2016 Delaware Code
Title 24 - Professions and Occupations
CHAPTER 21. OPTOMETRY
§ 2113. Grounds for refusal, revocation or suspension of licenses.

(a) A practitioner licensed under this chapter shall be subject to disciplinary actions set forth in § 2115 of this title if, after a hearing, the Board finds that the optometrist has:

(1) Practiced in a merchandising store;

(2) Practiced in an office not exclusively devoted to the practice of optometry or other health care profession, where material or merchandise is displayed pertaining to a business or commercial undertaking not bearing any relation to the practice of optometry or other health care profession or practicing in a store or office which does not conform to that used by the majority of professional optometrists in the area;

(3) Continued in the employ of, or acted as an assistant to, any person, firm or corporation, either directly or indirectly, after the optometrist has knowledge that such person, firm or corporation is violating the laws of Delaware concerning the practice of optometry;

(4) Solicited in person or through an agent or agents for the purpose of selling ophthalmic materials or optometric services which involves any form of kickback arrangement or where financial remuneration or payment in kind is made to a nonpractitioner to induce referral business from that nonpractitioner;

(5) Caused or permitted the use of that optometrist's name, profession or professional title by or in conjunction with any association, company, corporation or unlicensed person in any advertising of any manner, unless in conjunction with a vision service plan approved by the Board;

(6) Practiced for or in conjunction with, either directly or indirectly, a corporation or company, except that allowed under Chapter 6 of Title 8; provided, that the foregoing shall not prevent a person licensed pursuant to this chapter from rendering optometric services at a nonprofit clinic which is operated by a corporation or company that is affiliated with a hospital licensed by the Department of Health and Social Services and accredited by the Joint Commission on Accreditation of Health Organizations (JCAH) or the American Osteopathic Association;

(7) Employed or knowingly cooperated in fraud or material deception in order to acquire a license as an optometrist; has impersonated another person holding a license or allowed another person to use that optometrist's license; or aided or abetted a person not licensed as an optometrist to represent himself or herself as an optometrist;

(8) Been convicted of a crime that is substantially related to the practice of optometry. "Substantially related" means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of optometry. A copy of the record of conviction certified by the clerk of the court entering the conviction shall be conclusive evidence therefor; however, after a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Board, by an affirmative vote of a majority of the quorum, may waive this paragraph (a)(8), if it finds all of the following:

a. For waiver of a felony conviction, more than 5 years have elapsed since the date of the conviction. At the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service.

b. For waiver of a misdemeanor conviction or violation, at the time of the application the applicant may not be incarcerated, on work release, on probation, on parole or serving any part of a suspended sentence and must be in substantial compliance with all court orders pertaining to fines, restitution and community service.

c. The applicant is capable of practicing optometry in a competent and professional manner.

d. The granting of the waiver will not endanger the public health, safety or welfare;

(9) Excessively used or abused drugs (including alcohol, narcotics or chemicals);

(10) Engaged in an act of consumer fraud or deception; engaged in the restraint of competition; or participated in price-fixing activities;

(11) Had that optometrist's license, certification or registration as an optometrist suspended or revoked or other disciplinary action taken by the appropriate licensing authority in another jurisdiction; provided, however, that the underlying grounds for such action in another jurisdiction have been presented to the Board by certified record, and the Board has determined that the facts found by the appropriate authority in the other jurisdiction constitute 1 or more of the acts defined in this chapter. Every person licensed as an optometrist in this State shall be deemed to have given consent to the release of this information by the Board of Examiners in Optometry, or other comparable agencies in another jurisdiction, and to waive all objections to the admissibility of previously adjudicated evidence of such acts or offenses;

(12) Failed to notify the Board that the optometrist's license, certification or registration as an optometrist in another state has been subject to discipline or has been surrendered, suspended or revoked. A certified copy of the record of disciplinary action, surrender, suspension or revocation shall be conclusive evidence thereof;

(13) Engaged in illegal, negligent or unethical conduct in the practice of optometry; or

(14) Violated any provision of this chapter or any rule or regulation of the Board.

(b) Where a practitioner fails to comply with the Board's request that the practitioner attend a hearing, the Board may petition the Superior Court to order such attendance, and the said Court or any judge assigned thereto shall have the jurisdiction to issue such order.

(c) Subject to this chapter and Chapter 101 of Title 29, no license shall be restricted, suspended or revoked by the Board and no practitioner's right to practice optometry shall be limited by the Board until such practitioner has been given notice and an opportunity to be heard, in accordance with the Administrative Procedures Act [Chapter 101 of Title 29].

25 Del. Laws, c. 113, § 13; Code 1915, § 904; 37 Del. Laws, c. 69, § 3; Code 1935, § 1014; 47 Del. Laws, c. 106, § 3; 24 Del. C. 1953, § 2113; 59 Del. Laws, c. 250, §§ 5-9; 63 Del. Laws, c. 115, § 2; 66 Del. Laws, c. 1, § 1; 70 Del. Laws, c. 149, § 212; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 546, § 21; 72 Del. Laws, c. 172, § 4; 74 Del. Laws, c. 262, § 41; 75 Del. Laws, c. 436, § 21; 77 Del. Laws, c. 199, § 17; 78 Del. Laws, c. 44, §§ 34, 35.;