Day v. Inland Empire Optical, Inc. , 76 Wash. 2d 407 ( 1969 )

Neill, J.

(concurring) — I concur in the result reached by the majority opinion, and in the modification of the trial court’s decree. I disagree in some respects, however, with the test used to implement RCW 18.34.010. That statute provides in part:

Nothing in this chapter shall:

(1) Be construed to limit or restrict a duly licensed physician or optometrist or employees working under the personal supervision of a duly licensed physician or optometrist from the practices enumerated in this chapter, and each such licensed physician and optometrist shall have all the rights and privileges which may accrue under this chapter to dispensing opticians licensed hereunder; . . • .

The court’s opinion implies that physical separation of the areas utilized by the doctors and the dispensing opticians is a primary and perhaps controlling factor to be considered in determining whether opticians are working under the personal supervision of optometrists as contem: plated by the statute. This physical relationship is repeatedly emphasized in the opinion. This emphasis upon the spatial relationship between the work areas of optometrists and opticians is misleading.

The crucial considerations in applying RCW 18.34.010 do not rest upon appearances, but upon the amount of direct supervision actually exercised. Inland Empire Optical is a separate corporation with its own operations manager who supervised its day-to-day activities. Under the current method of operation of Inland Empire Optical, I agree that the defendant physicians do not meet the requirements of the exception contained in RCW 18.34.010.

October 21, 1969. Petition for rehearing denied.