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State Bd. of Dispensing Opticians v. Carp

Supreme Court of Arizona

October 29, 1958

STATE BOARD OF DISPENSING OPTICIANS, Delmer Drinen, Gordon Harper, Max Kent, Ray Rodig and Everett J. Master, Members of the State Board of Dispensing Qpticians, Appellants,
v.
Ellis CARP, Robert K. Shannon, Bernard Stanton, Jack Sham, Clyde Damron, Irwin Salk, Gene Schanbaum, Dan Geller, Leonard Macaluso, Charles Shropshire, Stanley C. Pearce and Irving Greenberg, Appellees.

Page 997

[85 Ariz. 36] Robert Morrison, Atty. Gen., and Frederick E. Kallof, Asst. Atty. Gen., for appellants.

Gust, Rosenfeld, Divelbess & Robinette and Frank E. Flynn, Phoenix, for appellees.

WINDES, Justice.

Ellis Carp and others filed with the State Board of Dispensing Opticians applications for licenses to practice as dispensing opticians. Licenses were not issued for the reasons hereinafter related. Applicants filed an action in the superior court seeking writ of mandamus to compel the board to issue the licenses. The lower court directed the issuance of a peremptory writ as requested. The board appeals, claiming that the court could not legally require issuance of writ of mandamus.

In Chapter 15.1, Title 32, A.R.S., provision is made for the creation of a board of dispensing opticians and that, with certain exceptions not applicable to the parties herein, one desiring to practice as such must secure a license to be issued by the board. To secure such a license application must be made setting forth verified information to assist the board in determining the applicant's ability to meet prescribed requirements. The board is given the right to require any additional information which in its judgment may be necessary to assist it in determining whether the applicant is entitled to a license. A.R.S., section 32-1682. All further citations of sections refer to A.R.S. Section 32-1683 sets out the qualifications of applicants and so far as applicable to the problem presented herein provides that he shall:

'Establish that he has the required technical skill and training necessary for licensing by any one of the following means:

* * *

* * *

[85 Ariz. 37] '(d) Submit evidence of having been engaged as a dispensing optician or having served as an apprentice to a dispensing optician, a physician or an optometrist in a non-licensing state for five of the seven years next prior to the date of application, such engagement or apprenticeship to have included all principal phases of optical dispensing and to have resulted in the applicant's having acquired the minimum basic skills required for optical dispensing.'

Each of the applicants submitted to the board verified documents showing that he had been either engaged as dispensing optician or had served as apprentice as provided by the statute in a non-licensing state for five of the seven years next prior to the date of the application. Thereafter the board wrote the following letter to each applicant:

'It has been determined after careful study by the Board that the evidence submitted by you to establish the minimum basic skills required by the statute for licensing dispensing opticians is insufficient. You may establish these minimum basic skills by passing the examination to be given by the State Board of Dispensing Opticians on February 23, 1957.

'Inasmuch as your application has not been completed for licensure credit will be given for the $25.00 previously

Page 998

paid upon the issuance of an original license pursuant to A.R.S. Section 32-1685.

'The additional $25.00 must be paid before the date of the examination. Please make your certified check or money order payable to Arizona State Board of Dispensing Opticians.'

The instant suit followed, the complaint alleging that the board failed and neglected to act upon the applications and failed to issue licenses and that such ...


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