The Issue The issues in this case are whether Respondent engaged in sexual misconduct in the practice of chiropractic medicine, in violation of section 460.412, Florida Statutes, or whether Respondent engaged in sexual misconduct while acting as a health care professional in violation of section 456.072(1)(v), Florida Statutes; and, if so, what is the appropriate sanction.
Findings Of Fact The Florida Department of Health, Board of Chiropractic Medicine, is the state agency charged with regulating the practice of chiropractic medicine in the state of Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. At all times material to this proceeding, Dr. Kian was a licensed chiropractic physician in the state of Florida, holding license number CH10343. He is subject to jurisdiction of the Board of Chiropractic Medicine. Dr. Kian has also been licensed to practice in the states of Kentucky and Kansas, and has practiced chiropractic medicine in Germany. Dr. Kian's current address of record is 901 West Indiantown Road, Suite 20, Jupiter, Florida 33458. He received his chiropractic degree in 2009 from Life University in Georgia. Dr. Kian operates a chiropractic clinic named Capstone Chiropractic, renting office space at that location to an acupuncturist named Kelvin Yu (Mr. Yu) and a massage therapist named Robert Lorezca (Rob). Dr. Kian has not previously been subject to disciplinary action by the Board of Chiropractic Medicine. Patient J.K. has been recently licensed as a registered nurse. At the time of the incidents alleged in this case, she was a licensed practical nurse. Patient J.K. had received chiropractic treatment from three or four different chiropractors on about 20 to 30 occasions prior to meeting Dr. Kian. Patient J.K. frequently receives treatment by Rob for muscle soreness. Rob was a friend of Patient J.K.'s family, and they have known each other for many years. Patient J.K. first met Dr. Kian after an appointment with Rob for a massage therapy session at Capstone Chiropractic. That meeting occurred months before the incident at issue. On that earlier occasion, Dr. Kian gave Patient J.K. a free chiropractic adjustment as a favor to Rob. The treatment was administered in an open area. On April 25, 2017, when Patient J.K. first entered Capstone Chiropractic, she had a brief conversation with Rob, Dr. Kian, and Mr. Yu, and they discussed that they could open a spa because they offered so many different treatment options. She discussed a chiropractic adjustment with Dr. Kian, and he indicated he would adjust her after her massage with Rob. She also had an appointment with Mr. Yu. After her massage, Dr. Kian took Patient J.K. to a table in the open room to adjust her. Although she had been undressed for the massage, she had put her clothes back on afterwards, and was fully clothed during the adjustment. Patient J.K. told Dr. Kian that she had pain in her lower back, as she frequently did, and that recently her right foot also had begun to hurt. Following the adjustment, Dr. Kian offered Patient J.K. an additional trigger point release treatment. This would involve a treatment of the hamstring and the psoas, a muscle which runs from the lumbar spine to the femur. To administer the trigger point release, Dr. Kian was to perform a deep massage of the affected areas. Patient J.K. asked Dr. Kian if the trigger point release massage required skin-on-skin contact, and Dr. Kian told her it did. She returned to the private massage room she had been in earlier with Rob. She undressed completely and lay face down on the massage table, covered by a sheet. When Dr. Kian returned, they were the only persons in the room. When Patient J.K. was on her stomach, Dr. Kian lifted the sheet to massage her hamstrings. Patient J.K. could feel that the sheet was "pulled all the way off," exposing her buttocks, so she pulled the sheet back to cover herself. Dr. Kian then readjusted the sheet "halfway" and proceeded to massage Patient J.K.'s hamstring. When massaging Patient J.K.'s hamstring, Dr. Kian gradually moved his hand between Patient J.K.'s legs, touching her labia. When Patient J.K. was touched, she flinched away, pulled the sheet down, and said "whoa." She initially thought this first touch might have been unintentional. Dr. Kian began to work on her right foot a while, and then asked Patient J.K. to flip on to her back so that he could treat her psoas muscle. She turned on to her back underneath the sheet. Dr. Kian then moved the sheet, exposing the lower half of Patient J.K.'s body. Patient J.K. again pulled the sheet back over to cover herself. Dr. Kian then readjusted the sheet, leaving Patient J.K.'s vaginal area partially exposed. Dr. Kian then began to massage the psoas muscle, working from the outside toward the inside of her body. Dr. Kian kept moving his hand toward the center, between Patient J.K.'s legs, and he again touched her labia. Patient J.K. immediately looked up to see Dr. Kian leaning very closely over her lower body. She pulled the sheet to cover herself and said "whoa." Patient J.K. knew at that point that his exposing her and touching her was intentional because it was the second time that it had happened, and she was shocked. Dr. Kian immediately straightened up and walked up toward Patient J.K.'s head, saying he wanted to do an adjustment. He started to massage her left shoulder area, moving toward her breast. Patient J.K. told him that was okay, that was enough, and that she needed to go. Dr. Kian said, "Well, let me adjust your back, lean forward." Patient J.K. pulled the sheet under her arms and leaned forward. She did not hear any popping and so again said that it was time for her to go. Patient J.K. testified she just wanted to get out of there. She turned her legs off of the bed to sit on its edge. As soon as she leaned forward, she testified that Dr. Kian was "literally right in my face." Patient J.K. believed that Dr. Kian intended to kiss her on the lips. She turned her head to the left, and he kissed her on the cheek. Patient J.K. testified that she believed Dr. Kian would have kissed her on the lips had she not turned her head. Dr. Kian exited the room, and Mr. Yu came in immediately. Even though her mother's dental appointment was actually later in the afternoon, Patient J.K. told Mr. Yu that she had to leave to go to it and would not have time for her acupuncture treatment. She just wanted to go. As soon as Mr. Yu left, Patient J.K. dressed herself and went to the counter where Dr. Kian, Rob, and Mr. Yu were standing. She said nothing about what had happened to either Rob or Mr. Yu. She paid Rob for her massage and Dr. Kian for the adjustment. Dr. Kian was surprised by the offer to pay, but Patient J.K. insisted that he accept payment. As Dr. Shreeve testified, the scope of practice for chiropractors requires that they do not intentionally expose any genital area or any part of a patient's body that does not need to be open to the doctor's skin-to-skin contact. In treating Patient J.K., there was no need to expose her buttocks or vaginal area. As Dr. Shreeve's testimony indicated, when properly treating the psoas muscle, a chiropractor's hands would not be near the vaginal area, and there was no justification for touching Patient J.K.'s labia in her treatment. Under all of the circumstances, it is clear that Dr. Kian used the chiropractor- patient relationship to engage in sexual activity outside of the scope of professional practice by intentionally exposing Patient J.K.'s buttocks and vaginal area and intentionally touching her labia. Following the incident, Patient J.K. drove from Jupiter to her home in Vero Beach, a drive of about an hour and a half. She reflected on what Dr. Kian had done. When she arrived in Vero Beach, Patient J.K. called her brother, who was a licensed chiropractor, and told him what had happened. She also called her Aunt Mary and a family friend, who was an attorney, and asked what she should do. He told her that she needed to go to the police. She tried a couple of times to contact Rob to discuss what had happened. She was unable to communicate with Rob and then decided not to try to contact him again about the incident. Patient J.K. decided to report Dr. Kian so that he could not sexually assault another patient. Patient J.K. drove to the Jupiter Police Department on April 27, 2017, and reported the incident. An interview was scheduled for May 4, 2017, and conducted by Detective Panczak. Detective Panczak subsequently contacted the Department of Health. Patient J.K.'s testimony was clear and convincing, and she was consistent in her recollection in all major respects. Minor differences in her accounts of events reflected that she was genuine in her efforts to tell her story as accurately as possible from her memory on each occasion and did not attempt to craft or memorize a single version of events. Patient J.K. did not struggle to remember the relevant facts. While her testimony that she believed Dr. Kian intended to kiss her on the lips following the trigger point release session was credible, it is possible that Dr. Kian might have intended to kiss her on the cheek for a more benign purpose; and under all of the circumstances, it was not clearly and convincingly shown that his action in kissing her on the cheek constituted sexual misconduct. Dr. Kian denied all allegations except kissing Patient J.K. on the cheek.1/ His assertions that she was never exposed, that his hands were never close to Patient J.K.'s vaginal area, and that her body shape and positioning would have prevented exposure of her vaginal area and prevented him from touching her labia were not credible and are rejected. Revocation of Dr. Kian's professional license would have a very great effect upon his livelihood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health, Board of Chiropractic Medicine, enter a final order finding Dr. Hamed Kian in violation of sections 456.072(1)(v) and 460.412, Florida Statutes; revoking his license to practice chiropractic medicine; and imposing costs of investigation and prosecution. DONE AND ENTERED this 27th day of July, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2018.
The Issue The issues in this case are whether Respondent engaged in sexual misconduct in the practice of chiropractic medicine, in violation of section 460.412, Florida Statutes; and, if so, what is the appropriate sanction.
Findings Of Fact The Board is the state agency charged with regulating the practice of chiropractic medicine in the State of Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. At all times material to this proceeding, Dr. Rodriguez was a licensed chiropractor in the State of Florida, having been issued license number CH 9812 on September 17, 2009. Dr. Rodriguez's address of record with the Department is 1840 Northwest 122nd Terrace, Pembroke Pines, Florida 33026. Patient D.H. was a 22-year-old patient of Dr. Rodriguez. She had been referred to Dr. Rodriguez by her mother, also a patient. Patient D.H. was the one who suggested initial treatment with Dr. Rodriguez. She had seen him about six times over a period of two months. On or about June 6, 2012, Patient D.H. presented to Dr. Rodriguez for chiropractic treatment. Dr. Rodriguez began treating Patient D.H. in one of the treatment rooms in his practice. As she was turning over on the examination table, Patient D.H.'s left breast was exposed. Dr. Rodriguez commented on her breast being exposed. Patient D.H. replaced her breast under her tank top. As Dr. Rodriguez continued with his treatment, her breast was again exposed, prompting Dr. Rodriguez to say that Patient D.H. was getting him excited, or words to that effect. Dr. Rodriguez touched both of her breasts with his hands. He then kissed her breasts. Patient D.H. testified that she was in shock because his actions were sudden and caught her off guard. Dr. Rodriguez left the room. Dr. Rodriguez's staff placed Patient D.H. in a massage chair in a common area of the office. After Patient D.H. stated that she still had pain, she was taken into another room for an additional treatment on her shoulder. In the new room, Patient D.H. lay down on the treatment table. After placing some patches on her shoulder, Dr. Rodriguez again touched her breasts. He placed his hand inside her pants and inserted two fingers into her vagina. She testified that she told him to stop. Dr. Rodriguez again told her how she excited him. Patient D.H. later testified that she was in shock and unable to react. Dr. Rodriguez and Patient D.H. made a "pinky promise" not to say anything, and then Dr. Rodriguez washed and dried his hands. He placed a Chinese herbal remedy above her left breast, told her to sleep, and left the room. When he returned, Patient D.H. began crying. Dr. Rodriguez gave her a hug and kissed her on the cheek. While Patient D.H. was in a treatment room with Dr. Rodriguez, he engaged in sexual contact with her which was outside the scope of her medical treatment. Other than as described, Patient D.H. made no complaint to Dr. Rodriguez, nor did she complain to an office staff member. Patient D.H. left Dr. Rodriguez's office and started driving to her cousin's house. She then pulled over and called the police and her mother to tell what had happened. Patient D.H.'s mother testified that she received a phone call from her daughter about 5:00 p.m., saying that Dr. Rodriguez had molested her, and immediately went to meet her. Patient D.H.'s parents took her to the Cooper City district office of the BCSO to report the crime. On June 11, 2012, in conjunction with a criminal investigation by the BCSO, Patient D.H. made a controlled telephone call to Dr. Rodriguez while in the presence of a detective. During the conversation, Dr. Rodriguez said that he did not want to discuss things on the telephone because he could not be sure he was not being recorded, and asked Patient D.H. to come see him at the office. Patient D.H. said she would be uncomfortable seeing him and that is why she had called on the telephone. Their conversation included words to the following effect: Patient D.H.: Do you . . . do you really do this to your other patients? Dr. R.: I don't. That's why I'm . . . I couldn't sleep this weekend. I . . . I . . . I'm exhausted. I'm physically and mentally exhausted. Patient D.H.: But why me? Dr. R.: I don't know. It just happened, hon. That's what I'm telling you, it just, it just happened. Patient D.H.: I just want to know why me? Dr. R.: I don't . . . I don't know . . . I, I just don't know. Um . . . you know, and I wasn't sure because you know, um . . . you know you, you um, when you came about, you showed me your breasts, um . . . . Patient D.H.: It wasn't . . . you know, it was an accident, I wasn't trying to personally . . . . Dr. R.: No, but you know, but when you did the other part, you know, then I thought that that was um. Patient D.H.: What other part are you talking about? Dr. R.: No dear, no, your breasts, and that was an invitation . . . or an open, you know, "here" and for some reason we were talking about stuff, it's a blank to me. I do not remember . . . if you asked me . . . it was just, I do not remember, um, how exactly everything happened, but it just happened. Patient D.H.: Don't you remember . . . don't you remember putting your hand on my breasts and putting your two fingers in my vagina? Do you remember that? Dr. R.: Yes. Patient D.H.: Yes, you do remember that, right? Dr. R.: Hon, I don't even want to, I don't even want to go there. I don't even want to be going there, because I didn't feel comfortable with that at all. Patient D.H.: How, how do you think I feel? I'm not comfortable at all myself. Dr. Rodriguez later engaged the services of a forensic audio engineer who generated an enhanced audio version of the above-described controlled telephone call. During this call, Detective Wernath's voice can be heard in the background, coaching Patient D.H. through portions of the conversation. The criminal investigation also found that a DNA sample from a buccal swab taken from Dr. Rodriguez matched DNA collected from Patient D.H.'s breast. As Mr. Rhodes testified, the chance of a false positive was less than one in 30 billion. Dr. Rodriguez has admitted the sexual activity, while maintaining that his conduct was invited by Patient D.H.'s actions. Specifically, Dr. Rodriguez testified that he believed that Patient D.H. intentionally made her breast "slip out" of her tank top several times, that it was not an accident. He testified that when he told her that he could see her exposed breast, she responded, "Oh, I don't mind." He testified that Patient D.H. was being flirtatious and, by her provocative actions, was encouraging his behavior. Dr. Rodriguez's testimony that he believed Patient D.H. encouraged his sexual misconduct is supported by his statements directly to Patient D.H. on the recorded call, when he thought no one else was listening, and is credible. But regardless of what Dr. Rodriguez may have perceived, or the degree, if any, to which Patient D.H. was complicit in Dr. Rodriguez's sexual misconduct, her involvement would not excuse his actions. A chiropractor is not free to engage in sexual activity with his patient even if the patient encourages or consents to it. There was scant evidence in the record to suggest that Dr. Rodriguez accepts or understands this professional responsibility. Patient D.H.'s testimony as to Dr. Rodriguez's actions was clear and convincing. Her testimony as to his actions is credited and is confirmed by his own statements in the controlled telephone call and at hearing. Respondent's touching of Patient D.H.'s breasts with his hand and mouth and insertion of his fingers into her vagina constituted engaging in sexual activity with a patient and was sexual misconduct in the practice of chiropractic medicine. Patient D.H. engaged in a civil lawsuit against Dr. Rodriguez. She has since executed a release in that case. Dr. Rodriguez has not previously been subject to disciplinary action by the Board. Dr. Rodriguez credibly testified that he has installed video cameras in the treatment rooms to ensure that there will be no further incidents. He noted that the purpose of these cameras was to protect him. Dr. Rodriguez demonstrated little or no remorse, the focus of his spirited testimony being directed towards the provocative conduct of Patient D.H., not his own inappropriate actions. Revocation or suspension of Dr. Rodriguez's professional license would have a great effect upon his livelihood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health, Board of Chiropractic Medicine, enter a final order finding Dr. Enrique Rodriguez in violation of section 460.412, Florida Statutes; revoking his license to practice chiropractic medicine; and imposing costs of investigation and prosecution. DONE AND ENTERED this 29th day of March, 2019, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2019.
The Issue Whether Respondent violated Subsections 460.413(1)(ff) and 456.072(1)(u), and Section 460.412, Florida Statutes (2002),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Dr. Hether was a licensed chiropractic physician within the State of Florida, having been issued license number CH 2601 on or about April 16, 1977. Other than the instant Administrative Complaint, Dr. Hether has had no disciplinary action taken against his license. In April 2003, Dr. Hether had two chiropractic offices, one in Port Orange, Florida, and one in Deland, Florida. On or about April 8, 2003, C.B., a 29-year-old female, presented herself to Dr. Hether's office in Port Orange, Florida, in order to receive chiropractic treatment for injuries she sustained in an automobile accident. C.B. began receiving treatments in the Port Orange Office, but switched her appointments to the Deland office on or about May 8, 2003. The remainder of her treatments was given at the Deland office. Her treatments included chiropractic adjustments and massages. The chiropractic adjustments were performed by Dr. Hether and other physicians who worked for Dr. Hether; however, the majority of the chiropractic adjustments were performed by Dr. Hether. Until C.B.'s visit on June 11, 2003, all the massages had been performed by licensed massage therapists who worked for Dr. Hether. From on or about April 8, 2003, up to June 11, 2003, C.B. received various chiropractic treatments at Dr. Hether's offices without incident. On June 11, 2003, C.B. presented herself to Dr. Hether's office to receive her usual chiropractic treatment, including a massage. Dr. Hether, his son, and another male were in the office. Dr. Hether offered to perform the massage on C.B. because the regular massage therapist was not present, and C.B. accepted. C.B. went into the massage room, undressed to her underwear, and lay face down on the table with a sheet draped over her. Dr. Hether came into the massage room and began to massage C.B. Dr. Hether and C.B. were the only persons in the room during the massage. While C.B. was lying face down, Dr. Hether slipped his hands under C.B.'s underwear on the left side of her buttocks and then placed his hand under her underwear on the right side of her buttocks. At Dr. Hether's instruction, C.B. turned over onto her back. Dr. Hether placed his hands under C.B.'s breast area and rubbed upward towards her cleavage. Dr. Hether then slid his hand down C.B.'s body toward her vaginal area, grabbed a part of C.B.'s vaginal area, and began to make grunting noises as if he were getting sexual pleasure from the touching. While Dr. Hether was touching C.B.'s vaginal area, Chase Hether, Dr. Hether's son and office manager, knocked on the door to the massage room. Dr. Hether briefly stopped the massage to speak to his son. The door was partially open, but Chase Hether could not see inside the massage room. After speaking to his son, Dr. Hether closed the door and walked back to the massage table, where he again placed his hand in C.B.'s vaginal area and slid his fingers back and forth. Dr. Hether then shoved his hand further down C.B.'s panties and repeatedly thumped C.B.'s vaginal area. While Dr. Hether was thumping her vaginal area with one hand, he grabbed C.B.'s ankle with the other hand, while using the full pressure of his body weight on her body. Dr. Hether resumed making the grunting sounds and continued to make the sounds for a while. C.B. had approximately 27 massages at Dr. Hether's offices from the time she began treatment in April 2003 until June 11, 2003. The massage therapists who gave her those massages did not touch C.B.'s pubic area or touch the areas around C.B. breasts. After the massage, C.B. got dressed and went into another room to receive a chiropractic adjustment from Dr. Hether. Dr. Hether gave the chiropractic adjustment without any further inappropriate touching. After he concluded the chiropractic treatment, he asked C.B. personal questions about her living arrangements and occupation. C.B. went into the reception area of the office to leave the building. She saw Chase Hether and another man in the reception area. C.B. did not tell either man what had happened nor did she tell them that she would not be back to Dr. Hether's office for treatment. While Dr. Hether was touching C.B. inappropriately, she did not cry out, tell him to stop, or attempt to leave. When Chase Hether came to the door of the massage room, C.B. did not tell him what Dr. Hether was doing. C.B. did not try to stop the massage, leave Dr. Hether's offices, or tell others at Dr. Hether's office about the inappropriate touching because she was afraid of Dr. Hether and did not know what else Dr. Hether might do to her. She felt like she was a "visitor in her own body" and had no control over what was being done to her. She did not report the incident to the police department because she felt that the police were ineffective. C.B. did not go back to Dr. Hether's offices for treatment after the incident on June 11, 2003. She sought treatment from another chiropractic physician, Dr. Kimberly Watson, whom C.B. saw on June 23, 2003. C.B. told Dr. Watson what had happened to her at Dr. Hether's office. Dr. Watson advised C.B. that she could file a complaint with the Department of Health. C.B. did send a complaint to the Department of Health in June 2003, but she sent it to the wrong address. She got the correct address from Dr. Watson and filed a complaint with the Department of Health in September 2003. A year passed, and she contacted the Department of Health, wanting to know the status of her complaint. C.B. was told to file another complaint, which she did. Dr. Hether's wife, Kathe Hether, testified that she was at Dr. Hether's office the day of the incident and that as C.B. was leaving the office she spoke to C.B. for several minutes concerning her publishing business and that C.B. told her that she was going to another chiropractor that was nearer to her home. Mrs. Hether's testimony is not credible. Her husband of 36 years did not advise her until two months before the final hearing, that an administrative complaint had been filed against him. It is inconceivable that two and one-half years after their conversation, Ms. Hether vividly remembers talking to C.B. when there had been no reason to remember the conversation. Additionally, Ms. Hether's explanation for C.B.'s failure to return to Dr. Hether for treatment because C.B. wanted to go to a chiropractor closer to her home is also not credible. C.B. chose to seek treatment from Dr. Watson, whose office was about the same distance from C.B.'s home as Dr. Hether's office. C.B. also told Dr. Watson about the incident with Dr. Hether, explaining the reason that she discontinued treatment with Dr. Hether. C.B. has not brought a civil action against Dr. Hether for the incident on June 11, 2003. She filed the complaint with the Department so that Dr. Hether would not touch other patients inappropriately.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that James Hether, D.C., violated Subsection 460.413(1)(ff), Florida Statutes, by violating Subsection 456.072(1)(u) and Section 460.412, Florida Statutes; issuing a reprimand; imposing a $2,500 administrative fine; requiring a psychological evaluation by the professional resource network; and placing him on probation for two years, the terms of which would include a practice restriction prohibiting him from treating female patients without another certified health care professional in the room. DONE AND ENTERED this 28th day of July, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 28th day of July, 2006.
The Issue The issue in this case is whether Florida Administrative Code Rule Subsections 64B2-15.001(2)(e), (i), and (l) constitute an invalid exercise of delegated legislative authority in that they exceed Respondent's rulemaking authority or enlarge, modify, or contravene the law the Rule implements.
Findings Of Fact Petitioner Michael John Badanek, D.C., is a duly licensed chiropractic physician in the State of Florida. Dr. Badanek actively practices in Ocala, Florida. Dr. Badanek has engaged in and is engaging in, the advertising of professional services to the public. Dr. Badanek is subject to the provisions of Chapter 460, Florida Statutes, and the rules promulgated by Respondent. Dr. Badanek's failure to adhere to the provisions of Chapter 460, Florida Statutes, and the rules promulgated thereunder, including the Challenged Rule Subsections, may result in the discipline of his professional license. Dr. Badanek has standing to challenge the Challenged Rule Subsections. The affected state agency is the Board of Chiropractic Medicine (hereinafter referred to as the "Board"), located at 4052 Bald Cypress Way, Tallahassee, Florida. The Board is charged by Chapter 460, Florida Statutes, with the duty of regulating the chiropractic profession in Florida. In carrying out that duty, the Board has adopted Florida Administrative Code Rule Chapter 64B2. At issue in this matter is the Challenged Rule Subsections of Florida Administrative Code Rule 64B2-15.001. The Challenged Rule Subsections provide the following: 64B2-15.001 Deceptive and MisleadingAdvertising 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) Coveys the impression that the chiropractor or chiropractors, disseminating the advertising or referred to therein, posses 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. Chiropractic Specialties recognized by the Board are those recognized by the various Councils of the American Chiropractic Association or the International Chiropractic Association. Each specialty 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. 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. A chiropractor who advertises that he or she has attained recognition as a specialist in any 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." A chiropractor may use on letterhead or in advertising a reference to any honorary title or degree only if the letterhead or advertising also contains in the same print size or volume the statement "Honorary" or (Hon.) next to the title. . . . . (i) Contains any representation regarding a preferred area of practice or an area of practice in which the practitioner in fact specializes, which represents or implies that such specialized or preferred area of practice requires, or that the practitioner has received any license or recognition by the State of Florida or its authorized agents, which is superior to the license and recognition granted to any chiropractor who successfully meets the licensing requirements of Chapter 460, F.S. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a specialty area recognized by the Board, or . . . . (l) Contains a reference to any other degree or uses the initials "M.D." or "D.O." or any other initials unless the chiropractic physician has actually received such a degree and is a licensed holder of such degree in the State of Florida. If the chiropractic physician licensee is not licensed to practice in any other health care profession in Florida, the chiropractic physician must disclose this fact, and the letterhead, business card, or other advertisement shall also include next to the reference or initials a statement such as "Not licensed as a medical doctor in the State of Florida" or "Licensed to practice chiropractic medicine only" in the same print size or volume. . . . . The authority cited by the Board as its "grant of rulemaking authority" for the Challenged Rule Subsections is Section 460.405, Florida Statutes, which provides: Authority to make rules.--The Board of Chiropractic Medicine has authority to adopt rules pursuant to ss 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it. The Board has cited Sections 456.062 and 460.413(1)(d), Florida Statutes, as the "law implemented" by the Challenged Rule Subsections. Section 456.062, Florida Statutes, provides: Advertisement by a health care practitioner of free or discounted services; required statement.--In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care practitioner licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 464, chapter 465, chapter 466, chapter 467, chapter 478, chapter 483, chapter 484, chapter 486, chapter 490, or chapter 491, 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 THAT 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. However, the required statement shall not be necessary as an accompaniment to an advertisement of a licensed health care practitioner defined by this section if the advertisement appears in a classified directory the primary purpose of which is to provide products and services at free, reduced, or discounted prices to consumers and in which the statement prominently appears in at least one place. Section 460.413(1)(d), Florida Statutes, provides the following ground for disciplinary action: "False, deceptive, or misleading advertising." While neither this provision nor any other specific provision of Chapter 460, Florida Statutes, imposes a specific duty upon the Board to define what constitutes "false, deceptive, or misleading advertising," the Board is necessarily charged with the duty to apply such a definition in order to carry out its responsibility to discipline licensed chiropractors for employing "false, deceptive, or misleading advertising."
Findings Of Fact At all relevant times, the Respondent Joseph O. Smith, was licensed as a chiropractic physician by the Florida Board of Chiropractic. On or about March 3, 1982, an investigator for the Department of Professional Regulation, William Pawley, went to the chiropractic office of the Respondent Smith and took into his possession five (5) pieces of literature, each containing the name of the Respondent Smith, from the public waiting area of the office. The literature consisted of the following: A brochure entitled "Total Health Care Center", on which is printed the name Dr. Joseph O. Smith with no designation of the Center as a chiropractic or related facility or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 1) A flyer with the Respondent Smith's and Total Health Care Center's address captioned across the top, with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 2) A brochure entitled "What to Do in Case of an Automobile Accident" which has the Respondent's and Total Health Care Center's address and telephone number on the cover with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 3) A wallet-size card with the Republican Party's elephant symbol, the slogan "The Republican Party of Florida" and the Respondent's name without a designation of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 4) A booklet entitled "Foundation of Man" authored by the Respondent Smith which designates him as a chiropractic physician. (Petitioner's Exhibit No. 5) The "Total Health Care Center" is located at 349 Southwest 79th Avenue, Fort Lauderdale, Florida, and is the chiropractic office of the Respondent Smith. The sign outside the office which is visible from the street clearly designates the office as being that of a chiropractic physician. The "Total Health Care Center" is primarily a chiropractic office which also offers related health care and medical services when appropriate. During the past three years, Dr. R. George Manieri, D.O., has examined patients at the Center and provided medical services including routine check-ups, vaginal examinations, breast examinations and pap smears. He also treated the Respondent's patients on a referral or part-time basis, by prescribing medication for birth control and other medical reasons. According to Dr. Manieri, the Respondent's position at the Center was both as a director and chiropractor since both medical and chiropractic services were available. Dr. Jeffrey Goldenberg, a licensed medical doctor specializing in obstetrics and gynecology, saw the Respondent's patients at the Center for birth control exams, breast checks and other medical reasons. The Respondent referred patients to Dr. Goldenberg, who saw patients either in the Center or at his private office. The Respondent Smith treated patients at the Center only for chiropractic problems. The Respondent Smith acted as the Director of the Center and has employed both chiropractic and medical physicians as part of his total or holistic philosophy of health care. Consumers who arrive at the Center are immediately placed on notice that the Center is essentially a chiropractic office by signs both outside and inside the establishment. The booklets, which were obtained by the Department from inside the Center and which failed to designate the Respondent or the Center by use of the term "D.C. or Chiropractic" (Petitioner's Exhibit Nos. 1, 2 & 3), were provided for general informational purposes and were not intended as chiropractic advertisements. Petitioner's Exhibits 1 and 3 are neither false nor misleading and contain general medical information concerning breast cancer, arthritis, burns, mouth-to-mouth resuscitation, heart attacks, CPR and aid for automobile accident victims. These pamphlets (Petitioner's Exhibit Nos. 1 & 3) were distributed for informational purposes only to patients once inside the office, who were already on notice that they were in the office of a chiropractor. When the Respondent Smith advertised himself as a chiropractor, he used the term chiropractor or D.C. after his name. However, when he advertised the Center, the Respondent would indicate that it provided both chiropractic and medical services as indicated by Petitioner's Exhibit No. 2. In addition to running the Center and practicing chiropractic, the Respondent also ran for the Republican nomination for Governor of Florida. His campaign office was located at the Center and, as demonstrated by Petitioner's Exhibit No. 4, at least one campaign document was kept at the Center which did not designate him as a chiropractic physician. Dr. Barry Adler, a licensed chiropractor and Secretary of Broward County Chiropractic Society and Co-Chairman of the Society's Ethics Committee, testified concerning the community standard in Broward County regarding the designation of chiropractors for advertising purposes. In Broward County, it is common for chiropractors to not use the term chiropractor or D.C. in their names when they are not advertising chiropractic services. For example, business cards and bank accounts of chiropractors are maintained without the designation, since such items are not generally considered as advertisements. Similarly, the Journal of the Florida Chiropractic Association, Inc., and Directors of the Broward County Chiropractic Society, lists their directors as "Drs." without the specific designation of chiropractor or D.C. following each name. Patients who visited the Total Health Care Center would not be misled by the lack of the designation "D.C." or "chiropractor" on Petitioner's Exhibit Nos. 1, 2 and 3, which were offered to prospective patients once inside the Center. The information both outside and inside the Center made it clear that the Respondent provided primarily chiropractic care while the Center offered both chiropractic and medical services. No evidence was presented on Count I of the Administrative Complaint.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint filed against the Respondent Joseph O. Smith be dismissed. DONE and ORDERED this 2nd day of September, 1983, Tallahassee, Florida. SHARYN L. SMITH, 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 2nd day of September, 1983.
The Issue At issue in this proceeding is whether Petitioner is entitled to a passing score on the Physical Diagnosis portion of the May 2001 chiropractic licensure examination.
Findings Of Fact Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Chiropractic Medicine is created as a part of Respondent by Section 460.404(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Chiropractic Medicine, which will enter a final order. Section 460.406(1), Florida Statutes, provides that anyone seeking licensure as a chiropractic physician must pass a licensure examination. The Florida Chiropractic Medicine Licensure Examination consists of two portions: (a) a practical examination and (b) a Florida Laws and Rules examination. The practical examination is further subdivided into three areas: (a) interpretation of chiropractic and pathology films (the X-ray portion), (b) physical diagnosis, and (c) technique. A candidate cannot be licensed as a chiropractic physician until he or she has passed all portions of the licensure examination, including the physical diagnosis portion. In May 2001, Petitioner sat only for the physical diagnosis portion, having passed all other portions in a prior examination. The physical diagnosis section is a practical examination that tests a candidate's competency to choose, name, demonstrate, and interpret diagnostic imaging and laboratory reports based on a hypothetical case history. The examination generally presents a case history, including the patient's complaint and vital signs, then asks a series of questions designed to lead to a diagnosis. The examination also asks some separate, stand-alone questions designed to elicit knowledge of specific techniques, such as how to obtain particular diagnostic imaging views. The physical diagnosis section of the May 2001 examination consisted of 26 tasks, for which varying numbers of points were awarded for correct answers. Two examiners evaluated the candidate's performance and independently awarded scores for each task. Petitioner's overall score was the average of the two examiners' scores. The examiners who scored Petitioner's performance on the physical diagnosis section met the criteria for selection as examiners. An examiner must have been licensed in Florida as a chiropractor for at least five years, must not have had a chiropractic or other health care license suspended, revoked, or otherwise acted against, and must not be currently under investigation by the Department or any other state or federal agency. Rule 64B2-11.007(1), Florida Administrative Code. The Department requires each examiner to attend a training session prior to administration of the examination. The training is designed to ensure that scoring standards are uniform and objective among the various examiners. The examiners who scored Petitioner's performance on the physical diagnosis section had successfully completed the training session. The first series of questions on the physical diagnosis section dealt with a female patient in her early thirties whose main complaint was constant, severe pain in her left calf. The patient's temperature was slightly elevated at 99.8ºF, and she had swelling in her left ankle. Ultimately, the candidate was expected to arrive at a diagnosis of thrombophlebitis, inflammation of a vein in the left calf. Tasks 1 and 2, for which Petitioner received full credit, required the candidate to obtain a case history from the patient and to discuss the physical examination the candidate would perform on the patient. Task 3 asked the candidate to identify what laboratory tests or diagnostic procedures, if any, should be used to assist in arriving at a diagnosis. Task 4 asked the candidate to state his reasoning for choosing these tests. The correct answer to Task 3 was that the candidate should order either an erythrocyte sedimentation rate (ESR) test or a C-reactive protein (CRP) test. The correct answer to Task 4 was that the ESR and CRP assess the inflammatory processes that the candidate should suspect in the patient's left calf. On Task 3, Petitioner responded that he would order a complete blood count (CBC) and a urinalysis. On Task 4, Petitioner responded that he chose these tests because the patient's increased temperature indicated that there might be an infection present, and that a CBC and urinalysis are useful tests for infection. Task 3 was worth a maximum of four points. Task 4 was worth a maximum of three points. Each examiner independently awarded Petitioner zero points for Task 3 and for Task 4. The results of the physical examination, particularly "Homan's sign," or pain in the calf with dorsiflexion of the foot, caused Petitioner to suspect thrombophlebitis. Petitioner knew of no laboratory test that returns a specific positive result for thrombophlebitis. He introduced textbook references to establish that the ESR and CRP tests are not specific to diagnosing thrombophlebitis. Petitioner did not believe that Tasks 3 and 4 gave him the option of ordering no laboratory tests at all, so he chose the most common tests that would at least confirm that no infection was present. Dr. Densmore, Respondent's expert, agreed with Petitioner that a positive Homan's sign is specific for diagnosing thrombophlebitis. However, he disagreed with Petitioner's choice of ordering a CBC and urinalysis. Dr. Densmore admitted that many doctors order these tests as a general standard for all patients, but stated that in this case they would do nothing to narrow the diagnosis. The CBC and urinalysis are useful for identifying infections; thrombophlebitis is an inflammatory disease, not an infectious disease. Dr. Densmore conceded that ESR and CRP are not specific to thrombophlebitis. However, Dr. Densmore believed that Petitioner should have chosen ESR or CRP because inflammation is present in 90 percent of thrombophlebitis cases and therefore those tests would assist the practitioner in arriving at a diagnosis. Petitioner should not be awarded credit for his answer to Tasks 3 and 4 because his answers were not the best answers to those questions. The correct answers set forth by the Department were supported by the textbook authorities and expert testimony introduced at the hearing. Task 5 dealt with the same patient discussed above, and asked the candidate to indicate which, if any, diagnostic imaging procedures should be performed. The correct answer, worth four points, was "none" or "A-P & lateral leg." "A-P" stands for anteroposterior, or from the front to the back. On the videotape of the examination, Petitioner appeared confused by the question. He said that he would x-ray the "lower leg." One of the examiners asked him to be more specific as to which views he would take. Petitioner stated that he would x-ray the ankle because of the swelling there. Petitioner then mentioned the swelling in the calf, and stated that he would x-ray the "femur." The femur is the thigh bone, extending from the pelvis to the knee. An x-ray of the femur obviously would reveal nothing about the condition of the patient's calf. The examiner, likely sensing Petitioner's confusion, advised Petitioner to read the question again. Petitioner read the question aloud, then reiterated that he would take x-rays of the patient's ankle and femur. Task 5 was worth a maximum of four points. Each examiner independently awarded Petitioner zero points for Task 5. Petitioner contended that he should have received partial credit for his initial response that he would x-ray the lower leg. However, Task 5 required the candidate to identify the specific views of the x-rays he would take. When the examiner asked him to name the specific views, Petitioner identified the femur. The context of the discussion makes it evident that Petitioner must have been thinking of the fibula or the tibia, i.e., the bones of the lower leg, when he repeatedly named the femur in connection with the patient's calf pain. However, the examiners had no choice but to grade Petitioner on the answer he actually gave. Petitioner should not be awarded any points for his answer to Task 5. Task 18 was a stand-alone question dealing with x- rays. The challenged portion of Task 18, worth two points, asked the candidate what he would do to obtain a quality lumbar spine x-ray of a severely obese patient if his office was equipped with a 300/125 x-ray machine. One of the examiners specified that this patient weighs around 500 pounds. The correct answer was that the candidate would use a higher capacity x-ray machine or refer the patient to a facility that has one. Petitioner's answer was that he would collimate close to the area of injury, decrease milliampere seconds (mAs), increase kilovolt peak (kVp) to increase penetration, and use a rare earth screen. Again, Petitioner appeared to be confused by the question. At the hearing, he testified that Task 18 did not ask what specific view he would take of the obese patient, whether of the arm, the chest, or the skull. Petitioner misread the question. Task 18 clearly states that the required view is of the patient's lumbar spine. Petitioner's misreading of the question led him to treat Task 18 as an x-ray physics question, hence his response, intended to demonstrate how he would maximize the clarity of an x-ray using the equipment at hand. Dr. Densmore stated that an x-ray of a patient this size taken on this equipment would simply be a white picture because of the amount of fatty tissue involved. With a patient of this size, the kVp would have to be increased so much that the practitioner would over-radiate the patient. The practitioner would have no choice but to send the patient out for an x-ray on a higher capacity machine. The examiners independently awarded Petitioner zero points for his response to this portion of Task 18. Their scoring was correct, supported by the textbook authorities and expert testimony introduced at the hearing. Petitioner alleged that the Candidate Information Booklet (CIB) provided him by the Department did not adequately prepare him for format changes that occurred since his first sitting for the examination. Petitioner compared the CIB for the May 2001 examination to that for the November 2001 examination. He found that the detailed sample questions in the November 2001 CIB more closely reflected the examination he took in May 2001, and contended that the May 2001 CIB was outdated at the time it was distributed. All candidates for the May 2001 examination received the same Candidate Information Booklet that Petitioner received. Respondent's psychometrician, Dr. Linda Dean, testified that the passing rate for the May 2001 examination was in the range of 70 percent, consistent with other administrations of the examination. Petitioner's allegation concerning the adequacy of the CIB is not supported by the evidence. Petitioner also alleged that he was placed at a disadvantage by the fact that the examiners appeared to know that he was not taking the examination for the first time. Both Dr. Dean, the psychometrician assigned to the chiropractic licensure examination, and Dr. Densmore, who has served as an examiner many times, testified that examiners are not told the names or the status of the candidates. Dr. Dean testified that nothing is done to segregate first-time candidates from those who are retaking the examination, though an examiner may suspect that a candidate who is sitting for only one section of the examination is retaking that section. Even if Petitioner's allegation were credited, it would not change the result. Petitioner's responses to Tasks 3, 4, 5, and 18 were incorrect. The examiners properly awarded him zero points for those tasks. Their knowledge that he was retaking the physical diagnosis section had no bearing on Petitioner's incorrect responses to the challenged tasks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order denying Petitioner additional credit for his responses to Tasks 3, 4, 5, and 18 of the physical diagnosis portion of the chiropractic licensure examination administered in May 2001. DONE AND ENTERED this 18th day of February, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 18th day of February, 2002. COPIES FURNISHED: Ken Allan Niebrugge 4785 Barkley Circle No. 22 Fort Myers, Florida 33907 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Rule 64B2-17.0025(4), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: The Board is the state agency responsible for the licensure and regulation of chiropractic medicine in the State of Florida. Section 456.013 and Chapter 460. Petitioner, John W. Sullivan, is a licensed Florida chiropractic physician subject to regulation by the Board. Petitioner, the Florida Chiropractic Physicians' Association, Inc., is a Florida corporation organized as a trade association to represent the interests of the Florida-licensed chiropractic physicians who compose a large portion of its membership. Dr. Sullivan is the president of the Florida Chiropractic Physicians' Association. The Board does not contest the standing of either Petitioner to initiate this proceeding. Petitioners have challenged Rule 64B2-17.0025(4) as an invalid exercise of delegated legislative authority. The challenged rule provides: 64B2-17.0025. Standard of Practice for Phlebotomy, Physiotherapy, and the Administration of Items for Which a Prescription is not Required; Prohibition of Prescribing or Administering Legend Drugs. Any chiropractic physician who in his practice uses physiotherapy, phlebotomizes, or administers items for which a prescription is not required must have acquired the competence to perform said service, procedure, or treatment through appropriate education and/or training. Any chiropractic physician who provides any treatment or service for which he or she has not been specifically educated or trained shall be deemed to be performing professional responsibilities which the licensee knows or has reason to know he or she is not competent to perform, and shall be subject to discipline pursuant to Section 460.413(1)(t), Florida Statutes. For the purpose of Chapter 460.403(8)(c),[1] Florida Statutes, "items for which a prescription is not required" include "proprietary drugs" such as patent or over-the-counter drugs in their unbroken, original package and which is not misbranded under the provisions of Chapter 499.001- 499.081, Florida Statutes. For the purpose of Chapter 460.403(8)(c), Florida Statutes, and this rule "administration" is defined as the administration of one dose of any proprietary drug, and the recommendation and direction of dosage levels for the patient's needs. Administration shall not include dispensing of repackaged proprietary drugs. All chiropractic physicians are explicitly prohibited by Chapter 460.403, Florida Statutes, from prescribing or administering to any person any legend drug. A legend drug is defined as a drug required by federal or state law to be dispensed only by prescription. For the purpose of this rule, any form of injectable substance is beyond the scope of practice for chiropractors. Notwithstanding the prohibition against prescribing and administering legend drugs under Section 460.403 or 499.0122, Florida Statutes, chiropractic physicians may order, store, and administer, for emergency purposes only at the chiropractic physician's office or place of business, prescription medical oxygen and may also order, store, and administer the following topical anesthetics in aerosol form: Any solution consisting of 25 percent ethyl chloride and 75 percent dichlorodifluoromethane. Any solution consisting of 15 percent dichlorodifluoromethane and 85 percent trichloromonofluoromethane. However, this rule does not authorize a chiropractic physician to prescribe medical oxygen as defined in chapter 499. Specific Authority 460.405 FS. Law Implemented 460.403(8)(c), (f), 460.413(1)(t), FS. History--New 10-17-90, Formerly 21D-17.0025, 61F2-17.0025, 59N-17.0025, Amended 2-16-98. (Emphasis added) Section 460.405 cited as the specific authority for the challenged rules, provides: The Board of Chiropractic Medicine has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it. Section 460.403(9), paragraphs (c) and (f) of which are cited as a law implemented by the challenged rule, provides: 1. Chiropractic physicians may adjust, manipulate, or treat the human body by manual, mechanical, electrical, or natural methods; by the use of physical means or physiotherapy, including light, heat, water, or exercise; by the use of acupuncture; or by the administration of foods, food concentrates, food extracts, and items for which a prescription is not required and may apply first aid and hygiene, but chiropractic physicians are expressly prohibited from prescribing or administering to any person any legend drug except as authorized under subparagraph 2., from performing any surgery except as stated herein, or from practicing obstetrics. Notwithstanding the prohibition against prescribing and administering legend drugs under subparagraph 1., or s. 499.0122, pursuant to board rule chiropractic physicians may order, store, and administer, for emergency purposes only at the chiropractic physician's office or place of business, prescription medical oxygen and may also order, store, and administer the following topical anesthetics in aerosol form: Any solution consisting of 25 percent ethylchloride and 75 percent dichlorodifluoromethane. Any solution consisting of 15 percent dichlorodifluoromethane and 85 percent trichloromonofluoromethane. However, this paragraph does not authorize a chiropractic physician to prescribe medical oxygen as defined in chapter 499. * * * (f) Any chiropractic physician who has complied with the provisions of this chapter is authorized to analyze and diagnose abnormal bodily functions and to adjust the physical representative of the primary cause of disease as is herein defined and provided. As an incident to the care of the sick, chiropractic physicians may advise and instruct patients in all matters pertaining to hygiene and sanitary measures as taught and approved by recognized chiropractic schools and colleges. A chiropractic physician may not use acupuncture until certified by the board. Certification shall be granted to chiropractic physicians who have satisfactorily completed the required coursework in acupuncture and after successful passage of an appropriate examination as administered by the department. The required coursework shall have been provided by a college or university which is recognized by an accrediting agency approved by the United States Department of Education.[2] (Emphasis added) Section 460.413(1)(t), cited as a law implemented by the challenged rule, provides: The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2): * * * (t) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that she or he is not competent to perform. At issue in this case is whether the relevant Florida Statutes authorize chiropractic physicians to administer foods, food supplements and nutrients to patients by way of injection. If the statutes do authorize chiropractic physicians to administer these substances via injection, then the express prohibition on the administration of "any form of injectable substance" by chiropractic physicians contained in Rule 64B2-17.0025(4) is without legislative authorization. In 1923, the Florida Legislature established the "Florida State Board of Chiropractic Examiners" to oversee the licensing and discipline of chiropractic physicians. The scope of chiropractic practice was set forth as follows, in relevant part: Any Chiropractor who has complied with the provisions of this Act may adjust by hand the articulations of the spinal column, but shall not prescribe or administer to any person any medicine now or hereafter included in materia medica. . . . Chapter 9330, Section 12, Laws of Florida (1923). (Emphasis added) Section 12 of Chapter 9330, Laws of Florida, was amended in 1941 to provide, in relevant part: B. Any chiropractor who has complied with the provisions of this Act may: * * * (2) Chiropractors may adjust, manipulate or treat the human body by manual, mechanical, electrical or natural methods, or by the use of physical means, Physiotherapy (including light, heat, water or exercise) or by the use of foods and food concentrates, food extracts, and may apply first aid and hygiene, but chiropractors are expressly prohibited from prescribing or administering to any person any medicine or drug included in Materia Medica. . . . Chapter 20871, Section 1, Laws of Florida (1941). (Emphasis added) In 1957, the Florida Legislature amended the statute, then numbered Section 460.11, Florida Statutes, to provide, in relevant part: Any chiropractic physician who has complied with the provisions of this chapter may: * * * Chiropractic physicians may adjust, manipulate, or treat the human body by manual, mechanical, electrical or natural methods, or by the use of physical means, physiotherapy (including light, heat, water or exercise) or by the oral administration of foods and food concentrates, food extracts, and may apply first aid and hygiene, but chiropractic physicians are expressly prohibited from prescribing or administering to any person any medicine or drug. . . . Chapter 57-215, Section 3, Laws of Florida. (Emphasis added). Aside from being renumbered Section 460.03 by Chapter 79-211, Section 1, Laws of Florida, the relevant language of the statute remained essentially unchanged between 1957 and 1986. Chapter 86-285, Section 2, amended Section 460.03(3), to provide: Chiropractic physicians may adjust, manipulate, or treat the human body by manual, mechanical, electrical, or natural methods or by the use of physical means or physiotherapy, including light, heat, water, or exercise, or by the use of acupuncture, or by the administration of foods, food concentrates, food extracts, and proprietary drugs, and may apply first aid and hygiene, but chiropractic physicians are expressly prohibited from prescribing or administering to any person any legend drug. . . . (Emphasis added) The underscored language indicates two significant changes made by the Legislature in 1986. First, the term "oral administration" was changed simply to "administration," and "proprietary drugs" were added to the list of items that chiropractic physicians were allowed to administer. Second, the items that chiropractic physicians were prohibited from prescribing or administering was changed from "any medicine or drug" to "any legend drug." Chapter 86-285, Section 1, Laws of Florida, also added the following language to Section 460.403(3)(f), Florida Statutes (currently Section 460.403(9)(f)): Any chiropractic physician licensed after October 1, 1986, may not phlebotomize or use physiotherapy or acupuncture or administer proprietary drugs until certified by the board to use any of such procedures. Certification shall be granted to chiropractic physicians licensed after October 1, 1986, who have satisfactorily completed the required coursework in the procedure or procedures for which certification is sought, and after successful passage of an appropriate examination as administered by the department. The required coursework shall have been provided by a college or university which is recognized by an accrediting agency approved by the United States Department of Education. Chiropractic physicians licensed after October 1, 1986, seeking certification in one or more of the procedures for which certification is required may elect to take the certification examination at the time of taking the initial licensing examination or at any subsequent examination. Nothing herein shall be construed to require chiropractic physicians who have met all requirements for licensure prior to the effective date of this act to become certified to phlebotomize or use physiotherapy. Dr. Ronald J. Hoffman testified that he was a member of the Board in 1986 and was directed by the Board's chairman to create the syllabus for the certification course in proprietary drugs required by the 1986 amendment to the statute, quoted above. In conjunction with the National College of Chiropractic, Dr. Hoffman designed a 72-hour certification course, including three to four hours of instruction relating to injectable nutrients. In Chapter 97-247, Section 1, Laws of Florida, the term "proprietary drugs" was deleted from the list of items that chiropractic physicians may administer. In its place was inserted the term "items for which a prescription is not required," which is the current language of Section 460.403(9)(c), set forth in Finding of Fact 5, supra. Chapter 97-247 also deleted the requirement that a chiropractic physician obtain certification to administer proprietary drugs. Petitioners' challenge focuses on the language in Rule 64B2-17.0025(4) stating that "any form of injectable substance is beyond the scope of practice for chiropractors." Petitioners contend that the statutory language permitting chiropractic physicians to "administer" foods, food concentrates, and food extracts (generally, vitamins and nutrients) by its terms allows chiropractic physicians to inject those substances into their patients. Petitioners admit that between 1955 and 1986, the statute limited their practice to the "oral administration" of the listed substances. However, Petitioners also argue that the Legislature's changing the term "oral administration" to "administration" in 1986, evinced a clear intent to allow chiropractic physicians to administer foods, food concentrates, and food extracts in any manner, including by injection. In his testimony, Dr. John Sullivan went even further, arguing that the term "administer" can only mean "administer by injection." His contention on this point was echoed by Petitioners' witness Dr. Roderic Lacy. Another witness for Petitioners, Dr. Paul Yocom, D.C., testified that "administration" at least implies some action by the physician and that a physician does not typically place a pill in the patient's mouth. Dr. Lacy testified that when the Legislature removed the word "oral" from the statute in 1986, "everybody was under the impression they were going to be able to do injectable nutrition" because the certification course in proprietary drugs included a section on injectable nutrients. Dr. Lacy stated that this impression changed when "practically nobody passed" the certification examination and the issue of injecting vitamins and nutrients "kind of faded away." Petitioners contend that it is nonsensical that the law would permit them to prescribe and administer foods, food concentrates, and food extracts in an oral form, but not to administer the same substances via subcutaneous injection. Dr. Sullivan testified that vitamins are food, whether taken orally or by injection. The body uses the vitamins in the same way regardless of the method by which the vitamins enter the body. The same vitamin does not become a "drug" simply because the means of administering it changes. Dr. Sullivan pointed out that some people cannot metabolize certain vitamins orally and must take them by injection. Dr. Lacy testified that an inability to administer vitamins and nutrients by injection restricts a chiropractic physician's ability to treat patients. He noted that the absorption rate when vitamins are taken orally is 10 to 20 percent, whereas the absorption rate for injections is 100 percent. If a patient is deficient in a certain vitamin or nutrient, the number of oral doses the patient would need to address the deficiency could make the patient sick. Dr. Lacy testified that he was unaware of any instance of a serious adverse reaction related to the injection of a vitamin or nutrient. Dr. Lacy noted that "injectable" simply means that the vitamin is in a sterile, water soluble solution, and that the character of the vitamin itself is unchanged. Both Dr. Sullivan and Dr. Lacy testified that because injectable vitamins are water soluble, any excess amounts are eliminated from the body via urination. Petitioners attacked the term "legend drug" as a vague and overbroad term in the Rule. Dr. Lacy testified that "legend" simply means "label," and, therefore, that any drug with a label on it could be termed a "legend drug." Given the broad meaning of "legend," Dr. Lacy argued that there could be "legend drugs," "legend vitamins," and even "legend foods," though no one questions the right of a chiropractic physician to prescribe foods and vitamins. Dr. Lacy testified that he contacted the Food and Drug Administration to find out its definition of the term "legend drug." He stated that FDA informed him that it was a "slang term" used interchangeably with the term "prescription drug" and without a written definition. Dr. Yocom testified that he spent "many hours" on the internet in search of a definition of the term "legend drug." He could not find that the term "existed per se." He found references to the term "legend drug," but always without definition. Dr. Yocom testified that in his mind, "legend" simply means "a description, a label." Dr. Sullivan testified that "legend" does not mean "prescription only." A "legend" on a label simply tells the user what is in the product and how to use it. Dr. Sullivan testified that such products as aspirin, Tylenol, Benadryl, Excedrin P.M., and even oral vitamins are "legend" products because their labels contain instructions for their use. In addition to their dispute with the Board's use of the terms "administration" and "legend drug," Petitioners, by their testimony, indicate that they have a different understanding of the term "prescription" than that employed by the Board. Dr. Yocom testified that he "prescribes" hot packs, cold packs, and exercise to his patients. Dr. Sullivan "prescribes" certain diets to his weight loss patients. This testimony disregards the common understanding of the term "prescription," i.e., an order for medication, therapy, or a therapeutic device given by a properly authorized person to a person properly authorized to dispense or perform the order. In the context of drugs, "prescription" carries a connotation that the patient will receive a medication that the patient could not lawfully procure without a physician's order.3 While it is literally true that a physician may "prescribe" such things as cold packs, exercise, and diets, the patient does not require a physician's prescription to obtain them. Petitioners' testimony on this point cannot be credited. The Board's position is that Rule 64B2-17.0025 was adopted in 1990 precisely because many chiropractors were confused about the effect of the 1986 legislation. Paul Lambert, the general counsel for the Florida Chiropractic Association, testified that, at the time the legislation passed, he believed that chiropractic physicians were authorized to administer injectable vitamins and that he drafted a legal opinion in support of that position in 1989. Testimony at the hearing established that many chiropractors, including some members of the Board, shared Mr. Lambert's opinion. The Board's position is that the Rule, defining the terms "administration" and "legend drug," was necessary to dispel this misconception. Dr. Hoffman testified that, after he prepared the certification course, he researched the question of whether Vitamin B-12, the most commonly used injectable vitamin, was a legend drug. He concluded that it was. Dr. Hoffman testified that this fact appeared to be common knowledge among pharmacists but that chiropractors seemed unaware of it. He stated that he likely would not have included instruction on injectable vitamins in the certification course had he known injectable vitamins were considered legend drugs. As a result of his research, Dr. Hoffman became a firm proponent of a rule to disallow the use of injectable vitamins by chiropractic physicians. Dr. Hoffman testified that he helped draft the language of the Rule and helped to promulgate it as a member of the Board in 1990. The Rule defines "legend drug" as "a drug required by federal or state law to be dispensed only by prescription." As noted above, Petitioners challenged this definitional conflation of the terms "legend drug" and "prescription drug." The Department responded that every "federal or state law" relevant to the medical professions and to the profession of pharmacy treats the terms as equivalent and that the Rule simply clarified that the 1986 legislation intended "legend drug" to carry this common meaning. This issue is significant, if not dispositive, of this case, because the Board introduced persuasive evidence that the FDA considers all injectable drugs, including injectable vitamins and nutrients, to be "legend" or "prescription" drugs. William Nychis, acting director of the FDA's Division of New Drugs and Labeling Compliance, testified that insulin is the only item intended for parenteral administration that the FDA does not classify as a drug. Mr. Nychis began his analysis by referencing the definition of "drug" found in Section 201(g) of the Federal Food, Drug, and Cosmetic Act, codified at 21 U.S.C. Section 321(g)(1): The term "drug" means (A) articles recognized in the official United States Pharmacopoeia, official Homoeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; and (B) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and articles (other than food) intended to affect the structure or any function of the body of man or other animals; and articles intended for use as a component of any article specified in clause (A), (B), or (C). A food or dietary supplement for which a claim, subject to sections 343(r)(1)(B) and 343(r)(3) of this title or sections 343(r)(1)(B) and 343(r)(5)(D) of this title, is made in accordance with the requirements of section 343(r) of this title is not a drug solely because the label or the labeling contains such a claim. A food, dietary ingredient, or dietary supplement for which a truthful and not misleading statement is made in accordance with section 343(r)(6) of this title is not a drug under clause (C) solely because the label or the labeling contains such a statement. Mr. Nychis testified that "legend drug" and "prescription drug" are considered synonymous terms by the FDA. He stated that a legend drug is one for which adequate directions for use by the lay person cannot be written, and which therefore must carry the "Rx" or “prescription only” legend. In contrast, a "proprietary" or over-the-counter drug is one that can bear adequate directions for use by the lay person. The classification of drugs is performed on a case-by- case basis. Prescription drugs are articles that because of their toxicity or other potential for adverse effect, or because of their method of use, or because of the collateral measures necessary for their use, are not safe for use except under the supervision of a practitioner authorized by state law to administer such a drug. Prescription drugs are not available to the consumer except through an authorized practitioner. Mr. Nychis testified that any item, except insulin, administered by injection is classified by the FDA as a prescription drug. Products that are intended to be injected, because of the collateral measure necessary for their use, are not considered safe except under the supervision of a practitioner authorized by law to administer and prescribe such drugs. Mr. Nychis emphasized that it is up to the states to determine who is a practitioner authorized by law to prescribe and administer prescription drugs and that the FDA takes no position as to the propriety of allowing chiropractic physicians to prescribe or administer injectable vitamins. Mr. Nychis testified that as early as 1945, the FDA, in what is called trade correspondence, first began to classify injectable vitamins and nutrients as prescription drugs. In 1951, the definition was clearly set forth in Section 503(b)(1) of the Food, Drug and Cosmetic Act, codified at 21 U.S.C. Section 353(b)(1) and set out in full in the Conclusions of Law below. For at least 50 years, the FDA has not classified an injectable vitamin or nutrient as anything other than a prescription or legend drug. Mr. Nychis testified that even injectable water is classified as a drug. Legend drugs or prescription drugs are identified as "Rx" in the FDA publication, "Approved Drug Products with Therapeutic Equivalence Evaluations," also known as "The Orange Book." Large numbers of injectable vitamins and nutrients are listed as "Rx" in the Orange Book. Some fat-soluble vitamin tablets and injections are also listed as "Rx" or prescription. Even "soy bean oil" (vitamin E) can be found listed in the Orange Book as a prescription drug in its injectable form. Appendix C to the Orange Book lists 43 "routes of administration" for drug products, demonstrating that "injection" is not necessarily an equivalent term to "administration," as contended by Dr. Sullivan. In any event, the use of the term "administration" of food products in Section 460.403(9)(c) must be read in conjunction with the statute's prohibition on "administering" legend drugs. Once it is established that injectable vitamins are legend drugs, then it follows that "administration" of food products, whatever it might include, cannot include the method of injection. Jerry Hill has been a pharmacist for more than 30 years and is the bureau chief of statewide pharmaceutical services for the Florida Department of Health, responsible for the licensure of drug wholesale facilities and manufacturing facilities. Mr. Hill testified that the term "legend drug" has been in use for at least as long as he has been a pharmacist. The "legend" on these products is the notice that federal or state law prohibits dispensing them without a prescription or the "Rx only" notice. Mr. Hill testified that the statutes enforced by his agency treat "legend drug," "prescription drug," and "medicinal drug" as interchangeable terms. He cited, as an example Section 499.003(25), which provides: "Legend drug," "prescription drug," or "medicinal drug" means any drug, including, but not limited to, finished dosage forms, or active ingredients subject to, defined by, or described by s. 503(b) of the Federal Food, Drug, and Cosmetic Act or s. 465.003(8), s. 499.007(12), or s. 499.0122 (1)(b) or (c). As did Mr. Nychis, Mr. Hill testified that drugs are classified not merely by their substance, but by their intended use and method of administration as well. Thus, he contradicted the Petitioners' testimony that a vitamin is considered "food" regardless of its method of administration. Mr. Hill noted that in its oral dosage form, Vitamin B-12 may be classified as a dietary supplement. If the label indicates some use to treat a medical condition, Vitamin B-12 may be classified as an over- the-counter medication. In its injectable form, Vitamin B-12 is a legend drug, available only by prescription. Mr. Hill also agreed with Mr. Nychis that, except for insulin, all dosage forms in which the route of administration is injectable are classified as prescription drugs. Mr. Hill stated that no injectable products may be purchased from a Florida pharmacy without a prescription. He testified that it would be his duty to seize any injectable Vitamin B-12 that he found in the possession of a chiropractic physician and to prosecute the chiropractic physician for unlawful possession of a prescription drug. Everett A. Kelly has been a licensed pharmacist in Florida since 1961 and served in the Florida House of Representatives for 22 years. Mr. Kelly confirmed Mr. Hill's testimony that the term "legend drug" is synonymous with the term "prescription drug." The referenced "legend" is the identification that the item is "Rx only" or may be dispensed only by prescription. Mr. Kelly testified that Florida defers to the FDA's classifications of substances as "drugs." On this point, both Mr. Hill and Mr. Kelly noted that federal law allows the states to make their drug laws more restrictive than the federal laws, but does not allow the states to enact less restrictive laws. Mr. Hill cited the example of ephedrine hydrochloride, which the FDA classifies as an over-the-counter drug, but for which Florida requires a prescription. Mr. Kelly also confirmed the testimony of Mr. Nychis and Mr. Hill that all injectable items, except insulin, are legend drugs. Mr. Kelly explained that insulin is excepted because diabetics must use it daily for their entire lives, and that the diagnosing physician's initial prescription is considered sufficient for the patient to receive insulin in perpetuity. Mr. Kelly stated that, aside from insulin, every other injectable product, including water for injection, is a legend drug. The testimony of Mr. Hill, Mr. Nychis, and Mr. Kelly as to the meaning of the term "legend drug" is credited insofar as it represents their understanding of the common usage in their respective professions, based upon federal and state statutory definitions. The contrary testimony of Petitioners' witnesses as to the meaning of "legend drug" cannot be credited. These chiropractic physicians were essentially offering a layman's view of the term derived from internet searches, phone calls to unidentified FDA employees, and a self-serving disregard of the fact that "legend drug" is defined in state and federal statutes. In summary, the testimony established that when the 1986 legislation became law, many chiropractors focused on the change of "oral administration" to "administration" and concluded that they were now free to administer injectable vitamins and nutrients to their patients. Even some members of the Board shared this belief, as evidenced by the inclusion of instruction regarding injectable nutrients in the certification course for proprietary drugs. However, closer examination of the issue and consultation with professionals in other health fields led the Board to an understanding that the term "legend drug" includes any injectable substance, even vitamins and nutrients that may be considered foods or over-the-counter drugs in their oral form. This understanding, and the need to make all chiropractic physicians aware of the true state of the law, led the Board to adopt Rule 64B2-17.0025 in 1990. Petitioners raised several other issues that merit brief discussion. Petitioners attempted to offer evidence of legislative intent regarding the 1986 legislation by way of statements by Dennis Jones, the state representative who sponsored the relevant amendments. The Board attempted to counter this evidence with testimony by Mr. Kelly, who was also in the state House of Representatives in 1986. The undersigned declined to accept any of this testimony, finding that an individual legislator's statements cannot form the basis for a finding of legislative intent. See State v. Patterson, 694 So. 2d 55, 58 n.3 (Fla. 5th DCA 1997), and cases cited therein (testimony of individual legislators as to what they intended to accomplish is of doubtful worth in determining legislative intent and may not even be admissible). Petitioners argued that certain members of the Florida Chiropractic Physicians' Association, having completed the certification course and passed the examination in the late 1980's, continue to hold certification in the administration of proprietary drugs, including injectable vitamins. As noted above, the Legislature in 1997 removed the statutory authority for the Board to grant certification to chiropractic physicians in proprietary drugs. In fact, the current statutory scheme permits any chiropractic physician to administer "items for which a prescription is not required," rendering the old certification program meaningless. Further, the evidence at the hearing established that the certifications in proprietary drugs could not have certified their holders to administer injectable vitamins, which are legend drugs that no chiropractic physician can be authorized to administer under the relevant statutes. Petitioners offered the 1987, 1989, and 1990 editions of the "Florida Health Care Atlas" as evidence that the 1986 legislation authorized chiropractic physicians to administer injectable vitamins. Each of the cited editions of the Atlas does, in fact, state that "chiropractors may now . . . administer proprietary drugs and injectable vitamins upon certification . . . ." However, the Board pointed out that the Atlas was a publication of the Department of Health and Rehabilitative Services, not the Board of Chiropractic Medicine or its parent agency at the time, the Department of Professional Regulation. The Board disavowed the inaccurate information in the Atlas, which was in any event a reference guide lacking the legal effect of a statute or rule. Finally, Petitioners offered documentation that the Board in 2000 approved a 50-hour continuing education course that included a three hour section on "injectable nutrients." However, the notice of Board approval included an italicized notice that the three-hour section on injectable nutrients would not be accepted. Subsequently, in January 2001, the Board approved a three-hour course in injectable nutrients for continuing education credit but required the presentation to include a disclaimer that all or portions of the material presented constituted practice outside the scope of the profession.
Findings Of Fact The Respondent, Peter P. Alongi, is a licensed chiropractic physician, practicing in Fort Lauderdale, Florida. An administrative complaint was filed by the Petitioner, Florida State Board of Chiropractic Examiners, dated December 7, 1978, alleging that the Respondent engaged in deception, misrepresentation or fraud by publishing a certain advertisement. An administrative hearing was requested by the Respondent. Thereafter, a motion to dismiss was filed by the Respondent prior to the formal hearing, which was denied. Respondent Alongi casued the following advertisement to be published in the Fort Lauderdale News in the month of May 1978: CHIROPRACTORS SEEK RESEARCH VOLUNTEERS The International Pain Control Institute is presently engaged in what is the most expensive research program ever undertaken by the chiropractic profession. This research is directed toward determining the relationship between health problems and spinal misalignment and utilizes a screening process called contour analysis. Volunteers are being sought for screening. Contour analysis enables taking a 3 dimensional picture (called moire photography) of the topography of the surface of the spine to detect spinal stress deviations. This analysis will be correlated with leg deficiency, patient sympto- matically and levels of spinal tenderness. An analysis of this type can reveal such things as normal and abnormal stress patterns, spinal curvature, muscle spasm, muscle imbalance, spinal distortion and scoliosis. This is a Public Service Program for partici- pating volunteers. The doctors are contributing their time, service and facilities for the program. Anyone wishing to be a volunteer may telephone participating doctors directly for information or an appt. Dr. Peter P. Alongi Dr. Larry Burch 2821 E. Commercial Boulevard 200 SE 12 St. Ft. Laud. Ft. Laud. 491-2449 764-0444 Ms. Laura Borys read the foregoing advertisement and, thinking there would be no charge for treatment, made an appointment with Respondent Alongi. Ms. Borys had interpreted the advertisement to mean that if she presented herself as a "research volunteer" there would be no cost to her. Ms. Borys was accompanied to Respondent Alongi's office by Ms. Katherine Leight, a sister-in- law of Ms. Borys. Ms. Leight had told Ms. Borys that she felt the advertisement was soliciting for paying customers, and that she based her view on the reason that she had never seen such an advertisement by any other chiropractor. Ms. Borys would not have made the appointment with Respondent Alongi to participate as a volunteer pursuant to said advertisement if she had know that x-rays and chiropractic treatment would be on a cost basis. Respondent Alongi performed a contour analysis and gave Ms. Borys a photograph of her back. The Respondent analyzed the photograph and advised Ms. Borys that she had a back problem, and that for a fee of $50.00 she could have x-rays taken and would be charged $15.00 per visit for treatment. Upon a close reading of the foregoing advertisement it is not likely that the general public would have been mislead into believing that free treatments or x-rays would be given. Ms. Borys' sister-in-law, Ms. Leight, did not believe the advertisement was inserted for any other reason than to solicit business for the two doctors included in said advertisement. No questions were raised or evidence submitted as to what constituted the "research program" other than the taking of the picture of the back, or whether members of the public were deceived or mislead into thinking that there was in fact a valid program. Both parties submitted proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they are specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends the Administrative Complaint be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of July, 1979. COPIES FURNISHED: Paul W. Lambert, Esquire 1311 Executive Center Drive Suite 201, Ellis Building Tallahassee, Florida 32301 Thomas F. Panza, Esquire 2803 East Commercial Boulevard Fort Lauderdale, Florida 3308 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Collins Building Tallahassee, Florida 32301 (904) 488-9675
