SEC. 8. That the Board of Optometry may in its discretion and upon the decision of at least three of its members refuse to grant a license to any applicant and may revoke or suspend the operation of any license by it granted for any of the following reasons: (a) That said licensee is guilty of gross immorality; (b) That said licensee is guilty of fraud, deceit, or willful misrepresentation in his admission to such practice; (c) That said licensee has been convicted in a court of competent jurisdiction of a crime involving moral turpitude; (d) That said licensee is found to be an habitual drunkard or is addicted to the use of morphine, cocaine, or other drugs having similar effect, or has become insane; (e) That said licensee has employed, hired, procured, or induced an optometrist to practice optometry in the District of Columbia who is not licensed as herein provided; (f) That said licensee aids or abets in the practice of optometry any optometrist not duly licensed to practice optometry under this Act; (g) That said licensee advertises superiority or the performance of services in a superior manner; advertises prices for, or a discount on, optometric services, eyeglasses, spectacles, opthalmic lenses, frames, mountings; advertises free optometric service, or free examination; or any words or phrases which would imply to the public that optometric services or examination of the eyes was free; advertises to guarantee any optometric service of any eyeglasses, spectacles, lenses, frames, or mountings; or advertise for patronage by means of posters, stereopticon slides, or by motion pictures. SEC. 9. That it shall be unlawful to (a) Falsely impersonate an optometrist; (b) Buy, sell, or fraudulently obtain any optometry diploma, license, record, or registration, or aid or abet therein; (c) Practice optometry in violation of this Act; (d) Practice, offer, or hold one's self out as authorized to practice optometry or use in connection with his name any designation tending to imply that he is a practitioner of optometry if not licensed to practice under the provisions of this Act; (e) Practice optometry during the time his license or certificate of annual registration shall be suspended or revoked; (f) Peddle spectacles, eyeglasses, or ophthalmic lenses, or to practice optometry from house to house or on the streets or highways, notwithstanding any laws for the licensing of peddlers. This shall not be construed as prohibiting an optometrist or physician from attending, prescribing for, and furnishing spectacles, eyeglasses, or opthalmic lenses to a person who is confined to his abode by reason of illness or physical or mental infirmity; (g) Either in person or by or through solicitors, canvassers, or agents, give or offer to give any person eyeglasses, spectacles, or opthalmic lenses either with or without frames or mountings as a premium or inducement for any subscription to any book, set of books, magazine, magazines, periodical, or other publication, or as a premium or an inducement for the purchase of any goods, wares, or merchandise; (h) Either in person by or through solicitors or canvassers to make a houseto-house canvass for the purpose of selling or soliciting the sale of eyeglasses, spectacles, opthalmic lenses, frames, mountings, eye examinations, or optometrical services; (i) Advertise optometric superiority or the performance of optometric services in a superior manner; advertise prices for, or a discount on, optometric services, eyeglasses, spectacles, ophthalmic lenses, frames, mountings; advertise free optometric service, or free examination, or any words or phrases which would imply to the public that optometric services or examination of the eyes was free; advertise to guarantee any optometric services or eyeglasses, spectacles, lenses, frames, or mountings; or advertise for patronage by means of poster, stereopticon slides, or motion pictures. SEC. 10. Proceedings under this act shall be begun by filing charges with the Board in writing and under oath. Said charges may be preferred by any person or association. The Board shall have the power to consider and investigate all such written charges pertaining to the alleged violation or violations of the provisions of this Act or rules and regulations duly promulgated thereunder, and after its investigation the Board shall, if it deems a prima facie case has been established of such alleged violation or violations, issue a formal complaint setting forth specifically the alleged violation or violations. The Board shall thereupon fix a time and place for hearing and shall cause a copy of the complaint, together with a notice of the time and place fixed for the hearing to be served on the respondent or his counsel, at least ten days prior to the date of such hearing. When personal service cannot be effected, the Board shall cause to be published once a week for two successive weeks a notice of the hearing in a daily newspaper published in the District of Columbia and shall mail a copy of the complaint and of such notice to the respondent at his last known address. The publication of the notice is necessary, the date of hearing shall be not less than ten days after the last date of the publication of the notice, and the Board shall thereafter proceed with such hearing as though personal service had been effected. The Board thereafter shall have the power to issue subpenas and subpenas duces tecum to compel the attendance of witnesses and the production of books, records, and documents, to administer oaths and take testimony concerning the matters set forth in the said complaint, and the Board shall call upon the corporation counsel of the District of Columbia for his services in connection therewith, to which services the Board shall be entitled. In case of refusal by any person to obey a subpena issued by the Board, the District Court of the United States for the District of Columbia, upon application by the Board, shall have jurisdiction to issue to such person an order requiring such person to appear before the Board, there to produce evidence if so desired or to give testimony concerning the charges set forth in the complaint, and any failure to obey such order of the court may be punished by said Court as a contempt thereof. In any such proceeding before the Board the rules of evidence prevailing in a court of law shall not be controlling. All testimony shall be reduced to writing, and, if upon such testimony the Board shall be of the opinion that any person named in the complaint has been engaged in practice which is in violation of this Act or rules and regulations duly promulgated thereunder, the Board shall state its findings of fact in writing and may, in the exercise of its discretion and upon the decision of at least three members thereof, suspend or revoke the license of such violator. In case any license to practice optometry is revoked, suspended, or refused, the licensee or the applicant may, within ten days after the order of revocation or the order of suspension or any such refusal to grant such a license is entered or made, appeal in writing to the Commissioners of the District of Columbia to review said action of the Board of Optometry. Thereupon the Board shall submit a certified copy of the testimony, findings of fact, and its order to the Commissioners of the District of Columbia. The said Commissioners shall not be required to take evidence, either oral, written, or documentary. The decision of said Commissioners on the questions of fact involved in such appeal shall be final and conclusive, except as hereinafter provided. Any order revoking or suspending any license shall be stayed pending an appeal before the Commissioners and/or the United States Court of Appeals for the District of Columbia as herein provided for, for any charges of violation or violations under this Act other than violations of paragraphs (a), (b), (c), and (d) of section 8 hereof. Any party aggrieved by any action or order of the Commissioners of the District of Columbia under this Act may, and within twenty days of said action or order of the Commissioners of the District of Columbia, petition the United States Court of Appeals for the District of Columbia for a review of said action or order of the said Commissioners. A copy of said petition shall forthwith be served upon the respondent and thereupon the aggrieved party shall file in the court a transcript of the entire record in the proceeding, certified by the Commissioners of the District of Columbia, including the pleading and testimony upon which the action complained of was based and the findings and order of the Commissioners. Upon such filing, the court shall have jurisdiction of the proceedings and of the question determined therein, and shall have power to make and enter, upon the pleadings, testimony, and proceedings set forth in such transcript, a decree affirming, modifying, or setting aside in whole or in part the action or order of the Commissioners. No objections that have not been urged before the Commissioners shall be considered by the court, unless the failure or neglect to urge such objections shall be excused because of extraordinary circumstances. At the earliest convenient time the court shall hear and determine the appeal upon the record before it and shall have power, upon such record, to enter a judgment affirming or reversing the decesion of the Commissioners, and, in the event the court shall render a decision and enter an order reversing the decision of the Commissioners, it shall remand the case to the Board to carry out the judgment of the court: Provided, however, That the review by the court shall be limited to questions of law and that findings of fact by the Commissioners, if supported by evidence, shall be conclusive unless it shall appear to the court that the findings of the Commissioners are arbitrary or capricious. If either party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board or the Commissioners to be made a part of the transcript. The Commissioners may modify their findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and they shall file such modified or new findings, which, if supported by evidence, shall be conclusive, unless it shall appear to the court that the findings of the Commissioners are arbitrary or capricious, and shall file their recommendations, if any, with the court for the modification or setting aside of their original action. The jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the Supreme Court of the United States upon writ of certiorari or certification as provided in sections 239 and 240 of the Judicial Code, as amended (U. S. C., title 28, secs. 346 and 347). The Board may upon application reissue a license to practice optimetry that has been revoked but such application shall not be made prior to one year after the revocation and shall be made in such manner and form as the Board may require. SEC. 12. That any person violating any of the problems of this Act shall be guilty of a misdemeanor, and upon conviction for the first offense shall be fined not more than $500, and upon conviction for any subsequent offense shall be fined not less than $500 nor more than $1,000 or be imprisoned in the District jail not less than three months nor more than one year, or both, in the discretion of the court. SEC. 13. That this Act shall not apply to (a) Physicians and surgeons practicing under authority or license issued under the laws of the District of Columbia for the practice of medicine and surgery. (b) Persons selling spectacles and (or) eyeglasses and who do not attempt either directly or indirectly to practice or profess the practice of optometry. SEC. 14. That nothing in this Act shall be construed as conferring on the holder of any license issued by said Board the right to use any title or any word or abbreviation indicating that he is engaged in the practice of medicine, surgery, or the treatment of the eye, of the diagnosis of diseases of or injuries to the human eye, or the writing or issuing of prescriptions for the obtaining of drugs or medicine in any form for the treatment or examination of the human eye. SEC. 15. That nothing in this Act shall be so construed as to prohibit any person, firm, partnership, or corporation from leasing, owning, or operating outright, or in connection with its or their business establishment, an optical department wherein optometry, as defined in this Act, may be practiced: Provided, That such optical department shall be in charge of an optometris duly licensed and registered under this Act: And provided further, That all examinations of the eye and all formulas for glasses or lenses shall be made only by a duly licensed and registered optometrist employed therein. SEC. 16. That wherever in this Act the singular number is used it shall be interpreted as meaning either singular or plural if compatible with the sense of the language used, and when in this Act the masculine gender is used it shall be construed as meaning also the feminine gender if not inconsistent with such use. SEC. 17. That if any provision of this Act, or the application thereof to any person or circumstances, is held invalid, the remainder of the Act, and the application of such provision to other persons or circumstances, shall not be affected thereby. Mr. BATES. Judge Smith, do you care to make a statement? Mr. SCHULTE. Are the bills identical? Mr. BATES. NO; they present opposite views. Perhaps it would be better for us at this time to hear from the corporation counsel's office, and then get the views of both sides. We will hear first from Mr. Gasch. STATEMENT OF OLIVER GASCH, ESQ., ASSISTANT CORPORATION COUNSEL OF THE DISTRICT OF COLUMBIA Mr. GASCH. The position that we have to take on this matter is this: Of course, our report at this time is incomplete because of the fact that we have referred the matter to the Bar Association, and we understand that Mr. Obear has a committee of nine working on a report. The matter has also been referred to the Medical Association. The matter has also been referred to Dr. Ruhland, and he advised that his objection to Judge Smith's bill is based on the definition of "optometry" in that bill. I was advised this morning by gentlemen here who are in favor of the judge's bill that they will agree to modify the bill to meet that objection. I understand that is their proposition. I have no objection to the bill introduced by Mr. Nichols at this time. We are not in a position now to render a formal or complete report with respect to the position of the Commissioners on the bills. Unfortunately, I have not made any study of it myself, and I got the matter just shortly before I came up here this morning. I might say, further, sir, that the position of Dr. Ruhland is based largely on the position taken by Justice Luhring's definition and conclusions of law that he set forth in the case of Silver, Edwin H. Silver v. Lansburgh & Brothers (Equity No. 58801). Mr. BATES. I wonder what the Health Department thinks of H. R. 278, with the definition changed? Mr. SEAL (ELWOOD H.). Mr. Chairman, let me read Dr. Ruhland's memorandum of April 14, 1939, as follows: Reference is made to H. R. 278 and H. R. 5238, bills to regulate the practice of optometry in the District of Columbia which you forwarded to me for recommendation. This department objects to the definition of the practice of optometry in H. R. 278 on the ground that "optometric methods and agents" are not defined. The definition of the practice of optometry in H. R. 5238 is the same as the definition in the present Optometry Act, approved May 28, 1924. This department has no objection to the definition in H. R. 5238, nor any objection to the general provisions of this bill. I think perhaps, as Mr. Gasch told you, we submitted it to the Medical Society, that is the bill introduced by Representative Smith, and also the bill introduced by Representative Nichols. We have gotten no report from the Medical Society on either bill nor have we received a report from the bar association to which we also submitted the bills. I have received no information from them. Frankly, the reason a report has not been made is because I did want to get some help on it from outside sources, who knew something about it. Mr. BATES. Could you prod the medical association and get them to report on it? Mr. SEAL. I will go after them and ask them to give us a report on both, if they will. There is not anything further I can add. Mr. SCHULTE. Why don't we get down to the substance of the bills, Mr. Chairman, and see what the proponents and the opponents of the respective bills state? Mr. BATES. We will hear first from Dr. Kraskin. STATEMENT OF DR. LEWIS KRASKIN, PRESIDENT OF THE DISTRICT OF COLUMBIA OPTOMETRY SOCIETY Dr. KRASKIN. Mr. Chairman and members of the committee, I wish to state that I am president of the District of Columbia Optometry Society; and I am also president of the District of Columbia Board of Examiners of Optometry, appointed by the Commissioners. I was interested in what the gentleman had to say in reference to the medical society. We have correspondence from the medical society that they are 100 percent back of our bill if we will change the definition. Mr. BATES. Which one is that? Dr. KRASKIN. The one which Judge Smith introduced, H. R. 278; and we have notified the Medical Society that we would change the definition. Other than the definition that they have advised us should be changed, they even complained that we have not made our bill strong enough in general, but they are for the bill and we have that correspondence suggesting that we change the definition, which we will be glad to do. Mr. SCHULTE. What definition do they want you to change? Mr. SCHULTE. What change do you find in the present state of the bill? Dr. KRASKIN. We find it is not strong enough to properly administer or take care of the profession of optometry as originally advocated. Mr. SCHULTE. In what way? Dr. KRASKIN. Because of the many violations that take place, so many many things that are done. Mr. SCHULTE. What are the things done to which you object? Dr. KRASKIN. The behavior of the men in general in reference to their attitude toward patients who come to their office; we feel the public is not properly protected. Mr. SCHULTE. In what way? That does not answer the question. What behavior? Dr. KRASKIN. What I am giving you is our views in general, but we can go more into details and give you the reasons. Mr. SCHULTE. You are the president of your organization? Dr. KRASKIN. I am president of the Board of Examiners of the District of Columbia for Optometry. Mr. SMITH. Do you want him to go into the details? Mr. SCHULTE. What is wrong with the present bill? Dr. KRASKIN. We feel it is not effective enough; it does not give the board of examiners enough control. Mr. SCHULTE. Control of those who are practicing? Dr. KRASKIN. That is right. The board of examiners are only interested in administering the act for the protection of the public, and to make the men behave in such a fashion that the public will get the finest service possible. Mr. SCHULTE. How can they get it? In what way? Dr. KRASKIN. Keep the men up to date constantly; to see that they are competent and that they do not do things which would in many ways prevent them from administering properly. We want to build |