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SEPARATE CONCURRING OPINION

KAPUNAN, J.:

I concur with the opinion of Mr. Justice Purisima. In addition, I would like to state the following: The issues that present themselves in the case at bar are the following: First, can a corporation which is not a natural person, engage in the practice of optometry? Second, can a corporation, by employing optometrists as an incident to and in the ordinary course of its business of selling optical wares, supplies, substances and instruments, be said to be indirectly practicing optometry? Third, are the commercial restrictions in the business license a proper exercise of police power under the specific circumstances of this case?

I

The rule is that the corporate practice of any profession, including optometry, must never be sanctioned. The public policy behind such rulings is universal, and is based on the notion that the ethics of any profession is based upon individual responsibility, personal accountability and independence, which are all lost where one verily acts as a mere agent, or alter ego, of unlicensed persons or corporations.

II

The second question provides no easy answer and actually depends on the facts and circumstance surrounding a particular case. What is well-settled, however, is that in the absence of a statute specifically prohibiting a corporation from hiring duly licensed optometrists, the employment by such corporation of said professionals is not tantamount to practice of optometry by the corporation itself. Thus, in Samahan ng Optometrists sa Pilipinas, et al. vs. Acebedo International Corporation,¹ we held that:

x x x The fact that private respondent hires optometrists who practice their profession in the course of their employment in private respondent's optical shops, does not translate into a practice of optometry by private respondent itself. Private respondent is a corporation created and organized for the purpose of conducting the business of selling optical lenses or eyeglasses, among others. The clientele of private respondent understandably, would largely be composed of persons with defective vision and thus need the proper lenses to correct the same and enable them to gain normal vision. The determination of the proper lenses to sell to private respondent's clientele entails the employment of optometrists who have been precisely trained for that purpose. Private respondent's business is not the determination itself of the proper lenses needed by persons with defective vision. Private respondent's business, rather, is the buying and importing of eyeglasses and lenses and other similar or allied instruments from suppliers thereof and selling the same to consumers.

For petitioners argument to hold water, there need be clear showing that R.A. No. 1998 prohibits a corporation from hiring optometrists, for only then would it be undeniably evident that the intention of the legislature is to preclude the formation of the so-called optometry corporations because such is tantamount to the practice of the profession of optometry which is legally exercisable only by natural persons and professional partnerships. We have carefully reviewed R.A. No. 1998 however, and we find nothing therein that supports petitioner's insistent claims.

It is interesting to note that during the Senate deliberations on the enactment of R.A. 805 0, a widely-debated and highly controversial provision directly prohibiting the indirect practice of optometry, was eventually deleted from the original bill and was, therefore, not included in the final version of the law.² That original provision states:

Prohibition against the Indirect Practice of Optometry--No person, natural or juridical, other than an optometrist in good standing or a partnership composed solely of optometrists, shall hire, employ, join with or otherwise use the services of an optometrist for the purpose of practicing optometry: Provided however, That this prohibition shall not apply to the government of the Philippines or any of its agencies or instrumentalities and to persons who are exempted under the immediate preceding section.

By deleting the aforequoted controversial provision and by deliberately failing to provide one directly addressing the matter of whether or not duly-licensed optometrists may practice their profession as employees of corporations, it is evident that it was the legislative intent to leave to the judiciary the resolution of whatever issues that may arise in the application of the law. Senator Shahani explained:

The optometry bills have evoked controversial views from the Members of the panel. While we realize the need to uplift the standards of optometry as a profession, the consensus of both Houses was to avoid touching sensitive issues which properly belong to judicial determination. Thus, the bicameral conference committee decided to leave the issue of indirect practice of optometry and the use of trade names open to the wisdom of the Courts which are vested with the prerogative of interpreting the laws.³cräläwvirtualibräry

While the hiring by corporations of optometrists does not necessarily translate into the corporate practice of profession, which is, without question, prohibited and against public policy, factual relationships between the corporation and the employee-optometrist have been inquired into by some courts in the United States to determine whether or not there is an unauthorized corporate practice of the profession, that is, whether or not it is the corporation, and not its licensed employees, which is unduly engaged in the practice of optometry.

In many cases, the measure of control is particularly determinative.⁴ Where it appears that the optical company has the power of regulation or control of the professional activities of the licensed optometrists, including corporation's power to dismiss, and including any influence over the mode and manner of eye examinations and resulting professional judgments, the reciprocal arrangement is held to constitute the unlicensed practice of optometry.⁵ In another case, advertisement of the corporation is a factor. Where a statute provides that a person licensed to practice optometry is forbidden to advertise, practice, or attempt to practice "under a name other than his own,"⁶ advertisement of the corporation is held to lead the public to believe that it (the corporation) is practicing optometry. This provision, according to the court, is certainly antagonistic to the view that a corporation might practice optometry through a licensed optometrist.

The manner of compensation has also been held to be an important factor in determining whether or not a corporation is unlawfully engaged in the practice of optometry. Where the corporation exercises in any manner, control over the payment of fees to be charged by the optometrist,⁷ where an optometrist receives a monthly salary from the corporation purporting to be a percentage of payments made by certain customers,⁸ and where the prescription does not carry the name of the licensed optometrist, but rather that of the corporate defendant, such has been held as sufficient indications that there is unlawful corporate practice of the profession.⁹cräläwvirtualibräry

In this case, the imposition of conditions by the respondent mayor in the business permit was premature, there being no factual basis for him to conclude whether or not there was a danger that corporate practice of optometry was to take place should the business permit to operate an optical shop be granted to the petitioner. The conditions on the business permit were imposed even before petitioner began operating its optical shop in Iligan city, the alleged breach of which was the basis for the permit's cancellation and the institution of this case in court. It was not within respondent mayor's functions to determine the proper scope and application of the Optometry Law by imposing the conditions in the business permit.

III

In this connection, I do not fully share with the view that the exercise of the optometrists' specialization is no different from the practice of other regulated professions which can be done individually or in association with duly-licensed colleagues only.

Section 3 of R.A. 8050 defines optometry as:

The science and art of examining the human eye, analyzing the ocular function, prescribing and dispensing ophthalmic lenses, prisms, contact lenses and their accessories and solutions, low vision aids, and similar appliances and devices, conducting ocular exercises, vision training, orthoptics, installing prosthetics, using authorized diagnostic pharmaceutical agents (DPA), and other preventive or corrective measures or procedures for the aid, correction, rehabilitation or relief of the human eye, or to attain maximum vision and comfort.

The words "ophthalmologist", "optometrist" and "optician", though closely related, should be distinguished. An opthalmologist is a duly licensed physician who specializes in the care of eyes. Optometrists merely examine the eyes for refractive error, recognize (but does not treat) diseases of the eye, and fill prescriptions for eyeglasses.¹⁰ Optometrists also adapt frames and lenses to overcome errors of refraction and restores, as nearly as possible with these mechanical appliances, normal human vision. The optician is engaged in the business of furnishing lenses to customers on the prescriptions of licensed optometrists or qualified physicians, putting the lenses into frames selected by the customer, and fitting the frames to the face.¹¹cräläwvirtualibräry

Optometry is distinguished from other professions by the nature of relationships created between the optometrist and the client. It has been held that the traditional relationship between physician and patient does not exist in the practice of optometry, since such practice involves no relationship of trust and confidence as exists between a physician and a patient, or as between an attorney and client. The argument is that, considering the nature and scope of the optometrist's functions, no such trust relationship exists and, consequently, there is no public policy to be subserved by prohibiting optometrists to practice their profession as employees of corporations. In the case of Silver v. Lansburgh, a U.S. Court held:

xxx Both in the case of the physician and the lawyer, the person seeking his services must break down the barriers of reserve which otherwise serve to protect him and deliberately reveal to his professional adviser secrets of physical or mental disability or secrets of business of the most intimate nature. These necessary disclosures create the personal relationship which cannot exist between patient or client and a profit-seeking corporation. The universal recognition of this immediate, unbroken, and confidential association between doctor and lawyer and those who engage their services early created and still justifies the rule that their allegiance must be wholeheartedly to the patient or the client, not to another. Nothing of this nature applies to the practice of optometry."¹²cräläwvirtualibräry

Optometrists must also exercise the amount of care, skill and diligence which is exercised generally in the community by other practitioners in the same field, and as is mandated by the rules regulating their profession, wherever and however they practice their profession. Optometry has also been distinguished from other professions in that the selling of services in the former, is intertwined with the selling of goods. It has been held that "the optometrist and optician are also engaged in the sale of a product, corrective lenses, and accordingly the activities of an optometrist lie between those associated with the practice of a profession and those characteristic of a merchandising concern."¹³cräläwvirtualibräry

Anent the question of whether optometrists may practice their profession as employees of corporations, many courts in the United States have based their decisions on the distinctions and differences in the required degree of learning and training required. Generally, such decisions depend on whether the courts classify optometry as a mere "mechanical art" or as a "learned profession" such as law or medicine. Where courts consider optometry as a mere mechanical art, optometrists are not prevented from being employed in corporations, the courts holding that where the statute itself does not specifically control, the reasons for preventing the practice of law and medicine to corporations do not apply to optometry. In the case of Silver v. Lansburgh & Co., the court found:

x x x Optometry is a mechanical art which requires skill and a knowledge of the use of certain mechanical instruments and appliances designed to measure and record the errors and deviations from the normal found in the human eye, but is not a learned profession comparable to law, medicine, and theology and that, though certain standards of education are prescribed by the statute and by rules of the board created under it, optometry is not a part of medicine.¹⁴cräläwvirtualibräry

The U.S. Court of Appeals for the District of Columbia to which the aforementioned case was appealed, did concede that in their view, optometry is a profession, as the term is colloquially used, nonetheless, the court also said that there is no reason why a corporation cannot employ licensed optometrist. Thus:

x x x but that fact is not enough to bring the rule into effect. There is no more reason to prohibit a corporation, organized for the purpose, from employing licensed optometrists, than there is to prohibit similar employment of accountants, architects or engineers. We know of no instance in which the right in any of these cases has ever been challenged, though universally all are deemed professions.¹⁵

IV

The assailed conditions imposed in the subject business permit are ultra vires because they are unreasonable. Police power is often characterized as the most essential, insistent and the least limitable of powers, extending as it does to all the great public needs.¹⁶ It is the inherent and plenary power in the State which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society.¹⁷cräläwvirtualibräry

In the area of local governments, the police power of a municipality exists solely by virtue of legislative or constitutional grant.¹⁸ In view, however, of the constitutional grant of local autonomy, the argument on presumption of reasonableness in the exercise of the police power by local government may be persuasive. But this awesome character of police power is not without limits because the determination of what is proper exercise of such power is subject to the supervision of the courts.¹⁹ This is specially true in this case where police power is used to justify restriction on the right to engage in a legitimate employment or business, which right receives protection and recognition as a portion of the individual freedoms secured by the due process clause of the Constitution.

A justification for a licensing requirement and other forms of restrictions generally requires a showing that the measures at least tend to promote public health, morals, safety or welfare. Whenever a business is affected with public interest it may be subject to regulation to protect the public against danger and injustice. However, the scope of regulations of trades and occupation is determined by the principle that an exercise of the police power must confer public benefit commensurate with the burden imposed upon private rights and property, and the means adapted must be suitable to the end in view, impartial in operation, and not unduly oppressive upon individuals.²⁰ The burden imposed must not interfere with rights of private property and freedom of contract beyond the necessity of the situation.²¹ The test, thus, is the classic reasonableness and propriety of the measures or means in the promotion of the ends sought to be accomplished.

Under the rubric of general welfare, what is the specific public policy involved in the exercise of police power in this case? Or in constitutional language, what is the end sought to be achieved?

The City Mayor in its comment to the petition cites the "safety and well-being of the people of Iligan - especially the poor and naive among them."²² The Solicitor General, on the other hand, cites protection of "public morals, health, safety or welfare"²³ and "to promote the prosperity and general welfare of the local government unit and its inhabitants."²⁴ With the lack of discussion in the pleadings on how these general concerns will be served by the specific means adapted, we can only speculate.

In terms of promoting safety, public health or welfare, it may be argued that allowing corporations to employ licensed optometrists may compromise professional accountability. Because corporations are generally seen as more concerned, at bottom, with profits, the motivation to sell might prevail over professional ethics. Again, this is mere speculation. Just being "big" is not a sin. Under the general scheme of the equal protection clause of our Constitution, "bigness" should not be a disadvantage in terms of benefits conferred and liabilities imposed.

Jurisprudence in the United States is replete with cases on the issue of validity of governmental regulations relating to optometry.²⁵ In a case upholding the validity of a statute prohibiting a corporation from practicing optometry, directly or indirectly, and from employing registered optometrist to examine the eyes of its customers, a US court cited the public policy that one who practices a profession is apt to have less regard for professional ethics and to be less amenable to regulation for their enforcement when he has no contractual obligations to the client.²⁶cräläwvirtualibräry

There are generally four types of commercial restrictions in the practice of optometry.²⁷ These are:

1) Employment Restrictions which usually provide that it is unprofessional conduct or an illegal practice for an optometrist to accept employment from unlicensed person or non-professional Corporations;²⁸cräläwvirtualibräry

2) Restrictions on Location prohibit optometrist to work in an office not devoted exclusively to the practice of optometry or in which materials are displayed pertaining to a commercial undertaking not related to the practice of optometry;

3) Branch Office Restrictions usually set a maximum number of branch Offices an optometrist may operate or require the optometrist to be on personal attendance a certain proportion of time the office is open to the public;

4) Trade Name Restrictions declare illegal or unethical for an optometrist to practice under a name other than his or her name or under a false or assumed name. This last type of restriction has a distinct discriminatory impact on non-professional corporations.²⁹cräläwvirtualibräry

The public policy cited to justify these different types of restrictions is generally consumer protection by elimination of low-quality services.³⁰ Lay-employed optometrists,³¹ may employ various cost-cutting techniques like brief and inadequate eye examinations, in order to increase profits. Those who practice under a trade name lack personal accountability and the motivation to maintain a personal reputation for high-quality service. The management of non-professional optical firms may, likewise, interfere with the "doctor-patient" relationship and professional judgments concerning patient welfare. Thus, the argument is offered that commercial practice restrictions are necessary to prevent lay-employed optometrist from increasing their market share by selling services at lower prices and substituting low for high quality case without consumer recognition of the change in quality.³²cräläwvirtualibräry

Closer to home, the Senate proceedings discussing Senate Bill No. 1998, the precursor of RA 8050, is enlightening as to the rationale behind the original proposal to specifically prohibit employment by corporations of optometrists.³³cräläwvirtualibräry

The exchange between Senator Webb, Chairman of the Committee on Health and Demography, and Senator Macapagal is instructive:

Senator Macapagal: Mr. President, what I will ask comes from the concern of corporations that hire optometrists. What they would like to know from the Gentleman is what is the rationale behind prohibiting corporations from engaging the services of optometrists.

Senator Webb: Mr. President, a corporation is not the same as an individual human being for one thing. A corporation cannot be a doctor or a lawyer. Only a human being may be permitted to practice medicine or law.

x x x

The optometrist for one thing has a peculiar relationship with a patient and this is primarily based not on profit, though people will say that one enters a profession primarily to make money. But under their Code of Ethics, it is clearly stated that one goes there as a doctor primarily to cure people.

A corporation, Mr. President, is a different entity. Primarily it is there to make money. In fact, if a corporation were to hire an optometrist then he is divided between his loyalty to the corporation and his love and affection for his patient because a corporation may have a specific product that it wants to push. And as such, an optometrist is told to push a particular product for whatever it is worth. "Kailangang itulak natin ito sapagkat ito ang ating produkto."

Sa optometrist po ay hindi ganoon sapagkat wala kayong makikitang abogado o duktor na nag-a-advertise na ang ginagamit ay trade name or corporate name. In fact, in advertisement, though not very clear kung pinapayagan itoy, ay hindi kayo puwedeng gumamit ng korporasyon kundi iyong mga pangalan. At iyan po ang ipinagbabawal.

Hindi po ipinagbabawal ang pagpapatuloy ng negosyo ng mga optometrist. Ang ipinagbabawal lamang ay iyong korporasyon dahil alam naman nating pag mayroong sakunang nangyari ay napakahirap idimanda ang korporasyon. Hindi katulad ng isang tao na personal and pagdadala ng serbisyo kaya mas madaling matunton ang kaniyang pagkakamali hindi kapareho ng isang korporasyon.

Senator Macapagal: Subalit kung ihahambing po natin sa isang hospital, mayroong duktor iyong hospital at nagkaroon ng sakuna, nadi-demanda rin naman iyong hospital. Hindi po ba pareho na rin iyon kung idi-demanda iyong korporasyon na mayroong optometrist na nagtatrabaho doon?

Senator Webb: Tama po iyan ngunit ang hospital ay regulated by the Department of Health. Ang korporasyon po ay hindi man lamang regulated by Professional Regulation Commission hindi kapareho ng mga optometrist, they are regulated. Wala pong nag-reregulate sa korporasyon. Kung mayroon kayong optical shop ngayon, wala pong nagre-regulate diyan kaya ang maaaring mabigyan ng kasalanan ay iyong optometrist na nagtatrabaho sa kanila. Ngunit sila po ay libre sa kasong pagkakamali. Nabanggit din ng isang korporasyon na napakarami nilang trabahador na madi-displace. Iyan po ay aking sasagutin mamaya.³⁴cräläwvirtualibräry

After intense interpellation by Senator Gonzales, Senator Webb conceded that the proposal was also meant to "equalize the playing field" between a corporation and one personally practicing optometry.³⁵cräläwvirtualibräry

While the above-mentioned objectives are legitimate, the means employed may be unduly oppressive upon individuals. For example, one distinct feature of the regulation involved is that on its face, it purports to regulate business and commerce. In its application and effect, however, the business license practically prohibits individuals from seeking legitimate employment from corporations. The nullity of the regulation, therefore, arises from its operation.

That the exercise of police powers is subject to judicial review is without question. Police powers being the most pervasive and most demanding of the three inherent powers of the State, its exercise is not unbridled and must in all cases meet the tests of legitimacy, both in the ends it seeks to achieve as well as in the means employed to achieve them. Applying such tests to the present case therefore, it is clear that the respondent mayor acted in excess of his legitimate authority. The purported ends sought to be achieved go no deeper than a recital of the General Welfare clause: i.e., "the safety and well-being of the people", "safeguarding the general public, especially the poor...," without establishing how those goals could be reasonably achieved by imposing such conditions in the permit. Furthermore, the means employed effectively deprive optometrists of basic property right: that is, the right to seek legitimate employment of their choice, which cannot be arbitrarily infringed upon by regulations that are contrary to law.

The primary purpose of the Optometry Law is to ensure that the service would be rendered by competent and licensed persons and thereby protect the public from inexpertness. Despite the public respondent's assertions that the conditions in the business permit were made for the purpose of "safeguarding the general public and especially the poor who are easily gulled by misleading advertisements," hence, falling within the ambit of police powers granted to local officials under the Local Government Code, this Court sees no cogent reason why such purpose cannot be attained even if the persons rendering the service are employed by a corporation. Optometrists, like any other professionals are, nonetheless, bound by the same standards of professional conduct, care, skill and diligence, whether they practice as independent optometrists or as employees of unlicensed persons or corporations.

¹ 270 SCRA 298, 306 (1997).

² Record of the Senate, p. 351, Wed. Feb. 1, 1995, as read by Senator Gonzales.

³ Record of the Senate, Sat. June 3, 1995, p. 847 (Emphasis ours.)

⁴ State ex. Rel. Fatzer v. Zale Jewelry Co., (1956) 179 Kan 628, 298 P2d 283.

⁵ State ex. Rel. Beck v. Goldman Jewelry Co., 142 Kan 881, 51 P2d 995, 102 ALR 334.

⁶ Eisendith v. Buhl Optical Co. (1934)--W. Va.--, 178 S.E.695.

⁷ Rowe v. Burts Inc. (1939, app) 17 Ohio Ops 1, 30 Oio L Abs 203, 31 NE2d 725.

⁸ Eddy v. Board of Optometry (1935)-- W. Va.--, 182 S.E. 870.

⁹ Kendall v. Beiling (1943) 295 Ky 782, 175 SW2d 489.

¹⁰ Williamson v. Lee Optical of Oklahoma (1955) 348 US 483, 99 L ed 563, 75 S Ct 461, reh den 349 US 925, 99 L ed 1256, 75 S Ct 657.

¹¹ State v. Rones (1953), 223 La 839, 67 So 2d 99.

¹² Silver v. Lansburgh & Bro. (1940) (--App DC--, 111 F(2d) 518).

¹³ Barbee v. Rogers (Tex) 425 SW2d 342.

¹⁴ Supra note 12 at 583.

¹⁵ Id., at 585.

¹⁶ Ermita-Malate Hotel and Motel Operators Association, Inc., v. Mayor of Manila, 20 SCRA 849 (1967).

¹⁷ Ibid., Rubi v. Provincial Board, 39 Phil. 660 (1918).

¹⁸ Rep. Act No. 7160 (1991), Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

¹⁹ US v. Toribio, 15 Phil. 85, 98 (1910).

²⁰ Direct Plumbing Supply Co. v. Dayton, 138 Ohio St 540, 38 NE2d 70 (1941).

²¹ Akron v. McElligott, 166 Iowa 297, 147 NW 773 (1914).

²² Rollo, p. 55.

²³ Id., at 77.

²⁴ Id., at 78.

²⁵ See for example E.W.H., Annotation, Constitutionality of Statutes and Validity of Regulations Relating to Optometry, 98 A.L.R. 905 (1935); L.S. Tellier, Annotation, Validity of Governmental Regulation of Optometry, 22 A.L.R. 2d 939 (1952).

²⁶ Neil v. Gimbel Bros. 330 Pa 213, 199A 179 (1938).

²⁷ Deborah Hass-Wilson, The Effect of Commercial Practice Restrictions. The Case of Optometry, 29 J.L. & Econ. 165 (1986)

²⁸ Ibid. In the US, Professional Corporations differ from non-professional corporations in that Professional Corporation law requires each stockholder of a professional to be a licensed member of the profession for which the corporation is organized to practice.

²⁹ Id., at 170-172.

³⁰ Id., at 183. However, the study found that commercial practice restrictions increase the price of opthalmic goods and services without statistically significant effect on quality. In plain language, these commercial restrictions are not protecting the consumers.

³¹ Ibid. Optometrist employed by drug and department stores and other non-professional firms.

³² Id., at 169.

³³ Supra, note 2 and 3.

³⁴ Record of Senate, Volume IV, p. 56 (January 31, 1995), pp. 273-274.

³⁵ Id,. at 58, (February 1, 1995), p. 352.