solicitation of practice by any means or in any manner (Emphasis added)
. Rule 21q-1.290 dealing with “unprofessional conduct” states that “an optometrist shall be guilty of unprofessional conduct if he or she authorizes contracts for displays or contracts for any advertising in violation of the law or these rules.” Rule 21q-1.291 expands the definition of “unprofessional conduct.”
Cases With Similar Vibessemantic neighbors from the corpus
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Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987)…oted: “Until the court decision in Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981), charges to support the revocation of a license had to be proven by clear and convincing evidence. Walker v. Florida State Board of Optometry, 322 So. 2d 612 (Fla. 3d DCA 1975). In a proceeding brought to suspend or revoke a real estate license on charges of dishonest conduct, it was determined that the dishonesty must be proven by clear and convincing evidence. Reid v. Florida Real Estate Commission, 18…
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Ferris v. Austin, 487 So. 2d 1163 (Fla. 5th DCA 1986)…65] 11. Until the court decision in Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981), charges to support the revocation of a license had to be proven by clear and convincing evidence. Walker v. Florida State Board of Optometry, 322 So. 2d 612 (Fla. 3d DCA 1975). In a proceeding brought to suspend or revoke a real estate license on charges of dishonest conduct, it was determined that the dishonesty must be proven by clear and convincing evidence. Reid v. Florida Real Estate Commission, 18…
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Albert Sneij, M.D. v. Dep't of Prof'l Reg., 454 So. 2d 795 (Fla. 3d DCA 1984)…somewhat shaky. No other witnesses testified at the hearing. Plainly, this evidence was woefully insufficient to establish any of the charges against Dr. Sneij, save for the record-keeping violations. See Walker v. Florida State Board of Optometry, 322 So. 2d 612 (Fla. 3d DCA 1975). Beyond that, the law is clear that the Board was not free to reject the hearing examiner’s findings when, as here, these findings were based on competent, substantial evidence. This being so, the Board had no authority, in any e…
Authorities Cited
- THE Florida BAR v. Morey A. Rayman and John H. Duhig, 238 So. 2d 594 (Fla. 1970)
- The State of Fla. ex rel. The Fla. BAR v. Bass, 106 So. 2d 77 (Fla. 1958)
- Zachary v. State, 53 Fla. 94 (Fla. 1907)