On appeal from the New Jersey State Board of Optometrists.
Matthews, Morton I. Greenberg and Ashbey.
Defendants, Elliot Shack and Charles M. Cummins, are optometrists licensed by the New Jersey Board of Optometrists ("Board"). On October 3, 1979, the Board notified defendants by letter that it had reviewed their newspaper advertisement regarding soft contact lenses and had determined that it violated N.J.S.A. 45:12-11(h) and (o) and N.J.S.A. 45:1-21(b) in that
1. There is no delineation of what 'professional care' includes.
2. It appears that, in fact, the patient does not actually purchase the lenses for $65 (professional care required at additional cost).
N.J.S.A. 45:12-11(h) prohibits "false, fraudulent or misleading advertising of the practice of optometry," (o) prohibits "any conduct which is of a character likely to deceive or defraud the public," and N.J.S.A. 45:1-21(b) prohibits engaging "in the use or employment of dishonesty, fraud, deception, misrepresentation, false promise or false pretense."
The Board offered defendants "the opportunity of disposing of this matter without a hearing," if they signed a form admitting their violation of these statutes and each paid a $750 penalty. Defendants were advised that, if they wished "to
discuss mitigation of said penalty, you may present your arguments in writing or in person at a regularly scheduled Board meeting." Finally, the Board ordered them "to cease and desist such manner of advertising immediately."
Defendants' counsel requested the opportunity to appear before the Board to object to its actions. The Board held a plenary hearing. Defendants' counsel appeared, as did Dr. Shack. Dr. Cummins was not present. Dr. Shack was the only witness to testify before the Board.
A final decision and order by the Board held that defendants' "advertisement both on its face and as applied within the usual commercial setting is deceptive and misleading and, therefore, violative of N.J.S.A. 45:12-11(h) and (o), and N.J.S.A. 45:1-21(b) and (e)."*fn* In so holding, the Board ordered defendants to cease and desist from advertising contact lenses for sale to the consuming public at a stated price unless:
(i) the advertisement clearly and conspicuously discloses a single total dollar price for the advertised lenses and all usual and necessary services and goods related thereto, or
(ii) the advertisement clearly and conspicuously discloses separate prices for the advertised lenses and all usual and necessary services and goods related thereto, the sum total of said prices to equal the total price to be ...