South Carolina Bd. of Examiners in Optometry v. Cohen, 19200

• Decision Date: 08 April 1971
• Docket Number: No. 19200,19200
• Citation: 180 S.E.2d 650,256 S.C. 13
• Parties: The SOUTH CAROLINA BOARD OF EXAMINERS IN OPTOMETRY, Appellant-Respondent, v. Henry COHEN, Respondent-Appellant.
• Court: South Carolina Supreme Court

Page 650

180 S.E.2d 650

256 S.C. 13

The SOUTH CAROLINA BOARD OF EXAMINERS IN OPTOMETRY Appellant-Respondent, v. Henry COHEN, Respondent-Appellant.

No. 19200.

Supreme Court of South Carolina.

April 8, 1971.

Lyles & Lyles, Spartanburg, for appellant-respondent.

E. Windell McCrackin, Myrtle Beach, for respondent-appellant.

LITTLEJOHN, Justice.

Under the terms of Chapter 18, Title 56 of the South Carolina Code of Laws of 1962, the South Carolina Board of Examiners in Optometry is charged with the duty of carrying out the purposes and provisions of the statutes which relate to the licensing of opticians and optometrists. The board has the authority to revoke or suspend an optician's license.

As a result of complaints which had been filed with the board, a rule to show cause was served on Henry Cohen on October 23, 1969. He was required to show why his license as an optician should not be either suspended or revoked, in that he practiced optometry upon Charles W. Anderson and Bill Grace, violating the law governing the practice of optometry and the work of opticians. Specifically, it was charged, inter alia, 'that you engaged in the paactice of prescribing and fitting contact lenses' and in 'that you * * * are operating under the name 'Sunland Optical Laboratory."

A hearing was held before the board, at which Cohen and his attorney appeared. Testimony was given by Charles W. Anderson, Bill Grace and Dr. S. T. Scarborough. Cohen elected not to testify and did not offer any evidence to the board. Thereafter the board filed an order in which it found Cohen guilty of violating several sections of the statutory law governing the practice of optometry and the work of opticians. It thereupon suspended his license for a period of twelve months.

Cohen then petitioned the lower court for a writ of certiorari, which was granted. Upon review the lower court reversed the board and held that there was not sufficient evidence to support its findings. The entire order of the board was set aside. Both the board and Cohen have appealed to this court.

We have not enumerated in deatil the charges made against Cohen by the board. In this appeal the board raises several questions. In light of the view we take it is not necessary to review all of the charges made by the board or all of the exceptions addressed to this court. We conclude that the lower court erred in its finding that the evidence did not support the conclusions of the board when it found that Cohen fitted contact lenses in violation of the law, and wrongfully used a trade name.

The statutory law does not provide for an appeal from the actions of the board. Traditionally, in this State, the actions of this board have been reviewed by the courts on a writ of certiorari. Example; Wagner v. Ezell, 249 S.C. 421, 154 S.E.2d 731 (1967).

The part which the court should and may play in reviewing the work of an administrative board by way of a writ of certiorari is fully described in the case of Pettiford v. South Carolina State Board of Education, 218 S.C. 322, 62 S.E.2d 780 (1950):

'The purpose and scope of writs of certiorari are clearly expressed by The Supreme Court of South Carolina in Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22, 24, where it states: 'A writ of certiorari cannot be made a substitute for an appeal or writ of error, as seems to have been done in this case. We have held in numerous cases that this Court on writ of certiorari will confine its review to the correction of errors of law only, and will not review the findings of fact of an inferior Court or body except when such findings are wholly unsupported by the evidence. McKnight v. Smith, 182 S.C. 378, 189 S.E. 361; Young v. Sapp, 167 S.C. 364, 166 S.E. 354; Smith v. Saye, 130 S.C. 20, 125 S.Ed. 269; State ex rel. Davis v. State Board of Canvassers, 86 S.C. 451, 68 S.E. 676. Judges of the Courts of Common Pleas are bound by the same rule and limitation. Charles v. Byrd, 29 S.C. 544, 8 S.E. 1; State ex rel. Sawyer v. Fort, 24 S.C. 510".

It was the testimony of Charles W. Anderson that he procured from the office of Dr. Wood, M.D., a prescription for ordinary spectacles. He took the prescription to the office of Cohen and told Cohen that he wanted contact lenses instead of eyeglasses. At Cohen's instigation they went to the office of Dr. Wood, where Cohen himself took measurements of each of Anderson's eyes. Anderson did not see Dr. Wood on this visit.

The measurements were taken with the use of an instrument found by the board to be an aphthalmometer. They then returned to Cohen's office where contact lenses were ordered. Later Anderson returned to Cohen's office and obtained the lenses. He was given instructions as to how to clean them and insert them. He was also instructed to return to Dr. Wood's office after about a week for a checkup. Dr. Wood received a total of $22 for his services; Cohen received a total of $174.30 for his services and the lenses.

In the case of Bill Grace, Cohen took him also to the office of Dr. Wood and made necessary measurements preparatory to supplying him with contact lenses.

We think the judge in the lower court erred when he concluded that the testimony was vague as to what actually took place when Cohen with Anderson and Grace were at...