dissenting.
Application of economic realism should not leave question about the nature of this franchised eye care system constituting the corporate control and effectuated practice of optometry. To say otherwise is to ignore its clearly defined operational character.1 Essentially presented by this appeal is whether approval and summary judgment resolution was justified for the non-application of Wyoming statutes relating to the regulation of this category of health care provider. The consistency between denial to a trained anesthesiologist of the opportunity to pursue his educational capabilities in Paravecchio v. Memorial Hosp. of Laramie County, 742 P.2d 1276 (Wyo. 1987), cert. denied — U.S.-, 108 S.Ct. 1088, 99 L.Ed.2d 249 (1988) and this case, *980where by contract compulsion, detail and system operation, corporate franchise supervisory control of optometry is now justified, leaves me mystified.
Likewise mystifying is the theory of summary judgment by which this decision is determined. Even if the majority renders decision on a matter of law by a stage five Cordova v. Gosar, 719 P.2d 625 (Wyo.1986) characterization or, perchance, factual resolution as stage six, genuine issues of material fact stand persuasively illustrated in concept and discussion from contractual documents and operational standards.
In initial review, it is immediately apparent that this case is not novel, nor is appellee Pearle Vision Center, Inc. (Pearle Vision), as a national franchising corporation, a stranger to similar litigation. Cases of this type involving franchise optometry include, for Pearle Vision in its various entities, California Ass’n of Dispensing Opticians v. Pearle Vision Center, Inc., 143 Cal.App.3d 419, 191 Cal.Rptr. 762 (1983); Will Ross, Inc. v. Florida State Bd. of Optometry, 314 So.2d 152 (Fla.App.1975); Pearle Optical of Monroeville, Inc. v. Georgia State Bd. of Examiners in Optometry, 219 Ga. 856, 136 S.E.2d 371 (1964); Pearle Optical of Monroeville, Inc. v. Georgia State Bd. of Examiners in Optometry, 219 Ga. 364, 133 S.E.2d 374 (1963); Pearl Optical, Inc. v. Pearle Optical of Ga., Inc., 218 Ga. 701, 130 S.E.2d 223 (1963); Louisiana State Bd. of Optom. Exam. v. Pearle Optical of Alexandria, 248 La. 1062, 184 So.2d 10 (1966); Louisiana Bd. of Optometry Examiners v. Pearle Optical of Alexandria, Inc., 177 So.2d 164 (La.App.), writ granted 248 La. 426, 179 So.2d 19 (1965), rev’d 248 La. 1062, 184 So.2d 10 (1966); and Small v. Maine Bd. of Registration and Examination in Optometry, 293 A.2d 786 (Me.1972). See generally Annotation, What Constitutes Practice of “Optometry”, 88 A.L.R.2d 1290 (1963).2 The conflict between corporate practice and individual responsibility of the certificated practitioner is not limited to optometry. In recent time, dentistry, as well as law, has sustained its conflicts. See an earlier regulatory confrontation, Barron v. Board of Dental Examiners of California, 109 Cal.App. 382, 293 P. 144 (1930).
Factual issues which relate to the status of the health care practitioner within the franchise system include: (1) authority and control; (2) whether optometry is a learned profession; (3) fee splitting; (4) usage of cappers and steerers; (5) percentage royalty, compensatory system; (6) effectuated corporate practice of optometry franchise system and contractual supervision; (7) whether statutory violation requires an employer/employee relationship; and (8) fundamental nature of relationship by virtue of financing control.
A logical resolution of issues raised about police power regulation to resolve issues of both fact and law requires consideration of exercised commercial expertise and franchising systems. Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563, reh’g denied 349 U.S. 925, 75 S.Ct. 657, 99 L.Ed. 1256 (1955); Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086 (1935). Where this case presents a summary judgment, the detailed factual delineations by the majority define *981the obvious doubt in disposition justification.3 In economics, Pearle Vision is in the eye care business in a not dissimilar fashion from McDonald’s hamburgers or Holiday Inn’s motor hotels. The last listed sells a place to stay overnight with accouterments; McDonald’s supplies fast foods; and Pearle Vision, the medical service of eye care diagnosis and equipment sales. The only differentiation develops in requirement to enforce a legislative policy that those who examine eyes and prescribe glasses should have a defined level of professional training and responsibility.
In times past, the five-and-dime department stores had glasses, frames, separate lenses and, even on some occasions, refractory machines so that the customer could test himself. New Jersey State Board of Optometrists v. S.S. Kresge Co., 113 N.J. L. 287, 174 A. 353 (1934). Whether that practice still exists anywhere is not announced by this record, but certainly not to be found in Wyoming. Pearle Vision and similar national franchisers are the successor for accommodative sales of vision products by leasing heavy traffic retail store sites. Conjunctively, it was quickly recognized by management of franchising and company store operations that availability of personnel for examination is required for the eye glass merchandising operation.4 Consequently, in states where permitted, the franchiser secures licensed practitioners to provide the required operational mechanism for economic viability. This is achieved by selling a percentage rent, large sum advance fee franchise under a very detailed operational contract. Every aspect of the business operation, except standards set by occupation and certificating standards for the care of specific eye examinations, is subjected to regularized supervision and detailed documentary control.
It is the operational economic entity that we must examine to evaluate conflict with the Wyoming health care regulatory statutes. It might not be different in precept from a system that would franchise lawyers’ offices with included business of selling books, forms, wills, agreements and pro se pleadings.
It is not acceptable that jurists, who may obtain their eye care from ophthalmologists, fail to recognize the health care responsibilities to the citizens of the state when provided by optometrists. The legis*982lative purpose addressed in statute is not necessarily effectuated by the commercialization perspective of the Pearle Vision advertising program manual with cover slogan stating, “Nobody Cares for Eyes more than Pearle.” A comprehensive analysis of the documentary detail in offering circular, operating plan, franchising agreement and financing arrangement leaves little doubt about the intrinsic operation of the franchising of eye care services and equipment for retail distribution. Any effort embraced by the majority to disassociate the licensed optometrist from the contrails and tentacles of the in-place system simply fails in factual analysis.5
The abnormality implicit in present discussion and decision by the majority is disposition of a comprehensive course of business-professional certification case by approval of granted summary judgment contrary to the posture of the state licensing agent. The responsibility chargeable to the agency is to assure the competency of optometrists and to prevent conduct on their part which would do harm to the public. Sage-Allen Co. v. Wheeler, 119 Conn. 667, 179 A. 195 (1935).
The substantial analysis of some of the facts by the majority affords credence to the supposition that the summary judgment conclusion is justified since Pearle Vision’s operation, whatever it may be in fact, does not inappropriately conflict with the strictures of Wyoming statute as a matter of law. Otherwise, on this record, there is no proper way to sustain the trial court as a finding of absence of a factual issue from the present record. Clearly, both the scope of the regulation, control and involvement of the corporate franchiser, as well as the specific opinion information of the affidavits by the Wyoming State Board of Examiners of Optometry (Board) reject any rational decision finding absence of any evidentiary conflict, including proffered characterization of the franchisee as in effect only an employee; albeit as it may be indentured in financial obligation.
Under the criteria of the many decisions of this court and in order to achieve a conclusion of this action as a decision of law, Cordova, 719 P.2d 625, the issues be*983tween the parties must be resolved no matter how the relevant facts may be distributed so that only challenged questions of law are presented. Clearly, several questions of factual difference exist in this appeal, i.e., whether advertising was in fact steering, Akin v. Louisiana State Board of Optometry Exam., 150 So.2d 807 (La.App.1963); is Pearle Vision engaged in the practice of optometry by having a contractual percentage right to all of Dr. Holly’s business income regardless of how generated from dispensary merchandising or by professional health care examination; and more conclusively, what is the net effect on the health care practitioner of the thirty-four causes for default as a factor of direct control.
In the nature of the business enterprise, if the health care examinations are conducted at a sufficiently slowed sequence, the retail business operation will fail and financing and leasing default will occur. Consequently, in order for the practitioner to avoid default, there is a requirement of performance at not less than some definable speed irretrievably planted within the system in order to create the customers for the dispensing business. The web of operational relationships as considered within regulatory activity of the agency and the supervisory mandates of the legislation logically denies summary judgment disposition as a matter of law.
Here, each party moved for summary judgment, so either is faced in resistance with a showing based on the nationally used franchising documents, a few affidavits and brief depositions that there was no genuine issue of fact for trial. Substantively, unless all of the affidavits submitted to the court are either considered to be inadmissible hearsay or conclusory, no other reason is perceived to justify that intimation. People v. Sterling Optical Co., 26 Misc.2d 412, 209 N.Y.S.2d 953 (1960). Cf. State ex rel. Fatzer v. Zale Jewelry Co. of Wichita, 179 Kan. 628, 298 P.2d 283 (1956), where an extensive record was developed at trial.
The relationship of the optometrist to the national franchiser and their relationship to the Wyoming licensing law lacks definition unless inquiry is made about the specifics of the contractual documents and operational processes. Pearle Vision is a well-organized and experienced franchiser, and as to be expected, provides comprehensive contractual documentation for analysis. The basic agreement signed between the optometrist and Pearle Vision as franchise documents are the franchise agreement of forty-six pages, a sub-lease for the shopping center premises which includes the shopping center lease between center management and Pearle Vision, a real property equipment lease, ownership of franchise certificate, a guarantee, a confidentiality agreement, a statement of assets to be purchased and fees to be paid, a loan agreement, and a promissory note. Financially, the transaction as a franchise relationship encompasses a percentage fee of gross business done as including not only merchandise sale of eyewear products, but also optometrist’s services. Those include the franchise royalty of eight and one-half percent, advertising of eight percent and rent of eight percent on receipts in excess of $13,166.67 monthly. Consequently, the monetary relationship as a percentage fee is twenty-four and one-half percent of gross business, except that the rental fee is floored at a minimum business volume.
The operation is constructed initially by Pearle Vision’s acquisition of the shopping center space and lease and remodeling and construction of the facilities for the retail purpose of eye glass sales and optometry business. A $15,000 fee is charged to the prospective franchiser and the balance of Pearle Vision’s construction costs and equipment purchases are secured by security agreements when sold to the operator by a financed installment obligation, including a three percent above prime monthly interest charge. Operationally, purchases of optical supplies and equipment are contractually controlled as directed to franchiser. Basic local and national advertising is composed and placed by Pearle Vision and exclusive occupation and management responsibility is imposed. Facility operation is supervised, including hours and method. *984Accounting, auditing and reporting is rigidly structured.
The more singular facet of the relationship which determines the status of the parties is restrictions on sub-lease, resale and heirship, including an all inclusive first right of refusal on transfer. Extraordinarily confining and severe factors of default are enunciated by agreement which permits cancellation of the lease and the franchise. The Board fairly states that “Pearle’s Franchise Procedure Manual contains in excess of 250 pages of detailed requirements with which [franchisee] must comply.”
With recognition of the status of trial court summary judgment disposition, it is fair to find some record justification and evidentiary support for the following statements in a certified public accountant expert witness affidavit filed by the Board:
12. The concept of the super store in optometries provides for profits to be generated as a result of the sale and cross-sale of all services under the recognizable name of the retail operation.
13. According to the franchise agreement, Dr. Holly is not allowed to sell his investment, expand his optometric practice or perform any other optometric services without the written approval of Pearle Vision Center, Inc.
* * * * * *
15. Based on my research and information, it is my opinion that Dr. Holly is in the same position and under the same controls as that of any employee.
See California Ass’n of Dispensing Opticians, 191 Cal.Rptr. 762 and Zale Jewelry Co. of Wichita, 298 P.2d 283.
The cases which relate in some fashion to the economic pursuit of merchandizing ey-ewear by affiliation with a licensed eye care examiner are near legion. Some differences are explainable by outdated attitudes about the health care nature of eye treatment. See Klein v. Rosen, 327 Ill. App. 375, 64 N.E.2d 225 (1945). Other divergences in general results are explained by statutory difference. A striking example of these kinds of opposite results are evidenced in the contact lens cases defining what cannot be done by the dispensing optician. Florida Ass’n of Dispensing Opticians v. Florida State Bd. of Optometry, 227 So.2d 736 (Fla.App.1969), aff’d in part and quashed in part 238 So.2d 839 (Fla.1970); State ex Inf. Danforth v. Dale Curteman, Inc., 480 S.W.2d 848 (Mo.1972); New Jersey State Bd. of Optometrists v. Reiss, 83 N.J.Super. 47, 198 A.2d 816 (1964); State ex rel. Reed v. Kuzirian, 228 Or. 619, 365 P.2d 1046 (1961).
To fashion a proper analysis of the error in the majority opinion, initial reference to Wyoming statutes is required. First and obviously, any recitation that under the statute optometry is not a learned profession is insupportable in fact and unjustified in legislative intent. Criteria for initial education, W.S. 33-23-109; continuing education certificate, W.S. 33-23-114; certification, W.S. 33-23-103; permitted use of pharmacological agents, W.S. 33-23-102; with special course requirements, W.S. 33-23-109; leaves no statutory intention question as to the nature of the education and the health care expertise required for optometry practice. State ex rel. State Bd. of Examiners in Optometry v. Kuhwald, 372 A.2d 214 (Del.1977), judgment rev’d 389 A.2d 1277 (Del.Supr.1978); State ex rel. Londerholm v. Doolin, 209 Kan, 244, 497 P.2d 138 (1972); McMurdo v. Getter, 298 Mass. 363, 10 N.E.2d 139 (1937); Neill v. Bloch, 330 Pa. 222, 199 A. 182 (1938). The seriousness of concern about the use of pharmacological agents by the optometrist in examination or treatment arose in enactment of 1977 Wyo. Sess. Laws ch. 17 and 1987 Wyo. Sess. Laws ch. 139 now found in W.S. 33-23-102 with education and expertise centered in issue. Wyoming moved further in required expertise with .augmented function permitted to the licensee by legislative enactment.
An interesting American history can be developed in analysis of the cases and authorities as eye examination moved from self-prescription in five-and-dime department stores to the increasing levels of professionalism and education as present requirement of optometrists. McMurdo, 10 N.E.2d 139. At the same time, national *985franchisers or chains such as Pearle Vision moved into the dispensing and merchandising businesses for sale of the eye care products. Conflict between the medical doctors and their specialists, the ophthalmologists, with the optometrists, is defined in determination for the proper function of the optometrist on one side while conflict has escalated between the optometrist and merchandisers and/or opticians as the mechanic on the other side. It has been stated that the contrary results among some cases result from a foundational conflict of whether optometry is a learned profession or only a practitioner of trade like the optician. In present time, except by statement of the trial court and reference in the majority’s opinion, continued discussion is a rarity since obviously adequate eye care requires examination expertise and that competency is recognized by certification requirements for the practitioner by detailed state statutes. Any denial of optometry as a learned profession within health care services is patent nonsense in modem terms. Lieberman v. Connecticut State Board of Examiners in Optometry, 130 Conn. 344, 34 A.2d 213 (1943). The analysis of law and philosophy was well-stated in State ex Inf. McKittrick v. Gate City Optical Co., 339 Mo. 427, 97 S.W.2d 89, 90-91 (1936):
The question for determination is whether the conduct of the respondents, as shown by the evidence, constitutes practicing optometry within the meaning of the optometry code.
A like question has been ruled by the courts of several of our sister states, and there is contrariety among their rulings upon it. The discordance appears to be due to differences in the terms of the statutes and public policy of the several states. * * *
******
* * * it is apparent that, apart from specific legislative classification of optometry as, or use of terms implying the practice of optometry to be a profession, the one line of decisions seems to proceed on the theory that the legislative object as disclosed by the particular optometry code — the public policy of the particular state — was to preserve public health and welfare by requiring the practice to be kept on the plane of professional ethics and scientific learning, as in the so-called learned professions. The other line, on the normal plane of ethics and practical business economy. In a case of the latter class it is said that “the science of optometry, though it may require much preparation and skill, is not commonly known as one of the learned professions.”
Forcefully stated in modern terms, the court in Eisensmith v. Buhl Optical Co., 115 W.Va. 776, 178 S.E. 695, 697 (1934) (quoting from Commonwealth v. Houtenbrink, 235 Mass. 320, 126 N.E. 669, 670 (1920)) related:
[T]he kind of work undertaken by the optometrist “bears such intimate relation to the health of mankind as to bring it within the power of legislative supervision through the exercise of the police power. Vision is essential to the highest usefulness of the individual. The eye is proverbially a delicate organ. It is closely connected with intellectual, nervous and physical functions. Advice as to its care and prescribing for the correction of its defects by tests and examinations without the use of drugs is closely connected with health.”
See also Melton v. Carter, 204 Ark. 595, 164 S.W.2d 453 (1942); Lee Optical of Ga., Inc. v. Georgia State Bd. of Examiners in Optometry, 220 Ga. 204, 138 S.E.2d 165 (1964); Pearle Optical of Monroeville, Inc., 133 S.E.2d 374; Kendall v. Beiling, 295 Ky. 782, 175 S.W.2d 489 (1943); and Ezell v. Ritholz, 188 S.C. 39, 198 S.E. 419 (1938).
The second clearly defined fact is that corporate practice of optometry is not permitted under Wyoming statutes, and if the essential nature of the business here presented is corporate practice of optometry, it is illegal. Wyoming statutes are specific and resort to a large volume of cases in similar result is not required. W.S. 33-23-111, in stating it is unlawful for “any corporation, directly or indirectly, to practice optometry * * *,” says it all. *986Funk Jewelry Co. v. State ex rel. La Prade, 46 Ariz. 348, 50 P.2d 945 (1935); State Board of Optometry v. Gilmore, 147 Fla. 776, 3 So.2d 708 (1941); State ex rel. Beck v. Goldman Jewelry Co., 142 Kan. 881, 51 P.2d 995 (1935); Kendall, 175 S.W. 2d 489; Dickstein v. Optical Service, Inc., 19 Misc.2d 495, 191 N.Y.S.2d 642 (1959); Stern v. Flynn, 154 Misc. 609, 278 N.Y.S. 598 (1935); State ex rel. Sisemore v. Standard Optical Co., 182 Or. 452,188 P.2d 309 (1947); State ex rel. Standard Optical Co. v. Superior Court for Chelan County, 17 Wash.2d 323, 135 P.2d 839 (1943); Eisensmith, 178 S.E. 695.
Finally, in conjunction with the issues of steerers,6 cappers, etc., we consider the essential nature of the business organization and relation and not the visage or tinting applied to camouflage what, in fact, exists. Akin, 150 So.2d 807. The dedication of the Wyoming legislature to rights of freedom of choice in selection of licensed eye care practitioners is specifically addressed in W.S. 33-32-101:
No person, department, commission, board, official, employee, or agency of the state of Wyoming or any county, municipality, school district or other subdivision of the state of Wyoming, or any other state or county agency or any other governmental unit of any kind or character shall interfere with any patient’s exercise of freedom of choice in the selection of practitioners licensed to perform examinations for refractions and visual training and visual corrections within the specific area for which their state licenses entitle them to practice.
That intent for freedom of choice is not confined to the text of that statute only but flows from the optometry code as found in the first criteria of unprofessional and dishonest conduct. “The loaning of his license by any licensed optometrist to any person; * * W.S. 33-23-110(b)(i). See further, W.S. 33-23-110(b)(ix):
The board, when necessary for administration of this act, may clarify the definitions stated in this subparagraph (b) by unanimous action of the board, provided that the meaning and effect of this law shall not thereby be added to or diminished.
In addition to the limitations provided by the unprofessional/dishonest conduct definition, the following specific proviso of W.S. 33-23-lll(b)(iv) cannot be so casually ignored as the majority seeks to do:
For any person or persons not holding a certificate or any corporation, directly or indirectly, to practice optometry by employment of or contract with a person holding a certificate, or otherwise, * * *.
Franchising of health care services, law, accounting or engineering can be no less appealing than nursing homes, hamburger sales and motel facilities.7 This difference is the individual responsibility of the practitioner to his client or patient that is implicit both in Wyoming statutes and pervasive precedent in the nature of an individual who is honored to be designated as a member of a true profession. The delineation presented by the courts is to determine *987where, by franchising services, the contractual control over the professional should be denied to the corporate environment. In my persuasion, that line was crossed substantially before the status is reached as evidenced by the intrinsic agreements and essential nature of this transaction between the optometrists and the franchiser provision.
As stated in Lieberman, 34 A.2d at 216 (quoting from McMurdo, 10 N.E.2d at 142), it is
the principle which forbids a licensed member of a profession to practice among the public as the employee of an unlicensed person or corporation “recognizes the necessity of immediate and unbroken relationship between a professional man and those who engage his services.”
See Zale Jewelry Co. of Wichita, 298 P.2d 283.
There is a curious nonsequitur in the majority’s reasoning to disregard the most extensive current authority, California Ass’n of Dispensing Opticians, 191 Cal. Rptr. 762, by a differentiation of California’s more inclusive statutes. I disagree with the differentiation factually and with the denial of persuasion and authority. The only real factual difference is that opticians are licensed in California as the mechanics of eye glass manufacture and fitting, but the essential character of Wyoming statutes as related to the professional, the optometrist, is realistically identical. California has obviously had an administrative agency of more forcefulness in adoption of regulations, but the statutory premises that California has a long-standing public policy against permitting laypersons to practice any of the medical arts or to exercise control over decisions made by any healing art practitioners is not different from Wyoming.
In enunciating the illegality that the court found, the specific facts that were demonstrated are identical, or at least similar, to the franchise documents which have been brought from California and other states to be used in Wyoming.
From the face of the franchising agreement it is clear Pearle had the power to control many facets of the optometrist’s practice of optometry. For example, with respect to real property arrangements, Pearle must approve the site of the optometrist’s office. If the franchisee is purchasing an existing site from Pearle, he must also purchase all improvements. If he wishes to obtain a new site, Pearle must approve all proposed leasehold improvements, furnishings, fixtures, inventory and supplies which are obtained from anyone other than Pearle.
Pearle also exercises a variety of controls over financial aspects of a franchisee’s practice. According to the circular a franchisor may “finance” franchisees, and the franchisee must pay a substantial percentage of his gross income to the franchisor as both a “franchise fee” and as an advertising contribution. Franchisees must utilize the Pearle “system” relative to operating the practice and must use the franchisor’s design specifications for offices. Furthermore, the franchisee is subject to periodic audits by the franchisor. Substantial penalties can be assessed if the audit is unfavorable to the franchisee.
A separate and distinct specie of control lies in the franchisor’s control over a variety of treatment decisions to be made by the optometrist. A franchisee is required to stock all of Pearle’s approved frame lines, to carry an inventory of prescription lenses and other optical goods and supplies approved by Pearle. Pearle has sole discretion to modify frame lines, and specifications for optical goods. Finally, the franchisee’s choice of laboratory is limited to those approved by Pearle.
Reservation of this authority over an optometrist by a nonhealing arts practitioner is against public policy and clearly illegal.
Id. at 768.
The court goes on to consider control over advertisement, use of the name for the facility, profit-sharing and co-ownership arrangements, and gross royalty require*988ments which include services performed as a professional as further basis to define the transaction as an illegal corporate practice of a profession.
The differentiation that the majority seems to make that the supervisory control over the franchise extends only to the dispensing and not to the examination is not accurate. Each and every factor of accounting, operation, management, lease restraints, and resale limitations fall equally upon both optical sales and health care activity since all documents relate equally and directly to both. If the franchise is rescinded and the lease is revoked, the optometrist and the businessman as a single entity is identically out of business, although the note remains unpaid and the non-competition covenant undiminished. Required monthly payments for purchase, rental franchise and advertising as computed upon optometric practice equally confines and controls professional services like merchandise sales. With unquestioned division of optometric service fees with Pearle Vision presented, the reasoning of this decision seems more than clouded in explaining how percentage fees escape exculpation. Lieberman, 34 A.2d 213; Hanks v. Hamilton, 339 So.2d 1122 (Fla.App.1976), cert. denied 352 So.2d 171 (Fla.1977); State v. Abortion Information Agency, Inc,, 69 Misc.2d 825, 323 N.Y.S.2d 597 (1971). Cf. Natchez v. State, 721 P.2d 361 (Nev.1986), where an optometrist cannot be the employee of an opthamologist.
The characterization in one of the Board’s affidavits that Dr. Holly is essentially an employee of Pearle Vision, may be overstated (see, however, Zale Jewelry Co. of Wichita, 298 P.2d 283), since indentured agent might be more responsive. I would conclude, within the entirety of documented control and regulation, that there is an issue of fact to consider the existence of a violation by an uncertified corporation. Capitol Optical Co. v. State Board of Optometry, 220 Miss. 34, 70 So.2d 15 (1954); Sears, Roebuck & Co. v. State Board of Optometry, 213 Miss. 710, 57 So.2d 726 (1952); State ex rel. Bricker v. Buhl Optical Co., 131 Ohio St. 217, 2 N.E.2d 601 (1936); State ex rel. Loser v. National Optical Stores Co., 189 Tenn. 433, 225 S.W.2d 263 (1949). To be weighed at trial is the reality. Dr. Holly is at will in business placement, actively controlled at continuous risk of default, and confined in transferability or resale. Control is not inappropriately defined either as he who calls the tune, or by the golden rule, he who has the gold rules.8
Fundamentally we are taught by the wisdom of many preceding jurists that it is the essential operation which achieves regulatory significance — how, what and when —and the effect on a defined public interest. Rowe v. Standard Drug Co., 132 Ohio St. 629, 9 N.E.2d 609 (1937); National Optical Stores Co., 225 S.W.2d 263. See, however, Rowe v. Burt’s Inc., 31 N.E. 2d 725 (Ohio App.1939). Also see Zale Jewelry Co. of Wichita, 298 P.2d 283 and Goldman Jewelry Co., 51 P.2d 995. Compare for more limited contract, State v. Ballez, 102 Ariz. 174, 427 P.2d 125 (1967). See also Ritholz v. Arkansas State Board of Optometry, 206 Ark. 671, 177 S.W.2d 410 (1944); State v. Plymouth Optical Co., 211 N.W.2d 278 (Iowa 1973); State v. Kindy Optical Co., 216 Iowa 1157, 248 N.W. 332 (1933); Sears, Roebuck & Co., 57 So.2d 726; and Rithholz v. Com., 184 Va. 339, 35 S.E.2d 210 (1945). It is not labels, artifices or subterfuges which are sufficient to de*989termine regulatory interest and prohibitory reaction. It is impermissible to incorporate to engage in optometry or to do individually what is forbidden to do directly. Buhl Optical Co., 2 N.E.2d 601. This subject was best stated in California Ass’n of Dispensing Opticians, 191 Cal.Rptr. at 773:
Pearle by its franchise seeks to engage in the corporate practice of a profession. The rules against such practice should not be circumvented by technical agreements concerning the manner optometrists are engaged, designated or compensated by the franchisor. The confidential health care relationship requires the professional’s undivided responsibility and freedom from commercial exploitation. This relationship is essential. The public would be jeopardized if a large corporation with pecuniary profits as its principal goal were allowed to dominate the field. (Painless Parker v. Board of Dental Exam,., supra, 216 Cal. 285, 298, 14 P.2d 67.)
In Wyoming, Pearle Vision can neither legally practice optometry nor employ optometrists for the examination portion of the eye care service that it seeks to sell. Neill, 199 A. 182. This summary judgment disposition makes no sense, logically nor govemmentally, in determining, as a matter of law, something factually which is probably contrary to what actually happens.
The trial court grant of summary judgment favoring Pearle Vision should be reversed for trial on the merits.
. A confusion in terminology can be found in the numerous cases and by casual references to the participants in the eye care industry correctable by differentiating the optician from the optometrist, the O.D., as also different from the medical doctor, the M.D., who may practice in this specialty. Wyoming, differing from California, has no optician licensing law. See California Ass’n of Dispensing Opticians v. Pearle Vision Center, Inc., 191 CaLRptr. 762, 143 Cal. App.3d 419 (1983). Opticians do not examine eyes and would fall within the category of optical mechanics as differentiated in terminology by W.S. 33-23-101(b). In standard and accepted categorization, the structure of eye care personnel starts with the non-dispensing optician, as the mechanic; the dispensing optician who cannot conduct examinations, licensed in some states and not in others; the optometrist as a certificated professional with a specialized college degree requirement; and the medical professional practitioners, physicians, surgeons, and ophthalmologists (oculists). See definitions in Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 486, 75 S.Ct. 461, 463, 99 L.Ed. 563, reh’g denied 349 U.S. 925, 75 S.Ct. 657, 99 L.Ed. 1256 (1955); Stem v. Flynn, 154 Mise. 609, 278 N.Y.S. 598 (1935); New Jersey State Board of Optometrists v. S.S. Kresge Co., 113 N.J.L. 287, 174 A. 353 (1934).
Dr. Holly is licensed to be and conducts a professional practice as an optometrist as confined and controlled by the Wyoming licensing statute, W.S. 33-23-101, et seq.
. The history of Pearle Vision, symptomatic of merchandized health care, is informative. Pearle was incorporated in 1962 by Stanley C. Pearle, O.D., as merged into Opticks, Inc. as an affiliate system in 1973. The entity was acquired by Will Ross, Inc. in 1969 and then merged into G.D. Searle & Co. in 1973 to become a wholly owned subsidiary. In 1983, drug supplier Searle, by establishment of Pearle’s Health Services, Inc., which owns, as its affiliate, Pearle Vision Center, Inc., the litigant in this case, resold 55.4 percent of the outstanding common stock and retained as of the date of the circular found in the record, 44.3 percent. As of circular date of April 1, 1985, there were more than 800 retail optical stores doing business under the proprietary service mark Pearle Vision Centers, which include three types of franchises: (1) company-owned Pearle Vision Center (company-owned store); (2) a newly constructed Pearle Vision Center (new store); or (3) the owner of an existing optical store which may convert to Pearle Vision Center (owner-converted store). Within this categorization, the Cheyenne, Wyoming operation and licensing arrangement held by Dr. Holly, would be category (2), as a new store.
. The comprehensive factual analysis by the majority would appear to define the modus deci-mandi for a factual inquiry sufficient to structure a genuine issue of a material fact in summary judgment concepts. However, the terminology of the majority calls this assumption into question in that in result, it appears that the majority determines that as matter of law the Wyoming legislature has not limited corporate practice of optometry within the character of contractual relations exercised by Pearle Vision.
. It is naive to ignore the essential nature of the franchised eye care business. First, a need must be created and thereafter the need is met by the sale of materials for correction and appearance. Of the essence of the Pearle Vision operation, as well as other similar corporate approaches involving franchise arrangements, is the on-site availability of examination which is required to create the need from which the sales can be made. The predominant of the operation is the product sale. Documents available for this operation suggest that about twenty-five percent of gross volume receipts are derived from health care professional service and seventy-five percent from merchandise sale. If the cost of the merchandise is deducted as a gross profit computation, the totals are about one-third eye examination and two-thirds merchandising.
Although the self-starter for the corporate operation is eye examination, the determinate of the business purpose and principal activity is product sale. Seifert v. Buhl Optical Co., 276 Mich. 692, 268 N.W. 784 (1936). The operational function for the franchised business is the direct reverse of the normalized ophthalmologist or optometrist who conducts a health care practice for the examination to be the predominant function and where, if provided, product sales is the adjunct. In the franchise system, the business purpose is merchandising while the essence of the independent ophthalmologist and optometrist activity is founded in providing a health care.
The business operation can become a police power regulatory concern properly addressed in legislation by controls, limitations and prohibitions to the degree that merchandising processes can supplant principles of individualized health care services.
The penumbra between optometry and effective private enterprise as unfettered by government and protection of citizens in receipt of health care services is a territory of decision clearly emplaced in legislative discretion by separation of powers. Wyo. Const, art. 2, § 1.
. A letter dated June 24, 1985 to Dr. Holly from a supervisor of franchise accounting stated:
There are several procedures contained in the Franchise Accounting Section which will help you to understand our weekly and monthly routine and the part you play. They are as follows:
1. XIII-2 (Call-in): Every Monday morning you are asked to call in the previous week's sales to your supervisor.
See Confidentiality Agreement form of execution:
Signature: Robert L. Holly, O.D.
Title: Optometrist
Date:_7/29/85_
Franchisee: Robert L. Holly, O.D.
Franchise Location: 96701 967101
Frontier Mall #1-1
Cheyenne, WY
The Franchise Agreement, section 3.1, stated:
(B) Franchisee hereby expressly acknowledges that adherence to each and every provision of the Pearle System is reasonable, necessary and essential to maintain the uniform image and favorable reputation of each Pearle Vision Center and the success of Pearle’s franchise program. Accordingly, Franchisee expressly agrees to comply with each and every requirement of the Pearle System during the term hereof, as the same may be modified or changed from time to time by Pearle in its sole discretion.
Section 3.3, Goods and Services stated:
During the term hereof, Franchisee shall provide or shall cause to be provided at or in conjunction with the Location, the following goods and services and no other goods or services without Pearle's prior written approval:
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(F) As permitted by law, optometric services, such as eye examinations and re-examinations, which services shall be provided by a duly licensed optometrist or ophthalmologist.
The contract also includes noteworthy restrictions on inventory and supplies, section 3.4; suppliers and services, section 3.5; required pri- or approval of other products, section 3.6; and specific ownership, non-transferability provisions without purchase and first right options held, retained by Pearle Vision. See Term; section 1.3; Grant of Successive Franchise (for succeeding terms), section 1.5; Assignment: Conditions and Limitations, section 14; Right of First Refusal, section 15; and Events of Default by Franchisee, section 16.5.
Consequently, if the franchisee loses his optometrist’s license, he loses his franchise and all the fruits of the singular investment required for involvement in the business.
. See definition in People v. Simmons, 109 N.Y. S. 190, 194 (1908):
A "steerer" in slang vocabulary is a person of plausible manners and address, who gains the confidence of the person intended to be fleeced. Century Dictionary, "Steerer."
. The public interest was expressed:
If such a course were sanctioned the logical result would be that corporations and business partnerships might practice law, medicine, dentistry or any other profession by the simple expedient of employing licensed agents. And if this were permitted professional standards would be practically destroyed, and professions requiring special training would be commercialized, to the public detriment. The ethics of any profession is based upon personal or individual responsibility. One who practices a profession is responsible directly to his patient or his client. Hence he cannot properly act in the practice of his vocation as an agent of a corporation or business partnership whose interests in the very nature of the case are commercial in character.
Ezell, 198 S.E. at 424.
A singular recognition that vision may not be seeing and that vision experts are not all the same is profiled in Roseman, Vision Overlooked, 93 Case & Com. 12 (1988). His well-made point is the prevalence of operational blindness within much of our population, which may largely be the result of the insufficient or incompetent eye examinations.
. The franchise agreement provides as events of default by a franchisee, which in result controls both hours and methods of operation of both dispensing and clinic, a right of termination by franchisor occurring upon any of the items of default which are enumerated in thirty-four provisions as specifics and generally circumscribed within the terminology of section 16.5(i) and (xxxiii) of the Franchise Agreement:
(i) Failure of Franchisee to maintain and operate the Pearle Vision Center, in accordance with the specifications and standards of the Pearle System or as set forth in the Pearle Manual;
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(xxxiii) Default by Franchisee or default by any operator, shareholder, partner, member or affiliate of Franchisee under any Agreement to which Pearle and any such person or entity are parties, including but not limited to any franchise agreement, lease, sublease, loan agreement, promissory note or security agreement.