ATTORNEY GENERAL ROBERT HENRY HAS ASKED ME TO RESPOND TO YOUR LETTER DATED JUNE 15, 1989, IN WHICH YOU ADVISE THAT OWNERS AND EMPLOYEES OF SOME SHOE STORES IN OKLAHOMA WILL MAKE 2 MOLD, IMPRESSION OR PRINT OF A PERSON'S DEFORMED OR INJURED FOOT, AND THEN, USING THE MOLD, IMPRESSION, OR PRINT, MAKE A DEVICE TO STRAIGHTEN OR CORRECT THE PERSON'S DEFORMED OR INJURED FOOT. YOU ASK WHETHER THIS CONSTITUTES THE UNLICENSED PRACTICE OF CHIROPODY OR PODIATRY IN VIOLATION OF 59 Ohio St. 142 59 Ohio St. 143.
TITLE 59 Ohio St. 143 (1981) PROVIDES THAT:
"(U)NLESS ONE BE AT THE TIME A LICENSED CHIROPODIST, IT SHALL BE UNLAWFUL FOR HIM OR HER TO PRACTICE OR ATTEMPT TO PRACTICE CHIROPODY IN THIS STATE AS DEFINED BY THE APPLICABLE LAWS OR AS OTHERWISE DEFINED. . . ."
TITLE 59 Ohio St. 142 (1981) DEFINES THE PRACTICE OF CHIROPODY:
"ANY ONE OR MORE OF THE FOLLOWING SHALL BE DEEMED TO BE PRACTICING CHIROPODY: IN ANY WAY EXAMINING DIAGNOSING, RECOMMENDING FOR PRESCRIBING FOR CARING FOR OR TREATING IN THIS STATE AILMENTS DISEASED CONDITIONS. DEFORMITIES OR INJURIES OF THE HUMAN FOOT (EXCEPT AMPUTATION OF THE FOOT) WHETHER OR NOT DONE DIRECTLY THEREON; MASSAGE OR ADJUSTMENT IN CONNECTION WITH SUCH EXAMINING, DIAGNOSING, RECOMMENDING, PRESCRIBING, TREATING, OR CARING FOR; FITTING, BUILDING OR OTHERWISE FURNISHING PADS INSERTS APPLIANCES, INLAYS, SPLINTS. OR SUPPORTS OR GIVING OR USING MEDICAMENT OR ANESTHETICS IN CONNECTION WITH SUCH EXAMINING DIAGNOSING, RECOMMENDING, PRESCRIBING, TREATING CARING FOR OR FITTING; AND OFFERING IN THIS STATE TO ANY PERSON TO DO OR CAUSE TO BE DONE, OR ATTEMPTING IN THIS STATE TO DO OR CAUSE TO BE DONE, ANY OR ALL OF THE FOREGOING. PROVIDED, HOWEVER, THAT THE PROVISIONS OF THIS ACT SHALL NOT APPLY TO THE SALE OF PROPRIETARY OR PATENTED FOOT REMEDIES, PADS, SUPPORTS OR CORRECTIVE SHOES. PROVIDED FURTHER, THAT THE FITTING OR RECOMMENDING OF APPLIANCES, DEVICES, OR SHOES FOR THE PREVENTION, CORRECTION, OR RELIEF OF FOOT AILMENTS OR TROUBLES, BY REGULAR ESTABLISHED RETAIL DEALERS OR THEIR REGULAR SALESMEN, NOT HOLDING THEMSELVES OUT TO THE PUBLIC AS CHIROPODISTS UNDER THE TERMS OF THIS ACT, SHALL NOT BE IN VIOLATION HEREOF. NOR TO PARENTS RENDERING SUCH CARE TO THEIR CHILDREN, NOR TO SUPERINTENDENTS OR EMPLOYEES OF ANY ORPHANAGE, HOME OR CHILDREN'S HOSPITAL, TO CHILDREN UNDER THEIR SUPERVISION, NOR TO SELF-TREATMENT, OR BY ANY ONE IN CASE OF AN EMERGENCY."
EMPHASIS ADDED.
IN THIS WRITER'S OPINION, A PERSON WHO MAKES A MOLD, PRINT OR IMPRESSION OF A PERSON'S DEFORMED OR INJURED FOOT, AND THEN, USING THAT MOLD, PRINT OR IMPRESSION, MAKES A DEVICE TO STRAIGHTEN THE PERSON'S DEFORMED OR INJURED FOOT, IS PRACTICING CHIROPODY WITHIN THE MEANING OF 142. IF SUCH PERSON IS NOT A LICENSED CHIROPODIST OR PODIATRIST, SUCH PERSON IS IN VIOLATION OF THE PROVISIONS OF 59 Ohio St. 143, UNLESS THE PERSON ALLS WITHIN ONE OF THE EXCEPTIONS SET OUT IN 59 Ohio St. 142.
SOME OF THOSE EXCEPTIONS — SUCH AS PARENTS RENDERING CARE TO THEIR CHILDREN; SUPERINTENDENTS OR EMPLOYEES OF AN ORPHANAGE, HOME OR CHILDREN'S HOSPITAL; SELF-TREATMENT; AND EMERGENCY-WOULD CLEARLY NOT BE APPLICABLE HERE.
ANOTHER EXCEPTION IS "THE SALE OF PROPRIETARY OR PATENTED FOOT REMEDIES, PADS, SUPPORTS OR CORRECTIVE SHOES." THIS EXCEPTION INDICATES THAT A SHOE STORE OWNER OR EMPLOYEE WHO MERELY SELLS "PROPRIETARY OR PATENTED FOOT REMEDIES, PADS, SUPPORTS OR CORRECTIVE SHOES", THOUGH NOT A LICENSED CHIROPODIST OR PODIATRIST, IS NOT IN VIOLATION OF THE LAW. THE FACTS SET OUT IN YOUR LETTER, HOWEVER, INDICATE THAT THE SHOE STORE OWNERS AND EMPLOYEES IN QUESTION DO MORE THAN MERELY SELL; THEY EXAMINE THE FOOT, DIAGNOSE THE PROBLEM, MAKE AND FIT A DEVICE TO CORRECT THE DEFORMED OR INJURED FOOT. SUCH ACTIVITY GOES FAR BEYOND THE SCOPE OF THIS EXCEPTION.
SECTION 142 ALSO PROVIDES THAT:
". . . THE FITTING OR RECOMMENDING OF APPLIANCES, DEVICES, OR SHOES FOR THE PREVENTION, CORRECTION, OR RELIEF OF FOOT AILMENTS OR TROUBLES, BY REGULAR ESTABLISHED RETAIL DEALERS OR THEIR REGULAR SALESMEN, NOT HOLDING THEMSELVES OUT TO THE PUBLIC AS CHIROPODISTS UNDER THE TERMS OF THIS ACT, SHALL NOT BE IN VIOLATION THEREOF."
THIS EXCEPTION PROVIDES THAT A SHOE STORE OWNER OR SALESMAN MAY LAWFULLY FIT OR RECOMMEND AN APPLIANCE, DEVICE OR SHOES FOR THE PREVENTION, CORRECTION OR RELIEF OF FOOT AILMENTS OR TROUBLES. THE FACTS SET OUT IN YOUR LETTER STATE THAT THE SHOE STORE OWNERS AND SALESMEN IN QUESTION DO CONSIDERABLY MORE THAN MERELY "RECOMMEND" AND "FIT". THE OWNERS AND SALESMEN IN QUESTION ARE, IN EFFECT, EXAMINING THE FOOT, DIAGNOSING THE PROBLEM, PRESCRIBING TREATMENT, AND MANUFACTURING A DEVICE TO CORRECT THE DEFORMITY OR INJURY. SUCH ACTIVITY GOES FAR BEYOND THE SCOPE OF THIS EXCEPTION.
ACCORDINGLY, IN THIS WRITER'S OPINION, AN OWNER OR EMPLOYEE OF A SHOE STORE IN OKLAHOMA WHO MAKES A MOLD, IMPRESSION OR PRINT OF A PERSON'S DEFORMED OR INJURED FOOT, AND THEN, USING THAT MOLD, IMPRESSION OR PRINT, MAKES A DEVICE TO STRAIGHTEN THE PERSON'S DEFORMED OR INJURED FOOT, IS PRACTICING CHIROPODY WITHIN THE MEANING OF 142. IF SUCH OWNER OR SALESMAN IS NOT A LICENSED CHIROPODIST OR PODIATRIST, HE IS IN VIOLATION OF 59 Ohio St. 43.
(JEFF MIXON)