379 F.Supp. 175 (N.D.Ga. 1974), Civ. A. 16414, Wall v. American Optometric Ass'n, Inc.

Docket Nº:Civ. A. 16414
Citation:379 F.Supp. 175
Party Name:Wall v. American Optometric Ass'n, Inc.
Case Date:April 19, 1974
Court:United States District Courts, 11th Circuit, Northern District of Georgia
 
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379 F.Supp. 175 (N.D.Ga. 1974)

R. C. WALL, O.D., et al., Plaintiffs,

v.

The AMERICAN OPTOMETRIC ASSOCIATION, INC., an Ohio corporation, et al. Defendants.

Earnest Earl JUSTICE, Jr., O.D., Plaintiff,

v.

The GEORGIA STATE BOARD OF EXAMINERS IN OPTOMETRY et al., Defendants.

Civ. A. Nos. 16414, 18680.

United States District Court, N.D. Georgia, Atlanta Division.

April 19, 1974

Judgment Affirmed Oct. 21, 1974, See 95 S.Ct. 166

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Gambrell, Russell, Killorin, Wade & Forbes, Haas, Holland, Levison & Gibert, Lanier & Elliott, Atlanta, Ga., for plaintiffs.

Arthur K. Bolton, Atty. Gen., Atlanta, Ga., for State Bd. of Examiners in Optometry.

Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., for Ga. Optometric Ass'n, Inc. and its officers.

Sutherland, Asbill & Brennan, Atlanta, Ga., for American Optometric Assn.

Lavender & Cunningham, Elberton, Ga., for defendants.

Before MORGAN, Circuit Judge, and SMITH and HENDERSON, District judges.

LEWIS R. MORGAN, Circuit Judge:

Plaintiffs in two cases in this court have attacked the validity of rules promulgated by the Georgia State Board of Examiners in Optometry. The cases have been combined in order that a three-judge district court convened pursuant to 28 U.S.C. § 2281 could consider the common constitutional issues of the cases. Finding that this court has jurisdiction to consider the claims of the plaintiffs, and finding further that certain procedures of the board are inconsistent with the Constitution, we grant the relief requested by the plaintiffs.

I. FACTUAL BACKGROUND

The approximately 300 optometrists in Georgia may be loosely grouped into two categories: 'dispensing' and 'prescribing.' Dispensing optometrists distribute eyeglass lenses and frames; prescribing optometrists do not. Most dispensing optometrists are members of the Georgia Optometric Association (GOA), a private organization. Section II(A) of the Code of Ethics and Rules of Practice of the GOA provides:

No member shall practice in any business establishment, regardless of whether the same be subdivided, or in or on premises where any materials other than those necessary to render his professional services are dispensed to the public.

Thus, none of the 200 or so members of the GOA is associated with any business establishment. Most non-members of the GOA, on the other hand, are prescribing optometrists. They are often associated with commercial enterprises, either those which sell eyeglass lenses and frames primarily or department stores with optical departments.

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The Georgia State Board of Examiners in Optometry (the Board) regulates the practice of optometry in Georgia. 1 Its primary function is to control entry into the profession by licensing optometrists who wish to practice in the state. No person may practice optometry in the state without a license from the board, and anyone who practices without a license commits a misdemeanor. 2 Thus, the board has complete control over who may enter the optometry profession in Georgia.

The governor appoints the five members of the board, who must be optometrists practicing in the state. 3 Although the governor may appoint any licensed optometrist in Georgia to the board, the GOA has always recommended its members to the governor for appointment and each of the present members of the board was appointed by the governor after such a recommendation. Each of the board members is an active member of the GOA and subscribes to its Code of Ethics and Rules of Practice, including Section II(A), quoted above. Thus, the board is and always has been completely controlled by members of the GOA, whose approximately 200 members have very different economic interests than those of the 100 non-members, and who constitute an identifiable category within the optometry profession.

II. PROCEDURAL FRAMEWORK

Pursuant to its statutory authority, the board has from time to time promulgated regulations relating to the practice of optometry. 4 Its Rule 430-4 governing unprofessional conduct was originally filed June 30, 1965. On February 4, 1972, the board gave notice of intent to adopt certain rules and regulations, and scheduled a meeting for April 12, 1972, 'for the purpose of adopting rules and regulations.' Among the rules proposed at that time was an amendment to Rule 430-4 which would prohibit the practice of optometry in an office for less than a specified minimum number of hours per week, and would prohibit practicing optometry in an office which is 'reasonably identifiable' with a mercantile establishment, retail optical supply house or dispensing optician so as to gain patronage by virtue of such location. After public hearings, at which many people expressed their opinion, the board adopted the amendments, which became effective December 6, 1972. The effect of the amendments, which are quoted in the margin, 5 is to

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force many optometrists to adopt significant changes in their practices, since it has been common for prescribing, but not dispensing, optometrists to establish several offices in connection with retail establishments and move from office to office during the course of a week.

On March 31, 1972, nine optometrists filed civil action No. 16414. They sought to have the proposed rules enjoined on the grounds that the board, because it consisted of practicing optometrists, had an economic interest in the promulgation of the rules, and the rules were therefore void. This court denied relief, on the ground that there is 'no federal constitutional requirement to the effect that legislators and rule makers must be free of bias or interest . . . .' (Emphasis in original). The court added, 'There remains the right of plaintiffs to seek an injunction against enforcement of any regulations adopted by the Board on the police power question and the right of any individual to raise the due process question if he is disciplined for its violation.' After the entry of judgment in the suit, the board proceeded to adopt its regulations. On November 29, 1973, the board, through the joint secretary (see Ga.Code Ann., § 84-101) issued a notice of hearing directed to Earnest L. Justice, plaintiff in No. 18680. This notice notified Justice that a hearing would be held February 20, 1974, 'to determine whether, upon proof of the charges listed below, an appropriate sanction should be imposed with respect to your license to practice optometry.' The notice asserted that plaintiff Justice had, in July, 1973, opened an office for the practice of optometry on the premises of the Sears, Roebuck Department Store in Cumberland Mall, Cobb County, Georgia, and by practicing optometry at this location, plaintiff Justice was violating the board's rule regarding commercialism. On the same day, the board issued an identical notice to David Jacobs, one of the plaintiffs in action No. 16414. Plaintiff Jacobs' office is in the Rich's Department Store in Cumberland Mall.

The registration revocation proceedings involved in these suits are controlled by the Georgia Administrative Procedure Act, Ga.Code Ann., § 3A-101 et seq. Specifically, § 3A-114(a)(5) provides,

Unless specifically precluded by statute, in addition to the agency, any contested case may be held before any agency representative who has been selected and appointed by the agency for such purpose. Before appointing a hearing representative, the agency shall determine that the person under consideration is qualified by reason of training, experience and competence.

According to § 3A-102(b), the term 'contested case' includes licensing proceedings such as those involved in this case. Section 3A-118(a) provides that when such a representative makes a decision in a case, his decision becomes the decision of the agency unless a party applies to the agency for review within 30 days, or the agency within 30 days reviews the decision on its own motion. Under § 3A-120, the decision of an agency may be appealed by an aggrieved person who has exhausted all administrative remedies. Review may be had in the Superior Court of Fulton County or in the superior court of the county of residence of the petitioner. § 3A-120(b). According to § 3A-120(h), the superior court may reverse or modify

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the decision if the agency's decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

In the board's cases against Doctors Justice and Jacobs, it has employed John A. Sligh, Jr., Esq., as the agency representative to hear the cases initially. Mr. Sligh is a former Assistant Attorney General for the State of Georgia, and is now employed by the Department of Transportation of the state, where his functions include serving as a hearing officer in administrative proceedings under the Georgia Administrative Procedure Act. Mr. Sligh is conceded to have no ties with or relationship to any plaintiff or any defendant or with any optometrist, nor has he ever represented or provided legal service to the state board or any of its members.

Legal services are provided to the board by the state law department, headed by the Attorney General of Georgia, and by private attorneys employed by the state law department as Special Assistant Attorneys General. The Assistant Attorney General currently assigned to the state board will prosecute the proceedings...

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