07-001153PL Department Of Health, Board Of Chiropractic Medicine vs. Robert Whitney, D.C. Status: Closed Recommended Order on Tuesday, July 31, 2007.

Summary: Respondent is guilty of misleading advertising. The penalty imposed should be less than the minimum penalty specified in ther rule as a result of mitigating factors.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

CHIROPRACTIC MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 07 - 1153PL

)

ROBERT WHITNEY, D.C., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal h earing was held in this case

on June 1, 2007, in Miami, Florida, before Patricia M. Hart, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Cecelia D. Jefferson, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 5

Tallahassee, Florida 32399 - 3265

For Respondent: William Jeff Barnes , Esquire

1515 North Federal Highway

Atrium Building, Suite 300

Boca Raton, Florida 33432

STATEMENT OF THE ISSUE S

Whether the Petitioner committed the violation alleged in

the Administrative Complaint dated April 2006, and, if so, the

penalty that should be imposed .

PRELIMINARY STATEMENT

In an Amended Administrative Complaint dated March 30,

2006, the Department of Health, Board of Chiropractic Medicine

("Department"), charged Robert Whitney, D.C. , with having

committed false, deceptive, or misleading advertising, i n

violation of Section 460. 413(1)(d), Florida Statutes (2001). 1

This charge was based on the factual allegation s that

Dr. Whitney 's name was included on a sign for Williston

Orthopedic Clinic as the ”Medical Director" but that he was not

identified on the sign as a chiropractic physician . Dr. Whitney

timely requested a formal administrative hearing, and the

Department forwarded the matter to the Division of

Administrative Hearings for assignment of an administrative law

judge. Pursuant to notice, the fin al hearing was held on

June 1, 200 7 .

At the hearing, the Department presented the testimony of

Dr. Whitney, and Petitioner's Exhibits 1 through 4 were offered

and received into evidence. Dr. Whitney testified in his own

behalf but did not offer any exhibi ts into evidence. On the

Department's motion and over the objection of Dr. Whitney,

official recognition was taken of several final orders issued by

the Board of Chiropractic Medicine ("Board") in which penalties

were assessed against chiropractic physici ans found guilty of

false, deceptive, or misleading advertising.

The transcript of the proceeding was filed with the

Division of Administrative Hearings on June 25, 2007, and the

parties timely filed proposed findings of fact and conclusions

of law, which have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Dep artment is the state agency charged with the

responsibility for investigating and prosecuting complaints

against persons holding licenses in the health professions and

occupations, including chiropractic physicians. See § 456.073,

Fla. Stat. The Board of Chiropractic Medicine ("Board") is the

entity charged with the respon sible for imposing penalties

against chiropractic physicians for violations of

Section 460.413(1), Florida Statutes. See § 460.413(2),

Fla. Stat.

2. At the times material to this proce eding, Dr. Whitney

was a chiropractic physician licensed to practice chiropractic

medicine in Florida, having been issued license number CH 4840.

3. Dr. Whitney's address of record is 1011 North Federal

Highway, Unit 106, Hallandale Beach, Florida 33009.

4. Dr. Whitney has been a licensed chiropractic physician

in Florida since January 1985 and has never had disciplinary

action taken against his license.

5. On or about September 7, 2001, Williston Orthopedic

Rehab, Inc. ("Clinic") , opened in Williston, Florida.

Dr. Whitney was the medical director of the Clinic ; Robert

Andrews was the owner of the Clinic . Mr. Andrews had worked

with Dr. Whitney in his chiropractic practice for more than 10

years.

6. A sign was erected in front of the Clinic identifyin g

the facility and the services provided. Dr. Whitney's name,

"Dr. Robert Whitney," was prominently shown on the sign , and he

was identified as "Medical Director."

7. The services provided by the Clinic , as shown on the

sign, were as follows:

Automobile Accidents - Injuries

Work Related Injuries

Physical Therapy

Alternative Medicine

Chiropractic Care

Massage

8. On or about September 7, 2001, s everal photographs were

taken of Dr. Whitney and others standing in front of the sign.

T he photograph s appeared in the September 13, 2001, edition of

both The Williston Pioneer newspaper and of the Williston Sun

Suwannee Valley News newspaper, together with articles about the

new Clinic , its staff, and the services offered .

9. Dr. Whitney was identified in one art icle as a "Doctor

of Chiropractic," and Mr. Andrews was identified in the same

article as the "practice administrator."

10. Dr. Whitney had no ownership interest in the Clinic

and had no role in the administration of the Clinic . His

primary duty as medic al director was to review charts , and he

worked at the Clinic part - time .

11. Mr. Andrews ordered the sign that was placed in front

of the Clinic , and Dr. Whitney was not consulted about the

information th at was to be placed on the sign or asked to

approve the contents of the completed sign.

12. Dr. Whitney did not see the sign prior to arriving at

the Clinic on or about September 7, 2001, to have his photograph

taken for the newspaper stories.

13. As soon as Dr. Whitney saw the sign, he notified

Mr. Andr ews that it failed to identify him as a chiropractic

physician. Dr. Whitney immediately told Mr. Andrews to have the

sign modi fied to include the designation "D.C." after his name .

14. Mr. Andrews agreed to modify the sign, but he failed

to have the sign corrected. The sign remained in front of the

Clinic for several weeks before it was removed.

15. Dr. Whitney left his position at the Clinic several

weeks after he asked Mr. Andrews to correct the sign.

16. The sign in front of the Clinic was misleadin g in that

it did not, in any manner, identify Dr. Whitney as a

chiropractic physician. He was identified only as "Dr. Robert

Whitney," the "Medical Director" of the Clinic. The inclusion

of "chiropractic care" among the services provided at the Clinic

is not sufficient, standing alone, to provide notice to the

public that Dr. Whitney is a chiropractic physician.

17. Although Dr. Whitney did not disseminate or cause the

dissemination of the misleading information in the sign, the

sign remained outside the Clinic for several weeks with his

apparent acquiescence.

CONCLUSIONS OF LAW

18 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Fl orida Statutes (200 7 ).

19 . In its Amended Administrative Complaint, the

Department seeks to impose penalties against Dr. Whitney that

include suspension or revocation of his license and/or the

imposition of an administrative fine. Therefore, it has the

b urden of proving by clear and convincing evidence that

Dr. Whitney committed the violation alleged in the Amended

Administrative Complaint. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

20 . The Department has charged Dr. Whitney with "[f]alse,

deceptive, or misleading advertising," which is one ground on

which disciplinary action against chiropractic physicians ma y be

imposed . § 460. 413(1)(d) , Fla. Stat.

21 . Florida Administrative Code Rule 64B2 - 15.001 , which

implements Section 460.413(1)(d), Florida Statutes, sets forth

the definition of deceptive and misleading advertising in

pertinent part as follows:

(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:

* * *

(f) Fails to conspicuously identify the

chiropractor or chiropractors referred to in

the advertising as a chiropractor or

chiropractors; . . .

22 . "Advertisement" and "advertising" are defined in

Florida Administrative Code Rule 64B2 - 15.001(3) as

any statements, oral or written,

disseminated to or before the public or any

portion thereof, with the intent of

furthering the purpose, e ither directly or

indirectly, of selling professional

services, or offering to perform

profess ional services, or inducing members

of the public to enter into any obligation

relating to such professional services. The

terms advertisement or advertising shall

include the name under which professional

services are performed.

23 . Based on the findin gs of fact herein and the

definition in Rule 64B2 - 15.001(3) , the sign erected outside the

Clinic is an advertisement or advertising, and , as proscribed in

Section 460.413(1)(d), Florida Statutes, it must not be false,

deceptive, or misleading.

24 . Based o n the findings of fact herein and the

provisions of Rule 64B2 - 15.001(1)(f) , the sign erected outside

the Clinic must be deemed misleading because it fails to

identify Dr. Whitney as a chiropractic physician.

25 . Dr. Whitney argues that he should not be di sciplined

for the contents of the sign because he did not "disseminate or

cause the dissemination" of the misleading advertising , as

required by Florida Administrative Code Rule 64B2 - 15.001(2): H e

was not involved in procuring the sign; he was not consult ed

regarding the information to be included on the sign; and,

immediately upon seeing the sign, he advised Mr. Andrews that

the sign must be changed to indicate that he was a chiropractic

physician.

26 . Based on the findings of fact herein, Dr. Whitney

ac quiesced in the dissemination of the misleading advertising ,

even though he did not directly disseminate it or directly cause

its dissemination , by pos ing for photographs in fro nt of the

sign . This action is sufficient to establish that Dr. Whitney

is gui lty of "misleading advertising," and the Department has,

therefore, proven by clear and convincing evidence that

Dr. Whitney violated the prohibition in Section 460.413(1)(d),

Florida Statutes, against misleading advertising by a

chiropractic physician.

27 . Disciplinary guidelines applicable to chiropractic

physicians are set forth in Florida Administrative Code

Rule 64B2 - 16.003. Rule 64B2 - 16.003(1)(l) provides that, for the

first violation of Section 460.413(1)(d), Florida Statutes, the

Board shall impos e an administrative fine ranging from a minimum

of $1,000.00 to a maximum of $7,500.00 and sanctions ranging

from a letter of concern to one year's probation.

28 . Florida Administrative Code Rule 64B2 - 16.003(2)

provides as follows:

The Board may take into consideration the

following factors in determining the

appropriate disciplinary action to be

imposed and in going outside of the

disciplinary guidelines:

(a) The danger to the public;

(b) The number of unrelated and distinct

offenses;

(c) The actual damage, physical or

otherwise, to the patient(s);

(d) The length of time since the date of

the last violation(s);

(e) The length of time the licensee has

practiced his or her profession;

(f) Prior discipline imposed upon the

licensee;

(g) The dete rrent effect of the penalty

imposed;

(h) The effect of the penalty upon the

licensee's livelihood;

(i) Rehabilitation efforts of the licensee

including remorse, restitution, and

corrective actions;

(j) Efforts of the licensee to correct or

stop viola tions or failure of the licensee

to correct or stop violations;

(k) Related violations against the licensee

in another state, including findings of

guilt or innocence, penalties imposed and

penalties served;

(l) The actual negligence of the licensee

pe rtaining to any violation;

(m) Any other mitigating or aggravating

circumstances.

29 . Having considered the findings of fact herein, the

Board would be justified in imposing a lesser penalty for

Dr. Whitney's violation than the minimum penalty provided in

Florida Administrative Code Rule 64B2 - 16.003(1)(l). The

Department failed to prove that the misleading information on

the sign in front of the Clinic posed a danger to the public,

given Dr. Whitney's limited duties as Medical Director , or

caused any a ctual damage; the violation occurred almost six

years ago; Dr. Whitney has been in practice in Florida for more

than 20 years and has never been disciplined by the Board; and,

immediately upon seeing the sign, Dr. Whitney requested that the

sign be modifie d to show that he was licensed as a chiropractic

physician.

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 finding Robert Whitney, D.C., guilty o f

having violated Section 460.413(1)(d), Florida Statutes, and

imposing a penalty consisting of a $500.00 administrative fine

and a letter of concern.

DONE AND ENTERED this 3 1st day of July , 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA M. HART

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 3 1st day of Ju ly , 2007.

ENDNOTE

1 All references to the Florida Statutes herein are to the 2001

edition unless otherwise indicated.

COPIES F URNISHED:

William Jeff Barnes, Esquire

1515 North Federal Highway

Atrium Building, Suite 300

Boca Raton, Florida 33432

Cecelia D. Jefferson, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Dr. Ana M. Viamon te Ros, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Joe Baker, Jr., Executive Dir ector

Board of Chiropractic Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXC EPTIONS

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 should be filed with the agency that

will issue the final order in this case.