STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF CHIROPRACTIC ) EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0041

)

RICHARD POWERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designed Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on February 20, 1986, at Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Edward C. Hill, Jr., Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Richard M. Powers, pro se

701 Northlake Boulevard

North Palm Beach, Florida 33408 PRELIMINARY STATEMENT

By administrative complaint filed January 8, 1986, Petitioner, Department of Professional Regulation, Board of Chiropractic Examiners (Board) seeks to discipline the Respondent, Richard Powers, a licensed chiropractor in the State of Florida. The complaint charges that Respondent failed to perform a statutory obligation because he advertised a free service without including the disclaimer provision mandated by statute, and that Respondent engaged in false, deceptive or misleading advertisements which conveyed the impression he possessed qualifications, skills or other attributes which were superior to other chiropractors.

At final hearing Petitioner called Christie J. Dietert and L. Thornton Owen, Jr., accepted as a chiropractic expert. Petitioner's Exhibits 1-6 were received into evidence. Respondent testified on his own behalf. Respondent's Exhibits 1-3 were received into evidence.

The transcript of hearing was filed March 5, 1986. The parties were granted leave through March 17, 1986, within which to file proposed findings of fact and conclusions of law. Petitioner and Respondent have submitted proposed findings. A ruling has been made on each proposed finding in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Richard Powers, was at all times material hereto a licensed chiropractor in the State of Florida, having been issued license number CH0003372.

   
   

2. Respondent has routinely advertised his chiropractic practice in the Palm Beach Post. On July 8, 1984, July 15, 1984, and September 2, 1984, Respondent ran an advertisement in the Palm Beach Post which offered a free examination and which stated that the "usual value of this exam is $80. This includes X-rays if needed." The advertisement did not include the disclaimer mandated by Section 455.24, Florida Statutes. That statute, effective June 12, 1984, required that:

   
   

   In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care provider ... (such as Respondent) ... the following statement shall appear in capital letters clearly distinguishable from the rest of the text:

   THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT WHICH IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR

   REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT.

   
   

3. By memorandum dated September 30, 1984, the Department of Professional Regulation, Board of Chiropractic (Board), advised all licensees of the aforesaid amendment to section 455.24. Respondent asserts he had no knowledge of the amendment until his receipt of the Board's memorandum in October, 1984, and that he complied, or attempted to comply, with the amendment at all times thereafter. The evidence supports Respondent's assertions.

   
   

4. The advertisements of July 8, 1984, and July 15, 1984, were captioned in bold type "ADVANCED APPLIED CHIROPRACTIC," listed Respondent as a diplomate of the National Board of Chiropractic, and concluded in bold type "A STANDARD OF EXCELLENCE." The advertisement of September 2, 1984, touted Respondent's clinic as "Advanced Applied Chiropractic and Comprehensive Pain Center."

   
   

5. The generally accepted definition within the medical community of diplomate is an individual who has completed an extensive post graduate program and successfully passed the board's examination. This establishes superior qualifications in the individual's field of practice. Although the National Board of Chiropractic issues diplomate certification to those individuals who pass its examination, its examination is a basic licensing examination which establishes minimal competency, not excellence.

6. Respondent's use of the phrase "Advanced Applied Chiropractic" to describe his clinic implies that he possesses skills superior to the average chiropractor. Respondent has registered the phrase "Advanced Applied Chiropractic" as a fictitious name.

   
   

7. Respondent was, on one prior occasion, disciplined by the Board for an advertising violation.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The allegations in this case are that Respondent violated Section 460.413(1)(d), (i), and (w), Florida Statutes, and Rule 21D-15.01(2)(b) and (e), F.A.C.

   
   

10. Section 460.413(1), Florida Statues, provides in pertinent part:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       (d) False, deceptive, or misleading advertising.

       (i) Failing to perform any statutory or legal obligation placed upon a licensed chiropractic physician.

       (w) Violating any provision of this chapter, any rule of the board or department ....

       
       

11. Rule 21D-15.01(2), F.A.C., provides in pertinent part:

    
    

    (2) No chiropractor shall disseminate or cause the dissemination of any

    advertisement or advertising which is in any way fraudulent, false, deceptive or misleading. Any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading if it:

    (b) Is 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. More specifically, the Board finds that it is misleading and deceptive for a chiropractor to advertise free services (i.e., x-rays, examination, etc.)

    or services for a specific charge when in fact the chiropractor is transmitting a higher charge for the advertised services to a third party payor for payment. The Board also finds that it is misleading and deceptive for a chiropractor or a group of chiropractors to advertise a chiropractic referral service or bureau unless the

    advertisement specifically names each of the individual chiropractors who are

    participating in the referral service or bureau.

    (e) Conveys the impression that the chiropractor or chiropractors,

    disseminating the advertising or referred to therein possess qualifications, skills, or other attributes which are superior to other chiropractics, other than a simple listing of earned professional post-doctoral or other professional achievements. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a specialty area recognized by the Board of Chiropractic;

    
    

12. The evidence is clear that Respondent violated Section 460.413(1)(d),

    (i) and (w), Florida Statutes, and Rule 21D-15.01(2)(e), F.A.C. Respondent's claim that registration of the phrase "Advanced Applied Chiropractic" as a fictitious name renders its use acceptable is untenable. The mere registration of the phrase does not render it any the less misleading or remove it from the Board's purview. Respondent's assertion that he was unaware of the amendment to Section 455.24, Florida Statutes, requiring a disclaimer in all advertisements for free services, is legally insufficient since all citizens are charged with knowledge of the law. However, Respondent's compliance with section 455.24, after he was aware of its existence, evidences a lack of intent to violate its provisions and mitigates the consequences of his act.

13. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order imposing an administrative

fine against Respondent the sum of $1,500.00.

DONE AND ENTERED this 24th day of March, 1986, at Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0041

The Petitioner's proposed findings of fact are addressed as follows:

1. Adopted in paragraph 1.

2. Adopted in paragraph 7.

3. Adopted in paragraph 2.

4. Adopted in paragraph 2.

5. Addressed in paragraph 3.

6. Addressed in paragraphs 4 and 6. 7-10. Addressed in paragraphs 4 and 5.

The Respondent's proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 4 and 5.

2. Addressed in paragraph 6.

3. Addressed in paragraphs 2 and 3.

COPIES FURNISHED:

Edward C. Hill, Jr., Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Richard Powers

701 Northlake Boulevard

North Palm Beach, Florida 33408

Fred Varn Executive Director

Board of Chiropractic

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche Secretary

Department of Professional Regulations

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-000041

Orders for Case No: 86-000041