00-005065PL Department Of Health, Board Of Chiropractic vs. Roy A. Day Status: Closed Recommended Order on Thursday, July 19, 2001.

Summary: Recommended revocation for chiropractor`s failure to disclose three criminal convictions on the profile that he filed with the Department of Health.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) Case No. 00-5065PL

)

ROY A. DAY, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Clearwater, Florida, on April 30, 2001.

APPEARANCES

For Petitioner : Wings S. Benton, Senior Attorney

Agency for Health Care Adminis tration

Office of General Counsel

Medical Quality Assurance

Practitioner Regulation--Legal

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent : Roy A. Day, pro se

Post Office Box 33

Tarpon Springs, Florida 34688-0033

STATEMENT OF THE ISSUES

The issues are whether Respondent is guilty of making or

filing a false report signed in the capacity of a licensed

chiropractic physician, in violation of Section 460.413(1)(j),

Florida Statutes, and, if so, the penalty.

PRELIMINARY STATEMENT

By Amended Administrative Complaint dated February 1, 2001,

Petitioner alleged that Respondent is a licensed chiropractor in

Florida, holding license number CH 0002696.

The Amended Administrative Complaint alleges that, on

April 7, 19 99, Respondent completed Petitioner's "Mandatory

Practitioner Profile Questionnaire." The Amended Administrative

Complaint alleges that Respondent's signature on the

questionnaire affirms that his responses to the questions were

true and correct.

The Ame nded Administrative Complaint alleges that

Respondent falsely answered "no" to the question asking, "Have

you ever been convicted or found guilty, regardless of whether

adjudication of guilt was withheld, or pled guilty or nolo

contendere to a criminal misdemeanor or felony in any

jurisdiction."

The Amended Administrative Complaint alleges that, on

September 20, 1996, the Pinellas County Circuit Court found

Respondent guilty of two counts of uttering a check with forged

endorsements, one count of aggravated stalking, and one count of

intercepting oral communication--all felonies. The Amended

Administrative Complaint alleges that the court sentenced

Respondent to one year's imprisonment, with credit for time

served, and Respondent was released from jail on February 11,

1997.

The Amended Administrative Complaint alleges that

Respondent thus violated Section 460.413(1)(i), Florida

Statutes, by failing to perform a statutory or legal obligation

placed on a licensed chiropractic physician. The Amended

Administrative Complaint alleges three such obligations :

Section 455.624(1)(v) [now Section 456.072(1)(v)], Florida

Statutes, which prohibits "making misleading, untrue, deceptive,

or fraudulent representations on a profile"; Section

460.413(1)(j), Florida Statutes, which prohibits the "[m]aking

or filing a report which the licensee knows to be false"; and

Section 460.413(1)(k), Florida Statutes, which prohibits

"[m]aking misleading, deceptive, untrue, or fraudulent

representations in the practice of medicine." In its proposed

recommended order, Petitioner abandons the alleged violation of

Section 460.413(1)(k), Florida Statutes.

At the hearing, Petitioner called one witness and offered

into evidence seven exhibits : Petitioner Exhibits 1-7.

Respondent called two witnesses and offered into evidence six

exhibits : Respondent Exhibits 1-6. All exhibits were admitted

except Petitioner Exhibits 3 and 5, which were proffered.

Respondent never filed Respondent Exhibits 2 and 6, so they are

deemed withdrawn.

The cou rt reporter filed the transcript on May 21, 2001.

FINDINGS OF FACT

1. Respondent has been a licensed chiropractor in Florida

since 1978, holding license number CH0002696.

2. Petitioner requires licensed chiropractors to file

Mandatory Practitioner Profile Questionnaire Packets (Profiles).

The subject Profile was due on or before April 15, 1999. The

Profile asks the licensee to supply various items of information

and answer several questions.

3. Section II of the Profile requires information

concerning "medical education." In response to the question of

what medical school Respondent attended, he wrote: "Logan

'Quack Con-Artist' School of Chiropractic." In response to the

type of his degree, Respondent wrote: "Quack Con-Artist

Chiropractic Degree."

4. In response to questions concerning medical training,

Respondent answered: "'Fraudulent' Automobile Personal Injury

Cases (Robbing Insurance Companies)" and "'Fraudulent' Workers

Compensation Cases (Robbing Insurance Companies)." Respondent

also added to these responses, as well as the responses cited in

the preceding paragraph, the following: "Caveat : see letter

dated April 7, 1999 sent to Gloria Henderson, Division

Director)."

5. Section VIII of the Profile requires information

concerning criminal offenses. This section asks: "have you

ever been convicted or found guilty, regardless of whether

adjudication of guilt was withheld, or pled guilty or nolo

contendere to a criminal misdemeanor or felony in any

jurisdiction?" The question then states: "If "YES," briefly

describe the offense(s), indicate whether the conviction is

under appeal, and attach copy of notice of appeal." The form

supplies three lines for each of these items of information.

6. Respondent answered "no" to the first question in

Section VIII and left the remainder of the section blank.

7. The Profile concludes, immediately above the signature

line: "I affirm these statements are true and correct and

recognize that providing false information may result in

disciplinary action against my license or criminal penalties

pursuant to Sections 455.624, 458.327, 458.331, 459.013,

459.015, 460.413, 461.013, 775.082, 775.083 and 775.084, Florida

Statutes."

8. Respondent signed on the signature line and added the

date of April 7, 1999. Immediately beneath the signature line,

Respondent added: "Notice : Signed under caveat--see letter

dated April 7, 1999 sent to Gloria Henderson, Division

Director."

9. Respondent's four-page letter to Gloria Henderson dated

April 7, 1999, references the Profile, notifies Ms. Henderson

and Petitioner of Respondent's intent to sue, and demands that

Petitioner omit Respondent's listing from a website of

chiropractors because, in part, "I do NOT accept their

' valueless treatment' known as an "adjustment" (it is a waste of

money and time ), and because I practice health care from an

"Allopathic" (medical approach) point of view, including but not

limited to, surgery, drug prescription, physical therapy . . .."

Respondent states in the letter that the Petitioner's failure to

incorporate his comments in all computer files listing him as a

chiropractor will result in his filing a federal action under

tort and constitutional law seeking $1 million plus punitive

damages.

10. The final caveat in the April 7 letter states:

My (Roy A. Day) signature on the instant

letter, and the associated completed

questionnaire, reflects the denial of Roy A.

Day to have meaningful access to so-called

"licensed attorney" courts of law, and the

associated denials of each and all

discovery, and trial by jury, and the right

to each and all appeals, and the denial to

write a brief on appeals, and each and all

associated "railroading" of Roy A. Day, with

the overlay for "licensed attorney" courts

of law to deny the law, facts and evidence

existed when they pertained to Roy A. Day,

since Roy A. Day is not represented by a

so -called "licensed attorney" at $300.00 per

hour in artificial-monopolistic legal fees.

In addition, the signature reflects each and

all associated "forced and coerced" action,

specifically, Roy A. Day has been denied

"due process and equal protection of the

law."

11. On February 6, 1995, Pinellas County Circuit Court

entered an Order of Probation. The Order states that Respondent

pleaded guilty to aggravated stalking, interception of oral

communication, and uttering a check with a forged endorsement.

The Order withholds adjudication and places Respondent on

probation for two years.

12. As a result of Respondent's violation of the

conditions of probation, on September 20, 1996, Pinellas County

Circuit Court entered a judgment finding Respondent guilty of

two counts of the third-degree felony of uttering a check with a

forged endorsement, in violation of Section 831.02, Florida

Statutes. The checks totaled approximately $20,000, and,

sometime between March 13 and May 5, 1993, Respondent passed

each check knowing that the signature of his brother, Donald

Day, was forged. For each count, the court sentenced Respondent

to one year in jail with credit for 130 days he had already

served in jail, and the sentences ran concurrently.

13. As a result of Respondent's violation of the

conditions of probation, on September 20, 1996, Pinellas County

Circuit Court entered a judgment finding Respondent guilty of

the third-degree felony of aggravated stalking, in violation of

Section 784.048(3), Florida Statutes. The stalking consisted of

repeated and harassing telephone calls that Respondent made to

the house of a person who had, at one time, expressed interest

in purchasing a home in which Respondent had an interest, but

later decided not to pursue the purchase. The court sentenced

Respondent to one year in jail with credit for 133 days that he

had already served in jail, and this sentence ran concurrently

with the sentences for uttering a check with a forged

endorsement.

14. Petitioner lacked a copy of a judgment concerning the

interception of oral communications. This offense arose out of

Respondent's surreptitious recording of a conversation that he

had with a police officer who was investigating the stalking

charges. Absent a copy of the judgment, however, insufficient

evidence of this conviction exists for the purpose of this

disciplinary case.

15. At the final hearing, Respondent explained that he did

not disclose these criminal convictions on the Profile because

doing so would somehow implicate him as a "co -conspirator" in

the injustices perpetrated upon him by the authorities involved

in prosecuting these offenses.

16. Respondent falsely failed to disclose on the Profile

his convictions for aggravated stalking and uttering a check

with a forged instrument. His failure to disclose this

information constitutes fraudulent concealment of these criminal

offenses.

17. In a fairly straightforward case, Respondent has filed

nearly 250 pleadings containing thousands of pages. He also

abused the subpoena power of this tribunal by subpoenaing judges

and court officials from every level of the federal and state

judiciaries. Last but not least, Respondent has defamed and

discredited numerous persons without apparent reason, although

some question exists whether Respondent is capable of exercising

consistent control over the impulses leading to at least some of

these utterances.

18. The crimes of which Respondent was convicted may have

arisen out of family disagreements, possibly concerning the sale

of a family home. Respondent may be obsessively preoccupied

with actual or perceived injustices that he suffered as a result

of this transaction. Undoubtedly, Respondent compulsively

litigates everything that has the most remote bearing upon this

transaction, using court files as archives for materials that he

believes will vindicate him, despite an ardent and often-

expressed repulsion for judges, lawyers, and others connected

with the legal system.

19. No penalty but revocation is suitable under the

circumstances, absent a showing by Respondent that he has

commenced or is continuing therapy and that the prognosis is

reasonably good. The record lacks such evidence.

20. Respondent is not unintelligent, nor is he entirely

devoid of insight. His thinking, although at times disordered,

is capable of impressive organizational efforts, as best

revealed by his meticulous organization in his proposed

recommended order of what otherwise seemed to be a bewildering

variety of materials that Respondent has seen fit to file in

this case. Although his behavior seems at times compulsive,

Respondent was capable of a certain level of self-restraint, at

least during the hearing and when not directly confronting the

underlying transaction or crimes. If they occur at some point

in the future, successful diagnosis and treatment of Respondent

should inform Petitioner's interpretation of the events and

behaviors described in this Recommended Order, if Respondent

seeks relicensure as a chiropractor.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes.)

22. Section 460.413(1)( i) and (j) provides:

The following acts shall constitute grounds

for which the disciplinary actions specified

in subsection (2) may be taken:

(i ) Failing to perform any statutory or

legal obligation placed upon a licensed

chiropractic physician.

(j ) Making or filing a report which the

licensee knows to be false, intentionally or

negligently failing to file a report or

record required by state or federal law,

willfully impeding or obstructing such

filing or inducing another person to do so.

Such reports or records shall include only

those which are signed in the capacity of a

licensed chiropractic physician.

23. Section 460.413(2) authorizes the Board of

Chiropractic Medicine to revoke the license of a chiropractor

guilty of any violation described in Section 460.413(1).

Section 460.413(3) adds:

In determining what action is appropriate,

the board must first consider what sanctions

are necessary to protect the public or to

compensate the patient. Only after those

sanctions have been imposed may the

disciplining authority consider and include

in the order requirements designed to

rehabilitate the chiropractic physician.

24. Petitioner must prove the material allegations by

clear and convincing evidence. Department of Banking and

Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla.

1996) and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

25. Petitioner has proved by clear and convincing evidence

that Respondent's concealment of his criminal convictions from

the Profile was the making or filing of a report that he knew to

be false and that he signed in the capacity of a licensed

chiropractic physician. At present, protection of the public

safety compels the revocation of his license.

RECOMMENDATION

It is

RECOMMENDED that the Board of Chiropractic Medicine enter a

final order finding Respondent guilty of violating Section

460.413(1)(j), Florida Statutes, and revoking his license.

DONE AND ENTERED this 19th day of July, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of July, 2001.

COPIES FURNISHED:

Joe Baker, Jr.

Executive Director

Board of Chiropractic Medicine

4052 Bald Cypress Way, Bin C07

Tallahassee, Florida 32399-1701

Theodore M. Henderson

Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Wings S. Benton, Senior Attorney

Agency for Health Care Administration

Office of General Counsel

Medical Quality Assurance

Practitioner Regulation--Legal

Post Office Box 14229

Tallahassee, Florida 32317-4229

Roy A. Day

Post Office Box 33

Tarpon Springs, Florida 34688-0033

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.