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Hoping to re-slice the pie of Florida’s lucrative eye care business, a national trade group of optometrists and opticians and a New Jersey chain store operator have gone to federal court in Miami to challenge a state law they’ve labeled “anti-competitive.” The fight over who will get to provide vision exams, eyeglasses and contact lenses in Florida, brewing for years, promises to be fought hard. Hundreds of millions of dollars in annual future sales are at stake, and so, perhaps, are prices paid by millions of consumers. In court documents, the lead plaintiff, the National Association of Optometrists and Opticians, seeks to cast itself as a consumer rights champion. The principal defendant is the seven-member Florida Board of Optometry, an optometrist-dominated regulatory body the association asserts protects Florida’s optometrists at the expense of state consumers. The board’s chairman is Howard J. Braverman, a politically connected Hallandale Beach, Fla., optometrist and chief executive officer of a Tampa, Fla.-based eye care insurance company, Vision Care Inc. The battleground between the in-state and out-of-state optometrists is an obscure Florida statute, 463.014(1), that restricts the way optometrists and optical firms can do business. Florida optometrists contend the law protects the health and safety of state residents by keeping nonmedical practitioners from participating in the practice of optometry. The out-of-state optometrists argue the law doesn’t protect anyone other than Florida’s dispensing optometrists — those who perform eye exams and sell glasses and contact lenses — while at the same time inflating prices. “By raising prices in the market for ophthalmic goods and services, the restrictions are detrimental to some consumers, particularly the elderly, who may forgo or delay eye care or eye-wear purchases depending on the price,” says the complaint, which seeks an order enjoining the board from enforcing the law and declaring it unconstitutional. Senior Assistant Attorney General John J. Rimes III, who’s defending the board, says the notion the law is anti-competitive is “in the eye of the beholder.” “Obviously our argument would be that to the extent they don’t like the way the Legislature has balanced the professional practice standards … their arguments should be addressed to the Legislature,” says Rimes. Optometrists may practice “in” optical firms, but not “with” those firms, according to the suit filed by attorney Michael S. Popok of the Miami office of Ruden McClosky Smith Schuster & Russell. And under the law, association members like Pearl Vision, LensCrafters and Sears Optical have set up shop in Florida — but Florida’s restrictions “impede their ability to compete by preventing them from entering into standard business agreements with optometrists,” the suit says. Optical firms are barred in Florida from providing equipment or leasing space to optometrists if the firms place any conditions on their “practice of optometry.” The phrase is so widely defined — it includes day-to-day management functions like advertising or billing unrelated to actual eye care services — the law’s effect is to discriminate against large, interstate optical firms with uniform business models, says the 23-page suit. Specifically, the law violates the commerce, equal protection and due process clauses of the U.S. Constitution, the suit contends. The upshot, the suit says, is to jack up the costs of doing business in Florida by “forcing” those firms who want to do business here to abandon “the advantageous business models they employ elsewhere across the country,” like one-stop shopping for prescriptions and glasses. The law does that, the suit says, “while leaving the majority of local dispensing optometrists with whom they compete unaffected.” Co-plaintiff America’s Best Contacts & Eyeglasses of Pennsauken, N.J., has more than 100 stores in 19 states and the District of Columbia. The company asserts it has stayed out of Florida because the protectionist law is too big an imposition on the way it does business. “America’s Best would like to operate optical stores in Florida, but cannot do so because of the commercial practice restrictions,” says the suit, which suggests that ending those restrictions could ultimately drive prices 20 percent lower. Optometrists who violate Florida’s Optometry Practice Act of 1993 can have their licenses yanked by the Florida Board of Optometry. As recently as 1999, former board chairman James W. Andrews declared “the board continues to press for prosecution of violations of the corporate practice section of the Optometry Practice Act.” Stacey L. Jarrell, an attorney with Thorp Reed & Armstrong in Pittsburgh who also represents the plaintiffs, says the board continues to “make it clear” that it will crack down on those it thinks have violated the statute. Rimes, noting the law provides for both civil and criminal prosecution, acknowledged “quite a number of administrative charges have been brought,” against optometrists though no arrests have yet been made. The case has been assigned to U.S. District Judge Joan A. Lenard of the Southern District of Florida.

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