STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL ARTHUR DUNN, D.C., )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF HEALTH, BOARD OF ) CHIROPRACTIC MEDICINE, )

)

Respondent. )

Case No. 03-2939RX

)

FINAL ORDER

On October 3, 2003, an administrative hearing in this case was held in Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: William B. Bennett, Esquire

Kidder & Bennett

696 First Avenue, North, Suite 303 St. Petersburg, Florida 33701

For Respondent: Donna Erlich, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The issue in the case is whether Florida Administrative Code Rules 64B2-15.001(2)(e) and 64B2-15.001(2)(e)3. are invalid exercises of delegated legislative authority.

PRELIMINARY STATEMENT

On August 13, 2003, Michael Arthur Dunn (Petitioner) filed a petition to challenge Florida Administrative Code Rules 64B2- 15.001(2)(e) and 64B2-15.001(2)(e)3. pursuant to Sections 120.52(8)(d) and 120.56(1), Florida Statutes (2003).

The case was assigned to the undersigned on August 15, 2003, and originally scheduled for hearing on September 15, 2003. The parties waived statutory time frames set forth at Section 120.56, Florida Statutes, and, upon motion of the parties, the case was continued and rescheduled for October 3, 2003.

The parties acknowledge that an Administrative Complaint has been filed by the Department of Health, Board of Chiropractic Medicine (Respondent), against the Petitioner which alleges that the Petitioner has "advertised" by placing a designation ("CICE") on letterhead without a disclaimer required by Florida Administrative Code Rule 64B2-15.001(2)(e)3. The Petitioner asserts that the cited Rules are vague and fail to inform a reasonable person as to what is being prohibited. The Administrative Complaint filed against the Petitioner has not been referred to the Division of Administrative Hearings and is not at issue in this proceeding.

During the hearing, the Petitioner testified on his own behalf, and had Exhibits numbered 1 through 3 and 6 through 7

admitted into evidence. The Respondent presented the testimony of three witnesses, and had Exhibits numbered 1 through 3, 5 and 5A, and 7 through 8 admitted into evidence.

On October 6, 2003, the Respondent filed a Motion to Supplement the Record. On October 7, 2003, the Petitioner filed an Objection to the Motion. On October 10, 2003, the Petitioner filed an Amended Objection to the Motion or in the Alternative to Allow the Petitioner to Supplement the Record. On

October 13, 2003, the Respondent filed a Response to the Alternative Motion to Supplement the Record. Upon review of the Motions and Responses, it is hereby ordered that both Motions to Supplement the Record are denied.

The two-volume Transcript of the hearing was filed on October 17, 2003. By agreement, the parties filed Proposed Final Orders on November 10, 2003.

FINDINGS OF FACT

1. The Petitioner, a Florida-licensed chiropractor, is the subject of an Administrative Complaint filed against him by the Department of Health, Board of Chiropractic.

2. The Administrative Complaint alleges that the Petitioner's letterhead identifies him as a "CICE (Certified Independent Chiropractic Examiner)" and that such designation requires a disclaimer as set forth at Florida Administrative Code Rule 64B2-15.001(2)(e)3.

3. The Administrative Complaint further alleges that the use of the designation constitutes a deceptive and misleading advertisement pursuant to Florida Administrative Code Rule 64B2- 15.001(2)(e).

4. The Administrative Complaint was filed as the result of a complaint against the Petitioner filed by another chiropractor.

5. The American Board of Independent Medical Examiners (ABIME) bestows the designation "CICE" on chiropractors. Some chiropractors such as the Petitioner obtain the designation by completing a 20-hour course over a weekend and then passing a test. A witness for the Respondent, Dr. Ronald Lee Harris, obtained the designation by working with the ABIME on reviewing examination questions used by the ABIME and has not completed any course of training related to the CICE designation. Another witness for the Respondent, Dr. Stanley Kaplan, testified that he was listed on the ABIME website with the CICE designation, but that he was unaware of the designation until the day prior to the hearing and has not completed any course of training related to the CICE designation.

6. Florida Administrative Code Rule 64B2-15.001(2)(e) provides as follows:

   64B2-15.001 Deceptive and Misleading Advertising Prohibited; Policy; Definition.

   (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:

   
   

   * * *

   
   

   (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 chiropractors, 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 chiropractic specialty area recognized by the Board of Chiropractic.

   
   

   1. Chiropractic Specialities recognized by the Board are those recognized by the various Councils of the American Chiropractic Association or the International Chiropractic Association. Each speciality requires a minimum of 300 hours of post-graduate credit hours and passage of a written and oral examination approved by the American Chiropractic Association or International Chiropractic Association. Titles used for the respective specialty status are governed by the definitions articulated by the respective councils.

      
      

   2. A Diplomate of the National Board of Chiropractic Examiners is not recognized by the Board as a chiropractic specialty status for the purpose of this rule.

      
      

   3. A chiropractor who advertises that he or she has attained recognition as a specialist in any specific chiropractic or adjunctive procedure by virtue of a certification

   received from an entity not recognized under this rule may use a reference to such specialty recognition only if the board, agency, or other body which issued the additional certification is identified, and only if the letterhead or advertising also contains in the same print size or volume the statement that “The specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine.”

   
   

7. The Petitioner asserts that the phrase "other than a simple listing of earned professional post-doctoral or other professional achievements" as set forth at Florida Administrative Code Rule 64B2-15.001(2)(e) is vague and fails to properly apprise a reasonable person as to what is prohibited.

8. The Respondent presented the expert testimony of three witnesses during the hearing. Two of the three witnesses offered differing opinions as to what constitutes "a simple listing of earned professional post-doctoral or other professional achievements."

9. Dr. Stanley Kaplan testified that the phrase would permit a chiropractor to list only his chiropractic degree, but also indicated that a "simple listing" could include any items a chiropractor would include on a curriculum vita.

10. Dr. Ronald Lee Harris testified that the phrase includes only the chiropractic degree and that listing "achievements" other than a degree and Diplomate status would

    require inclusion of the language related to the awarding entity's lack of affiliation with or recognition by the Florida Board of Chiropractic Medicine (the "disclaimer language").

    Dr. Harris testified that the information set forth on a curriculum vita would not be properly included in "a simple listing of earned professional post-doctoral or other professional achievements."

11. Dr. Steven Willis testified that the phrase "simple listing of earned professional post-doctoral or other professional achievements" could be viewed as vague if considered outside the context of the remainder of the rule section, but asserted that the language set forth in subsection 3 of Florida Administrative Code Rule 64B2- 15.001(2)(e) clarified the phrase. Dr. Willis' testimony was credible and is accepted.

12. Based on the testimony of Dr. Steven Willis and a contextual reading of the Rule, Florida Administrative Code Rule 64B2-15.001(2)(e) is not vague. The evidence establishes that the reference to "a simple listing of earned professional post-doctoral or other professional achievements" achievements

    in Florida Administrative Code Rule 64B2-15.001(2)(e) is limited by subsection 3 to require inclusion of a disclaimer in certain specific circumstances.

13. Clearly a chiropractor can advertise the fact that he has received a doctorate in chiropractic medicine. A chiropractor may also advertise "earned professional post- doctoral or other professional achievements," whether or not the Board of Chiropractic Medicine has recognized the conferring entity. In the event the Board has not recognized the conferring entity, the advertising chiropractor must include the disclaimer language when the designation connotes "recognition as a specialist in any specific chiropractic or adjunctive procedure."

14. The Petitioner further asserts that Florida Administrative Code Rule 64B2-15.001(2)(e)3. is vague because the phrase "specialist in any specific chiropractic or adjunctive procedure" is capable of multiple interpretations.

15. The evidence establishes that, within the context of the Rule, "specialist in any specific chiropractic or adjunctive procedure" has sufficient meaning to convey who is being identified and is therefore not vague. The Rule requires only that where an advertising chiropractor represents himself to be a specialist in any chiropractic or adjunctive procedure by virtue of a "certification" from an unrecognized entity, the advertising must include the disclaimer language that the certification was received from a "private organization not

    affiliated with or recognized by the Florida Board of Chiropractic Medicine."

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. § 120.56, Fla. Stat.

17. The Petitioner asserts that Florida Administrative Code Rules 64B2-15.001(2)(e) and 64B2-15.001(2)(e)3. are invalid exercises of delegated legislative authority as defined by Section 120.52(8)(d), Florida Statutes.

18. In relevant part, Section 120.52(8)(d), Florida Statutes, provides as follows:

    (8) "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:

    * * *

    (d) The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the

    agency. . . .

    
    

19. The Petitioner has the burden in a challenge to an existing rule of establishing by a preponderance of the evidence that the cited rule is an invalid exercise of delegated legislative authority. § 120.56(3)(a), Fla. Stat. See also Florida Department of Transportation v. J.W.C. Company, 396 So.

    2d 778 (Fla. 1st DCA 1981); Dravo Basic Materials Co., Inc., v. Department of Transportation, 602 So. 2d 632 (Fla. 2d DCA 1992). In this case, the burden has not been met.

20. A government restriction is vague if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. Witmer v. Florida, Dep't of Bus. & Prof. Reg., Div. of Pari-Mutuel Wagering, 662 So. 2d 1299 (Fla. 4th DCA 1995), citing Bouters v. Florida, 659 So. 2d 235 (Fla. 1995).

21. The evidence fails to establish that Florida Administrative Code Rule 64B2-15.001(2)(e) is vague. The testimony of the two witnesses who differed on the application of the Rule addressed the Rule absent consideration of the Rule's modifying subsections. A contextual reading of the Rule, including the subsections of the Rule, establishes that the phrase "a simple listing of earned professional post-doctoral or other professional achievements" is not vague. A chiropractor may advertise "earned professional post-doctoral or other professional achievements." The reference to "a simple listing of earned professional post-doctoral or other professional achievements" achievements in Florida Administrative Code Rule 64B2-15.001(2)(e) is limited by subsection 3 of Florida Administrative Code Rule 64B2-15.001(2)(e). Where the

    achievement designates "recognition as a specialist in any specific chiropractic or adjunctive procedure" by a conferring entity not affiliated with or recognized by the Florida Board of Chiropractic Medicine, the advertising chiropractor must include the disclaimer language.

22. The Petitioner asserts that Florida Administrative Code Rule 64B2-15.001(2)(e)3. is vague because the phrase "specialist in any specific chiropractic or adjunctive procedure" is undefined. The Petitioner has failed to establish that, in the context of the Rule, the phrase is vague or has insufficient meaning to identify the practitioner being addressed. The Rule clearly refers to advertising wherein a chiropractor indicates that he is a "specialist in any chiropractic or adjunctive procedure" by "virtue of a certification received from an entity not recognized under this rule." Where a chiropractor advertises as a "specialist in any chiropractic or adjunctive procedure by virtue of a certification" from an unrecognized entity, the advertising must include disclaimer language stating that the certification was received from a "private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine." Whether or not a designation constitutes a "certification" that the advertising chiropractor is a "specialist in any

    chiropractic or adjunctive procedure" is a question of fact that must be determined on a case-by-case basis.

23. The parties presented evidence on issues that should be addressed during a hearing on the Administrative Complaint filed against the Petitioner. Such issues include whether the Petitioner's letterhead constitutes advertising, whether the performance of an "independent medical examination" is a "process" or a "procedure," and whether the inclusion of the CICE designation on letterhead indicates that the Petitioner is a "specialist in any specific chiropractic or adjunctive procedure by virtue of a certification" from an unrecognized entity so as to require use of disclaimer language. Such issues are outside the scope of this rule challenge proceeding.

24. The Petitioner also asserts that the cited Rules are so vague as to violate the Fifth Amendment of the United States Constitution and Article I, Section 9, of the Florida Constitution. An Administrative Law Judge is without authority to consider issues of constitutionality involving existing administrative rules. Key Haven Association Enterprises, Inc. v. Board of Trustees of Internal Improvement Trust Fund, 427 So. 2d 153 (Fla. 1982); Department of Revenue v. Young American Builders, 330 So. 2d 864 (Fla. 1st DCA 1976).

ORDER

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

ORDERED that the Petitioner's challenge to Florida Administrative Code Rules 64B2-15.001(2)(e) and 64B2- 15.001(2)(e)3. is DISMISSED.

DONE AND ORDERED this 21st day of November, 2003, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2003.

COPIES FURNISHED:

William B. Bennett, Esquire Kidder & Bennett

696 First Avenue, North, Suite 303 St. Petersburg, Florida 33701

Donna Erlich, Esquire Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health

4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 03-002939RX

Orders for Case No: 03-002939RX