retains for himself the difference between that amount and the consumer price. You have described a variant whereby the doctor would keep a case of sample frames in his professional office from which the patient would make his selection, with the doctor then quoting to the patient the consumer price. It is our opinion that the basic "charge and send" plan is prohibited under the optical rebating judgments. The same is true as to the variations which you describe, and those variations similar thereto, such as the "C. O. D. charge and send." Each of these procedures constitutes a plan, arrangement, or scheme whereby the doctor obtains a financial return arising out of or connected with dispensing to his patient, with the doctor performing no real function in the dispensing procedure other than collecting the consumer price. The procedures accomplish by indirection, and by a complex and artificial procedure, what was done directly and simply under the old rebate system. The procedures therefore come under the prohibition of the final judgments in this and the related optical rebating cases. Sincerely yours, H. G. Morison Assistant Attorney General Promulgated by the Federal Trade Commission June 30, 1962. Jouph w thea Joseph W. Shea, Secretary. QUOTATIONS FROM VARIOUS STATE SUPREME COURT OPINIONS RESPECTING VALIDITY OF PROVISIONS OF OPTOMETRY LAWS IN THOSE STATES (Submitted by Charles M. Babb, Esq., Texas Optometric Association) ARIZONA Dentistry and optometry both belong to the healing arts, and the reason for regulating one is equally applicable to the other. The following observations might as well have been made of optometry: "*** Dentistry is a profession having to do with public health, and so is subject to regulation by the State ***.” Funk Jewelry Co. v. State, 50 pp. 2d 945 (Ariz. 1935). ARKANSAS There can be little doubt that the general assembly had power to declare optometry a learned profession, and this it has done on two occassions * * *. ***What the measure prohibit is employment of an optometrist by one who is not licensed. In other words, a layman may not engage in the profession by employing a licensed optometrist. Melton v. Carter, 164 S. W. 2d 453, 455, 457 (Ark. 1942). CALIFORNIA The error of petitioner herein is that he considers and refers to the science of optometry as the "business" of optometry, and that the license fee of $12 is imposed as a tax for revenue purposes, and that such license fee, being imposed upon a business is limited to the amount necessary for licensing, including reasonable compensation for supervision over the particular industry There can be no question but that the practice of optometry is more than a business: It is a profession relating to the public health, and as such, is particularly subject to State control. The regulation of such activity is not for the benefit of the licensee but for the protection of the State ***. The right to practice a learned profession comes from the State and is held subject to conditions implied by the State and may be taken away for noncompliance with such conditions. Pennington v. Bonelli, 59 P. 2d 448 (Calif. 1938). CONNECTICUT * * * the patient who resorts to an optometrist for advice and help is entitled to the same undivided loyalty that he should receive from a physician. Lieberman v. Board of Examiners in Optometry, 130 Conn. 344, 349 (1943). FLORIDA The Florida board promulgated rules limiting the size and number of signs, prohibiting the display of eyeglasses or eye signs; prescribing the contents of a professional card; prohibiting display advertising or window displays, etc. In upholding the board's rules, the Supreme Court of Florida said that the power to make rules and regulations not inconsistent with the provisions of the law governing the practice of optometry "involves a very broad discretion. Each and every one of the rules complained of has been examined; and while some of them may be said to explain, expand or expound the statute, we cannot say that they are not contemplated by it or comprehended in the power conferred." It is *** our view that the rules *** are within the express or implied authority of the board * * * and that they are not only valid but necessary to effectuate the full intent and purpose of the law. Fisher v. Schumacher, 72 So. 2d 804 (Fla. 1954). GEORGIA The only questions the writs of error present for decision are whether or not the corporate defendant is unlawfully practicing the profession of optometry by employing and paying the defendant Gold, a licensed optometrist, to examine eyes of persons for it when no charge is made to such persons for the service he renders them and whether or not the defendant Gold is violating the rules and regulations which the board of examiners in optometry adopted pursuant to an act which was passed in 1963 (Ga. L. 1963, p. 214) by accepting employment from the corporate defendant to render such optometric services for it.. These two questions are fully answered in the affirmative by the unanimous decision which this court rendered on October 10, 1963, in Pearle Optical of Monroeville, Inc. v. State Board of Examiners in Optometry, 219 Ga. 364 (133 SE 2d 374), and since the opinion in that case so exhaustively deals with and settles the questions presently before us for review adversely to the contentions of the plaintiffs in error, no further discussion of them is here deemed necessary and the motion to overrule that case, after being fully considered, is denied. A ruling different from the one here made is not required by the decision this court rendered on December 4, 1936, in Georgia State Board of Examiners in Optometry v. Friedmans' Jewelers, 183 Ga. 669 (189 SE 238), and this is true for the reason that the law respecting optometry has been materially changed since that case was decided and optometry is now by statute expressly declared to be a learned profession and not merely a mechanical art as it was classified and deemed to be when Friedmans' case was decided. See Georgia Laws 1956, page 94, as amended by Georgia Laws 1963, page 214. Lee Optical of Georgia Înc. v. Georgia State Board of Examiners in Optometry, 138 SE 2d 165 (Ga. 1965). ILLINOIS There is no argument but what the practice of optometry has an effect on the public health and welfare sufficient to justify that practitioners be licensed, and from such fact we believe it is reasonable for the legislature to prescribe the use of the license which they have suffered a registrant to receive. While at first blush it would seem that sections 13 (k), (1), and (m) appear to be an arbitrary interference with the right of one to practice optometry, such thoughts are dispelled when the relative aspects of public health and welfare are considered. *** the legislature is not dealing with traders in commodities but with the vital interest of public health in the treatment of bodily ill In addition, the community is concerned in providing safeguards not only against deception, but against practices which tend to demoralize the business or profession by forcing its members into unseeming rivalry, and which would tend to enlarge the opportunities of the least scrupulous. Klein v. Department of Registration and Education, 105 N.E. 2d 758 (Ill. 1952). INDIANA The practice of optometry bears a close relationship to the health and welfare of mankind. The eye is a delicate organ closely connected with intellectual, nervous, and physical functions. This fact brings the practice of optometry within the scope of legislative supervision through the exercise of the police power. The principal purpose of the statute is to give protection to the public from quacks, and persons or firms, not licensed, but who, as nonresident manufacturers of eyeglasses, etc., employ licensed optometrists to conduct the manufacturer's business in this State for profit. Bennett v. Indiana State Board of Optometry, 7 N.E. 2d 977 (Ind. 1937). IOWA We might suggest that there is no difference, under our code, in the law applicable to the practice of dentistry and optometry, and that the general rules laid down by the courts are alike applicable to these as well as all other of the learned professions. State v. Kindy Optical Co., 216 Iowa 1157, 248 N.W. 332 (1933). KANSAS Defendant carried on an extensive advertising campaign in the local newspapers. There were usually rather large display ads. They would devote considerable space to the jewelry business of defendant but always a portion would be devoted to the optical business. In practically every authority we have examined on the question the courts have been compelled to examine and consider a course of dealing such as we have here. They have universally held that a lease arrangement such as these parties entered into is a subterfuge. State v. Zale Jewelry Company, 298 P. 2d 283 (Kan. 1956). KENTUCKY Our statutes, therefore, place the practice of optometry upon a rather high professional plane. Kendall v. Beiling, 295 Ky. 782, S.W.2d 489 (1943). LOUISIANA These courts (in other States) have decided that the statutes are a reasonable exercise of the police power; they prevent "bait advertising" which attracts the unwary to purchase inferior glasses; eliminate the temptation to, and the pressure upon, customers that result from the assurance that no more than a named price will be charged; protect an incautious and unwary public from being misled and deceived; prevent the increase in sales and the incidental harm that come from unfitted glasses; eliminate to some extent poor quality and poor workmanship which naturally result from the desire to sell spectacles in quantity at a low advertised price for the purpose of underselling competitors. State v. Rones, 67 So.2d 99 (La. 1953). MASSACHUSETTS In recent times abnormalities of the eye, like those of the teeth, have been found sometimes to indicate and often to result in serious impairment of the general health. The work of an optometrist approaches, though it may not quite reach, ophthalmology. The learning and the ethical standards required for that work, and the trust and confidence reposed in optometrists by those who employ them, cannot be dismissed as negligible or as not transcending the requirements of an ordinary trade. We cannot pronounce arbitrary or irrational the placing of optometry upon a professional basis, McMurdo v. Getter, 10 N.E. 2d 139 (Mass. 1937). MICHIGAN It overlooks the fact that optometry has become a real science devoted to the measurement, accommodation, and refractory powers of the eye without the use of drugs, thus superseding obsolete and archaic methods of fitting glasses. It has become one of the important professions, and for the preparation of its proper practice courses in optometry, physics, physiology, pathological conditions of the eye, the proper use of the retinascope, refractor, prisms, lenses, and so forth, are given as part of the curriculum in many of our largest universities as well as colleges specializing in optometry. Seifert v. Buhl Optical Co., 276 Mich. 692, 268 N.W. 784 (1936). MINNESOTA The legislature need not enumerate what specific acts or omissions constitute unprofessional conduct since the phrase "unprofessional conduct" itself provides a guide for, and a limitation upon, the exercise by the board of its power to revoke a practitioner's license ***. The board is thereby empowered to declare as "unprofessional" only such conduct as fails to conform to those standards of professional behavior which are recognized by a consensus of expert opinion as necessary for the public's protection. It follows that the board is not determining when and upon whom the delegated discretionary power is to take effect but is simply ascertaining the existence of a member's acts or omissions which, if they violate the accepted standards of professional behavior, automatically bring the law into operation by its own terms. Reyburn v. Minnesota State Board of Optometry, 78 N.W. 2d 351 (Minn. 1956). MISSISSIPPI The law contemplates that the controlling principle in the use of the State's franchise will be the eye of the patient, and its preservation, and not the eye of the employer in its scrutiny and search for profits. In other words, the conscience of the practitioner should guide him in his service, and not the company's cash register where the sales are rung up. Professional responsibility and the public welfare demand that the human eye above all things, be held sacred, and in no sense an object of commerce in routine traffic of equipment purporting to be for its benefits. It is not thinkable that the State, after a scientific and studied examination of the applicant, would issue him a license, over its great seal, to go out and tamper with the human eye as with a commodity in the marketplace, and the wares which merchants buy. |