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Opt In…Opt Out

by Ron Davis

Shopping centers in Tennessee must now make this distinction when leasing space to opticians and optometrists: It's okay for an optometrist tenant to employ opticians, but beware of optician tenants who employ optometrists.

As some shopping centers in that state may soon discover, selecting the latter as a lessee could mean a loss of rental revenue from sales--or possibly a breach of lease and abandonment of the premises by the tenant.

The required distinction results from a recent decision by the Tennessee Supreme Court in a case involving LensCrafters, Inc. That company owns optical stores throughout the United States and fills prescriptions for eyeglasses and contact lenses on its premises. And it leases or subleases space to licensed optometrists who perform eye examinations.

Tennessee law prohibits optometrists from practicing their profession "in any retail store or other commercial establishment where merchandise is displayed or offered for sale." And when an optometrist leased space at a LensCrafters store located at a Nashville shopping center, the Tennessee Board of Optometry used that law and its professional standards to fine him and impose other restrictions against him.

LensCrafters sued both the state of Tennessee and the Board of Optometry, challenging the state law as unconstitutional. Specifically, LensCrafters argued that the law is inconsistent because it allows an optometrist to hire dispensing opticians and sell eye-related products, but the law does not allow a dispensing optician to form a business association with an optometrist.

In upholding the law governing the optometrist-optician relationship, the Tennessee Supreme Court explained:

"LensCrafters fails to recognize that allowing optometrists to practice in conjunction with businesses in the practice of dispensing opticians may involve a compromise of the optometrists' professional autonomy. Such does not occur when an optometrist operates an independent business that employs opticians to dispense and sell ophthalmic lenses and frames. Furthermore, there is no law condoning an optometrist's professional association with or employment by dispensing opticians. The reason for this is that opticians are not health-care professionals; they are specifically prohibited from examining eyes or diagnosing, treating, or correcting any human ailment or physical condition." (LensCrafters, Inc. v. Sundquist, 33 S.W.3d 772 [Tenn. 2000])

Decision: December 2000

Published: March 2001



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