Opinion
No. 74-464
Decided July 1, 1975. Rehearing denied July 22, 1975. Certiorari denied September 2, 1975.
State Board of Chiropractic Examiners suspended chiropractor's license for unprofessional conduct and unethical advertising, and he sought review.
Affirmed
1. PHYSICIANS AND SURGEONS — Chiropractor — License Suspension — Supported by Evidence — Denial of Rights — Arbitrary Action — Not Shown. In action to review suspension of chiropractor's license, the record demonstrates that the advertisements of the suspended chiropractor include a number of instances in which he promised cures and made numerous false or misleading statements, and other unchallenged findings of the Board of Chiropractic Examiners were to the effect that often detrimental rather than excellent results were obtained by patients treated by the suspended chiropractor, and that a marriage counseling service, and a hypnotism service of the chiropractor are not accredited by any recognized accrediting group; thus, not only are the board's conclusions supported by the findings, but also there is nothing in the record to indicate that the board denied the chiropractor any constitutional right or privilege, acted in excess of its statutory authority or jurisdiction, or acted improperly, arbitrarily, or capriciously in suspending his license.
Appeal from the District Court of the City and County of Denver, Honorable Robert E. McLean, Judge.
Ashen Fogel, George T. Ashen, for plaintiff-appellant.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Mary J. Mullarkey, Assistant Attorney General, William Tucker, Special Assistant Attorney General, for defendants-appellees.
Dr. Bernie appeals from a district court judgment affirming the action of the State Board of Chiropractic Examiners (Board) in suspending his license to practice chiropractic. We affirm the district court.
In January of 1974, after hearing on a number of complaints, the Board made detailed findings of fact. It concluded that Dr. Bernie was guilty of "unprofessional conduct" and "unethical advertising" as these are defined in § 12-33-117(2) and (3), C.R.S. 1973, because of advertisements placed in the Denver Post and the yellow pages of the metropolitan area telephone directory. It then ordered Dr. Bernie's license to practice chiropractic suspended for a period of 24 months, and 21 of those months to be held in abeyance for a probationary period of five years from the effective date of the decision. Dr. Bernie does not argue that the findings of fact are unsupported by the evidence, but he contends that the conclusions reached by the Board are erroneous. We do not agree.
Section 12-33-117(1), C.R.S. 1973, specifies that the Board may suspend a license to practice chiropractic for, among other causes, unprofessional conduct or unethical advertising. "Unprofessional conduct" includes unethical advertising and also "conducting any enterprise other than the regular practice of chiropractic whereby the holder's license is used as a means of attracting patients or attaining prestige or patronage in the conduct of such enterprise." Section 12-33-117(2)(d) and (j), C.R.S. 1973. "Unethical advertising" includes, but is not limited to, advertising through newspapers and directories, which "contains false or misleading statements," or "holds out or promises cures or guarantees results," or "publicizes a particular chiropractor, as by setting out his picture, name, address, telephone number, educational background, experience, qualifications, treatment techniques, or membership in any clinic or association." Section 12-33-117(3)(a), C.R.S. 1973. The findings support the conclusions of unprofessional conduct and unethical advertising as those terms are defined in the statute.
Examples of "unprofessional conduct" are to be found in the yellow pages in findings 4 and 5 and in each of the Denver Post advertisements set out in finding 6. The Board found that the phone number contained therein is that of Dr. Bernie, that when called the number is answered as "Bernie Clinic," that the telephones for that number are on the same premises and the addresses listed are those in which Dr. Bernie has his chiropractic practice. The enterprises advertised therein, hypnosis, psychotherapy, and family and marriage counseling, are not part of the regular practice of chiropractic. See § 12-33-102(1), C.R.S. 1973, His use of the term "Dr." stems from his holding of a license to practice chiropractic. See § 12-33-118, C.R.S. 1973. The Board then found that Dr. Bernie uses these advertisements and these services to attract patients to his chiropractic offices and that his patients generally come in response to them. [1] Throughout Dr. Bernie's advertisements are instances where he held out or promised cures and made numerous false or misleading statements, which are unethical advertising under § 12-33-117(3)(a), C.R.S. 1973. Finding 10 describes the procedures at Dr. Bernie's office and reveals that often detrimental rather than excellent results were obtained by the patients. Also, finding 7 states that "Dr. Bernie's Marriage Counseling Service and Hypnotism Service are not accredited by any recognized accrediting group and the only manner in which they have been accredited is by the 'Human Factors Institute, Inc.' which is a non-profit corporation set up by Dr. Bernie of which he is the President and controlling party."
"4. Dr. Bernie has an advertisement in the yellow pages of the classified section of the Denver metropolitan area telephone directory (October 1973) at page 613 under Hypnotists as follows:
ACCREDITED-APPLIED MEDI-SELF HYPNOSIS SYSTEMS OF H F I EXCELLENT SELF-HYPNOSIS RESULTS A LOGICAL FAST EASY SAFE METHOD Completely Confidential * Day Evening
*Smoking *Tension *Concentration *Self *Reducing *Will Power Confidence *Memory *Pain *Stuttering *Sales *Speaking *Inferiorities *Sex *Study *Stage Fright *Fear *Problems *Alcoholism *Insomnia *Sleep Learning
All Problems — Personal — Family — Marriage a 24-Hour Doctors Information Service North South Offices 2551 York and 1890 E. Evans . . . . . . . . . . . . . . . 778-8011"
"5. Dr. Bernie has an advertisement in the yellow pages of the classified section of the Denver metropolitan area telephone directory (October 1973) at page 750 under Marriage Family Counselors which appears as follows:
ACCREDITED ALL FAITH MARRIAGE FAMILY COUNSELORS Latest-Logical-Fast-Safe Method South-Denver University Area 1890 E. Evans Ave. . . . . . . . . . . . . . 778-8011"
"6. Dr. Bernie placed advertisements in the classified section of the Denver Post subsequent to July of 1973 as follows:
DR. APPLIED HYPNOSIS for quick phoned facts, call 778-8011 ON PSYCHO-THERAPY H.F.I. DR. EXPLAINS ALL NOW — STOP SMOKING, WEIGHT, DRINKING FAST. Excel. results for confidence, will power, self-control, school, sales, sex and success through BIOFEEDBACK CLINIC. FREE BOOK. Call 778-8011
DR. APPLIED HYPNOSIS FOR QUICK PHONED FACTS, CALL 778-8011 ON PSYCHO-THERAPY H.F.I. DR. EXPLAINS ALL NOW — STOP SMOKING, WEIGHT, DRINKING FAST. Excel. results for confidence, will power, self-control, school, sales, sex and success through BIOFEEDBACK CLINIC. FREE BOOK. Call 778-8011
APPLIED SELF HYPNOSIS STOP SMOKING FAST — WEIGHT TOO, drinking and drugs, fear, worries, anxieties. Call 778-8011, H.F.I. Dr. explains all now. Excel. results for confidence, will power, self-control, sex, sales success. BIOFEED-BACK CLINIC, FREE BOOK.
DR. APPLIED HYPNOSIS STOP SMOKING FAST — WEIGHT TOO, drinking and drugs, fear, worries, and anxieties. Call 778-8011 H.F.I. Dr. Explains all now. Excel. results for confidence, will power, self-control, sex, sales and success BIOFEED-BACK CLINIC. FREE BOOK."
Thus, not only are the Board's conclusions supported by the findings, but also there is nothing in the record to indicate that the Board denied Dr. Bernie any constitutional right or privilege, acted in excess of its statutory authority or jurisdiction, or acted improperly, arbitrarily, or capriciously. See 12-33-121(2), C.R.S. 1973.
The judgment is affirmed. Inasmuch as the suspension was stayed pending the outcome of the review by the district court and this court, the cause is remanded to the district court with directions to remand the cause to the Board to update the effective date for commencement of the suspension to not earlier than 30 nor later than 60 days following the date of its remand, and for further proceedings in conformity with this opinion.
JUDGE RULAND and JUDGE STERNBERG concur.