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In re Kaufman

Decided: May 31, 1984.

IN THE MATTER OF JEFFREY I. KAUFMAN, O.D. AND ROBERT C. MORENSTEIN, O.D.


On appeal from final decision of the New Jersey State Board of Optometrists.

Bischoff, Petrella and Brody. The opinion of the court was delivered by Petrella, J.A.D.

Petrella

[194 NJSuper Page 125] The issue on this appeal is whether appellants Drs. Kaufman and Morenstein practice optometry in violation of N.J.S.A. 45:12-11(u). The Board of Optometry (Board), contrary to the advice of the Attorney General,*fn1 found a violation of the statute and imposed sanctions. The issue herein is related to that raised in another appeal, entitled In re Branch License Applications of Kaufman and Morenstein under docket No. A-318-82, dismissed this date as moot. We conclude that the Board

misinterpreted and misapplied the statute, thereby erring in imposing sanctions on appellants. Therefore, we reverse.

Both appellants are optometrists licensed by the State of New Jersey. They also employ several other optometrists. On March 24, 1981 the Board issued "penalty letters" charging Kaufman and Morenstein with violating N.J.S.A. 45:12-11(u) at their Paramus location in Eyelab, Inc.'s (Eyelab) building where appellants practice optometry under the name Eye Exam 21, P.A. (Eye Exam). N.J.S.A. 45:12-11(u) proscribes:

u. Practicing optometry in any retail or commercial store or office not exclusively devoted to the practice of optometry or other health care professions where materials or merchandise are displayed pertaining to a business or commercial undertaking not bearing any relation to the practice of optometry or other health care professions; providing, however, that any optometrist practicing in premises of this type prior to January 1, 1963, shall be permitted to continue in his present location; but when and if any optometrist, who is a lessee or an employee of a lessee, vacates such premises no other optometrist shall be permitted to practice in said vacated premises. Practicing optometry under a false or assumed name, or upon a salary, commission, or any other basis of compensation, while directly or indirectly employed by or associated or connected as an optometrist with any person, association or corporation other than one who possesses a valid unrevoked certificate of registration as an optometrist or a physician licensed in and for the State of New Jersey and who has an actual legal residence within the State.

The Board's letter charged appellants with violating that statute by:

1) practicing optometry in a retail or commercial store or office not exclusively devoted to the practice of optometry or other health care professions where materials or merchandise are displayed pertaining to a business or commercial undertaking not bearing any relation to the practice of optometry or other health care profession; and

2) practicing optometry . . . upon a salary, commission or any other basis of compensation, while directly or indirectly employed by or associated or connected as an optometrist with any person, association or corporation other than one who possesses a valid unrevoked certificate of registration as an optometrist. . . .

Appellants were given the option of paying a civil penalty to settle the matter and avoid disciplinary proceedings or requesting a hearing. Kaufman and Morenstein asked for and were given a hearing which took place intermittently from June 17, 1981 to July 28, 1982. Thereafter, appellants consented to four

successive orders extending the Board's 45-day time period for decision. See N.J.A.C. 1:1-16.3. The Attorney General withdrew from the case on February 25, 1983 when the settlement discussions failed. The Attorney General's withdrawal was based on the Board's refusal to accept an Attorney General's opinion in the related matter involving the branch license applications previously mentioned. The Attorney General had concluded that the practice of optometry within an ophthalmic dispensing establishment, Eyelab, by itself, was not a violation of the statute. The Attorney General maintained this position in his amicus curiae brief.

The Board's final decision was issued on August 19, 1983 finding that appellants violated the Act. It imposed license suspensions and assessed penalties of $2,000 each against Kaufman and Morenstein, and costs of $9,350 as well as directing that certain corrective action be taken. The suspensions were stayed pending this appeal.

Appellants' landlord in Paramus under a sublease is Eyelab, the principals of which at the time were Messrs. Hillman and Kohan, opticians. Some history of the conflict between optometrists and opticians may be found in New Jersey Optometric Assn. v. Hillman and Kohan, 144 N.J. Super. 411 (Ch.Div.1976), aff'd 160 N.J. Super. 81 (App.Div.1978). A source of tension between the two groups is that each is separately permitted to fabricate eyeglasses. This results in the potential for economic competition between the opticians and the optometrists.

The lease between the parties as well as the physical layout of the premises provided the framework for the Board's determination of a violation of section (u). The Eyelab building is a free standing one which houses appellants' practice in one portion and the remaining portion is devoted to the selling of eyeglasses, frames and related items. The Board made specific findings of fact regarding the physical layout of appellants' facility in findings 8, 9 and 10. It concluded that the physical

layout of the building makes it difficult to distinguish one operation from the other. The Board found therein that:

8. The dispensing of eyewear in the Eyelab Building is organized into departments within the store. Directories, located as you enter the front of the store, welcome visitors to the store, list the various departments and ...


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