STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) CHIROPRACTIC MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 07-3513PL

)

FRANCIS J. FALOWSKI, D.C., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 31, 2007, by video teleconference, with the parties appearing in Fort Lauderdale, Florida, before Patricia M. Hart, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Cecelia D. Jefferson, Esquire

Tobey Schultz, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: Neil G. Garfield, Esquire

470 South Carpenter Road Titusville, Florida 32796

STATEMENT OF THE ISSUE

Whether the Respondent committed the violation alleged in the Administrative Complaint issued October 2, 2006, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On October 2, 2006, the Department of Health ("Department") issued an Administrative Complaint charging that Francis J. Falowski, D.C., had violated Section 460.413(1)(t), Florida Statutes (2005),1 which prohibits "practicing or offering to practice beyond the scope permitted by law," by advertising that his office provided "licensed acupuncture" services when he was not licensed to practice acupuncture and there was no licensed acupuncturist practicing in Dr. Falowski's office. Dr. Falowski timely requested a formal administrative hearing, and the Department forwarded the matter to the Division of Administrative Hearings for assignment of an administrative law judge.

On September 29, 2006, the Department had issued a two- count Amended Administrative Complaint against Dr. Falowski, which was also forwarded to the Division of Administrative Hearings for assignment of an administrative law judge and assigned DOAH Case No. 07-3514PL. On September 11, 2007, the Department filed a Motion to Consolidate in which it requested that DOAH Case No. 07-3513PL and DOAH Case No. 07-3514PL be

consolidated for hearing. The motion was granted in an order entered September 24, 2007. These cases were originally assigned to Administrative Law Judge Larry J. Sartin, but were transferred to Administrative Law Judge Patricia M. Hart for hearing. After several continuances, the final hearing was held on October 31, 2007.2

At the hearing, the Department presented the testimony of Richard Freiberg, Ann Broome, and Vicki Grant; Petitioner's Exhibits 1 through 4 were offered and received into evidence. Dr. Falowski did not present the testimony of any witnesses, nor did he offer any exhibits into evidence.

On October 11, 2007, Dr. Falowski filed Respondent's Motion for this Court to Take Judicial Notice in the consolidated cases, in which he requested that official recognition be taken of portions of the Florida Health Care Atlases purportedly published during the 1980's. On October 18, 2007, a telephone hearing was held on a number of motions filed in the consolidated cases. During that hearing, the Department made an ore tenus motion for official recognition of the Final Order entered in Sullivan v. Department of Health, Board of

Chiropractic Medicine, DOAH Case No. 02-4916, (Florida DOAH October 5, 2003). Administrative Law Judge Van Laningham entered an order on October 19, 2007, granting official recognition to portions of the Florida Health Care Atlases,

copies of which were to be provided, and to the Final Order in Sullivan. On November 13, 2007, Dr. Falowski filed Respondent's Notice of Filing, to which were attached excerpts from the 1987, 1989, and 1990 editions of the Florida Health Care Atlas; official recognition is, therefore, taken of these excerpts.

On October 22, 2007, the Petitioner filed Petitioner's Motion for Official Recognition in the consolidated cases, in which it requested official recognition of the final orders entered by the Department in Department of Health Case

Nos. 199208590, 199406133, 199316255, and 110568. Official

recognition was taken at the final hearing on October 31, 2007, of these final orders, subject to the limitation that these orders would be relevant only to the appropriate penalty to be imposed on Dr. Falowski if he were found to have committed the violations alleged in the Administrative Complaint and Amended Administrative Complaint in the instant cases.

On October 26, 2007, the Department filed Petitioner's Second Motion for Official Recognition in the consolidated cases, in which it requested official recognition of documents excerpted by the Department from Dr. Falowski's licensure file; of Sections 460.403(9)(c)1. and 460.406, Florida Statutes; and of Florida Administrative Code Rules 64B2-11.0012, 64B2- 15.001(2)(a) and (e), and 64B2-17.003.3 The motion was granted

at the final hearing, and official recognition is taken of the statutes and rules identified in the motion.

At the final hearing, counsel for Dr. Falowski made an ore tenus motion to dismiss the Administrative Complaint and the Amended Administrative Complaint in these consolidated cases, together with a motion to strike, and a motion for contempt.

The undersigned requested that Dr. Falowski file a written motion subsequent to the hearing. Dr. Falowski accordingly filed Respondent's Motion to Dismiss, Motion to Strike, and Motion for Contempt, and the Petitioner filed a response in opposition to the motion. On January 18, 2008, an order was entered on denying all three of the motions.

The one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on December 12, 2007.

The parties had requested at the final hearing that they be permitted to file their proposed recommended orders on

January 31, 2008. On January 24, 2008, counsel for Dr. Falowski filed a Motion by Counsel to Withdraw. The Department filed a response in opposition to the motion; Dr. Falowski did not file a response within the time specified in Florida Administrative Code Rule 106.204(1). An order was entered on February 12, 2008, granting Neil F. Garfield leave to withdrawal and granting an extension of time to Dr. Falowski to file his proposed recommended order. The Department timely filed its Proposed

Recommended Order, which has been considered in the preparation of this Recommended Order. Dr. Falowski failed to file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department is the state agency responsible for investigating and prosecuting complaints against persons holding licenses in the health professions and occupations, including chiropractic physicians. See § 456.073, Fla. Stat. The Board of Chiropractic Medicine ("Board") is the entity responsible for imposing penalties against chiropractic physicians for violations of Section 460.413(1), Florida Statutes.

   See § 460.413(2), Fla. Stat.

   
   

2. At the times material to this proceeding, Dr. Falowski was a chiropractic physician licensed to practice chiropractic medicine in Florida, having been issued license number CH 5108. Dr. Falowski was first certified in Florida to practice chiropractic medicine in 1986. Dr. Falowski also is certified to administer propriety drugs.

3. At the times material to this proceeding, Dr. Falowski did business as Rainbow Rehabilitation, and his address of

   record was 4201 North State Road 7, Lauderdale Lakes, Florida 33319.

4. On or about August 25, 2997, Dr. Falowski submitted an application for acupuncture certification to the Department. He paid a fee and was certified to take the acupuncture certification examination. His application reflects that he completed 105 hours of acupuncture training at the University of Miami.

5. Dr. Falowski took the acupuncture certification examination in November 1997, but he did not pass the examination.

6. On or about April 15, 1998, Dr. Falowski submitted a second application for acupuncture certification to the Department. He paid a fee and was again certified to take the acupuncture certification examination. His application reflects that he completed acupuncture training at the University of Miami.

7. Dr. Falowski took the acupuncture certification examination in May 1998 and attained a passing score.

8. On or about July 7, 1998, the Department mailed an Examination Grade Report to Dr. Falowski, advising him that he had passed the chiropractic certification examination for acupuncture. A Request for Registration Form for the Board of Chiropractic Medicine was included with the Examination Grade

   Report, and the instructions stated that the form and a check or money order must be returned to the Department within 45 days.

   The form listed a $100.00 fee for the Chiropractic Acupuncture Certification.

9. There is nothing in the records of the Department indicating that it received the Request for Registration Form or check in the amount of $100.00 from Dr. Falowski, nor do the records reflect that Dr. Falowski has been issued an acupuncture certification.4

10. On or about December 28, 2005, writing was observed on the window of the Rainbow Rehabilitation office which stated:

    WE DO

    • PHYSICALS &

    • BLOOD WORK

    • LICENSED ACUPUNCTURE

    • EKG

      
      

      No acupuncture license number was listed on the window.

      
      

11. Dr. Falowski intended to perform acupuncture treatments for any member of the public who requested these treatments at Rainbow Rehabilitation.5

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of

    the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2007).

13. In its Amended Administrative Complaint, the Department seeks to impose penalties against Dr. Whitney that include suspension or revocation of his license and/or the imposition of an administrative fine. Therefore, it has the burden of proving by clear and convincing evidence that

    Dr. Whitney committed the violation alleged in the Amended Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

14. The Department has charged that Dr. Falowski violated Section 460.413(1)(t), Florida Statutes, which provides:

    (1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

    
    

    * * *

    
    

    (t) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that she or he is not competent to perform.

    
    

15. Section 460.403, Florida Statutes, provides in pertinent part:

    (5) "Chiropractic physician" means any person licensed to practice chiropractic medicine pursuant to this chapter.

    
    

    * * *

    
    

    (9)(a) "Practice of chiropractic medicine" means a noncombative principle and practice consisting of the science, philosophy, and art of the adjustment, manipulation, and treatment of the human body in which vertebral subluxations and other malpositioned articulations and structures that are interfering with the normal generation, transmission, and expression of nerve impulse between the brain, organs, and tissue cells of the body, thereby causing disease, are adjusted, manipulated, or treated, thus restoring the normal flow of nerve impulse which produces normal function and consequent health by chiropractic physicians using specific chiropractic adjustment or manipulation techniques taught in chiropractic colleges accredited by the Council on Chiropractic Education. No person other than a licensed chiropractic physician may render chiropractic services, chiropractic adjustments, or chiropractic manipulations.

    
    

    * * *

    
    

    (c)1. Chiropractic physicians may adjust, manipulate, or treat the human body by manual, mechanical, electrical, or natural methods; by the use of physical means or physiotherapy, including light, heat, water, or exercise; by the use of acupuncture; or by the administration of foods, food concentrates, food extracts, and items for which a prescription is not required and may apply first aid and hygiene, . . .

    
    

    * * *

    
    

    (f) Any chiropractic physician who has complied with the provisions of this chapter

    is authorized to analyze and diagnose abnormal bodily functions and to adjust the physical representative of the primary cause of disease as is herein defined and provided. As an incident to the care of the sick, chiropractic physicians may advise and instruct patients in all matters pertaining to hygiene and sanitary measures as taught and approved by recognized chiropractic schools and colleges. A chiropractic physician may not use acupuncture until certified by the board [of Chiropractic Medicine]. Certification shall be granted to chiropractic physicians who have satisfactorily completed the required coursework in acupuncture and after successful passage of an appropriate examination as administered by the department. The required coursework shall have been provided by a college or university which is recognized by an accrediting agency approved by the United States Department of Education.

    
    

    (Emphasis added.)

    
    

16. Based on the findings of fact herein, the Department has proven by clear and convincing evidence that Dr. Falowski was not certified to use acupuncture. Even though he satisfactorily completed the required coursework and passed the examination, he failed to submit a Request for Registration and a check or money order for the required $100.00 fee. He, therefore, never completed all of the steps necessary for certification even though he was qualified to be certified in 1998. Because he was not certified by the Board to use acupuncture in his treatments, the Department has met its burden of proving by clear and convincing evidence that Dr. Falowski

    practiced or offered to practice beyond the scope permitted by law, in violation of Section 460.413(1)(t), Florida Statutes.

17. Section 456.072(2), Florida Statutes, provides as follows:

    1. When the board, or the department when there is no board, finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection 1) or a violation of the applicable practice act which occurred prior to obtaining a license, it may enter an order imposing one or more of the following penalties:

       
       

       1. Refusal to certify, or to certify with restrictions, an application for a license.

          
          

       2. Suspension or permanent revocation of a license.

          
          

       3. Restriction of practice or license, including, but not limited to, restricting the licensee from practicing in certain settings, restricting the licensee to work only under designated conditions or in certain settings, restricting the licensee from performing or providing designated clinical and administrative services, restricting the licensee from practicing more than a designated number of hours, or any other restriction found to be necessary for the protection of the public health, safety, and welfare.

          
          

       4. Imposition of an administrative fine not to exceed $10,000 for each count or separate offense. If the violation is for fraud or making a false or fraudulent representation, the board, or the department if there is no board, must impose a fine of

          $10,000 per count or offense.

       5. Issuance of a reprimand or letter of concern.

          
          

       6. Placement of the licensee on probation for a period of time and subject to such conditions as the board, or the department when there is no board, may specify. Those conditions may include, but are not limited to, requiring the licensee to undergo treatment, attend continuing education courses, submit to be reexamined, work under the supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found.

          
          

       7. Corrective action.

          
          

       8. Imposition of an administrative fine in accordance with s. 381.0261 for violations regarding patient rights.

          
          

       9. Refund of fees billed and collected from the patient or a third party on behalf of the patient.

          
          

       10. Requirement that the practitioner undergo remedial education.

    
    

    In determining what action is appropriate, the board, or department when there is no board, must first consider what sanctions are necessary to protect the public or to compensate the patient. Only after those sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the practitioner. All costs associated with compliance with orders issued under this subsection are the obligation of the practitioner.

    
    

18. Florida Administrative Code Rule 64B2-16.003 sets forth Guidelines for the Disposition of Disciplinary Cases and provides in pertinent part:

    (1) When the Board finds that an applicant or licensee whom it regulates pursuant to Chapter 460, F.S., has violated the below- listed provisions, it shall issue a final order imposing appropriate penalties, for each count, as set forth in

    Section 456.072(2), F.S., within the ranges recommended in the following disciplinary guidelines. The identification of offenses are descriptive only; the full language of each statutory provision cited must be considered in order to determine the conduct included. For all persons subject to this rule, conditions of probation may be required following any period of suspension of license and probation will require compliance with conditions as set forth in subsection (3). . . . In addition to any other discipline imposed, the Board shall assess the actual costs related to the investigation and prosecution of a case. In addition to or in lieu of any guideline penalties provided herein, if the violation is for fraud or making a false or fraudulent representation, the Board shall impose a fine of $ 10,000 per count or offense.

    
    

    * * *

    
    

    (bb) Section 460.413(1)(t), F.S.: practicing beyond the scope permitted or competent to perform - from a minimum fine of $2,500 and/or one year of probation, up to a maximum of suspension of license for two years followed by probation and a fine of $10,000. After the first offense, up to a maximum fine of $ 10,000 and/or revocation.

    
    

19. Florida Administrative Code Rule 64B2-16.003(2) provides as follows:

    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 danger to the public;

       
       

    2. The number of unrelated and distinct offenses;

       
       

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

       
       

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

       
       

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

       
       

    6. Prior discipline imposed upon the licensee;

       
       

    7. The deterrent effect of the penalty imposed;

       
       

    8. The effect of the penalty upon the licensee's livelihood;

       
       

    9. Rehabilitation efforts of the licensee including remorse, restitution, and corrective actions;

       
       

    10. Efforts of the licensee to correct or stop violations or failure of the licensee to correct or stop violations;

        
        

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

        
        

    12. The actual negligence of the licensee pertaining to any violation;

        
        

    13. Any other mitigating or aggravating circumstances.

20. Dr. Falowski has been the subject of four previous disciplinary actions, all resolved by settlement stipulations incorporated into final orders. The first Final Order and Settlement Stipulation, issued in 1990, resolved the issue presented in an Administrative Complaint dated April 18, 1988, in which Dr. Falowski was charged with the inability to practice chiropractic medicine safely due to his treatment for drug abuse. Dr. Falowski did not admit or deny the allegations in the Administrative Complaint but, pursuant to the terms of the Settlement Stipulation incorporated into the Final Order,

    Dr. Falowski agreed to comply with the guidelines of the Physicians Recovery Network ("PRN").

21. A single Final Order and Settlement Stipulation issued in 1995 disposed of three Administrative Complaints: In the first Administrative Complaint, issued in 1993, Dr. Falowski was charged with pleading guilty to possession of cocaine and/or possession of drug paraphernalia, a crime directly relating to the practice of chiropractic medicine; in the second Administrative Complaint, issued in 1994, Dr. Falowski was charged with holding himself out as an "M.D.", when the school he attended had not been accredited by the United States Department of Education; and in the third Administrative Complaint, issued in 1994, Dr. Falowski was charged with failure to adhere to the provisions of the Settlement Stipulation

    incorporated into the above-referenced Final Order issued by the Board in 1990. Dr. Falowski did not admit or deny the allegations in these Administrative Complaints, but, pursuant to the Settlement Stipulation incorporated into the Final Order,

    (1) he agreed to an evaluation by the PRN, to enter into an advocacy contract with the PRN, if appropriate, and to participate in PRN or comply with any contract he might enter into with the PRN; and (2) he was placed on probation for five years, subject to a number of conditions imposed by the Board.

22. With respect to the danger to the public, the Department did not prove that Dr. Falowski actually treated a patient with acupuncture, and, although treatment by acupuncture of an uncertified chiropractic physician could pose a danger to the public, it is undisputed that Dr. Falowski had satisfied all of the requirements for certification to treat patients with acupuncture; he simply failed to send in the Request for Registration Form and the $100.00 fee. Accordingly, while

    Dr. Falowski was practicing beyond the scope permitted by law, he was not, on the record in this case, incompetent to treat by acupuncture.

23. Even though Dr. Falowski has been the subject of previous disciplinary actions, none of these disciplinary actions has involved a violation of Section 460.413(1)(t),

    Florida Statutes, and the last Administrative Complaint was filed against Dr. Falowski in 1994.

24. Finally, Dr. Falowski has also been charged in DOAH Case No. 07-3514PL with having engaged in false, deceptive, or misleading advertising, in violation of Sections 460.413(1)(d) and 460.413(1)(ff), Florida Statutes. In a Recommended Order entered this date, the undersigned has recommended that the Board enter a final order dismissing the charges against

    Dr. Falowski in DOAH Case No. 07-3514PL.

    
    

25. Given the penalty range set forth in Florida Administrative Code Rule 64B2-16.003(1)(bb) for a violation of Section 460.413(1)(t), Florida Statutes, and in consideration of the mitigating and aggravating factors set forth in Administrative Code Rule 64B2-16.003(2), the penalty that should be imposed is an administrative fine in the amount of $5,000.00 and probation for a period of two years.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order

1. Finding that Francis J. Falowski, D.C., offered to practice acupuncture when he was not certified to do so, in violation of Section 460.413(1)(t);

2. Imposing an administrative fine against Dr. Falowski in the amount of $5,000.00; and

3. Placing Dr. Falowski on probation for a period of two years, under such terms and conditions as the Board deems appropriate.

DONE AND ENTERED this 20th day of March, 2008, in Tallahassee, Leon County, Florida.

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 2008.

ENDNOTES

1/ All references herein to the Florida Statutes are to the 2005 edition unless indicated otherwise.

2/ In an order entered March 17, 2008, DOAH Case No. 07-3513PL and DOAH Case No. 07-3514PL were severed and separate Recommended Orders have been issued in the cases.

3/ It is noted that the Department attached to its second motion for official recognition copies of statutes and rules not identified in the motion and failed to attach a copy of

Section 460.406, Florida Statutes. Those statutes and rules attached to the motion but not included in the request have not

been officially recognized. Section 460.406, Florida Statutes, has, however, been officially recognized because it was included in the request.

4/ This finding of fact is based on the testimony of Ann Broome, an employee of the Board who is in charge of processing applications and keeping licensure files for chiropractic physicians. At the Department's request, official recognition was taken of excerpts from Dr. Falowski's licensure file, which counsel for the Department indicated were those documents relevant to Dr. Falowski's lack of acupuncture certification.

Dr. Falowski did not present any evidence to establish that he had sent the registration fee and the Request for Registration Form to the Department. The testimony of Ms. Broome regarding the lack of certification is, therefore, accepted.

5/ This finding of fact is based on a stipulation contained in the Respondent's First Amended Pre Trial Stipulation: "Rairforest [sic] Rehabilitation directed or permitted someone in the office to put up a sign and the sign was an advertisement of Dr. Falowski's services. Dr. Falowski intended the sign to encourage members of the public to seek acupuncture services in his office and to receive said treatment from him."

COPIES FURNISHED:

Cecelia D. Jefferson, Esquire Tobey Schultz, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

Francis J. Falowski, D.C. 4700 North State Road 7 Building A, Suite 102

Lauderdale Lakes, Florida 33319

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Dr. Ana M. Viamonte Ros, Secretary Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health

4052 Bald Cypress Way, Bin CO7 Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended 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: 07-003513PL

Orders for Case No: 07-003513PL