STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) CASE NO. 89-7036

)

CLIFFORD FRUITHANDLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was scheduled in this cause for January 14, 1991. As set forth below, prior to the hearing date, the parties reached a stipulation as to the facts in this case. However, rather than dismissing the proceeding, both parties requested the Hearing Officer to consider the stipulated facts and enter a Recommended Order, including conclusions of law and a recommended penalty, for consideration by the Board of Chiropractic Examiners. This Recommended Order is entered pursuant to that request.

APPEARANCES

For Petitioner: Michael A. Mone, Esquire

Senior Attorney

Department of Professional Regulation

1940 N. Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Roger W. Calton

Qualified Legal Representative 30131 Town Center Drive

Suite 177

Laguna Niguel, CA. 92677-2040 STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent Clifford Fruithandler's license to practice chiropractic should be disciplined for the alleged violation of Section 460.413(1)(d) as set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

In an Administrative Complaint dated June 30, 1988, the Petitioner, the Florida Department of Professional Regulation, charged the Respondent, Clifford Fruithandler, a licensed chiropractor, with violating Section 460.413(1)(d), Florida Statutes, as a result of false, deceptive or misleading advertising.

The Respondent denied the allegations of the Administrative Complaint and timely requested a hearing on the charges. By letter dated December 19, 1989, the case was referred to the Division of Administrative Hearings which noticed a formal hearing pursuant to Section 120.57(1), Florida Statutes.

On July 9, 1990, the Respondent filed a Motion To Dismiss the Administrative Complaint. That Motion argued that the case should be dismissed because the complaint was not properly initiated and prosecuted. On July 11, 1990, Petitioner filed Petitioner's Response to Respondent's Motion To Dismiss. A telephone conference hearing was held in connection with the Motion on July 17, 1990. On July 17, 1990, Petitioner also filed a Motion For Sanctions. That Motion was not filed in compliance with the provisions of Rule 22I-6.019.

During the telephone conference hearing, the parties agreed that there did not appear to be any disputed issues of fact in this case. However, the parties requested the issuance of a Recommended Order regarding the legal issues involved in this case and the penalty to be imposed, if any, in connection with the allegations in the Administrative Complaint. As set forth in an Order entered on July 18, 1990, the parties were instructed to submit stipulated facts and proposed recommended orders to be considered in connection with the entry of a Recommended Order.

Pursuant to the July 18 Order, both parties submitted proposed recommended orders. However, Respondent's submittal included certain additional facts not included in the submittal prepared by Petitioner. Respondent contended that those facts were relevant to the issues raised in its previously filed Motion To Dismiss and Motion for Sanctions. Petitioner filed a Motion To Strike Respondent's Findings of Fact. Respondent filed Respondent's Suggestions In Opposition to Petitioner's Motion To Strike Respondent's Proposed Findings of Fact. As set forth in an Order entered on October 31, 1990, it was unclear whether there were any disputed issues of material fact regarding the additional proposed findings of facts submitted by Respondent. Therefore, the case was rescheduled for an evidentiary hearing to begin on January 14, 1991. Prior to that date, counsel for the Respondent advised that he was withdrawing the additional findings of fact included in his initial proposed recommended order. As set forth in an Order dated January 23, 1991, both parties advised the Hearing Officer that, as a result of Respondent's withdrawal of the additional findings of fact, there were no disputed issues of fact in this case and the parties renewed their request for entry of a Recommended Order.

As a result of the withdrawal of Respondent's additional proposed findings of fact, the record is incomplete with respect to the issues raised in the Motion To Dismiss. In any event, the Motion is legally insufficient and is hereby denied. In addition, Respondent's Motion For Sanctions is without merit and it is hereby denied.

Respondent has submitted a revised proposed recommended order. Respondent has also filed Suggestions In Support Of Respondent's Proposed Findings of Fact and Conclusions of Law. Both of those documents have been reviewed and considered in the preparation of this Recommended Order. Petitioner submitted a revised proposed recommended order which has also been reviewed and considered. Since the parties have stipulated to the facts, there are no proposed findings of fact which require a ruling.

FINDINGS OF FACT

The parties have stipulated to the facts in this case as follows:

1. The Respondent, Clifford Fruithandler, D.C. is and has been at all times material hereto [sic] the Administrative Complaint filed in DOAH Case No. 89-7036, (DPR Case Number 0094598) a chiropractor licensed in the State of Florida having been issued license number CH 0004149.

   
   

2. The Respondent's address is 5417 West Atlantic Boulevard, Margate, Florida 33063.

   
   

3. The Respondent, in his capacity as a licensed chiropractor caused to be published an advertisement in the North West Medical Guide in Broward County.

   
   

4. The advertisement was published on September 16, 1987.

   
   

5. The advertisement identified the Respondent's chiropractic practice as "Advanced Chiropractic and Pain Control Center".

   
   

6. The Respondent has been subject to discipline by the Board of Chiropractic in DPR Case Number 44292, 40777, and 28914.

   
   

7. On or about March, 4, 1988, the Department of Professional Regulation wrote a letter to Respondent which stated "Please be advised that the Department has received a complaint based on the enclosed advertisement. The allegations are: (1) Advance Chiropractic implies that you possess skills and or other attributes which are superior to other chiropractors..."

   
   

8. Within one week following the receipt of such letter by Respondent, the Respondent changed the name of the clinic and stopped using the name "Advanced Chiropractic and Pain Control".

   
   

9. Prior to the receipt of DPR's letter of March 4, 1988, Respondent had received no complaints from DPR, the Board of Chiropractic, or from any patient regarding the use of such name.

   
   

   CONCLUSIONS OF LAW

   
   

10. Since this case involves proposed disciplinary action against the Respondent's professional license, the Petitioner has the burden of establishing the basis for the proposed disciplinary action by clear and convincing evidence. See, Ferris v. Turlington, 510 So.2d 191 (Fla. 1987).

    
    

11. Pursuant to Section 460.413(2), the Board of Chiropractic Examiners is empowered to revoke, suspend, or otherwise discipline the license of any chiropractor in the State of Florida who is found guilty of any of the grounds enumerated in Section 460.413(1), Florida Statutes.

12. The Administrative Complaint charges Respondent with violating Section 460.413(1)(d). Section 460.413(1) provides in pertinent part:

    
    

    1. The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken:

       * * *

       1. False, deceptive or misleading advertising.

          
          

13. The Administrative Complaint also alleges that the advertisement published by Respondent was "misleading and/or deceptive, in violation of 210- 15.01, Florida Administrative Code, because the use of the word "advanced" conveys the impression that the chiropractor, disseminating the advertising or referred to therein possess qualifications, skills, or other attributes which are superior to other chiropractors." The reference to Rule 210-15.01, Florida Administrative Code, is apparently a typographical error and was intended to refer to Rule 21D-15.001 which provides:

    
    

    (2) No chiropractor shall disseminate or cause the dissemination of any

    advertisement or advertising which is in any way fraudulent, false, or deceptive or misleading. Any advertisement shall be deemed by the Board as fraudulent, false, deceptive or misleading if it:

    * * *

    1. Conveys the impression that the chiropractor or chiropractors disseminating the advertising or referred to therein, possess qualifications, skills, or other attributes which are superior to other chiropractors...

    
    

14. Respondent's use of the term "advanced" in connection with his advertising was misleading because it implies that Respondent has qualifications that exceed other licensed chiropractors. Therefore, Respondent has violated Section 460.413(1)(d). See, Department of Professional Regulation v. Powers, 8 FALR 2817, DOAH Case No. 86-0041.

    
    

15. Respondent argues that he should be found not guilty of the charges because there is no evidence that Respondent intentionally violated the statute and/or that any patients were misled by the advertisement. However, neither the statute nor the rule require proof of a deliberate intent to mislead on the part of the person placing the advertising. Furthermore, there is no requirement that any member of the public read, or rely on the advertisement.

    
    

16. There is no evidence that the ad was published more than one time. After Respondent was notified of Petitioner's objection to the ad, Respondent stopped using the ad. This action by Respondent is a factor to be considered in determining the appropriate penalty. Petitioner has suggested that an appropriate penalty would be the issuance of a reprimand and the assessment of "administrative costs" in the amount of $1000.00. Assessment of "administrative costs" is not one of the penalties available to the Board under Section 460.413(2), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Examiners enter a Final Order finding Respondent guilty of the allegations set forth in the Administrative Complaint, issuing a reprimand to the Respondent and assessing a fine against Respondent in the amount $750.00.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of April, 1991.

J. STEPHEN MENTON 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 29th day of April, 1991.

COPIES FURNISHED:

Michael A. Mone, Esquire Senior Attorney

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Roger W. Calton, Esquire Qualified Legal Representative 30131 Town Center Drive

Suite 177

Laguna Niguel, CA. 92677-2040

Patricia Guilford Executive Director Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filiing exceptions to this Recommendecd Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 89-007036

Orders for Case No: 89-007036