Finkelstein v. Board of Registration in Optometry

• Decision Date: 11 June 1976
• Citation: 370 Mass. 476,349 N.E.2d 346
• Parties: Meyer FINKELSTEIN v. BOARD OF REGISTRATION IN OPTOMETRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 346

349 N.E.2d 346

370 Mass. 476

Meyer FINKELSTEIN

v. BOARD OF REGISTRATION IN OPTOMETRY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 3, 1976.

Decided June 11, 1976.

Melvin S. Louison, Taunton, for plaintiff.

Howard Whitehead, Asst. Atty. Gen., for Bd. of Registration in Optometry.

Terrance J. Hamilton, Boston, and Bruce A. Singal, Boston, for Consumers' Council, as amicus curiae, submitted a brief.

Before REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

REARDON, Justice.

The plaintiff has appealed from a judgment affirming a decision of the Board of Registration in Optometry (board), which suspended his license as a practicing optometrist.

There is no dispute on the facts which appear to be as follows. During weekdays, with the exception of one day off, the plaintiff engaged in practice as a registered optometrist between the hours of 9 A.M. and 5 P.M. in an office located in Brockton. ¹ Between the hours of 6 and 10 P.M. daily he engaged in the business of a licensed dispensing optician at Berk's department store in Raynham where he was the proprietor of an optical shop. As an optometrist he examined eyes and, where necessary, wrote prescriptions respecting his findings. In his capacity as an optician he fitted customers with frames and lenses based on the customers' prescriptions but he conducted no eye examinations. The ground for his suspension was the violation of Rule 6(f) of the rules of the board, which provides as follows: 'Without limiting the right of this Board to determine what forms of advertising on the part of an optometrist constitute unprofessional conduct, the following forms of advertising are unprofessional and therefore prohibited: . . . (f) Advertising or holding himself forth, in any manner, as an optician or hearing aid specialist while actively engaged in the practice of optometry.' After a hearing the board made conclusions of law which included the following interpretation of Rule 6(f): 'The Board concludes that an optometrist may in the course of his optoemtry practice, adapt and fit frames and lenses and fill prescriptions; that these services are incidental and necessary to the practice of optometry. However, the Board finds that Rule 6(f) prohibits a licensed practicing optometrist from setting up, establishing, or working at the separate business of a dispensing optician.' The board then found the plaintiff in violation of Rule 6(f) and suspended his license until such time as he ceased to operate the business of a dispensing optician.

A Superior Court judge ruled that the board's interpretation of Rule 6(f) outlined above was a reasonable one and that as so interpreted it was within the board's power to promulgate it. On this basis he affirmed the board's decision. For the reasons stated below we reverse the judgment.

First, there is serious doubt whether the plaintiff has transgressed any board rule as presently written. Ordinarily an agency's interpretation of its own rule is entitled to great weight. Udall v. Tallman,380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413--414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). Budd Co. v. Occupational Safety & Health Review Comm'n, 513 F.2d 201, 204--205 (3d Cir. 1975). Cf. Rockland Mut. Ins. Co. v. Commissioner of Ins., 360 Mass. 667, 674--675, 277 N.E.2d 493 (1971); Cleary v. Cardullo's, Inc., 347 Mass. 337, 343--344, 198 N.E.2d 281 (1964). However, this principle is one of deference, not abdication, and courts will not hesitate to overrule agency interpretations of rules when those interpretations are arbitrary, unreasonable or inconsistent with the plain terms of the rule itself. See Detroit Edison .co. v. United States Environmental Protection Agency, 496 F.2d 244, 248--249 (6th Cir. 1974); Pike v. Civil Aeronautics Bd., 303 F.2d 353, 357 (8th Cir. 1962); Equal Employment Opportunity Comm'n v. Westvaco Corp., 372 F.Supp. 985, 993--994 (D.Md. 1974). Cf. Brennan v. Occupational Safety & Health Review Comm'n,$ 491 F.2d 1340, 1344--1345 (2d Cir. 1974). The board has been granted rule making authority under G.L c. 112, § 67, but once having exercised this power it cannot thereafter arbitrarily construe and apply its rules which as promulgated have dimensions and content not subject to infinite manipulation and expansion. To hold otherwise would be to permit the board, when seeking to amend or add to its rules, to substitute aggressive interpretation for the rule making procedure provided by the Legislature in G.L. c. 30A.

Rule 6 ostensibly regulates advertising on the part of optometrists. 'Advertising' is defined in board Rule 5 as consisting of 'the use of the newspaper, magazines or other publications, books, notice, circular, pamphlet, letter, hand-bill poster, sign, radio or television broadcasting, or any other means or method now or hereafter employed to bring to the attention of the public the practice of optometry or any conduct or act of an optometrist relative to the practice of optometry.' There is no indication in this record that the plaintiff 'advertised' as the term is defined in Rule 5, or in any other usual sense of the word, in connection with his practice of optometry. The board found no such advertising violation by the plaintiff but simply determined that the plaintiff, as a licensed optometrist, was foreclosed from pursuing a distinct practice as a dispensing optician. If the board wished to prohibit practicing optometrists from working as dispensing opticians, it could have used language better designed to make its intention clear than that of Rule 6(f). It would appear that the Board in this case has given a strained interpretation to Rule 6(f) and that the plaintiff's activities cannot be included fairly within its prohibitions.

In any event, even if we were to agree that the board under the rubric of Rule 6(f) has prohibited practicing optometrists from also working as dispensing opticians, we would conclude that the rule, as so interpreted, is beyond the power of the board to promulgate. General Laws c. 112, § 67, inserted by St.1934, c. 339, § 2, authorizes the board to make 'rules and regulations governing . . . the practice of optometry' (emphasis supplied). There is nothing alleged to be improper in the plaintiff's optometrical practice. With respect to that practice, there appear...