Michael T. Wilson, D.C., Appellant-Appellant, v. Ohio State Chiropractic Board, Appellee-Appellee.
No. 18AP-739 (C.P.C. No. 17CV-2014)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Rendered on August 13, 2019
[Cite as Wilson v. Ohio State Chiropractic Bd., 2019-Ohio-3243.]
(ACCELERATED CALENDAR)
On brief: Gibbs Law Firm, P.A. and David C. Gibbs, III; Kimberly Y. Smith Rivera, for appellant. Argued: David C. Gibbs, III.
On brief: [Dave Yost], Attorney General, and Henry G. Appel, for appellee. Argued: Henry G. Appel.
APPEAL from the Franklin County Court of Common Pleas
KLATT, P.J.
{¶ 1} Appellant-appellant, Michael T. Wilson, D.C., appeals from the judgment of the Franklin County Court of Common Pleas which affirmed the adjudication order of appellee-appellee, Ohio State Chiropractic Board (“the board“), suspending his license for a period of 180 days, with 90 days stayed, and imposing a civil fine of $2,000.1 For the reasons that follow, we affirm.
{¶ 2} Appellant became a licensed chiropractic physician in 1994. In April 1998, the board charged appellant with violations of
{¶ 3} On November 4, 2015, appellant placed an advertisement in the Columbus Dispatch identifying himself as “Dr. M. Todd Wilson, D.NMSc, DC.” On March 7 and 8, 2016, he ran television advertisements on Fox 28, WTTE in Columbus, Ohio, identifying himself as “Dr. Todd Wilson,” and “Dr. M. Todd Wilson, D.NMSc, DC,” respectively. It is undisputed that appellant intended the March 7 advertisement to include the same credentials as the March 8 advertisement, and that the failure to include them was the television station‘s error. In both the newspaper and on television, appellant advertised that he diagnosed and treated, inter alia, hormone imbalances, thyroid disorders, and diabetes.
{¶ 4} On August 4, 2016, appellee issued to appellant an “Amended Notice of Opportunity For Hearing” letter (“notice letter“), advising him that it would consider whether to take disciplinary action against him for alleged violations of
{¶ 5} Appellant timely requested a hearing, which was held on October 7, 2016. Thereafter, the hearing examiner issued a report and recommendation which included findings of fact and conclusions of law. The board subsequently adopted the hearing examiner‘s report and recommendation in its entirety and issued an adjudication order concluding, as a matter of law, that appellant engaged in the conduct set forth in Counts 1-6 of the notice letter. The board included in its adjudication order the following statement: “The general public does not understand what the acronym ‘D.C.’ means and that is why the rule was implemented requiring that chiropractors use ‘chiropractic‘[,] ‘chiropractor‘[,] ‘doctor of chiropractic‘[,] or ‘chiropractic physician’ in all advertisements and solicitations. The failure to do so is misleading to the public.” Accordingly, pursuant to the authority vested in the board by
{¶ 6} Pursuant to
[I]. THE LOWER COURT ERRED IN DETERMINING THAT THE BOARD‘S RESTRICTION ON DR. WILSON‘S COMMERCIAL USE OF THE D.NMSc CREDENTIAL DID NOT VIOLATE HIS FIRST AMENDMENT RIGHTS.
[II]. THE LOWER COURT ERRED IN DETERMINING THAT THE BOARD‘S DISCIPLINE OF DR. WILSON FOR HIS COMMERCIAL USE OF THE D.NMSc CREDENTIAL DID NOT VIOLATE HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS.
[III]. THE LOWER COURT ERRED IN DETERMINING THAT DR. WILSON‘S COMMERCIAL USE OF “DC” FAILED TO IDENTIFY HIM AS A CHIROPRACTOR.
[IV]. THE LOWER COURT ERRED IN DETERMINING THAT THE BOARD‘S FORCED COMMERCIAL DISCLOSURE DID
NOT VIOLATE DR. WILSON‘S FIRST AMENDMENT RIGHTS.
{¶ 7} In an administrative appeal under
{¶ 8} At the October 7, 2016 hearing, the board‘s Executive Director Kelly A. Caudill, testified on behalf of appellee; appellant testified on his own behalf. Caudill averred that in 2007, the board determined that the designation “D.C.” was insufficient to identify a chiropractic physician in an advertisement; accordingly, the board amended its administrative rules to require chiropractors to identify themselves in advertisements using one of the following exact terms: chiropractic, chiropractor, doctor of chiropractic, or chiropractic physician.
{¶ 9} Caudill opined that under the amended rule, appellant‘s use of the designation D.C. in his print and television advertisements did not comport with
{¶ 10} Regarding the IAMNP and the designation D.NMSc, Caudill testified that the board rules permit chiropractors to acquire additional certifications and form non-profit organizations. She averred that neither the IAMNP itself, nor appellant‘s status as executive director of the IANMP, violated any board rules and that the board had received no complaints concerning the IAMNP. When questioned about the charges in Counts 5 and 6 pertaining to appellant‘s use of the unrecognized credential D.NMSc, Caudill stated that “to the Board‘s knowledge D.NMSc is not a recognized credential.” Id. at 90. She acknowledged that the board “did not cite a rule that said it had to be a recognized credential.” Id. When asked if any such rule existed, Caudill replied, “I would say, no, if we didn‘t cite it.” Id. Caudill further testified that the board does not maintain a list of recognized credentialing organizations for the chiropractic profession.
{¶ 11} During his testimony, appellant acknowledged that since 2007, board rules require that a chiropractic advertisement include more than just the D.C. designation; however, he asserted that the advertisements at issue were for nutritional, functional
{¶ 12} Regarding the D.NMSc credential, appellant acknowledged that it appears in his print and television advertisements as well as on his website. Appellant testified that he was awarded a doctorate in NeuroMetabolic Science by the IANMP, a non-profit organization incorporated in Florida in 2015 by appellant and two of his colleagues. Appellant is the executive director of the IANMP and the address listed on the incorporation documents is that of appellant‘s Reynoldsburg, Ohio practice. Appellant acknowledged that the IANMP is not licensed by the Ohio Board of Career Colleges, the Ohio Department of Education, the Florida Commission for Independent Education, or the Florida Department of Education. Appellant averred that the D.NMSc is not an academic degree; rather, it is a certification. Appellant identified state‘s exhibit 13, a printout of a page from appellant‘s website, which indicates that he “has been awarded a Doctor of NeuroMetabolic Sciences from the IANMP.” Appellant also identified respondent‘s exhibit A, which sets forth the following eligibility requirements for D.NMSc certification: “To qualify for the D.NMSc credential you must have an MD, DO, or DC degree and demonstrate 300 hours training in the areas of functional medicine, functional neurology, myoneural medicine (trigenics), or neurofeedback. Documentation will be reviewed by our board to ensure it meets our requirements.” Appellant further stated that the IANMP board requires that candidates for certification provide evidence of eligibility. He acknowledged that he and his colleagues did not pass any type of examination before being awarded the IANMP certification; rather, the three awarded the certification to each other “[b]ased on education that was checked.” (Tr. at 43-44.) According to appellant, he created the IANMP because he “wanted to more clearly define what we do. * * * I don‘t practice what I believe to be chiropractics anymore. I do functional medicine and functional neurology, and there‘s no certification out there specifically that defines it, so that it‘s not confusing.” Id. at 123.
{¶ 13} Preliminarily, we note that the common pleas court rejected appellant‘s contention that the advertisements at issue were for nutritional services, not chiropractic services, and therefore were not subject to the board‘s jurisdiction. The court found that the board‘s interpretation of the practice of chiropractic medicine and its inclusion of nutritional services was reasonable. The court concluded that the board had jurisdiction
{¶ 14} In his first assignment of error, appellant contends the common pleas court erred in determining that the board‘s restriction on his commercial use of the private credential D.NMSc did not violate his right to free speech under the First Amendment to the U.S. Constitution. We disagree.
{¶ 15} As noted above, the board alleged in Counts 5 and 6 of the notice letter that appellant‘s use of the D.NMSc credential was misleading and violated
{¶ 16} The United States Supreme Court has distinguished between noncommercial or “pure” speech and commercial speech. “Pure” speech is that in which society has an interest wholly apart from the economic interests of the speaker or its audience. Abrahamson v. Gonzalez, 949 F.2d 1567, 1574 (11th Cir.1992). In contrast, commercial speech consists of “expression related solely to the economic interests of the speaker and its audience.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm., 447 U.S. 557, 561 (1980) (”Cent. Hudson“), citing Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748, 762 (1976). Commercial speech is afforded less constitutional protection than other constitutionally guaranteed expression. Id. at 563. “The protection available for particular commercial expression turns on the nature both of the expression
{¶ 17} In Cent. Hudson, the court promulgated a four-part test to determine whether a restriction on commercial speech is constitutionally valid: (1) the speech must concern lawful activity and not be misleading; (2) the government must have a substantial interest in restricting the speech; (3) the regulation must directly advance the asserted governmental interest; and (4) the regulation must be narrowly tailored3 to serve the governmental purpose. Id. at 566. Under this analysis, a regulation that only restricts unprotected commercial speech can be ruled constitutional without further inquiry. However, a regulation of protected commercial speech can be ruled constitutional only if the requirements of each of the last three prongs are met. In other words, the last three prongs of the Cent. Hudson analysis comprise a conjunctive test, and a regulation of protected commercial speech can be ruled unconstitutional for failing any one of these three requirements. ” ‘[T]he party seeking to uphold the restriction on commercial speech carries the burden of justifying it.’ ” Edenfield v. Fane, 507 U.S. 761, 770 (1993), quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71, fn. 20 (1983).
{¶ 18} As the first prong of the Cent. Hudson test states, the First Amendment provides no protection for commercial speech that is misleading. Given that the primary purpose of commercial speech is to provide information to the public by means of advertising, such speech can be suppressed when the stated information is more likely to deceive the public than to inform it. Cent. Hudson at 563.
{¶ 19} Thus, the state is empowered to ban commercial speech that is false, deceptive, or misleading. See Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U.S. 136, 142 (1994). There are two types of deceptive or misleading commercial speech: speech that “is inherently likely to deceive” and speech that, while initially unobjectionable, is supported by a record that indicates that the particular form or method of speech “has in fact been deceptive.” In re R.M.J., 455 U.S. 191, 203 (1982). When commercial speech is inherently likely to deceive, the state can take
{¶ 20} A term is inherently misleading if it is ” ‘likely to deceive the public based upon the general public‘s use of the term.’ ” Appeal of Sutfin, 141 N.H. 732, 693 A.2d 73, 75 (1997), quoting Snell v. Engineered Sys. & Designs, Inc., 669 A.2d 13, 19 (Del.1995). “In general, a statement will only be inherently misleading if the statement, standing alone, will almost unavoidably lead to fraud, undue influence, intimidation or other duplicity.” Id.
{¶ 21} Upon review of the record, we conclude that appellant‘s use of the designation D.NMSc in his chiropractic advertisements is inherently misleading and is thus afforded no protection under the First Amendment. Appellant acknowledged that D.NMSc connotes that he is a Doctor of NeuroMetabolic Science. That is simply not true. There is no such credential. Appellant admitted that the D.NMSc is not an academic degree; rather, it is a credential. However, the credential exists only because appellant and his colleagues created it. Moreover, the credential was bestowed upon appellant by the IANMP— an organization he and his colleagues formed—and one that is unlicensed by any Florida or Ohio entity governing academic accreditation of doctoral programs.
{¶ 22} Appellant admitted that he and his colleagues created the D.NMSc credential for the purpose of defining their “functional medicine and functional neurology” services and distinguishing them from traditional chiropractic services. As noted above, appellant testified that “I don‘t practice what I believe to be chiropractics anymore. I do functional medicine and functional neurology, and there‘s no certification out there specifically that defines it.” (Emphasis added.) (Tr. at 123.)
{¶ 23} In our view, it is clear that the general public likely would be deceived by appellant‘s use of the designation D.NMSc in his advertisements. A member of the public upon hearing or reading that appellant holds a doctorate would assume that appellant has completed a standardized course of study to obtain the degree when in fact appellant created both the credential and the organization that bestowed the credential. Accordingly, because appellant‘s use of the D.NMSc credential in his advertisements for chiropractic
{¶ 24} Appellant‘s first assignment of error is overruled.
{¶ 25} In his second assignment of error, appellant contends the common pleas court erred in determining that the board‘s discipline for his use of the D.NMSc credential did not violate his due process rights to reasonable notice and a fair hearing under the Fourteenth Amendment to the U.S. Constitution.
{¶ 26} Appellant argues that while the board and the common pleas court concluded that his use of the D.NMSc certification is misleading because it is not recognized by the board, Caudill‘s testimony established that no administrative rule specifically prevents a chiropractor from advertising a certification not recognized by the board. Appellant asserts, therefore, that his “opportunity to be heard” was not “fundamentally fair” because “he had no rule warning him that the Board required its own recognition of a credential before he could use it, and even if he had known, he had no way to obtain that recognition.” (Appellant‘s brief at 22.)
{¶ 27} ” ‘A fundamental requirement of due process, that is, notice and an opportunity to be heard, must be afforded an individual whose professional license is subject to [discipline] in an administrative hearing.’ ” Griffin v. State Med. Bd. of Ohio, 10th Dist. No. 11AP-174, 2011-Ohio-6089, ¶ 22, quoting Johnson v. State Med. Bd. of Ohio, 10th Dist. No. 98AP-1324 (Sept. 28, 1999).
{¶ 28} Thus, the issue raised by this assignment of error resolves to whether appellant had a reasonable opportunity to understand the board‘s charges relative to the D.NMSC credential and whether he had a reasonable opportunity to respond to these charges at the hearing before the board.
{¶ 29} As noted above, the notice letter pertaining to the D.NMSc credential specifically references
{¶ 30} Contrary to appellant‘s assertion, the notice letter provided appellant sufficient notice that he violated
{¶ 31} The second assignment of error is overruled.
{¶ 32} In his third assignment of error, appellant argues that the common pleas court erred in determining that his use of the designation D.C. did not clearly identify him as a chiropractor in violation of
{¶ 33}
{¶ 34} Appellant‘s argument does not account for Caudill‘s testimony, which established that the board determined in 2007 that the D.C. designation was insufficient to identify a chiropractic physician in advertisements and accordingly amended its administrative rules to require chiropractors to identify themselves using one of the terms set forth in
{¶ 35} Moreover, courts interpret administrative rules in the same manner as statutes. McFee v. Nursing Care Mgt. of Am., Inc., 126 Ohio St.3d 183, 2010-Ohio-2744, ¶ 27, quoting State ex rel. Brilliant Elec. Sign Co. v. Indus. Comm., 57 Ohio St.2d 51, 54 (1979) (stating that the ” ‘ordinary meaning rule’ of statutory construction applies equally to administrative rules“). The primary goal in construing statutes and administrative rules is to ascertain and give effect to the intent of the rule-making authority. State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, ¶ 11.
{¶ 36} Related provisions of statutes and administrative rules must be read in pari materia. State ex rel. Cordray v. Midway Motor Sales, 122 Ohio St.3d 234, 2009-Ohio-2610, ¶ 25. In so doing, “court[s] must give a reasonable construction that provides the proper effect to each.” Id., citing Maxfield v. Brooks, 110 Ohio St. 560 (1924). “All provisions * * * bearing upon the same subject matter should be construed harmoniously unless they are irreconcilable.” Id., citing Couts v. Rose, 152 Ohio St. 458, 461 (1950).
{¶ 37} We believe that a plain, common sense reading of
{¶ 38} Based upon the foregoing, we conclude that the common pleas court did not abuse its discretion in determining that there was reliable, probative, and substantial evidence to support the board‘s finding that appellant‘s use of the designation D.C. did not clearly identify him as a chiropractor in his print and television advertisements in violation of
{¶ 39} The third assignment of error is overruled.
{¶ 40} In his fourth assignment of error, appellant contends the common pleas court erred in determining that the board‘s “forced commercial disclosure” did not violate his
{¶ 41} In Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626 (1985), the United States Supreme Court recognized that there are “material differences between disclosure requirements and outright prohibitions on speech.” Id. at 650. Noting that in some instances, the “compulsion to speak may be as violative of the First Amendment as prohibitions on speech,” the court nonetheless found that a statute that required an attorney to “include in his advertising purely factual and uncontroversial information about the terms under which his services will be available” did not constitute unconstitutional compulsion by the state. Id. at 650-51. In summarizing its commercial speech decisions to that point, the Zauderer court noted that “because disclosure requirements trench much more narrowly on an advertiser‘s interests than do flat prohibitions on speech, ‘warning[s] or disclaimer[s] might be appropriately required * * * in order to dissipate the possibility of consumer confusion or deception.” Id., quoting In re R.M.J., 455 U.S. at 201 (1982). The court further averred that “[w]e do not suggest that disclosure requirements do not implicate the advertiser‘s First Amendment rights at all. We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech.” Id. at 651. The Court ultimately held that “an advertiser‘s rights are adequately protected as long as disclosure requirements are reasonably related to the State‘s interest in preventing deception of consumers.” Id.
{¶ 42} As we noted in our discussion of the third assignment of error, Caudill testified that the board implemented
{¶ 43} The fourth assignment of error is overruled.
{¶ 44} Having overruled appellant‘s four assignments error, we hereby affirm the judgment of Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and DORRAIN, JJ., concur.
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