Florida appeals court affirms independence of ODs practicing on the premises of chains

Issue: April 1997

TALLAHASSEE, Fla. — A Florida appeals court has ruled that the Florida Board of Optometry not only has jurisdiction over optometrists who lease space from optical chains, but the Board's rules in such matters can be enforced against the chains themselves.

The decision was in response to an appeal of a case filed in 1993 by Pearle Vision, LensCrafters, Lens Express, Vision Works, Cole Vision and Dr. Ted Gillette against a Board rule concerning ODs practicing in corporate settings.

The appeals court's decision affirms the Board's position that optometrists in commercial settings must be independent from the companies from which they lease office space in regard to all aspects of their practice. "This is so important to optometry because it guarantees the independent practice of optometry," said Leonard Carson, of the law firm of Carson & Adkins, located here, which assisted the Board in drafting the corporate practice rule. "Their first obligation, as the rule says, is to the patient."

The litigation challenged the board's rule, which provided guidance to optometrists who lease in optical or commercial establishments. During the course of the litigation, several of the chains withdrew, with the exception of Dr. Gillette, Cole Vision and Vision Works.

Law prevents corporate optometry

Florida law prevents the corporate practice of optometry and also says ODs cannot be employed by or practice in association with any unlicensed entity.

The board put forth an initial rule in 1992 that was promptly challenged by the companies. A redrafted rule was again challenged by the companies, who argued that because Florida law permits ODs to practice in or on a commercial establishment, the Board has no legal authority to regulate business matters between the OD and the corporation that are unrelated to patient care. Mr. Carson said according to the companies, Florida law only prohibits the company from employing the OD, and the company is otherwise free to enter into agreements that permit the companies to control the business aspects of the OD's practice.

"The court said that's wrong," Mr. Carson said. "It said, 'You can't convey to the public that a company is offering eye care services.' You've got to have strictly a landlord-tenant relationship."

The lower court ruled that the companies were not regulated by the rule, and thus could not challenge the board's rules. The appeals court overturned that, deciding that because optical corporations are subject to prosecution for violation of the rule they could challenge it, the appeals court decided.

Companies can be regulated

However, the appeals court decided that while the corporations could challenge the rule, the Florida board's rule constitutes a valid exercise of delegated legislative authority. "Now they are also subject to be prosecuted by the Florida Board of Optometry if they break it," said Pamela Reekers, OD, president of the Florida Optometric Association. "They can also be regulated now."

"The critical thing is not only does the Board of Optometry have jurisdiction over the optometrists," Mr. Carson said, "but over the entities that are attempting to practice optometry as well, and they can sanction them. You can't, under the guise of a lease, determine how someone practices."

"[The ruling] will help protect those citizens in that they know they'll get good optometric care — and not by somebody who may have to meet a quota," Dr. Reekers said. "It's positive for the optometrists because it protects their rights to practice independently and not be told what hours to work or who they have to hire."

Efforts to contact Cole Vision and Vision Works were unsuccessful.

For Your Information:
The Florida Optometric Association can be reached at P.O. Box 13429, Tallahassee, FL 32317-1429; (904) 877-4697; fax: (904) 878-0933.