Blumenthal v. Board of Medical Examiners

• Decision Date: 18 January 1962
• Court: California Supreme Court
• Parties: , 368 P.2d 101 Herman BLUMENTHAL, Plaintiff and Appellant, v. The BOARD OF MEDICAL EXAMINERS, Defendant and Respondent. L. A. 26565.

Page 501

18 Cal.Rptr. 501

57 Cal.2d 228, 368 P.2d 101

Herman BLUMENTHAL, Plaintiff and Appellant, v. The BOARD OF MEDICAL EXAMINERS, Defendant and Respondent.

L. A. 26565.

Supreme Court of California, In Bank.

Jan. 18, 1962.

As Modified on Denial of Rehearing Feb. 14, 1962.

Ellis J. Horvitz, Los Angeles, for plaintiff and appellant.

Stanley Mosk, Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for defendant and respondent.

Athearn, Chandler & Hoffman, Walter Hoffman, Clark W. Maser, Richard Harrington, San Francisco, Wilke, Fleury & Sapunor and John M. Sapunor, Sacramento, as amici curiae on behalf of defendant and respondent.

TRAYNOR, Justice.

Petitioner appeals from a judgment denying his petition for a writ of mandate to compel the Board of Medical Examiners to register him as a dispensing optician. Petitioner's first application for a license, filed on or about March 5, 1957, was denied on April 18, 1957, because he had not established that he had 'at least five (5) full years of actual experience in taking facial measurements and fitting and adjusting lenses or frames in an establishment or establishments of a dispensing optician registered under this chapter or of a dispensing optician engaged in dispensing prior to the enactment of this chapter and thereafter registered, or who has been licensed as a dispensing optician for a period of five years in another state.' ¹ (Bus. & Prof.Code, § 2552, subd. (a).) Petitioner's second application, filed on or about May 21, 1957, was denied on October 17, 1958, on the same ground. The board also found that petitioner had not met the requirement of good moral character imposed by subdivision (b) of section 2552. The basis for this finding was that petitioner had pleaded guilty to a misdemeanor charge of having dispensed optical goods without a license (Bus. & Prof.Code, §§ 2550, 2558) on or about April 9, 1958. He was fined and placed on probation. In September, 1958 he dispensed optical goods again without a license and in violation of his probation.

Petitioner completed high school and spent two years at the University of Southern California in preoptometry. He worked for Commercial Optical Company in Omaha, Nebraska from 1930 to 1935. During this time he engaged in shop work (the manufacture of optical goods) and in dispensing (the fitting and adjusting of optical products). This company was not licensed as a dispensing optician, for Nebraska does not require a license of dispensing opticians.

From 1935 to 1942 petitioner worked for the Dietrich Optical Company in Los Angeles, which was licensed as a dispensing optician. Although he did some dispensing there, it appears that his primary occupation involved shop work. From 1942 to 1949 he worked for the Superior Optical Company in Los Angeles, where he was engaged exclusively in shop work except for a six-month period during which he did dispensing work for another registered dispensing optician.

From 1949 to 1952 petitioner operated his own optical laboratory where he engaged solely in manufacturing. He dispensed the manufactured product only occasionally when he went to a doctor's office to assist the dispensers there. From 1952 to 1957 he worked as a dispensing optician in the office of a registered ophthalmologist in Beverly Hills.

In March 1957 petitioner opened his own dispensing and manufacturing establishment in Beverly Hills and applied for a license as a dispensing optician.

Petitioner admits that he does not meet the experience requirement of subdivision (a) of section 2552 of the Business and Professions Code, but urges that this subdivision is unconstitutional on the ground that it imposes inequalifities prohibited by the equal protection clause of the Fourteenth Amendment of the United States Constitution and article I, sections 11 and 21 of the Constitution of the State of California.

Section 2552, subdivision (a) discriminates between persons who have served the requisite five-year apprenticeship or who have been licensed for five years in another state and other persons regardless of their qualifications. To conflict with constitutional provisions, however, the discrimination 'must be 'actually and palpably unreasonable and arbitrary', or the legislative determination as to what is a sufficient distinction to warrant the classification will not be overthrown. (Citations.) When a legislative classification is questioned, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of existence of that state of facts, and the burden of showing arbitrary action rests upon the one who assails the classification. (Citations.)' (People v. Western Fruit Growers, Inc., 22 Cal.2d 494, 506-507, 140 P.2d 13, 20; Dept. of Mental Hygiene v. McGilvery, 50 Cal.2d 742, 760, 329 P.2d 689.) 'So long as the statute does not permit one to exercise the privilege while refusing it to another of like qualifications, under like conditions and circumstances, it is unobjectionable upon this ground.' (Watson v. Division of Motor Vehicles, 212 Cal. 279, 284, 298 P. 481, 483.)

A discrimination, however, that bears no reasonable relation to a proper legislative objective is invalid. Thus, in Accounting Corporation of America v. State Board of Accountancy, 34 Cal.2d 186, 208 P.2d 984, we held unconstitutional legislation that permitted corporations that had been engaged in the practice of public accountancy for at least three years before the effective date of the statute to continue in business, but made unlawful such practice by all other corporations, because 'a statute which permits some corporations to continue operations as public accountants while denying others that privilege where no reasonable grounds exist for such favoritism, denies equal protection to the excluded corporations and grants unlawful special privileges to the favored.' (P. 191, 208 P.2d p. 987.) In Del Mar Canning Co. v. Payne, 29 Cal.2d 380, 175 P.2d 231, we struck down a regulation that permitted certain fish-reduction plants to obtain operating permits but denied permits to others because the classification was 'purely arbitrary and capricious, resting on no reasonable or substantial difference between the classes when considered in relation to the object of the regulation.' (P. 383, 175 P.2d p. 232.)

Section 2552 is designed to protect the public from incompetent and unethical opticians. We are unable, however, to find any reasonable difference between the classes established by subdivision (a) of that section that would justify the discrimination imposed.

Proponents of section 2552, subdivision (a) contend that it was reasonable for the Legislature to impose the restrictive apprenticeship requirement because of conditions prevalent in the industry. They point to the long history of abuses, of which both unscrupulous physicians and dispensing opticians have been guilty, involving referrals, rebates, and other unethical means of extracting secret profits from a helpless public. Certainly such conditions justify corrective action by the Legislature, and in 1939 chapter 5.5 of the Business and Professions Code established a licensing procedure for dispensing opticians and prohibited misleading advertising and other unethical practices. The 1947 amendment to section 2552 of the Business and Professions Code requires applicants for licenses as dispensing opticians to demonstrate good moral character. Section 650 of the Business and Professions Code, enacted in 1949, prohibits unearned rebates, refunds and commissions as compensation for referrals.

It is suggested that this history of abuses led the Legislature to conclude that future dispensing opticians could develop a proper ethical foundation for their professional careers only by working under the direction of licensed dispensing opticians. We do not believe that the Legislature could reasonably have concluded that training as a dispensing optician acquired in a physician's office, in a college, university, or other educational institution, in the armed services, or in another state not requiring a license of persons dispensing optical goods, would tend to perpetuate the ethical abuses that have prevailed in this profession, and that such training acquired as an apprentice in a licensed dispensing establishment, or experience acquired by virtue of having been licensed in another state, would lead to the elimination of these abuses. There is a complete absence of any relationship between the experience requirements sought to be imposed and the legislative effort to correct ethical abuses in the profession. The Legislature has taken direct action against these abuses and may take such further action as it deems necessary, but it cannot reasonably be contended that the legislation in question bears any relation to these problems.

Proponents of section 2552, subdivision (a) also contend that the Legislature might reasonably have concluded that experience obtained under the tutelage of a licensed dispensing optician or experience as a licensed dispensing optician in another state is reasonably necessary to insure the expertise required for the practice of this specialized profession. Subdivision (a), however, requires no particular course of training and imposes no standards for judging the licensing of other states. Thus, one who spends five years as an apprentice in a licensed establishment, or as a licensee of another state, no matter how narrowly limited his actual experience and capacity, is conclusively presumed to be more qualified than persons like petitioner, who have had many years of experience in dispensing and related fields but are given no opportunity to demonstrate their qualifications. Those who have had many years of broad experience in the armed services, in other states or foreign countries, or in the employ of a licensed eye physician, are prohibited from the practice of their chosen occupation, not because t...