03-002939RX Michael Arthur Dunn, D.C. vs. Department Of Health, Board Of Chiropractic Medicine Status: Closed DOAH Final Order on Friday, November 21, 2003.

Summary: The Rule language requiring disclaimer under certain circumstances in chiropractic advertising is not vague. The rule challenge is dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL ARTHUR DUNN, D.C., )

)

Petitioner, )

)

vs. ) Case No. 03 - 2939RX

)

DEPARTMENT OF HEALTH, BOARD OF )

CHIROPRACTIC MEDICINE, )

)

Respondent. )

)

FINAL ORDER

On October 3, 2003, an administrative hearing in this case

was held in Tallahassee, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: William B. Bennett, E squire

Kidder & Bennett

696 First Avenue, North, Suite 303

St. Petersburg, Florida 33701

For Respondent: Donna Erlich, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

STATEMENT OF THE ISSUE

The issue in the case is whether Florida Administrative

Code Rules 64B2 - 15.001(2)(e) and 64B2 - 15.001(2)(e)3. are invalid

exercises of deleg ated legislative authority.

PRELIMINARY STATEMENT

On August 13, 2003, Michael Arthur Dunn (Petitioner) filed

a petition to challenge Florida Administrative Code Rules 64B2 -

15.001(2)(e) and 64B2 - 15.001(2)(e)3. pursuant to Sections

120.52(8)(d) and 120.56( 1), Florida Statutes (2003).

The case was assigned to the undersigned on August 15,

2003, and originally scheduled for hearing on September 15,

2003. The parties waived statutory time frames set forth at

Section 120.56, Florida Statutes, and, upon motion of the

parties, the case was continued and rescheduled for October 3,

2003.

The parties acknowledge that an Administrative Complaint

has been filed by the Department of Health, Board of

Chiropractic Medicine (Respondent), against the Petitioner which

al leges that the Petitioner has "advertised" by placing a

designation ("CICE") on letterhead without a disclaimer required

by Florida Administrative Code Rule 64B2 - 15.001(2)(e)3. The

Petitioner asserts that the cited Rules are vague and fail to

inform a rea sonable person as to what is being prohibited. The

Administrative Complaint filed against the Petitioner has not

been referred to the Division of Administrative Hearings and is

not at issue in this proceeding.

During the hearing, the Petitioner testifie d on his own

behalf, and had Exhibits numbered 1 through 3 and 6 through 7

admitted into evidence. The Respondent presented the testimony

of three witnesses, and had Exhibits numbered 1 through 3, 5 and

5A, and 7 through 8 admitted into evidence.

On Oct ober 6, 2003, the Respondent filed a Motion to

Supplement the Record. On October 7, 2003, the Petitioner filed

an Objection to the Motion. On October 10, 2003, the Petitioner

filed an Amended Objection to the Motion or in the Alternative

to Allow the Pet itioner to Supplement the Record. On

October 13, 2003, the Respondent filed a Response to the

Alternative Motion to Supplement the Record. Upon review of the

Motions and Responses, it is hereby ordered that both Motions to

Supplement the Record are denie d.

The two - volume Transcript of the hearing was filed on

October 17, 2003. By agreement, the parties filed Proposed

Final Orders on November 10, 2003.

FINDINGS OF FACT

1. The Petitioner, a Florida - licensed chiropractor, is the

subject of an Administra tive Complaint filed against him by the

Department of Health, Board of Chiropractic.

2. The Administrative Complaint alleges that the

Petitioner's letterhead identifies him as a "CICE (Certified

Independent Chiropractic Examiner)" and that such designat ion

requires a disclaimer as set forth at Florida Administrative

Code Rule 64B2 - 15.001(2)(e)3.

3. The Administrative Complaint further alleges that the

use of the designation constitutes a deceptive and misleading

advertisement pursuant to Florida Admin istrative Code Rule 64B2 -

15.001(2)(e).

4. The Administrative Complaint was filed as the result of

a complaint against the Petitioner filed by another

chiropractor.

5. The American Board of Independent Medical Examiners

(ABIME) bestows the designation " CICE" on chiropractors. Some

chiropractors such as the Petitioner obtain the designation by

completing a 20 - hour course over a weekend and then passing a

test. A witness for the Respondent, Dr. Ronald Lee Harris,

obtained the designation by working with the ABIME on reviewing

examination questions used by the ABIME and has not completed

any course of training related to the CICE designation. Another

witness for the Respondent, Dr. Stanley Kaplan, testified that

he was listed on the ABIME website with the CICE designation,

but that he was unaware of the designation until the day prior

to the hearing and has not completed any course of training

related to the CICE designation.

6. Florida Administrative Code Rule 64B2 - 15.001(2)(e)

provides as follows:

64B2 - 15.001 Deceptive and Misleading

Advertising Prohibited; Policy; Definition.

(2) No chiropractor shall disseminate or

cause the dissemination of any advertisement

or advertising which is in any way

fraudulent, false, deceptive or misleading.

Any advertise ment or advertising shall be

deemed by the Board to be fraudulent, false,

deceptive, or misleading if it:

* * *

(e) Conveys the impression that the

chiropractor or chiropractors, disseminating

the advertising or referred to therein,

possess qualific ations, 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 atta ined Diplomate

status in a chiropractic specialty area

recognized by the Board of Chiropractic.

1. Chiropractic Specialities recognized by

the Board are those recognized by the

various Councils of the American

Chiropractic Association or the

Internationa l Chiropractic Association.

Each speciality requires a minimum of 300

hours of post - graduate credit hours and

passage of a written and oral examination

approved by the American Chiropractic

Association or International Chiropractic

Association. Titles us ed for the respective

specialty status are governed by the

definitions articulated by the respective

councils.

2. A Diplomate of the National Board of

Chiropractic Examiners is not recognized by

the Board as a chiropractic specialty status

for the purpos e of this rule.

3. A chiropractor who advertises that he or

she has attained recognition as a specialist

in any specific chiropractic or adjunctive

procedure by virtue of a certification

received from an entity not recognized under

this rule may use a re ference 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 special ty

recognition identified herein has been

received from a private organization not

affiliated with or recognized by the Florida

Board of Chiropractic Medicine.”

7. The Petitioner asserts that the phrase "other than a

simple listing of earned professional post - doctoral or other

professional achievements" as set forth at Florida

Administrative Code Rule 64B2 - 15.001(2)(e) is vague and fails to

properly apprise a reasonable person as to what is prohibited.

8. The Respondent presented the expert testimony o f three

witnesses during the hearing. Two of the three witnesses

offered differing opinions as to what constitutes "a simple

listing of earned professional post - doctoral or other

professional achievements."

9. Dr. Stanley Kaplan testified that the phras e would

permit a chiropractor to list only his chiropractic degree, but

also indicated that a "simple listing" could include any items a

chiropractor would include on a curriculum vita.

10. Dr. Ronald Lee Harris testified that the phrase

includes only t he chiropractic degree and that listing

"achievements" other than a degree and Diplomate status would

require inclusion of the language related to the awarding

entity's lack of affiliation with or recognition by the Florida

Board of Chiropractic Medicine ( the "disclaimer language").

Dr. Harris testified that the information set forth on a

curriculum vita would not be properly included in "a simple

listing of earned professional post - doctoral or other

professional achievements."

11. Dr. Steven Willis testi fied that the phrase "simple

listing of earned professional post - doctoral or other

professional achievements" could be viewed as vague if

considered outside the context of the remainder of the rule

section, but asserted that the language set forth in

subse ction 3 of Florida Administrative Code Rule 64B2 -

15.001(2)(e) clarified the phrase. Dr. Willis' testimony was

credible and is accepted.

12. Based on the testimony of Dr. Steven Willis and a

contextual reading of the Rule, Florida Administrative Code

Ru le 64B2 - 15.001(2)(e) is not vague. The evidence establishes

that the reference to "a simple listing of earned professional

post - doctoral or other professional achievements" achievements

in Florida Administrative Code Rule 64B2 - 15.001(2)(e) is limited

by s ubsection 3 to require inclusion of a disclaimer in certain

specific circumstances.

13. Clearly a chiropractor can advertise the fact that he

has received a doctorate in chiropractic medicine. A

chiropractor may also advertise "earned professional pos t -

doctoral or other professional achievements," whether or not the

Board of Chiropractic Medicine has recognized the conferring

entity. In the event the Board has not recognized the

conferring entity, the advertising chiropractor must include the

disclaim er language when the designation connotes "recognition

as a specialist in any specific chiropractic or adjunctive

procedure."

14. The Petitioner further asserts that Florida

Administrative Code Rule 64B2 - 15.001(2)(e)3. is vague because

the phrase "speci alist in any specific chiropractic or

adjunctive procedure" is capable of multiple interpretations.

15. The evidence establishes that, within the context of

the Rule, "specialist in any specific chiropractic or adjunctive

procedure" has sufficient meanin g to convey who is being

identified and is therefore not vague. The Rule requires only

that where an advertising chiropractor represents himself to be

a specialist in any chiropractic or adjunctive procedure by

virtue of a "certification" from an unrecogn ized entity, the

advertising must include the disclaimer language that the

certification was received from a "private organization not

affiliated with or recognized by the Florida Board of

Chiropractic Medicine."

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.56, Fla. Stat.

17. The Petitioner asserts that Florida Administrative

Code Rules 64B2 - 15.001(2)(e) and 64B2 - 15.001(2)(e)3. are invalid

exercises of delegated legislative authority as defined by

Section 120.52(8)(d), Florida Statutes.

18. In relevant part, Section 120.52(8)(d), Florida

Statutes, provides as follows:

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and duties

delegated by the Legislature. A proposed or

existing rule is an invalid exercise of

delegated legislative authority if any one of

the following applies:

* * *

(d) The rule is vague, fails to establish

adequat e standards for agency decisions, or

vests unbridled discretion in the

agency. . . .

19. The Petitioner has the burden in a challenge to an

existing rule of establishing by a preponderance of the evidence

that the cited rule is an invalid exercise of de legated

legislative authority. § 120.56(3)(a), Fla. Stat. See also

Florida Department of Transportation v. J.W.C. Company , 396 So.

2d 778 (Fla. 1st DCA 1981); Dravo Basic Materials Co., Inc., v.

Department of Transportation , 602 So. 2d 632 (Fla. 2d DCA 1 992).

In this case, the burden has not been met.

20. A government restriction is vague if it either forbids

or requires the doing of an act in terms so vague that men of

common intelligence must necessarily guess at its meaning and

differ as to its app lication. Witmer v. Florida, Dep't of Bus.

& Prof. Reg., Div. of Pari - Mutuel Wagering , 662 So. 2d 1299

(Fla. 4th DCA 1995), citing Bouters v. Florida , 659 So. 2d 235

(Fla. 1995).

21. The evidence fails to establish that Florida

Administrative Code Rule 64B2 - 15.001(2)(e) is vague. The

testimony of the two witnesses who differed on the application

of the Rule addressed the Rule absent consideration of the

Rule's modifying subsections. A contextual reading of the Rule,

including the subsections of the Ru le, establishes that the

phrase "a simple listing of earned professional post - doctoral or

other professional achievements" is not vague. A chiropractor

may advertise "earned professional post - doctoral or other

professional achievements." The reference to "a simple listing

of earned professional post - doctoral or other professional

achievements" achievements in Florida Administrative Code Rule

64B2 - 15.001(2)(e) is limited by subsection 3 of Florida

Administrative Code Rule 64B2 - 15.001(2)(e). Where the

achi evement designates "recognition as a specialist in any

specific chiropractic or adjunctive procedure" by a conferring

entity not affiliated with or recognized by the Florida Board of

Chiropractic Medicine, the advertising chiropractor must include

the disc laimer language.

22. The Petitioner asserts that Florida Administrative

Code Rule 64B2 - 15.001(2)(e)3. is vague because the phrase

"specialist in any specific chiropractic or adjunctive

procedure" is undefined. The Petitioner has failed to establish

tha t, in the context of the Rule, the phrase is vague or has

insufficient meaning to identify the practitioner being

addressed. The Rule clearly refers to advertising wherein a

chiropractor indicates that he is a "specialist in any

chiropractic or adjunctive procedure" by "virtue of a

certification received from an entity not recognized under this

rule." Where a chiropractor advertises as a "specialist in any

chiropractic or adjunctive procedure by virtue of a

certification" from an unrecognized entity, the advertising must

include disclaimer language stating that the certification was

received from a "private organization not affiliated with or

recognized by the Florida Board of Chiropractic Medicine."

Whether or not a designation constitutes a "certificati on" that

the advertising chiropractor is a "specialist in any

chiropractic or adjunctive procedure" is a question of fact that

must be determined on a case - by - case basis.

23. The parties presented evidence on issues that should

be addressed during a h earing on the Administrative Complaint

filed against the Petitioner. Such issues include whether the

Petitioner's letterhead constitutes advertising, whether the

performance of an "independent medical examination" is a

"process" or a "procedure," and whet her the inclusion of the

CICE designation on letterhead indicates that the Petitioner is

a "specialist in any specific chiropractic or adjunctive

procedure by virtue of a certification" from an unrecognized

entity so as to require use of disclaimer languag e. Such issues

are outside the scope of this rule challenge proceeding.

24. The Petitioner also asserts that the cited Rules are

so vague as to violate the Fifth Amendment of the United States

Constitution and Article I, Section 9, of the Florida

Constit ution. An Administrative Law Judge is without authority

to consider issues of constitutionality involving existing

administrative rules. Key Haven Association Enterprises, Inc.

v. Board of Trustees of Internal Improvement Trust Fund , 427 So.

2d 153 (Fla. 1982); Department of Revenue v. Young American

Builders , 330 So. 2d 864 (Fla. 1st DCA 1976).

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the Petitioner's challenge to Florida

Administrative Code Rules 64B2 - 15.001(2)(e) and 64B2 -

15.001(2)(e)3. is DISMISSED.

DONE AND ORDERED this 21st day of November, 2003, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hea rings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of November, 20 03.

COPIES FURNISHED :

William B. Bennett, Esquire

Kidder & Bennett

696 First Avenue, North, Suite 303

St. Petersburg, Florida 33701

Donna Erlich, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Joe Baker, Jr., Executive Director

Board of Chiropractic Medicine

Department of Health

4052 Bald Cypress Way, Bin C07

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Sect ion 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.