STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0986

)

DR. JORDAN BRESLAW, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 24, 1989, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Cynthia Shaw, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Jordan Breslaw

201 North State Road 7 Margate, Florida 33063

STATEMENT OF THE ISSUES

1. Whether Respondent committed the offenses described in the administrative complaint filed against him?

   
   

2. If so, what penalties should be imposed by the Board of Chiropractic?

PRELIMINARY STATEMENT

On November 16, 1988, the Department of Professional Regulation filed an administrative complaint against Respondent, a chiropractor licensed to practice in the State of Florida. The complaint alleges that Respondent placed a newspaper advertisement which (1) "did not contain a seventy two (72) hour disclaimer which is required by Chapter 455.24, Florida Statutes, [where] free or discounted services [are advertised]", and (2) "did not list usual fees for the free or discounted services" in violation of Section 460.413(1)(ff), Florida Statutes. Respondent requested a formal hearing on the allegations set forth in the complaint. On February 28, 1989, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the hearing that Respondent had requested.

Respondent was the only witness to testify at hearing. He admitted that he was responsible for the newspaper advertisement referenced in the administrative complaint, but denies that the advertisement was intended to constitute an offer of free or discounted chiropractic services. A copy of the advertisement was offered into evidence by the Department and it was received without objection.

No other exhibits were offered by either party; the Department, however, requested that the Hearing Officer take official recognition of the following statutory and rule provisions: Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; Section 460.413, Florida Statutes; and Florida Administrative Code Rule 21D-16.003. There was no opposition to the request and it was granted.

The parties were advised at the close of the hearing that they had until ten days following the filing of the hearing transcript with the Division of Administrative Hearings to file their proposed recommended orders or written arguments. On June 5, 1989, Respondent filed his "Final Comment" in this matter. The document consists primarily of argument; however, it does contain some assertions that are factual in nature, to wit: the assertions regarding his professional record and background and his membership in chiropractic and philanthropic associations and organizations. Accompanying Respondent's "Final Comment" was a copy of his "Curriculum Vitae," which provides further information about Respondent. Because no evidence was presented at hearing as to Respondent's professional record and background, the associations and organizations to which he belongs, or the other matters covered by his "Curriculum Vitae," no findings of fact have been made regarding these matters.

The Department filed its proposed recommended order on June 26, 1989, ten days after the hearing transcript had been file. The proposed recommended order contains proposed findings of fact and conclusions of law as well as a proposal that the Hearing Officer recommend that Respondent be fined $1,000 and placed on three months probation for having committed the offenses charged in the administrative complaint. All of the findings of fact proposed by the Department have been adopted and incorporated in substance in this Recommended Order.

FINDINGS OF FACT

Based upon the evidence received at hearing, the Hearing Officer makes the following findings of fact:

1. Dr. Jordan Breslaw is now, and was in 1987, licensed to practice chiropractic in the State of Florida.

   
   

2. Dr. Breslaw is the owner of Jordan Chiropractic Center. The Center is located in Margate, Florida.

   
   

3. On or about November 11, 1987, Dr. Breslaw placed an advertisement in the Quad City News announcing that the Jordan Chiropractic Center would be hosting a "Community Appreciation Day" at its location in Margate on November 16, 1987. The advertisement contained the following representation:

   
   

   As an act of Community Service the Jordan Chiropractic Center will DONATE ALL SERVICES to anyone who wants to experience the benefits of Chiropractic. Everyone Welcome!

   [emphasis in original.] Appearing beneath this statement were drawings of gift- wrapped boxes and balloons. Next to these drawings were the following words in italics: "Entertainment," "Door Prizes," "Food and Refreshments," and "Meet The Merchants."

   
   

4. The advertisement did not set forth the usual fees and charges for chiropractic services rendered at the Jordan Chiropractic Center; nor did it state that any patient or other person responsible for payment had the right to refuse to pay, cancel payment, or be reimbursed for payment for any service, examination, or treatment which was performed as a result of, and within 72 hours of responding to, the advertisement.

   
   

5. Dr. Breslaw examined and treated patients at the Jordan Chiropractic Center on Monday, November 16, 1987. He charged these patients his usual fee for these services.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Board of Chiropractic is statutorily empowered to discipline chiropractors licensed to practice in the State of Florida who commit any of the acts proscribed by Section 460.413(1), Florida Statutes.

   
   

7. These proscribed acts include "[f]ailing to perform any statutory or legal obligation placed upon a licensed chiropractic physician." Section 460.413(1)(i), Fla. Stat. One such statutory obligation is imposed by Section 455.24, Florida Statutes, which provides as follows:

   
   

   In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care provider licensed under chapter 458, chapter 459, chapter 460, chapter

   461, chapter 462, chapter 463, chapter

   464, chapter 466, or chapter 474, the following statement shall appear in capital letters clearly distinguishable from the rest of the text: THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY SERVICE, EXAMINATION, OR TREATMENT WHICH IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION OR TREATMENT.

   However, the required statement shall not be necessary as an accompaniment to an advertisement of a licensed health care provider defined by this section if the advertisement appears in a classified directory the primary purpose of which is to provide products and services at free, reduced, or discounted price to persons 60 years of age or older and in which the statement appears in at least one place.

   Inasmuch as chiropractors are licensed pursuant to Chapter 460, Florida Statutes, they must comply with the requirements of Section 455.24, Florida Statutes.

   
   

8. Among the other acts prohibited by Section 460.413, Florida Statutes, is "[a]dvertising any reduced or discounted fees for services or treatments, or advertising any free services or treatments, without prominently stating in the advertisement the usual fee of the licensee for the service or treatment which is the subject of the discount, rebate, or free offering." Section 460.413(1)(ff), Fla. Stat.

   
   

9. The administrative complaint filed against Dr. Breslaw alleges that he violated Section 460.413(1)(i) and (ff), Florida Statutes, by placing the above- described advertisement in the Quad City News on or around November 11, 1987. Dr. Breslaw concedes that he was the one responsible for the placement of the advertisement. He contends, however, that the advertisement was not intended to constitute an offering of free or discounted chiropractic services and therefore it did not have to contain either the "72-hour disclaimer" required by Section 455.24, Florida Statutes, or information regarding his regular fees and charges for such services. According to Dr. Breslaw, although the advertisement represented that on November 16, 1987, the Jordan Chiropractic Center would "DONATE ALL SERVICES to anyone who wants to experience the benefits of Chiropractic," he did not mean to suggest by the advertisement that anything other than "Entertainment," "Food and Refreshments," "Door Prizes," and the opportunity to "Meet the Merchants" would be provided to patients free of charge on that date.

   
   

10. Whether he intended to or not, Dr. Breslaw conveyed the clear and unmistakable message in his advertisement that those who came to the Jordan Chiropractic Center on November 16, 1987, would receive free chiropractic services. He therefore was obliged to include in the advertisement the "72-hour disclaimer" required by Section 455.24, Florida Statutes, and a statement describing his usual charges for these free services. His failure to do so constituted violations of Section 460.413(1)(i), Florida Statutes, and Section 460.413(1)(ff), Florida Statutes, as charged by the Department of Professional Regulation. Accordingly, there is cause for the Board of Chiropractic to take disciplinary action against Dr. Breslaw.

    
    

11. Section 460.413(2), Florida Statutes, authorizes the Board of Chiropractic to impose one or more of the following penalties for the commission of any prohibited act by a licensed chiropractor: license revocation; license suspension; an administrative fine not to exceed $1,000 for each count or separate offense; issuance of a reprimand; probation for such time and on such conditions as the Board may deem appropriate, "including requiring the chiropractic physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another chiropractic physician."

    
    

12. Before determining which of these penalties should be imposed in the instant case, it is necessary to consult Chapter 21D-16, Florida Administrative Code, which contains the Board of Chiropractic's disciplinary guidelines. Cf. Williams v. Department of Transportation 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

13. Florida Administrative Code Rule 21D-16.003 provides in pertinent part:

    
    

    1. When the Board finds an applicant or licensee whom it regulates pursuant to Chapter 460, Florida Statutes, has

       violated the below-listed provisions, it shall issue a final order imposing appropriate penalties, for each count, within the ranges recommended in the following disciplinary guidelines:

       * * *

       (nn) 460.413(1)(ff): from a minimum of an administrative fine of $250, up to a maximum of six (6) months probation;

       * * *

       (rr) 455.24: from a minimum of an administrative fine of $500 up to a maximum of one (1) year probation.

       * * *

    2. The Board may take into consideration the following factors in determining the appropriate disciplinary action to be imposed and in going outside of the disciplinary guidelines:

       1. the severity of the offense;

       2. the danger to the public;

       3. the number of specific offenses;

       4. the actual damage, physical or otherwise, to the patient(s);

       5. the length of time since the date of the last violation(s);

       6. the length of time the licensee has practiced his or her profession;

       7. prior discipline imposed upon the licensee;

       8. the deterrent effect of the penalty imposed;

       9. the effect of the penalty upon the licensee's livelihood;

       10. rehabilitation efforts of the licensee;

       11. efforts of the licensee to correct or stop violations or failure of the licensee to correct or stop violations;

       12. related violations against the licensee in another state, including findings of guilt or innocence, penalties imposed and penalties served;

       13. the actual negligence of the licensee pertaining to any violation;

       14. any other mitigating or aggravating circumstances.

    3. Any or all of the following conditions may be imposed as terms of probation:

       1. restitution of the cost of

          probation;

       2. restitution to patient(s) or third- party payor(s);

       3. payment of fine(s);

       4. consent to Department access to all business records;

       5. fulfilling continuing education requirements;

       6. consent to indirect or direct supervision of practice by Board- approved sponsor;

       consent to restrictions on advertising;

       (f) consent to restriction of practice, including hours, days or type of practice;

       1. consent to disallowance of sponsorship of trainees;

       2. submission of reports by licensee and consent to submission of reports by sponsor and/or employer or helping professional;

       3. consent to urine and blood testing;

       4. fulfilling community service requirement(s);

       5. other conditions as appropriate.

       
       

14. Having considered the facts of the instant case in light of the provisions of Chapter 21D-16, Florida Administrative Code, it is the view of the Hearing Officer that the appropriate penalty in the instant case is an administrative fine of $1,000 and three months probation during which Dr. Breslaw shall submit to the Board or its designee for prior approval all advertisements concerning his practice.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Board of Chiropractic enter a final order finding Dr.

Jordan Breslaw guilty of the offenses charged in the administrative complaint and imposing an administrative fine of $1,000 and placing him on probation for three months, as described above, for his transgressions.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of June, 1989.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1989.

COPIES FURNISHED:

Cynthia Shaw, Esquire Department of Professional Regulation

1940 North Monroe Street Suit 60

Tallahassee, Florida 32399-0792

Dr. Jordan Breslaw

201 North State Road 7 Margate, Florida 33063

Pat Guilford Executive Director Board of Chiropractic

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-000986

Orders for Case No: 89-000986