STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Board of )

Chiropractic Examiners, )

)

Petitioner, )

vs. ) CASE NO. 81-1191

)

CURTIS J. McCALL, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case of August 6, 1981, in Panama City, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Tina Hipple, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Dr. Curtis J. McCall, Jr.

801 Grace Avenue

Panama City, Florida 32401 PROCEDURAL BACKGROUND

These proceedings began on March 5, 1981 when the Secretary of the Department of Professional Regulation filed an Administrative Complaint against Respondent, Dr. Curtis J. McCall, Jr. The Complaint charged that Dr. McCall had engaged in false or misleading advertising because he held himself out as the Chiropractic Adjuster General of the United States of America. On April 14, 1981 Dr. McCall requested an administrative hearing on the allegations of the Complaint. The case was forwarded on April 22, 1981 to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing.

Prior to the final hearing Petitioner requested official recognition of the 1980 and 1981 editions of the United States Congressional Directory published by the United States Government Printing Office. This request was renewed at the final hearing. Ruling on the request was reserved until Petitioner supplied of the Hearing Officer and Respondent with copies of the particular material offered for recognition. That request is now denied for reasons which are discussed below in the Conclusions of Law. In addition Petitioner moved prior to the final hearing to amend the style of the case and the Administrative

Complaint to reflect that Dr. McCall's full name is Curtis J. McCall, Jr. not just Curtis J. McCall as stated in the Administrative Complaint. That Motion was granted.

At the final hearing Petitioner presented Mr. William Taylor and Dr. Ronald

1. Harris as its witnesses. It offered Exhibit 1-3 which were received into evidence. Dr. McCall offered himself as his witness and offered Composite Exhibit A which was received into evidence.

   
   

   At the conclusion of the hearing pursuant to Section 120.57(1)(b)4. Florida Statutes (Supp. 1980) the parties were informed of their right to file proposed findings of fact and proposed recommended orders. Both parties filed proposed Orders containing findings of fact. To the extent that the proposed findings submitted by the parties are not reflected in this Order, they are rejected as being either not supported by admissible evidence or as being irrelevant to the issues determined here. Agrico Chemical Company v. Department of Environmental Regulation, 356 So.2d 759, 763 (Fla. 1st DCA 1978).

   
   

   After all the evidence was received at the final hearing Petitioner moved for the Administrative Complaint to be amended to conform to the evidence and allege that Dr. McCall had used the title Chiropractic Adjuster General of the United States in his correspondence with military and civil officials of the United States government. Ruling on that Motion was reserved for determination in this Recommended Order. Because the evidence which is the subject of the requested amendment was introduced in these proceedings by the Respondent and because the amendment is without prejudice to him, the Motion to amend the Administrative Complaint is granted.

   
   

   FINDINGS OF FACT

   
   

   1. Dr. Curtis J. McCall, Jr., is licensed by the Florida Board of Chiropractic Examiners to practice chiropractic in Florida. At all times material hereto he has been so licensed.

      
      

   2. In June 1978, Dr. McCall filed in the United States District Court for the Northern District of Florida a document entitled "The Declaration of the Chiropractic Adjuster General of the United States of America CAP-USAF".

      
      

   3. Since that time Dr. McCall has assumed the self-created title of Chiropractic Adjuster General of the United States of America (CAG). The purpose of the office is to lobby the United States government to recognize the chiropractic healing arts and to provide the medical benefits which cover government employees, both civil and military, include professional chiropractic healing. In carrying out his goal Dr. McCall has written to every imaginable federal official, from the President of the United States to the acting Deputy Assistant Secretary of Defense (Health Resources and Programs), who might have any function relating to government health care.

      
      

   4. In his correspondence with these federal officials Dr. McCall has used stationery which represents himself as the CAG. He uses the stationery only for his lobbying activities. He has separate professional stationery for corresponding with his patients and the public. Dr. McCall has never used his CAG stationery to correspond with members of the public.

   5. The only time that Dr. McCall used his CAG stationery for other than lobbying was on May 14, 1980, when he wrote a letter to Dr. Ronald L. Harris as President of the Board of Chiropractic Examiners. This letter was a complaint alleging that an organization called Soma Institute was practicing chiropractic in the State of Florida without a license. It was this letter which brought Dr. McCall's self-appointed title of CAG to the attention of Petitioner.

      
      

   6. Except as "created" by Dr. McCall there is no office called the Chiropractic Adjuster General of the United States of America.

      
      

   7. In between two bookcases and behind his desk at his professional offices at 811 Grace Avenue, Panama City, Florida, Dr. McCall displays a seal of the CAG. The seal is approximately 4 to 5 inches in diameter and is a copy of the seal imprinted on Dr. McCall's stationery, a copy of which is attached hereto as Appendix A.

      
      

   8. While the seal behind Dr. McCall's desk was observed by Mr. William Taylor, an investigator for the Department, there is no evidence to show that this seal is seen by Dr. McCall's patients or by members of the public.

      
      

   9. Dr. McCall is sincere in the creation of the Office of the CAG. He does not employ the title to falsely enhance his ability as a chiropractor. He has instead been a one-man crusade for the recognition of the chiropractic art by the United States government.

      
      

   10. Dr. McCall does not use the title CAG in his practice of the chiropractic profession. He does use the title only as a private citizen petitioning his government for a change in its politics.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Sections 120.57(1); 120.60; 455.225(4), Florida Statutes (1979).

       
       

   12. As noted above Petitioner requested that official recognition be taken of certain publications by the United States Government Printing Office.

       Section 120.61, Florida Statutes (1979) provides: "When official recognition is requested, the parties shall be notified and given an opportunity to examine and contest the material." The directories of which recognition was requested were never produced at the final hearing and they were never made available to Dr.

       McCall prior to the hearing. Petitioner was given the opportunity after the hearing to obtain the directories in order to show them to Dr. McCall and to have them received into the record, but the Department has not produced them by this date. Under these circumstances official recognition is impossible.

       Sections 90.203 and 90.204, Florida Statutes (1979).

       
       

   13. By its Administrative Complaint, as amended, the Department has charged Dr. McCall with false or misleading advertising because he has used stationery proclaiming himself as the CAG in correspondence to Dr. Ronald Harris (as President of Florida Board of Chiropractic Examiners) and to numerous officials of the federal government. Dr. McCall is similarly charges with false advertising in the display of the CAG seal behind his desk at his professional office.

   14. Grounds for the professional discipline of a chiropractor include:

       
       

       (1)(d) False, deceptive, or misleading advertising.

       1. Making misleading, deceptive, untrue, or fraudulent representations in the practice of chiropractic or employing a trick or scheme in the practice of chiropractic when such scheme or trick

          fails to conform to the generally prevailing standards of treatment in the chiropractic community. Section 460.413(1)(d) and (1), Florida Statutes (1979).

          
          

   15. The Board of Chiropractic Examiners has supplemented the foregoing statutory prohibitions by Section 21D-15.01, Florida Administrative Code which in pertinent part provides:

       
       

       1. No chiropractor shall disseminate or cause the dissemination of any advertise- ment or advertising which is [in] any

          way fraudulent, false, deceptive or mis- leading . . . .

          * * *

       2. As used in the rules of this Board, the terms "advertisement" and "advertising" shall mean any statement, 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 pro- fessional services. The terms advertisement or advertising shall include the name under with [sic] professional services are performed.

       
       

   16. The definition of "advertising" is crucial to this case. Before a communication can become an advertisement it must be (1) disseminated to or before the public or any portion thereof, and (2) that dissemination must be with the intent of furthering the purpose of selling professional services, or offering to perform professional services or inducing members of the public to contract for professional services. Dr. McCall's use of the CAG title is not advertising. All of his communication with that title have been directed to federal officials to Dr. Harris in Dr. Harris' professional capacity. In this circumstance neither Dr. Harris nor the government officials are members of the "public". The purpose of Dr. McCall's communication for which he used his CAG stationery was not to induce anyone to purchase Dr. McCall's professional services.

       
       

   17. There is a possibility that the display of the CAG seal behind Dr. McCall's desk could create a prohibited communication to Dr. McCall's patients or to members of the public. The record is however devoid of evidence that anyone other than Dr. McCall and Mr. Taylor ever saw the seal. In light of the Petitioner's burden of proof in a professional discipline case it will not be

       inferred that the public does or has observed the seal. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).

       
       

   18. Dr. McCall has raised the constitutional issue that his First Amendment right to petition government is in jeopardy in these proceedings. In the case of Curtis J. McCall, Jr. v. State of Florida, Department of Professional Regulation; Dr. Ron Harris, President, Florida Board of Chiropractic Examiners, Case No. MCA 81-0206, filed in the United States District Court for the Northern District of Florida, he seeks an injunction against these proceedings on constitutional grounds. Because the acts charges in the Administrative Complaint herein are not found to be within the prohibition of Section 460.413(1)(d) and (1), Florida Statutes (1979) and Section 21D-15.01, Florida Administrative Code, there is no need for a detailed discussion of the recent United States Supreme Court cases defining the limits which may be placed on professional advertising by the states. 1/ The Board's appropriately narrow definition of advertising in Section 21D-15.01, Florida Administrative Code, neatly avoids the constitutional issue here.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Board of Chiropractic Examiners enter a final order dismissing the Amended Administrative Complaint against Dr. Curtis J. McCall, Jr.

DONE and RECOMMENDED this 13th day of October, 1981, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1981.

ENDNOTE

1/ Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977); In Re Primus, 436 U.S. 412 (1978); Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978).

COPIES FURNISHED:

Tina Hipple, Esquire Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dr. Curtis J. McCall, Jr. 811 Grace Avenue

Panama City, Florida 32401

Mr. Ronald L. Harris, Pres. Board of Chiropractic Examiners c/o Dept. of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION DIVISION OF PROFESSIONS BOARD OF CHIROPRACTIC

IN RE: CURTIS J. MCCALL, JR., D.C.

License No. 1538

Respondent.

/

CASE NO. 81-1191

FINAL ORDER

THIS MATTER came before the Board of Chiropractic pursuant to section 120.57(3), Florida Statutes, on Thursday, December 3, 1981, in Tampa, Florida, for consideration of the Recommended Order in the case of Department of Professional Regulation, Board of Chiropractic v. Curtis J. McCall, Jr., D.C., Case No. 811191, a copy of which is attached hereto and incorporated herein by reference. Upon consideration of the Recommended Order and Petitioner's Exceptions to paragraphs 6 and 7 of the Conclusions of Law contained in the Recommended Order, and after a review of the total record in this matter, it is ORDERED:

FINDINGS OF FACT

1. The findings of fact contained in the hearing officer's' recommended order are hereby approved and adopted.

   CONCLUSIONS OF LAW

   
   

2. Petitioner's Exceptions to paragraphs 6 and 7 of the Conclusions of Law contained in the Recommended Order are accepted and these two paragraphs are rejected. However, neither party has objected to, and the Board approves and adopts paragraphs l, 2, 3, 4, 5, and 8 of the Conclusions of Law contained in the Recommended Order.

   
   

3. The Board rejects the hearing officer's conclusion in paragraph 6 of his Conclusions of Law that Respondent's use of the title "Chiropractic Adjustor General" on his stationary is not advertising because the individuals to whom it was directed are not members of the "public" and because the use was not to induce anyone to purchase Respondent's professional services. The Respondent has repeatedly represented himself as the Chiropractic Adjustor General of the United States in letters to high ranking government officials and in pleadings filed in Federal Court. Even assuming these officials are not members of the public, all of these documents are public record and have the potential to be disseminated to members of the public other than the individual to whom the correspondence was addressed. The record further shows that Respondent has received letters from these high ranking government officials addressing him as the Chiropractic Adjustor General of the United States, which responses are also subject to public dissemination. Respondent is not only disseminating documents subject to public inspection and copying as the Chiropractic Adjustor General of the United States, but he is being recognized as such by others whose opinions may have great public impact and influence. Respondent's activities have the potential to reach and influence a much larger segment of the public than would ordinarily be possible by conventional advertising. Furthermore, Respondent's dissemination of these documents for the admitted purpose of enhancing the recognition of chiropractic by the federal government is at least an indirect attempt to induce members of the public to enter into a professional relationship with Respondent. As such, Respondent is in violation of Rule 21D- l5.01, Florida Administrative Code and section 460.4l3(1)(d), Florida Statutes. In addition, Respondent's use of the self-ordained title "Chiropractic Adjustor General" is clearly deceptive, misleading, and untrue and in violation of section 460.4l3(1)(1), Florida Statutes.

   
   

4. The Board rejects the hearing officer's conclusion in paragraph 7 of his Conclusion of Law that Petitioner did not meet the burden of proof necessary to show that Respondent's display of the seal of the "Chiropractic Adjustor General" in his office was prohibited advertising. More specifically, the hearing officer concluded that because Petitioner demonstrated that only Petitioner's investigator and Respondent saw the seal, the requisite burden was never met. Presumably, the hearing officer concluded that there was no evidence that the communication had be disseminated to the public. The seal of the "Chiropractic Adjustor General" was displayed by Respondent in his professional chiropractic offices. As such, it was clearly on display and available to any members of the public who might visit Respondent's offices, as evidenced by Petitioner's investigator's observance of the seal while visiting Respondent's office. The display of the seal by Respondent is much the same as the display of business cards, or a window sign in a chiropractic office. Proof of display of these items in a chiropractic office which is open to the public is all that is required under Rule 21D-l5.0l(3), which defines, in pertinent part, the term "advertising", as follows:

   
   

   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 . .

   
   

   Clearly the display of the seal in Respondent's office is a statement which is disseminated before the public and which is misleading and deceptive.

   Therefore, Respondent, by displaying this seal in his chiropractic office is in violation of section 460.413 (1)(d) and Rule 21D-15.01, Florida Administrative Code. Further, Respondent, in displaying the seal of his self-ordained title, is guilty of making misleading deceptive and untrue representations in the practice of chiropractic, in violation of section 460.4l3(1)(1), Florida Statutes.

   
   

5. The Board, based on its conclusions in paragraphs 2 and 3 above, rejects the hearing officer's recommendation.

WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent is found guilty of violating section 460.413(1)(a) and (1), Florida Statutes, and Rule 21D- l5.0l, Florida Administrative Code, and is reprimanded. Respondent is further admonished against the continued use, in any fashion, of the title "Chiropractic Adjustor General of the United States

DONE AND ORDERED this 6th day of January, 1982.

Harold P. Smith, D.C. Vice-Chairman

Board of Chiropractic

Docket for Case No: 81-001191

Orders for Case No: 81-001191