2023 New Mexico Statutes › Chapter 61 - Professional and Occupational Licenses › Article 2 - Optometry › Section 61-2-14 - Offenses.

A. A person who commits one of the following acts is guilty of a fourth degree felony and upon conviction shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978:
(1) practicing or attempting to practice optometry without a valid current license issued by the board;
(2) using or attempting to use a pharmaceutical agent that is regulated pursuant to the provisions of the New Mexico Drug, Device and Cosmetic Act [Chapter 26, Article 1 NMSA 1978] without having the certification for its use issued by the board, unless the administration of pharmaceutical agents is done under the direct supervision of a licensed optometrist certified to administer the pharmaceutical agents in accordance with the provisions of the Optometry Act; or
(3) permitting a person in one's employ, supervision or control to practice optometry or use pharmaceutical agents described in Paragraph (2) of this subsection unless that person is licensed and certified in accordance with the provisions of the Optometry Act or unless the administration of pharmaceutical agents is done under the direct supervision of a licensed optometrist certified to administer the pharmaceutical agents in accordance with the provisions of the Optometry Act.
B. A person who commits one of the following acts is guilty of a misdemeanor and upon conviction shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978:
(1) making a willfully false oath or affirmation where the oath or affirmation is required by the Optometry Act;
(2) selling or using any designation, diploma or certificate tending to imply that one is a practitioner of optometry, unless one holds a license as provided by the Optometry Act;
(3) refusing, after a request, to provide a patient a copy of the patient's eyeglasses prescription, if the prescription is not over one year old;
(4) duplicating or replacing an ophthalmic lens without a current prescription not more than two years old or without a written authorization from the patient if the prescription is not available;
(5) except for licensed optometrists, using any trial lenses, trial frames, graduated test cards or other appliances or instruments for the purpose of examining the eyes or rendering assistance to anyone who desires to have an examination of the eyes, but it is not the intent of this paragraph to prevent a school nurse, schoolteacher or employee in public service from ascertaining the possible need of vision services, if the person, clinic or program does not attempt to diagnose or prescribe ophthalmic lenses for the eyes or recommend any particular practitioner or system of practice;
(6) advertising the fabricating, adapting, employing, providing, sale or duplication of eyeglasses or any part of them, but this paragraph does not preclude the use of a business name, trade name or trademark not relating to price or the use of the address, telephone number, office hours and designation of the provider, in or at retail outlets, on business cards, eyeglass cleaners and cases or in news media or in public directories, mailings and announcements of location openings or the use of the words "doctors' prescriptions for eyeglasses filled" or "eyeglass repairs, replacements and adjustments"; or
(7) selling of prescription eyeglasses or contact lenses, frames or mountings for lenses in an establishment in which the majority of its income is not derived from being engaged in that endeavor.
History:
1953 Comp., § 67-1-12, enacted by Laws 1973, ch. 353, § 12; 1985, ch. 241, § 5; 1995, ch. 20, § 8; 1996, ch. 59, § 3; 2003, ch. 274, § 5; 2015, ch. 131, § 5.
ANNOTATIONS
Cross references.
— For the Criminal Code,
see
30-1-1 NMSA 1978 and notes thereto.
The 2015 amendment,
effective June 19, 2015, provided for a generalized "pharmaceutical agent" by removing references to certain types of pharmaceutical agents in the provision relating to violations of the Optometry Act; in Paragraph (2) of Subsection A, after "attempting to use a", deleted "topical ocular pharmaceutical agent or an oral"; in Paragraph (3) of Subsection B, after "a copy of", deleted "his" and added "the patient's"; in Paragraph (5) of Subsection B, after "paragraph to prevent", deleted "any" and added "a"; and in Paragraph (6) of Subsection B, after "eyeglasses or any part", deleted "thereof" and added "of them".
The 2003 amendment,
effective June 20, 2003, rewrote the section to the extent that a detailed comparison is impracticable.
The 1996 amendment,
effective May 15, 1996, added the language beginning "unless, however, the administration of pharmaceutical agents" at the end of Paragraph A(2), deleted "licensed or" following "unless that person is" in Paragraph A(3), and added the language beginning "or unless the administration of pharmaceutical agents" at the end of Paragraph A(3).
The 1995 amendment,
effective July 1, 1995, added Subsection A; designated the former introductory paragraph as Subsection B and rewrote the provision; redesignated former Subsections C through F as Paragraphs B(1) through B(4); deleted former Subsection G prohibiting practicing optometry when one's license has been revoked or suspended; designated former Subsections H through J as Paragraphs B(5) through B(7); and made related and other stylistic changes throughout the section.
Constitutionality of advertising restraints.
— Subsection (m) of 67-7-13, 1953 Comp., prohibiting price advertising of eyeglasses, lenses and the like, did not impose a constitutionally prohibited burden upon interstate commerce, and was not preempted by federal legislation; nor did it constitute a deprivation of property in violation of the due process clause or a violation of the privileges and immunities clause of the fourteenth amendment.
Head v. N.M. Bd. of Exam'rs
, 374 U.S. 424, 83 S. Ct. 1759, 10 L. Ed. 2d 983 (1963).
Freedom of speech issue not decided.
— Argument that injunction against a newspaper and radio station, prohibiting the accepting or publishing within New Mexico of a Texas optometrist's advertisement, constituted an invalid restraint upon freedom of speech protected by the fourteenth amendment was neither made to the state courts nor reserved in notice of appeal, and would not be considered by the supreme court.
Head v. N.M. Bd. of Exam'rs
, 374 U.S. 424, 83 S. Ct. 1759, 10 L. Ed. 2d 983 (1963).
Cable television system not "advertising".
— Cable television system which did not sell advertising space, nor receive any compensation whatsoever from advertisers or broadcasters for the electronic service it performed, and was supported entirely by the sale of subscriptions to viewers, in return for which it performed the service of increasing the viewer's capacity to receive television signals, was not "advertising" within meaning of statute forbidding advertising of optometry and optometry services; neither did operators share a "community of purpose" with out-of-state optometrists or broadcasters sufficient to render them liable as accessories.
Midwest Video v. Campbell
, 1969-NMSC-034, 80 N.M. 116, 452 P.2d 185.
Fact that one consequence of the cable television systems' activities was to expose a number of New Mexicans to price advertising inducements to which they might not otherwise have been exposed was merely an incidental effect of an otherwise lawful activity, and did not, of itself, absent intention or purpose, make the activity "advertising."
Midwest Video v. Campbell
, 1969-NMSC-034, 80 N.M. 116, 452 P.2d 185.
Stay of federal proceedings pending state construction.
— Former 67-7-13(m), 1953 Comp., which forbade the advertising of prices or terms on eyeglasses, spectacles, etc., should have been exposed to state construction as to its application to the plaintiffs or limiting action before the federal courts were asked to pass on its constitutionality; therefore, proceedings challenging its validity before a three-judge federal district court would be stayed for a reasonable time pending state court interpretation of the statute.
Midwest Video Corp. v. Campbell
, 250 F. Supp. 158 (D.N.M. 1965).
Applicability to optometrists in state.
— An optometrist doing business in New Mexico must carry on the profession in accordance with the laws of this state. 1969 Op. Att'y Gen. No. 69-80.
Constitutional basis for prohibitions against advertising.
— Laws prohibiting price advertising and similar advertising by professional persons have as their constitutional basis the rationale that the state has such an interest in the health of its citizens that it may prevent advertising or price promulgation by professional individuals engaged in treating the human body or any part thereof. 1963 Op. Att'y Gen. No. 63-119 (rendered under former law).
Out-of-state advertising.
— The placing of prohibited trade advertising with out-of-state media by a New Mexico optometrist would lie within the prohibition of the former New Mexico Optometry Act (67-7-1, 1953 Comp. et seq.). 1969 Op. Att'y Gen. No. 69-80.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 61 Am. Jur. 2d Physicians, Surgeons and Other Healers §§ 125 to 131, 135, 141, 143, 144.
Constitutionality of statute or ordinance prohibiting or regulating advertising by physician, surgeon or other person professing healing arts, 54 A.L.R. 400.
Constitutionality of statutes and validity of regulations relating to optometry, 98 A.L.R. 905, 22 A.L.R.2d 939.
Right of corporation or individual, not himself licensed, to practice optometry through licensed employee, 102 A.L.R. 343, 128 A.L.R. 585.
One who fills prescription under reciprocity arrangement with optometrist as subject to charge of practice of optometry without license, 121 A.L.R. 1455.
What constitutes practice of "optometry," 82 A.L.R.4th 816.
70 C.J.S. Physicians, Surgeons, and Other Health-Care Providers §§ 12, 28, 53 to 57.