State ex rel. Board of Optometry v. Sears, Roebuck & Co.

• Decision Date: 03 May 1967
• Docket Number: No. 8026,8026
• Citation: State ex rel. Board of Optometry v. Sears, Roebuck & Co., 427 P.2d 126, 102 Ariz. 175 (Ariz. 1967)
• Parties: The STATE of Arizona ex rel. BOARD OF OPTOMETRY, Appellant, v. SEARS, ROEBUCK & CO., a corporation, and C. G. Clare, Appellees.
• Court: Arizona Supreme Court

Page 126

427 P.2d 126

102 Ariz. 175

The STATE of Arizona ex rel. BOARD OF OPTOMETRY, Appellant, v. SEARS, ROEBUCK & CO., a corporation, and C. G. Clare, Appellees.

No. 8026.

Supreme Court of Arizona, In Division.

May 3, 1967.

Darrell F. Smith, Atty. Gen., Jerry W. Lawson, Asst. Atty. Gen., John E. Madden, Sp. Asst. Atty. Gen., Phoenix; John S. Schaper, Sp. Asst. Atty. Gen., Phoenix, for appellant.

Evans, Kitchel & Jenckes, Newman R. Porter, Phoenix, for appellee Sears, Roebuck & Co.

Lewis Roca Scoville Beauchamp & Linton, Walter Cheifetz, Phoenix, for appellee C. G. Clare.

BERNSTEIN, Chief Justice.

This is an appeal from a decision of the Superior Court of Maricopa County, denying a preliminary injunction.

The appellant, herein referred to as Board, sought to enjoin the appellee, herein referred to as Sears, from engaging in the unlawful practice of optometry under the authority of A.R.S. § 32--1758.

The trial court after hearing evidence offered by the Board sustained a motion by Sears denying the injunction, and entered the following conclusions of law: '1. At no time stated herein has defendant Sears, Roebuck & Co. been engaged, nor is it now engaged, in the practice of optometry.' '2. The relationship between defendant Sears, Roebuck & Co. and C. G. Clare has at all times stated herein been, and is now, that of landlord and tenant, and not that of employer and employee, or master and servant.' '3. The practice of optometry by a licensed optometrist as a tenant of a corporation operating a retail establishment at the same premises is not prohibited by the provision of A.R.S. § 32--1758, nor is it otherwise prohibited by law.' '4. A corporation operating a retail store selling general merchandise to the public is not prohibited by law from leasing space in said store to a licensed optometrist and it is not thereby engaged in 'the practice of optometry' within the meaning of (the statute).'

The evidence shows that Sears and Dr. Clare entered into a one year lease about the time the new Sears store in Phoenix was opened May 1962, on rental terms of twenty percent of Dr. Clare's sales, repair work and services. Sears retained the right to audit and inspect Clare's books. If clare extended credit, it was done after Sears' approval and the accounts were assigned to Sears without recourse. Clare was at liberty to use, and did use, Sears' advertising department and some of his ads appeared in the regular Sears advertisements. All of his advertisements were billed to Sears at their reduced rate, Sears paid for them, and were thereafter reimbursed by Clare. The various Sears directories throughout the store listed an optometric department in the basement. Dr. Clare was entitled to use the leased premises during regular store hours. He and his employees were entitled to the same discount given all regular Sears employees. His professional phone was an extension of the regular Sears phone and his calls were taken by Sears personnel. By the terms of the lease, Clare was required to carry Employees' Liability Insurance, Public Liability Insurance and Malpractice Insurance in amounts and with provisions satisfactory to Sears and adequate to protect and indemnify them.

The Board contends the trial court erred in ruling that Sears is not engaged in the practice of optometry without a license. The basis of appellant's contention is that Sears, through a lease arrangement, utilized the professional services of Dr. C. G. Clare, a registered optometrist, for its customers and that he was therefore, unlawfully in the employment of Sears.

The practice of optometry in this state is defined by statute:

'A.R.S. S 32--1701.

3. 'Practice of optometry' means the examination and refraction of the human eye and its appendages, and the employment of any objective or subjective means or methods other than the use of drugs, medicine or surgery, for the purpose of determining any visual, muscular, neurological or anatomical anomalies of the eye, the use of any instrument or device to train the visual system or correct any abnormal condition of the eye or eyes and the prescribing, fitting or employment of any lens, prism, frame or mountings for the correction or relief of or aid to the visual function.'

Under A.R.S. § 32--1701 et seq. it is clear a corporation cannot practice optometry. Being a fictitious person created by state charter, a corporation does not possess the necessary moral and intellectual qualities demanded by the professional practice of this healing art. Nor can an unlicensed corporation practice optometry through employing a licensed optometrist, or through entering into any type of arrangement with a licensed optometrist which subjects the optometrist to the corporation's direction and control. Funk Jewelry Co. v. State of Arizona ex rel. La Prade, 46 Ariz. 348, 50 P.2d 945 (1935); State v. Kindy Optical Company, 216 Iowa 1157, 248 N.W. 332 (1933); State...