07-003513PL Department Of Health, Board Of Chiropractic Medicine vs. Francis J. Falowski, D.C. Status: Closed Recommended Order on Thursday, March 20, 2008.

Summary: Petitioner offered to perform services beyond the scope provided by law by offering to perform acupuncture services when he was not certified to do so, and violated Section 460.413(1)(t), Florida Statutes. Recommend an administrative fine and probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

CHIROPRACTIC MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 07-3513PL

)

FRANCIS J. FALOWSKI, D.C., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 31, 2007, by video teleconference, with the parties

appearing in Fort Lauderdale, Florida, before Patricia M. Hart,

a duly-designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Cecelia D. Jefferson, Esquire

Tobey Schultz, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Neil G. Garfield, Esquire

470 South Carpenter Road

Titusville, Florida 32796

STATEMENT OF THE ISSUE

Whether the Respondent committed the violation alleged in

the Administrative Complaint issued October 2, 2006, and, if so,

the penalty that should be imposed.

PRELIMINARY STATEMENT

On October 2, 2006, the Department of Health ("Department")

issued an Administrative Complaint charging that Francis J.

Falowski, D.C., had violated Section 460.413(1)(t), Florida

Statutes (2005), 1 which prohibits "practicing or offering to

practice beyond the scope permitted by law," by advertising that

his office provided "licensed acupuncture" services when he was

not licensed to practice acupuncture and there was no licensed

acupuncturist practicing in Dr. Falowski's office. Dr. Falowski

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.

On September 29, 2006, the Department had issued a two-

count Amended Administrative Complaint against Dr. Falowski,

which was also forwarded to the Division of Administrative

Hearings for assignment of an administrative law judge and

assigned DOAH Case No. 07-3514PL. On September 11, 2007, the

Department filed a Motion to Consolidate in which it requested

that DOAH Case No. 07-3513PL and DOAH Case No. 07-3514PL be

consolidated for hearing. The motion was granted in an order

entered September 24, 2007. These cases were originally

assigned to Administrative Law Judge Larry J. Sartin, but were

transferred to Administrative Law Judge Patricia M. Hart for

hearing. After several continuances, the final hearing was held

on October 31, 2007. 2

At the hearing, the Department presented the testimony of

Richard Freiberg, Ann Broome, and Vicki Grant; Petitioner's

Exhibits 1 through 4 were offered and received into evidence.

Dr. Falowski did not present the testimony of any witnesses, nor

did he offer any exhibits into evidence.

On October 11, 2007, Dr. Falowski filed Respondent's Motion

for this Court to Take Judicial Notice in the consolidated

cases, in which he requested that official recognition be taken

of portions of the Florida Health Care Atlases purportedly

published during the 1980's. On October 18, 2007, a telephone

hearing was held on a number of motions filed in the

consolidated cases. During that hearing, the Department made an

ore tenus motion for official recognition of the Final Order

entered in Sullivan v. Department of Health, Board of

Chiropractic Medicine , DOAH Case No. 02-4916, (Florida DOAH

October 5, 2003). Administrative Law Judge Van Laningham

entered an order on October 19, 2007, granting official

recognition to portions of the Florida Health Care Atlases,

copies of which were to be provided, and to the Final Order in

Sullivan . On November 13, 2007, Dr. Falowski filed Respondent's

Notice of Filing, to which were attached excerpts from the 1987,

1989, and 1990 editions of the Florida Health Care Atlas;

official recognition is, therefore, taken of these excerpts.

On October 22, 2007, the Petitioner filed Petitioner's

Motion for Official Recognition in the consolidated cases, in

which it requested official recognition of the final orders

entered by the Department in Department of Health Case

Nos. 199208590, 199406133, 199316255, and 110568. Official

recognition was taken at the final hearing on October 31, 2007,

of these final orders, subject to the limitation that these

orders would be relevant only to the appropriate penalty to be

imposed on Dr. Falowski if he were found to have committed the

violations alleged in the Administrative Complaint and Amended

Administrative Complaint in the instant cases.

On October 26, 2007, the Department filed Petitioner's

Second Motion for Official Recognition in the consolidated

cases, in which it requested official recognition of documents

excerpted by the Department from Dr. Falowski's licensure file;

of Sections 460.403(9)(c)1. and 460.406, Florida Statutes; and

of Florida Administrative Code Rules 64B2-11.0012, 64B2-

15.001(2)(a) and (e), and 64B2-17.003. 3 The motion was granted

at the final hearing, and official recognition is taken of the

statutes and rules identified in the motion.

At the final hearing, counsel for Dr. Falowski made an ore

tenus motion to dismiss the Administrative Complaint and the

Amended Administrative Complaint in these consolidated cases,

together with a motion to strike, and a motion for contempt.

The undersigned requested that Dr. Falowski file a written

motion subsequent to the hearing. Dr. Falowski accordingly

filed Respondent's Motion to Dismiss, Motion to Strike, and

Motion for Contempt, and the Petitioner filed a response in

opposition to the motion. On January 18, 2008, an order was

entered on denying all three of the motions.

The one-volume transcript of the proceedings was filed with

the Division of Administrative Hearings on December 12, 2007.

The parties had requested at the final hearing that they be

permitted to file their proposed recommended orders on

January 31, 2008. On January 24, 2008, counsel for Dr. Falowski

filed a Motion by Counsel to Withdraw. The Department filed a

response in opposition to the motion; Dr. Falowski did not file

a response within the time specified in Florida Administrative

Code Rule 106.204(1). An order was entered on February 12,

2008, granting Neil F. Garfield leave to withdrawal and granting

an extension of time to Dr. Falowski to file his proposed

recommended order. The Department timely filed its Proposed

Recommended Order, which has been considered in the preparation

of this Recommended Order. Dr. Falowski failed to file proposed

findings of fact and conclusions of law.

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 Department is the state agency responsible 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 responsible 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 proceeding, Dr. Falowski

was a chiropractic physician licensed to practice chiropractic

medicine in Florida, having been issued license number CH 5108.

Dr. Falowski was first certified in Florida to practice

chiropractic medicine in 1986. Dr. Falowski also is certified

to administer propriety drugs.

3. At the times material to this proceeding, Dr. Falowski

did business as Rainbow Rehabilitation, and his address of

record was 4201 North State Road 7, Lauderdale Lakes, Florida

33319.

4. On or about August 25, 2997, Dr. Falowski submitted an

application for acupuncture certification to the Department. He

paid a fee and was certified to take the acupuncture

certification examination. His application reflects that he

completed 105 hours of acupuncture training at the University of

Miami.

5. Dr. Falowski took the acupuncture certification

examination in November 1997, but he did not pass the

examination.

6. On or about April 15, 1998, Dr. Falowski submitted a

second application for acupuncture certification to the

Department. He paid a fee and was again certified to take the

acupuncture certification examination. His application reflects

that he completed acupuncture training at the University of

Miami.

7. Dr. Falowski took the acupuncture certification

examination in May 1998 and attained a passing score.

8. On or about July 7, 1998, the Department mailed an

Examination Grade Report to Dr. Falowski, advising him that he

had passed the chiropractic certification examination for

acupuncture. A Request for Registration Form for the Board of

Chiropractic Medicine was included with the Examination Grade

Report, and the instructions stated that the form and a check or

money order must be returned to the Department within 45 days.

The form listed a $100.00 fee for the Chiropractic Acupuncture

Certification.

9. There is nothing in the records of the Department

indicating that it received the Request for Registration Form or

check in the amount of $100.00 from Dr. Falowski, nor do the

records reflect that Dr. Falowski has been issued an acupuncture

certification. 4

10. On or about December 28, 2005, writing was observed on

the window of the Rainbow Rehabilitation office which stated:

WE DO

• PHYSICALS

&

• BLOOD

WORK

• LICENSED

ACUPUNCTURE

• EKG

No acupuncture license number was listed on the window.

11. Dr. Falowski intended to perform acupuncture

treatments for any member of the public who requested these

treatments at Rainbow Rehabilitation. 5

CONCLUSIONS OF LAW

12. 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),

Florida Statutes (2007).

13. 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

burden 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).

14. The Department has charged that Dr. Falowski violated

Section 460.413(1)(t), Florida Statutes, which provides:

(1) 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.

15. Section 460.403, Florida Statutes, provides in

pertinent part:

(5) "Chiropractic physician" means any

person licensed to practice chiropractic

medicine pursuant to this chapter.

* * *

(9)(a) "Practice of chiropractic medicine"

means a noncombative principle and practice

consisting of the science, philosophy, and

art of the adjustment, manipulation, and

treatment of the human body in which

vertebral subluxations and other

malpositioned articulations and structures

that are interfering with the normal

generation, transmission, and expression of

nerve impulse between the brain, organs, and

tissue cells of the body, thereby causing

disease, are adjusted, manipulated, or

treated, thus restoring the normal flow of

nerve impulse which produces normal function

and consequent health by chiropractic

physicians using specific chiropractic

adjustment or manipulation techniques taught

in chiropractic colleges accredited by the

Council on Chiropractic Education. No

person other than a licensed chiropractic

physician may render chiropractic services,

chiropractic adjustments, or chiropractic

manipulations.

* * *

(c)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, . . .

* * *

(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 [of Chiropractic

Medicine]. 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.

(Emphasis added.)

16. Based on the findings of fact herein, the Department

has proven by clear and convincing evidence that Dr. Falowski

was not certified to use acupuncture. Even though he

satisfactorily completed the required coursework and passed the

examination, he failed to submit a Request for Registration and

a check or money order for the required $100.00 fee. He,

therefore, never completed all of the steps necessary for

certification even though he was qualified to be certified in

1998. Because he was not certified by the Board to use

acupuncture in his treatments, the Department has met its burden

of proving by clear and convincing evidence that Dr. Falowski

practiced or offered to practice beyond the scope permitted by

law, in violation of Section 460.413(1)(t), Florida Statutes.

17. Section 456.072(2), Florida Statutes, provides as

follows:

(2) When the board, or the department when

there is no board, finds any person guilty

of the grounds set forth in subsection (1)

or of any grounds set forth in the

applicable practice act, including conduct

constituting a substantial violation of

subsection 1) or a violation of the

applicable practice act which occurred prior

to obtaining a license, it may enter an

order imposing one or more of the following

penalties:

(a) Refusal to certify, or to certify with

restrictions, an application for a license.

(b) Suspension or permanent revocation of a

license.

(c) Restriction of practice or license,

including, but not limited to, restricting

the licensee from practicing in certain

settings, restricting the licensee to work

only under designated conditions or in

certain settings, restricting the licensee

from performing or providing designated

clinical and administrative services,

restricting the licensee from practicing

more than a designated number of hours, or

any other restriction found to be necessary

for the protection of the public health,

safety, and welfare.

(d) Imposition of an administrative fine

not to exceed $10,000 for each count or

separate offense. If the violation is for

fraud or making a false or fraudulent

representation, the board, or the department

if there is no board, must impose a fine of

$10,000 per count or offense.

(e) Issuance of a reprimand or letter of

concern.

(f) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board, or the department

when there is no board, may specify. Those

conditions may include, but are not limited

to, requiring the licensee to undergo

treatment, attend continuing education

courses, submit to be reexamined, work under

the supervision of another licensee, or

satisfy any terms which are reasonably

tailored to the violations found.

(g) Corrective action.

(h) Imposition of an administrative fine in

accordance with s. 381.0261 for violations

regarding patient rights.

(i) Refund of fees billed and collected

from the patient or a third party on behalf

of the patient.

(j) Requirement that the practitioner

undergo remedial education.

In determining what action is appropriate,

the board, or department when there is no

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 practitioner. All costs

associated with compliance with orders

issued under this subsection are the

obligation of the practitioner.

18. Florida Administrative Code Rule 64B2-16.003 sets

forth Guidelines for the Disposition of Disciplinary Cases and

provides in pertinent part:

(1) When the Board finds that an applicant

or licensee whom it regulates pursuant to

Chapter 460, F.S., has violated the below-

listed provisions, it shall issue a final

order imposing appropriate penalties, for

each count, as set forth in

Section 456.072(2), F.S., within the ranges

recommended in the following disciplinary

guidelines. The identification of offenses

are descriptive only; the full language of

each statutory provision cited must be

considered in order to determine the conduct

included. For all persons subject to this

rule, conditions of probation may be

required following any period of suspension

of license and probation will require

compliance with conditions as set forth in

subsection (3). . . . In addition to any

other discipline imposed, the Board shall

assess the actual costs related to the

investigation and prosecution of a case. In

addition to or in lieu of any guideline

penalties provided herein, if the violation

is for fraud or making a false or fraudulent

representation, the Board shall impose a

fine of $ 10,000 per count or offense.

* * *

(bb) Section 460.413(1)(t), F.S.:

practicing beyond the scope permitted or

competent to perform - from a minimum fine

of $2,500 and/or one year of probation, up

to a maximum of suspension of license for

two years followed by probation and a fine

of $10,000. After the first offense, up to

a maximum fine of $ 10,000 and/or

revocation.

19. 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 deterrent 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 violations 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

pertaining to any violation;

(m) Any other mitigating or aggravating

circumstances.

20. Dr. Falowski has been the subject of four previous

disciplinary actions, all resolved by settlement stipulations

incorporated into final orders. The first Final Order and

Settlement Stipulation, issued in 1990, resolved the issue

presented in an Administrative Complaint dated April 18, 1988,

in which Dr. Falowski was charged with the inability to practice

chiropractic medicine safely due to his treatment for drug

abuse. Dr. Falowski did not admit or deny the allegations in

the Administrative Complaint but, pursuant to the terms of the

Settlement Stipulation incorporated into the Final Order,

Dr. Falowski agreed to comply with the guidelines of the

Physicians Recovery Network ("PRN").

21. A single Final Order and Settlement Stipulation issued

in 1995 disposed of three Administrative Complaints: In the

first Administrative Complaint, issued in 1993, Dr. Falowski was

charged with pleading guilty to possession of cocaine and/or

possession of drug paraphernalia, a crime directly relating to

the practice of chiropractic medicine; in the second

Administrative Complaint, issued in 1994, Dr. Falowski was

charged with holding himself out as an "M.D.", when the school

he attended had not been accredited by the United States

Department of Education; and in the third Administrative

Complaint, issued in 1994, Dr. Falowski was charged with failure

to adhere to the provisions of the Settlement Stipulation

incorporated into the above-referenced Final Order issued by the

Board in 1990. Dr. Falowski did not admit or deny the

allegations in these Administrative Complaints, but, pursuant to

the Settlement Stipulation incorporated into the Final Order,

(1) he agreed to an evaluation by the PRN, to enter into an

advocacy contract with the PRN, if appropriate, and to

participate in PRN or comply with any contract he might enter

into with the PRN; and (2) he was placed on probation for five

years, subject to a number of conditions imposed by the Board.

22. With respect to the danger to the public, the

Department did not prove that Dr. Falowski actually treated a

patient with acupuncture, and, although treatment by acupuncture

of an uncertified chiropractic physician could pose a danger to

the public, it is undisputed that Dr. Falowski had satisfied all

of the requirements for certification to treat patients with

acupuncture; he simply failed to send in the Request for

Registration Form and the $100.00 fee. Accordingly, while

Dr. Falowski was practicing beyond the scope permitted by law,

he was not, on the record in this case, incompetent to treat by

acupuncture.

23. Even though Dr. Falowski has been the subject of

previous disciplinary actions, none of these disciplinary

actions has involved a violation of Section 460.413(1)(t),

Florida Statutes, and the last Administrative Complaint was

filed against Dr. Falowski in 1994.

24. Finally, Dr. Falowski has also been charged in DOAH

Case No. 07-3514PL with having engaged in false, deceptive, or

misleading advertising, in violation of Sections 460.413(1)(d)

and 460.413(1)(ff), Florida Statutes. In a Recommended Order

entered this date, the undersigned has recommended that the

Board enter a final order dismissing the charges against

Dr. Falowski in DOAH Case No. 07-3514PL.

25. Given the penalty range set forth in Florida

Administrative Code Rule 64B2-16.003(1)(bb) for a violation of

Section 460.413(1)(t), Florida Statutes, and in consideration of

the mitigating and aggravating factors set forth in

Administrative Code Rule 64B2-16.003(2), the penalty that should

be imposed is an administrative fine in the amount of $5,000.00

and probation for a period of two years.

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

1. Finding that Francis J. Falowski, D.C., offered to

practice acupuncture when he was not certified to do so, in

violation of Section 460.413(1)(t);

2. Imposing an administrative fine against Dr. Falowski in

the amount of $5,000.00; and

3. Placing Dr. Falowski on probation for a period of two

years, under such terms and conditions as the Board deems

appropriate.

DONE AND ENTERED this 20th day of March, 2008, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of March, 2008.

ENDNOTES

1 / All references herein to the Florida Statutes are to the 2005

edition unless indicated otherwise.

2 / In an order entered March 17, 2008, DOAH Case No. 07-3513PL

and DOAH Case No. 07-3514PL were severed and separate

Recommended Orders have been issued in the cases.

3 / It is noted that the Department attached to its second motion

for official recognition copies of statutes and rules not

identified in the motion and failed to attach a copy of

Section 460.406, Florida Statutes. Those statutes and rules

attached to the motion but not included in the request have not

been officially recognized. Section 460.406, Florida Statutes,

has, however, been officially recognized because it was included

in the request.

4 / This finding of fact is based on the testimony of Ann Broome,

an employee of the Board who is in charge of processing

applications and keeping licensure files for chiropractic

physicians. At the Department's request, official recognition

was taken of excerpts from Dr. Falowski's licensure file, which

counsel for the Department indicated were those documents

relevant to Dr. Falowski's lack of acupuncture certification.

Dr. Falowski did not present any evidence to establish that he

had sent the registration fee and the Request for Registration

Form to the Department. The testimony of Ms. Broome regarding

the lack of certification is, therefore, accepted.

5 / This finding of fact is based on a stipulation contained in

the Respondent's First Amended Pre Trial Stipulation:

"Rairforest [sic] Rehabilitation directed or permitted someone

in the office to put up a sign and the sign was an advertisement

of Dr. Falowski's services. Dr. Falowski intended the sign to

encourage members of the public to seek acupuncture services in

his office and to receive said treatment from him."

COPIES FURNISHED:

Cecelia D. Jefferson, Esquire

Tobey Schultz, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

Francis J. Falowski, D.C.

4700 North State Road 7

Building A, Suite 102

Lauderdale Lakes, Florida 33319

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Dr. Ana M. Viamonte Ros, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399-1701

Joe Baker, Jr., Executive Director

Board of Chiropractic Medicine

Department of Health

4052 Bald Cypress Way, Bin CO7

Tallahassee, Florida 32399-1701

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 should be filed with the agency that

will issue the final order in this case.