STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILIP B. WHITEBOOK, D.C., )

)

Petitioner, )

)

vs. ) CASE NO. 93-6556

)

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD OF ) CHIROPRACTIC, )

)

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 22, 1994, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Philip B. Whitebook, D.C., pro se

Post Office Box 15314 Plantation, Florida 33318-5314

For Respondent: Allen R. Grossman, Esquire

Assistant Attorney General Office of Attorney General PL-01, The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's request for reinstatement of his license as a chiropractor should be granted.

PRELIMINARY STATEMENT

By letter dated January 20, 1993, Respondent Board of Chiropractic advised Petitioner that his request for reinstatement of his license was denied, and Petitioner timely requested a formal hearing regarding that denial. This cause was thereafter transferred to the Division of Administrative Hearings to conduct that formal proceeding.

Petitioner testified on his own behalf. Additionally, Joint Exhibit numbered 1, Petitioner's Exhibits numbered 1-9, and Respondent's Exhibits numbered 1-3 were admitted in evidence.

Only the Respondent submitted post-hearing proposed findings of fact in the form of a proposed recommended order. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On August 19, 1986, Petitioner was licensed as a chiropractor in the State of Florida and was issued license number CH0005434.

   
   

2. When Petitioner's chiropractic practice subsequently became insolvent, he considered other possibilities for employment whereby he could use his skills and yet occupy a salaried position. One of the possibilities he considered was becoming a rehabilitation service provider. He contacted the Division of Workers' Compensation of the Florida Department of Labor and Employment Security and discussed with Paul Lincolnhol the requirements for such employment. Lincolnhol specifically told Petitioner, and Petitioner fully understood, that Petitioner could not be licensed as a chiropractor since Section 440.49(1)(b)4.c, Florida Statutes, specifically prohibited licensed chiropractors from being employed as rehabilitation service providers.

   
   

3. On November 15, 1990, Petitioner personally appeared at the office of the Board of Chiropractic. He advised an employee as to what he wanted and was told to put his request in writing. On a blank sheet of paper Petitioner wrote the following letter:

   
   

   On this day of 11/15/90, I Philip Whitebook am relinquishing my Florida State license #CH 000 5434 to practice Chiropractic. I am asking you to take back this license and

   revoke all privelages [sic] associated with it.

   
   

   Petitioner signed that letter and gave it to a Board employee.

   
   

4. That employee, pursuant to Petitioner's further request, prepared a letter directed to Paul Lincolnhol. That letter contained a copy of Petitioner's license which reflected an expiration date of December 31, 1991. The letter read as follows:

   
   

   This will advise that Dr. Philip Whitebook (CH 0005434) has voluntarily relinquished his Florida State Chiropractic license effective on this day of November 15, 1990.

   
   

   Petitioner was provided with a copy of the letter to Lincolnhol.

   
   

5. By letter dated January 25, 1991, Petitioner was approved by the Division of Workers' Compensation, Florida Department of Labor and Employment Security, as a rehabilitation service provider and was assigned provider number XI0003924. In July of 1992, Petitioner renewed his rehabilitation service provider license which extended the expiration date of that license until June 30, 1994.

   
   

6. At some point, the information in the computer of the Florida Department of Professional Regulation, now known as the Department of Business and Professional Regulation, was changed to reflect that Petitioner's license had been placed in a category called "involuntary inactive."

   
   

7. On April 9, 1992, the Board sent a notice to Petitioner at his last known address informing him that his chiropractic license had not been renewed as of December 31, 1991, and had therefore automatically expired. That notice

   further advised Petitioner that if he did not complete the steps necessary to reinstate his license by June 30, 1992, his Florida chiropractic license would become null and void. Petitioner did not receive that letter since the address shown in the Board's records was no longer Petitioner's current address.

   
   

8. In October of 1992, a friend of Petitioner who was also a chiropractor, moved to Florida. Petitioner and his friend decided that they would open a chiropractic practice together.

   
   

9. On November 7, 1992, Petitioner contacted the Board requesting that his "inactive" license be "reinstated." That was the first contact Petitioner had with the Board after November 15, 1990.

   
   

10. By letter dated January 20, 1993, the Board advised Petitioner that his license could not be reinstated since it was null and void by operation of law, pursuant to Section 460.407, Florida Statutes. That letter further advised Petitioner that his recourse was to reapply for licensure and pass the examination.

    
    

11. By letter dated February 3, 1993, Petitioner wrote to the Division of Workers' Compensation advising that he was no longer employed as a rehabilitation service provider and was attempting to reactivate his license to practice chiropractic. Although the letter does not so indicate, Petitioner testified that he enclosed his rehabilitation service provider license with the letter, thereby returning his license to the Department of Labor and Employment Security at that time.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. The final hearing in this matter is a de novo proceeding, Florida Dept. of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981), at which the Petitioner, as an applicant for reinstatement of licensure, carries the burden of proof to establish his eligibility to obtain reinstatement. Balino v. Dept. of Health and Rehabilitative Services, 348 So.2d

    349 (Fla. 1st DCA 1977).

    
    

14. At the time Petitioner altered the status of his chiropractic license, Chapter 460, Florida Statutes, did not provide for inactive licensure of chiropractors. Prior to October 1, 1990, the law provided for automatic reversion to inactive status of any license that was not renewed in a timely fashion. Sections 460.407 and 460.409, Florida Statutes (1989). Chapter 460, Florida Statutes, has not at any time provided for licensees to voluntarily place their chiropractic licenses into an inactive status.

    
    

15. As of October 1, 1990, pursuant to Chapter 90-25, Laws of Florida, Section 460.409, Florida Statutes, was repealed and Section 460.407, Florida Statutes, was amended to provide as follows:

    
    

    460.407 Renewal of license. -

    1. The department shall renew a license upon receipt of the renewal application and the fee set by the board not to exceed $500.

    2. The department shall adopt rules establishing a procedure for the biennial renewal of licenses.

    3. Any active license which is not renewed at the end of the biennium prescribed by the department shall automatically expire and, unless reinstated within 6 months thereafter, become null and void. Any license which has not been renewed at the end of the biennium, and has automatically expired, may be reinstated within 6 months thereafter upon payment of a late fee set by rule of the board not to exceed $50. The board shall notify those licensees who have not renewed their licenses that they may have their expired licenses reinstated by certified mail to the last address of record of the licensee at least 60 days prior to the end of the

       6-month reinstatement period. Any expired license which has not been reinstated within such 6-month period shall become null and void.

    4. Sixty days prior to the end of the biennium and automatic reversion of a license to an expired status, the department shall

       mail a notice of renewal and possible reversion to an expired status to the last known address of the licensee.

    5. A licensee must notify the board in writing, by certified mail, of any change of address.

    6. Once a license expires and is not reinstated, it becomes null and void without any further action by the board or the department.

    
    

    Thus, after October 1, 1990, a chiropractic license not timely renewed automatically expired and became null and void after a 6-month grace period for reinstatement, and the status of inactive licensure for failure to timely renew had been abolished by the Legislature.

    
    

16. During all times relevant to this matter, the Board had in place Rule 21D-13.005, now re-numbered as Rule 61F2-13.005, Florida Administrative Code. The Rule cites Section 460.409, Florida Statutes, as the law it is implementing, but that law was repealed as of October 1, 1990. It is clear that the Rule applies to the reactivation of licenses that have automatically reverted to inactive status for failure to timely renew, and is not itself authority for licensees to voluntarily put their chiropractic licenses into an inactive status, particularly after the Legislature declared that such a category no longer existed.

    
    

17. An inactive license is still a license and Petitioner would not cease to be a licensed chiropractor because his license is inactive. See, Boedy v. Dept. of Professional Regulation, 433 So.2d 544 (Fla. 1st DCA 1983) which held that a regulatory board maintains jurisdiction to discipline a licensee even if that licensee's license is inactive.

18. Section 440.49, Florida Statutes, clearly required that Petitioner not be licensed as a chiropractor in order to be a rehabilitation service provider. Becoming unlicensed is what Petitioner was required to do. It is also what he intended to do on November 15, 1990, when he in clear language relinquished his chiropractic license in order to obtain his rehabilitation service provider status.

    
    

19. Petitioner intended relinquishment and used that relinquishment to his own advantage. His stated reliance on the Board's Rule is not credible. Even if such intention were believable, reliance on the Board's Rule to support a contention that he could obtain a voluntary inactive status is misplaced. Voluntary inactive status is not authorized by the Rule or by the statutes regulating the practice of chiropractic. Bd. of Trustees of the Internal Improvement Trust Fund v. Bd. of Professional Land Surveyors, 566 So.2d 1358 (Fla. 1st DCA 1990).

    
    

20. Although it appears that the Board did not make the changes to its records necessary to show Petitioner's license had been relinquished, that inefficiency does not change the result in this case. Petitioner's November 15, 1990, letter to the Board clearly relinquished his right to practice chiropractic, and the Board's letter to the Division of Workers' Compensation of that same date reveals that Petitioner's voluntary relinquishment was effective at that time.

    
    

21. The Board argues that even if Petitioner had not relinquished his license on November 15, 1990, then his chiropractic license became null and void as a matter of law after June 30, 1992. Petitioner's license had been due to expire on December 31, 1991. Under the provisions of Section 460.407(3), Florida Statutes, a chiropractic license becomes null and void unless reinstated within six months after the automatic expiration date. There is no suggestion in this record that Petitioner took any steps to renew his license prior to its expiration date of December 31, 1991, or to reinstate his license by June 30, 1992. Rather, this record indicates that Petitioner in July of 1992 renewed his rehabilitation service provider license, extending the expiration date of that license until June 30, 1994. Since Petitioner's holding of a rehabilitation service provider license was mutually exclusive to his holding a chiropractic license, it is clear that Petitioner did not intend to keep his chiropractic license in force in any type of status. The Board's alternative argument that Petitioner's license under all circumstances became null and void after June 30, 1992, is not persuasive only for the reason that Petitioner voluntarily relinquished his license on November 15, 1990, and, therefore, he no longer had a license which would become null and void by operation of law.

    
    

22. The April 1992 letter from the Board advising him that his license had automatically expired and would soon become null and void was apparently sent pursuant to Section 460.407(3) and (6), Florida Statutes. That letter, which Petitioner did not receive since Petitioner did not have a current address on file with the Board, does not change the result in this case since the letter was erroneously sent to Petitioner, who no longer had a chiropractic license. That letter, like the Department's erroneous records, cannot change the status of licensure. That status was irrevocably altered on November 15, 1990, when Petitioner voluntarily divested himself of his chiropractic license in order to pursue other employment.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's request to

have his chiropractic license reinstated.

DONE and ENTERED this 23rd day of May 1994, at Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May 1994.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6556

1. Respondent's proposed findings of fact numbered 1-5 and 7-13 have been adopted either verbatim or in substance in this Recommended Order.

2. Respondent's proposed finding of fact numbered 6 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law.

COPIES FURNISHED:

Philip B. Whitebook, D.C. Post Office Box 15314

Plantation, Florida 33318-5314

Allen R. Grossman, Esquire Assistant Attorney General Office of Attorney General PL-01, The Capitol

Tallahassee, Florida 32399-1050

Diane Orcutt, Executive Director Department of Business and

Professional Regulation Board of Chiropractic Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0752

Jack McRay, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0752

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA BOARD OF CHIROPRACTIC

PHILIP B. WHITELOOK,

Petitioner,

vs. DOAH CASE NO.: 93-6556

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF CHIROPRACTIC,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Board of Chiropractic (hereinafter referred to as the "Board") pursuant to Section 120.57(1)(b)(9), Florida Statutes, on August 11, 1994, in Key West, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Respondent was represented by Michael A Mone'. The Petitioner was not present at the Board meeting.

Upon consideration of the Hearing Officer's Recommended Order and the arguments of the parties and after a review of the complete record in this matter, and there being no exceptions filed in this matter, the Board makes the following:

FINDINGS OF FACT

1. The Hearing Office's Findings of Fact are hereby approved and adopted in toto.

   
   

2. There is competent, substantial evidence to support the Hearing Officers Findings of Fact.,

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 460, Florida Statutes.

   
   

2. The Hearing Officer's Conclusions of Law are hereby approved and adopted except that in paragraphs 20 and 22 the recommended order is corrected to reflect that it was the Department, and not the board that acted.

   
   

3. The disposition of this cause recommended by the Hearing Officer is hereby approved and adopted in toto.

   
   

4. There is competent, substantial evidence to support the Board's finding and conclusions.

THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

That the Petitioner's request to have his license to practice chiropractic reinstated is DENIED.

This Order shall become effective upon filing with the clerk of the Department of Business and Professional Regulation.

DONE AND ORDERED this 20th day of September, 1994.

DR. RONALD HOFFMAN, CHAIRMAN

Board of Chiropractic

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S. Mail to PHILIP B. WHITEBOOK, D.C., P.O. Box 15314, Plantation, Florida 33318-5314, and by hand delivery/United States Mail to the Board Clerk, Agency for Health Care Administration and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida on or before 5:00 p.m., this 23rd day of September, 1994.

VICKI R. GRANT

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 Department of Business and Professional Regulation, Northwood Centre, 1940 N. Monroe Street, Tallahassee, Florida 32J99-0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order.

Docket for Case No: 93-006556

Orders for Case No: 93-006556