or after seeking license by reciprocity was unable to practice because of injury, illness, military service, or other good cause.

The proposed section 6 provides for annual renewal of licenses.

The proposed section 7(a) sets forth some 19 causes for which the Commissioners are authorized to refuse to issue, renew, or restore a license or to suspend or revoke a license. At least one of these is vague and indefinite; i.e., “(19) any other unprofessional conduct." Others of these are questionable with respect to their definiteness or reasonableness, such as the following:

"(8) advertising directly or indirectly the performance of optometric service or any part thereof, including the furnishing of ophthalmic or optical material, in any form, manner, or way, or through any medium whether it be printed, audible, visible, electronic, or in any other fashion, except as authorized by regulations issued under section 10 of this Act;

"(15) holding himself forth by any means or manner of possessing professional superiority or the ability to perform professional services in a superior manner;

"(17) practice optometry in any retail, mercantile, or commercial store, office, or premises, not exclusively devoted to the practice of optometry or other health care professions;

"(18) except as provided in section 9, the practicing of optometry as an employee of and pursuant to any written or oral arrangement with any person other than a duly-licensed optometrist; ***"

With respect to causes for suspension or revocation related to advertising, practicing under a name other than the licensee's own name, practice in stores, display of eyeglasses, and the like, the Commissioners wish to bring to the attention of the committee the decision of the United States Court of Appeals for the District of Columbia in the leading District case of Silver v. Lansburgh & Bro. et al, 72 App. D.C. 77, 111 F. 2d 518 (1940). In this case, involving the practice of optometry in commercial premises by persons affiliated with a corporation, the court said:

"Appellants are licensed and registered optometrists. They brought this suit in behalf of themselves and others similarly situated against appellees, Lansburgh & Bro., a corporation conducting a large department store in Washington City, and Buhl Optical Co., a District corporation organized to operate and own optical and optometrical stores, to restrain them from directly or indirectly engaging in the practice of optometry in the District of Columbia. The right to bring the suit is not challenged. Cf. Ezell v. Ritholz, 188 S.C. 39, 198 S.E. 419, 423, and cases cited there.

"Appellants, in the main, base their claim for injunctive relief upon the ground that optometry is a learned profession, the very nature of which, they say, prohibits the practitioner thereof from any affiliation or connection with a corporation or nonoptometrist. ***

"The [trial] court found that optometry is a mechanical art which requires skill and a knowledge of the use of certain mechanical instruments and appliances designed to measure and record the errors and deviations from the normal found in the human eye, but is not a learned profession comparable to law, medicine, and theology, and that, though certain standards of education are prescribed by the statute and by rules of the board created under it, optometry is not a part of medicine. The court was, therefore, of opinion that neither defendant is engaged in the practice of optometry contrary to the statute. In the recent case of United States v. American Medical Association ((decided March 4, 1940), [72] App. D.C. [12], 110 F. 2d 703), we pointed out that the practice of medicine in the District of Columbia is suject to licensing and regulation, and we stated that, in our opinion, it might not lawfully be subjected to commercialization and exploitation. We cited many authorities holding that a corporation engages unlawfully in the practice of medicine when it employs licensed physicians to treat patients, itself receives the fee, and the profit object is its main purpose, the arrangement being such as to divide the physician's loyalty and destroy the well recognized confidential relation of doctor and patient. This brings us, then, to consider whether this rule applies to the practice of optometry. [Bracketed language added.] "*** Many States have similar or nearly similar statutes, but their courts have disagreed on whether optometry is a learned profession. We have considered the cases, and are of opinion the best considered adopt the view that optometry is not 'one of the learned professions'.

"Optometry is said by a well-known writer on the subject not to be a part of medicine, ‘either by inheritance, basic principles, development or practice.' It is

'an applied arm of optical science resting upon the work and discoveries of physicists and opticians through the ages down to modern times. It does not treat the eye, whether in health or disease, but adapts the light waves which enter the eye, in accordance with optical principles so as to produce focused and single vision with the least abnormal exertion on the part of the eye.' Arrington's History of Optometry, p. 24 (1929).

*

*

*

"*** There is no more reason to prohibit a corporation, organized for the purpose, from employing licensed optometrists, than there is to prohibit similar employment of accountants, architects, or engineers. We know of no instance in which the right in any of those cases has ever been challenged, though universally all are deemed professions.

"We find nothing in the statute to indicate that Congress intended to prohibit corporations from employing licensed optometrists. Its primary purpose was to insure that the service would be rendered by competent and licensed persons and thereby to protect the public from inexpertness. That purpose may be fully accomplished, though the person rendering the service is employed by a corpora

tion.

"We think the lower court was correct in denying injunctive relief, and the decree is, therefore, affirmed with costs.'

In the light of the foregoing, the Commissioners believe that some of the causes for the suspension or revocation of a license, or for which they may refuse to issue, renew, or restore any such license, are not in the best interests of the public.

The proposed section 7(b) sets out procedures for suspension or revocation, while the proposed section 7(c) provides for reinstatement after a year of revocation of a license.

The proposed section 8(a) specifies 10 unlawful practices, including practice without a license; practice under a name which is not the licensee's; fraud in obtaining a diploma, license, or record; holding oneself out to be an optometrist; practice during suspension or revocation; selling glasses or frames without a written prescription from a physician or optometrist licensed in the District of Columbia; advertising the cost of any optometric or ophthalmic material; offering inducements to obtain patronage; splitting prescription fees; hiring an optometrist on salary; displaying a sign offering ophthalmic materials for sale in violation of the regulations adopted by the Commissioners; and not displaying in one's office his license to practice optometry.

With respect to the prohibitions relating to advertising by optometrists, and the hiring of an optometrist by anyone other than another optometrist, the Commissioners are of the view that prohibitions of this nature do not serve the best interests of the general public, and accordingly they recommend their deletion from the bills.

In addition, the Commissioners question the advisability of the provision which prohibits the filling of a prescription for eyeglasses written by a physician or optometrist not licensed in the District of Columbia. This provision might work a hardship on many visitors to the District each year who may break or lose their eyeglasses while here and who would be precluded from having the prescription of their own physician or optometrist filled while they are in the District of Columbia.

The proposed section 8(b) declares violations of the section to be misdemeanors, with a first offense fine of not more than $500, and for second or subsequent offenses, not less than $500 nor more than $1,000, or by imprisonment in the District jail for not less than 3 months nor more than 1 year, or both.

The Commissioners note that these penalty provisions are a restatement of those contained in section 2 of the act. However, if penalty provisions are to be provided in a new section, the Commissioners recommend that the minimum fine or imprisonment provision be omitted as an unreasonable restriction on the discretion of the sentencing judge. Also, an alternative jail sentence to the first offense fine should be provided. Further, the Commissioners believe the bill should not restrict the place of incarceration to the District jail.

The proposed section 9(a) provides that the bill shall not apply to (1) a student of optometry in the clinic rooms of an approved school of optometry; (2) an officer of the armed services in the performance of his military duties; or (3) an individual licensed in another jurisdiction who is in the District to make certain clinical demonstrations.

The proposed section 9(b) exempts from the provisions of the bill physicians and surgeons, while 9(c) exempts those persons filling prescriptions of physicians, surgeons, or optometrists. Such persons are specifically not authorized by this

section to fit contact lenses. In this connection, the Corporation Counsel, by opinion dated October 8, 1946, has construed the present Optometry Act as prohibiting the fitting of contact lenses by anyone but an optometrist or ophthalmologist.

The proposed section 9(d) states that the bill shall not be deemed to prevent such activities as (1) an optometric clinic; (2) an optometrist working for a clinic, hospital, the government, an employer solely for the benefit of his employees, and the like; (3) a widow or widower continuing the practice through a hired optometrist for not more than 1 year; (4) a wife or husband utilizing the services of another optometrist to continue the practice of a temporarily mentally incapacitated optometrist; or (5) a husband or wife utilizing the services of another optometrist to continue the practice of a permanently mentally incapacitated optometrist for a period not exceeding 1 year.

The proposed subsection 9(e) permits the use of the title "doctor" by optometrists, with a qualification indicating he is an optometrist.

The proposed section 10(a) directs the Commissioners to prescribe regulations to implement the bill, including the number, size, location, and illumination of signs offering optometric services or the sale of ophthalmic materials.

The proposed section 10(b) authorizes the Commissioners to set such fees and charges as may be necessary to defray the cost of administering the bill.

The proposed section 10(c) directs the Commissioners to adopt a seal for the authentication of records and papers relating to the licensing and regulation of optometrists.

The proposed section 11 authorizes the Commissioners in their administration of the bill to make inspections, studies, and investigations, to require furnishing of information under oath, and to subpena documents.

The proposed section 12 authorizes the Commissioners to seek injunctions against violations of the bill.

The proposed section 13(a) provides for the prosecution of violations, while the proposed section 13(b) declares that only a single prohibited act may constitute a violation, rather than a general course of conduct.

The proposed section 13(c) declares that testimony of an optometrist shall be received at any trial or hearing in the courts of the District as qualified expert evidence, and certificates of optometrists are to be accepted by courts and by District government officers and employees as qualified evidence in respect to the practice of optometry. The Commissioners question the advisability of affording to optometrists, by legislation, the status of expert witnesses in court proceedings, a status which, in the case of all other occupations and professions, must be established by competent evidence, qualifying a witness as an expert.

The proposed section 14 prohibits officers and employees of the District government from "depriv (ing) any person of his freedom of choice of practitioner with respect to his visual problems." This provision of the bill is intended to prevent school nurses from advising the parents of children with eye problems to seek medical treatment for them. The Commissioners strongly oppose a statutory provision which prohibits any person, including District personnel, from advising anyone to seek medical care.

The proposed section 15 in H. R. 12937 and H.R. 13155 (15(1) in H.R. 13049 and H.R. 13176) authorizes the Commissioners to delegate their functions under the bill to the board of optometry or to any other agency of the District Government.

Section 2 of H. R. 12937 and H.R. 13155 (incorrectly designated as a proposed section 15(2) in H. R. 13049 and H. R. 13176) continues existing licenses in effect. Section 3 of H. R. 12937 and H.R. 13155 (incorrectly designated as a proposed section 15(3) in H. R. 13049 and H. R. 13176) amends section 11-74 of the District of Columbia Code, relating to the exclusive jurisdiction of the District of Columbia Court of Appeals to review the orders and decisions of certain administrative agencies of the District, so as to extend its jurisdiction to the review of optometry license cases.

Section 4 of H.R. 12937 and H. R. 13155 (incorrectly designated as a proposed section 15(4) in H. R. 13049 and H. R. 13176) makes the legislation effective on the 90th day after the date of its enactment.

The Commissioners have discussed the merits of the bills with respresentatives of the Guild of Prescription Opticians and with respresentatives of the Medical Society of the District of Columbia. Both groups, for reasons which appear sound to the Commissioners, expressed the strongest opposition to the enactment of any of the bills.

In the above analysis, the Commissioners have indicated their concern respecting provisions of the bills which they anticipate will have an adverse effect on the

mechanics of providing adequate and convenient eye care for the members of the general public. Accordingly, the Commissioners recommend that none of these bills be enacted, not only because of the Commissioners support of their proposed District of Columbia Licensing Procedures Act, as they have stated in the beginning of this report, but also because the Commissioners have been made aware of no compelling reasons for enactment of this legislation. No reasons have been submitted to the Commissioners to justify the curtailment of the number of long established practices of ppticians, District employees, and others in the District of Columbia which would result from the passage of this legislation. Therefore, the Commissioners reiterate their recommendation that none of these bills be enacted.

Sincerely yours,

WALTER N. TOBRINER,

President, Board of Commissioners, District of Columbia.

Mr. MOYER. I would like to summarize briefly the position taken by the Commissioners. Many of the positions taken by the Commissioners have already been stated several times by different witnesses, and I shall merely mention them unless the committee wants to go into them.

The main proposition of the Commissioners' report is the Commissioner oppose this legislation on two grounds. First, they prefer their general licensing procedures bill which they have submitted to the Congress, in January, and it has been introduced in the Senate. They feel that this general bill will be able to attack all the problems which exist in the optometry field as well as in all the other licensing fields in the District, not only as to present problems but as to problems which will come up in the future, and that it will not be necessary for the District to continually go to Congress year after year to have all of these various statutes amended from time to time to keep up with the practice of these occupations and professions in other States. Therefore, the Commissioners' first position is that irrespective of the merits of this bill, they propose that their general licensing bill be considered in lieu of this bill.

The second position the Commissioners take is that they have talked with these representatives of the District Medical Society and they have received a report from the District Department of Public Health, both to the effect that this legislation is not needed, and that the I should say the report of the District of Columbia Medical Society says that this legislation is not needed. The District of Columbia Department of Public Health points out several different areas in this bill to which the Department raises objection.

On that basis, the Commissioners have come to the conclusion that they see no need for the legislation.

Mr. HARSHA. Why did they submit the general bill, then?

Mr. MOYER. That bill relates to all the occupations and professions in the District. That would allow the Commissioners, not only now but in the future, to raise licensing requirements, expand the number of activities which are permitted and not permitted in all the licensing areas, so that when problems come up in the future, they will be able to meet those.

Mr. HARSHA. Did you not just say they feel they have sufficient authority under the District law to do what this bill purports to do? Mr. MOYER. The Commissioners do not say that.

Mr. HARSHA. I thought that is what you just told me. Maybe I misunderstood you.

Mr. MOYER. The Commissioners say if their licensing bill would pass, they would have authority to do everything this bill does if there is a need for it. There are some things which the Commissioners can do under present law, but there are things they cannot do. The Commissioners can raise the educational standards for optometrists. That is the provision of the 1924 act. The Commissioners have raised them several times and they will do it again next week.

Presently, 5 years of professional training are required here in the District, while the bill requires 6. Now, that is just 1 year of difference. If this bill were passed, then 6 would be frozen into present law and we would have to go to Congress to get it changed.

Mr. HARSHA. I understand that. We have had this argument for 2 or 3 days. Some say the Commissioners have the authority to do now what is contained in this bill. Some say they do not. As legal counsel for the Commissioners, can you answer that? Do they have legal authority to do what this bill purports to do?

Mr. MOYER. The answer is "Yes" and "No." In certain areas, there are things they cannot do.

Mr. HARSHA. Would you expand on that?

Mr. MOYER. The Commissioners cannot forbid advertising by optometrists or by opticians. The Commissioners cannot forbid corporate practice of optometry, because there is case law in the District which says it is legal under the 1924 act. These are things the Commissioners cannot do.

The Commissioners could not expand the definition of optometry as this bill does.

The things the Commissioners can do which are in the bill are to raise the educational standards, change the licensing fees, and also to expand membership of the Optometry Board and things of that nature. These were given by the original Optometry Act, and under the Reorganization Act. These basically are the things the Commissioners can do and cannot do under existing law.

Mr. HARSHA. Fine. Thank you.

Mr. MOYER. The Commissioners also go on to say, however, that if the committee feels that a basis has been made for changes in the existing law, they point out these areas which they

Mr. SISK. Would you speak just a little louder, please, Mr. Moyer? Mr. MOYER. The Commissioners go on to point out that if a bill of this nature is advisable, they point out several areas where they suggest that the committee give consideration to amendments. The first one, of course, is one which has been spoken of by several people here, and that is in the definition of the practice of optometry. The Commissioners have heard from members of the District of Columbia Medical Society that the definition of optometry in the present act is a correct definition of what optometrists do, measure the eyes and determine what lenses are needed to fit the eye. The Commissioners have been informed by the District Department of Public Health, as well as by the medical society, that this new definition of the practice of optometry is too broad and it covers areas which have not been covered before and which go into the practice of medicine.

Also, on the other side, it defines things which are now being done by opticians.

The first point the Commissioners make in their report is that the definition of practice of optometry is too broad and the present defi