vs. ) CASE NO. 78-2550
WILLIAM J. MAYERS, D.C., )
Respondent. )
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.
For Respondent: Richard E. Gentry, Esquire
Petitioner, the Florida State Board of Chiropractic Examiners ("Petitioner") filed an Administrative Complaint dated December 7, 1978 against Respondent, William J. Mayers ("Respondent"), in three counts, alleging violations of Sections 460.13(3)(g)(1), 460.13(3)(h), 460.13(3)(m) and 460.13(3)(n), Florida Statutes, and Rule 21D-2.17, Florida Administrative Code. Respondent is charged in the complaint with engaging in deception, misrepresentation or fraud in the practice of chiropractic; engaging in conduct which is reasonably likely to deceive or defraud the public; and disseminating an advertisement which is fraudulent or false, or which has the capacity or tendency to deceive or mislead. Respondent requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, and, thereafter, in accordance with the provisions of Section 120.57(1)(b)(3), Florida Statutes, Petitioner requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the hearing in this cause. Final hearing was scheduled for September 6, 1979, by Notice of Hearing dated August 27, 1979.
At the final hearing, Petitioner offered no live testimony, but offered the depositions of Peggy Mills and Harry C. Mills, which were received, without objection, as Petitioner's Exhibits numbers 1 and 3, respectively. Petitioner also offered Petitioner's Exhibit number 2, which was received into evidence.
Respondent offered no testimony or exhibits for inclusion in the record. At the conclusion of the hearing, both Petitioner and Respondent waived the requirement
of Chapter 120, Florida Statutes, that the Recommended Order of the Hearing Officer be entered within 30 days from conclusion of the final hearing.
Respondent is a chiropractic physician licensed by the Florida State Board of Chiropractic Examiners, who practices in Cape Coral, Florida.
In the Sunday, August 6, 1978, edition of the Fort Myers News-Press there was published an advertisement which was headlined "Chiropracters Seek Research Volunteers." The text of this advertisement read as follows:
The International Pain Control Institute is presently engaged in what is the most extensive research program ever undertaken by the chiropractic profession. This research is directed toward determining the relationship between health problems and spinal misalignments and utilizes a screening process called Contour Analysis.
Volunteers are being sought for screening. Contour Analysis enables taking a three- dimensional picture (called Moire photography) of the topography of the surface of the
spine to detect spinal stress deviations. This analysis will be correlated with leg deficiency, patient symptomatology, and levels of spinal tenderness. An analysis
of this type can reveal such things as normal and abnormal stress paterns [sic], spinal curvature, muscle spasms, muscle imbalance, spinal distortions, and scoliosis.
This is a public service program for participating volunteers. The doctors are contributing their time, service, and facilities for the program.
Anyone wishing to be a volunteer may tele- phone participating doctors directly for information or an appointment.
In the above-quoted advertisement, readers were directed to contact the office of Respondent ". . . for free consultation, preliminary exam and Contour Analysis . . ." Peggy Mills, and her husband, Harry Mills, both of Cape Coral, Florida, read the above-quoted advertisement on or about August 6, 1978. Mr. and Mrs. Mills each made an appointment with Respondent for Contour Analysis on August 12, 1978. Mr. and Mrs. Mills both appeared at Respondent's office on August 12, 1978, and advised Respondent that they had come in response to his advertisement in the Fort Myers News-Press.
Respondent performed a Contour Analysis on both Mr. and Mrs. Mills. Respondent advised Mrs. Mills that the Contour Analysis indicated some physical problem in her neck, which was consistent with the medical history given by Mrs. Mills. Respondent advised Mrs. Mills that, since she had volunteered to participate in the Contour Analysis program, that he would perform an additional
X ray and would allow her three additional office visits for a charge of $75.00. Respondent also advised Mr. Mills that his condition did not appear to be as bad as that of his wife, and that Respondent would perform the same procedures on Mr. Mills for only $50.00. Respondent left Mr. and Mrs. Mills alone to discuss whether they wished to avail themselves of the proffered additional treatments. Mr. and Mrs. Mills apparently decided to proceed with treatment and, on August 12, 1978, gave to Respondent a post-dated check in the amount of $125 to cover the cost of that treatment. Payment in the form of the post-dated check was made after Mr. and Mrs. Mills had requested that they be allowed to pay Respondent for the continued treatments on an installment basis after each office visit.
Both Mr. and Mrs. Mills testified that they made their initial appointment in response to the advertisement assuming that the "research program" was a government funded program and that they would, in effect, be getting "something for nothing" in that they would obtain a diagnosis of their condition at no charge. In fact, Respondent performed a Contour Analysis on both Mr. and Mrs. Mills, showed them the photograph resulting from this analysis, discussed the photograph with them, and performed a gross physical examination, including palpation of their spines, on both of them. In addition, both Mr. and Mrs. Mills were furnished with research questionnaires which they filled out on their initial visit to Respondent's office. Respondent charged, and received, nothing from either Mr. or Mrs. Mills for the services performed during the August 12, 1978, visit.
In the course of discussing the results of the Contour Analysis with Mr. and Mrs. Mills, Respondent informed Mr. Mills that there appeared to be little that he could do for him, but that there was a possibility that he could help Mrs. Mills with her neck problems. Respondent further advised both Mr. and Mrs. Mills that for a total of $125, he would see both of them for an additional three office visits, the first of which would involve the taking of additional X rays, followed by a second visit for a thorough physical examination, and a final appointment to discuss additional findings and a recommended course of treatment, if necessary. Respondent also advised both Mr. and Mrs. Mills that he could refer them to another doctor should he conclude that he could do nothing further for them at the end of the third visit.
Although Mr. and Mrs. Mills agreed to pursue this course of treatment, and delivered a post-dated check to Respondent for $125, they apparently later had second thoughts about the advisability of receiving further treatment from Respondent. Mrs. Mills apparently checked with other chiropractic physicians and determined that she could obtain the type of diagnostic procedures offered by Respondent at a cheaper price. In fact, it appears from the evidence in the record in this proceeding that Mr. and Mrs. Mills' chief complaint was not that Respondent proposed to charge them for the three follow-up consultations, but that the amount which he proposed to charge was too high.
Mr. and Mrs. Mills stopped payment on the post-dated $125 check and declined to keep the appointments which they had initially scheduled with Respondent.
No testimony was offered in this proceeding regarding the existence, location or function of the International Pain Control Institute.
No testimony was offered by Petitioner in this proceeding to indicate that Petitioner gave notice to Respondent of facts which the agency contends warrant the revocation, suspension, annulment or withdrawal of his license to
practice chiropractic, or that Respondent was given an opportunity, prior to the filing of the Administrative Complaint in this cause, to demonstrate compliance with all lawful requirements for the retention of his license.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.
Section 460.13(3), Florida Statutes, insofar as here pertinent, provides as follows:
The board shall have the authority to discipline any applicant for license, or the holder of a license to practice as a chiropractic physician, who is
found guilty by the board of one or more of the following:
* * *
That he, in his capacity as a chiropractic physician, has:
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:
* * *
That he is in any way guilty of any deception, misrepresentation, or fraud in the practice of chiropractic;
That he is guilty of unprofessional conduct which is defined to mean: Any conduct which is reasonably likely to deceive or defraud the public . . .
That he has violated any of the pro- visions of this chapter, or any of the rules and regulations of the board.
Rule 21D-2.17, Florida Administrative Code, provides in pertinent part that:
1. . . . [T]he Board permits the dis- semination 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 chiro- practic 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 advertise- ment or advertising which is in any way fraudulent 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:
Contains a misrepresentation of facts; or
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
* * *
(d) Has the capacity or tendency to create false, or unjustified expectations of beneficial treatment [sic] or successful cures; or
* * *
(g) Is likely to appeal primarily to a lay person's fears, ignorance, or
anxieties regarding his state of health or physical well-being; or
* * *
(i) Contains any representations or claims, as to which the chiropractor, referred to in the advertising, fails to perform; or
* * *
(m) Contains any other representation, statement, or claim which has the capacity or tendency to mislead or deceive.
Section 120.60(5), Florida Statutes, provides that:
No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency pro- ceedings, the agency has given reasonable notice by certified mail or actual service to the licensee of facts or conduct which warrant the intended action and the licensee has been given n opportunity to show that he has complied with all lawful requirements for the retention of the license. If the agency is unable to obtain service by certified mail or by actual service, constructive service may be made in the same manner as is provided in chapter 49.
The Petitioner has failed to demonstrate by competent substantial evidence that Respondent, by means of the advertisement here in question, has violated any of the provisions of the above-quoted statutes or rules. In fact, the evidence in this proceeding admits of no other conclusion than that Respondent performed at no charge to Mr. and Mrs. Mills, all of the services described in the advertisement in question. It is clear from the evidence in
this proceeding, as outlined in the foregoing Findings of Fact, that Mr. and Mrs. Mills might have gone to Respondent's office hoping to receive more than the advertisement, on its face, offered to them. However, the feelings of Mr. and Mrs. Mills that the questioned advertisement contained misrepresentations, or that they felt themselves to be deceived, is not the measure by which Respondent's actions in publishing the advertisement should be judged. That measure, is, instead, contained in statutes enacted by the legislature and the above-quoted rule which has been promulgated by Petitioner to govern advertising by chiropractic physicians. The advertisement in question offered a "screening" at no charge by means of a "Contour Analysis", which is exactly what Mr. and Mrs. Mills received from Respondent. The fact that Respondent offered additional services at a fee which Mr. and Mrs. Mills at first consented to, but later determined to be unreasonable, does not bring the questioned advertisement into areas proscribed by the above-quoted provisions of Section 460.13, Florida Statutes, or Rule 21D-2.17, Florida Administrative Code.
Section 120.60(5), Florida Statutes, quoted above, requires an agency, in a proceeding such as that involved in the instant case, to give notice to a licensee prior to the filing of an administrative complaint for revocation, suspension, annulment, or withdrawal of his license, of facts which warrant the intended action. In addition, the agency is required by that statute to give a licensee an opportunity to demonstrate his compliance with all requirements of law for retention of his license.
The function of the procedure contemplated in Section 120.60(5), Florida Statutes, is to allow an agency and a licensee during the investigative stages preliminary to the "institution of agency proceedings" which phrase is construed herein to refer to the filing of the administrative complaint--to determine whether the facts underlying potential charges against a licensee are trivial or unfounded. See also, Section 460.133(d), Florida Statutes. The Legislature obviously intended by this requirement to avoid potential embarrassment to the licensee, and unnecessary expense to both the agency and the licensee attendant upon the filing of an administrative complaint which might, upon a simple explanation or exchange of information, prove to be groundless. Unlike the permissive nature of Section 460.133(d), Florida Statutes, the requirements of Section 120.60(5) , Florida Statutes, are mandatory and jurisdictional.
As indicated in the Findings of Fact section of this Recommended Order, no showing of compliance with the requirements of Section 120.60(5), Florida Statutes, was made by Petitioner in this proceeding.
Respondent first raised the issue of Petitioner's failure to comply with Section 120.60(5), Florida Statutes, in proposed findings of fact and conclusions of law, submitted to the Hearing Officer after the conclusion of the formal hearing. Accordingly, the Hearing Officer will treat the raising of this issue procedurally as a motion to dismiss the administrative complaint. Since the issue presented by Respondent is jurisdictional, it has been timely raised, and further, since it is meritorious, it should be granted. See, Florida Real Estate Commission v. Frost, 373 So.2d 939 (Fla. 4th DCA 1979).
That a Final Order he entered by the Florida State Board of Chiropractic Examiners dismissing the Administrative Complaint against Respondent in that the allegations of the Administrative Complaint have not been proven by substantial competent evidence, and that Petitioner has failed to demonstrate compliance with the provisions of Section 120.60(5), Florida Statutes.
RECOMMENDED this 14th day of November, 1979, in Tallahassee, Florida.
Paul Watson Lambert, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301
Richard E. Gentry, Esquire 3818 Del Prado Boulevard Cape Coral, Florida 33904
WILLIAM E. WILLIAMS
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
