Opinion
No. 68-1073.
October 28, 1969.
Appeal from the Circuit Court for Dade County, James Lawrence King, J.
Blackwell, Walker Gray and James E. Tribble, Miami, for appellant.
Edward P. Swan and Charnelle H. Summers, Jr., Miami, for appellee.
Before PEARSON, C.J., and CHARLES CARROLL and BARKDULL, JJ.
The Florida Association of Dispensing Opticians filed a complaint pursuant to Chapter 86, Fla. Stat. (1967), F.S.A., seeking a declaration that the members of the Association are authorized by §§ 484.01 and 484.02, Fla. Stat. (1967), F.S.A., "to engage in the practice of preparing and fitting contact lenses" and praying the circuit court to "permanently enjoin the defendant, FLORIDA STATE BOARD OF OPTOMETRY, from any activities aimed at stopping the preparing and fitting of contact lenses by the licensed dispensing opticians of this state when done in compliance with Florida Statute Chapter 484.01 and 484.02 [F.S.A.]." The Board's answer denied that Chapter 484 gives "opticians the powers to * * * fit, adapt or adjust contact lenses" and by way of counterclaim prayed the court, among other things, to enjoin the members of the Association from fitting contact lenses "without the physical presence and personal supervision of a licensed optometrist or licensed physician * * *." In its final judgment the court ruled
State board of dispensing opticians; jurisdiction; scope of law. There is hereby created a board to be known as the state board of dispensing opticians, which shall have exclusive jurisdiction over the trade or occupation of dispensing opticians. This chapter provides for the examination and regulation of dispensing opticians; provides a license tax and an occupational tax on persons, partnerships or corporations now or hereinafter engaged in such trade or occupation; prohibits the sale of eyeglasses, spectacles, artificial eyes, lenses, contact lenses and optical devices, except as herein provided, unless and until the dispensing optician has qualified with and obtained a license from the said state board of dispensing opticians; this chapter also provides for the licensing of dispensing opticians having a license to practice and trade on June 8, 1949; this chapter also prescribes the manner of enforcing the provisions of this chapter and fixes the penalties for the violation of the terms and provisions thereof; the said chapter defines the jurisdiction, limitation and powers of said state board of dispensing opticians. Natural persons, partnerships or corporations may engage in the trade or occupation of dispensing opticians, but each place of business maintained in the state shall have a duly licensed dispensing optician to supervise the preparing, fitting and adjusting of optical devices.
Dispensing optician defined. A dispensing optician is defined as one who prepares and dispenses lenses, spectacles, eyeglasses and optical devices to the intended user thereof on the written prescription of a physician or optometrist, duly licensed to practice his profession. A dispensing optician may duplicate lenses without precription, provided, however, that such duplication shall be exact as to type, form and effective power and provided, further, that said dispensing optician shall not engage in the diagnosis of the diseases of the human eye or attempt to determine the refractive powers of the human eyes or, in any manner, attempt to prescribe for or treat diseases or ailments of human beings. A dispensing optician who qualifies under this chapter shall be determined and recognized as engaging in a lawful trade or occupation in the state. The state board of dispensing opticians shall have exclusive jurisdiction in the enforcement of this chapter over all persons, partnerships or corporations engaged in business as a dispensing optician, whether licensed or unlicensed; provided, however, that nothing herein contained shall be construed as limiting or in anywise abrogating the power or authority of any board or commission created under any of the Laws of Florida, defining and regulating any profession, to enforce the provisions of such respective laws, or exercising any of the powers contained in such laws against violators thereof, even though engaged in the business of a dispensing optician.
"[t]hat a dispensing optician has the statutory right to sell contact lenses pursuant to Florida Statute 484.01 [F.S.A.], but a dispensing optician has no statutory right under Chapter 484. F.S. [F.S.A.] to insert, fit, adapt or adjust contact lenses to the eyes of an individual. Only a licensed physician or a licensed optometrist has the statutory right under the laws of Florida to insert, fit, adapt, or adjust contact lenses to the eyes and face of a patient"
and in addition sua sponte dismissed the Board's counterclaim. The Association appeals from the ruling adverse to it, and the Board cross-appeals from the ruling dismissing its counterclaim. We affirm in its entirety the final judgment appealed from.
The appellant Association argues first that the term "optical devices" as used in §§ 484.01 and 484.02 names a class of things, that one member of the class "optical devices" is contact lenses, and that therefore the last sentence of § 484.01 grants licensed opticians the authority to fit and adjust contact lenses to the eyes of human beings. It argues next that since § 484.02 specifies activities licensed opticians are forbidden to engage in, the doctrine that the expression of one thing is the exclusion of another leads to the conclusion that § 484.02 implicitly grants licensed opticians authority to engage in an activity not mentioned, namely, the fitting and adjusting of contact lenses. We cannot agree.
We do not think anyone will disagree that the beneficial purpose of Chapter 484, Fla. Stat. (1967), F.S.A., is to protect from harm the eyes of all people in Florida. We must construe §§ 484.01 and 484.02 (liberally or strictly, as the case may require) so as to accomplish this beneficial purpose. See George v. State, Fla.App. 1967, 203 So.2d 173, 175; 3 Southerland, Statutory Construction, § 7202 (3rd ed. 1943). In construing §§ 484.01 and 484.02 we must also consider the principle "that statutes granting corporate powers, rights, [etc.] are strictly interpreted in favor of the public and against the corporation." 3 Southerland, Statutory Construction, § 6502 at 235 (footnote omitted). Cf. Tampa J. Ry. Co. v. Catts, 79 Fla. 235, 85 So. 364, 366 (1920). With the foregoing principles in mind we conclude that in order to effectuate the beneficial, public purpose of §§ 484.01 and 484.02, we must construe those sections strictly and hold that they do not grant opticians (licensed or unlicensed) authority to fit or adjust contact lenses to the eyes of human beings. Appellant's second argument does not convince us to change our holding.
"* * * the contact lens is an unsterile, and sometimes unclean, foreign body which is being introduced into the eye for contact with the delicate cells of the corneal layer of the eyeball, and * * * this close contact prevents the normal metabolic processes which occur in the cornea and disturbs normal processes such as the chemical composition of the fluid film over the corneal surface.
"One of the legal problems involved in this situation is that in some states, non-medical (i.e., lay) technicians are authorized to `fit' contact lenses, either with or without prescription by a physician. The definition of `fit' is not always clearly set out. In too many instances, difficulties arising from the use of the lenses are either treated by the patient himself or on the advice of the lay technician who `fitted' the lenses. Injuries may even go on unrecognized until serious harm has been done if the patient is not under some kind of supervision or observation by his eye specialist." 4 Gray, Attorneys' Textbook of Medicine, 1966 supplement to ¶ 62A.70, page 104 (3rd ed.).
See also 6 Lawyers' Medical Cyclopedia, § 39.26, and supplement thereto.
In April 1955 a bill dealing with the authority of opticians to fit contact lenses was introduced in both the House and Senate of the Florida Legislature. It was not adopted. Another bill on the same subject was introduced before the House this year and was not adopted. Our construction of §§ 484.01 and 484.02 must govern until such time as the Legislature deems it proper to set forth specifically the authority of dispensing opticians with regard to the fitting and adjusting of contact lenses.
Our holding is supported by cases cited in the annotation at 88 A.L.R.2d 1290, 1309, § 5, and supplement thereto; see especially Fields v. District of Columbia, 232 A.2d 300 (District of Columbia Court of Appeals 1967). And see 1963 Op.Atty.Gen., 063-144, November 26, 1963.
Appellee's argument on cross-appeal has not demonstrated that the trial judge erred in ruling on appellee's counterclaim. The dismissal of the counterclaim for injunction was within the discretion of the trial judge even though the granting of an injunction in order to carry into effect the trial judge's ruling on appellant's claim might have been helpful to the appellee by avoiding other law suits. Because the injunction sought by the appellee would have been directed to the individual members of the appellant Association and because giving notice to each individual member would be difficult, we hold that the trial judge's ruling on the counterclaim was correct. The obvious benefit to the appellee may be balanced by the difficulties in enforcement. Therefore no abuse of discretion has been shown. Cf. Simms v. Patterson, 53 Fla. 984, 43 So. 421 (1907).
Affirmed.
I respectfully dissent. The decision of this court affirms the holding of the trial court that under Chapter 484, Fla. Stat., F.S.A. a dispensing optician can prepare and dispense contact lenses, but cannot fit or adjust them, and that only a licensed physician or licensed optometrist can fit and adjust contact lenses.
Nowhere in the statute do I find a provision that contact lenses can be fitted and adjusted only by a licensed physician or licensed optometrist. On the contrary, by clear implication from the language of § 484.01, dispensing opticians are authorized not only to prepare and dispense but also to fit and adjust contact lenses.
Section 484.01 includes a clause which prohibits "the sale of eye glasses, spectacles, artificial eyes, lenses, contact lenses and optical devices, except as herein provided, unless and until the dispensing optician has qualified with and obtained a license from the said state board of dispensing opticians." That clause of § 484.01, by indirection, authorizes the sale of such items by one who is so licensed. The provision with reference to fitting and adjusting optical devices is in the last sentence of § 484.01, viz: "Natural persons, partnerships or corporations may engage in the trade or occupation of dispensing opticians, but each place of business maintained in the state shall have a duly licensed dispensing optician to supervise the preparing, fitting and adjusting of optical devices." I am at a loss to understand how the term "optical devices," as thus used in the statute with reference to the fitting and adjusting thereof, can be said not to include contact lenses, when it is conceded that it does include all of the other kinds of optical devices which, with "contact lenses," were listed above in that section.
Section 484.02 enumerates the things which dispensing opticians are prohibited from doing. Those are that a dispensing optician "shall not engage in the diagnosis of the diseases of the human eye or attempt to determine the refractive powers of the human eyes or, in any manner, attempt to prescribe for or treat diseases or ailments of human beings." The fitting or adjusting of contact lenses does not fall within the above listed prohibitions in the statute.
The majority opinion expressed the view that the beneficial purpose of Chapter 484 is to protect from harm the eyes of all of the people of Florida, and then, proceeding on an assumption that it would be contrary to the object and purpose of Chapter 484 to permit dispensing opticians to fit and adjust contact lenses, and that the statute should be construed to accomplish its beneficial purpose, held the statute does not authorize dispensing opticians to fit or adjust contact lenses. In my opinion that holding of the majority gives the statute a meaning contrary to its language, and in effect adds language to the statute. If the statute was felt to be unwise for not including, in the list of acts which it prohibited, the fitting and adjusting of contact lenses by dispensing opticians, that should be no concern of the court, but a matter for legislative attention and for amendment of the statute by the legislature, if it should deem such action necessary.
In fact, as shown in the record here, an unsuccessful effort was made in 1955 to amend this 1949 statute to include fitting and adjusting of contact lenses in the list of prohibited acts (refraction, diagnosis and treatment of the eye and of humans generally). Such a bill was introduced in the House of Representatives in 1955, but was not passed, when it received an adverse report of the committee on Public Health to which it was referred.
That significant action of the 1955 legislature should not be overlooked. The attempt to amend the statute in such respect shows that as originally worded it was considered to authorize dispensing opticians to fit and adjust contact lenses, and that an amendment was necessary if such action was to be prohibited. The legislature's rejection of the proposed amendment furnishes basis to assume it did not consider such action by dispensing opticians to be harmful to the public; and the fact that for twenty years the statute has been construed and acted upon as authorizing dispensing opticians to fit and adjust contact lenses gives weight to the argument that by its wording it so authorized.
Accordingly, I would vote to reverse the judgment.