State Bd. of Dispensing Opticians v. Carp

• Decision Date: 29 October 1958
• Docket Number: No. 6626,6626
• Citation: 85 Ariz. 35,330 P.2d 996
• Parties: STATE BOARD OF DISPENSING OPTICIANS, Delmer Drinen, Gordon Harper, Max Kent, Ray Rodig and Everett J. Master, Members of the State Board of Dispensing Qpticians, Appellants, v. Ellis CARP, Robert K. Shannon, Bernard Stanton, Jack Sham, Clyde Damron, Irwin Salk, Gene Schanbaum, Dan Geller, Leonard Macaluso, Charles Shropshire, Stanley C. Pearce and Irving Greenberg, Appellees.
• Court: Arizona Supreme Court

Page 996

330 P.2d 996

85 Ariz. 35

STATE BOARD OF DISPENSING OPTICIANS, Delmer Drinen, Gordon Harper, Max Kent, Ray Rodig and Everett J. Master, Members of the State Board of Dispensing Qpticians, Appellants, v. Ellis CARP, Robert K. Shannon, Bernard Stanton, Jack Sham, Clyde Damron, Irwin Salk, Gene Schanbaum, Dan Geller, Leonard Macaluso, Charles Shropshire, Stanley C. Pearce and Irving Greenberg, Appellees.

No. 6626.

Supreme Court of Arizona.

Oct. 29, 1958.

Robert Morrison, Atty. Gen., and Frederick E. Kallof, Asst. Atty. Gen., for appellants.

Gust, Rosenfeld, Divelbess & Robinette and Frank E. Flynn, Phoenix, for appellees.

WINDES, Justice.

Ellis Carp and others filed with the State Board of Dispensing Opticians applications for licenses to practice as dispensing opticians. Licenses were not issued for the reasons hereinafter related. Applicants filed an action in the superior court seeking writ of mandamus to compel the board to issue the licenses. The lower court directed the issuance of a peremptory writ as requested. The board appeals, claiming that the court could not legally require issuance of writ of mandamus.

In Chapter 15.1, Title 32, A.R.S., provision is made for the creation of a board of dispensing opticians and that, with certain exceptions not applicable to the parties herein, one desiring to practice as such must secure a license to be issued by the board. To secure such a license application must be made setting forth verified information to assist the board in determining the applicant's ability to meet prescribed requirements. The board is given the right to require any additional information which in its judgment may be necessary to assist it in determining whether the applicant is entitled to a license. A.R.S., section 32-1682. All further citations of sections refer to A.R.S. Section 32-1683 sets out the qualifications of applicants and so far as applicable to the problem presented herein provides that he shall:

'Establish that he has the required technical skill and training necessary for licensing by any one of the following means:

* * *

* * *

'(d) Submit evidence of having been engaged as a dispensing optician or having served as an apprentice to a dispensing optician, a physician or an optometrist in a non-licensing state for five of the seven years next prior to the date of application, such engagement or apprenticeship to have included all principal phases of optical dispensing and to have resulted in the applicant's having acquired the minimum basic skills required for optical dispensing.'

Each of the applicants submitted to the board verified documents showing that he had been either engaged as dispensing optician or had served as apprentice as provided by the statute in a non-licensing state for five of the seven years next prior to the date of the application. Thereafter the board wrote the following letter to each applicant:

'It has been determined after careful study by the Board that the evidence submitted by you to establish the minimum basic skills required by the statute for licensing dispensing opticians is insufficient. You may establish these minimum basic skills by passing the examination to be given by the State Board of Dispensing Opticians on February 23, 1957.

'Inasmuch as your application has not been completed for licensure credit will be given for the $25.00 previously paid upon the issuance of an original license pursuant to A.R.S. Section 32-1685.

'The additional $25.00 must be paid before the date of the examination. Please make your certified check or money order payable to Arizona State Board of Dispensing Opticians.'

The instant suit followed, the complaint alleging that the board failed and neglected to act upon the applications and failed to issue licenses and that such failure was arbitrary and contrary to law.

The first question presented by the board as appellant is whether the applicants, hereinafter designated as appellees, should have exhausted the administrative remedy prescribed by the statute instead of filing mandamus. Section 32-1694 provides that when the board 'denies, suspends or revokes a license' notice shall be given to the applicant and within thirty days thereafter the applicant may give written notice of a request for hearing which shall be had with the right of the applicant to present evidence. The board shall then render its decision on the basis of the evidence presented and send a copy thereof to the applicant by registered mail. Section 32-1695 states that within thirty days from the date of the decision applicant may appeal to the superior court for a trial de novo and that the court may return the case to the board for further evidence or may affirm, modify or reverse the decision. An appeal may be taken to this court from the superior court's decision.

If the foregoing procedure was available to the appellees mandamus would not lie as it provides an adequate legal remedy. Dunshee v. Manning, 59 Ariz. 430, 129 P.2d 924; State ex rel. Walls v. State Board of Land Com'rs, 36 Wyo. 302, 254 P. 491. Our view is that the action of the board does not amount to a decision from which an appeal could be taken. It must be a decision which denies,...