07-003514PL Department Of Health, Board Of Chiropractic Medicine vs. Francis J. Falowski, D.C. Status: Closed Recommended Order on Thursday, March 20, 2008.

Summary: Petitioner did not disseminate false advertising because the documents at issue were disseminated to another chiropractor and not to the "public." Recommend that both counts of Amended Administrative Complaint be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

CHIROPRACTIC MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 07-3514PL

)

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 violations alleged in

the Amended Administrative Complaint issued September 29, 2006,

and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On September 29, 2006, the Department of Health

("Department") issued a two-count Amended Administrative

Complaint against Frank J. Falowski, D.C. In Count One of the

Amended Administrative Complaint, the Department charged that

Dr. Falowski had violated Section 460.413(1)(d), Florida

Statutes (2003), 1 which subjects a chiropractic physician to

discipline for false, deceptive, or misleading advertising, by

transmitting to another chiropractor's office a flyer stating

that he was "able to meet the injection needs of other

chiropractic physicians" including prolotherapy, chelation

therapy, and oxidative therapy. In Count Two of the Amended

Administrative Complaint, the Department charged that

Dr. Falowski violated Section 460.413(1)(ff), Florida Statutes

(2003), which subjects a chiropractic physician to discipline

for violating any provision of Chapters 456 or 460 or any rules

adopted pursuant to these chapters. The Department charged

specifically that Dr. Falowski had violated Florida

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

which, respectively, prohibit chiropractic physicians from

advertising that contains a misrepresentation of fact, from

advertising that gives the impression that the chiropractic

physician possesses skills or attributes superior to other

chiropractic physicians, and from advertising that contains

representations or claims that the chiropractic physician fails

to perform.

On October 2, 2006, the Department issued a one-count

Administrative Complaint against Dr. Falowski, which was

forwarded to the Division of Administrative Hearings for

assignment of an administrative law judge and assigned DOAH Case

No. 07-3513PL. 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.

At the hearing, the Department presented the testimony of

Ronald J. Hoffman, D.C., and Petitioner's Exhibits 4, 5, and 7

were offered and received into evidence. 2 Petitioner's

Exhibits 3 and 6, for identification, were offered into evidence

in lieu of live testimony and consisted of the transcripts of

the deposition of Alicia Campo. Petitioner's Exhibits 1 and 2,

for identification, were attached as exhibits to Ms. Campos's

deposition and were identified by Ms. Campos in her deposition

testimony. Dr. Falowski objected to the admission of these four

exhibits on the grounds that Ms. Campos had no personal

knowledge of any of the material issues in this case and that

her testimony was, therefore, irrelevant. Dr. Falowski also

objected to the admission of Petitioner's Exhibits 1 and 2

because Ms. Campos was the only person who could identify and

authenticate the documents.

The undersigned requested that Dr. Falowski specify, in

writing, those portions of Ms. Campos's deposition to which he

objected and state the legal basis for the objection.

Dr. Falowski duly filed his Respondent's Submission of Pertinent

Parts of the Campo Deposition Per Judge's Order, and an order

was entered on January 18, 2008, overruling the objections to

portions of Ms. Campos's deposition and the objections to

Petitioner's Exhibits 1 and 2, and receiving into evidence

Petitioner's Exhibits 1 through 3 and 6.

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

for this Court to Take Judicial Notice, 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. 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, (Fla. 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 of the final orders entered 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 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, 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

Dr. Falowksi's 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 Withdrawal. The Department filed a

response in opposition to the motion, but 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, or non-prescription, 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 August 17, 2003, Dr. Falowski sent to the office of

John Campos, D.C., via facsimile transmittal, a document which

stated

FINALLY DOCTORS OF CHIROPRACTIC CAN INJECT

Refresh your skills with

________________________________________________________________

"THE ESSENCE OF INTERVENOUS [sic]

AND INJECTABLE THERAPIES"

Hands-on experience covering

TO INCLUDE

CHELATION THERAPY

OXIDATIVE THERAPY

PROLOTHERAPY

NEUROTHERAPY

FOR THE FIRST TIME NUTRIENTS FORMULARY FOR

CHIROPRACTIC

(Emphasis in original.) Dr. Falowski was among the five

instructors for the course listed on the document, and the cost,

date, time and location of the course was also included.

Finally, the document stated that the course was "Presented by

the FLORIDA ASSOCIATION OF CHIROPRACTIC MEDICINE ." (Emphasis in

original.)

5. On August 19, 2003, Dr. Falowski sent to the office of

John Campos, D.C., via facsimile transmittal, a document in

which he offered injections "available to the shoulders, elbows,

knees and spine" and offered to

perform all your injectable needs

including

Prolotherapy-neurotherapy-chelation therapy

and oxidative therapy

(Our office or yours )

Well [sic] see your patients , treat your

patients and return them to you to continue

treatment in your office

(Emphasis in original). Dr. Falowski included his name,

identified himself as a chiropractic physician, and gave his

location as Rainforest Rehabilitation, Inc., at 4201 North State

Road 7, Lauderdale Lakes, Florida 33319.

6. Chelation therapy involves the injection of a chemical

into the body. Prolotherapy involves the injection of a

glucose-based substance to the joints of the body.

7. The documents sent by Dr. Falowski to Dr. Campos were

sent from one chiropractic physician to another and were not

disseminated to the public. The first document sent to

Dr. Campos solicited his attendance at a seminar clearly

intended for chiropractic physicians. The second document

solicited Dr. Campos to utilize Dr. Falowski's services by

referring patients to him injections and for the various

therapies listed in the document.

CONCLUSIONS OF LAW

8. 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).

9. In its Amended Administrative Complaint, the Department

seeks to impose penalties against Dr. Falowski 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. Falowski committed the

violations 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).

10. The Department has charged that Dr. Falowski violated

Section 460.413(1)(d) and (ff), Florida Statutes, which provide:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(d) False, deceptive, or misleading

advertising.

* * *

(ff) Violating any provision of this

chapter or chapter 456, or any rules adopted

pursuant thereto.

11. In the Amended Administrative Complaint, the

Department has identified Florida Administrative Code Rule 64B2-

of Section 460.413(1)(ff), Florida Statutes. That Rule provides

in pertinent part:

(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:

(a) Contains a misrepresentation of facts;

or

* * *

(e) Conveys the impression that the

chiropractor or chiropractors, disseminating

the advertising or referred to therein,

possess qualifications, 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 attained Diplomate

status in a chiropractic specialty area

recognized by the Board of Chiropractic

Medicine.

* * *

(g) Contains any representations or claims,

as to which the chiropractor, referred to in

the advertising, fails to perform.

12. Florida Administrative Code Rule 64B2-15.001(3),

defines "advertisement" and "advertising" as follows:

(3) As used in the rules of this Board, the

terms "advertisement" and "advertising"

shall mean any statements, oral or written,

disseminated to or before the public or any

portion thereof, with the intent of

furthering the purpose, either directly or

indirectly, of selling professional

services, or offering to perform

professional 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.

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

has failed to prove by clear and convincing evidence that

Dr. Falowski engaged in the dissemination of false, misleading,

or deceptive advertising. Without a doubt, the document

soliciting patient referrals from Dr. Campos was misleading

because Dr. Falowksi was offering to sell or perform

professional services that do not come within the practice of

chiropractic medicine. Chiropractic physicians are prohibited

from prescribing or administering any legend drug, and

chiropractic physicians may not administer any form of

injectable substance. § 460.403(9)(c)1., Fla. Stat.

("[C]hiropractic physicians are expressly prohibited from

prescribing or administering to any person any legend drug [with

exceptions not germane to this proceeding]."); Fla. Admin. Code

R. 64B2-17.0025(4)("A legend drug is defined as a drug required

by federal or state law to be dispensed only by prescription.

For the purpose of this rule, any form of injectable substance

is beyond the scope of practice for chiropractors.").

14. The documents sent by Dr. Falowski to Dr. Campos were

not, however, "advertisements" or "advertising" as defined in

Florida Administrative Code Rule 64B2-15.001(3) because the

Department failed to prove that the documents were disseminated

or placed before the "public." It is clear from the context of

the definition of "advertisement" and "advertising" that "the

public or any portion thereof" refers to potential patients of a

chiropractic physician. Even though Dr. Falowski intended,

through these documents, to effectuate the sale or performance

of his professional services, the Department's evidence

established only that Dr. Falowski sent these documents to one

chiropractic physician, Dr. Campos, for the purpose of

soliciting patient referrals and his attendance at a seminar on

injectable therapies. The Department has failed, therefore, to

prove by clear and convincing evidence that Dr. Falowski

violated Section 460.413(1)(d) or (ff), Florida Statutes.

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 dismissing both counts of the Amended

Administrative Complaint against Francis J. Falowski, D.C.

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 2003

edition unless indicated otherwise.

2 / The transcript reflects that only six exhibits were received

into evidence in DOAH Case No. 07-3514PL. At the final hearing,

Petitioner's Exhibit 4 was received into evidence in DOAH Case

No. 07-3513PL; this exhibit consisted of a composite of

Dr. Falowksi's responses to requests for admissions, responses

to requests for production, and answers to interrogatories for

both DOAH Case No. 07-3513PL and DOAH Case No. 07-3514PL.

Because these two cases were consolidated for hearing only and

have been severed by an order entered March 17, 2008, two

Recommended Orders have been written. For purposes of clarity,

the undersigned separated the discovery responses for the two

cases and created Petitioner's Exhibit 7 for DOAH Case No. 07-

3514PL, which consists of Dr. Falowksi's responses to requests

for admissions, responses to requests for production, and

answers to interrogatories for DOAH Case No. 07-3514PL.

Petitioner's Exhibit 4 in DOAH Case No. 07-3513PL consists of

Dr. Falowksi's responses to requests for admissions, responses

to requests for production, and answers to interrogatories for

DOAH Case No. 07-3514PL.

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.

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 No. 102

Lauderdale Lakes, Florida 33319

Joe Baker, Jr., Executive Director

Board of Chiropractic Medicine

Department of Health

4052 Bald Cypress Way, Bin C-07

Tallahassee, Florida 32399-3265

Dr. Ana M. Viamonte Ros, Secretary

Department of Health

4052 Bald Cypress Way, Bin A-00

Tallahassee, Florida 32399-3265

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A-02

Tallahassee, Florida 32399-3265

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A-02

Tallahassee, Florida 32399-3265

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.