MacK v. Saars
MacK v. Saars
Opinion of the Court
The plaintiff, a licensed optometrist, has appealed from a judgment of the Superior Court which sustained an order of the state board of examiners in optometry suspending his license to practice. In chapter 380 of the General Statutes, which regulates the practice of optometry, § 20-138a provides that no person shall practice optometry unless he has a license issued by the board. Under § 20-133 (e) of that chapter, the board, after a hearing, may revoke or suspend an optometrist’s license
The facts found by the board can be stated in summary as follows: Prior to September 1, 1960, the plaintiff was licensed to practice optometry in this state. He was employed as an optometrist by Michaels, Inc., of Waterbury, a Connecticut corporation hereinafter referred to as Michaels, to render optometrical services in its Bristol store, where it owned and maintained a modern, fully equipped optometrist’s office. The plaintiff was paid a fixed salary. He made eye examinations and was the only employee in the store qualified to write and to fill prescriptions for eyeglasses or to fit and adjust them. No claim is made that any other employee of Michaels performed all or any part of these services. Fees for examinations were charged by Michaels, which also furnished the ophthalmic materials used, such as lenses and frames. The plaintiff occasionally filled eyeglass prescriptions written by others. Michaels charged for the services performed by the plaintiff and for the eyeglasses prescribed by him. The sums so collected were credited to the gross income of the store. Persons seeking credit in paying for the optometrical services of the plaintiff and the glasses he prescribed were required to make their credit arrangements with Michaels, and no credit could be given by the plaintiff to anyone who had been disapproved. The optometrical office was located in a room at the rear of the store. Index cards showing the names, addresses and prescriptions of optometrical customers of this office were maintained there. These cards contained information needed to complete future optometrical reexaminations. Michaels claimed that the plaintiff was coowner of these cards in that he
The board concluded that the plaintiff was an employee of Michaels, that Michaels was not licensed to practice optometry and could not qualify for a license, and that the plaintiff was “guilty of abetting Michaels ... in the practice of optometry, in that . . . [he] has full knowledge that in practicing his profession as an employee of an unlicensed person he is assisting and supporting the practice of optometry by his employer . . . .” The board accordingly ordered the plaintiff’s license suspended. The plaintiff petitioned the Superior Court for the restoration of his license. General Statutes § 20-135. He has appealed from the judgment of the court sustaining the board’s action.
The conclusion of the board and the court on the facts found by the board imports a construction of chapter 380 to the effect that a corporation or any other unlicensed person cannot, under any circumstances, employ a licensed optometrist for a fixed salary to render optometrical services to persons who thereby become indebted to the employer for those services. A study of this chapter of the General Statutes discloses no specific provision denying to a corporation, a partnership or an individual the right to employ a licensed optometrist. It is true that § 20-127, defining the practice, and § 20-130, prescribing the qualifications and procedure necessary to obtain a license to practice, make it clear that a corporation, as such, cannot qualify for a license. Section 20-133 provides that the license of any licensed optometrist may be revoked, suspended or annulled by the board for “(e) aiding or abetting
Courts, in construing statutes, consider their legislative history, their language, their purpose, and the circumstances surrounding their enactment. Delinks v. McGowan, 148 Conn. 614, 618, 173 A.2d 488; Cassidy v. Tait, 140 Conn. 156, 160, 98 A.2d 808. Chapter 380 of the General Statutes is in derogation of a common-law right and is penal in
The legislative history of § 20-133,
In Sage-Allen Co. v. Wheeler, 119 Conn. 667, 179 A. 195, following the amendment in 1933, this court had before it the construction of the optometry chapter. In that case the plaintiffs were two department stores, an optical company which conducted an optical department in each of the stores and two licensed optometrists who, under an agreement with the optical company, managed its business in the stores. Those plaintiffs challenged a regulation of the state board of examiners in optometry forbidding the advertising by any licensed optometrist of a fixed price for services or for optical goods as immoral, fraudulent, dishonorable and unprofessional conduct. The regulation provided further that any registered optometrist who,
In 1939, the General Assembly repealed the provision considered in the Sage-Alien case and substituted different language. Cum. Sup. 1939, § 1018e; Rev. 1949, § 4494; General Statutes § 20-133. The bill from which the 1939 legislation emanated, as reported by the legislative committee, contained this language: “No person except a licensed optometrist shall own or operate an optometrieal office. Nothing herein contained shall be construed as prohibiting the conducting of clinics or visual surveys when they are conducted without profit.” Sub. for H.B. 1499, 1939 Sess., § 2. While the bill was under consideration in the house and the senate, it was amended by striking out the words
In 1943, in Lieberman v. Connecticut State Board of Examiners in Optometry, 130 Conn. 344, 34 A.2d 213, this court had before it an appeal of a licensed optometrist whose license had been revoked, under what is now § 20-133 and was then § 1018e of the 1939 Cumulative Supplement, for (1) unprofessional conduct and (2) aiding or abetting the prac
Attempts were made in the legislative session of 1957 (H.B. 2153), 1959 (S.B. 996), and 1961 (Sub. for H.B. 3667; H.B. 3679, 3689, 3693, 3745, 4228) to amend what is presently § 20-133. Some of the proposed legislation would have specifically allowed the practice of optometry by a licensed optometrist in charge of an optometrieal department in a store. Other bills offered would have specifically, or by indirection, prevented it. All of this proposed legislation, so far as it concerned the provisions of § 20-133 involved in this case, was rejected, and these provisions remained as they were after the 1939 amendment. Following 1939, the relevant language of § 20-133 went through two statutory revisions without change. Rev. 1949, § 4494; General Statutes § 20-133. The proposed legislation alerted
In the Lieberman case, supra, 351, we pointed out the danger to the public which could arise if an optometrist, by entering into an arrangement entitling him to a commission on optical goods sold on his prescription, should place himself in a position where his complete loyalty to his client would be jeopardized. That case was concerned with unprofessional conduct as a ground for revocation, a matter not involved in the present case. At least one court has relied on the Lieberman case as a basis for construing a statute such as ours as prohibiting corporate employment of optometrists. State ex rel. Sisemore v. Standard Optical Co., 182 Ore. 452, 465, 188 P.2d 309. We do not agree with that point of view. The evils described in the Lieberman case are not necessarily present in every case of corporate employment. In the present case, for example, there is nothing to show that the plain
Decisions in other states rest largely on the phraseology of the statutes involved. Most of the cases which have held illegal the corporate employment of persons licensed to practice optometry are
Conversely, corporate employment of persons licensed to practice optometry has been found to be impliedly authorized by some statutes. In Williams v. Mack, 202 Minn. 402, 406, 278 N.W. 585, and Matter of Dickson v. Flynn, 246 App. Div. 341, 343, 344, 286 N.Y.S. 225, aff’d, 273 N.Y. 72, 6 N.E.2d 102, statutes requiring the personal attendance and supervision of a licensed optometrist at all retail sales of eyeglasses were held to render lawful the corporate employment of optometrists. In Attorney General v. Kindy Optical Co., 265 Mich. 265, 266, 251 N.W. 343, a statute which spoke in terms of any “corporation . . . who maintains or operates . . . an optometrie department” was held to authorize the corporate employment of licensed optometrists. See Mich. Comp. Laws § 6788 (h) (1929). Similarly, optometry statutes which merely speak in terms of the employment of licensed optometrists have been held to indicate a legislative intent not to prohibit corporate employment of optometrists. See Klein v. Rosen, 327 Ill. App. 375, 386, 64 N.E.2d 225; Jaeckle v. L. Bamberger & Co., 119 N.J. Eq. 126, 127, 181 A. 181; State ex rel. Harris v. Kindy Optical Co., 235 Wis. 498, 503, 292 N.W. 283.
Decisions which do not turn on any such special statutory provision as heretofore discussed have refused to construe, as prohibiting the corporate employment of persons licensed to practice optometry, statutes which, like ours, merely regulate optometry. See Silver v. Lansburgh & Bro., 72 App. D.C. 77, 78, 111 F.2d 518; State ex rel. Attorney General v. Gus Blass Co., 193 Ark. 1159, 1168, 105 S.W.2d 853; Georgia State Board of Examiners in Optometry v. Friedmans’ Jewelers Inc., 183 Ga. 669, 675,
There is error, the judgment is set aside and the case is remanded with direction to grant the plaintiff’s petition for the restoration of his license.
In this opinion King, Mijrphy and Alcorn, Js., concurred.
“See. 20-133. grounds for revocation or suspension op license. OPTOMETRICAL OFFICE TO BE CONDUCTED BY LICENSED OPTOMETRIST. The license of any licensed practitioner of optometry in this state may be revoked, suspended or annulled, upon decision after notice and hearing, by the board for any of the following reasons: (a) Conviction in a court of competent jurisdiction, either within or without this state, of any crime involving moral turpitude or of any crime in the practice of his profession or of a felony or a misdemeanor; (b) immoral, fraudulent, dishonorable or unprofessional conduct; (e) illegal or incompetent or habitually negligent or unprofessional conduct in the practice of his profession; (d) conviction of publication or circulation of any fraudulent or misleading statement; (e) aiding or abetting the practice of optometry by an unlicensed person or a person whose license has been suspended or revoked; (f) presentation to the board of any diploma, license or certificate illegally or fraudulently obtained, or from an unrecognized or irregular institution or state board, or obtained by the practice of any fraud or deception. The license of any optometrist who peddles optical goods, or solicits orders therefor, from door to door, or who establishes a temporary office, may be revoked, and said board may refuse to renew such license. The license of any optometrist who employs solicitors or obtains money by fraud or misrepresentation in connection with the conduct of the profession of optometry shall be revoked, and said board shall not renew such license. The violation of any of the provisions of this chapter by any unlicensed employee in the employ of an optometrist, with the knowledge of his employer, shall be deemed to be a violation thereof by his employer; and continued violation by such an unlicensed employee shall be deemed prima facie knowledge on the part of such employer. No person except a licensed optometrist shall operate an optometrical office. Nothing herein contained shall be construed as prohibiting the conducting of clinics or visual surveys when they are conducted without profit.”
Dissenting Opinion
(dissenting). The plaintiff was ordered to appear before the state board of examiners in optometry to answer a eomplaint that he was “aiding or abetting the practice of optometry by an unlicensed person.” General Statutes §20-133 (e). The board, after a hearing, suspended the plaintiff’s license to practice. The Superior Court dismissed his appeal, and from that decision he has appealed to this court. A majority of the court have decided that the board lacked the power and competence to suspend the plaintiff’s license to practice although the board found that he was guilty of the charge.
The practice of optometry is defined to be the employment of any means other than drugs for the measurement of the power of vision and the adaptation of lenses for the aid thereof. General Statutes § 20-127. The majority concede, as indeed they must, that a corporation cannot qualify for a license to practice optometry. § 20-130; Lieberman v. Connecticut State Board of Examiners in Optometry, 130 Conn. 344, 352, 34 A.2d 213. Without a license, a corporation cannot practice optometry. § 20-138a.
Among the facts found by the board and important to the decision of this case are the following: The plaintiff is employed by a corporation as an optometrist to render optometrical services to its customers. The corporation pays him a weekly salary, fixes the fees for the work done by him, collects the money for his services and credits the income to its gross corporate income. The corporation has a jewelry store and advertises as “opticians,” but no licensed optician is employed in its store. Eyeglasses sold by the corporation are for the most part prescribed by the plaintiff. All of the equipment of the optometrical department in the store is owned by the corporation, which purchases its ophthalmic materials from another company which is owned by the family which operates the corporation. The stationery, prescription blanks and appointment cards used by the plaintiff as an admitted employee of the corporation do not represent the true relationship existing between the plaintiff and his employer.
From these facts it is clear that the plaintiff is under the supervision and control of the corporation. He is but the agent or servant of his master. He owes his primary allegiance and obedience to the corporation as his employer. The interests of the patients and clients who come to him must of necessity be secondary. For the sake of self-preservation, he will make every effort to satisfy the wishes and demands of his employer, who may dismiss him should he fail to produce the measure of profit expected from his services. The plaintiff admits that he is an employee of the corporation.
The sole charge against the plaintiff is that, as a licensed optometrist, he aided or abetted an unlicensed person in the practice of optometry. Consequently, our consideration must be restricted to the portion of § 20-133 which relates to the charge on which the plaintiff was presented. For some unexplainable reason, the majority of the court have failed to discuss the specific charge made against the plaintiff. Aside from a passing reference to the language of subsection (e) of §20-133, the
The prohibition of the statute includes every person who does not have a license. The term “person” includes a corporation. Greneral Statutes § 1-1. The word “operate” as used in the statute must be taken in its plain, ordinary, accepted meaning. “Operate” means to “put into or continue in operation or activity ... to conduct ... or carry on, or to work.” State v. Woolley, 88 Conn. 715, 718,
The majority have referred to the repeated refusals of the legislature to amend § 20-133. It is argued that the legislation which was proposed alerted the legislature to the possibility that optometrists might be employed to operate an optometrical office owned by an unlicensed person. This argument is indeed an ingenious one. Since 1939, not less than thirteen attempts have been made to amend the law. Examination of every one of the bills brought to the court’s attention indicates that nine of the proposals, if adopted, would have made legal what the majority of this court now declare to have been legal under the statute existing since 1939. From 1941 through 1961, these nine proposed amendments were based on the assumption that a corporation could not engage in the practice of optometry by employing the services of a licensed optometrist. Two of the remaining proposals would have made it unlawful for an unlicensed person to practice optometry by engaging the services of a licensed optometrist on a salary, commission or sublease basis but would not have affected any such relationship existing at the time the legislation went into effect. S.B. 667, 1945 Sess.; H.B. 3693, 1961 Sess. The obvious purpose of these last two proposals was to legalize any unlawful relationships then existing. Out of all the amendments proposed, only two contained genuine prohibitions against the employer-employee rela
References made by the majority to any lack of a showing of unprofessional conduct on the part of the plaintiff are of no significance whatever, since that matter was not material to the issue presented by the charge that the plaintiff was aiding or abetting the practice of optometry by an unlicensed person. Our function on this appeal is to determine whether the board acted illegally in suspending the plaintiff’s license. We do not retry the case. Our
The chapter of the statutes regulating the practice of optometry clearly recognizes it as a profession. General Statutes § 20-128. The board is authorized to make and enforce such regulations as it deems necessary to maintain proper professional and ethical standards for practitioners of this profession. This calling, originally regarded as a trade, has increasingly taken on the aspects of a learned profession. Lieberman v. Connecticut State Board of Examiners in Optometry, 130 Conn. 344, 347, 34 A.2d 213. “It is a matter of common knowledge that where a person suffers from defective vision the use of eyeglasses not correctly adapted to remedy the defect may seriously aggravate it and, because of the resultant eye strain, may bring about nervous and even physical disorders, with accompanying discomfort and loss of efficiency.” Sage-Allen Co. v. Wheeler, 119 Conn. 667, 677, 179 A. 195. “It may be that the standards of professional conduct which should govern the practice of optometry are not regarded as in all respects the same as those which govern the practice of a physician. . . . Still, in view of the recognized character which the former profession has today, there are certain fundamental requirements common to both. One of these is that the patient who resorts to an optometrist for advice and help is entitled to the same undivided loyalty that he should receive from a physician.” Lieberman v. Connecticut State Board of Ex
Optometry is no longer a mere incident to a merchandising business. It has become a real science, devoted to the measurement, accommodation, and refractory powers of the eye without the use of drugs. It is one of the more important professions and, to prepare for the proper practice of optometry, extensive education and training are required. Legislators throughout the entire country have recognized that the proper practice of this profession is of the most vital importance to the public
In my view, the trial court did not err in dismissing the plaintiff’s appeal.
Reference
- Full Case Name
- Maurice H. MacK v. Walter F. Saars Et Al., Connecticut State Board of Examiners in Optometry
- Cited By
- 35 cases
- Status
- Published