Rich v. State Bd. of Optometry

• Decision Date: 01 June 1966
• Citation: 242 Cal.App.2d 598,51 Cal.Rptr. 674
• Court: California Court of Appeals Court of Appeals
• Parties: M. B. RICH, Plaintiff and Appellant, v. STATE BOARD OF OPTOMETRY, Dale B. Freeberg, Stanley D. Braff, Arthur B. Emmes, Max Blechman, Morris Kirschen, Gabriel Lizer and J. R. Patterson, Defendants and Respondents. Civ. 22588.

Page 674

51 Cal.Rptr. 674

242 Cal.App.2d 598

M. B. RICH, Plaintiff and Appellant, v. STATE BOARD OF OPTOMETRY, Dale B. Freeberg, Stanley D. Braff, Arthur B. Emmes, Max Blechman, Morris Kirschen, Gabriel Lizer and J. R. Patterson, Defendants and Respondents.

Civ. 22588.

District Court of Appeal, First District,

Division 1, California.

June 1, 1966.

Rehearing Denied June 15, 1966.

Hearing Denied Aug. 24, 1966.

Jefferson E. Peyser, San Francisco, for appellant.

Thomas C. Lynch, Atty. Gen., Wiley W. Manuel, Deputy Atty. Gen., San Francisco, for respondents.

MOLINARI, Justice.

This is an appeal by M. B. Rich, O.D., from the judgment of the trial court denying his petition for a writ of mandate to compel the State Board of Optometry ¹ to reissue and reactivate three branch office licenses which Rich had previously possessed. Rich contests the propriety of the trial court's determination upholding the Board's decision that he is not entitled to the reactivation of these branch office licenses and, additionally, Rich contends that the trial court's finding that he had not offered to pay various fees in connection with the issuance of these branch office licenses is not supported by the evidence.

Procedural and Factual Background

On September 24, 1963 Rich applied to the Board for the issuance of branch office licenses at the following addresses: 824 MacDonald Avenue, Richmond, California; 430--432 East Main Street, Stockton, California; and 807 K Street, Sacramento, California. These proposed new branch office locations were expressly stated to be 'in place of' those three branch offices which Rich had formerly operated at 810 MacDonald Avenue, Richmond; 432 East Main Street, Stockton; and 921 K Street, Sacramento. Upon a statement of issues filed by the Board praying that a hearing be held thereon and that the respective applications be denied, a hearing was held before a hearing officer of the Office of Administrative Procedure. The hearing officer recommended that the applications be denied and his proposed decision was adopted as the decision of the Board to be effective April 8, 1964. On May 1, 1964 Rich filed in the superior court a petition for issuance of a peremptory writ of mandate to compel the Board to issue the requested branch office licenses to him. When the alternative writ came on for hearing in the trial court, the matter was submitted upon the record of the proceedings before the Board. ² Subsequently the trial court entered judgment denying Rich the relief which he sought. The bases of both the trial court's and the Board's decisions, as contained in their respective findings of fact and conclusions of law, were (1) that Rich had in 1960 discontinued his practice of optometry at his three previously-licensed Richmond, Stockton and Sacramento branch offices and had surrendered to the Board his branch office licenses for these three locations; and (2) that Rich had failed to pay the fees requisite to the reactivation of these three licenses. The evidence adduced at the administrative hearing upon which these conclusions of the Board and the trial court were based consists of the following:

As of October 1, 1959 Rich, an optometrist duly licensed by the State of California, operated, in addition to his principal office for the practice of optometry, 13 branch offices. Three of these branch offices were located at 810 MacDonald Avenue, Richmond; 432 East Main Street, Stockton; and 921 K Street, Sacramento. In July and August 1960 Rich's leases for these three premises were terminated by the lessor and Rich ceased his practice at these locations. At the same time Rich surrendered to the Board his branch office licenses for these three locations. After the licenses were returned to the Board, they remained continuously in the custody and control of the Board. Rich did not seek transfer of these licenses to other premises nor did he make any effort to relocate in Richmond, Stockton or Sacramento. In addition, although Rich's applications for the reactivation of these three branch office licenses were accompanied by a check in the amount of $30, during the years 1961, 1962 and 1963 Rich did not pay any branch office license fees in connection with the three licenses which he returned to the Board. Rich did testify, however, that he was ready, willing, and able to pay any fees necessary for the reactivation of these three branch office licenses. Finally, with regard to the branch offices for which Rich sought to reactivate his former licenses, it was stipulated by the parties that it would be physically impossible for Rich to be in attendance at each of these locations 50 percent of the time during which each was open for business.

Applicable Law

The statute which controls the disposition of this appeal is Business and Professions Code section 3077. ³ This section, following the 1959 amendments thereto, provides in relevant part as follows: '* * * (f) On and after January 1, 1957, no branch office may be opened or operated without a branch office license. * * * On or after October 1, 1959, no more than one branch office license shall be issued to any optometrist or to any two or more optometrists, jointly. * * * (i) Nothing in this chapter shall limit or authorize the board to limit the number of branch offices which are in operation on October 1, 1959 and which conform to the provisions of this chapter, nor prevent an optometrist from acquiring any branch office or offices of his parent. The sale after October 1, 1959 of any branch office shall terminate the privilege of operating such branch office and no new branch office license shall be issued in place of the license issued for such branch office, unless the branch office is the only one operated by the optometrist or two or more optometrists jointly. Nothing in this chapter shall prevent an optometrist from owning, maintaining or operating more than one branch office if he is in personal attendance at each of his offices fifty percent (50%) of the time during which such office is open for the practice of optometry.'

We have recently had occasion to consider section 3077, its effect and application in Rich v. State Board of Optometry, 235 Cal.App.2d 591, 45 Cal.Rptr. 512. ⁴ There the petitioners, Dr. Rich and Drs. Oakley and Layne, sought to transfer two existing branch offices to different locations. Upon the Board's refusal to transfer their licenses to the new locations or to issue them new licenses for the new premises, the petitioners obtained a writ of mandate from the trial court compelling the Board to issue the requested branch office licenses for the new locations. In affirming the judgment of the trial court, we held that under the so-called 'grandfather clause' of section § 3077, i.e., subdivision (i), an optometrist may relocate a branch office which was in existence on October 1, 1959 and that the Board must provide a means by which such a relocated branch office may effectively be licensed, either by allowing the optometrist to transfer his existing branch office license or by issuing him a new branch office license.

The Finding That the Licenses Could Not be Reactivated

Rich contends that under subdivision (i) of section 3077 he is entitled to operate the same number of branch offices which he operated on October 1, 1959; that on that date he maintained 13 branch offices, including the three which were subsequently closed for business; that since closing his offices in Richmond, Stockton and Sacramento he has maintained and operated only 10 branch offices; and that he is thus entitled to reactivate the Richmond, Stockton and Sacramento branch office licenses, bringing his total number of branch offices to 13. The issue, therefore, is whether the Board, either by refusing to reactivate Rich's three previously-held branch office licenses or by refusing to issue him three new branch office licenses for the practices which he seeks to establish in Richmond, Stockton and Sacramento, has authority to refuse Rich branch office licenses at these locations.

The essence of Rich's contention is that in Rich this court held that under section 3077 an optometrist has a vested right or privilege to operate the same number of branch offices which he operated on October 1, 1959 and that the only manner in which he can lose this right or privilege as to any branch office is by the Sale of the business operated at such branch office location. In support of this contention he argues with fervor that in the prior Rich case we noted the legislative history of section 3077 and in particular the significance of the deletion from the final form of the statute as enacted of the phrase 'removal or abandonment' which followed the word 'sale' in the amendment to subdivision (i) as originally introduced in the Legislature. In Rich we stated that 'The rejection by the Legislature of a specific provision contained in an act as originally introduced is most persuasive to the conclusion that the act should not be construed to include the omitted provision. (Citations.)' (P. 607, 45 Cal.Rptr. p. 522.) We also noted in that case that the legislative debate involving such deletion was 'likewise indicative of the Legislature's intent that the number of branch offices In operation on October 1, 1959 would not be diminished except where a branch office was sold.' (Emphasis added; p. 607, 45 Cal.Rptr. p. 522.)

The crucial difference between the facts of the instant case and those of the prior Rich case is that there the petitioners sought to transfer branch office licenses for two of their...