Gaulkin, Foley and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
Defendant John Reiss, a licensed optician of this State, appeals from a conviction in the Morris County District Court for practicing optometry without a license. He contends that the acts he performed, involving the alleged fitting of contact lenses for a customer, did not constitute the practice of optometry as defined by law.
The facts are uncomplicated and, in the main, undisputed. The legal issues involve jurisdictional questions which require statutory interpretation. The New Jersey Optometric Association, upon consent of the parties litigant and with leave of this court, appeared as amicus curiae.
On July 19, 1962 Eilene Littig, an investigator for the Division of Professional Boards of the State of New Jersey, visited defendant's office in Morristown for the announced purpose of obtaining contact lenses. She was advised that a prescription would be necessary and was referred to Dr. Edward V. Saradarian, an ophthalmologist. That same day she consulted the doctor who, after obtaining a pertinent medical history, made examinations and performed tests. Dr. Saradarian testified that after he had determined that the patient
could wear contact lenses, he gave her a prescription and told her that Mr. Reiss would get the lenses and teach her how to use them. She was to return to him after she had eight hours' wearing time but "sooner if Mr. Reiss deemed it advisable." Under cross-examination the doctor admitted that contact lenses could not be fabricated on the basis of his prescription without additional measurements.
The following day Littig revisited the optician's office. Her eyes were then measured by him with a device known as a keratometer. He also used a "P.D. ruler," graduated in millimeters, to ascertain the size of the cornea and the aperture of the eyelids. The customer was informed that it would take about a week for the lenses to be fabricated and that the cost would be $150 which included "all the fitting that he was to do, plus two visits to Dr. Saradarian, one after a wearing period of, approximately, eight hours, and the other one after a wearing period of fourteen hours."
At the time of her next appointment, August 1, Reiss had procured the lenses. He demonstrated their application and the function of the eyelids in effecting proper placement, retention and removal. She testified that, when she evidenced difficulty in following his instructions, the lenses were inserted by the defendant, and, when she complained about sensations of irritation, tearing and scratching, he examined her eyes with a "pencil light," identified as a transilluminator. Before leaving, she was given a two weeks' wearing schedule with the advice "if anything was bothering me, that I should call him up and come in at the end of the week, and he'd fix it."
On the occasions of her subsequent visits (August 15, 22 and September 8) Reiss employed substantially the same checkup procedure. He inquired as to the condition of her eyes, whether they were scratchy, blurry or foggy, and he utilized, for the purpose of ascertaining "how the lenses were riding," something that looked like a band-aid and, after placing thereon a fluid (vegetable dye known as fluorescein), he touched the wetted portion to her eyeballs causing them to become orange in color. Defendant then examined the
eyes with a slit lamp, sometimes called a biomicroscope. He told her that the lack of tearing was a possible cause of the discomfort about which she complained.
On August 24 Littig made her first and only return to the office of Dr. Saradarian, at which time he again tested her vision. The doctor determined that the prescription previously rendered by him had been properly filled, and the patient was given a different wearing schedule.
The defendant gave evidence that he had been engaged in the optician's trade for 15 years and had conducted his business under the incorporated name of J.C. Reiss Company. The keratometer was used in his work to obtain mechanical readings essential for the measurement of the radial curvature of the corneal surface. When interrogated concerning the use of fluorescein, he explained that a "fluora strip" was applied to the eyes "to color the tears, so that you can see the lens more clearly." The original wearing timetable given by him to Littig was characterized as a "routine" schedule suggested in a course he took at "Baylor University College of Medicine on contact lens technician work * * * It was a two-week course, nine hours a day, six days a week." The substance of his explanatory testimony may be summarized thusly: Littig produced a prescription for contact lenses which she obtained from a doctor of ophthalmology; as an optician he merely calculated measurements to determine the size of the lenses, which had nothing to do with the pathology of the eyes or the testing of the powers of vision; the process of ...