STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Board of )

Chiropractic Examiners, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2505

)

JOSEPH O. SMITH, D.C., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in the above- styled case on January 19, 1983, in Fort Lauderdale, Florida. The following appearances were entered.

APPEARANCES

For Petitioner: Jerry F. Carter, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Jay H. Hernberg, Esquire

Mercedes Building, Suite 310 2691 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306

The issue for determination at the final hearing was whether the chiropractic license of the Respondent Joseph O. Smith, should be suspended, revoked, or other discipline imposed for the acts alleged in the Administrative Complaint filed July 30, 1982. Specifically, the Respondent Smith is charged with advertising in a false, deceptive or misleading manner; advertising in a manner that did not contain assertions or statements which identified the Respondent as a chiropractor or identify the chiropractic institution; made misleading deceptive, untrue, or fraudulent representations in the practice of chiropractic; and practiced or offered to practice beyond the scope permitted by law.

At the final hearing, William J. Pawley, an investigator for the Department of Professional Regulation, testified for the Petitioner and Petitioner's Exhibits 1-5 were offered and admitted into evidence. Dr. R. George Manieri, an osteopathic physician; Dr. Jeffrey Goldenberg, a medical doctor; Dr. Barry Adler, a chiropractic physician; Bruce Post, a patient; and Dr. Smith testified for the Respondent. Respondent's Exhibits 2-15 were offered and admitted into evidence.

Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.

When the parties' findings of fact were consistent with the weight of credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of credible evidence, they have been either rejected or, when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. At all relevant times, the Respondent Joseph O. Smith, was licensed as a chiropractic physician by the Florida Board of Chiropractic.

   
   

2. On or about March 3, 1982, an investigator for the Department of Professional Regulation, William Pawley, went to the chiropractic office of the Respondent Smith and took into his possession five (5) pieces of literature, each containing the name of the Respondent Smith, from the public waiting area of the office. The literature consisted of the following:

   
   

   1. A brochure entitled "Total Health Care Center", on which is printed the name Dr. Joseph O. Smith with no designation of the Center as a chiropractic or related facility or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 1)

   2. A flyer with the Respondent Smith's and Total Health Care Center's address captioned across the top, with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 2)

   3. A brochure entitled "What to Do in Case of an Automobile Accident" which has the Respondent's and Total Health Care Center's address and telephone number on the cover with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 3)

   4. A wallet-size card with the Republican Party's elephant symbol, the slogan "The Republican Party of Florida" and the Respondent's name without a designation of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 4)

   5. A booklet entitled "Foundation of Man" authored by the Respondent Smith which designates him as a chiropractic physician. (Petitioner's Exhibit No. 5)

      
      

3. The "Total Health Care Center" is located at 349 Southwest 79th Avenue, Fort Lauderdale, Florida, and is the chiropractic office of the Respondent Smith. The sign outside the office which is visible from the street clearly designates the office as being that of a chiropractic physician.

4. The "Total Health Care Center" is primarily a chiropractic office which also offers related health care and medical services when appropriate. During the past three years, Dr. R. George Manieri, D.O., has examined patients at the Center and provided medical services including routine check-ups, vaginal examinations, breast examinations and pap smears. He also treated the Respondent's patients on a referral or part-time basis, by prescribing medication for birth control and other medical reasons. According to Dr. Manieri, the Respondent's position at the Center was both as a director and chiropractor since both medical and chiropractic services were available.

   
   

5. Dr. Jeffrey Goldenberg, a licensed medical doctor specializing in obstetrics and gynecology, saw the Respondent's patients at the Center for birth control exams, breast checks and other medical reasons. The Respondent referred patients to Dr. Goldenberg, who saw patients either in the Center or at his private office.

   
   

6. The Respondent Smith treated patients at the Center only for chiropractic problems. The Respondent Smith acted as the Director of the Center and has employed both chiropractic and medical physicians as part of his total or holistic philosophy of health care.

   
   

7. Consumers who arrive at the Center are immediately placed on notice that the Center is essentially a chiropractic office by signs both outside and inside the establishment. The booklets, which were obtained by the Department from inside the Center and which failed to designate the Respondent or the Center by use of the term "D.C. or Chiropractic" (Petitioner's Exhibit Nos. 1, 2 & 3), were provided for general informational purposes and were not intended as chiropractic advertisements. Petitioner's Exhibits 1 and 3 are neither false nor misleading and contain general medical information concerning breast cancer, arthritis, burns, mouth-to-mouth resuscitation, heart attacks, CPR and aid for automobile accident victims. These pamphlets (Petitioner's Exhibit Nos. 1 & 3) were distributed for informational purposes only to patients once inside the office, who were already on notice that they were in the office of a chiropractor. When the Respondent Smith advertised himself as a chiropractor, he used the term chiropractor or D.C. after his name. However, when he advertised the Center, the Respondent would indicate that it provided both chiropractic and medical services as indicated by Petitioner's Exhibit No. 2.

   
   

8. In addition to running the Center and practicing chiropractic, the Respondent also ran for the Republican nomination for Governor of Florida. His campaign office was located at the Center and, as demonstrated by Petitioner's Exhibit No. 4, at least one campaign document was kept at the Center which did not designate him as a chiropractic physician.

   
   

9. Dr. Barry Adler, a licensed chiropractor and Secretary of Broward County Chiropractic Society and Co-Chairman of the Society's Ethics Committee, testified concerning the community standard in Broward County regarding the designation of chiropractors for advertising purposes. In Broward County, it is common for chiropractors to not use the term chiropractor or D.C. in their names when they are not advertising chiropractic services. For example, business cards and bank accounts of chiropractors are maintained without the designation, since such items are not generally considered as advertisements. Similarly, the Journal of the Florida Chiropractic Association, Inc., and Directors of the Broward County Chiropractic Society, lists their directors as "Drs." without the specific designation of chiropractor or D.C. following each name.

10. Patients who visited the Total Health Care Center would not be misled by the lack of the designation "D.C." or "chiropractor" on Petitioner's Exhibit Nos. 1, 2 and 3, which were offered to prospective patients once inside the Center. The information both outside and inside the Center made it clear that the Respondent provided primarily chiropractic care while the Center offered both chiropractic and medical services.

    
    

11. No evidence was presented on Count I of the Administrative Complaint.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this dispute. Section 120.57(1), Florida Statutes.

    
    

13. In Counts II, III and IV of the Administrative Complaint, the documents which have been admitted into evidence as Petitioner's Exhibit Nos. 1,

    2 and 3 are alleged to violate Section 460.413(1)(d), (e) and (u), Florida Statutes, and Rule 21D-15.01(2)(g) and (i), Florida Administrative Code, which empower the Board of Chiropractic to take disciplinary action against a chiropractor who engages in the following acts:

    
    

    1. False, deceptive, or misleading advertising.

    2. 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.

    (u) 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 he is not competent to perform.

    
    

14. Additionally, Rules 21D-15.01(2)(b), (g) and (i), Florida Administrative Code, prohibits "advertising" as defined by Rule 210-15.01(3), Florida Administrative Code, which is:

    
    

    (b) . . .misleading or deceptive because in its content or in the context in which it is presented it makes only a partial disclosure of relevant facts; or

    (g) Fails to conspicuously identify the chiropractor or chiropractors referred to in the advertising as a chiropractor or chiropractors; or

    (i) Contains any representation which identifies the chiropractic practice being advertised by a name which does not include the terms "chiropractor", "chiropractic", or

    some easily recognizable derivative thereof; or

15. The basic issues in this dispute are twofold: whether documents identified as Petitioner's Exhibit Nos. 1, 2 and 3 are "advertisements" as defined at Rule 21D-15.01(3), Florida Administrative Code; 1/ and whether under the facts established at final hearing, the Respondent offered to practice beyond the scope permitted by law.

    
    

16. Petitioner's Exhibit Nos. 1 and 3 were not disseminated to the general public with the intent of furthering the purpose, either directly or indirectly, of selling professional services. They were provided to patients once inside the Center, for general informational purposes and were not intended to further the purpose of offering or selling chiropractic services. Moreover, these documents are neither false nor misleading. Petitioner's Exhibit No. 2, which is an advertisement for the Center, clearly identifies the Center as offering medical and chiropractic care, an assertion which was proven to be neither false nor misleading at final hearing.

    
    

17. The evidence likewise failed to establish that the Respondent practiced beyond the scope permitted by law through the dissemination of Petitioner's Exhibit No. 1. Based on the facts established at final hearing, the Center's services included medical as well as chiropractic care. No evidence was presented to demonstrate that the Respondent ever crossed the line separating medical and chiropractic care or that he personally offered to perform any medical services.

    
    

18. Finally, the Respondent's campaign card (Petitioner's Exhibit No. 4) is alleged to violate Rule 21D-15.01(2)(g), Florida Administrative Code, and Section 460.413(1)(d) and (e), Florida Statutes. The card in question is obviously a political card which was not intended as an advertisement for chiropractic services and, as such, is outside the scope of Section 460.413, Florida Statutes, and Rule 21D-15.01, Florida Administrative Code. 2/ The fact that the card was obtained at the Center is not determinative, since the Respondent utilized the Center as a campaign office when he ran for political office.

    
    

19. Due to the disposition of Counts II through IV, it is unnecessary to decide whether the Respondent's Motion to Dismiss should be granted due to the failure of the Petitioner to timely comply with discovery.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Administrative Complaint filed against the Respondent Joseph O. Smith be dismissed.

DONE and ORDERED this 2nd day of September, 1983, Tallahassee, Florida.

SHARYN L. SMITH, 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 2nd day of September, 1983.

ENDNOTES

1/ Rule 21D-15.01(3) defines advertising in pertinent part as any statement, oral or written, disseminated to the public or any portion thereof, with the intent of furthering the purpose, either directly or indirectly, of selling professional services, or offering to perform professional services, or inducing members of the public to enter into any obligation relating to such professional services. The terms advertisement or advertising shall include the name under which professional services are performed.

2/ See e.g., Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and In the Matter of RMJ, 455 U.S. 191 (1983), for discussions concerning the permissible scope of the state's power to take disciplinary action against professionals who advertise, and compare, Friedman v. Rogers, 440 U.S. (1979), which noted that advising restrictions permissible when applied to commercial speech might be impermissible when applied to non-commercial expression.

COPIES FURNISHED:

Jerry F. Carter, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Jay H. Hernberg, Esquire Mercede Building, Suite 310 2691 East Oakland Park Blvd. Ft. Lauderdale, Florida 33306

Ms. Jane Raker, Executive Director Florida Board of Chiropractic

Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DPR CASE NO. 0019064

DOAH CASE NO. 82-2505

JOSEPH O. SMITH, D.C.,

Respondent.

/

FINAL ORDER

This cause came before the State of Florida Board of Chiropractic for final consideration of a Recommended Order at its duly noticed meeting of November 10, 1983, in Tallahassee, Florida. Upon a complete review of the record, including the transcript, proposed findings and conclusions, the Recommended Order and exceptions filed thereto, the Board finds and concludes as follows:

FINDINGS OF FACT

1. On or about July 30, 1982, 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), F.S. A Recommended Order, copy attached, was entered on or about September 2, 1983.

   
   

2. Exceptions to the Recommended Order have been filed by the Petitioner, a copy of which is attached to this Order. The Exceptions to the Findings of Fact are hereby adopted and incorporated by reference into the body of this Order. In that regard, the Board finds that there is competent, substantial evidence in the record to articulate the following additional facts, which are not inconsistent with and do not have the effect of rejecting any of the Hearing Officer's findings save those discussed in paragraph 7 of the Recommended Order, which is discussed below:

   
   

   1. The brochure referred to in Paragraph 2(a) of the Recommended Order and introduced into evidence as Petitioner' Exhibit #1, contains,

      on page 1 of that brochure, the following language:

      1. "Affordable Price Quality Care", which is prominently circled for emphasis.

      2. "DAY AND EVENING HOURS 792-7936

         Plantation-Ft. Lauderdale Lauderhill-Sunrise"

      3. "Preventative and Corrective Care, Specializing In

         Birth Control Physicals

         Postural Evaluation Automobile and Job

         Injuries Blood Test Podiatry Breast Exams Cancer/LCF"

         
         

         At the top of each page of the brochure, featured in prominent letters, is printed the names "Total Health Care Center" and "Dr. Joseph O. Smith", with no designation of the Center as a chiropractic or related facility or the Respondent as a chiropractic physician. On four of the eight pages of this brochure is printed: "792-7936 24-Hour Service". On one page of the brochure the following language appears: "Call your Physician for care or the 'Total Health Center' hotline, 792-7936." The address and telephone number printed on the brochure are that of Respondent and the Total Health Care Center.

         
         

   2. While consumers that arrive at Respondent's offices and those of the Total Health Care Center are placed on notice that the offices are essentially chiropractic in nature by signs

      both outside and inside the establishment, the literature obtained therein is portable and subject to be removed from the offices of Respondent due to its very nature. Once removed from the chiropractic setting, this literature loses any designation as being chiropractic and

      could confuse the public as to the type of physician or case being offered. (R 124-125).

      
      

3. The Board finds that the Hearings Officer's finding as contained in paragraph number 7 regarding the nature of the subject booklet is a mixed question of fact and law. The Board further finds that it has promulgated Rule 21D-15.01, F.A.C., which directly addresses what material shall be considered advertising, viz:

   
   

   . . .any statements, oral or written, disseminated to or before the public or any portion thereof, with the intent of furthering the purpose, either directly or indirectly, of selling professional services, or offering to perform professional services, or inducing members of the public to enter into any obligation relating to such professional services.

   
   

   In that regard, the Board finds that the issue of what types of dissemination may be considered to be advertisements are matters collectively within the special expertise, insight, and knowledge of the Board of Chiropractic, and upon the authority of McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), hereby rejects that portion of paragraph 7 which concludes that the booklets in question were not advertisements but were intended for

   general informational purposes only. See also City of Clearwater v. Lewis, 404 So.2d 1156 (Fla. 2d DCA 1983).

   
   

4. The Board hereby adopts and incorporates into the body of this Order the remaining findings contained in paragraphs one through eleven of the attached Recommended Order.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Board hereby rejects that portion of the Conclusions of Law contained in the attached Recommended Order which deals with the issue of whether Petitioner's Exhibits Nos. 1, 2 and 3, included in the record, are "advertisements". The Board concludes that the specific information relating to the Respondent and the Total Health Care Center contained therein, including offers of chiropractic services or services offered by a chiropractic facility, clearly places the subject brochure within the intent and meaning of Rule 21D- 15.03(3), Florida Administrative Code, and that the true fact that the brochure may refer to general health care subjects does not remove the subject brochure as contained in Petitioner's exhibits, from the realism of advertising.

   
   

6. The remainder of the conclusions contained in the Recommended Order not inconsistent with the above are hereby adopted and incorporated into the body of this Order.

Based upon the foregoing, the Respondent has violated Sections 460.413(1)(d) and (e) as well as Rules of the Board of Chiropractic 21D- 15.01(2)(g) and (i), Florida Administrative Code.

It is therefore ORDERED that the license of the Respondent to practice chiropractic be placed on probation for a period of 90 days from the effective date of this Order. It is further ORDERED that an administrative fine in the amount of $1,000 be assessed against the Respondent.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 15th day of December, 1983.

RON HARRIS, D.C. CHAIRMAN

Board of Chiropractic

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been forwarded by U.S. Mail to Joseph O. Smith, D.C., 349 S.W. 27th Avenue, Ft.

Lauderdale, Florida 33312 this 5th day of January, 1984.

Fred Varn Executive Director

cc: Jay Hernberg, Esquire Jerry F. Carter, Esquire Jeffrey A. Miller, Esquire Sharyn L. Smith

Docket for Case No: 82-002505

Orders for Case No: 82-002505