Strauss v. University of New York

Bergan, J. P. This is an action by five registered optometrists against the University of the State of New York, the Board of Regents, and the members of the State Board of Examiners in Optometry for a declaratory judgment invalidating a regulation governing the practice of optometry in New York and seeking incidental injunctive relief against the defendants. The case was tried before Judge Hefbeekait who, as Official Referee, sustained the regulation and granted judgment for the defendants. The case was here on an earlier appeal by defendants in a test of the sufficiency of the complaint (280 App. Div. 1017); and it was held, conformably with the practice announced in Rockland Light & Power Co. v. City of New York (289 N. Y. 45), that a cause of action for a declaratory judgment was stated in the complaint which sufficiently pleaded a justiciable issue; that even though it might be ultimately determined on the merits that defendants were right about the controversy, the decision could not be reached by attacking the sufficiency of the complaint. The powers of the Regents in respect of the practice of optometry as a profession are set in a statutory frame. There is, first of all, a general duty to supervise the practice (Education Law, § 211). Besides this, there is a grant of power to the Education Department to revoke the license of an optometrist for “ unprofessional conduct” (§ 7108, subd. 1). There is a direct statutory prohibition against advertising “ the practice of optometry in violation of rules to be made by the department ” (§ 7111, subd. 1). The regulation which has been adopted by the Regents which plaintiffs attack defines as unprofessional conduct ‘ ‘ Advertising by means of large display, glaring, illuminated or flickering signs”. An illuminated sign is defined as meaning " a sign lighted or self-luminous by any means whatever, or giving the outward appearance of same.” The use in advertising of representations of the human head or eye or of spectacles also is prohibited by the regulation. — 181 — When a statute prohibits in absolute terms advertising by members of a profession in violation of the rules of the department governing advertising, it would seem to follow that a violation of such a rule could readily be treated as “ unprofessional conduct ’ ’ for which the department might revoke a license under its additional statutory powers and in consonance with its general duty to supervise the practice of the profession. It seems reasonable to think that the violation of a rule made in pursuance of a statute in respect of unprofessional advertising could itself be found to be unprofessional conduct. The record here is not open to the infirmities found in the record in Matter of Cherry v. Board of Regents (289 N. Y. 148). The court there held that because the Legislature had expressly prohibited some forms of advertising by dentists it had by implication sanctioned other forms of advertising. Here there is no such duality between a form prohibited and a form permitted by implication; there is, rather, a broad delegation of rule-making power to the public agency which supervises the profession. Such supervision is, indeed, not meaningful in the absence of a power to lay down rules. Such a power would exist from implication if the Legislature had not chosen to express it. But even as to those forms of advertising which in the Cherry case were deemed permitted by implication, the court sanctioned the treatment of advertising as unprofessional conduct when it would be regarded as in violation of the “ standards which are commonly accepted by those practicing the same profession in the same territory ” (p. 158), even though the statute itself did not set up such a standard. Upon that record in which there was a failure to show that the advertising complained of itself, and independently of statute, fell within the range of unprofessional conduct, the statute was treated as the controlling guide of power and it was read to imply an absence rather than the presence of such power. The rule-making power of the department in respect of advertising in optometry is not, of course, unlimited. Buies importing arbitrary standards of advertising having no rational relevancy to professional needs or policy could not be laid down. But the Education Law sections cannot be read in context without seeing in them a grant of control over professional advertising given to the department by the Legislature. — 182 — We have here a public agency which by one section of the statute is given the power to supervise a profession; and a profession which by another section of the same statute is required by the Legislature to keep its advertising practices consistent with the rules of the same public agency which supervises it. It was decided in Matter of Dubin v. Board of Regents (1 N Y 2d 58) that the regulation prohibiting price advertising and free examinations was arbitrary and it was stricken down because of this in the absence of proof in that record that those advertising practices were condemned under ‘ ‘ accepted professional standards of optometry ” (p. 62). Because of the absence of such proof, the court felt unable to say “as a matter of law ’ ’ that the type of advertising considered was ‘ ‘ unprofessional conduct ’ ’. The effect of this rationale was to hold conversely as a matter of law that the regulation of the department prohibiting such price advertising and advertising free examinations was arbitrary and should be annulled. But we do not read this decision to hold either that all regulations of the department restricting advertising are arbitrary because some advertising seems permitted by implication in the statute; or that even the regulation condemned by the court on that record would be deemed arbitrary if on another record it were shown that these advertising practices were disapproved under accepted professional standards. Of course, it is true that the Legislature seems by implication to have left open some forms of advertising to optometrists; but those left open are by equally clear language subjected to regulation by the department. The proof in this record that advertising of the type prohibited by the regulation is regarded by the profession of optometry as unprofessional is quite adequate; and, indeed, it is not factually disputed by the plaintiffs. The president of the New York State Optometric Association, for example, swore that “ The regulation was issued at optometry’s request ” and that it required almost two years of negotiation with the Regents and the department “ to arrive at a suitable regulation ”. He. gave as an example of the view of the profession the 1947 resolution adopted by the State association that “ the display — 183 — of glaring or illuminated signs ” or signs depicting the human eye or spectacles or signs exceeding certain sizes “he discouraged ”. He cited a resolution of the following year specifically requesting the Regents to promulgate a rule defining as unprofessional conduct the use of large, glaring or flickering signs; and in 1950 the association by formal resolution approved steps taken by the Regents at the request of the association toward elimination of ‘‘ illuminated signs ’ ’. He also swore that there was a full hearing and full opportunity afforded the profession to express its view before the Regents and he flatly stated that “ this regulation represents the wishes of a majority of the Optometrists in this State”. There was other adequate proof in this direction which the Judge who tried the case and granted the judgment was warranted in treating as giving support to the general professional acceptance of this regulation as a fair standard for the reasonable regulation of optometry. The Mew York State Optometric Association in its brief as amicus curies gives strong indorsement to the regulation and treats it as entirely reasonable and in accordance with professional opinion. It asks that the judgment be affirmed. There is no proof of any substantial professional support for plaintiffs’ contention or that it is a view held by the leaders, the teachers, or the journals of the profession. In effect plaintiffs argue, aside from the point that the Regents h!ad not the statutory power to enact the regulation, that it discriminates against this profession because opticians and oculists are allowed to practice uhder regulations which plaintiffs regard as less burdensome. But this, so it seems to us, is a matter to be settled within a profession. Each profession has its own intramural problems as well as its own aspirations which require special treatment according to its special needs. This kind of difference is not “ discrimination ” in any constitutional or legal sense. The main burden of plaintiffs’ quarrel with the regulation is that the prohibition against all illuminated signs goes too far. But that, too, is a matter of professional judgment and for evaluation by the public agency which has the statutory power to regulate advertising. That a man who regards himself as the practitioner of a profession takes with its privileges also — 184 — the professionally self-imposed restraint of not showing himself to the public by illuminated signs, does not seem to us to be shocking; nor is it intolerable to think that while some physicians might have a light behind their name-sign in a window at night, that the practitioners of this younger and newer profession of optometry may not have the same thing. It is certainly no answer to the reasonableness of a regulation prohibiting any illuminated advertising to say that the medical profession, which sanctions no advertising, does not regard the light behind the physician’s name-sign in his window as unprofessional advertising. The medical profession is not plagued by the effect on its professional stature of blatant advertising; the profession of optometry is, and the concern and apprehension of the leaders of this profession over its advertising practice is widespread. What is a restrained or subdued or dignified lighted sign can be, and has been in this context, a matter of constant dispute. If it seems to the profession, to its responsible leaders, and to the department that the best thing is to stop all illuminated advertising, we ought not as a court to interfere because we think the regulation should be different. We have no ground to think we could do this better if we had the responsibility. We do not have that responsibility; and when we see that the power is exercised within the frame of the statute we strike the boundary of our authority. It will be seen, moreover, that what plaintiffs have in mind in arguing for illuminated signs is not such a small sign as a physician might put in his window; it is rather the kind of sign that will be able to compete with bold and obtrusive public advertising. The testimony of one of the plaintiffs affords an interesting commentary of what plaintiffs want to be allowed to do. “ My place of business ’ ’, he says, is located in “ a highly commercial and high rental location where I am completely surrounded by establishments using large, flickering, highly illuminated and neon signs ’ ’ and ‘ ‘ for my own self-preservation I require bright or attractive signs in order to indicate my presence at that location ”. This is an argument which looks for a judgment of the court in disregard of the current of professional opinion established without any dispute in this record. — 185 — The attack of the plaintiff on the regulation is not a single case of actual discipline but a total challenge of the regulation on a broad front. We see no ground to dissect the regulation or to attempt to write out a better formulation in some details than the profession itself has done and which the department lias carried out in response to professional recommendation. Such dissection and particularism is neither within our judicial function, nor within our competence. The judgment should be affirmed, with costs.