Pearle Optical of Monroeville, Inc. v. Georgia State Bd. of Examiners in Optometry

• Decision Date: 10 October 1963
• Docket Number: No. 22109,22109
• Citation: 133 S.E.2d 374,219 Ga. 364
• Parties: PEARLE OPTICAL OF MONROEVILLE, INC., et al. v. GEORGIA STATE BOARD OF EXAMINERS IN OPTOMETRY.
• Court: Georgia Supreme Court

Page 374

133 S.E.2d 374

219 Ga. 364

PEARLE OPTICAL OF MONROEVILLE, INC., et al. v. GEORGIA STATE BOARD OF EXAMINERS IN OPTOMETRY.

No. 22109.

Supreme Court of Georgia.

Oct. 10, 1963.

Rehearing Denied Nov. 7, 1963.

Syllabus by the Court

1. The issue in the instant case turns upon whether optometry is a learned profession vitally affecting the public health.

2. Optometry is a learned profession by declaration of the legislature and no ruling of this court, when properly construed, holds to the contrary.

3. Optometry is identified with and vitally concerned with the public health.

4. The grant of authority by the legislature to the State Board of Examiners in Optometry to regulate the practice of optometry does not violate constitutional standards, but is in conformity with prior holdings of this court and the United States Supreme Court.

5. The rules and regulations promulgated by the board are within the framework of the Act creating them and designed to accomplish the purpose of the Act; such rules and regulations have all the force and effect of statutes of the State.

6. The stipulation of facts showed a clear violation on the part of the defendant of the rules and regulations duly adopted by the board.

The Georgia State Board of Examiners in Optometry was created by the Act of 1916, and the practice of optometry was defined as it then existed: 'Optometry or the practice thereof is the employment of any means, other than the use of drugs, for the measurement of the powers of vision and the adaptation of lenses for the aid of same.' Ga.L.1916, p. 83, embodied in Code § 84-1101. In the year 1956 (Ga.L.1956, p. 94) the General Assembly further defined optometry in the advanced state the science had then attained and proclaimed it a learned profession. The Act reads: 'Optometry is defined as the art and science of visual care and is hereby declared to be a learned profession. The practice of optometry consists of the diagnosis and interpretation of the visual behavior of the human organism by the employment of any means other than the use of drugs, medicine or surgery. The practice of optometry further consists of the correction of visual anomalies through the prescribing, employment and use of lenses, prisms, frames, mountings, contact lenses, orthoptic exercises and/or visual training, light frequencies and any other means or methods for the relief, correction or remedy of any insufficiencies or abnormal conditions of the human visual organism, other than the use of drugs, medicine or surgery.'

On November 30, 1962, the Georgia State Board or Optometry instituted the present suit against Pearle Optical of Monroeville, Inc., a Delaware corporation, and James P. Henderson, a licensed optometrist of Floyd County where the suit was brought. The petition as originally drafted alleged that by authority conferred upon it by Code Ch. 84-11 the plaintiff board had adopted rules and regulations designed to control the practice of optometry within the state. On April 10, 1963, the petition was amended to show that since the suit was brought on November 30, 1962, the General Assembly had enacted into law a statute reading: 'The Georgia State Board of Examiners in Optometry shall have the authority and power to adopt, establish, enforce and maintain rules and regulations applicable to the practice of Optometry adequate to carry into effect the provisions of this Chapter and to regulate the practice of Optometry as a profession in conformity with and in compliance with accepted professional standards.' Ga.L.1963, p. 214 (Code Ann. § 84-1110A).

It further set out that, under authority vested in the board by the Act of 1963, on March 27, 1963, that body adopted certain rules which became effective April 1, 1963, those pertinent to the consideration of this case being: 'The following acts or any of them on the part of a licensed Optometrist shall constitute highly unprofessional conduct and any violation thereof shall be considered by the Board to be sufficient grounds for the suspension or revocation of a license: (6) Violating or attempting to violate directly or indirectly or assisting or participating in or abetting the violation of or conspiring to violate any provision or term of the laws and/or Rules and Regulations relative to the practice of Optometry, including the Code of Ethics adopted by the Board relative thereto. (10) Practice of Optometry under a false or assumed name or the impersonation of a licensed Optometrist of a like or different name. (11) The practice of Optometry under any name other than his or her own proper name and the name used in the practice of Optometry shall be the same name as used in his or her license or certificate issued by the Board. (13) Lending, leasing or renting, or in any other manner or by any other means, placing his certificate or license at the disposal of or in the service of any person, firm, association or corporation not licensed to practice Optometry in this State.'

The amended petition further asserted that Pearle Optical and the licensed optometrist Henderson unlawfully and in violation of the above quoted rules and regulations entered into and were operating under a contract by the terms of which the corporation employed the optometrist to practice optometry in conjunction with and as a part of the operation of an optical business in which it was engaged in the City of Rome.

The prayers of the amended petition, beside the usual one for process, were: that the court adjudicate, determine and declare the rights of petitioner to regulate and control the practice of optometry; that the court adjudicate, determine and declare the rights of defendants to engage in the practice of optometry; that the court enter such order, judgment or decree as it deems necessary to carry into effect and give force to its adjudication, determination and declaration of the rights of the parties; and for such other relief as the court deems meet and proper.

The defensive pleadings of the defendants presented the issues: (1) whether optometry is in the legal acceptation of the phrase a learned profession and the related constitutional question whether the Act of 1956 so classifying the profession of optometry is violative of Art. I, Sec. I, Par. XXIII of the State Constitution (Code Ann. § 2-123); (2) whether the practice of optometry so affects the public health as to be subject to control under the police powers of the state; (3) whether the rules and regulations prescribed by the plaintiff board were within the power conferred upon that body to control the practice of optometry within the state; (4) whether the conduct of the defendants violated the afore-mentioned rules and regulations in the manner alleged in the petition.

The parties agreed to try the case before the trial judge upon a stipulated statement of facts. The stipulation reads:

'1. Defendant Henderson is employed by defendant Pearle Optical of Monroeville, Inc., and is compensated for his services at the rate of $500.00 per month, plus 6% of gross deposits, less returns, with no deductions for expenses, and a guarantee of $10,000.00 per year.

'2. The quality of optometric service given by Henderson is equal in quality to that given by any licensed optometrist in Georgia who is not employed by a corporation. The quality of optometric service given by a licensed optometrist is not affected by his employment by a corporation.

'3. The corporation exerts no control nor supervision of Henderson in his performance of optometric examinations, and it does not affect or seek to affect the exercise of his judgment or skill in performing an examination, the giving or not giving a prescription, or the nature or type of prescription given; nor in anywise does Henderson's employment by the corporation alter or affect the means, manner or methods which he utilizes in rendering his optometric services.

'4. The quality of equipment provided by the corporation for Henderson's use and the physical facilities made available to him are at least equal to that and those used by any licensed optometrist in the State of Georgia.

'5. The plaintiff and the members thereof have no knowledge of any person examined by Henderson and sold glasses by Pearle who has received inferior or inadequate examination or glasses; nor does the plaintiff or the members thereof know any injury done to any person resulting from Henderson's employment by Pearle beyond the general contention that his employment violates paragraphs (6), (10), (11) and (13) of Section F of the Rules and Regulations adopted by plaintiff and the contention that his employment constitutes the corporate practice of optometry which plaintiff contends is unlawful.

'6. The charges made for examination by Henderson and glasses sold by Pearle are never higher, and generally lower, than those made by licensed optometrists for similar services and glasses, * * *

'7. Defendant corporation has a sign in front of its place of business in Rome, Georgia, that bears the words 'Eyes Examined' and 'Glasses Fitted,' and a card in the window to inform the public that a licensed optometrist is on duty.

'8. Newspaper advertisements * * * are used by the defendant corporation frequently.

'9. All of the stock of defendant corporation is owned by Stanley Pearle, Mrs. Stanley Pearle and Manuel Hoppenstein, all residents of Dallas County, Texas. * * *

'10. There has been no substantial change in the actual procedure utilized by licensed optometrists in the practice of optometry in Georgia other than the normal scientific developments and improvements in procedures, methods and equipment, since February 13, 1956, nor since December 15, 1936.

'11. It is further stipulated that the actual manner of business operation is as follows: defendant, Pearle Optical of Monroeville, Inc., owns and operates a retail optical business at 215 Broad Street, Rome, Georgia; defendant, James P. Henderson, is...