STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

CHIROPRACTIC EXAMINERS, )

)

Petitioner, )

)

vs. )

) CASE NOS. 83-2382

STEPHEN A. JACOBSON, D.C., ) 83-2383

GARY JACOBSON, D.C., and ) 83-2384

STEVEN PAUL ROSENBERG, D.C., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in these three consolidated cases on August 3, 1984, at Coral Gables, Florida, before Michael

1. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing the parties were represented by the following counsel:

   
   

   For Petitioner: Bruce D. Lamb, Esquire

   Dept. of Professional Regulation

   130 North Monroe Street Tallahassee, Florida 32301

   
   

   For Respondents: Mark Krasnow, Esquire

   9000 Southwest 87th Court, Suite 103

   Miami, Florida 33176

   
   

   At the hearing the Petitioner presented the testimony of one witness, Nancy Lubert, and offered one exhibit, which was received in evidence. The Respondents presented the testimony of two witnesses, Nancy Lubert and Steven Paul Rosenberg, D.C., and offered three exhibits, two of which were received in evidence and one of which was rejected. Following the hearing a transcript of the proceedings was filed and thereafter counsel for all parties filed proposed recommended orders containing proposed findings of fact and proposed conclusions of law. Careful consideration has been given to the proposed recommended orders filed by the parties in the formulation of this Recommended Order. To the extent that this Recommended Order does not contain findings of fact proposed by the parties, such proposed findings are rejected on the grounds that they are irrelevant, immaterial, not supported by competent substantial evidence, or contrary to the greater weight of the evidence.

   
   

   ISSUES

   
   

   By three separate and substantially identical Administrative Complaints each of the Respondents have been charged with violating specified statutory and rule provisions as a result of their having caused to be distributed a certain advertisement for chiropractic services. The Respondents admit that they caused

   the advertisement to be distributed, but deny that the advertisement constitutes a violation of any statutory or rule provision.

   
   

   FINDINGS OF FACT

   
   

   1. Based on the stipulations of the parties, on the admissions of the Respondents, on the testimony of the witnesses at the hearing, and on the exhibits received in evidence at the hearing, I make the following findings of fact.

      
      

   2. At all times material to this case the Respondent Stephen A. Jacobson was and is a licensed chiropractic physician, having been issued license number CH 0003555.

      
      

   3. At all times material to this case the Respondent Gary Jacobson was and is a licensed chiropractic physician, having been issued license number CH 0003660.

      
      

   4. At all times material to this case the Respondent Steven Paul Rosenberg was and is a licensed chiropractic physician, having been issued license number CH 0003784.

      
      

   5. At all times material to this case the address of each of the three Respondents was and is 9721 South Dixie Highway, Kendall, Florida.

      
      

   6. The advertisement which is the subject matter of these cases was distributed in Dade County, Florida, as an insert in a publication known as "The Flyer". The subject advertisement was placed by or at the direction of, or was acquiesced in, by all three of the Respondents, Stephen A. Jacobson, Gary Jacobson, and Steven Paul Rosenberg. Stephen A. Jacobson and Gary Jacobson initiated and caused the subject advertisement to be placed and Steven Paul Rosenberg was aware of the contents of the advertisement and acquiesced in its publication.

      
      

   7. The subject advertisement was an advertisement for chiropractic services, specifically an advertisement for the chiropractic services of the Respondents, each of whom was specifically named in the advertisement.

      
      

   8. At the time of the distribution of the subject advertisement each of the Respondents practiced at the Sunset Chiropractic Clinic located at 9721 South Dixie, Highway Kendall, Florida.

      
      

   9. The subject advertisement was distributed approximately two months after an incident in which bottles of Tylenol were found to be contaminated with deadly amounts of cyanide, which contamination resulted in at least one death. The incident involving cyanide contamination was known to all three of the Respondents as well as to the general public. 1/

      
      

   10. The subject advertisement contains a prominent picture of a medicine bottle with a skull and crossbones, in conjunction with text urging the reader to try chiropractic and avoid medicine. The predominate theme of the advertisement is that medicine has many dangerous side effects, that one should avoid medicine because it will jeopardize one's health, and that medicine contains cyanide or acid. The subject advertisement contains the following specific statements: "Medicine Has Many Dangerous Side Effects" and "DON'T JEOPARDIZE YOUR HEALTH BY REACHING FOR A BOTTLE." In what turns out to be a statement about chiropractic, the opening text of the advertisement proclaims in

       large bold letters "IT DOES NOT CONTAIN CYANIDE OR ACID". By the juxtaposition of the picture of a medicine bottle besmirched with the skull and crossbones and the language of the text that follows, the clear import of the advertisement is that medicine is dangerous because it contains cyanide or acid. 2/

       
       

   11. The subject advertisement is likely to appeal primarily to a lay person's fears, ignorance or anxieties regarding his state of health or physical well-being.

       
       

   12. Near the bottom of the subject advertisement are the words "Sunset Chiropractic Clinic." Beneath those words, and in smaller print, are the names of each of the three Respondents. Each name is preceded by the abbreviation "Dr.," but none of the names are followed by the abbreviation "D.C.," or the words "Chiropractor" or "Chiropractic Physician," or by any other designation specifically identifying the Respondents as chiropractors. Thus, the subject advertisement failed to conspicuously identify the Respondents as chiropractors. 3/

       
       

       CONCLUSIONS OF LAW

       
       

   13. Based on the foregoing findings of fact and on the applicable statutes, rules, and legal principles, I make the following conclusions of law.

       
       

   14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to these consolidated proceedings.

       
       

   15. Section 460.413(1)(d), Florida Statutes authorizes the Board of Chiropractic Examiners to take disciplinary action against a chiropractor who is guilty of false, deceptive, or misleading advertising. And subsection (2) of Rule 21D-15.01, Florida Administrative Code, provides, inter alia, that an advertisement shall be deemed by the Board to be false, deceptive, or misleading if it:

       
       

       (f) Is likely to appeal primarily to

       a lay person's fears, ignorance or anxieties regarding his state of health or physical well-being; or

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

       
       

   16. Count One of each of the three Administrative Complaints charges each of the Respondents with a violation of Section 460.413(1)(d), Florida Statutes, and Rule 21D 15.01(2)(g), Florida Administrative Code, by reason of the fact that the subject advertisement fails to conspicuously identify any of them as chiropractors. The subject advertisement identifies each Respondent only by the designation "Dr.", which by common understanding is an abbreviation for the word "doctor". 4/ Nowhere in the advertisement are the Respondents identified, conspicuously or otherwise, as chiropractors. Accordingly, each of the Respondents is in violation of Section 460.413(1)(g), Florida Administrative Code.

       
       

   17. Count Two of each of the three Administrative Complaints charges each of the Respondents with a violation of Section 460.413(1)(d), Florida Statutes, and Rule 21D 15.01(2)(f), Florida Administrative Code, by reason of the fact that the subject advertisement is likely to appeal primarily to a lay person's

       fears, ignorance, or anxieties regarding his state of health or physical well- being. In defense of the advertisement the Respondents argue that "in the best tradition of the medical profession, the advertisement is designed to educate lay persons, and to encourage consultation with appropriate professionals." Poppycock! Rather, in the worst of traditions and in blatant violation of the cited statutory and rule provisions, the advertisement was designed to frighten people who were using medications and to appeal to their fears, ignorance, or anxieties in the hope that at least some of them would abandon their medicine and come to the Respondents for alleviation of the very anxiety and fear created by Respondent's advertisement. The subject advertisement was certainly likely to appeal primarily to a lay person's fears, ignorance, or anxieties regarding his state of health or physical well-being because that was the very purpose of the advertisement. And the advertisement is particularly reprehensible when note is taken of the fact that it was distributed shortly after the nationwide concern about Tylenol contaminated with cyanide. Accordingly, each of the Respondents is in violation of Section 460.413(1)(d), Florida Statutes and Rule 21D-01(2)(f), Florida Administrative Code. See Department of Professional Regulation v. Robert Allen Bacher, D.C. DPR Case No. 0022405 (Final Order issued Sept. 30, 1983, adopting Recommended Order in DOAH Case No. 82-2222).

       
       

   18. The Petitioner has suggested a penalty of an administrative fine of

$1,000.00 for each count against each Respondent. However, in view of the fact that both counts in each Administrative Complaint are based on the same advertisement, it appears more appropriate to assess only one administrative fine against each of the Respondents.

RECOMMENDATION

For all of the reasons set forth above, it is recommended that the Board of Chiropractic Examiners enter a Final Order which would:

1. Find each of the Respondents guilty of all of the violations charged in the Administrative Complaints;

   
   

2. Assess a $1,000.00 administrative fine against the Respondent Stephen A. Jacobs, D.C.;

   
   

3. Assess a $1,000.00 administrative fine against the Respondent Gary Jacobson, D.C.; and

   
   

4. Assess a $1,000.00 administrative fine against the Respondent Steven Paul Rosenberg, D.C.

DONE and ORDERED this 29th day of November, 1984, at Tallahassee, Florida.

MICHAEL M. PARRISH

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 29th day of November, 1984.

ENDNOTES

1/ The Tylenol contamination incident was widely reported in the national news media and resulted in a nationwide recall of certain over-the-counter medicines. It is likely that virtually everyone in America old enough to watch television or read newspapers was aware of the Tylenol contamination incident.

2/ A copy of the subject advertisement is attached to this Recommend Order as Appendix A, and incorporated herein.

3/ I have not made any findings of fact based on Ms. Lubert's testimony about her "reaction" to the subject advertisement because her reaction is irrelevant to the disposition of the issues in this case. For the same reasons I have not made any findings of fact based on the other advertisements testified to by the Respondent Rosenberg and admitted as Respondent's Exhibits 1 and 2.

4/ See The American Heritage Dictionary of the English Language, 1973 edition, at p. 395.

COPIES FURNISHED:

Ms. Jane Raker Executive Director

Board of Chiropractic Examiners Dept. of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Joseph W. Lawrence II, Esquire Chief Attorney

Dept. of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Dept. of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mark Krasnow, Esquire 9000 S.W. 87th Court Suite 103

Miami, Florida 33176

Bruce D. Lamb, Esquire

Dept. of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

DEPARTMENT OF PROFESSIONAL REGULATI0N,

Petitioner, DPR Case No. 0031298 D0AH Case No. 83-2382

vs.

STEVEN JACOBSEN, D.C.,

Respondent.

/

FINAL ORDER

This case came on for final action by the Board of Chiropractic Examiners pursuant to 120.57(1)(b)9, Florida Statutes at a public meeting on June 6, 1985, in 0rlando, Florida, for consideration of the Recommended Order of the hearing officer and the exceptions filed thereto. A transcript of the proceedings is available, if necessary.

The Respondents, by and through their attorney, Mark Krasnow, Esquire, requested a continuation of the hearing. The Board ruled that further continuance of the hearing was not warranted. The Respondent had previously been granted a continuance when the case was scheduled for hearing on April 11, 1985. The Respondent was given ample notice of the place and date of this hearing. The request for continuance was received by the Department of Professional Regulation on June 5, 1985; one day before the scheduled hearing. THEREFORE the Respondent's Motion for Continuance was Denied.

FINDINGS OF FACT

The Board, having reviewed the complete record, rejects the Respondent's exceptions to the hearing officer's findings of fact, and adopts and incorporates by reference the Findings of Fact of the hearing officer.

CONCLUSIONS OF LAW

The Board rejects the Respondent's exceptions to the hearing officer's conclusions of law, and adopts and incorporates by reference the hearing officer's conclusions of law.

DISPOSITION

The Board having reviewed the complete record finds that the seriousness of the offense requires disciplinary action in addition to the penalty recommended by the hearing officer. The Board is composed of a majority of chiropractic physicians and is in a better position to assess the gravity of the offense.

Specifically, the Board cites to the official transcript page 61 line 10 through page 64 line 25, as demonstrating the widespread problem of advertising by chiropractic physicians. The Board finds that the advertisement of Respondent was a particularly serious deviation from acceptable standards of advertising and that a fine in and of itself is not sufficient in this case. The Board finds that a probationary period for Respondent is necessary. THEREFORE, IT IS ORDERED AND ADJUDGED:

1. The Respondent shall be and hereby is fined $1,000.00. Said fine shall be paid within (thirty) 30 days of the date this order is filed.

   
   

2. The Respondent shall be placed on one year probation; beginning on the date this order is filed. As a condition of probation the Respondent shall, during the probationary period submit to the Board copies of any and all advertising of his chiropractic services. Such copies of advertising shall be submitted quarterly during the probationary period.

This Order takes effect upon filing with the Clerk of the Department of Professional Regulation.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of the notice of appeal with the District Court of Appeal within thirty days of the date this order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.

DONE AND ORDERED this 1st day of July, 1985.

BOARD OF CHIROPRACTIC EXAMINERS

RON HARRIS, D. C. VICE CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by regular U. S. mail to MARK KRASNOW, Esquire, 9000 S. W.

87th Court, Suite 103, Miami, Florida 33176; by certified mail to Stephen A. Jacobsen, 9721 Dixie Highway, Miami, Florida 33156; by regular United States mail to Michael M. Parish, Hearing Officer, Division of Administrative Hearings,

Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and by hand delivery to Bruce D. Lamb, Esquire, Department of Professional Regulation,

130 North Monroe Street, Tallahassee, Florida 32301, at 3:00 p.m. this 2nd of August, 1985.

Pat Guilford

Docket for Case No: 83-002382

Orders for Case No: 83-002382