Michon v. Louisiana State Bd. of Optometry Examiners

• Decision Date: 23 May 1960
• Docket Number: No. 9146,9146
• Citation: 121 So.2d 565
• Parties: Dr. O. E. MICHON, Plaintiff-Appellant, v. LOUISIANA STATE BOARD OF OPTOMETRY EXAMINERS, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 565

121 So.2d 565

Dr. O. E. MICHON, Plaintiff-Appellant, v. LOUISIANA STATE BOARD OF OPTOMETRY EXAMINERS, Defendant-Appellee.

No. 9146.

Court of Appeal of Louisiana, Second Circuit.

May 23, 1960.

Rehearing Denied June 22, 1960.

Rogers & McHale, Lake Charles, for appellant.

Racivitch, Johnson, Wegmann & Mouledoux, William J. Wegmann, Trial Atty., New Orleans, for appellee.

GLADNEY, Judge.

The Louisiana State Board of Optometry Examiners, following a hearing upon formal charges for causes enumerated in LSA-R.S. 37:1061(3), (11) and (14), suspended for a period of thirty-one days the certificate under which plaintiff is entitled to practice optometry in this state. Aggrieved thereby, this suit was instituted by Dr. Michon for the purpose of enjoining interference by the Board with his exercise of the right to practice his profession during the period of suspension, and further, to secure a decree vacating the order of suspension. After trial upon the merits, the district court dissolved the temporary restraining order which had previously issued and rejected plaintiff's demands. From the judgment so rendered plaintiff has prosecuted a suspensive appeal.

The defendant Board derives its authority from the provisions of LSA-R.S. 37:1041 et seq. The statute provides for the creation of the Board, fixes the powers thereof, establishes the qualifications and requirements of applicants for licenses and expressly authorizes the Board in Section 1061 to refuse to issue, renew, suspend, or revoke any certificate of entitlement to practice for certain enumerated specified charges, of which are the following:

'(3) Soliciting business from house to house or door to door either directly or indirectly; * * *

'(11) Advertising, in untruthful, improbable, impossible, or misleading statements with reference to the practice of optometry; * * *

'(14) Advertising any price, credit, terms, or agreement with reference to the practice of optometry.'

The charges filed against plaintiff asserted violations of (3), (11) and (14), supra, and a hearing in accordance with the provisions of the statute was had on April 8, 1959, at Lake Charles, Louisiana. The members of the Board who conducted the hearing were Drs. H. B. Hewitt, S. Roberts, and R. Shaw, who were assisted by the attorney for the Board. Plaintiff was present and represented by counsel. The Board failed to sustain the charges based on LSA-R.S. 37:1061(3) and this appeal has no concern with that count. However, it did uphold charges of violations under LSA-R.S. 37:1061(11) and (14). As pointed out above the ruling of the Board was sustained by the trial court.

The position of appellant is that the trial court erred in holding:

(1) That plaintiff received a fair trial at the hearing on April 8th; (2) That plaintiff violated the provisions of LSA-R.S. 37:1061(11) and (14), but if this court should affirm such violations, then (3) That the subject statutory provisions are unconstitutional as being vague, indefinite, uncertain, and therefore, void for want of due process.

The first assignment of error contends plaintiff did not receive a fair hearing before the Board which conducted the hearing. His position is that Drs. Hewitt and Roberts should have recused themselves from any participation in the hearing. The only reason advanced for this argument is that both of these members of the Board were also members of the Southwest Louisiana Optometric Society, which organization was responsible for the charges filed against him. It was stipulated in the record that neither Dr. Hewitt nor Dr. Roberts was present at the meeting of the Society when action was taken directing that the charges be filed. Notwithstanding this fact, it is argued without supporting evidence, that these members of the Society were aware of the charges and for this reason alone they were disqualified to sit in judgment upon the rights of plaintiff. A careful examination of the record fails to reveal any indication that either of the Board members possessed any preconceived resolution of the charges against appellant. Furthermore, it was not essential that such charges be filed by a professional society, but they may be presented to the Board by an individual. An additional reason plaintiff cannot claim prejudice on this score is that the charges so made and considered by the Board may be reviewed by the courts, as is being done in this instance. The defense so made is without merit.

Our consideration is next directed to whether or not plaintiff did in fact violate the provisions of LSA-R.S. 37:1061(11) and (14). First, we consider (11) which prohibits 'Advertising, in untruthful, improbable, impossible, or misleading statements with reference to the practice of optometry.' Plaintiff admitted that during the months of January and February, 1959, he placed certain advertisements in the Lake Charles American Press. These contained, inter alia, the following statements:

'Low Prices--You Cannot Buy Better Glasses--Eyes Examined Thoroughly--We Will Not Be Undersold--Finest Glasses at Low Prices--Glasses are not Expensive--Just A Few Dollars Invested in the Protection of Your Vision--Complete Optical Laboratory--Popular Prices.'

Copies of the ads are to be found in the record of this case. Plaintiff denied that the foregoing statements in any wise violated the provisions of paragraph (11). No testimony to the contrary was offered on behalf of the Board. The issue is purely factual, the resolution of which, therefore, in the absence of other evidence, rests upon proof as to whether the statements are untruthful, improbable, impossible or misleading with reference to the practice of optometry. The burden of establishing the charges by a preponderance of the evidence rests upon those presenting them to the Board. After reviewing the evidence we are of the opinion it does not sustain the charge, and we so hold.

The charges based on LSA-R.S. 37:1061(14) are objected to by appellant on the ground that he did not advertise any specific prices, specific credit, specific terms or specific agreement. In this connection the case of State v. Rones, 1953, 223 La. 839, 67 So.2d 99, 101, is of some interest, but inapposite to the point under discussion. There, an optometrist was convicted under LSA-R.S. 37:1063(9) of the statute which provides criminal penalties for violations of this section, paragraph numbered (9) prohibiting any person to:

'Advertise as free or for a price, any of the following: The examination, or treatment of the eyes; the furnishing of optometrical services; or the furnishing of a lens, lenses, glasses, or the frames or fittings thereof.'

After noting that the practice of optometry is closely related to public health and public welfare, and is subject to governmental regulation under the exercise of police power, including advertising by optometrists, the author of the Supreme Court decision made the following observation:

'The courts of other states have had occasion to consider the validity of statutes regulating the advertising by retail dealers of eyeglasses. In some of the cases the courts have concluded that such regulation was reasonable and proper and constitutional. Commonwealth v. Ferris, 305 Mass. 233, 25 N.E.2d 378; City of Springfield v. Hurst, 144 Ohio St. 49, 56 N.E.2d 185; Ritholz v. Commonwealth, 184 Va. 339, 35 S.E.2d 210; see Ritholz v. Indiana State Board of Registration and Examination in Optometry, D.C., 45 F.Supp. 423; Roschen v. Ward, 279 U.S. 337, 49 S.Ct. 336, 73 L.Ed. 722. The opposite view that such regulation was arbitrary, unreasonable, and had no relation to the public health or welfare has been taken by other courts. Ritholz v. City of Detroit, 308 Mich. 258, 13 N.W.2d 283; State ex rel. Booth v. Beck Jewelry Enterprises, Inc., 220 Ind. 276, 41 N.E.2d 622, 141 A.L.R. 876; see Ritholz v. Johnson 246 Wis. 442, 17 N.W.2d 590. We are in accord with the views of those upholding such statutes. These courts have decided that the statutes are a reasonable exercise of the police power because 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 uncautious and unwary public from being misled and deceived; prevent the increase in sales and the incidental harm that come from unfitted eyeglasses; 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...