Opinion
May 7, 1954. Rehearing Denied June 8, 1954.
Appeal from the Circuit Court, Dade County, N. Vernon Hawthorne, J.
DeCostas, Maer Floyd, Miami, for appellants.
William C. Pierce, Tampa, for appellees.
Appellants are registered optometrists under the law of this state. Appellees constitute the Florida State Board of Optometry, which will hereinafter be referred to as the Board. It promulgated rules and regulations governing the practice of optometry. Appellants filed their complaint charging said rules and regulations to be ultra vires and discriminatory. It prayed that the Board be restrained from enforcing them. The complaint was dismissed and the plaintiffs appealed.
The point for determination is whether or not Rules 20, 21, 22, 23, 24, 25, and 27, governing the practice of optometry are violative of the constitution and laws of Florida, in that they exceed the power of the Board to enact them.
Appellants contend that these rules enlarge on or exceed the statutory power of the Board to such extent that they are arbitrary and unconstitutional and should be stricken down. New Jersey State Board of Optometrists v. M.H. Harris, Inc., 14 N.J. Super. 66, 81 A.2d 387; Abelson's, Inc. v. New Jersey State Board of Optometrists, 19 N.J. Super. 408, 88 A.2d 632; Howard Co. Jewelers v. New Jersey State Board of Optometrists, 133 N.J. Eq. 4, 29 A.2d 742 and other cases are relied on to support this contention. In further support of this premise appellants point out that Section 463.14 (1) F.S.A. inhibits optometrists "to advertise in any manner that will tend to mislead or deceive the public", that the prohibitions contained in said rules in no way relate to misleading or deceiving the public, and being so, the Board exceeded its authority in promulgating them.
There is no question about the power of the Board to prescribe and enforce rules and regulations governing the practice of optometry. The point is whether or not the rules promulgated exceeded the power of the Board as defined by the statute. The practice of optometry is recognized as a profession in this State, Section 463.01 F.S.A. It is administered by the Florida State Board of Optometry, Section 463.02, F.S.A. Section 463.05, F.S.A. authorizes said Board to promulgate rules and regulations and is as follows:
"Said board shall have the power and it shall be its duty to enforce this law and to prosecute all violations of this law, and to make rules and regulations not inconsistent with the provisions of this law, governing the practice of optometry, and to make such other rules and regulations to carry out the provisions of this law as it may consider necessary to the proper performance of its duties."
The rules complained of are substantially those embraced in the Code of Ethics governing optometrists and relate to advertising by members of that profession. Section 463.11, F.S.A. being pertinent, provides:
"* * * and the advertising by any means whatsoever of treatments or advice in which untruthful, improbable, misleading, or impossible statements are made * * *" shall be considered "unprofessional conduct."
"* * * to advertise, practice, or attempt to practice under a name other than his own * * *."
Section 463.14 (1) F.S.A. is also pertinent and provides:
"(1) It is unlawful for any person, firm or corporation * * * to advertise in any manner that will tend to mislead or deceive the public * * *."
Appellant contends that these provisions of the statute constitute the law on the question of advertising by optometrists and that when the Board by rule limited the size of lettering on the office windows and doors, prohibited the display of eyeglass signs, painted or decalcomania eyes, limited the use and content of professional cards, regulated announcements and directory advertising, prohibited the display of opthalmic material and merchandise through office windows or doors, that such rules have no relation whatever to the statutory standard requiring that optometrists shall not advertise "in any manner that will tend to mislead or deceive the public". The practice of optometry as defined by law, Section 463.01, F.S.A., has to do with the "diagnosis of the human eye and its appendages, and the employment of any objective or subjective means or methods for the purpose of determining the refractive powers of the human eyes, or any visual, muscular, neurological or anatomic anomalies of the human eyes and their appendages, and the prescribing and employment of lenses, prisms, frames, mountings, orthoptic exercises, light frequencies and any other means or methods for the correction, remedy, or relief of any insufficiencies or abnormal conditions of the human eyes and their appendages." In order to become a skilled practitioner, the optometrist is required to undergo four years of professional training in preparation to practice his profession, his work involves one of the most delicate organs of the human body. The power to make rules and regulations "not inconsistent with the provisions of this law * * * and to make such other rules and regulations to carry out the provisions of this law as it may consider necessary" involves a very broad discretion. Each and every one of the rules complained of has been examined and while some of them may be said to explain, expand, or expound the statute, we cannot say that they are not contemplated by it or comprehended in the power conferred.
Codes of Ethics governing professional conduct are designed to protect both the professional and the welfare of the public. Appellees suggest that appellants' grievance is laid on the fact that they want to compete with the optician which they cannot do under the rules complained of. If any phase of the opticians' business overlaps that of the optometrist and vice versa, there would be no legal objection to casting the rules so as to confine both businesses in their proper field. This is particularly true as to optometrists and the opticians because literally thousands of the lay public do not distinguish the difference between them and have no conception of the wide divergence that bounds them.
It is accordingly our view that the rules complained of are within the express or implied authority of the Board to promulgate and that they are not only valid but necessary to effectuate the full intent and purpose of the law.
The judgment assaulted is therefore affirmed.
Affirmed.
THOMAS, SEBRING and MATHEWS, JJ., concur.
ROBERTS, C.J., and HOBSON and DREW, JJ., dissent.
The rules referred to in the main opinion and to which the appellants object, are as follows:
Rule 20.
"No registered Optometrist shall display any sign containing other than his name, profession, and office hours. No such sign may be used except on office windows or in connection with an entrance to his office. Lettering in such signs may not be luminous or illuminated, and must not be more than 4" in height for street level or 7" in height above street level."
Rule 21.
"No registered Optometrist shall display eyeglass signs or painted or decalcomania eyes anywhere or in any manner or form of advertising."
Rule 22.
"No registered Optometrist shall use other than his professional card in any publication or in any public display medium. Such card shall contain no more than his name, profession, office location, telephone number, office hours, the language `eye examination by appointment' and/or the language `practice limited to ____' (any one optometric specialty). Such card shall not exceed one column by two (2) inches in any publication or public display medium."
Rule 23.
"Any registered Optometrist may publish a one column two (2) inch professional announcement as distinguished from a professional card. Such professional announcement shall be limited to a statement of the original establishment of an office, and that there has been a change in the professional personnel, and/or location. Publication of such announcements shall not exceed a period of three months."
Rule 24.
"No registered Optometrist shall use or permit any advertising of his professional services by the medium of advertising known as `display advertisement.' Display advertising is hereby defined as any advertising containing any information thereon or therein other than the name, office address, telephone number and hours open for service of the Optometrist so advertising. Display advertising shall also include advertising in any listing or directory of whatever kind or character containing other than the usual and contemporary advertising contained in such listing or directory, either with respect to the size of such advertising or otherwise, and shall also include the use of bold-face type or any other type of printed matter which may in any manner reasonably constitute an attempt to attract special attention to himself, in any telephone or other public directory or public display medium."
Rule 25.
"No registered Optometrist shall display any merchandise, ophthalmic material or instruments, or such advertising of any kind, in or through the windows or doors of his office."
Rule 27.
"Window displays of any registered Optometrist are prohibited. A window display is defined and construed by the Board as any advertising or public display on the window or windows of the office of any registered Optometrist, which would be prohibited in any other form of advertising or other public display medium as set forth in any of these amended rules and regulations."
Section 463.05, Florida Statutes 1951, F.S.A., gives the Board the power to enforce the law under discussion, to prosecute all violations thereof and "to make rules and regulations not inconsistent with the provisions" of the law governing the practice of optometry, and to make such other rules and regulations as the Board deems necessary to the proper performance of its duties under the act.
Section 463.11, Florida Statutes 1951, F.S.A., provides that "advertising by any means whatsoever of treatments or advice in which untruthful, improbable, misleading, or impossible statements are made" shall be considered unprofessional conduct. Again, in the same section, an optometrist is prohibited "* * * to advertise, practice, or attempt to practice under a name other than his own * * *."
Section 463.14 (1), Florida Statutes 1951, F.S.A., provides "It is unlawful for any person, firm or corporation * * * to advertise in any manner that will tend to mislead or deceive the public; * * *."
The above quoted excerpts from the optometrists' law clearly limit the power of the Board in the adoption of rules and regulations relative to advertising. The Legislative intent is clear that lawful regulations of the Board on this subject could encompass only that type of advertising which would tend to mislead or deceive the public. The rules which are the subject of this litigation go far beyond the limits prescribed by the Legislature. An almost identical situation was passed on in the case of Abelson's, Inc. v. New Jersey State Board of Optometrists, 19 N.J. Super. 408, 88 A.2d 632. In that case the New Jersey Court held two sections of New Jersey regulations similar to the regulations hereunder attacked, invalid. I think the reasoning in that opinion is expressly applicable to the situation here.
In reaching this conclusion, I am not unmindful of the fact that the code of ethics of the Optometrists Association encompass the provisions contained in the regulations and that from an ethical point of view the regulations are highly justified. The question here, however, is one of statutory construction. It was within the power of the Legislature to provide the limitations within which the Board could regulate the practice of the profession. The regulations adopted exceeded those limits and are therefore invalid under principles which have long been recognized by this Court.
For the above reasons I respectfully dissent.