Andy Barlow, D.C. v. Mississippi State Board of Chiropractic Examiners
233 So. 3d 223
| Miss. | 2017Background
- Dr. Andy Barlow, a licensed chiropractor, advertised using the titles DACNB, FACFN, and “Chiropractic‑Neurologist.” Two patients complained and the Mississippi State Board of Chiropractic Examiners charged him with unlawful advertising under Miss. Code § 73‑6‑25(1)(a) and § 73‑6‑19(1)(b).
- At the administrative hearing, witnesses (including one complaining patient and Board investigators) testified the ads were confusing and could lead patients to think Barlow was a medical neurologist; Barlow testified to his additional certifications and training.
- The Board found clear and convincing evidence only as to the advertising violation, fined Barlow $500, and separately ordered him to pay $3,216 for investigation/prosecution costs.
- Barlow appealed to Hinds County Circuit Court, which affirmed the Board; he then appealed to the Mississippi Supreme Court raising four principal issues (standard of review/de novo appeal, alleged implied repeal by a later statute, First Amendment challenge, and the Board’s authority to assess investigative costs).
- The Mississippi Supreme Court affirmed the Board on the substantive advertising and First Amendment issues, rejected Barlow’s implied‑repeal argument and his de novo‑appeal claim, but reversed and rendered judgment for Barlow on the $3,216 investigative‑costs assessment because the Board lacked statutory authority to directly impose those costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review / "de novo" appeal to circuit court | Barlow: statute grants a de novo appeal entitling the circuit court to act as factfinder on the administrative record | Board: de novo language does not eliminate judicial deference or the statutory scope of review | Court: "de novo" in context does not require court to be factfinder; review limited to whether agency decision was supported by substantial evidence, arbitrary/capricious, beyond authority, or violated rights — issue denied |
| Whether § 41‑121 et seq. implicitly amended/repealed § 73‑6‑25(1)(a) | Barlow: Patient’s Right to Informed Health Care Choices Act compels disclosure of certifications (e.g., DACNB), so it implicitly amends/repeals the chiropractic title restriction | Board: § 41‑121 does not repeal; it targets license type identification, not non‑license certifications | Court: § 41‑121 requires identification of licensure category only and is consistent with § 73‑6‑25; no implicit repeal or amendment — issue denied |
| First Amendment challenge to § 73‑6‑25 | Barlow: statute unconstitutionally restricts commercial speech by barring truthful designations and certifications | Board: advertising was misleading; States may prohibit misleading professional advertising | Court: testimony showed the ads were actually misleading to at least one patient; therefore discipline did not violate the First Amendment in this case — issue denied |
| Authority to assess investigatory/prosecution costs ($3,216) | Barlow: Board lacks statutory authority to directly charge investigatory costs to disciplined licensee; fee unsupported by findings | Board: it may consider costs in setting penalties and alternatively could have assessed multiple statutory penalties to reach that sum; offered to correct order language | Court: statute authorizes monetary penalties but not direct assessment of investigatory costs for chiropractic board; Board separated the $3,216 as a costs charge (not part of the penalty) and made no findings to justify treating it as penalty — reversed and rendered in favor of Barlow on costs |
Key Cases Cited
- Equifax, Inc. v. Mississippi Dep’t of Revenue, 125 So.3d 36 (Miss. 2013) (explains limited nature of "de novo" review of administrative agency decisions)
- In re R.M.J., 455 U.S. 191 (1982) (commercial/professional advertising receives First Amendment protection, but States may prohibit misleading advertising)
- Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557 (1980) (framework for evaluating commercial speech restrictions)
- Peel v. Attorney Registration & Disciplinary Comm’n of Illinois, 496 U.S. 91 (1990) (invalidating absolute bans on truthful, non‑misleading professional certification statements)
- American Academy of Pain Management v. Joseph, 353 F.3d 1099 (9th Cir. 2004) (upholding statutory scheme that restricts use of "board certified" absent qualifying boards; discussing permissible regulation of certification claims)