06-000798RX Michael John Badanek, D.C. vs. Department Of Health, Division Of Medical Quality Assurance, Board Of Chiropratic Medicine Status: Closed DOAH Final Order on Tuesday, May 16, 2006.

Summary: Petitioner failed to prove that Rule 64B2-15.001(2)(e), (i) and (l), Florida Administrative Code, exceeded Respondent`s rule-making authority or enlarges, modifies, or contravenes the law implemented.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL JOHN BADANEK, D.C., )

)

Petitioner, )

)

vs. ) Case No. 06 - 0798RX

)

DEPARTMENT OF HEALTH, BOARD )

OF CHIROPRACTIC MEDICINE, )

)

Respondent. )

_________________________________)

FI NAL ORDER

This matter came before Larry J. Sartin, a duly - designated

Administrative Law Judge of the Division of Administrative

Hearings, upon the filing of a Joint Pre - Hearing Stipulation in

which the parties agreed there were no disputed issues of fact.

APPEARANCES

For Petitioner: Wilson Jerry Foster, Esquire

Law Offices of Wilson Jerry Foster

1342 Timberlane Road, Suite 102 - A

Tallahassee, Florida 32312 - 1775

For Respondent: M ichael T. Flury, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue in this case is whether Florida Adminis trative

Code Rule Subsections 64B2 - 15.001 (2) (e), (i), and (l) constitute

a n invalid exercise of delegated legislative authority i n that

they exceed Respondent's rulemaking authority or enlarge,

modify, or c ontravene the law the Rule implements .

PRELIMINARY STATEMENT

On March 6, 2006, Petitioner Michael John Badanek, D.C.,

filed a Petition to Determine Invalidity of Existing Rule

(hereinafter referred to as the "Petition") with the Division of

Administrative Hearings (hereinafter referred to as the "DOAH").

Petitioner challenged the validity of Florida Administrative

Code Rule Subsections 64B2 - 15.001 (2) (e), (i), and (l)

(hereinafter referred to collectively as the "Challenged Rule

Subsections"). Petitioner alleged that the Challenged Rule

Subsections consti tute an invalid exercise of delegated

legislative authority as defined in Section s 120.52(8)(b) and

(c), Florida Statutes (2005). All future references to the

Florida Statutes are to the 2005 version.

Petitioner's challenge was designated DOAH Case No. 06 -

0798RX and, by Order of Assignment entered March 8, 2006, the

case was assigned to the undersigned.

By Notice of Hearing entered March 9, 2006, a final hearing

was scheduled for March 28, 2006. On March 24, 2006, the

parties filed a Joint Pre - Hearing Sti pulation (hereinafter

referred to as the "Stipulation"). In the Stipulation the

parties agreed to the admission into evidence of Florida

Administrative Code Rule 64B2 - 15.001, a copy of which was

attached to the Stipulation. That exhibit, which is marked as

Joint Exhibit A, is hereby admitted . The parties also

stipulated to certain facts relating to Petitioner's standing

and relating to Respondent which are accepted . The parties then

agreed that "[i]n light of this stipulation, the Parties agree

that a h earing is not required."

In light of the foregoing, an Order Canceling Final Hearing

and Setting Date for Filing Proposed Final Orders was entered

March 28, 2006. The parties were given until April 17, 2006, t o

file proposed final orders. Both parties ti mely filed Proposed

Final Orders. Those submittals have been fully considered in

entering this Final Order.

FINDINGS OF FACT

1. Petitioner Michael John Badanek, D.C., is a duly

licensed chiropractic physician in the State of Florida .

Dr. Badanek activel y practices in Ocala, Florida.

2. Dr. Badanek has engaged in and is engaging in, the

advertising of professional services to the public.

3. Dr. Badanek is subject to the provisions of Chapter

460, Florida Statutes, and the rules promulgated by Respondent .

4. 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.

5. Dr. Badanek has standin g to challenge the Challenged

Rule Subsections.

6. The affected state agency is the Board of Chiropractic

Medicine (hereinafter referred to as the "Board"), located at

4052 Bald Cypress Way, Tallahassee, Florida.

7. The Board is charged by Chapter 460, F lorida 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.

8. At issue in this matter is the Challenged Rule

Subsections of Florida Administrative Code Rule 64B2 - 15.00 1 .

The Challenged Rule Subsections provide the following:

64B2 - 15.001 Deceptive and Misleading

Advertising Prohibited; Policy; Definition.

. . . .

(2) No chiropractor shall disseminate or

cause the dissemination of any advertisement

or advertising which is in any way

fraudulent, false, deceptive or misleading.

Any advertisement or advertising shall be

deemed by the Board to be fraudulent, false,

deceptive, or misleading, if it:

. . . .

(e) Coveys the imp ression that the

chiropractor or chiropractors, disseminating

the advertising or referred to therein,

posses qualifications, skill s , or other

attributes which are superior to other

chiropractors, other than a simple listing

of earned professional post - doct oral or

other professional achievements. However, a

chiropractor is not prohibited from

advertising that he has attained Diplomate

status in a chiropractic specialty area

recognized by the Board of Chiropractic.

1. Chiropractic Specialties recognized b y

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.

2. A Diplomate of the Nat ional Board of

Chiropractic Examiners is not recognized by

the Board as a chiropractic specialty status

for the purpose of this rule.

3. A chiropractor who advertises that he

or she has attained recognition as a

specialist in any chiropractic or adjunc tive

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 Chiropra ctic Medicine."

4. 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 t he statement

"Honorary" or (Hon . ) next to the ti tle.

. . . .

( 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 t hat 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 o ther 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 "L icensed to practice

chiropractic medicine only" in the same

print size or volume.

. . . .

9 . The authority cited by the Board as its "grant of

rulemaking authority" for the Challenged Rule Subsections is

Section 460.405, Florida Statutes , which provid es:

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.

10 . The Board has cited Sections 456.062 and

460.4 13(1)(d), Florida Statutes, as the "law implemented" by the

Challenged Rule Subsections.

11. Section 456.062, Florida Statutes, provides:

A d vertisement by a health care

practitioner of free or discounted services;

required statement. -- In any advertiseme nt

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 RIGH T 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 pur pose 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.

12. Section 460.413(1)(d), Florida Statutes, provides the

following ground for dis ciplinary action: "False, deceptive, or

misleading advertising." While neither this provision n or any

other specific provision of Chapter 460, Florida Statutes,

imposes a specific duty upon the Board to define what

constitutes "false, deceptive, or misle ading 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."

CONCLUSIONS OF LAW

13 . Dr. Badanek has instituted this proceeding pursuant to

Section 120.56, Florida Statutes, which allows substantially

affected persons to challenge the facial validity of rules. See

Fairfield Communities v. Florida Land and Water Adjudicatory

Commission , 5 22 So. 2d 1012, 1014 (Fla. 1st DCA 1988)("At the

outset, we note that we are being asked [in this appeal of a

final order of a Division hearing officer in a rule challenge

proceeding] to determine the facial validity of these two rules

[being challenged], not to determine their validity as applied

to specific facts, or whether the agency has placed an erroneous

construction on them.").

14 . The DOAH , therefore, has jurisdiction over the parties

to and the subject matter of this matter pursuant to Sections

120.56(1) and (3), Florida Statutes.

15 . Section 120.56(1), Florida Stat utes , provides, in

pertinent part, the following :

(1) GENERAL PROCEDURES FOR CHALLENGING

THE VALIDITY OF A RULE OR A PROPOSED RULE. --

(a) Any person substantially affected by

a rule or a proposed rule may seek an

administrative determination of the

invalidity of the rule on the ground that

the rule is an invalid exercise of delegated

legislative authority .

. . . .

16 . Pursuant to Section 120.56(1)(a), Florida Statutes , a

p erson must be "substantially affected by a rule" in order to

challenge its validity. See also §120.56(3)(a), Fla. Stat. The

evidence in this case supports the stipulation of the parties

that Dr. Badanek is substantially affected by the Challenged

Rule Su bsections and, therefore, has standing.

17 . Section 120.56(1) (a) , Florida Statues , also specifies

that the bases f or challenging an existing rule is limited to an

assertion that the rule is an "invalid exercise of delegated

legislative authority." The te rms "invalid exercise of

delegated legislative authority" are defined in Section

120.52(8), Florida Statutes, as:

(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:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in t his chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.;

( c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a)1.;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbr idled discretion in the agency;

(e) The rule is arbitrary or capricious.

A rule is arbitrary if it is not supported

by logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or

(f) The rule imposes regulatory costs on

the regulated person, county, or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory o bjectives.

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or in terpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the ag ency's

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functio ns of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the same statute .

18 . Dr. Badanek has alleged that the Challenged Rule

Subsections constitute an invalid exercise of del egated

legislative authority as defined in Sections 120.52(8)(b) and

(c), Florida Statutes .

19 . Section 120.5 6(1)(b), Florida Statutes , requires that

the challenge to an existing rule be instituted by petition.

That petition must be filed in compliance w ith the following:

(b) The petition seeking an

administrative determination must state with

particularity the provisions alleged to be

invalid with sufficient explanation of the

facts or grounds for the alleged invalidity

and facts sufficient to show th at the person

challenging a rule is substantially affected

by it, or that the person challenging a

proposed rule would be substantially

affected by it .

20 . As to his allegation that the Board has "exceeded its

grant of rulemaking authority" in adopting t he Challenged Rule

Subsections, Dr. Badaneck has alleged the following in his

Petition :

13. The board rules at issue exceed the

grant of rule making authority contained in

Section 460.405, Florida Statutes, which

gives the Board limited authority, " . . .

to adopt rules pursuant to ss. 120.536(1)

and 120.54 to implement the provisions of

this chapter conferring duties upon it ."

(Emphasis in original.)

21 . As to his allegation that the Board's rule "enlarge s,

modifies, or contravenes the specific provi sions of law

implemented", Dr. Badaneck has alleged the following in his

Petition with regard to the authority of Section 456.062,

Florida Statutes:

Notable, there are no words in the

subsection which "confer duties" upon the

Board of Chiropractic Medici ne.

Thus, Dr. Badaneck concludes that Section 456.062, Florida

Statutes, is not be ing implemented consistent with the Board's

rulemaking authority because it does not implement "the

provisions of this chapter conferring duties upon [the Board]."

22 . As t o the Board's implementation of the authority of

Section 460.413(1)(d), Florida Statutes, Dr. Badaneck has

suggested in his Petition that the rule "enlarges, modifies, or

contravenes" that authority for the following reason:

14. The board rules at issue a lso enlarge,

modify and contravene Section 460.405,

Florida Statutes, which limits the authority

of the Board to implement only those

provisions of Chapter 460, "conferring

duties upon it."

As further explained in his Proposed Final Order, Dr. Badaneck

su ggests that there is no specific "duty" conferred upon the

Board by Section 460.413(1)(d), Florida Statutes, to adopt the

definitions or guidelines concerning what actually constitutes

"false, decept ive, or misleading advertising" found in the

Challenged R ule Subsections.

23 . In summary, Dr. Badaneck, as is clear from his

Petition and his Proposed Final Order, is asserting that the

only rulemaking authority granted to the Board by Section

460.405, Florida Statutes, is the authority to adopt rules which

imp lement a specific statutory "duty" imposed upon the Board.

He goes on to assert that, because the specific statutory

provisions being implemented by the Board's adoption of the

Challenged Rule Subsections d o not specifically impose any duty

on the Board t o provide any definition of what the Board

believes is false, decep tive, or misleading advertising, the

Board has exceeded its authority.

24 . While, based upon a very restricted, literal reading

of the pertinent statutory provisions at issue in this matte r,

may lend some support to Dr. Badanek's assertions, his reading

of the pertinent provisions is rejected as unreasonable .

Section 460.405, Florida Statutes, grants the Board broad

discretion to adopt rules. Essentially, the Board is authorized

to adopt any rule necessary for it to carry out the duties

imposed upon it by Chapter 460, Florida Statutes.

25 . Although not necessarily specifically expressed as a

"duty," one of the most significant responsibilities, and thus

"duties," of the Board provided in Chapter 460, Florida

Statutes, is the to supervise and, where necessary, discipline

persons licensed as chiropractors in the State of Florida. That

duty in cludes broad responsibility for the investigation of

complaints, the prosecution of administrative c omplaints against

licensees, the final determination of whether a licensee has

committed violations alleged in the administrative complaint,

and, if so, the appropriate penalty. See Chs. 456 and 460, Fla.

Stat.

26. Where the Board , in carrying out its du ty to

discipline chiropractors, develops a policy which constitutes an

"agency statement of genera l applicability that implements,

interprets, or prescribes law or policy or describes the

procedure or practice requirements of an agency . . . " it faces

a c hallenge pursuant to Section 120.56(4)(a), Florida Statutes,

if it fails to adopt that policy as a rule. Section

120.56(4)(a), Florida Statutes, provides the following:

Any person substantially affected by an

agency statement may seek an administrative

determination that the statement violates s.

120.54 (1)(a). The petition shall include

the text of the statement or a description

of the statement and shall state with

particularity facts sufficient to show that

the statement constitutes a rule under s.

12 0.52 and that the agency has not adopted

the statement by the rulemaking procedure

provided by s. 120.54.

In adopting this provision, the legislature clearly intended

that agencies, including boards, adopt their policies, once

developed, as rules in order to put those subject to agency

action on notice of an agency's policy.

27 . The Board has obviously developed a policy that

constitutes an agency statement of general applicability in

carrying out its duty to discipline Chiropractors who engage in

"false, deceptive or misleading advertising." That policy

"implements [and] interprets" Sections 456.062 and

460.413(1)(d), Florida Statutes. Its failure to adopt that

policy as a rule would subject it to challenge pursuant to

Section 120.56(4)(a), Florida Stat utes.

28. It is concluded, therefore, that the Board not only

has the authorit y to provide the guidance when it adopted the

Challenged Rule Subsections, but would be subject to challenge

pursuant to Section 120.56(4), Florida Statutes, had it failed

to do so.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the Petition to Determine Invalidity of

Existing Rule is DISMISSED.

DONE AND ORDERED this 16 th day of May, 2006, in

Tallahassee, Leon County, Florida.

S

LARRY J. SARTIN

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

t his 16 th day of May, 2006.

COPIES FURNISHED :

Wilson Jerry Foster, Esquire

Law Offices of Wilson Jerry Foster

1342 Timberlane Road, Suite 102 - A

Tallahassee, Florida 32312 - 1775

Michae l T. Flury, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Timothy M. Cerio, General Couns el

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. M. Rony François, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

Joe Baker, Jr., Executive Director

Board of Chir opractic Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Scott Boyd

Executive Director and General Counsel

Joint Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the 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 Appea l 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.