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Wilson v. Ohio State Chiropractic Board

Court of Appeals of Ohio, Tenth District

August 13, 2019

Michael T. Wilson, D.C., Appellant-Appellant,
v.
Ohio State Chiropractic Board, Appellee-Appellee.

          APPEAL from the Franklin County Court of Common Pleas No. 17CV-2014

         On brief:

          Gibbs Law Firm, PA. and David C. Gibbs, III; Kimberly Y Smith Rivera, for appellant.

          [Dave Yost], Attorney General, and Henry G. Appel, for appellee.

         Argued:

          David C. Gibbs, III.

          Henry G. Appel.

          DECISION

          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 R.C. Chapter 4734 involving false advertising, improper solicitation, and fraud. On June 30, 1998, appellant entered into a Consent Agreement with the board pursuant to which his license was permanently revoked. The revocation was stayed and, after a one-year suspension and a period of probation, appellant's license was reinstated in 2005.

         {¶ 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 R.C. 4734.31(C)(7), (C)(31) and (C)(32) and Ohio Adm.Code 4734-9-02 and 4734-9-08. Specifically, the notice letter stated that the advertisements (both print and television) "failed to clearly reveal that you are a chiropractic physician" in violation of R.C. 4734.31(C)(7) and Ohio Adm.Code 4734-9-02(F) (Counts 1 and 2); "failed to contain one of these exact terms: chiropractic, chiropractor, doctor of chiropractic or chiropractic physician" in violation of R.C. 4734.31(C)(7) and Ohio Adm.Code 4734-9-02(G) (Counts 3 and 4); and "included the credentials 'D.NMSc' after your name" which was "misleading in that the credential is not a recognized credential by the chiropractic profession. To wit, according to your website, drtoddwilson.com, 'D.NMSc' means Doctor of NeuroMetabolic Sciences, a credential awarded by the International Association of NeuroMetabolic Professionals (IANMP). According to the IANMP website, www.ianmp.com, the IANMP is a non-profit organization whose mission is to promote the practice of both functional medicine and functional neurology. The IANMP is headquartered at your practice location and phone number and you are the Executive Director of IANMP." The board alleged that such conduct, if proven, constituted a violation of R.C. 4731.31(C)(7), (C)(31), and (C)(32) and Ohio Adm.Code 4734-9-02(C) and 4734-9-08(C) (Counts 5 and 6).[2]

         {¶ 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 R.C. 4734.31, the board ordered that appellant's license be suspended for 180 days, with 90 days stayed, and that he pay a $2, 000 civil fine.

         {¶ 6} Pursuant to R.C. Chapter 119, appellant timely appealed to the court of common pleas, which affirmed the board's order. Thereafter, appellant timely appealed to this court, advancing the following four assignments of error for our review:

[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 R.C. 119.12, the common pleas court reviews the entire record to determine whether the agency's order is supported by reliable, probative, and substantial evidence and is in accordance with law. Pons v. Ohio State Med. Bd.,66 Ohio St.3d 619, 621 (1993). The standard of review for a court of appeals in an administrative appeal is more limited; this court must determine whether the common pleas court abused its discretion. Id. An abuse of discretion occurs when a decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,5 Ohio St.3d 217, 219 (1983). An unreasonable decision is one unsupported by a sound reasoning process. AAAA Ents., Inc. v. River Place Community Urban Redev. Corp.,50 Ohio St.3d 157, 161 (1990). An arbitrary decision is one that lacks adequate determining principle and is not governed by any fixed rules or standard. Porter, Wright, Morris & Arthur, LLP v. Frutta del Mondo, Ltd., 10th Dist. No. 08AP-69, 2008-Ohio-3567, ΒΆ 11. An unconscionable decision is one that affronts the ...


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