STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF )

CHIROPRACTIC EXAMINERS, )

)

Petitioner, )

)

vs. ) Case No. 77-981

)

GILBERT C. RYAN, D.C., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on September 19, 1977, in the City Council Chambers, City Hall, Rockledge, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on a three- count Amended Administrative Complaint filed by the Board of Chiropractic Examiners against Gilbert C. Ryan, D.C. The first count alleged that Ryan had offered free consultations to patients and had then charged for X-rays taken as a part of the examinations contrary to Section 460.13(3)(g), (h) and (m), Florida Statutes. The second count alleged that Ryan displayed a sign reading "Brevard Chiropractic Clinic," in front of the building in which Ryan practiced alone as a chiropractic physician, contrary to Rule 21D-2.03, Florida Administrative Code, which constitutes a violation of Section 460.13(3)(g)(1), Florida Statutes. The third count alleges that Ryan has listed his professional office in the telephone directory classified listings for Cocoa-Cocoa Beach under both Cocoa Beach and Cocoa contrary to Rule 21D-2.15(3) and that Ryan has also cross-referenced his office within the classified portion of the telephone directory contrary to the provisions of 21D-2.14(4), Florida Administrative Code, which constitutes violation of Section 449.13(3)(g)(1) and (3), Florida Statutes.

At the final hearing the Board introduced no evidence regarding the allegations of count 1. The Board did introduce evidence on Counts 2 and 3. Ryan admitted the basic allegations of counts 2 and 3 but presented testimony and argument that he had not violated provisions of 21D-2.14 and 2.15 by listing his professional telephone number as he had.

In the absence of evidence having been introduced in support of the allegations of count 1 and with Dr. Ryan's admission of allegations of count 2, the issues presented related primarily to count 3. The issues presented on count 3 were whether Dr. Ryan, whose offices in an unincorporated area of Brevard County, violated Rule 21D-2.14 and 2.15 by listing his professional telephone number under the Cocoa Beach listing and by having "Acupuncture Center of Brevard" listed under clinics?

APPEARANCES

For Petitioner: Daniel Wiser, Esquire

101 East College Avenue Post Office Box 1752 Tallahassee, Florida 32302

For Respondent: Jere E. Lober, Esquire

Post Office Box 517 Rockledge, Florida 32955

FINDINGS OF FACT

1. Dr. Ryan is a chiropractic physician licensed by the Board of Chiropractic Examiners of Florida.

   
   

2. Dr. Ryan has his professional offices located on Merritt Island which is an unincorporated area of Brevard County located between Cocoa and Cocoa Beach. Said office did have a sign reading " Brevard Chiropractic Clinic." Dr. Ryan, at the time the complaint was filed, was a sole practitioner. The sign was changed at Dr. Ryan's direction approximately six to seven weeks prior to the formal hearing in this matter. Dr. Ryan had taken steps to order the necessary letters and contract the work shortly after receiving notice of the charges against him in late April of this year to change the sign to "Brevard Chiropractic Office."

   
   

3. Dr. Ryan's professional phone number and his business address are listed in the classified portion of the Cocoa-Cocoa Beach telephone directory once directly under the heading "Chiropractic Physicians" and again under the subheading for Cocoa Beach. The directory on its cover states, "Cocoa including Rockledge and Merritt Island" and "Cocoa Beach including City of Cape Canaveral."

   
   

4. The telephone directory referenced above also carries a listing for "Acupuncture Center of Brevard" under the heading "Clinics." The telephone number listed for "Acupuncture Center of Brevard" is 636-0560 and the address is listed as 230 South Courtney Parkway. Dr. Ryan's telephone number is listed under "Chiropractic Physicians" as 636-0551 and the address is given as 230 South Courtney Parkway. "Acupuncture Center of Brevard" is a registered fictitious name.

   
   

   CONCLUSIONS OF LAW

   
   

5. There was no evidence to support the allegations of count 1. The Board of Chiropractic Examiners has the burden to prove the allegations against the Respondent, Dr. Ryan. By failing to present any evidence, it has failed to carry its burden of proof.

   
   

6. Dr. Ryan admits having had a sign reading "Brevard Chiropractic Clinic," up until approximately six or seven weeks prior to the hearing. This sign was constructed prior to the adoption of the Board's Rule 21D-2.03 on December 20, 1974. When noticed of the complaint, Dr. Ryan took steps to have the sign changed to comply with the rule. The sign now reads "Brevard Chiropractic Office."

7. Dr. Ryan has his professional phone listed in the undesignated listing under "Chiropractic Physicians" in the classified telephone directory and also under a listing for Cocoa Beach. The directory states that it is for Cocoa including the city of Cape Canaveral. Merritt Island is an unincorporated area of Brevard County. Section 21D-2.15(3) states:

   
   

   "When several distinct political subdivisions are listed in one phone directory, then the chiropractor may list himself in each political subdivision where he has an office."

   
   

   Technically speaking, Merritt Island is not a separate political subdivision but a part of Brevard County. It is a distinct geographical listing in the telephone directory. Rule 21D-2.15(3) Florida Administrative Code, was designed to prevent multiple listing in the classified telephone directory under more than one geographic area where the chiropractic physician did not maintain an office in that geographic area. Dr. Ryan has violated the intent of Rule 21D- 2.15(3), F.A.C.

   
   

8. It is charged that Dr. Ryan has violated 21D-2.14(4), Florida Administrative Code, because there is a listing for a separate phone number under "Clinics" for "Acupuncture Center of Brevard." "Acupuncture Center of Brevard" is a registered fictitious name. Only the address of Dr. Ryan's office and that of the acupuncture center are the same. This falls short of a cross- reference of Dr. Ryan's chiropractic office.

   
   

9. Dr. Ryan has technically violated Rule 21D-2.03 and Rule 21D-2.15(3), Florida Administrative Code. This constitutes a violation of Section 460.13(13)(g)(1)(3), Florida Statutes.

RECOMMENDATIONS

The highly technical nature of the violation of the telephone listing rule and Dr. Ryan's immediate action to correct his sign are considered in mitigation of the violations found above. It is clear that his telephone listing was not a blatant attempt at advertising and that other professionals, to include chiropractic physicians, have listed themselves in the same manner in the Cocoa- Cocoa Beach telephone directory. While it violates the State's rules, it appears to conform with the community standard and therefore does not hold the chiropractic profession up to criticism. Based upon the foregoing Findings of Facts and Conclusions of Law, and in consideration of the mitigating factors, the Hearing Officer recommends that the Board reprimand Dr. Ryan in writing and suspend his license to practice chiropractic until the Board receives notification in writing that Dr. Ryan has directed the telephone company to change his professional listings to list his professional telephone number and office address in the location appropriate for an office maintained in Merritt Island.

DONE and ORDERED this 5th day of October, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Daniel Wiser, Esquire

101 East College Avenue Post Office Box 1752 Tallahassee, Florida 32302

Jere E. Lober, Esquire Post Office Box 517 Rockledge, Florida 32955

Docket for Case No: 77-000981

Orders for Case No: 77-000981