Ross v. Alabama Board of Chiropractic Examiners

Citations: 724 So. 2d 540; 1998 Ala. Civ. App. LEXIS 768; 1998 WL 802765Docket: 2971019

Court: Court of Civil Appeals of Alabama; November 19, 1998; Alabama; State Appellate Court

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Dr. Donald D. Ross and Dr. Donald D. Ross, Jr. were charged by the Alabama Board of Chiropractic Examiners with multiple violations related to an advertisement in the 1996 BellSouth telephone directory. The first violation involved the phrase “Consultation. No Charge,” which did not disclose potential additional charges for related services, violating Rule 190-X-5-.04(3)(q)1. The second violation pertained to the misleading nature of the advertisement, as it listed the Rosses alongside Dr. Chris Coffey as members of the American Chiropractic Association, the American Medical Association, and the American College of Sports Medicine, despite the Rosses being ineligible for AMA membership. This misrepresentation violated Ala.Code 1975, 34-24-166(b)(16) and Rule 190-X-5-.04(3)(b). Following an administrative hearing on July 12, 1997, the Board found the Rosses guilty of both violations. Their subsequent appeal to the circuit court of Montgomery County affirmed the Board’s decision. The Rosses' motion to alter or vacate the judgment was denied on May 5, 1998, prompting them to appeal again. Under the Administrative Procedure Act, agency decisions are presumed just and reasonable, and courts cannot substitute their judgment for that of the agency regarding factual evidence unless legally authorized. The Board has the authority to impose fines or revoke/suspend licenses for advertising violations as per Ala.Code 1975, 34-24-166(b)(16), and Rule 190-X-5.04(3) prohibits any advertising that is false, misleading, or deceptive.

Advertisements may be deemed false, deceptive, or misleading under Rule 190-X-5-.04(3)(q) if they offer gratuitous services or discounts without proper disclaimers regarding potential additional charges for related services. The Rosses challenged the constitutionality of this rule, citing a Supreme Court case (Bates v. State Bar of Arizona) that stated initial consultations are not inherently misleading. However, the court noted that this constitutional issue was not raised in the trial court and therefore could not be reviewed. The Rosses also argued that their advertisement, which stated “Consultation. No Charge,” did not violate the rule, claiming that providing advice did not constitute a professional service. Nonetheless, evidence presented indicated that providing medical advice required examinations and would incur charges. The Board's hearing officer found the advertisement misleading due to the lack of required disclaimers, a conclusion later affirmed by the circuit court. The trial court determined that there was substantial evidence to support the Board’s finding of a violation, rejecting the Rosses' claim that the circuit court relied on a new ground not presented during the Board proceedings. The court emphasized that the advertisement's characteristics directly led to its classification as misleading under the rule.

The trial court's possible use of the term "false" regarding the Rosses' advertisement "Consultation. No Charge" is deemed harmless error and does not affect the parties' substantial rights, rendering it non-reversible under Rule 45, Ala.R.App. P. The Rosses argue that the circuit court wrongly upheld the Board’s decision, citing a lack of evidence demonstrating consumer confusion about the advertisement's misleading nature, referencing Lyon v. Alabama State Bar. In Lyon, the court found insufficient proof of consumer deception related to the term "video taped will," emphasizing the need for evidence of actual consumer confusion. However, in contrast, the current case presents clear misleading information regarding the professional affiliations of the individuals in the advertisement, which inaccurately claims memberships that do not exist. The Board’s determination that the advertisement was misleading is supported by substantial evidence, distinguishing it from the Lyon case. Consequently, the circuit court's affirmation of the Board's decision is upheld.