STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM J. MAYERS, D. C., )

)

Petitioner, )

)

vs. ) CASE NO. 79-1672RX

) BOARD OF CHIROPRACTIC EXAMINERS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on September 6, 1979, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Richard E. Gentry, Esquire

3818 Del Prado Boulevard Cape Coral, Florida 33904

For Respondent: John E. Griffin, Esquire

Assistant Attorney General Department of Legal Affairs Room 1501, The Capitol Tallahassee, Florida 32301

On or about August 3, 1979, Petitioner, William J. Mayers (Petitioner) filed a petition, pursuant to Section 120.56, Florida Statutes, challenging the validity of Rule 21D-2.17, Florida Administrative Code. The rule challenged in this proceeding was promulgated by the Florida State Board of Chiropractic Examiners to govern deceptive and misleading advertising in the chiropractic profession.

This matter was assigned to the undersigned Hearing Officer by Order of the Director of the Division of Administrative Hearings, dated August 14, 1979.

Thereafter, Respondent, Florida State Board of Chiropractic Examiners (Respondent) answered the petition, and counsel for both parties filed, on August 30, 1979, a Joint Stipulation waiving the requirement of Section 120.56, Florida Statutes, that a final hearing be held in this proceeding within thirty days of the assignment of a Hearing Officer. Thereafter, by Notice of Hearing dated August 27, 1979, final hearing in this cause was scheduled for September 6, 1979.

At the final hearing, neither Petitioner nor Respondent offered the testimony of any witnesses, and Petitioner offered only the Petitioner's Exhibit No. 1, which was received into evidence. In addition, Counsel for both Petitioner and Respondent waived the requirement that a final order be entered by the Hearing Officer within thirty days from conclusion of the hearing.

FINDINGS OF FACT

In light of the fact that the parties offered no testimony, either by way of live witnesses or through depositions, the only facts applicable to this proceeding are those admitted in Respondent's Answer to the Petition herein.

These are:

1. This is a petition for the determination of the validity of Rule 21D- 2.17, Florida Administrative Code, one of the rules of the Florida State Board of Chiropractic Examiners.

   
   

2. Petitioner, William J. Mayers, D.C., is a practicing chiropractor licensed by the Board of Chiropractic Examiners pursuant to Chapter 460, Florida Statutes, and holding License No. 1806.

   
   

3. The Petitioner is charged with violating Rule 21D-2.17, Florida Administrative Code, in Administrative Charges brought by the Board of Chiropractic Examiners, and currently pending before a Hearing Officer from the Division of Administrative Hearings in Case No. 78-2550, and the Petitioner is, therefore, substantially affected by the challenged rule.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.56, Florida Statutes.

   
   

5. Section 460.06(1), Florida Statutes, provides that:

   
   

   The [Florida State Board of Chiropractic Examiners] is authorized to adopt and from time to time revise such rules and regulations governing the practice of chiropractic as are necessary to enable it to carry into effect the provisions, mechanics, and procedures in keeping with the purpose of the chapter and the legislative delegations of administrative authority and discretion to implement, interpret, and administer the intent and purpose of the statutory law.

   
   

6. Section 460.13(3)(g), Florida Statutes, provides that the Florida State Board of Chiropractic Examiners shall have the authority to discipline the holder of a license to practice as a chiropractic physician, who is found guilty by the Board of having:

   
   

   1. Caused the publication, broadcast, circulation or public display of any advertisement in violation of any of the rules and regulations of the Board governing the size, shape, content, material, construction, or method of distribution of any form of advertising . . . .

7. Rule 21D-2.17, Florida Administrative Code, provides that:

   
   

   1. It is the policy of the Board of Chiropractic Examiners that advertising by licensed practitioners of the profession of chiropractic in this State should be regulated so as to effectuate the duty of the State of Florida to protect the health, safety, and welfare of its residents, while not abridging any rights guaranteed to such practitioners or to the public by the Constitutions of the United States and the State of Florida, as construed by the United States Supreme Court. To that end, the Board permits the dissemination to the public of legitimate information, in accordance with the Board's rules, regarding the art and science of Chiropractic and where and from whom chiropractic services may be obtained, so long as such information is in no way fraudulent, false, deceptive, or misleading.

   2. No chiropractor shall disseminate or cause the dissemination of any advertisement or advertising which is in any way fraudulent [sic] or false, or which has the capacity or tendency to deceive or mislead. Regardless of whether it may otherwise be in compliance with, or in violation of, any provision of Chapter 21D-2, F.A.C., or Chapter 460, F.S., any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading if it:

      1. Contains a misrepresentation of facts;

         or

      2. Has the capacity or tendency to mislead

         or deceive because in its content or in the context in which it is presented it makes only a partial disclosure of relevant facts; or

      3. Contains laudatory statements about any individual chiropractor, group of chiropractors, or specific chiropractic office, clinic, or center.

      4. Has the capacity or tendency to create false, or unjustified expectations of beneficial treatment or successful cures;

         or

      5. Contains representations relating to the quality of the chiropractic services offered; or

      6. Conveys the impression that the chiropractor or chiropractors, disseminating the advertising or referred to therein, possesses qualifications, skills, or other attributes which are superior to other chiropractors, other than a simple listing of earned professional post-doctoral or other

         professional achievements; or

      7. Is likely to appeal primarily to a lay person's fears, ignorance, or anxieties regarding his state of health or physical well-being; or

      8. Fails to conspicuously identify the chiropractor or chiropractors referred to in the advertising as a chiropractor or chiropractors; or

      9. Contains any representations or claims, as to which the chiropractor, referred to in the advertising, fails to perform; or

      10. Contains any representation which identifies the chiropractic practice being advertised by a name which does not include the terms "chiropractor," "chiropractic," or some easily recognizable derivative thereof; or

      11. Contains any representation regarding a preferred area of practice or an area of practice in which the practitioner in fact specializes, which represents or implies

          that such specialized or preferred area of practice requires, or that the practitioner has received any license or recognition by the State of Florida or its authorized agents, which is superior to the license and recognition granted to any chiropractor who successfully meets the licensing requirements of Chapter 460, F.S.; or

      12. Appears in any classified directory, listing, or compendium under a heading, which when considered together with the advertisement, has the capacity or tendency to be deceptive or misleading with respect to the profession or professional status of the chiropractor; or

      13. Contains any other representation, statement, or claim which has the capacity or tendency to mislead or deceive.

   3. As used in the rules of this Board, the terms "advertisement" and advertising" shall mean any statements, oral or written, disseminated to or before the public or any portion thereof, with the intent of furthering the purpose, either directly or indirectly, of selling professional services, or offering to perform professional services, or inducing members of the public to enter into any obligation relating to such professional services. The terms advertisement or advertising shall include the name under which professional services are performed.

8. Section 120.56(1), Florida Statutes, provides that:

   
   

   Any person substantially affected by a rule may seek an administrative determination

   of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

   
   

9. Petitioner's arguments in support of a finding of invalidity of Rule 21D-2.17, Florida Administrative Code, are twofold. First, Petitioner contends:

   
   

   . . . [T]he statute from which the rule must derive its legitimacy and implementation, relies on the rule itself to set forth the substance of the statute. Stated another way, the rule should be dependent on the statute for substance and implementation; instead, the statute setting forth illegal practice is dependent on the rules for its substantive authority.

   
   

10. Secondly, Petitioner contends that:

    
    

    . . . The Board can promulgate no rule which is more substantive than the statute which implements it . . . [and] [by so doing through Section 460.13(3)(g)(1), F.A. and 21D-2.17, F.A.C., the Board has gone beyond its delegated legislative authority.

    
    

11. Petitioner's first argument, as outlined above, is in reality directed toward the validity of the statute authorizing adoption of the challenged rule, rather than the rule itself. Consequently, Petitioner's argument in this regard must fail in this forum, since a determination of the validity of the underlying statute is a judicial function, and is outside the authority of the Division of Administrative Hearings. See, Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977); Department of Revenue v. American Builders, 358 So.2d 1096 (Fla. 1st DCA 1978).

    
    

12. Further, Petitioner's second argument is equally without merit. The legislature obviously intended, through the enactment of Sections 460.06 and 460.13(3)(g), Florida Statutes, that the citizens of the State of Florida not be victimized by licensed chiropractors who might engage in deceptive and misleading advertising. To this end, the legislature clear1y empowered the Board of Chiropractic Examiners to promulgate rules governing the content of advertising by licensed practitioners of the chiropractic profession. Rule 21D- 2.17, Florida Administrative Code, is the result of that rulemaking process, and it is the specific finding of this Hearing Officer that that rule is neither arbitrary nor capricious, and bears an obvious and reasonable relationship to the purposes intended by the legislature in enacting Sections 460.06 and 460.13(3)(g) , Florida Statutes. Florida Beverage Corp. v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975); Schneider v. Aiken, 227 So.2d 193 (Fla. 1969).

Accordingly, Petitioner has failed to demonstrate that the challenged rule exceeds the statutory authority of the Board of Chiropractic Examiners, or that the contents of the challenged rule are arbitrary or capricious. Agrico Chemical Co. v. Dept. of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978). The relief sought by Petitioner is, therefore, DENIED.

DONE and ORDERED this 14th day of November, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Richard E. Gentry, Esquire 3818 Del Prado Boulevard Cape Coral, Florida 33904

John E. Griffin, Esquire Department of Legal Affairs Room 1501 - The Capitol Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 Capitol Building

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee Room 120 - Holland Building Tallahassee, Florida 32301

Docket for Case No: 79-001672RX

Orders for Case No: 79-001672RX