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Abelson''s Inc. v. New Jersey State Board of Optometrists

Decided: May 6, 1952.

ABELSON'S, INC., A CORPORATION OF THE STATE OF NEW JERSEY, AND MONROE SMALLZMAN, PETITIONERS,
v.
NEW JERSEY STATE BOARD OF OPTOMETRISTS, RESPONDENT



McGeehan, Jayne, and Goldmann. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

In pursuance of Rule 3:81-10 the plaintiffs seek by the presentation of their petition a declaratory judgment concerning the validity of certain administrative regulations promulgated by the New Jersey State Board of Optometrists and filed on March 27, 1951, with the Secretary of State. R.S. 45:12-4.

The discretion of the Legislature relative to the regulation of the profession of optometry has recently engaged the

attention of our Supreme Court in Abelson's, Inc., v. N.J. State Board of Optometrists , 5 N.J. 412 (1950). The opinion therein rendered unmistakably charts the path of reasoning to be pursued by this court in the consideration and determination of the present action. See, also, the opinion of Judge Stein, 3 N.J. Super. 332 (Ch. Div. 1949), which was modified by the Supreme Court, supra , and N.J. State Board of Optometrists v. M.H. Harris, Inc. , 14 N.J. Super. 66 (App. Div. 1951).

The specific regulations here impugned by the petition are:

"3. No optometrist shall be permitted to advertise in any media except newspapers, periodicals, and professional cards.

4. No optometrist shall be permitted to advertise using any information except that found on a professional card. A professional card shall contain only the name, title, profession, degrees, address, telephone number and office hours of the licensed optometrist."

The pertinent section of the statute to which our attention is invited is R.S. 45:12-11(h) as amended L. 1948, c. 350, p. 1405, ยง 4. The Supreme Court has said:

"* * * The authority to make rules and regulations for the effectuation of the statutory policy is administrative and not legislative, if its exercise is confined by certain and definite standards of action, even though the regulations be given the force and effect of law. It is a corollary of this principle that the rules and regulations and administrative action cannot subvert or enlarge upon the statutory policy or the rules and regulations therein set down. Administrative implementation cannot deviate from the principle and policy of the statute."

Abelson's, Inc., v. N.J. State Board of Optometrists, supra , on p. 423 et seq.

Moreover the Supreme Court announced (on p. 422):

"The phrase 'false, fraudulent or misleading advertising' constitutes a standard of conduct sufficiently definite and certain to permit of enforcement by the administrative agency without trenching upon the legislative domain. Generally, it embraces advertising that is ...


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