STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF )

CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1227

) CURTIS J. McCALL, JR., D.C., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before the Division of Administrative Hearings, by its duly designated Hearing Officer, Diane Cleavinger, on November 2, 1994, in Panama City, Florida.

APPEARANCES

For Petitioner: Jon M. Pellett

Qualified Non-Lawyer Representative Agency for Health Care Administration 1/ 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Curtis J. McCall, D.C., Pro Se

811 Grace Avenue

Panama City, Florida 32401 STATEMENT OF THE ISSUES

Whether Petitioner's license to practice chiropractic should be disciplined.

PRELIMINARY STATEMENT

On January 5, 1994, an Administrative Complaint was filed by the Department of Business and Professional Regulation (DBPR) against Respondent's license to practice chiropractic. The Department alleged that the Respondent violated Section 460.413(1)(v), Florida Statutes (1993), [formerly Section 460.413(1)(w), Florida Statutes] by failing to comply with the terms of a Final Order of the Board of Chiropractic entered on November 20, 1992. Specifically, the Department alleged that the Respondent failed to pay an administrative fine of two thousand dollars ($2,000.00) within thirty (30) days of the date of entry of the Board's November 20, 1992, Final Order. The Department further alleged that contrary to the requirements of the Final Order, Respondent failed to timely submit payment of the administrative fine imposed against his license.

Respondent disputed the allegations of the administrative complaint and also alleged that the Board of Chiropractic had already disciplined him for failing

to comply with the terms of the Final Order. The administrative complaint was forwarded to the Division of Administrative Hearings for purposes of conducting a formal hearing.

Prior to the scheduled formal hearing, the Hearing Officer took official Recognition of the following:

1. Chapter 92-178, Laws of Florida, resulting in repeal of Section 460.413(1)(k), Florida Statutes, and substantial renumbering of Section 460.413, Florida Statutes;

   
   

2. Rule 61F2-16.004, Florida Administrative Code (formerly Rule 21D-16.004, Florida Administrative Code);

   
   

3. Rule 61F2-16.003, Florida Administrative Code, (formerly Rule 21D-16.003, Florida Administrative Code referencing at paragraph

   (1) subparagraph (ee), former Section 460.413(1)(w), Florida Statutes, now Section 460.413(1)(v), Florida Statutes and Rule 61F2- 16.003(2), Florida Administrative Code) referencing aggravating and mitigating circumstances for the imposition of discipline);

   
   

4. Rule 9.310, Florida Rule of Appellate Procedure;

   
   

5. Chapter 455 and 460, Florida Statutes (1991);

   
   

6. Section 817.39, Florida Statutes, as it pertains to use of any letter bearing a seal which simulates the seal of a state agency or fictitious state agency;

   
   

7. Section 817.30, Florida Statutes, pertaining to use of insignia of any organization in the State of 5 years standing; and

   
   

8. Section 817.311, Florida Statutes (1991);

   
   

9. First Amendment to the United States Constitution; and

   
   

10. Section 460.402(3), Florida Statutes. Respondent's request to take Official Recog- nition of other matters was denied.

At the hearing, Petitioner presented the testimony of three witnesses: Ann Broome, Professional Regulation Specialist, Department of Business and Professional Regulation; John G. Hindsman, III, Bay Bank and Trust; and Sheri Danzis, Accountant Supervisor II, Department of Business and Professional Regulation. Petitioner also and offered thirteen exhibits into evidence.

Respondent testified in his own behalf and presented the testimony of two witnesses. Respondent also offered two composite exhibits into evidence.

Petitioner filed a Proposed Recommended Order on November 23, 1994. Respondent filed a Proposed Recommended Order on November 14, 1994. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order, except where such findings were not shown by the evidence, or were immaterial, irrelevant, cumulative or subordinate.

Specific rulings on the parties' Proposed Findings of Fact are contained in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is a chiropractic physician licensed in the State of Florida having been issued license CH-0001538 on December 31, 1973.

   
   

2. On or about November 20, 1992, in DPR Case Number 91-8743, the Board of Chiropractic entered a Final Order against the Respondent imposing as discipline:

   
   

   1. A suspension of Respondent's license for a period of sixty (60) days from the date of the entry of the Final Order, and

   2. Payment of an administrative fine in

      the amount of two thousand dollars ($2,000.00) within thirty (30) days of the filing of the Final Order.

      
      

3. The Final Order further provided for revocation of Respondent's license should he violate the provisions of the Final Order.

   
   

4. The November 20, 1992, Final Order was served on Respondent by U.S. certified mail on or about December 4, 1992.

   
   

5. According to the terms of the Final Order, Respondent was required to pay the administrative fine by December 21, 1992, and in no instance later than January 5, 1993. Further, Respondent's license was suspended from November 21, 1992, through January 20, 1993.

   
   

6. On or about January 27, 1993, Respondent submitted a check in the amount of two thousand dollars ($2,000.00) to the Board of Chiropractic as payment of the administrative fine. Respondent had sufficient funds to cover the check at the time it was written.

   
   

7. On the advice of counsel, Respondent stopped payment on the check. The advice was based on the fact that Respondent had "appealed" the Final Order of November 20, 1992, to the United States District Court and that payment of the fine was stayed pending outcome of the "appeal."

   
   

8. Respondent did not appeal the Board's November 20, 1992, Final Order to a Florida District Court of Appeal. Instead, Respondent filed an independent action under 42 U.S.C. Section 1983, for injunctive relief from the Board's November 20, 1992, Final Order. No order was entered by the United States District Court which stayed enforcement of the Board's Final Order. Clearly, the federal action was technically not an appeal of the Board's Final Order in the legal sense of the meaning of appeal. However, in layperson's language the term "appeal" could easily be applied to the Federal action with the resultant confusion, as in this case, of the effect of such an appeal to stay enforcement of the Board's Final Order.

9. The stop payment order caused the bank to dishonor the $2,000.00 check and return the item to the Department unpaid.

   
   

10. Around February 16, 1993, Respondent was notified, by letter, from Sheri Danzis of the Department of Business and Professional Regulation, Bureau of Finance and Accounting, that his check had been returned to the Petitioner dishonored. The letter also requested that he remit the amount of $2,000.00 plus a service charge of $100.00 for the dishonored check.

    
    

11. Around February 22, 1993, Respondent informed Ms. Danzis that he had "appealed" the Board's Final Order of November 20, 1992, to the United States District Court and that the fine was stayed pending the outcome of the "appeal." Ms. Danzis notified the board of the unpaid fine. Ms. Danzis took no further action because the Final Order had been appealed.

    
    

12. Around April 21, 1993, Respondent was again notified by letter from Ann Broome, Board of Chiropractic Staff Office, that his check had been returned dishonored and requested Respondent to pay $2,100.00 to clear up the matter.

    The letter also advised that Respondent's case could be reviewed for disciplinary action for violating the Board's Final Order.

    
    

13. Respondent, around April 29, 1993, submitted payment of $1,500.00 to the Board of Chiropractic as partial payment of the administrative fine imposed by the November 20, 1992, Final Order. Respondent was unable to pay the entire fine because of financial problems caused by large medical bills.

    
    

14. In the meantime, around June, 1993, the exact date is unclear, the Department's records reflected that Respondent's license had been revoked. The person making the record testified that Respondent's license was revoked because the Final Order called for that penalty if it was violated and the Respondent's license was therefore revoked. However, the Department's computer records of licensure submitted as evidence of licensing do not curently reflect the revocation. The computer records reflect only that Respondent's license expired on March 1, 1994 and was reissued on May 4, 1994, under the two-year renewal provisions of Chapter 460, Florida Statutes. No testimony regarding the data processing procedures of the Department was introduced at hearing. Therefore, given the general ability to add and delete information from a computer, the current records versus the live testimony of revocation, are not found to be reliable. The testimony of revocation is found to be reliable and establishes that Respondent's license was revoked and later reissued under Chapter 460, Florida Statutes.

    
    

15. Around March 27, 1994, Dr. McCall mailed $350.00 to the Board for renewal of his license. However, the Board did not apply the $350.00 to reissuance of Respondent's license, but instead applied the funds to the Final Order debt. Respondent notified the Board of its error and demanded that the funds be applied to reissue his license. On April 21, 1994, the Board corrected its mistake and applied the $350.00 to Respondent's license reissuance. Importantly, the Department in an internal memorandum officially placed collection of the Final Order debt on hold pending the outcome of Respondent's "appeal."

1. Around October 12, 1994, Respondent paid the remaining balance of his administrative fine.

2. Respondent's "appeal" with the United States District Court for the Northern District of Florida was dismissed without prejudice by the Court sometime in December, 1993.

23. On January 20, 1982, the Board of Chiropractic issued a Final Order reprimanding the Respondent and admonishing him against the use of the title "Chiropractic Adjuster General of the United States." The Board's Final Order of November 20, 1992, was issued based upon a violation of the January 20, 1982, Board Final Order.

22. In this very confused case, Respondent did not timely pay the administrative fine imposed in the Board's November 20, 1992, Final Order. However, the untimeliness was initially caused by the advice Respondent received from his counsel and a layperson's incorrect understanding of the appellate process. The untimeliness was further exacerbated by the Department's willingness to place the collection process on hold pending the outcome of the "appeal." In short, the general impression given the Respondent by the Department was that collection was on hold. By the time the "appeal" was over, Respondent had financial difficulties and could not pay the balance of the fine.

19. The violation, if any, was minimal, at best; however, Petitioner had already revoked Respondent's license for the untimely payment or nonpayment of the administrative fine. Therefore, Petitioner has had its remedy in this case and the administrative complaint should be dismissed.

CONCLUSIONS OF LAW

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

   
   

2. The Board of Chiropractic is the agency responsible for regulating the practice of chiropractic pursuant to Chapter 460, Florida Statutes. Section 460.413(1)(w), Florida Statutes, provide in pertinent part:

   
   

   460.413 Grounds for disciplinary action; action by the board.

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

   (w) Violating any provision of this chapter, any rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing

   to comply with a lawfully issued subpoena of the department.

   
   

3. Petitioner has the burden of establishing the violations alleged in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

4. In this case, Respondent was required to pay an administrative fine of

   $2,000.00 within thirty (30) days of entry of the November 20, 1992, Final Order of the Board of Chiropractic. Respondent completed payment of the administrative fine around October 12, 1994, more than 22 months after the date the fine was due and a date ten to eleven months after the date of the Court's dismissal of his federal case.

5. Although Respondent may have failed to timely pay the administrative fine, the violation, at best, was minimal. However, the evidence demonstrated that Petitioner had already imposed the penalty of revocation for the late payment of the administrative fine. Therefore, Respondent has already been punished for his untimely payment and cannot be punished a second time for the same violation. Therefore, the administrative complaint should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly,

RECOMMENDED:

that the Board enter a final order dismissing the administrative complaint. DONE and ENTERED this 26th day of January, 1995, in Tallahassee, Florida.

DIANE CLEAVINGER

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 26th day of January, 1995.

ENDNOTE

1/ Effective July 1, 1994, the Board of Chiropractic was transferred from the Department of Business and Professional Regulation to the Agency for Health Care Administration pursuant to Section 20.42, Florida Statutes (1994).

APPENDIX TO CASE NO.94-1227

1. The facts contained in paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21 of Petitioner's Proposed Findings of Fact are adopted in substance insofar as material.

2. The facts contained in paragraphs 1 and 15 of Petitioner's Proposed Findings of Fact are subordinate.

3. The facts contained in paragraphs 1, 4 and 7 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material.

4. The facts contained in paragraphs 2, 3, 5 and 8 of Respondent's Proposed Findings of Fact are subordinate.

5. The facts contained in paragraph 6 of Respondent's Proposed Findings of Fact were not shown by the evidence.

6. The facts contained in paragraph 9 were immaterial.

COPIES FURNISHED:

Jon M. Pellett

Qualified Non-Lawyer Representative Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Curtis J. McCall, D.C., Pro Se 811 Grace Avenue

Panama City, Florida 32401

Harold D. Lewis General Counsel

Agency for Health Care Administration The Atrium Suite 301

325 John Knox Road Tallahassee, FL 32303

Sam Power, Agency Clerk The Atrium Suite 301

325 John Knox Road Tallahassee, FL 32303

Diane Orcutt Executive Director Board of Chiropractic

Agency for Health Care Administration 1940 N. Monroe Street

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency concerning its rules on the deadline for filing exceptions to this Recommended Order.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF CHIROPRACTIC

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs. CASE NO. 93-11971

DOAH CASE NO. 94-1227

CURTIS J. MCCALL, JR., D.C., LICENSE NO.: CH 0001538,

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 March 23, 1995, in Tallahassee, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Jon Pellett, a qualified representative. The Respondent was present but was not represented by counsel at the Board meeting.

Upon consideration of the Hearing Officers Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, including the exceptions filed, the Board, upon proper motion struck the Respondents responses to the Petitioners exceptions and accepted the filing of the Petitioner's exceptions. Argument was then heard on the Petitioners exception. The Board by motion accepted the Petitioner's exception to paragraph

14 and 19. The Board therefore makes the following:

FINDINGS OF FACT

1. The Hearing Officer's Findings of Fact are hereby approved and adopted except for the finding in paragraphs 14 and 19. There was no competent substantial evidence to support the Hearing Officer's finding that the Respondent's license was revoked by the Board, nor was the Respondent's license reinstated by action of the Board. The Board rejects that portion of paragraph

   19 that suggests that the violation was minimal at best and that the "Petitioner" has had its remedy for a violation of the Board's Final Order.

   
   

2. There is competent, substantial evidence to support the Hearing Officer's other Findings of Fact.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

4. The Hearing Officer's Conclusions of Law are hereby approved and adopted except for paragraphs 19 and 28. The Board finds that paragraph 19 in the Hearing Officer's Recommended Order, though labeled a Finding of Fact, is in actuality a Conclusion of Law. The violation was not minimal and the Board has not had its remedy in this matter for a violation of its Final Order.

   
   

5. Respondent is guilty of violating Section 460.413(1)(w). Florida Statutes.

   
   

6. The penalty recommended by the Hearing Officer is hereby rejected.

   
   

7. There is competent, substantial evidence to support the Board's findings and conclusions.

THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

Respondent's license is hereby REPRIMANDED.

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 for Health Care Administration, Northwood Centre, 1940 N. Monroe Street, Tallahassee, Florida 32399-0792, 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

This Order shall become effective upon filing with the clerk of the Agency for Health Care Administration.

DONE AND ORDERED this 10th day of May, 1995.

DR. J. RANDALL GLISSON, 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 CURTIS J. MCCALL, JR., D.C., 811 Grace Avenue, Panama City, Florida 32401, 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 32399-0792, on or before 5:00 p.m., this day of , 1995.

OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE

*CERTIFICATE OF SERVICE FILED WITH DOAH WAS UNDATED AND UNSIGNED.

Docket for Case No: 94-001227

Orders for Case No: 94-001227