People ex rel. Dunbar v. Lee Optical Co. of Denver

• Decision Date: 10 March 1969
• Docket Number: No. 23042,23042
• Parties: The PEOPLE of the State of Colorado ex rel. Duke W. DUNBAR, Attorney General of the State of Colorado, and the State Board of Optometric Examiners of the State of Colorado, Plaintiffs in Error, v. LEE OPTICAL COMPANY OF DENVER, a Colorado corporation, doing business under the trade name of Douglas Optical Company, Kenneth Reeves, O.D., Stewart Goldstein, O.D., Clarence E. Johnson, O.D., John Moncrieff, O.D., M. L. Perito, O.D., Emmanuel Fleischer, O.D., Harold Capps, O.D., Edwin J. Snickerson, O.D., and Robert Byall, O.D., Defendants in Error.
• Court: Colorado Supreme Court

Page 21

452 P.2d 21

168 Colo. 345

The PEOPLE of the State of Colorado ex rel. Duke W. DUNBAR,

Attorney General of the State of Colorado, and the

State Board of Optometric Examiners of

the State of Colorado, Plaintiffs in Error, v. LEE OPTICAL COMPANY OF DENVER, a Colorado corporation, doing

business under the trade name of Douglas Optical Company,

Kenneth Reeves, O.D., Stewart Goldstein, O.D., Clarence E.

Johnson, O.D., John Moncrieff, O.D., M. L. Perito, O.D.,

Emmanuel Fleischer, O.D., Harold Capps, O.D., Edwin J.

Snickerson, O.D., and Robert Byall, O.D., Defendants in Error.

No. 23042.

Supreme Court of Colorado, En Banc.

March 10, 1969.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., William Tucker, Asst. Atty. Gen., Clifton A. Flowers, Special Asst. Atty. Gen., Denver, Richard A. Billups, Jr., Special Asst. Atty. Gen., Jackson, Miss., for plaintiffs in error.

McNichols, Nigro & Baldridge, Joseph F. Nigro, Denver, Douglas Bergman, Dallas, Tex., for defendant in error, Lee Optical Co. of Denver.

GROVES, Justice.

This was an action brought by the Attorney General and the State Board of Optometric Examiners (herein called the plaintiffs) to enjoin the alleged unlawful practice of optometry by a corporation in contravention of our optometry statute (C.R.S.1963, 102--1--1 Et seq.) and to enjoin alleged acts by licensed optometrist in violation of that statute. The corporation is Lee Optical Company of Denver, doing business under the trade name of Douglas Optical Company, and will be referred to herein as Douglas Optical. The optometrists are referred to as the individual defendants.

The science of the eye, of light, and of light refraction is rooted in antiquity. A history of these subjects would relate the research and achievements of a host of mathematicians and physicists, including Galileo and Sir Isaac Newton. These activities, including the advancement of physicians in the field of ophthalmology, constituted a professional activity. In the past 100 years the optical arts with their variegated proliferations spilled over in some measure from the professional cup to the business pot, i.e., at the beginning of this century many opticians, who could be regarded more as businessmen than professionals, prescribed and dispensed spectacles. During the past 70 years the extent and quality of training of optometrists, who are not physicians, has vastly improved. The statute involved here reflects the advancement of the optometrist to higher professional status (in his art of examination of the eye and prescription of eye glasses) and the continued presence of the optician as an artisan-businessman (in his field of dispensing spectacles).

Optometrists have been licensed in this state for the past 56 years. Opticians are not licensed in Colorado. Prior to 1961 certain opticians, such as Douglas Optical had optometrists as their employees, performing their services within the place of business. In 1961 the aforementioned statute was amended into its present form and was made to provide that it is a ground of revocation of an optometrist's license if he practiced as a partner, agent or employee of an unlicensed person, group, association or corporation. The statute prescribes several other standards and prohibitions.

The complaint in this action alleged that the individual defendants were 'employing or offering compensation or merchandise of value to runners and other persons, including Douglas Optical and its agents, as an inducement to secure the services and assistance of said runners and other persons, including Douglas Optical and its agents, in the solicitation of patronage for the performing, rendering and selling of optometric services by said individual defendants * * *.' It further alleged that the individual defendants were 'practicing optometry as the partners, agents, or employees of or in joint venture or arrangements with Douglas Optical * * *.' At the close of the plaintiffs' case, the court granted a motion to dismiss as to the individual defendants for the reason that there was no evidence to support the allegations of the complaint with respect to them. We affirm this particular ruling. Douglas Optical was thereupon left as the only defendant.

At the conclusion of the defendant's case the court found that Douglas Optical was unlawfully practicing optometry by making changes in prescriptions for eye glasses without the permission or authority of the individual defendants, and the court enjoined it from making any changes in prescriptions for eye glasses or contact lenses without the permission or authority of the prescribing professional practitioner. We approve of this finding and affirm the court's injunctive order.

The court in its other findings follows closely the substance of the allegations of the complaint and the applicable provisions of the statute. Therefore, to avoid the iteration of setting forth the allegations of the complaint, the provisions of the statute and the findings of the court, we simply quote the findings, from which the allegations and statutory provisions readily can be envisaged. The findings are as follows:

'1. That there is no evidence to support the allegation in the Complaint that the corporate defendant has, either directly or indirectly, guaranteed to the individual defendants, or any of them, an annual income;

'2. That there is no evidence to support the allegation in the Complaint that the corporate defendant is, by its agents, fitting and adapting contact lenses to the human eye;

'3. That there is no evidence to support the allegation in the Complaint that the corporate defendant is publishing false, misleading or deceitful claims or statements relating to optometric services or ophthalmic materials or devices;

'4. That there is no evidence to support the allegation in the Complaint that the corporate defendant is employing, or offering compensation or merchandise of value to, runners or other persons, including the individual defendants, as an inducement to secure the services or assistance of said runners or other persons, including the individual defendants, in the solicitation of patronage for the supplying or selling of ophthalmic materials or devices by the corporate defendant;

'5. That there is no evidence to support the allegation in the Complaint that the corporate defendant is interfering with the exercise of free choice by patients in the selection of practitioners licensed to perform examinations for refractions and visual training or corrections within the field of optometry by directing said patients to the individual defendants for the purpose of an optometric examination;

'6. That there is no evidence to support the allegation in the Complaint that the corporate defendant is, in any manner, sharing in the professional fees derived by the individual defendants from the practice of optometry;

'7. That there is no evidence to support the allegation in the Complaint that the corporate defendant, under the guise of a rental percentage lease or sublease or other leasing or rental arrangement, participates in the direction and control of the optometric practice of the individual defendants or in the receipts or profits accruing to the individual defendants therefrom;

'8. That there is no evidence to support the allegation in the Complaint that the corporate defendant is unlawfully practicing optometry in a corporate capacity, except with respect to the filling of prescriptions for eyeglasses, and in that regard the Court finds that the corporate defendant is unlawfully practicing optometry in a corporate capacity by making changes in prescriptions for eyeglasses without the permission or authority of the prescribing lessee-optometrists and that such conduct on the part of the corporate defendant is in derogation of the public health and safety of the people of the state of Colorado.'

The court concluded that, except as to the matters which as mentioned were the subject of its injunction, Douglas Optical was not violating the statute and would not be enjoined. We approve all but three of the findings and with respect to the three remand for additional findings.

Douglas Optical has four stores in the Denver metropolitan area. Another corporation, Lee Optical Company of Colorado, closely associated with Lee Optical Company of Denver, operates optical dispensing stores under the name of 'Douglas Optical' in Colorado Springs, Pueblo, Greeley and Grand Junction. There is evidence in the record as to the method of operation of these last mentioned four stores. However, as Lee Optical Company of Colorado is not a party of this action we confine ourselves strictly to the operations of Lee Optical Company of Denver.

Prior to 1961 Douglas Optical in one or more of its stores employed optometrists who rendered their services within the stores. With the adoption of the 1961 amendment it made some changes which in our view might be characterized, not as compliance in good faith with the spirit of the amendment, but rather as an avoidance of violation of the provisions of the statute. There was considerable argument relative to the ethics and business practices of Douglas Optical. Our concern here, however, must be whether it contravened the statute; it cannot be with conduct not proscribed by law.

Since 1961 Douglas Optical has leased or subleased space adjacent to each of its stores to an optometrist for the practice of his profession. These leases provide that the demised premises shall be occupied as an optometric office and not otherwise; that the lessee may not assign or sublet without the consent of the lessor; that the lessee may not place any signs about the premises except as first approved by the lessor; that the tenancy shall be from month to month; and finally, that either party may cancel at the end of any 30-day period by giving the usual ten day written notice.

The room or rooms leased to the optometrist are...