Oklahoma State Question 793: Optometrists and opticians in retail establishments

State Question 793 would add a section to Article 20 of the Oklahoma Constitution. Currently that article of the Constitution contains only two short sections: Section 1 guarantees the right to produce and sell "denaturized alcohol" -- ethyl alcohol adulterated with poison so that it can be used as an industrial solvent, but not consumed; this would have been an important law during Oklahoma's 52 years of prohibition. Section 2 defines the specific gravity of kerosene.

Here is the full text of the proposed amendment to the state constitution. If you vote Yes on SQ 793, this will be added as Article 20, Section 3.

RIGHT OF OPTOMETRISTS AND OPTICIANS TO PRACTICE IN RETAIL MERCANTILE ESTABLISHMENT

A. No law shall restrain, abridge or infringe on the ability of optometrists or opticians to practice their respective professions within a retail mercantile establishment.

B. No law shall discriminate against an optometrists or opticians based to the location and setting of their practice.

C. No law shall require an optometric office located within a retail mercantile establishment to have an entrance opening on a public street, hall, lobby, or corridor.

D. No law shall restrain, abridge or infringe on the ability of a retail mercantile establishment to sell, allow the sale, or provide for the sale of optical goods and services, upon prescription, to the general public within the premises of the retail mercantile establishment.

E. Notwithstanding the limitations of this section, the Legislature may, by statute:

1. limit or prohibit optometrists from performing laser or nonlaser surgical procedures within a retail mercantile establishment;

2. limit the number of office locations at which an optometrist may practice;

3. maintain licensing requirements for the practice of optometry, provided those requirements do not impose restrictions on the location where services are provided or otherwise conflict with subsections A-D of this section;

4. require that an optometric office, when located within a retail mercantile establishment, be located within a separate area or room of that establishment, provided that any such requirement must permit direct access to and from the optometric office from inside the retail mercantile establishment; or

5. impose minimum health and safety standards for optical goods and services, provided such standards do not discriminate against any provider of optical goods and services.

F. Nothing in this section or in Article 23, § 8 of this Constitution shall be construed as prohibiting optometrists or opticians from agreeing with a retail mercantile establishment to limit the scope of their practice.

G. This section shall become effective upon adoption, and laws in conflict with this section shall be deemed null and void. After this section is effective, an optometrist, optician, or retail mercantile establishment may bring a declaratory judgment action to determine whether this section affects the validity of a law.

H. As used in this section:

1. "Law" means any state or local law, including statutes, regulations, rules, ordinances, zoning provisions, and judicial decisions, either now in force or hereafter enacted or issued;

2. "Optometrist" means a person licensed in Oklahoma to practice optometry;

3. "Optician" means a person who fills prescriptions for ophthalmic lenses, including but not limited to spectacles and contact lenses, from licensed optometrists or ophthalmologists;

4. "Optical goods and services" means eyewear, including prescription spectacles and contact lenses, and all services associated with providing, modifying, and repairing such eyewear; and

5. "Retail mercantile establishment" means a business establishment selling merchandise to the general public.

While I'm sympathetic with the stated objective of increasing competition and convenience for the purchase of eyeglasses, I can't agree with the idea of enshrining a set of very specific rules and regulations pertaining to one profession in the constitution. This sort of thing ought to be statutory, where rules and regulations can be adjusted as necessary through the normal process of legislation. I had the same objection to the 2016 "alcohol modernization" proposal: While I supported the notion of making strong beer and wine available for sale in grocery stores, I felt that the proposal baked too many special privileges and carveouts into the constitution.

Rather than pushing for profession-specific constitutional amendments, we should consider an amendment that requires a supermajority for the imposition of regulations on commercial activity or the imposition of licensing requirements, along with a constitutional requirement to sunset regulations after a certain number of years. There is a sort of legislative inertia that keeps existing regulations in place, reinforced by the principle of concentrated benefit, diffuse cost -- organizations that have a vested interest in existing legislation will lobby and contribute to keep it from being changed.

Beyond the impropriety of using the constitution to establish the legislative goals of a large corporation, opponents of the measure point out that Oklahoma's proposed constitutional amendment would enshrine a practice that is prohibited in 48 other states, calling attention to subsection F:

F. Nothing in this section or in Article 23, § 8 of this Constitution shall be construed as prohibiting optometrists or opticians from agreeing with a retail mercantile establishment to limit the scope of their practice.

Article 23, Section 8, says you can't sign a contract that gives away your constitutional rights. "Any provision of a contract, express or implied, made by any person, by which any of the benefits of this Constitution is sought to be waived, shall be null and void." Walmart's proposed constitutional amendment would create an exception to that guarantee.

Tulsa optometrist Jacoby Dewald has posted an essay on Facebook stating that "The Texas Optometry Act PROHIBITS commercial retailers of ophthalmic goods from attempting to control the practice of optometry; authorizes the Optometry Board and the Attorney General to sue a violator for a civil penalty; and provides that "[a] person injured as a result of a violation . . . is entitled to the remedies."

He goes on to explain why this provision was included in Oklahoma's proposed law:

Walmart has attempted to control the doctors in other states in which it is illegal and has been sued, resulting in the paying of monetary damages to the doctors. Walmart's way of avoiding this in Oklahoma is to dig deep in their pockets, run a multi-million dollar campaign deceiving voters into thinking this is the same laws as other states, then reap the rewards of an unprecedented CONSTITUTIONAL amendment.

Jacoby also calls attention to subsection G, which makes the nullification of conflicting laws a matter between the retailer and the courts. Rather than spell out which laws are being repealed before the vote is taken, there is this blanket statement: "This section becomes effective immediately, and laws conflicting with this section shall be deemed null and void. After this section becomes effective, the retail mercantile establishment may bring a declaratory judgement action to determine whether this section affects the validity of a law."

I encourage you to vote NO on State Question 793. Let's defeat this, but then encourage our legislators to support sensible modernization of laws to expand consumer choice without enshrining corporate interests in state law.

MORE: Ballotpedia has a comprehensive collection of links and videos, pro and con, for Oklahoma SQ 793.