[141 N.Y.S.2d 55] Hays, St. John, Abramson & Schulman, New York City, for petitioner
(Osmond K. Fraenkel, Irwin Karp and Sidney H. Asch, New York City, of counsel).
Jacob K. Javits, Atty. Gen., State of New York, for respondent (Henry S. Manley, Solicitor Gen., and Robert W. Bush, Asst. Atty. Gen., Albany, of counsel).
Before FOSTER, P. J., and BERGAN, COON, HALPERN and IMRIE, JJ.
The petitioner has been suspended from the practice of optometry for a period of one year by the Board of Regents upon a finding that he was guilty of unprofessional conduct (a) in authorizing the distribution of advertising matter containing reference to the cost of glasses and optometric services and (b) in offering discounts or inducements in connection with his practice.
[141 N.Y.S.2d 56] The case is before us in a proceeding under Article 78 to review the determination of the Board of Regents. The facts are virtually undisputed, although there are some differences between the parties as to the inferences to be drawn from the facts. The petitioner entered into an arrangement with Republic Lodge 1987 of the International Association of Machinists of the American Federation of Labor under which he agreed to furnish optometric and optical services to union members and their families at 'low cost'. The proof established that it was contemplated that the prices charged to the union members would be lower than those charged to the general public. The union mailed a circular letter to its members which explained that the union had adopted a low cost optical plan and had selected the petitioner to serve its membership and advised the members that they could
'avail themselves of the beneficial advantages of this Union Low Cost Optical Plan at either of Dr. Dubin's two established offices'. Enclosed in the letters were 'Optical Plan Membership Cards' to identify the members in applying for the optional service. The form of the letter was approved by the petitioner and it was sent out with his consent.
It was also established by the proof that the arrangement had been carried out and that the union members and their families had been given substantial discounts, by the petitioner, upon presentation of the Optical Plan Membership Cards.
The petitioner was charged 'with fraud, deceit and misrepresentation in the practice of optometry and with unprofessional conduct in the practice of optometry, within the purview and meaning of Section 7108, subdivision 1 of the Education Law of the State of New York, and of the Rules of the Board of Regents' in that he had permitted to be distributed and circularized the 'cards and literature' described above and 'That pursuant to the aforesaid plan respondent did cause and permitted to be advertised matter which contained reference to cost of optometric services, lenses, glasses, frames, etc. and did offer discounts or inducements to prospective patrons'.
A hearing was held upon these charges by the Board of Examiners in Optometry. The petitioner appeared in person and was represented by counsel. Upon the hearing, there was no real controversy as to the conduct of the petitioner nor was there any question as to its unprofessional nature. The petitioner interposed two 'pleas in mitigation', the first, that he had relied in good faith upon the advice of an attorney who had advised him, after studying the matter, that his participation in the plan was permissible and the second, that the plan had been terminated before the date upon which the charges had been brought. These matters were offered as bearing upon the extent of the discipline to be imposed, rather than upon the merits of the charge. They were countered by proof offered by the Assistant Attorney General that the petitioner had been warned upon a previous occasion concerning participation in [141 N.Y.S.2d 57] a plan with another union under which a schedule of prices had been advertised and that he had promised not to re-engage in the practice. The Board found that the charges had been 'sustained by sufficient legal evidence' and recommended that the petitioner's license be suspended for one year. The Regents Committee on Discipline upheld this recommendation and thereafter the Board of Regents accepted and sustained the determination and accordingly suspended the petitioner's license for a period of one year.
In this proceeding to review the Board's determination, the principal attack is upon the validity of the rules of the Board of Regents which define unprofessional conduct in the practice of optometry.
The regulations were promulgated by the Commissioner of Education, with the approval of the Board of Regents in 1942, pursuant to section 46 of the Education Law (now § ...