Florida State Board of Optometry v. Gilmore

Thomas, J. The Florida State Board of Optometry sought an order enjoining Millard G. Gilmore, an employer, and his employees, Albert Sidel and J. Willie Bertrem, from practicing optometry, with the result that the chancellor restrained Sidel from that activity and prohibited Gilmore from allowing Sidel “as his employee or upon his business premises” to engage in that vocation. Upon the conclusion that there was no proof that Gilmore himself was practicing-optometry “the application of the plaintiff for an injunction restraining . . . [him] . . . from continuing his employment of the defendant, J. Willie Bertrem . . .” was denied. It is the latter provision which gave rise to this *777 appeal and prompted the appellant to present the problem whether, in view of Chapter 19031, Laws of Florida, Acts of 1939, a jewelry store may “employ a licensed physician to devote his full time to the practice of optometry for its account and in its name?” We summarize the acts described in the stipulations of counsel so far as they are relevant to the question involved; Gilmore operates a jewelry store and in connection with it an optical department where Bertrem, a licensed physician, is employed. The latter engages in no other work than the practice of optometry for Gilmore, who pays him a “straight salary.” The Act, Chapter 19031, was intended to cover fully the regulation and supervision of optometry, declared a profession and carefully defined in Section 1. In Section 11 it is made “unlawful for any corporation, lay body, organization, group, or lay individual to engage, or undertake to engage in, the practice of optometry through means of engaging the services, upon a salary, commission or lease basis, or by other means or inducement, any person licensed to practice optometry in the State of Florida.” If we were to pause here without further examination of the above law it would appear that a clear violation of the quoted inhibitions had been shown because of the employment by one not licensed of another to practice optometry for him “upon a salary . . . basis.” In reply appellee quotes Section 8, specially emphasizing that portion of it which we italicize: “It shall be unlawful for any one to practice optometry in this State without first procuring a certificate of registration and license . . . provided that the terms and provisions of this Act shall not apply to duly licensed physicians and surgeons now or hereafter ” *778 The appellees urge us to construe the part of the Act last quoted to free all physicians from the restrictions imposed generally upon those who are privileged to represent themselves as optometrists. It will be noted that although the terms and provisions of the Act are declared not to affect physicians such exception is included in the section making it unlawful to practice without registration and license.- It is patent that physicians are exempt because their training is so thorough that they are fitted to perform those services for which optometrists too are qualified, thus physicians, as such, were not required to procure a “certificate of registration and license as a registered optometrist” to practice optometry lawfully. If one practices optometry on his own account and responsibility he is by schooling presumed properly equipped and there is no need to examine into his fitness, the diagnoses and prescriptions for correction and relief of the human eye being an incident to and included in his medical education. But when a physician steps out of character and becomes the employee of a person himself not entitled to engage in the profession of optometry a direct violation of Section 11 results. The provision of the Act of which appellee Gilmore has run afoul denounces the employment upon a salary basis of “any person licensed to practice optometry.” Here qualifications are not the criterion but the act condemned by the Legislature is the hiring by one unlearned in the profession of another who is permitted by his knowledge to engage in it. The evil sought to be prevented by such a relationship may be tersely stated. In this situation the responsibility of the employee in the performance of services so important to those whose eyes are ab *779 normal as to be dignified with the not undeserved title, “professional” (McMurdo v. Getter, 298 Mass. 363, 10 N. E. [2nd] 139) is confused with his loyalty to the employer, while the latter although unskilled in the work is accountable to patients to whom he is not personally permitted to minister. The result, as was decided by the Supreme Court of Massachusetts, McMurdo v. Getter, supra, is a broken relationship “between a professional man and those who engage his services.” See also Ezell v. Ritholz, 188 S. C. 39, 198 S. E. 419. Such conflicting loyalties should not be encouraged. We do not find a purpose common to the inhibition against employment of a licensed optometrist and the exemption of physicians from the terms of the Act. The former relates to and illegalizes the hiring by laymen of optometrists, however qualified; the latter exempts physicians, as such, from further examination to establish their skill as optometrists. For the reasons given the decree is— Reversed. Brown, C. J., Whitfield, Terrell, Chapman and Adams, J. J., concur. Buford, J., dissents.