Rich v. State Bd. of Optometry

Decision Date07 July 1965
Citation45 Cal.Rptr. 512,235 Cal.App.2d 591
CourtCalifornia Court of Appeals Court of Appeals
PartiesM. B. RICH, Plaintiff and Respondent, v. STATE BOARD OF OPTOMETRY, Dale D. Freeberg, Stanley D. Braff, Arthur B. Emmes, Max Blechman, Morris Kirschen, Gabriel Lizer and J. R. Patterson, Defendants and Appellants. Alonzo W. OAKLEY, jr., O. D., and R. M. Layne, O. D., Plaintiffs and Respondents, v. Arthur B. EMMES, O. D., Dale D. Freeberg, O. D., Morris Kirschen, O. D., Stanley D. Braff, O. D., Max Blechman, O. D., Gabriel Lizer as members of the Board of Optometry of the State of California, and the Board of Optometry of the State of California, Defendants and Appellants. Civ. 21797, 21961.

Thomas C. Lynch, Atty. Gen. of State of California, Wiley W. Manuel, Deputy Atty. Gen., for appellant.

Jefferson E. Peyser, San Francisco, for respondent Rich.

J. Edward Fleishell, San Francisco, for respondents Oakley and Layne.

Charles J. Katz, Louis C. Hoyt, Los Angeles, amici curiae.

MOLINARI, Justice.

These two separate cases present a major common issue and will therefore be considered together. In each the State Board of Optometry and its members 1 appeal from the judgment commanding the Board to issue a branch office license to petitioners therein. 2

Procedural Background

All three petitioners are optometrists duly licensed by the State of California. Prior to October 1, 1959 Oakley and Layne, whose principal office for the practice of optometry was located in Oakland, maintained a number of branch offices and held branch office licenses issued by the Board authorizing them to practice optometry at each of these branch office locations. Similarly, Rich, who maintained his principal place of business in San Francisco, operated 10 branch offices and possessed a corresponding number of branch office licenses.

On February 26, 1962 Oakley and Layne filed with the Board an application for a license for a branch office at 238 Hillsdale Mall, Hillsdale Shopping Center, San Mateo. The purpose of the filing of this application was to transfer to the Hillsdale Shopping Center their branch office which was located at 205 East Fourth Avenue in San Mateo. On January 25, 1963 Rich filed with the Board an application for transfer of his branch office license from 4 Geary Street in San Francisco to new premises located at 246-248 Powell Street, San Francisco. Upon a statement of issues filed by the Board praying that a hearing be held thereon and that the respective applications be denied, hearings were had before a hearing officer of the Office of Administrative Procedure. The hearing officer in each case recommended that the applications be denied and the respective decisions of the hearing officer were adopted as the decision of the Board.

On December 4, 1962, and June 12, 1963, respectively, Oakley and Layne and Rich filed their respective petitions for issuance of peremptory writs of mandate. To the alternative writ of mandate which was issued in the Oakley and Layne case, the Board filed a return by way of demurrer in addition to its return by way of answer. The demurrer, which was based on the timeliness of the proceedings, was overruled by the trial court. When the alternative writs came on for hearing before the superior court, the respective matters were, by stipulation of the parties, submitted upon the record of the proceedings before the Board. The trial court subsequently entered its respective judgments granting the peremptory writs of mandate, and also ordering that the appeal of the judgments would not act as a stay of execution in either case.

The issue

The crux of this litigation involves the meaning and effect of a statutory change made to section 3077 of the Business and Professions Code 3 in 1959. Section 3077, which was enacted in 1955, set up the requirement that after January 1, 1957, an optometrist must obtain a branch office license from the Board for each branch office which he operated. (§ 3077, subd. (f).) The statute as originally enacted, however, contained no restriction on the number of branch offices or branch office licenses available to an optometrist. 4 Accordingly, although from 1957 the Board took the position that branch office licenses were not transferable and made this position clearly known to its licentiates, 5 it was possible for an optometrist to relocate his branch office simply by surrendering the license which he possessed for the branch office to be relocated and making proper application for a new license to be issued at the new location. (See 34 Ops.Atty.Gen. 278.)

In 1959, section 3077 was amended so as to restrict the number of branch offices available to an optometrist by providing that '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.' (§ 3077, subd. (f).) 6 A so-called 'grandfather clause' was, however, incorporated into subdivision (i) so as to make said subdivision read, in its entirety, as follows: '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.' (§ 3077, subd. (i).)

In the light of the 1959 statutory changes, the major issue presented is whether petitioners are entitled to relocate the branch offices which are the subject of their respective applications. While both the Board and petitioners state the issue in terms of the right of petitioners to transfer their respective branch office licenses from one branch office to another, we are of the opinion that the basic problem is made more understandable, and that a solution is more easily reached, if the issue is phrased in the language of subdivision (i) of section 3077, that is, in terms of whether the Board has the authority to prevent petitioners from relocating their branch offices and continuing to operate such relocated branch offices. If, on the one hand, we conclude that it has no such authority, then it follows that petitioners are entitled to branch office licenses for their relocated branch offices and that the Board must provide a means by which petitioners can obtain valid and effective branch office licenses--either by allowing petitioners to transfer their present licenses or by issuing new branch office licenses to them. On the other hand, if we conclude that petitioners, by relocating their branch offices, have lost the protection of subdivision (i) of section 3077, then it would follow that under the remaining provisions of this statute, petitioners would not be entitled to maintain their relocated branch offices, nor, of course, would they be entitled either to obtain new branch office licenses or to achieve the transfer of their existing licenses. By reframing the issue in this manner, we put the emphasis on that aspect of the conflict which concerns the basic right of petitioners to relocate their branch offices, rather than on the procedural aspect of how this right, if it exists, is to be achieved. Such an approach to the problem does not in any way result in an alteration of the basic issues which these appeals present. On the other hand, it does eliminate the necessity of our confronting the issue of whether, in view of the apparent absence of a statutory provision authorizing the transfer of branch office licenses, the transferability of a license is an incident of licensure only where it is made so by statute, and the corollary issue of whether the Board's regulations prohibiting the transfer of a branch office license (which regulations have existed since 1955) conflict with the provisions of section 3077 or are in any way unconstitutional in and of themselves.

The Administrative Hearings

At each of the administrative hearings documentary and testimonial evidence was presented. Such evidence related in part to the legislative history of the amended section 3077. Assemblyman Don Mulford was called as a witness at the Oakley and Layne hearing to testify concerning certain language which was contained in the 'grandfather clause' portion of the originally introduced bill amending section 3077. This language read as follows: 'The sale, removal, or abandonment after October 1, 1959 of any branch office shall terminate the privilege of operating such branch office. * * *' (Emphasis added.) Mulford testified, over objection on the ground of incompetency, 7 as follows: That while the bill was in committee, it was called to his attention by Layne that the language contained in the proposed amendment to section 3077 would 'put optometrists out of business'; that the committeemen then began conjuring up situations under which the destruction or elimination of an optometrist's branch office might result, for example, by fire, condemnation, and rental problems; that the committee then unanimously agreed that they did not intend this legislation to have the effect of putting such persons out of business; and that accordingly the amendment deleting the words 'removal, or abandonment' was proposed and unanimously adopted. Similar, although less detailed, statements were introduced at the Rich...

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