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In re I/M/O Adoption of Amendments to N.J.A.C. 13:33-7.1(g) by the New Jersey State Board of Ophthalmic Dispensers and Ophthalmic Technicians

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 22, 2010

I/M/O ADOPTION OF AMENDMENTS TO N.J.A.C. 13:33-7.1(G) BY THE NEW JERSEY STATE BOARD OF OPHTHALMIC DISPENSERS AND OPHTHALMIC TECHNICIANS.

On appeal from the New Jersey State Board of Ophthalmic Dispensers and Ophthalmic Technicians.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 5, 2009

Before Judges Stern, Graves and J.N. Harris.

The National Association of Optometrists and Opticians (the Association), a nationwide organization representing the retail optical industry, challenges the validity of an amendment to N.J.A.C. 13:33-7.1(g) adopted on March 17, 2007, by the New Jersey Board of Ophthalmic Dispensers and Ophthalmic Technicians (the Board).*fn1 The amendment became effective on March 17, 2008, and requires all advertisements by ophthalmic dispensers to include the name and the New Jersey license number for at least one ophthalmic dispenser working at a business location, together with the business address and telephone number.

The Association claims the amendment is invalid because it "directly contravenes the Board's enabling act" and is "arbitrary and capricious" because it does not accomplish the Board's stated goals. After reviewing the record and applicable law in light of the arguments advanced on appeal, we affirm.

The Board was created by the Ophthalmic Dispensing Act, N.J.S.A. 52:17B-41.1 to -43 (the Act). The purpose of the Act is "to protect the public health, welfare and safety by providing for the regulation of the sale, dispensing and supplying of all ophthalmic appliances, eyeglasses, or ophthalmic lenses to the ultimate wearer or consumer in this State." N.J.S.A. 52:17B-41.1. Under N.J.S.A. 52:17B-41.13, the Board is authorized to adopt "reasonable rules and regulations" that are "necessary to give full force and effect to the provisions of [the Act] and to regulate the practice of ophthalmic dispensers and ophthalmic technicians," so long as "such rules and regulations are not inconsistent with the provisions of [the Act.]" The Board's rules and regulations are embodied in Title 13, Chapter 33 of the New Jersey Administrative Code.

On June 4, 2007, the Board proposed the following amendment to N.J.A.C. 13:33-7.1(g), a regulation concerning advertisements by ophthalmic dispensers:

All advertisements shall include, for at least one ophthalmic dispenser working at the business:

1. The ophthalmic dispenser's first name, or first initial or the first name, and the full last name;

2. The ophthalmic dispenser's business address and telephone number; and

3. The terms "N.J. License #" followed by the ophthalmic dispenser's license number.

Only the requirements in paragraphs one and three were new proposals. The proposed amendment was published in the New Jersey Register, together with the statement required by N.J.S.A. 52:14B-4(a)(2), on June 4, 2007. 39 N.J.R. 2197-98. The Board explained that the purpose of the proposed amendment was to protect consumers:

The Board proposes to amend N.J.A.C. 13:33-7.1 to require that advertisements for ophthalmic dispensing services include the name and New Jersey license number of at least one licensed ophthalmic dispenser working at the business. The Board has seen many advertisements for ophthalmic services that did not indicate the identity of the licensed ophthalmic dispenser who will provide services. The Board believes that, in order to protect consumers, advertisements must identify the licensed ophthalmic dispenser so that consumers will know with whom they are dealing and the Board may easily identify a licensee in case a complaint is lodged with the Board.

On August 2, 2007, the Association submitted comments objecting to the proposed amendment on several grounds. The Association claimed the proposed amendment would not accomplish the Board's objective because optical stores are typically staffed by more than one optician, and licensees frequently change employers and locations. The Association also argued the regulation was unnecessary because existing "[N]ame tag and certificate posting requirements provide identification at the point of consumer contact." In addition, the Association claimed the proposed amendment would "increase the cost of advertising" and "significantly restrict advertising."

On September 12, 2007, the Board adopted the amendment to the regulation notwithstanding the Association's objections and its responses to the Association's comments were published in the New Jersey Register on March 17, 2008. The Board found that any additional advertising costs "will be negligible and will be outweighed by the benefits provided to consumers"; the amendment would not duplicate information "already available to consumers"; and the amendment was necessary to ensure "that a consumer knows the identity of at lease one licensee whom he or she may contact with concerns or questions regarding the facility."

On July 11, 2008, the Association appealed the Board's adoption of the amendment, and this court denied the Association's motion to supplement the record on November 19, 2008. On appeal, the Association presents the following arguments:

POINT I

N.J.A.C. 13.33-7.1(G) IS INVALID BECAUSE THE REGULATION IS SPECIFICALLY PROHIBITED BY THE BOARD'S ENABLING ACT.

POINT II

THE BOARD'S ADOPTION OF N.J.A.C. 13.33-7.1(G) SHOULD BE VACATED BECAUSE IT IS ARBITRARY AND CAPRICIOUS.

A. THE RULE WILL NOT PROVIDE CONSUMERS OR THE BOARD WITH THE IDENTITY OF THE OPTICIAN THAT SERVES ANY CONSUMER.

B. THE BOARD'S EXISTING REGULATIONS ALREADY PROVIDE CONSUMERS WITH THE IDENTITY OF THE OPTICIAN THAT SERVED THEM.

C. THE RULE IS TANTAMOUNT TO ILLEGAL GUILD LEGISLATION.

After considering these contentions in light of the record, the briefs, oral argument, and the applicable law, we have concluded they are without sufficient merit to warrant extended discussion in a written decision. R. 2:11-3(e)(1)(D) and (E). We therefore affirm with only the following comments.

Our scope of review of an administrative regulation is limited. Administrative regulations "are accorded presumptions of validity and reasonableness." Bergen Pines County Hosp. v. N.J. Dep't of Human Servs., 96 N.J. 456, 477 (1984) (citing Newark v. Natural Res. Council, 82 N.J. 530, 539-40, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980)). "The burden is on the plaintiff to overcome these presumptions." Ibid.

However, a regulation "must be within the fair contemplation of the delegation of the enabling statute." N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999) (citation omitted). When reviewing the validity of an administrative regulation, "the grant of authority to an administrative agency is to be liberally construed," and "the reviewing court may look beyond the specific terms of the enabling act to the statutory policy sought to be achieved by examining the entire statute in light of its surroundings and objectives." N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562 (1978).

On appeal, the Association argues the amendment to N.J.A.C. 13:33-7.1(g) violates N.J.S.A. 52:17B-41.13 because it requires advertisements to include the word "license," contrary to the statutory ban set forth in N.J.S.A. 52:17B-41.17. That provision makes it "unlawful for any ophthalmic dispenser or ophthalmic technician to use the word 'licensed' or any of its synonyms" in advertisements. Ibid. The Association further contends the amendment is arbitrary because it will not provide the consumer with the identity of the optician who actually performed the service for the consumer, and the amendment is unnecessary, in light of existing regulations.

In response, the Board notes that the statutory provision the Association relies on "has not been enforced since 1977, when the Attorney General advised professional and occupational boards they could not prohibit licensees from advertising truthful information." The Board further asserts the new requirements are "minimal," and the amendment is not arbitrary because "the consumer will be advised that a licensed ophthalmic dispenser is employed at the business, the consumer will have the assurance that the ophthalmic dispenser is properly trained, and the name of a specific licensee will be available in the event the consumer has a complaint."

In our view, the Board's reliance on Formal Opinion No. 20-1977, issued by the Attorney General on September 20, 1977, was not misplaced. The Attorney General advised that any restraint on truthful advertising "is inconsistent with the First Amendment to the United States Constitution." Therefore, in this matter, the Board correctly concluded that an ophthalmic dispenser's license number falls within the realm of truthful information that cannot be prohibited. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 761, 96 S.Ct. 1817, 1825; 48 L.Ed. 2d 346, 358 (1976) ("[S]peech does not lose its First Amendment protection because money is spent to project it, as in a paid advertisement of one form or another.").

As noted by the Supreme Court: "Where an agency has based its statutory interpretation on an opinion by the Attorney General . . . a court should attach weight to the Attorney General's opinion." Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 70 (1978). See also Quarto v. Adams, 395 N.J. Super. 502, 513 (App. Div. 2007) ("Although we . . . are not bound to adopt the Attorney General's Formal Opinion as a correct statement of the law, it is nonetheless entitled to a degree of deference, in recognition of the Attorney General's special role as the sole legal adviser to most agencies of State Government."); W. Windsor-Plainsboro Sch. Dist. v. Delran Bd. of Educ., 361 N.J. Super. 488, 493-94 (App. Div. 2003) ("When an agency's statutory construction is based on an opinion (formal or informal) by the Attorney General, we must give weight to that opinion."), certif. denied, 178 N.J. 454 (2004).

We observe further that the State has required the inclusion of license numbers in advertisements from other professionals. See, e.g., N.J.A.C. 13:36-5.12(c) (requiring the true firm name, address, telephone number, name of the manager, and the license number of mortuary practitioners in advertisements); N.J.S.A. 45:1-9 (requiring a "license or certificate number on all contracts, subcontracts, bids and all forms of advertising as a contractor"). We also note that prior to the amendment, ophthalmic dispensers were already required to include the telephone number and street address of their business in their advertisements. N.J.A.C. 13:33-7.1(g) (2006).

In view of the foregoing, we are satisfied the Association has failed to demonstrate that the amended advertising regulation is invalid. Furthermore, the regulation is not unreasonable because (1) it protects the public welfare and safety by informing consumers that a licensed ophthalmic dispenser is employed at a specific business location; (2) the regulation allows consumers and the Board to more readily identify a licensee in the event of a problem or a complaint; and (3) the additional information mandated by the amended regulation is not overly burdensome. We therefore uphold the challenged regulation as a valid exercise of the Board's rulemaking authority.

Affirmed.


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