# The Attorney General of Texans January 23, 1981 MARK WHITE Attorney Gecierel John W.Davis, O.D., Chairman Texas Optometry Board Commerce Park, Suite Ii-101 5555 North Lamar Austin, Texas 78751 Opinion No. MN-292 Re: Optometry Act requirement that the business of anoptician be separate from the practice of an optometrist Dear Mr. Davis You ask four questions regarding the interpretation ~of article 4552-5.15 of the Texas Optometry Act. V.T.C.S. article 4552-5.15. These provisions require the separation of an optometrist’s premises from those of a dispensing optician, where both occupy space lnthe same building. You have described four instances where anoptometrist’s premises are adjacent to the premises of a d&en&g optician, and you ask whether the physical layouts of the offices comply with subsections (a) and (b) of article 4552-5.15 of the Texas Optometry Act. In answering these questions, we will apply the law to the facts as given w you, since we do not resolve fact questions in the opinion process. Article 4552-515provides in.pertinent part:

(a) The purpose of this section is to insure that the practice of optometry shallbe carried out insuch a manner that it ls completely and totally separated from the business of anydispensing optician, with no control 

### ofone by the other andnosolicitation for one by the other, except ashereinafter set forth. (b) If en optometrist occupies spece for the practice of optometry in a buildhig or premises in which anyperson, film, or corporation engages lnthe business of a dispensing optician, the space occupied by the optometrist shall be separated from the space occupied ty the dispensing optician bysolid partitions or walls from floor to celling. The space occupied by the optometrist shall have a patient’s entrance opening on a public street, hall, lobby, corridor, or other public thoroughfare. An entrance is not a patient’s entrance within the meaning of this subsection unless actually used as an entrance by the optometrist’s patients.

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Inyour first question, you provide the following facts: An optometrist practices next &or to a dispensing optician. The optometrist leases his space from the dispensing optician. The patient’s entrance to the optometrist’s office opens on ahall, leading to a lobby which has a &or opening on a public street. A door from the dispensing optician’s space opens to the lobby. A solid wall separates the dispensing optician’s space from the hallway leading to the optometrists office. Thirty-six inch high glass panels are set into the wall thity inches from the floor. The rest of the wall is opaque. Doors from both the optometrist’s space and the dispensing optician’s space lead into the contact lens room. In considering whether the physical layout of these offices complies with subsections (a) and (b) of article 4552-5.15 you wishusto pay particular attention to the following details:

(a) The common lobby area; (b) The fact that the partition separating the dispensing optician’s space from the hallway which leads to the optometrist’s office ispartially constructed of solid glass; (c) The presence of the door in the wall leading from the optician’s office into the contact lens room which is part of the optometrist’s space. In determining the meaning of “solid” wall, we may consult a dictionary. See Board of Insurance Commissioner’s v. Duncan, 174 S.W. 2d 326 (Tex. Civ. AwT Amarillo 1943, writ ref ’d), Websters Third International Dictionary defines solid as

“not interrupted by any breaks or opening.” In cur opinion, a solid wall within subsection (b) of. article 4552-5.15 may include transparent or trruwlucent panes of glass When the legislature wished premises used by optometrists to have opaque walls, it said so. See V.T.C.S. art. 4552-5.14(d) (premises leased by optometrists from mercantile establi%ent must be separated bysolid, opaque walls). However, a solid wall maynot be broken by windows that open or by doors. Therefore, we do not believe that any violation of the act occurs because the partition separating the dispensing optician’s space from the hallway is partly made of glass. We do, however, believe there is a violation of the Act in that a door opens from the optician’s office into the contact lens room which is part of the optometrist’s space. Because of that door, the premises of the two business entities are not completely separated byasolid partition. The two businesses open on to a common lobby area. The Act requires the patient’s entrance to the optometrist’s office open on a public lobby or other public thoroughfare. Whether or not it is a public lobby isaquestion of fact whichcannot be resolved inthe opinion process. We do not believe the facts presented in question 2 are sufficiently different from those presented inquestion 1to require separate treatment.

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You inform us that the office layouts under consideration in question 3 are virtually identical to those presented in questions 1 and 2. The only difference of which you inform us is that the lobby &es not have a door opening on a public thoroughfare. You do not inform us where the lobby leads to. As already stated, the statute requires that the optometrist’s office shall have apatient’s entrance openingon

“a public

. . . lobby, corri&r, or other public thoroughfare.” V.T.C.S. art. 4552-5.15, Sb. We cannot determine whether the lobby in question 3 is a public lobby without resolving fact questions, which cannot be done inthe opinion process. Question 4 concerns sn optometrist’s office next door to a dispensing optician. Both businesses are located in a mall The storage room of each office opens into a common restroom. Thus, the two offices are not separated by a solid partition, since

. each office has access to the other through doors leadmg out of the storage areas into the common restroom. Webelieve these premises are inviolation of subsection (b) of article 4552-5.15. SUMMARY

Article 4552-5.&(b) of the Texas Optometry Act, requires premises occupied by an optometrist to be separated from premises occupied by a dispensing optician by solid partitions or walls. Such solid partitions or walls may contain glass panels but may not be broken bya door or window which opens. # zx&

MARK WHITE Attorney General of Texas JOHNW.FAINTER, JR. First Assistant Attorney General RICHARD E. GRAY III Executive Assistant Attorney General Prepared bySusanGarrison Assistant Attorney General APPROVED: OPINIONCOMMlTTEE SusanL. Garrison, Acting Chairman C. Robert Heath

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