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. Čarter, 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.

And when we think of the children, in increasing numbers, who are helpless in submission to this procedure when their sight is at stake, we lose patience with everything except fidelity to duty, and the highest altruism in providing what nature requires in such delicate and vital situations.

Surely an optometrist should be absolutely independent of everything and everybody except his profession, and the people who confidently depend upon him to aid them in improving and preserving their sight. State Board of Optometry v. Sears, Roebuck & Co., 57 So. 2d 726 (Miss. 1952).

MISSOURI

It can hardly be disputed that optometry has become a real science *** It has become one of the important professions***. State v. Brackman, 260 S.W. 2d 800 (1953, rev. on procedural grounds, 272 S. W. 2d 297).

NEW JERSEY

Thus, by its very nature, the practice of optometry is subject to regulation for the protection of the public against ignorance and incapacity and deception and fraud, equally with the practice of ophthalmology and the other "learned professions" * * *. The legislature recognizes optometry as a profession calling for the exercise of scientific skill ***. Abelson v. New Jersey State Board of Optometry, 5 N.J. 412, 75 A. 2d 867, 22 A.L.R. 2d 929 (1953).

NEW MEXICO

The Legislature of New Mexico enacted section 67-7-13 [Optometry Act], supra, to protect its citizens against the evils of price-advertising methods tending to satisfy the needs of their pocketbooks rather than the remedial requirements of their eyes. New Mexico Board of Examiners in Optometry v. Roberts, 370 P2d 811 (N.M. 1962), affirmed in 374 U.S. 424 (U.S. 1963).

OHIO

*** it is specifically held that optometry is a profession under the statutes of Ohio *** State v. Optical Co., 2 N.E. 2d 601 (Ohio, 1936).

OKLAHOMA

***This regulation is on the same constitutional footing as the denial to corporations of the right to practice dentistry. Semler v. Dental Examiners, infra. It is an attempt to free the profession, to as great an extent as possible, from all taints of commercialism. It certainly might be easy for an optometrist with space in a retail store to be merely a front for the retail establishment. In any case, the opportunity for that nexus may be too great for safety, if the eye doctor is allowed inside the retail store. Moreover, it may be deemed important to effective regulation that the eye doctor be restricted to geographical locations that reduce the temptations of commercialism. Geographical location may be an important consideration in a legislative program which aims to raise the treatment of the human eye to a strictly professional level, Williamson v. Lee Optical of Oklahoma, 348 U.S. 483 (1955).

OREGON

The practice of optometry is undoubtedly one of the subdivisions of the practice of medicine, which have arisen in modern times by reason of the necessity for specializing. It would seem that the public has as much need to be protected from quacks and charlatans in optometry as in dentistry or any other subdivision of medicine. *** One who consults an optometrist for ocular examination is entitled to the same undivided loyalty that he should receive from a physician. The fact that the optometrist is the employee of an optical concern whose main interest is the sale of optical goods tends to be a distracting influence which may adversely affect his loyalty to the interests of his patient.

While it is true that an optometrist is not permitted by law to treat diseases of the eye, nevertheless his training enables him to diagnose pathological conditions, and his duty requires him to refer the patient to a practitioner who is qualified to treat such conditions. The fact that he is trained to diagnose pathological conditions in itself indicates that the optometrist is not a mere skilled craftsman or mechanic. His failure to diagnose a pathological condition, with resultant delay or neglect in proper treatment thereof, might result in serious

impairment of a patient's eyesight, or even in blindness. State v. Standard Optical Co., 188 P. 2d 309 (Oreg., 1947).

PENNSYLVANIA

All those who have had any experience with eyeglasses, and, after a certain age has been reached, that number embraces the vast majority of the educated citizens of the State, know that an improper fitting of frame to glasses can destroy the therapeutic value of the prescribed lenses. Glasses which do not obey the axis prescribed by the optometrist or which tilt at an inaccurate angle can do as much damage to the wearer as striking one's eye against a door. It must be assumed that the legislature had in mind these possibilities when it enacted legislation on the subject of eyeglasses. * * * To fit inferior lenses to an already weakened or bruised organ of sight is like supporting a cripple with papier mache crutches. v. Boehm, 142 A. 2d 19.

SOUTH CAROLINA

Ullom

Suffice it to say that the legislature of this State, as we have hereinbefore suggested, has given due recognition to the professional status of the practice of optometry, and, so far as the protection of professional rights is concerned, has placed it in a parity with other professions charged with important duties to the general public. Ezell v. Ritholz, 198 S.E. 419 (S.C. 1938).

SOUTH DAKOTA

The cases and legislative enactments involved further reveal that as to physicians, surgeons, and dentists advertising in the usual sense, and except for the professional card provided by our statute for the optometrist, is almost universally prohibited. "It would seem that the public has as much need to be protected from quacks and charlatans in optometry as in dentistry or any other subdivision of medicine." Norwood v. Parenteau, 63 N. W. 2d 807, 813 (S.D. 1954).

TENNESSEE

The complainants are engaged in the practice of optometry in the city of Nashville and advertise in show-windows, by cars, neon signs, and so forth, various articles used in the practice of their profession. The section of the act herein assailed, the same being section 43, is the only section which affects them in their business or profession. It *** expressly prohibits them from advertising eyeglasses, spectacles, ophthalmic lenses, or prisms, or frames or mountings, and so forth and confers upon the board the authority to suspend, or revoke any license of any holder for any alleged violation of the act. The entire act was held constitutional. Seawell v. Beeler, 287 S.W. 2d 54 (Tenn. 1956).

TEXAS

***The statute (medical practice act) is the result of the legislature's effort, in the exercise of the police power, to preserve and protect the public health. There is implied an intent to take note of the organs of the body. The eye is the organ of vision. In the eye there are many parts, each performing a distinct function, but all designed by nature to produce the sense of sight.

It seems obvious that defects of vision may result from disease of the eye and other organs of the body. It is conceded and the optometrist must discern that the impairment which he seeks to remedy by lenses is not consequent upon disease. It follows that, while the eye operates upon mechanical principles, it cannot be treated as a mechanism alone. Its vitality as an element of the human body cannot be overlooked. Other organs of the body function upon mechanical principles; for example, the heart as a pump, the muscles as levers; but they, like the eye, are nevertheless organs of the human body, and each organ is, to a degree, interrelated with all others. Baker v. State, 240 S. W. 924 (Tex. 1921).

VIRGINIA

The advertising of the sale of glasses with optometrical service at a price certain is apt to be used as a lure and bait to the unwary and as a means of deception of those who are attracted by a seemingly low price without considering the degree of skill involved. It tends to promote unfair competition against those skilled in the profession. The "barker" and others who make their livelihood out of human