New Jersey State Board of Optometrists v. Lichtman
Court: New Jersey Superior Court Appellate Division; October 4, 1954; New Jersey; State Appellate Court
A licensed optometrist is appealing a 30-day suspension of his practice license imposed by the New Jersey State Board of Optometrists due to violations of N.J.S.A. 45:12-11 and related Board rules. The Board determined that the optometrist violated N.J.S.A. 45:12-11(p) by engaging in prohibited solicitation practices and N.J.S.A. 45:12-11(s) for breaching Board regulations, specifically Rule No. 9. This rule indicates that any promotional statements recommending a specific optometrist’s services, especially in conjunction with contractual agreements, are considered solicitation. Additionally, the optometrist was found to have violated N.J.S.A. 45:12-11(o) for conduct likely to deceive the public and again N.J.S.A. 45:12-11(s) by breaching Rule No. 8(B)(2), which prohibits allowing unlicensed individuals to list contact information associated with a licensed optometrist. The optometrist argues that the rule regarding unlicensed listings is unreasonable and that evidence of discounts or solicitation through an agent was not established. He acknowledges allowing a 'Reading Group for Children,' directed by his wife, to list his contact numbers but claims this was due to a lack of phone access during a national emergency, and he ceased this practice upon learning of its violation.
Evidence shows that the appellant's office and the reading group's location were in the same building, with a dual phone line used for both. Over six years, Mrs. Lichtman occasionally referred children for visual screenings to the appellant, who treated ten to twelve of these children as patients. The State Board of Optometrists' authority to create rules is confined to what the Legislature has granted. Rule 8(B)(2), which prohibits an optometrist from allowing an unlicensed person to list their phone number, aims to ensure direct patient contact and prevent indirect patient solicitation. This rule is deemed reasonable under N.J.S.A. 45:12-11(o), which allows the Board to suspend licenses for misleading conduct.
The appellant argues that there was insufficient evidence for the Board's finding of discount solicitation through an agent. The investigation began with Dr. Robbins, who referred a professional investigator, Marie Ruth Miller, to the appellant’s office. During her visit, Miller received an eye examination and negotiated a price of $31.50 for services. She presented a business card from Dr. Robbins, which indicated a union connection, and requested a discount. The appellant acknowledged a general discount for union members but stated he could not discuss specific amounts due to legal constraints. Testimony from Miller and her companion, Ethel Palmer, constituted the evidence against the appellant, alongside his own admission of treating a few union members who mentioned potential discounts.
Optometry is legally recognized as a profession, not merely a trade, and licensed optometrists must adhere to professional conduct standards as outlined by their regulatory statutes. Charges of professional misconduct, which could lead to license suspension, severely impact an optometrist's reputation. Thus, investigations into such charges should be thorough to ensure all relevant evidence is considered.
The investigation into the charges under Rule 9 was inadequate, as it failed to provide evidence regarding the origin of Dr. Lichtman’s business card and did not attempt to identify L. Jones, whose name was noted on the card. Both aspects are crucial for establishing proof. If a discount agreement or solicitation through an agent existed, L. Jones would be a key witness. Essential questions about how the card was obtained, the circumstances surrounding Jones’ name, and the identity and relationship of Jones with the union remain unanswered. The evidence submitted to the Board was insufficient to substantiate a violation of Rule 9, lacking proof of any announced agreement or discount offer, as well as the solicitation through an agent as per N.J.S.A. 45:12-11(p). Consequently, the Board's finding of a violation under N.J.S.A. 45:12-11(o) and Rule 8(B)(2) is affirmed, but the finding regarding N.J.S.A. 45:12-11(p) and Rule 9 is reversed. A 30-day period is granted before any mandate is issued to allow the Board or counsel to consider further action based on this determination.
