Full opinion text
MEMORANDUM TRAUGER, District Judge. Pending before the court are cross-Motions for Summary Judgment (Docket Nos. 163, 169) and responses thereto (Docket Nos. 197, 200) For the reasons discussed herein, the defendants’ motion will be granted, and plaintiffs’ motion will be denied. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY A. Evidentiary Matters As an initial matter, plaintiffs refer to a number of documents in support of their Motion for Summary Judgment, as well as their Response to the defendant’s Motion for Summary Judgment, that defendants have objected to as inadmissible under Federal Rules of Evidence 802 and 901. (Docket No. 197 at pp. 1-2). Because some of these objections are well founded, the court will not consider the inadmissible documents, except to the extent that they are incorporated into plaintiffs’ expert testimony. In addition, defendants have moved to strike (Docket No. 209) Plaintiffs Statement of Material Facts in Support of Response to Motion for Summary Judgment (Docket No. 202), or in the alternative for relief from Local Rule 8(b)(7), which the plaintiffs have opposed (Docket No. 211). The court finds that the Plaintiffs Statement of Material Facts is not a concise statement of additional facts (being 202 pages in length) and is redundant with regard to many of the facts set forth in Plaintiffs’s Statement of Undisputed Facts in support of their own Motion for Summary Judgment. However, in lieu of striking Plaintiffs’ Statement of Material Facts in Support of Response to Motion for Summary Judgment, the court will grant defendants’ relief from the Local Rule and will consider the additional facts set forth by the plaintiffs only to the extent the court is certain that those facts could not be disputed. Finally, plaintiffs have filed a Motion to Supplement the Record (Docket 212), which defendants have opposed (Docket No. 219). Because this evidence has been proffered subsequent to the close of discovery, plaintiffs’ motion will be denied. B. Parties Interstate optical firms, such as the plaintiffs, are businesses that employ licensed opticians. The purpose of their businesses is to sell optical goods to consumers at the retail level. Plaintiffs operate retail optical stores in several states, including Tennessee. In some states, plaintiffs sublet space and/or diagnostic equipment inside of their stores to licensed optometrists. In Tennessee, plaintiffs are prohibited from doing so by Tenn.Code. Ann. § 63 — 8—113(c)(6), which provides that: (c) It is unlawful for any licensed optometrist to: (1) Advertise optometric services or ophthalmic materials, except as provided in subsection (d); (2) Practice optometry as an employee of any person or business or organization not engaged primarily in health care delivery; (3) Practice optometry under a name other than the optometrist’s own unless board approved; (4) Appoint agents or other persons to take orders for optometric services or ophthalmic materials; (5) Split or share fees with any person or organization in return for solicitation of customers by that person or organization; (6) Practice or offer to practice optometry in, or in conjunction with, any retail store or other commercial establishment where merchandise is displayed or offered for sale. Any licensed, registered optometrist practicing in premises of such type prior to April 17, 1967, shall be permitted to continue the independent practice in that optometrist’s present location, or in such new location to which the retail store or other commercial establishment might move, but when any such optometrist vacates any such premises, no other optometrist shall be permitted to practice in such vacated premises; or (7)Engage in practice in any temporary or mobile office except as authorized by the board, or any office which does not have the appropriate instrumentation for diagnosis and treatment for the practice of optometry as established by the board. Defendants Richt, Spivey, Hendrickson, Abernathy, Foster, and Browder are members of the Tennessee State Board of Optometry. Defendant Browder is the consumer member of the Board. The remaining members of the Board are Tennessee licensed optometrists. Defendant Wadley is the Commissioner of the Tennessee Department of Health. All defendants are sued in their official capacities. With respect to the Board’s authority, Tenn.Code.Ann. § 63-8-112 provides in pertinent part: The board is given authority to: (1) Make rules, regulations, policies and procedures not inconsistent with the laws of this state, for the proper performance of its duties to carry out the purposes, and to enforce the provisions of this chapter; (2) Provide a standard of efficiency as to the moral, educational and experience qualifications and fitness of all persons who desire to practice optometry in Tennessee, in conformity with the provisions of this chapter; j}: # if* ‡ # (5) Investigate possible violations of and enforce the provisions of this chapter; * Hi * * * # (7) Seek injunctions to prevent violations of this chapter. Such actions shall be brought in the chancery court of Davidson County or the chancery court of the county in which the defendant resides or does business. Such actions may be brought by ten (10) or more licensed optometrists or a state association of optometrists as well as by the board[.] The Department of Health is organized into divisions, among them the Division of Health Related Boards, which, concurrent with the Board of Optometry, is charged with enforcing the state’s optometry laws. C. Retail Optical Market Prescription optical goods are sold from a number of outlets in Tennessee. These outlets include interstate optical stores, local optical stores, health maintenance organizations (HMOs), and dispensaries operated by optometrists and ophthalmologists incident to their practice. Plaintiffs refer to the optometrists and ophthalmologists who operate such dispensaries as dispensing optometrists and ophthalmologists. For ease of reference, the court will as well, even though the term has no legal significance. Plaintiffs economic expert, Dr. Daniel L. Rubinfeld, estimates that the share of the retail market occupied by the different outlets is as follows: Dispensing Optometrists 39.2% Dispensing Ophthalmologists 12.6% Chains 34.5% Local optical stores 10.9% HMOs 2.9% (Docket No. 163, Ex. 2 at p. 10) Dr. Rubin-feld’s estimates are based upon data provided by Jobson’s. Defendants have offered unrefuted evidence that this data is often unreliable. (Docket No. 197 at pp. 17-19) D. Practice of Optometry in Tennessee Tennessee regulates and licenses optometrists, ophthalmologists, and opticians. See Tenn.Code.Ann. §§ 63-8-101 (optometrists), 63-6-101 (ophthalmologists), and 63-14-101 (opticians). Optometrists are required to have earned a doctor of optometry (O.D.) degree to obtain licensure in Tennessee. Upon being licensed, optometrists are authorized to examine eyes, prescribe corrective lenses, diagnose eye disease, and prescribe drugs to treat eye disease. Optometrists are also authorized to dispense optical goods incident to their practice of optometry. As stated, those who do so will be referred to herein as dispensing optometrists. Those who do not dispense optical goods incident to their practice will be referred to as prescribing optometrists. Ophthalmologists are medical doctors who have specialized in the diagnosing and treating of the eye. In addition to performing the functions carried out by optometrists, ophthalmologists are authorized to perform eye surgery. According to the Tennessee Supreme Court’s decision in Lenscrafters, Inc. v. Sundquist, 33 S.W.3d 772 (Tenn.2000), Tennessee licensed optometrists are health care providers. Retail optical goods establishments are not health care providers. Rather, they are deemed “dispensing opticians” under Tenn.Code Ann. § 63-14-102. As such, plaintiffs are “allowed to prepare, adapt, and dispense lenses, spectacles, eye glasses, frames, and optical devices.” Id. at 777. Businesses “in the practice of dispensing opticians” are also allowed to employ persons licensed as opticians, as long as the optician is “under the actual and personal supervision of partners, officers, managers or stockholders who possess valid unrevoked licenses as dispensing opticians entitled to practice in [Tennessee].” Id. (citing Tenn.Code Ann. § 63-14 — 103(d) (1997)). Thus, plaintiffs may sell ophthalmic lenses and frames and may employ opticians who dispense ophthalmic lenses and frames. E. Legislative History of Tenn.Code. Ann. § 68-8-118 (c)(6) The prohibition on optometric practice in or in conjunction with retail establishments was introduced to the Tennessee legislature in 1967 as Senate Bill 302 and House Bill 336. Proponents of the bill stated that the bill was designed to prohibit optometrists from working in commercial establishments. They argued that the proscription was necessary because “[t]he public may suffer whenever commercial interests interfere with the doctor-patient relationship.” Others stated that the bill would also “upgrade the profession” and professional standards. Some legislators opposed the bill on the grounds that it would not achieve its stated purposes and was apparently designed to protect the interests of optometrists who did not practice in retail establishments. (Docket No. 163, Ex. 38 at pp. 35-36, 38) An attempt to include a broad grandfather clause in the bill was defeated. One legislator explained the objections to the amendment as follows: “The situation is this, and the complaints that I heard during the interim recess were these: that the amendment would permit Sears & Roebuck & Go., Woolworth, Kresge’s or other large establishments of this sort to perpetuate the department of optometry in their store.” (Docket No. 163, Ex. 37 at p. 19) F. Effect of Tenn.Code.Ann. § 68-8-113(c)(6) on Plaintiffs Plaintiffs’ preferred business model is to sublease space inside of their stores to independent optometrists. Plaintiffs refer to the offering of eye examinations in the same place as eyewear is sold as “one-stop” eyecare. Plaintiffs maintain that dispensing optometrists obtain a competitive advantage from their ability to offer one-stop eye care. They note that, if they wish for their customers to have nearby access to an optometrist, they must construct a physically separate optometrist’s office with a separate entrance from outside of their retail stores. Plaintiffs refer to locations where the optometrist’s office is physically separate from the optical dispensary as “two-door stores.” Sometimes, plaintiffs are unable to locate a space for the optometrist immediately next to their retail store. In such case, the optometrist’s office may be located several doors down or on a separate floor from the plaintiffs retail establishment. Under Tenn.Code.Ann. § 63 — 8—113(c)(6), a Tennessee-licensed optometrist may not practice inside any retail store (as defined in LensCrafters v. Sundquist), whether it is owned by in-state or by out-of-state economic interests. Therefore, the effect of Tenn.Code.Ann. § 63-8-113(c)(6) upon the plaintiffs would be the same if they were domestic, Tennessee corporations. G. Costs of Complying With Tenn. Code.Ann. § 6S-8-113(c)(6) Plaintiffs assert that their inability to offer one-stop eyecare impermissibly burdens their ability to compete in the retail optical market and, in turn, interstate commerce. First, plaintiffs assert that the prohibition against optometric practice in a retail setting “interferes with the interstate optical firm’s ability to take advantage of certain economies of scope that accompany the provision of eye exams and eyewear in the same premises.” (Docket No. 163, Ex. 2 at pp. 20-24) That is, retail optical stores could reduce expenses if they were allowed to share office staff, telephones, files, and storefront space with an onsite optometrist, engage in joint advertising, and offer combined customer service. Additionally, plaintiffs are unable to engage in techniques designed to increase sales of eyewear to eye exam patients, such as designing the layout of their offices to allow eye exam patients to browse their selection of frames while they wait for their exams. Next, plaintiffs maintain that out-of-state chain optical stores would make up a larger share of the retail optical market if Tennessee did not prohibit them from offering one-stop eyecare. (Docket No. 163, Ex. 2 at p. 5) That is because consumers must obtain a prescription by undergoing an examination by a licensed optometrist or ophthalmologist prior to obtaining prescription eyewear (glasses or contact lenses). According to market research reviewed by Dr. Rubinfeld, most purchases are preceded by an eye exam and most consumers prefer to buy their eyewear at the same place they obtain their eye examination and eyewear prescription. (Id. at pp. 4, 14, 17-19) Because plaintiffs cannot offer eye examinations in their retail stores, they are at a competitive disadvantage that deprives them of additional market share. (Id. at p. 20) Dr. Rubinfeld further opines that the plaintiffs suffer from reduced customer visits and decreased revenues when in restrictive states, such as Tennessee, as compared to non-restrictive states. (Id. at pp. 24-25). Along similar lines, plaintiffs assert that Tenn.Code.Ann. § 63-8-113(c)(6) serves as a complete barrier to entry for some interstate firms. For example, America’s Best, an interstate optical goods chain not party to this litigation, operates in the value segment of the retail optical industry. It offers low prices by delivering at low cost and by utilizing relatively inexpensive real estate, small efficient space and efficient staff. For example, America’s Best employs the same receptionist for the optical dispensary and the optometrist’s office. In addition, America’s Best provides staff to the optometrist to assist in maintaining patient records. America’s Best has also attracted customers by combining eyewear and eye exams into one package price. America’s Best would like to expand into the Tennessee market but does not believe that it can operate effectively here due to the two-door restriction. Likewise, For Eyes Optical, another interstate retail optical goods store that is not a party, has considered operating stores in Tennessee and would like to do so. However, For Eyes has not entered the Tennessee market primarily because of the two-door restriction. As additional evidence of the negative economic effects of Tenn.Code.Ann. § 63-8 — 113(c)(6), plaintiffs cite two studies that the Federal Trade Commission (FTC) undertook in 1975 and 1980 on the economic effects of state regulation of the retail market for optical goods. Regulations examined by the FTC during the studies included: (1) advertising restrictions; (2) consumers’ access to their ophthalmic prescription; and (3) restrictions on optomet-ric practice in commercial settings. The FTC concluded from the studies that “commercial practice restrictions resulted in higher prices for eyeglasses and eye examinations, but did not increase their quality.” Additionally, research conducted by the FTC’s Bureau of Economics showed that prices were 18% higher “in markets where chain firms are totally restricted than in markets where chain firms operate freely.” The FTC attributed the higher prices to “inefficiencies of an industry protected from competition by state regulation.” In particular, the FTC found that restrictions on practicing in commercial locations “impose[d] unnecessary space, construction, or personnel costs that must be passed on to consumers.” The FTC further found that, as a result of higher prices, “consumers obtain eye care less frequently than they otherwise would.” When consumers do decide to seek eye care, their access to such care is also affected by commercial practice restraints because the restraints restrict the places where an optometrist may locate. The FTC found that commercial optometrists may be more conveniently located and may be more frequently available on weekends and evenings. (Docket No. 163 at Exs. 35, 36) Finally, plaintiffs assert that they incur additional capital and operating costs as a result of having to construct and operate two-door stores. Specifically, LensCraft-ers has estimated that it costs $26,950 more per store to construct a two-door store than a one-door store. Cole incurs between $1,500 and $2,000 in extra fixtures for two-door Sears Optical locations and between $500 and $800 in extra fixtures costs for two-door Target Optical locations. Pearle Vision incurs extra fixture costs between $500 and $800 when it remodels a two-door store as opposed to a one-door store. When building a two-door store,- plaintiffs also must find a space that is sufficient in size and location to accommodate a two-door location. Some optometrists are hesitant to work at two-door locations where the outside entrance to the optometrist’s office opens directly onto a dark parking lot or is distant from the retail store. Once the two-door stores are built, plaintiffs incur increased operating costs due to the need to maintain two offices as opposed to one office alone. H. Putative Benefits of Tenn.Code. Ann. § 63-8-113(c)(6) In support of the statute, defendants presently argue that the prohibition on optometric practice in retail and other commercial establishments: I. ensures that the practice of an optometrist licensed in Tennessee will not be controlled by a non-licensed entity; 2. ensures the continuity of the doctor-patient relationship; 3. maintains the integrity of the opto-metric profession; 4. ensures 24-hour access to an optometrist’s office; 5. ensures that an unregulated entity will not interfere in the doctor-patient relationship; and 6. eliminates confusion in the public as to the source of optometry services. Defendants assert that the benefits of the statute were recognized by the Tennessee Supreme Court in LensCrafters v. Sundquist, 33 S.W.3d 772. There the Court found that the prohibition on practice in retail establishments serves to shield optometrists from the risk of control by an unlicensed entity. The court further found that allowing optometrists to practice in conjunction with businesses “in the practice of dispensing opticians” may involve a compromise of the optometrist’s professional autonomy and would risk subordinating the standards of the optometry profession to the influence of commercial interests operated by lay business persons rather than by health care professionals. As evidence that retail optical establishments, in fact, have intruded into the practice of the optometrists to whom they sublease space, defendants proffer several examples, which plaintiffs have not refuted. For example, many of the plaintiffs have reviewed the optometrist’s appointment book, scheduled appointments for the optometrist, dictated the hours and days that the optometric practice must be staffed, and prohibited the optometrist from working at any other optometric locations. There is also evidence in the record that some patients have been unclear about the relationship between plaintiffs and the optometrists to whom they rent space. Some Cole Vision employees have access to a leasing optometrist’s patient records. Another optometrist allows his patient records to be located inside of a J.C. Penney Optical Store operated by U.S. Vision. U.S. Vision employees have access to and sometimes access those flies, ostensibly to verify a prescription. With regard to at least one of the optometrists with whom U.S. Vision has entered an Equipment Lease, U.S. Vision employees have suggested that the optometrist recommend coating and tinting to his patients. With regard to at least some of the optometrists to whom Wal-Mart leases office space, Wal-Mart employs all of the office staff who work in the optometrists’ offices. These employees maintain patient records and the appointment book. The plaintiffs dispute whether the prohibition on optometric practice in retail and commercial establishments confers any benefits whatsoever. They note that, although states often justify their commercial practice restrictions on the basis that “they are necessary to maintain high-quality vision care,” the FTC’s 1980 study found that “the record is quite clear on this central issue: There is no difference in the average quality of care available to consumers in restrictive and non-restrictive markets.” (Docket No. 163, Ex. 36 at 10290) The 1980 study was based, in part, on research undertaken by the FTC’s Bureau of Economics in conjunction with optometrists on the faculties of the New York and Pennsylvania Colleges of Optometry. The study used 19 researchers who “posed as consumers and purchased over 400 eye exams and over 230 pairs of eyeglasses from optometrists in twelve different metropolitan areas across the country,” including Knoxville, Tennessee. The study found “no significant difference” in material components of eye care, including “the accuracy of prescriptions, the accuracy and workmanship of eyeglasses, the extent of unnecessary prescribing, and the ability to detect eye problems and pathologies.” According to the plaintiffs, “[t]he results of the Bureau of Economics study confirmed the FTC’s expectations about the relationship, or lack thereof, between restrictions and quality of care[.]” In this regard, the study concluded: There is no apparent a priori reason why one would expect these restrictions on business practices to affect the quality of professional care. Both commercial and noncommercial optometrists have similar licensing examinations in order to practice. Commercial optometrists face the same incentives as noncommercial optometrists to satisfy consumer demand and provide an acceptable quality of eye care. Private optometrists, like commercial firms, must earn a profit in order to stay in business and both types of practitioners seek to generate profits by selling eyewear. Practitioners in both groups must maintain a good reputation in order to attract and hold the loyalty of patients. (Docket No. 163, Ex. 36 at 10291) Based upon the 1975 and 1980 studies, the FTC promulgated a final rule in 1989 declaring four types of state-imposed restrictions on commercial practices to be unfair acts or practices. State restrictions on practice in commercial settings was one of the restrictions declared illegal. The FTC justified its promulgation of the Rule on the basis that it would be good for competition and, in turn, consumers: As restrictions on commercial practice are removed, competition among optometrists should increase. Lower prices should then result from this increased competition and from economies of scale achieved by larger optometric providers. Lower prices will also increase the availability of ophthalmic goods and services to consumers who before could afford services infrequently, or in some instances, not at all. (Docket No. 163, Ex. 36 at 10290) The FTC noted that an additional benefit to consumers flowing from enactment of the Rule was that “consumers will benefit from their ability to choose, if they wish, the convenience of one stop service (eye examinations plus eyeglass or contact lens dispensing) from optometrists or retail optical firms who employ optometrists.” (Docket No. 163, Ex. 36 at 10303) The FTC’s Rule was challenged by the American Optometric Association, the California Optometric Association, and several states. See California State Board of Optometry v. FTC, 910 F.2d 976 (D.C.Cir.1990). The optical associations and states challenged the Rule on statutory and constitutional grounds and also “attackfed] the factual record upon which the FTC based its decision to adopt the rule.” The Court vacated the Rule on the ground that the FTC lacked statutory authority to promulgate it. The court did not address the petitioners’ alternative argument that the factual record upon which the FTC based the Rule was deficient. Thus, the plaintiffs assert that the FTC’s findings in support of the Rule have never been invalidated or overruled. As additional evidence that the prohibition on practice in retail establishments is of no benefit, the plaintiffs note that some present and former members of the Tennessee Board of Optometry testified in deposition that they did not know the purpose or benefits of the prohibition. Indeed, many Board members admit that they have no evidence that optometrists who practice in retail establishments provide a lower quality of care than optometrists who do not. Moreover, the plaintiffs expert, Dr. G. Richard Bennett, is of the opinion that the restrictions on practice in commercial settings may actually have a negative effect on the health, safety, and welfare of Tennessee citizens. Plaintiffs further assert that dispensing optometrists are no less subject to commercial pressures than their counterparts who lease space from retail optical establishments. Notably, the optometrist defendants in this case reported that 90-98% of their eyewear customers also are eye care patients and that 40-60% of their profits result from optical goods sales. Additionally, there is evidence that dispensing optometrists engage management consultants to assist them in increasing the profitability of their dispensaries. For example, Professional Vision Group (PVG) is a management consulting firm whose principal, Richard Omohundro, is not an optometrist. PVG has had approximately 24 Tennessee optometric practices and one Tennessee ophthalmology practice purchase its consulting services in the past ten years. It currently has five customers in Tennessee. Two current members of the Board and one past member have purchased PVG’s practice management services. PVG has offered a continuing education course called “Merging Professionalism With Profits” to members of the Tennessee Optometric Association. PVG charges dispensing optometrists $1,500 per month for its practice management consulting services. PVG advises its clients that, to grow their practice, they should work on improving their referral base, patient recall, and revenue per patient. PVG also teaches optometrists on how to increase revenue from the sale of eyewear. PVG taught Board Chair Dr. Richt how to use a lifestyle dispensing system to increase revenue from eyewear sales. Lifestyle dispensing has two components: asking a patient about his or her particular visual demands, and then educating the patient about the various eyewear options available to meet those visual demands. Other members of the Board also ask their patients about their lifestyle while administering eye examinations. In addition, some Board members use patient questionnaires to obtain information from patients about their hobbies, occupation, and social activities. These questionnaires are available to the optometrists’ dispensing staff. Other optometrist Board members have designed the layout of their offices so that patients move from the waiting room, to a pretesting area, to the examination room, to the dispensary, and, finally, to checkout. Three of the optometrist Board members personally escort their patients to the dispensary. There the optometrist, the patient, and a dispensary technician engage in a three-way conversation about the patient’s prescription and eyewear needs. Several Board members also cross-train some of their staff members to work in their dispensary. In some cases, Board members offer their dispensary staff bonuses for selling lens upgrades, lens add-ons, and higher-priced frames. One former member candidly admits that the purpose of commissions is to encourage selling and to increase the dispensary’s revenue. Plaintiffs expert Dr. Bennett is of the opinion that “some of the more difficult problems that arise with spectacle prescription happen in settings where there is no continuity between the prescribing doctor and the dispensing optician.” Important information about a patient’s visual requirements may not be shown on a prescription; when there is a break in the continuity of care, this information may not be communicated to the necessary persons. All of the optometrist Board members agree that it is in the patient’s best interest for the examining optometrist to make recommendations to their patients about appropriate eyewear and explain available lens options. Furthermore, several Board members testified that they participate in managed care plans that place limitations on the goods and services that they may provide to their patients. One former Board member testified that he believes managed care creates pressure to see more patients due to low compensation. Plaintiffs’ expert Dr. Bennett stated that managed care allows non-licensed entities to control the frequency of examinations, referrals to specialists, the availability of diagnostic tests, and availability of specific medicines — the very evils at which the prohibition on practice in commercial establishments is directed. Finally, plaintiffs argue that the Board’s history of not enforcing Tenn.Code.Ann. § 63 — 8—113(c)(6) undercuts any claim that the statute serves a beneficial purpose. I. History of Enforcement of Tenn. Code.Ann. § 6S-8-llS(c)(6) In March 1991, the Board of Optometry voted to send a letter to “commercial establishments who provide optometric services,” requesting that they provide the Board with the names of all optometrists practicing within their facilities and copies of any financial agreements between the commercial establishments and the optometrists. In response to the Board’s letter, plaintiffs LensCrafters and Pearle each advised the Board that they do not employ optometrists and were not, to the best of their knowledge, acting in violation of the optometry statutes. On July 23, 1991, the Board sent a memorandum to all Tennessee licensed optometrists advising them that the state Attorney General had determined that the prohibition against practice in or in conjunction with retail establishments was constitutional and enforceable. The stated purpose of the memorandum was: To notify all those who are practicing in [retail stores or other commercial establishments where merchandise is displayed or offered for sale] that they are in conflict with the Tennessee Optomet-ric Practice Act. It is the Board’s duty to enforce the Practice Act regarding this violation as well as other violations and the Board intends to pursue this purpose. In 1991 and 1992, the Board Consultant, in conjunction with the Office of General Counsel (OGC) of the Department of Health, opened complaints against several optometrists who were allegedly practicing in conjunction with Wal-Mart stores. All of the complaints were closed on the condition that the optometrists close off access to their offices from Wal-Mart’s Vision Centers and offer access to their offices only from outside of the stores. None of the optometrists was required to change the terms of leases or compensation agreements. Nor were they required to alter their treatment of their patients. In 1991, the OGC and the Board Consultant opened twelve (12) complaints against optometrists affiliated with LensCrafters, twenty-three (23) complaints against optometrists affiliated with Pearle, and one complaint against an optometrist affiliated with Sears Optical. Investigations were undertaken in only eight of the 36 cases. The OGC and Board Consultant determined that no violations of the Optometry Practice Act had occurred. This determination was made, even though some of the optometrists’ offices could only be accessed from inside the retail store in which they were located. On July, 6,1993, Patricia Crotwell sent a complaint to the Department of Health concerning Dr. Jeffrey Rothman, who subleases space from LensCrafters at River-gate Mall in Goodlettsville, Tennessee. Ms. Crotwell complained that Dr. Roth-man had refused to release her contact lens prescription so that she could have it filled elsewhere, an act which she believed was a violation of the Optometry Practice Act. Ms. Crotwell also stated that she believed that Dr. Rothman was violating the prohibition against practice in a retail or commercial setting because his office was located “inside the LensCrafters building ... [with] no discernable separate entrance.” The OGC and Board Consultant recommended that an investigation go forward on the alleged violation of the prohibition against practicing inside of a retail establishment. On April 25, 1995, an investigator finally paid a visit to Dr. Roth-man’s office at the Rivergate Mall. The investigator also spoke with Dr. Rothman by phone. At that time, Dr. Rothman informed the investigator that LensCraft-ers had replaced the interior door between his office and the LensCrafters store with an open archway in 1994 when it had remodeled. On June 23, 1995, the Board Consultant recommended that formal disciplinary action be initiated against Dr. Rothman for “practicing in a retail establishment.” On March 6, 1996, a Notice of Charges and Memorandum of Assessment of Civil Penalty was filed against Dr. Rothman. Dr. Rothman was charged with a violation of the Optometry Practices Act based upon the fact that his office “has not been physically separated from the retail' establishment operated by LensCrafters.” After a hearing before an Administrative Law Judge, the Board found Dr. Rothman in violation of the statute by a vote of 3 to 1. The Board further voted that to comply with the statute, Dr. Rothman must: 1. cause to be constructed an entrance into his office from the exterior of the building located at 910 Two Mile Parkway, Goodlettsville, Tennessee so as to allow patients to enter his practice without entering the retail establishment operated by Len-sCrafters. 2. cause to be constructed a continuous wall, or such wall as to be necessary to provide a continuous wall between the area [of] his office and that portion of the building occupied by Len-sCrafters, at the premises set forth above, to include a door which is both closeable and lockable. Dr. Rothman was ordered to make the modifications to his office within 30 days after entry of the Board’s order and was assessed a total penalty of $1,000. When directed by the Administrative Law Judge to articulate a “public welfare” reason for its ruling, the Board stated that it “feels it is important for the public to have access to their optometrists, and the care the optometrist supplies, without being influenced by a retail establishment.” The Board’s order was stayed and eventually overturned on petition for review by the Chancery Court. The state Attorney General refused to defend the Board’s order in the Chancery Court proceedings, arguing that the Board had incorrectly construed the statute. The Attorney General argued that the statute should be construed “only as banning optometrists from practicing ‘in, or in conjunction with, any retail store or other commercial establishment’ that is not engaged primarily in the practice of dispensing opticians.” This argument was eventually rejected by the Tennessee Supreme Court in LensCrafters v. Sundquist as will be discussed infra. J. Procedural History On February 19, 1998, LensCrafters filed suit, challenging the constitutionality of TenmCode Ann. § 63-8-113(c)(6) as vio-lative of the Fourteenth Amendment’s Equal Protection and Due Process Clauses and the Commerce Clause of Article I of the United States Constitution. Len-sCrafters seeks injunctive relief under 42 U.S.C. § 1983 against the operation and continued enforcement of Tenn.Code Ann. § 63-8-113(c)(6) and a declaration under 28 U.S.C. § 2201 that Tenn.Code Ann. § 63-8-113(c)(6) is unconstitutional. LensCrafters’ suit in federal court was prompted by the state disciplinary action initiated by the Board against Dr. Roth-man. While Dr. Rothman’s suit was pending in Chancery court, LensCrafters filed the instant suit here in federal court. On July 27, 1998, the defendants filed a Motion to Dismiss, arguing that Len-sCrafters could not satisfy the case or controversy requirement or, in the alternative, that LensCrafters’ case was moot. (Docket No. 18) On December 14, 1998, Chief Judge Echols denied their Motion to Dismiss, finding that LensCrafters had standing to challenge the constitutionality of the statute. (Docket No. 25) On January 8, 1999, the case was transferred to this court. On February 8, 1999, defendants filed their first Motion for Summary Judgment. (Docket No. 29) In support of their first Motion for Summary Judgment, the defendants primarily argued that summary judgment should be granted in their favor because the court could decide the case without reaching the constitutional issues raised by LensCraft-ers. As framed by the defendants, the issue for the court was whether Len-sCrafters should be considered a “retail store or other commercial establishment” for purposes of TenmCode Ann. § 63-8-113(c)(6). On this issue, defendants asked the court to ignore the Board’s construction of this statutory provision in the proceedings against Dr. Rothman, wherein it stated that TenmCode Ann. § 63-8-113(c)(6) prohibited an optometrist from practicing “in, or in conjunction with” a business such as LensCrafters. Instead, the defendants asserted that the court should follow the interpretation of § 63-8-113(c)(6) adopted by the Chancery Court in Rothman v. Tennessee Bd. of Optometry. (Defendants’ Mem. at 5) Implicit in the defendants’ arguments was the belief that the Board’s construction of § 63-8-113(c)(6) rendered the statute unconstitutional. In response, LensCrafters asserted that, even if the court were to adopt such a reading of Tenn.Code Ann. § 63-8-113(c)(6), LensCrafters would still not be protected from future harm, since the court’s interpretation of this statutory section would not be binding on state courts. Accordingly, LensCrafters sought to have the question of whether LensCrafters is to be considered a “retail store or other establishment” for purposes of Tenn.Code Ann. § 63-8-113(c)(6) certified to the Tennessee Supreme Court. The court agreed with LensCrafters and certified the following question to the Tennessee Supreme Court: Whether an entity engaged primarily in the business of selling and dispensing ophthalmic lenses and frames is a “retail store or other commercial establishment” within the meaning of Tenn.Code Ann. § 63-8-113(c)(6)? In their briefs to the Tennessee Supreme Court, both parties argued that it would be unconstitutional to construe the statute to include entities such as Len-sCrafters. The Tennessee Supreme Court disagreed and stated: The parties in this case contend that this Court should interpret Tenn.Code Ann. § 63-8-113(c)(6) to exclude businesses which sell ophthalmic lenses and frames because a contrary interpretation would render the statute unconstitutional. They contend that the restriction against practicing in or in conjunction with a retail store discriminates against out-of-state stores, thereby unduly burdening interstate commerce. We begin by discussing the constitutional aspects of the parties’ construction of the statute. The states are allowed great leeway under their police power to adopt regulations that protect the health and safety of their citizens. Although the Constitution confers “upon Congress the regulation of commerce, ... [it was] never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country.” Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 816, 4 L.Ed.2d 852 (1960), quoted in Head v. New Mexico Bd. of Exam. in Optometry, 374 U.S. 424, 428, 83 S.Ct. 1759, 1762, 10 L.Ed.2d 983 (1963). Although regulations adopted under the police power may indirectly impose a burden on interstate commerce, they are not unconstitutional unless they are shown to “discriminate against interstate commerce or operate to disrupt its required uniformity.” Huron Portland Cement Co., 362 U.S. at 448, 80 S.Ct. at 818. The statutory regulations on optometry pertinent here in effect insulate optometrists from non-health care commercial entities. The purpose of this insulation is to prohibit the formulation of business relationships between optometrists and such entities. The policy supporting such prohibitions is that preservation of an unbroken relationship between the professional and the patient is best achieved by shielding the professional from the risk of control by an unlicensed person or entity. See Cole Vision v. Dept. of Bus. and Prof., 688 So.2d 404, 409 (Fla.Dist.Ct.App.1997). A review of analogous precedent shows that regulations prohibiting optometrists from practicing optometry as a servant of an unlicensed optical business, though affecting interstate commerce, have been held to be constitutional. See Pearle Optical of Monroeville, Inc. v. Georgia State Bd. of Examr’s in Optometry, 219 Ga. 364, 133 S.E.2d 374 (1963); Sears, Roebuck & Co. v. State Bd. of Optometry, 213 Miss. 710, 67 So.2d 726 (1952); see also 61 Am.Jur.2d Physicians, Surgeons, etc. § 157 (1981); 88 ALR 2d 1290, 1294 § 3[a], 1963 WL 13503. In upholding the constitutionality of a statute prohibiting those “engaged in the business of retailing merchandise” from renting out space for eye examinations, the United States Supreme Court stated: It seems to us that this regulation ... is an attempt to free the profession, to as great an extent as possible, from all taints of commercialism. It certainly might be easy for an optometrist with space in a retail store to be merely a front for the retail establishment. In any case, the opportunity for that nexus may be too great for safety, if the eye doctor is allowed inside the retail store. Moreover, it may be deemed important to effective regulation that the eye doctor be restricted to geographical locations that reduce the temptations of commercialism. Geographical location may be an important consideration in a legislative program which aims to raise the treatment of the human eye to a strictly professional level. We cannot say that the regulation has no rational relation to that objective and therefore is beyond constitutional bounds. Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483, 491, 75 S.Ct. 461, 466, 99 L.Ed. 563 (1955). Our Court has stated similar concerns justifying such regulations when addressing the question of optometrists being employed by corporations: 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. State ex rel. Loser v. National Optical Stores Co., 189 Tenn. 433, 225 S.W.2d 263, 269 (1949). We conclude that even were the statute to prohibit the practice of optometry in LensCrafters’s stores, it would still be constitutional. Therefore, our construction of the statute is not affected by constitutional concerns. LensCrafters, Inc. v. Sundquist, 33 S.W.3d at 775-77. After disposing of the constitutional challenge, the Tennessee Supreme Court turned to the proper construction of Tenn. Code Ann. § 63-8-113(e)(6). On this issue, the Court opined: Here, the natural and ordinary meaning of the language used, “any retail store ... where merchandise is ... offered for sale,” would include ophthalmic superstores such as LensCrafters. The parties maintain, despite the absence of language exempting ophthalmic stores, that the intent of our legislature in enacting the provision before us was to prevent optometrists from practicing in department stores and not stores which specialize in selling ophthalmic supplies. To support their assertion that applying Tenn.Code Ann. § 68-8-113 to ophthalmic stores would be inconsistent with the statutory scheme considered as a whole, the parties point to sections of our Code which suggest an “overlap” between the work of dispensing opticians and optometrists. The parties note that LensCrafters is a business “in the practice of dispensing opticians” under Tenn.Code Ann. § 63-14-102 and thus is allowed to prepare, adapt, and dispense lenses, spectacles, eye glasses, frames, and optical devices. They further note that opticians are permitted to practice as employees of businesses “in the practice of dispensing opticians” if they are “under the actual and personal supervision of partners, officers, managers or stockholders who possess valid unrevoked licenses as dispensing opticians entitled to practice in [Tennessee].” See Tenn.Code Ann. § 63-14-103(d) (1997). Thus, LensCrafters may sell ophthalmic lenses and frames and may employ opticians who dispense ophthalmic lenses and frames. Likewise, the parties note that optometrists are permitted to employ dispensing opticians. Id. § 63-14-105 (“Nothing contained in this chapter shall be construed to prohibit a ... licensed optometrist from employing a licensed dispensing optician as defined in this chapter.”). Moreover, they note that selling glasses has long been a part of the practice of optometry and that the statutory scheme contemplates that optometrists should be allowed to sell ophthalmic lenses and frames. See id. § 63-8-102(12)(D). Thus, like businesses “in the practice of dispensing opticians,” optometrists also may hire opticians to sell and dispense ophthalmic lenses and frames. The basic thrust of the parties’ argument is that the statutes governing opticians and optometrists are inconsistent because they allow a business “in the practice of dispensing opticians” to hire dispensing opticians and sell ophthalmic products, and they allow an optometrist to hire dispensing opticians and sell ophthalmic products, but they do not allow a business “in the practice of dispensing opticians” to form a business association with an optometrist. The parties contend that the similarities between optometrists and businesses “in the practice of dispensing opticians” render unjustifiable any argument that relationships between such businesses and optometrists would degrade the profession of optometry. The parties fail, however, to recognize that allowing optometrists to practice in conjunction with businesses “in the practice of dispensing opticians” may involve a compromise of the optometrists’ professional autonomy. Such does not occur when an optometrist operates an independent business which employs opticians to dispense and sell ophthalmic lenses and frames. Cf. Tenn.Code Ann. § 63-8-113(c)(2), (5) (1997 Repl.). Furthermore, there is no statute condoning an optometrist’s professional association with or employment by dispensing opticians. See id. § 63-8-113. The reason for this is that opticians are not health care professionals; they are specifically prohibited from examining eyes or diagnosing, treating, or correcting “any human ailment ... or physical condition.” Id. § 63-14-102(2). Consequently, although optometrists permissibly may employ dispensing opticians, to allow optometrists to form business associations with dispensing opticians-or with businesses “in the practice of dispensing opticians,” such as LensCrafters — would be equivalent to allowing optometrists to form business associations with non-health care provider commercial entities. By allowing such business associations, we would risk subordinating the standards of the optometry profession to the influence of commercial interests operated by lay business persons rather than by health care professionals. In holding that businesses which sell ophthalmic lenses and frames are retail establishments within the meaning of Tenn.Code Ann. § 63 — 8—113(c)(6), we must also address whether this interpretation renders the optometry statute internally inconsistent. Although this argument was not raised by the parties, one might assert that optometrists are allowed to sell lenses and frames within their own practice, TenmCode Ann. § 63-8-102(12), and yet by doing so, they violate the prohibition against practicing in a “retail store ... where merchandise is ... offered for sale.” However, we decline to hold that this inconsistency requires that the phrase “retail store or other commercial establishment” be interpreted to exclude stores engaged primarily in the business of selling and dispensing ophthalmic lenses and frames. ■ A more reasonable interpretation is that the phrase “retail and commercial establishments” refers to “non-health care profession” commercial entities. We reach this conclusion in large part by reference to TenmCode Ann. § 63 — 8—113(c)(2), which implicitly allows an optometrist to be employed by persons and entities “engaged primarily in health care delivery.” This construction of the statute prevents the “lay control of optometrists” advances the goal of encouraging a direct line of responsibility from licensed optometrists to their patients, and further allows optometrists to practice in professional associations with other licensed health care professionals who are not only in the practice of health care delivery, but who also sell ophthalmic products. LensCrafters, Inc., 33 S.W.3d at 777-79. While the certified question in Len-sCrafters was pending before the Tennessee Supreme Court, plaintiffs U.S. Vision, Cole Vision, and the NAOO filed a separate action challenging the constitutionality of TenmCode. Ann. § 63 — 8—113(c)(6). That action was initially stayed pending the Tennessee Supreme Court’s resolution of the certified question put to it in Len-sCrafters. Subsequently, the two cases were consolidated. On March 14, 2002, plaintiffs filed a consolidated Second Amended Complaint seeking both declaratory and injunctive relief. (Docket No. 127) In their Consolidated Complaint, plaintiffs again challenge Tenn.Code Ann. § 63 — 8—113(c)(6), which they refer to as the “Eye Exam Prohibition” or “EEP”, as violative of three separate constitutional provisions: (1) the Dormant Commerce Clause; (2) the Equal Protection Clause; and (3) the Due Process Clause. Plaintiffs have moved for summary judgment in their favor only on the Dormant Commerce Clause challenge. Defendants have filed a cross-motion for summary judgment on all three challenges. II. SUMMARY JUDGMENT STANDARD OF REVIEW Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment may be rendered if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Feb. R. Civ. P. 56(c). To prevail, the moving party must meet the burden of proving the absence of a genuine issue of material fact as to an essential element of the opposing party’s claim. See Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989). In determining whether the moving party has met its burden, the court must view the factual evidence and draw reasonable inferences in the light most favorable to the nonmov-ing party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir.2000). “The court’s function is not to weigh the evidence and determine the truth of the matters asserted, ‘but to determine whether there is a genuine issue for trial.’ ” Little Caesar Enters., Inc. v. OPPCO, LLC, 219 F.3d 547, 551 (6th Cir.2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). If the nonmoving party, however, fails to make a sufficient showing on an essential element of the case with respect to which the nonmoving party has the burden, the moving party is entitled to summary judgment as a matter of law. See Williams v. Ford Motor Co., 187 F.3d 533, 537-38 (6th Cir.1999). To preclude summary judgment, the nonmoving party “is required to present some significant probative evidence which makes it necessary to resolve the parties’ differing versions of the dispute at trial.” Gaines v. Runyon, 107 F.3d 1171, 1174-75 (6th Cir.1997). The nonmoving party must show that “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. To determine whether the nonmov-ing party has raised a genuine issue of material fact, the evidence of the nonmov-ing party is to be believed and all justifiable inferences drawn in his favor. Id. at 255, 106 S.Ct. at 2513. The court should also consider whether the evidence presents “a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Street, 886 F.2d at 1479. “There is no genuine issue for trial unless the nonmov-ing party has produced enough evidence for a jury to be able to return a verdict for that party.” Tinsley v. General Motors Corp., 227 F.3d 700, 703 (6th Cir.2000). If the evidence offered by the nonmoving party is “merely colorable,” or “is not significantly probative,” or enough to lead a fair-minded jury to find for the nonmoving party, the motion for summary judgment should be granted. Anderson, 477 U.S. at 249-252, 106 S.Ct. at 2510-12. “A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate.” Hill v. White, 190 F.3d 427, 430 (6th Cir.1999) (citations omitted). In ruling upon cross-motions for summary judgment, this court must rule on each motion independently, deciding in each instance whether the moving party has met its burden under Rule 56. III. ANALYSIS A. Law of the Case As a threshold matter, the defendants generally argue that the constitutionality of the Tenn. Code.Ann. § 63-8-113(c)(6) was decided by the Tennessee Supreme Court in Lenscrafters, 33 S.W.3d 772, and that this court is bound by the Tennessee Supreme Court’s holding because it constitutes the law of the case. This argument is without merit. Although the cases cited by the defendants on this issue do hold that a state court’s answer to a certified question constitutes the law of the case, none of the cases involved state courts resolving a party’s federal constitutional challenge incident to answering the questions certified to them. Therefore, the cases cited by the defendant do not hold that a state court’s answer to a certified question on matters of state law constitutes law of the case as to federal issues initially presented in federal court pleadings. In any event, plaintiffs were entitled to reserve the right to return to federal court for resolution of their federal constitutional claims under the Supreme Court’s decision in England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 421, 84 S.Ct. 461, 467, 11 L.Ed.2d 440 (1964). In this case, LensCrafters’ brief to the Tennessee Supreme Court specifically advised the Justices that it reserved the right to further challenge the constitutionality of Tenn. Code.Ann. § 63 — 8—113(c)(6) in subsequent federal proceedings, should it be necessary for them to do so. Although defendants argue that the plaintiffs waived this right by arguing the constitutional issue in the state court proceedings, the Sixth Circuit has suggested that the law of the case doctrine is not applicable when a state court is informed in advanced that its resolution of a specific issue may be treated as advisory. See Grover by Grover v. Eli Lilly and Co., 33 F.3d 716, 719 (6th Cir.1994) (“A federal court that certifies a question of state law should not be free to treat the answer as merely advisory unless the state court specifically contemplates that result.”) Thus, the court will proceed to the merits of plaintiffs’ claims. B. Scope of Tenn. Code Ann. § 63-8-113(c)(6) Turning to the merits of plaintiffs’ claims, the court must first determine the true scope of prohibition set forth in Tenn. Code Ann. § 63 — 8—113(c)(6). This determination must be made at the outset of the court’s analysis because it affects the purposes, burdens, and benefits that may be ascribed to the statute. According to the plaintiffs, Tenn.Code Ann. § 63-8-113(e)(6) requires only that they physically separate themselves from the optometrists with whom they contract — even though the statute prohibits optometrists from practicing “in, or in conjunction with, any retail store or other commercial establishment where merchandise is displayed or offered for sale.” In other words, the “in conjunction with” prohibition has never been given independent meaning and, thus, the statute is satisfied when the optometrist’s office is separated from plaintiffs’ retail stores by a wall and the optometrist’s office has a separate entrance. Defendants, on the other hand, deny that the statute imposes a physical separation requirement alone. The court agrees with the defendants that physical separation may satisfy that part of the statute that prohibits optometrists from practicing “in” a retail establishment, but the physical separation requirement alone does not satisfy the requirement that optometrists not operate “in conjunction with” such an establishment. On this issue, the Tennessee Supreme Court has determined that “in conjunction with” has independent meaning. See LensCrafters, 33 S.W.3d at 779 n. 9. (“in conjunction with” is defined to mean being joined together in an association) (citing Black’s Law Dictionary 765 (6th ed.1990)). Thus, to satisfy the statute, an optometrist must operate independently of a retail optical establishment, not just occupy a physically separated office. C. Equal Protection Clause Challenge Defendants move for summary judgment on plaintiffs’ claim that Tenn. Code.Ann. § 63 — 8—118(c)(6) violates the Equal Protection Clause. “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Richland Bookmart, Inc. v. Nichols, 278 F.3d 570, 574 (6th Cir.2002). In this case, the challenged legislation is presumed valid if the classification of groups is rationally related to a legitimate state interest. City of Cleburne, 473 U.S. at 440, 105 S.Ct. 3249. On this issue, defendants correctly argue that the Supreme Court has rejected an equal protection challenge to an Oklahoma statute substantially similar to Tenn.Code Ann. § 63-8-113(c)(6). See Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955). In that case, the Court stated: The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Tigner v. State of Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. Semler v. Oreg