STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2756

)

MICHAEL F. PETRIE, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on February 1, 1983, in Fort Lauderdale, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon an Administrative Complaint filed by Petitioner against the Respondent alleging that the Respondent had caused an advertisement of his professional services to be placed which violated Rule 21D-15.01(2)(f) and Rule 21D-15.01(2), Florida Administrative Code, which constitutes a violation of Section 460.413(1)(d), Florida Statutes. The Respondent timely initiated his administrative remedies, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57, Florida Statutes.

APPEARANCES

For Petitioner: Jerry Frances Carter, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Michael F. Petrie, D.C., pro se

410 Northeast 44th Street

Fort Lauderdale, Florida 33334 ISSUE

The issue presented is whether the representations contained within the subject advertisement placed by Respondent violate the cited rules and statutes.

Both parties submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

1. At all times relevant hereto, the Respondent, Michael F. Petrie, was licensed as a chiropractic physician by the Florida Board of Chiropractic.

2. The Petitioner introduced no evidence relating to Count I of the Administrative Complaint.

   
   

3. On or about February 3, 1982, the Respondent placed an advertisement in the Pompano Shopper's Guide, advertising the Petrie Chiropractic Life Center. (See Joint Exhibit 1.)

   
   

4. This advertisement states, in pertinent part, ". . . To take a pill or more each day is dependency. Dependency is addiction! Whether these drugs are pushed or prescribed, you are an addict! CHIROPRACTIC can many times free you from drug dependency. . ." The advertisement makes reference to specific medical conditions, such as headaches, diabetes, stroke, high blood pressure and skin problems, which can be helped by chiropractic treatment.

   
   

5. The testimony of Kenneth C. Lasseter, M. D., was offered via deposition as Petitioner's Exhibit 2. Dr. Lasseter stated his professional opinion that dependency on a drug is not the same as addiction. Drs. Michael Nathanson, Thomas Pasterski and Richard Hodish, all of whom are doctors of chiropractic and were accepted as experts in this field, testified that addiction and dependency are synonymous. (See Transcript, pages 48, 49, 95 and 101.) Their testimony was further substantiated by the definitions of addiction and dependency as found in the Encyclopedia and Dictionary of Medical and Nursing. Joyce Quintavalli, R. N., a psychiatric nurse specializing in the treatment of young people for drug problems, stated that from the practical standpoint there was no difference between dependency and addiction.

   
   

6. Dependency and addiction are synonymous.

   
   

7. Robert S. Butler, Jr., D. C., who was accepted as an expert in chiropractic, testified that the advertisement indicated that the Respondent's treatment could reduce a patient's need for medication for the enumerated conditions or illnesses and therefore opined that the advertisement was misleading. However, Dr. Butler stated that the medical conditions enumerated in the advertisement fall within the scope of practice of chiropractic, that chiropractic can treat patients for these problems with good results, and that treatment can lessen or free the patient from drug dependency. Dr. Butler stated his concern that the advertisement could encourage people to stop their medications, although he admitted that the advertisement does not urge or recommend to people that they cease taking medication.

   
   

8. The chiropractic physicians enumerated in Paragraph 5 above testified that the conditions enumerated in the advertisement were within the scope of treatment of chiropractic, that they had treated patients for these diseases or conditions with good results, and that as a result of treatment their patients had reduced or ceased altogether taking medication which had been necessary prior to their treatment for control of their condition.

   
   

9. The statements made in the advertisement are accurate and do not mislead the public concerning the scope of chiropractic, the benefits of chiropractic, or the Respondent's qualifications.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Board of Chiropractic has authority to discipline licensees within the State of Florida. This Recommended Order is entered pursuant to the authority of Section 120.57, Florida Statutes.

11. No evidence was presented in support of Count I of the Administrative Complaint. The allegations thereof not having been proven, it should be dismissed.

    
    

12. Petitioner alleges that the Respondent has violated Rule 21D-15.01(2) and Rule 21D-15.01(2)(c), Florida Administrative Code, and Section 460.413(1)(d), Florida Statutes, by placing advertisements which are false, deceptive or misleading. Specifically, Rule 21D-15.01(2)(c), supra, provides that advertising which creates unjustified expectations of beneficial treatment or successful cures is deemed fraudulent, false or misleading. The Board alleges that the statement that dependency is addiction is false. The facts presented reveal that dependency is addiction, as those terms are used by medical professionals. The Board further alleges that the listing of the enumerated conditions or diseases in the advertisement implicitly indicates that they can be cured or alleviated through chiropractic. The conditions and diseases listed in the advertisement are headaches, diabetes, stroke, high blood pressure and skin problems. The testimony of the medical experts was that all of these diseases are within the scope of chiropractic and can be cured or alleviated through chiropractic. Neither of the Board's allegations are proven by substantial and competent evidence. No evidence exists that the Respondent has violated Section 460.413(1)(d), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed against Michael F. Petrie be dismissed.

DONE and RECOMMENDED this 15th day of April, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 15th day of April, 1983.

COPIES FURNISHED:

Jerry Frances Carter, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Michael F. Petrie, D. C.

410 NE 44th Street

Fort Lauderdale, Florida 33334

Frederick Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Jane Raker, Executive Director Board of Chiropractic Examiners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002756

Orders for Case No: 82-002756