Opinion
C.A. No. 20241.
Submitted: January 14, 2005.
Decided: February 8, 2005.
David L. Finger, Esquire, FINGER SLANINA, LLC, Wilmington, Delaware, Attorney for the Plaintiff.
C. Drue Chichi, Esquire, STATE OF DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware, Attorney for the Delaware Board of Examiners in Optometry.
MEMORANDUM OPINION AND ORDER
I.
On April 8, 2003, Kimberly R. Bristow, O.D. filed this action against the Delaware Board of Examiners in Optometry (the "Board"), seeking a declaration that the conditions of her employment and, in particular, the relationship between her and Pearle Vision, Inc. ("Pearle"), a commercial optician, did not violate the Rules and Regulations of the Board. The complaint also sought an injunction against the Board taking any action to suspend or revoke Dr. Bristow's license to practice optometry based upon the terms and conditions of her employment. The complaint was filed after the Board rejected a request for an advisory opinion as to whether it objected to the conditions of Dr. Bristow's employment. On July 1, 2003, the Board filed an answer and a counterclaim, admitting it declined Dr. Bristow's request for an advisory opinion, and adding that it had changed its position and believed that it had the power to give such an opinion. However, a conflict of interest made it impossible to obtain a quorum, and so the administrative remedy was inadequate.
On December 9, 2003, the Board filed a motion to amend its answer and a motion to stay the verified complaint and refer it to the Board, on the ground that the Board had been newly-constituted, that a conflict of interest no longer existed, and that a quorum could be achieved. This court granted that motion by Letter Opinion and Order dated February 4, 2004. The Board held a hearing on March 11, 2004, and, on March 17, 2004, the Board issued a Decision and Order (the "Decision") concluding that the terms and conditions of Dr. Bristow's employment violate 24 Del. C. §§ 2113(a)(2), 2113(a)(5), and 2113(a)(6). The Decision and the record of the proceedings before the Board were filed with the court on March 18, 2004.
Based on the evidence presented before it, the Board determined that:
While Dr. Bristow stated that no actual commercial, business relationship exists between her practice and Pearle, and her practice merely benefits from proximity to Pearle, the evidence demonstrated that her practice shares a building with Pearle, from which her employer subleases the office space at a monthly rate far below market value. Her practice shares a common entrance with Pearle, and shared open spaces and facilities. The widely publicized address of Dr. Bristow's practice is identical to Pearle's, and the practice's phone number is prominently associated with other Pearle locations.
Further, the evidence demonstrated that Dr. Bristow's practice engages in mutual advertising and marketing strategies with Pearle. The entities share conspicuous signage and advertising, both at the practice location and in the Internet, through Pearle's own website and other informational sites such as medical and vision plan insurance, as well as promotional discounts offered at Dr. Bristow's office location offered at the conclusion of an examination.
Decision at 14.
Pending the resolution of this action, the Board has agreed not to take any disciplinary action against Dr. Bristow. Pursuant to the stipulation and order setting forth a schedule for summary judgment motions, both Dr. Bristow and the Board filed a motion for summary judgment on November 30, 2004. This is the court's decision on the cross-motions for summary judgment.
II.
On a motion for summary judgment pursuant to Rule 56, judgment will be granted where the moving party demonstrates that are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to prove an absence of a material issue of fact and the court must review all evidence in the light most favorable to the nonmoving party.
Scureman v. Judge, 626 A.2d 5, 10 (Del.Ch. 1992).
Id. at 10-11.
Dr. Bristow challenges the legal and factual sufficiency of each of the Board's findings of violation. In the alternative, Dr. Bristow argues that the statutory scheme underlying the Board's determination is void for being impermissibly broad.
The duty of the court in reviewing administrative decisions is to ascertain if the agency's findings are supported by substantial evidence and are free from legal error. This requires the court to search the entire record to determine if the agency could have fairly and reasonably reached the conclusion that it did. If the record below shows that there was substantial evidence to support the decision and the Board correctly applied the law to the facts, it is the duty of the court to sustain the Board, even if the court would have decided otherwise had the matter come before it in the first instance. However, issues purely of law, such as statutory interpretation, are ultimately the responsibility of the court. As such, a reviewing court may accord due weight, but may not defer, to an agency interpretation of a statute administered by it. A reviewing court cannot defer to such an interpretation as correct merely because it is rational or not clearly erroneous.
Stoltz Mgmt. Co. v. Consumer Affairs Bd., 616 A.2d 1205, 1208 (Del. 1992).
Nat'l Cash Register v. Riner, 424 A.2d 669, 675 (Del.Super. 1980).
Warmouth v. Delaware State Bd. of Exam'rs in Optometry, 514 A.2d 1119, 1121 (Del.Super. 1985).
Pub. Water Supply Co. v. DiPasquale, 735 A.2d 378, 382 (Del. 1999).
Id. at 382-83.
As previously mentioned, the Board found that the terms and conditions of Dr. Bristow's employment violate a number of statutory provisions. The court addresses each of these in turn.
A. 24 Del. C. § 2113(a)(5)
The court finds that the Board's decision that Dr. Bristow violated 24 Del. C. § 2113(a)(5) was based on substantial evidence and correctly applied law to fact. In pertinent part, 24 Del. C. § 2113(a)(5) provides that an optometrist will be subject to discipline if, after a hearing, the Board finds that the optometrist: "Has caused or permitted the use of his or her name, profession or professional title by or in conjunction with any association, company, corporation or unlicensed person in any advertising of any manner, unless in conjunction with a vision service plan approved by the Board." At the March 11, 2004 hearing, the Board was presented with substantial evidence that Dr. Bristow's name and that of her practice had been used in conjunction with Pearle's advertising.
First, the Board saw pictures of Dr. Bristow's office (also viewed by the court), which showed several signs that advertised both Dr. Bristow's practice and Pearle. Specifically, the "Pearle Vision" sign covered both her office and the Pearle office. The large, free-standing "Pearl Vision" sign in front of the building also advertised Dr. Bristow's practice.
Second, the Board heard evidence that employees in Dr. Bristow's office handed out coupons promoting Pearle. The employees also thanked the patient for his patronage, and offered discounts at Pearle.
Third, the Board heard evidence that showed a shared address between Dr. Bristow's practice and Pearle. This evidence included phone directories, health care provider lists, and copies of Pearle's own website.
From the evidence outlined above, the court must find that the Board's decision that the circumstances of Dr. Bristow's employment violated 24 Del. C. § 2113(a)(5) was supported by substantial evidence. Therefore, the court affirms this part of the Board's decision.
B. 24 Del. C. § 2113(a)(6)
The court finds that the Board's decision that Dr. Bristow violated 24 Del. C. § 2113(a)(6) was based on substantial evidence and correctly applied law to fact. In pertinent part, 24 Del. C. § 2113(a)(6) provides that an optometrist will be subject to discipline if, after a hearing, the Board finds that the optometrist: "Has practiced for or in conjunction with, either directly or indirectly, a corporation or company except [a professional service corporation governed by 8 Del. C. §§ 601-619]. . . ." Pursuant to the power delegated to it by 24 Del. C. § 2104(a)(1), the Board has promulgated regulations implementing and explaining this section of the statute. Regulation 8.8 states in pertinent part: "No licensee shall locate in a merchandising store or practice [her] profession among the public as the agent, employee or servant of, or in conjunction with either directly or indirectly, any merchandising firm, corporation, lay firm or unlicensed individual." Regulation 8.9 states in pertinent part: "No licensee shall practice [her] profession in conjunction with, or as an agent or employee of an ophthalmic merchandising business (commonly known as `opticians') either directly or indirectly in any manner."
The Board was presented with substantial evidence that Dr. Bristow practiced "in conjunction with" Pearle. First, as outlined above, Dr. Bristow's name and that of her practice was used in conjunction with Pearle's advertising.
Second, Dr. Bristow's office was connected to Pearle's, to such a degree that they could be considered one office. Dr. Bristow's employer subleased her office from Pearle. Also, the offices were not separated. They shared an entrance, an open area to the rear of the building, hallways, a rear exit, and a bathroom.
Third, Dr. Bristow's employer paid a below-market rent. The revenue that Pearle lost was apparently offset by the commercial benefit that Pearle received in being at the same location as Dr. Bristow's practice.
Due to this evidence, the court must find that the Board's decision that the circumstances of Dr. Bristow's employment violated 24 Del. C. § 2113(a)(6) was supported by substantial evidence. Therefore, the court also affirms this part of the Board's decision.
C. 24 Del. C. § 2113(a)(2)
The Board's decision that Dr. Bristow violated 24 Del. C. § 2113(a)(2) is more troublesome. In pertinent part, 24 Del. C. § 2113(a)(2) provides that an optometrist will be subject to discipline if, after a hearing, the Board finds that the optometrist:
Has practiced in an office not exclusively devoted to the practice of optometry or other health care profession, where material or merchandise is displayed pertaining to a business or commercial undertaking not bearing any relation to the practice of optometry or other health care profession or practicing in a store or office which does not conform to that used by the majority of professional optometrists in the area[.] (emphasis added).
The Board concedes, as it must, that Dr. Bristow did not violate the first part of this section of the Code. Instead, the Board argues that Dr. Bristow's office did "not conform to that used by the majority of professional optometrists in the area." That is, the Board read the subsection as being two separate directives to which an optometrist must conform, or face disciplinary proceedings. First, an optometrist must have an office that is primarily devoted to optometry or another health care profession. Second, an optometrist must have an office that conforms to that of the majority of optometrists in the area.
The evidence adduced at the hearing was the testimony of several optometrists. They opined that Dr. Bristow's office did not conform to the offices of a majority of optometrists in the area. However, they did not describe the characteristics of a conforming office; they simply said that Dr. Bristow's office did not conform. In addition, the Decision is silent as to whether the optometrists who opined that Dr. Bristow's office was non-conforming testified as to in what "area" they practice. The court assumes that they all practice in Delaware, but the Decision is silent on even this basic fact.
The court also notes that, assuming the testifying optometrists do practice in an area close to Dr. Bristow, they have a direct, pecuniary interest in her losing her license. Driving her out of business will decrease the competition in the area. Therefore, the statements of the testifying optometrists are tainted by self-interest.
The court cannot sustain this reading of the statute. First, the statute is laid out in 14 separate subsections, each of which describes a discrete, prohibited act. For example, as outlined above, 24 Del. C. § 2113(a)(5) precludes an optometrist from advertising "in conjunction with" any association, etc., except "in conjunction with" a Board approved vision service plan. This provides a single prohibition that an optometrist must follow, or face disciplinary action. Likewise, 24 Del. C. § 2113(a)(6) precludes an optometrist from practicing "in conjunction with" a non-professional service corporation or company. Again, the subsection proscribes a discrete set of acts. It seems obvious, then, that if the General Assembly wanted to require that optometrists have an office that conforms to that of the majority of optometrists in the area, they would have said so explicitly, and there would be 15 subsections, and not 14.
Furthermore, the Board's reading of the statute would possibly make the subsection invalid due to vagueness. Does an office conforming to that of the majority of optometrists in the "area" mean the entire State, or only New Castle County? Or does it mean simply a city (such as Wilmington)? The statute, and the Regulations, are completely silent as to this issue. Furthermore, if, say 50.1% of optometrists in the "area" choose to practice in free-standing offices, and 49.9% choose to practice in malls, is the minority automatically subject to disciplinary proceedings? This seems not only unreasonable, but irrational. The court cannot interpret a statute in a way which would render it impermissibly vague or irrational.
A better reading of the subsection, then, is that the second part amplifies and explains the first part. That is, one way to show that an office is not exclusively devoted to optometry (or another health care profession) is to show that it does not conform to that used by a majority of the optometrists in the area. This interpretation has the benefit of being consistent with the statutory text, as written by the General Assembly. It also avoids the problem of being impermissibly vague or irrational. Therefore, the court must conclude that the Board erred as a matter of law when it concluded that Dr. Bristow violated 24 Del. C. § 2113(a)(2).
D. The Statute And Regulations Are Not Impermissibly Vague As They Are Applied To Dr. Bristow
Dr. Bristow also argues that the statutory and regulatory phrase "in conjunction with" is unconstitutionally vague.
Generally, a statute which imposes a standard of conduct for the breach of which an individual will be held responsible must define the conduct with sufficient particularity to enable her to make her conduct conform. If people of common intelligence must, of necessity, guess at its meaning and reach different conclusions as to its meaning, the statute is unconstitutionally vague. In addition, courts review a constitutional vagueness challenge as it applies to the challenger's own conduct. Thus, the question is whether Dr. Bristow should have known that the conditions of her employment violated the statute.
Globe Liquor Co. v. Four Roses Distillers Co., 281 A.2d 19, 22 (Del. 1971) (citing Connally v. Gen. Constr. Co., 269 U.S. 385 (1926)).
Id.
Crissman v. Delaware Harness Racing Comm'n, 791 A.2d 745, 747 (Del. 2002).
While the statute is not perfectly drafted, it is sufficiently clear to put Dr. Bristow on notice that the conditions of her employment were proscribed. 24 Del. C. § 2113(a)(5) proscribes an optometrist from allowing her name or professional title to be used "by or in conjunction with any association, company, corporation or unlicensed person in any advertising of any manner, unless in conjunction with a vision service plan approved by the Board." Pearle's signs and websites plainly qualify as advertising. Moreoever, Pearle is both "unlicensed" and is an "association, company, corporation or . . . person." Finally, Pearle's advertising was not "in conjunction with a vision service plan approved by the Board." Therefore, Dr. Bristow was put on sufficient notice that her advertising with Pearle, an unlicensed entity, would violate the statute.
The court understands the Board's ruling to construe 24 Del. C. § 2113(a)(5) to relate, generally, to advertising by unlicensed persons or entities, whatever form of organization they may take. Obviously, a licensed optometrist is at liberty to use "his or her name, profession or professional title" in advertising that otherwise comports with the Board's regulations.
Furthermore, 24 Del. C. § 2113(a)(6) proscribes an optometrist from practicing "in conjunction with, either directly or indirectly, any merchandising firm, corporation, lay firm or unlicensed individual." This subsection was clarified by Regulation 8.8 (precluding an optometrist from locating her office in a merchandising store) and Regulation 8.9 (precluding an optometrist from practicing with an optician). Regulation 8.9 is particularly applicable. Pearle is obviously an optician. The record is clear that Dr. Bristow shared a building with Pearle, gave coupons for Pearle to her patients, and shared advertisement on Pearle's sign. Dr. Bristow was sufficiently on notice that these actions might violate the statute about which she requested an advisory opinion from the Board. In addition, she met informally with former members of the Board who told her that her employment situation would probably violate the statute. Dr. Bristow cannot now credibly claim that she was unaware that her employment conditions could have violated the statute. She obviously was on notice, and chose to take the risk of disciplinary action.
For the above reasons, the court concludes that the statute is not impermissibly vague as it is applied to Dr. Bristow.
III.
For the foregoing reasons, the court affirms in part and reverses in part the Decision of the Board. IT IS SO ORDERED.