Judges: LINDA M. RIGOT
Agency: Department of Health
Latest Update: Apr. 30, 1984
Summary: Administrative fine for misleading advertisement appealing to a person's fears and ignorance and posing a danger to the public.
82-2222STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, BOARD OF )
CHIROPRACTIC EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 82-2222
)
ROBERT ALLEN BACHER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 3, 1983, in Miami, Florida.
Petitioner Department of Professional Regulation, Board of Chiropractic Examiners was represented by Jerry Frances Carter, Esquire, Tallahassee, Florida, and Respondent Robert Allen Bacher was represented by Lawrence M. Malman, Esquire, Miami, Florida.
Petitioner filed an Administrative Complaint seeking to suspend, revoke or take other disciplinary action against Respondent as licensee and against his license as a chiropractic physician under the laws of the State of Florida.
Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination herein are whether Respondent is guilty of the charges contained in the Administrative Complaint and, if so, what disciplinary action should be taken, if any.
Petitioner presented the testimony of Robert S. Butler, Jr., D.C.; Kenneth
Lassiter, M.D.; and Thomas E. Hyde, D.C. Additionally, Petitioner's Exhibits numbered 1 and 2 were admitted in evidence.
The Respondent testified on his own behalf and presented the testimony of Michael F. Petrie, D.C.; Joyce Quintavalli; and Richard L. Hodish, D.C. Additionally, Respondent's Exhibits numbered 1 and 2 were admitted in evidence.
Both parties submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
FINDINGS OF FACT
At all times material here to, Respondent has been a chiropractic physician licensed under the laws of the State of Florida.
Respondent placed the following ad, which appeared in the Miami Herald newspaper on Sunday, November 8, 1981, only:
DRUGS? (note: A picture of Dr. is on the original document on file
HEART PROBLEMS with the Clerk's Office.) HEADACHES Dr. Bob Bacher DIABETES Director
HIGH BLOOD PRESSURE SKIN PROBLEMS
15.27 billion dollars spent in drug storeslast year. This does not include
other sources, such as hospitals, clinics, etc;
How can your lives be normal depending on drugs? To take a pill each day is dependency. Dependency is addiction. Pushed or prescribed you are an addict. Chiropractic can free you from drug dependency. Chiropractic finds the cause of sickness, corrects it, and allows the life within to heal the body. Come talk to us. We will tell you what you can do to get well and then it's up to you.
\ALL CASES ACCEPTED REGARDLESS OF ABILITY TO PAY/
\ /
We Accept:
FREE X-RAYS Workers Compensation
FOR MEDICARE PATIENTS Auto Accident Insurance
$50-$100 Value When Necessary! Group Health Insurance
Individual Health Insurance-
Family Plan
BACHER CHIROPRACTIC LIFE CENTER
9001 N.E. 2nd AVE.
756-LIFE CALL TODAY
(5433)
Some persons who have undergone chiropractic treatment and who have also suffered from the conditions listed in Respondent's advertisement have experienced, during the course of that treatment, some improvement in those conditions to the extent that some could reduce the medication taken for those conditions.
The conditions listed in the ad encompass broad categories of diseases and include subcategories of those diseases for which a person must take medication in order to live. In a number of the diseased states listed, the medications being taken are not optional but rather are life-saving.
The ad fails to distinguish among persons taking a daily multi-vitamin pill, persons requiring medication to remain alive due to some genetic defect, and persons addicted to illegal drugs for recreational purposes. The words "pill," "medication," and "drugs" are interchangeable only sometimes.
A person can take a pill each day without being dependent or addicted. The words "dependency" and "addiction" mean the same thing to some medical professionals only.
Many kinds of heart problems, headaches, diabetes, high blood pressure, and skin problems have never shown a response to chiropractic care alone, and there is no scientific or medical data showing that chiropractic treatment can curtail or eliminate the use of prescribed medication in all of the listed conditions.
The implication of the ad, read in its entirety, is that every person who has the listed conditions can be helped by chiropractic and can be taken off pills/drugs/medication.
Chiropractic does not have a high success rate of freeing people from drug dependency.
Respondent's advertisement has the ability to endanger the health of the public for two reasons. First, persons may cease taking life-sustaining medication simply because they have gone to a chiropractor. Second, in situations involving true addiction to certain drugs, it is necessary that any attempts by the person addicted to withdraw from use of that drug be made only under the supervision of a medical doctor.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).
Section 460.413(1)(d), Florida Statutes (1981), authorizes the Board of Chiropractic Examiners to take disciplinary action against a chiropractor who is guilty of false, deceptive or misleading advertising. Section 21D-15.01(2), Florida Administrative Code, provides that an advertisement shall be deemed by the Board to be false, deceptive or misleading if it:
(c) Creates false, or unjustified expectations of beneficial treatment or successful cures;
or
Is likely to appeal primarily to a lay person's fears, ignorance, or anxieties regarding his state of health or physical well-being; or
Fails to conspicuously identify the chiropractor or chiropractors referred to in the advertising as a chiropractor or chiropractors; . . .
Count I of the Administrative Complaint charges Respondent with violating Section 460.413(1)(d), Florida Statutes, and Section 21D-15.01(2)(f), Florida Administrative Code. Respondent's use of the words "drugs," "dependency," "addiction" and "addict" clearly appeal to a person's fears, ignorance or anxieties regarding his state of health or physical well-being. Nowhere in the ad is the word "medication" used, and no distinction is made between addiction and use of medication required by chronic or genetic conditions. Respondent's argument that the advertisement is simply an attempt to educate the public as to the nature of the science of chiropractic is
especially interesting, in that his ad does not indicate what the practice of chiropractic is but only points out the marvels of this undescribed technique. Although Respondent is correct that no lay testimony was presented to indicate that a person's fears, ignorance and anxieties had in fact been activated by reading Respondent's ad, Section 21D-15.01(2)(f), Florida Administrative Code, prohibits advertising which is even "likely to appeal primarily to a lay person's fears, ignorance, or anxieties." (Emphasis supplied.) Petitioner has proven the allegations contained in Count I of the Administrative Complaint.
Count II charges Respondent with violating Section 460.413(1)(d), Florida Statutes, and Section 21D-15.01(2)(c), Florida Administrative Code. Nowhere in Respondent's ad is there any indication that Respondent's promises of the miracles of chiropractic apply only in some cases and in varying degrees. Although both Petitioner's and Respondent's witnesses testified that chiropractic can decrease the need for medication in some of the kinds of conditions described in the ad, they also testified that chiropractic treatment has no success rate in the others. Semanticists, lawyers and other professionals who utilize language as a tool of their trade may enjoy debating whether the word "will" is synonymous with the word "can;" however, Respondent's advertisement did not appear in any professional or trade journals but rather was disseminated to the general public, most members of which have no interest in splitting definitional hairs on the precise meaning of will or can. As the words are generally used, there is no distinction. As the words appear in Respondent's advertisement, the entire context of the ad indicates that if a person with any of the listed problems goes to a chiropractor he will be cured. Petitioner has clearly proven the allegations in Count II.
Count III charges Respondent with violating Section 460.413(1)(d) and (e), Florida Statutes, and with Violating Section 21D-15.01(2)(g), Florida Administrative Code. Section 460.413(1)(e), Florida Statutes, prohibits a chiropractic physician from:
(e) Causing to be advertised, by any means whatsoever, any advertisement which does not contain an assertion or statement which would identify himself as a chiropractic physician or identify such chiropractic clinic or related institution in which he practices, or in which he is owner, in whole or in part, as a chiropractic institution.
Respondent's advertisement identifies him as a director. Nowhere is he identified conspicuously or otherwise--as a chiropractic physician. Respondent argues that his profession is obvious because the name of his practice is Bacher Chiropractic Life Center. However, it is as logical to assume that the Bacher Chiropractic Life Center is staffed by chiropractic physicians who are other members of the Bacher family and that "Dr. Bob" is the office manager.
Petitioner has also met its burden of proving the allegations contained in Count III of the Administrative Complaint.
Respondent relies on the Recommended Order in Department of Professional Regulation, Board of Chiropractic v Michael F. Petrie, DOAH Case No. 82-2756 (April 15, 1983), in which the Hearing Officer found a "similar" advertisement to he appropriate. However, in the case of regulated advertising, similarity is seldom relevant. For example, Respondent's advertisement states that "Chiropractic can free you from drug dependency," while Petrie's advertisement stated that "Chiropractic can many times free you from drug
dependency." (Emphasis supplied.) Likewise, Petrie's ad, for understandable reasons, made no claims about the ability of chiropractic to cure heart problems.
In its proposed recommended order, Petitioner recommends that Respondent be assessed an administrative fine in the amount of $1,000 per count in the Administrative Complaint for a total of $3,000. In view of the fact that one advertisement forms the basis for the charges in all three counts of the Administrative Complaint, and in view of the fact that the advertisement ran only one time, Petitioner's recommendation as to the amount of administrative fine seems harsh. Only one act forms the basis for all three counts, and, accordingly, a singular administrative fine of $1,000 seems more appropriate.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of each
and every allegation contained within the Administrative Complaint and assessing
against him an administrative fine of $1,000 to be paid by a date certain.
DONE and RECOMMENDED this 25th day of July, 1983, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT, 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 25th day of July, 1983.
COPIES FURNISHED:
Jerry Frances Carter, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Lawrence M. Malman, Esquire Biscayne Building, Suite 412
19 West Flagler Street Miami, Florida 33130
Frederick Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Jane Raker, Executive Director Board of Chiropractic
130 North Monroe Street Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. CASE NO. 0022405
ROBERT ALLEN BACHER, D.C.,
Respondent.
/
FINAL ORDER
This cause came before the State of Florida Board of Chiropractic at its duly noticed meeting of August 25, 1983, in Tampa, Florida. Upon a complete review of the record in this cause, including the transcript, recommended order, and the exceptions filed thereto by the Petitioner, the Board makes the following findings and conclusions.
FINDINGS OF FACT
On or about July 27, 1983, an Administrative Complaint, copy attached, was filed against the Respondent. Upon contest, the matter was referred to the Division of Administrative Hearings for formal proceedings pursuant to Section 120.57(1), Florida Statutes. Formal proceedings were conducted in the matter on or about February 3, 1983, and a Recommended Order, copy attached, entered on or about July 25, 1983.
On or about August 4, 1983, Exceptions to the Recommended Order, attached, were filed by the Respondent. Respondent's exceptions are hereby rejected as not being based upon competent, substantial evidence.
The Board adopts as its own and fully incorporates the Findings of Fact contained in the attached Recommended Order. There is competent, substantial evidence in the record upon which to base such findings.
CONCLUSIONS OF LAW
The Board hereby adopts as its own and fully incorporates the conclusions of law contained in the attached Recommended Order.
Based upon the foregoing, Respondent has violated Sections 460.413(1)(i) and (e), Florida Statutes, as well as Rules of the Board of Chiropractic 21D- 15.01(2)(c), (f), and (g).
It is therefore ORDERED that the Respondent be assessed an Administrative fine in the amount of one thousand dollars ($1,000) per count for a total of three thousand dollars ($3,000).
This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 30th day of September, 1983.
RON HARRIS, D.C., Chairman Board of Chiropractic
cc: Jerry Frances Carter, Esquire Lawrence M. Malman, Esquire Jeffrey A. Miller, Esquire
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been forwarded by U.S. Mail to Robert Allen Bacher, 9001 N.E. 2 Ave, Miami, Florida 33138 this 30th day of September, 1983.
Fred Varn Executive Director
Docket for Case No: 82-002222
Orders for Case No: 82-002222
| Issue Date |
Document |
Summary |
|
Sep. 30, 1983 |
Agency Final Order
|
|
|
Jul. 25, 1983 |
Recommended Order
|
Administrative fine for misleading advertisement appealing to a person's fears and ignorance and posing a danger to the public.
|
