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New Jersey State Board of Optometrists and John J. Brown v. Lichtman

Decided: October 4, 1954.

NEW JERSEY STATE BOARD OF OPTOMETRISTS AND JOHN J. BROWN, INSPECTOR, NEW JERSEY STATE BOARD OF OPTOMETRISTS, PLAINTIFF-RESPONDENT,
v.
WILLIAM M. LICHTMAN, O.D., DEFENDANT-APPELLANT



Davidson, Hughes and Pindar. Davidson, J.s.c. (temporarily assigned).

Davidson

[32 NJSuper Page 279] This is an appeal by a licensed optometrist from the decision and order of the New Jersey State Board of Optometrists suspending

his license to practice for 30 days by reason of the violation of N.J.S.A. 45:12-11 and the rules of the Board duly promulgated thereunder.

Specifically, the Board found that appellant had violated the provisions of N.J.S.A. 45:12-11(p) (which prohibits solicitation in person or through an agent, or employing "solicitors" to obtain business) and N.J.S.A. 45:12-11(s) (which prohibits the violation of rule or regulation duly promulgated by the Board thereunder), by virtue of his violation of Rule No. 9 of the New Jersey State Board of Optometrists, which provides that:

"9. Any statement, printed, written or oral, published, posted or circulated, directly or indirectly, by any person, firm, corporation, group or association, which quotes or specifies the name of any individual optometrist, firm or partnership of optometrists or any person, firm or corporation employing or having associated with him or it one or more optometrists, by way of especially recommending the professional services of the said optometrist, firm or corporation in conjunction with the announcement of the consummation of any contract, agreement or arrangement for professional services with the said optometrist, firm or corporation, in which announcement the said contract, agreement or arrangement may be purported to offer optometric services at a stipulated fee, or any variation of such a fee, or as being free, or at a fee which is presented to be smaller than ordinary fees or which purports to offer discounts or any other inducements or advantages to prospective recipients of such services, shall be prima facie evidence of soliciting through agents, within the meaning of section 45:12-11 (p) of chapter 12 of Title 45 of the Revised Statutes, on the part of the optometrist or optometrists so named, specified or involved, if such optometrist or optometrists are shown to be accessories to such contract, agreement or arrangement by satisfactory evidence of their providing or rendering optometric services in accordance with such contract, agreement or arrangement."

The Board further found that appellant had violated the provisions of N.J.S.A. 45:12-11(o) (which prohibits any conduct of a character likely to deceive or defraud the public) and N.J.S.A. 45:12-11(s) (which prohibits the violation of rule or regulation duly promulgated by the Board thereunder), by virtue of his violation of Rule No. 8(B)(2) of the New Jersey State Board of Optometrists, which provides that:

"8. (B) No optometrist shall cause or permit any listing of * * *

(2) any trade name or corporate name, or the name of any person, firm, corporation, partnership or association not licensed to practice optometry under the provisions of Chapter 12 of Title 45 of the Revised Statutes of New Jersey, in which additional listing the address and/or telephone number is the same as that of the said optometrist."

Appellant contends that the violation of the rule that an optometrist may not permit an unlicensed person to list his telephone number is unreasonable and insufficient to warrant a suspension under the facts presented, and that the evidence did not establish the granting of discounts and the solicitation of business through an agent.

Appellant admits, and it is established in the evidence, that he permitted a "Reading Group for Children," of which his wife is director, to list his home and office telephone numbers, but he maintains that this was occasioned by the fact that Mrs. Lichtman had been unable to obtain a telephone because of the national emergency, and that he discontinued the use when he was informed that it was a violation of the rules.

The evidence indicates that the dual listing of the telephones obtained for about six years; that appellant's office and the rooms of the reading group are on the ground floor of the same building, and the telephone rang in both places; that occasionally children in the group were requested by Mrs. Lichtman to have a visual screening or test by appellant or his associate, and that appellant, over the six-year period of the group's existence, had received some ten or twelve of the students as patients referred by their parents.

The power of the State Board of Optometrists to make rules is limited to the statutory authority given them by the Legislature. Abelson's, Inc. v. New Jersey State Board of Optometrists , 5 N.J. 412 (1950). The obvious purpose of Rule 8(B)(2), which prohibits an optometrist from permitting an unlicensed person to list his telephone number, is to assure direct contact with ...


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