OPTOMETRY - LICENSES - TRANSFER OF USE OF OPTOMETRIST'S NAME

OPTOMETRY - LICENSES - TRANSFER OF USE OF OPTOMETRIST'S NAME.

RCW 18.53.140 (5) does not allow the transferee of the name of a lawfully licensed optometrist to in turn transfer that name to another optometrist so as to make it possible for this second transferee to also practice optometry under such transferred name.

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                                                                 August 21, 1968

Honorable Henry L. Schumacher
Chairman, Washington State Board of Optometry
Professional License Division
Department of Motor Vehicles
P.O. Box 649
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1968 No. 27

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:

            Does RCW 18.53.140 (5) allow the transferee of the name of a lawfully licensed optometrist to in turn transfer that name to another optometrist so as to make it possible for this second transferee to also practice optometry under such transferred name?

            We answer your question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            RCW 18.53.140 codifies § 7, chapter 144, Laws of 1919, as last amended by § 1, chapter 78, Laws of 1945.  In so far as is material to your question, the statute reads as follows:

            "It shall be unlawful for any person:

            ". . .

            "(5) To practice optometry under a false or assumed name, or as a representative or agent of any person, firm  [[Orig. Op. Page 2]] or corporation with which the accused has no connection:  Provided, Nothing in this chapter nor in the optometry law shall make it unlawful for any lawfully licensed optometrist or association of lawfully licensed optometrists to practice optometry under the name of any lawfully licensed optometristwho may transfer by inheritance or otherwise the right to use such name; . . ."  (Emphasis supplied.)

            You have inquired as to whether an optometrist, by virtue of a second generation transfer under this provision, may practice under the name of another optometrist.  In the context of your question, a second generation transfer occurs when Dr. B, who has obtained, by inheritance or purchase, the privilege of using Dr. A's name, transfers the privilege of using Dr. A's name to Dr. C.

            The answer to this question is, of course, dependent on the meaning to be given to the phrase "who may transfer" as used in the proviso -which was added to the original statute by the 1945 amendment.  If the pronoun "who" refers to the optometrist using the name of another then there could be transfers of the use of that name ad infinitum.  If, on the other hand, the pronoun "who" refers to the optometrist whose name is being used, then there can only be a first generation transfer of the use of that name.

            In concluding that the latter interpretation manifests the true intention of the legislature, we are influenced first by the structure of the language in the proviso.  An optometrist may practice under the name of another ". . . lawfully licensed optometrist who may transfer . . . the right to use such name."  Thus, it is only the transferor's name that may be transferred - his own name, transferred by him to some other ". . . lawfully licensed optometrist or association of lawfully licensed optometrists . . ."

            Secondly, if the pronoun "who" was read as referring to the individual who was in fact using another optometrist's name, then the proviso would mean that the individual whose name was being used would not have any control over the use of his own name by others since the transfer rights would refer only to  [[Orig. Op. Page 3]] the individual who was in fact using another's name.  This is simply a result which we would hesitate to conclude was intended by the legislature in the absence of explicit language expressing such intent.

            Of course, it must be remembered that we are here discussing an exception to a statutory prohibition which, therefore, must be strictly construed with all doubts being resolved in favor of the general provision.  State v. Christensen, 18 Wn.2d 7, 137 P.2d 512 (1943); Insurance Co. N. Am. Co. v. Sullivan, 56 Wn.2d 251, 352 P.2d 193 (1960); andIn re The Monks Club, Inc., 64 Wn.2d 845, 394 P.2d 804 (1964).  In this contextHodgen v. Commonwealth, 142 Ky. 722, 135 S.W. 311 (1911), change this rule.  That bill would have amended § 7 (5) of dentist under a statute which prohibited the practice of dentistry "under the name of any company, association or corporation, excepting those who have been in actual business for fifteen years or more . . ."  The dentist involved had been in business for more than fifteen years but he had not been practicing under the same name for more than fifteen years.  The court construed the statute to mean that the dentist must have been practicing under the same name for more than fifteen years and said:

            ". . . But the exception contained in the act should not be extended by construction.  On the contrary, it should be limited as much as a fair interpretation of the act will permit."  (p. 313.)

            With this thought in mind, let us now look briefly at the background to the enactment of the 1945 amendment which added the critical proviso to RCW 18.53.140 (5).  Persons who desire to engage in the profession of optometry have been required, since the enactment of chapter 235, Laws of 1909, to be licensed by the state of Washington and to meet certain qualifications both to obtain and retain that license.  However, the present statues regulating this profession date from the enactment of the state optometry law by the 1919 legislature -chapter 144, Laws of 1919.  Section 7 of that act enumerated a number of specific activities which were declared to be unlawful, including the following:

            "To practice optometry under a false or assumed name, or as a representative or  [[Orig. Op. Page 4]] agent of any person, firm or corporationwith which the accused has no connection;"  (Emphasis supplied.)

            The underlined language gave rise to the inference that it was permissible for a person to practice optometry as a representative or agent of a person, firm or corporation with which the optometrist had a connection.  However, the notion that a corporation might engage in the practice of optometry, or employ agents to do so, was subsequently rejected both by this office and by our state supreme court.  See, AGO dated December 3, 1931, to the director of licenses, and State ex rel. Standard Optical Co. v. Superior Court, 17 Wn.2d 323, 135 P.2d 839 (1943), where the optometrist involved actually held shares of stock in the corporation and the court specifically held that such an interest did not legitimatize the corporate practice under the language of § 7 (5), chapter 144, Laws of 1919.

            Pertinent to your inquiry are two conclusions stated by the court:  First, the court (at p. 329) quoted with approval the following statement from 41 Am.Jur., Physicians and Surgeons, § 20, p. 149:

            "'And it is the majority rule that a corporation cannot engage in the practice of medicine, and that neither a corporation nor any other unlicensed person or entity may engage, through licensed employees, in the practice of medicine or surgery, dentistry, or any of the limited healing arts, although, as appears later, some of the courts qualify or disregard the rule in favor of the practice of optometry.  A statute permitting corporations for profit to be organized for any lawful purpose does not authorize the organization of corporations to engage in the practice of medicine where a statute regulating such practice contemplates only the licensing of individuals.'"

            Second, the court expressed what it conceived to be legislative intent to place optometry in this state in the same general category as the professions of law, medicine and dentistry as  [[Orig. Op. Page 5]] learned professions -thereby barring corporate practice.

            Closely akin to the practice of medicine under a corporate name is its practice under any false or assumed name, with regard to which the law is summarized in 41 Am.Jur., Physicians and Surgeons, § 52, p. 178:

            "It is the almost universal rule that the practice of medicine or any of its branches or systems under a false or assumed name is ground for revocation of the practitioner's license to practice; and in some jurisdictions this is one of the statutory grounds for revocation.  And it has been held under such a statute that fraudulent concealment of identity need not be present to warrant revocation, but that the paramount consideration is the protection of the public in forming the relation of physician and patient. . . ."

            During the 1945 session of our state legislature, House Bill No. 274 was introduced to amend the optometry act so as to change this rule.  That bill would have amended § 7(5) of chapter 144, Laws of 1919, so as to provide:

            ". . . That nothing in this act nor in the Optometry Law shall make it unlawful for any qualified and registered optometrist, either individually or in association with other qualified and registered optometrists, to practice optometry under an adopted trade name and in such practice to employ other qualified and registered optometrists."

            However the legislature refused to adopt this broad provision; instead it adopted the language now contained in the proviso to RCW 18.53.140 (5) (quoted at the outset of this opinion).  In other words, the legislature declined to sanction the unqualified practice of optometry under an assumed name, and instead authorized it only to the extent of allowing one "lawfully licensed optometrist or association of lawfully licensed optometrists . . ." to practice under the name of another ". . . lawfully licensed optometrist who may transfer by inheritance or otherwise the right to use such name."

             [[Orig. Op. Page 6]]   Giving this 1945 amendatory proviso the strict construction demanded both by the general rule of construction noted earlier and by the legislative history and background of the enactment, we must answer your question, as paraphrased, in the negative.  RCW 18.53.140 (5) does not allow the transferee of the name of a lawfully licensed optometrist to in turn transfer that name to another optometrist so as to make it possible for this second transferee to also practice under such assumed name.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

EDWARD B. MACKIE
Assistant Attorney General