Cozad v. Board of Chiropractic Examiners

• Citation: 153 Cal.App.2d 249,314 P.2d 500
• Court: California Court of Appeals
• Decision Date: 15 August 1957
• Parties: Richard L. COZAD, Plaintiff and Appellant, v. BOARD OF CHIROPRACTIC EXAMINERS and Winston S. Sibson, Ralph B. Crawford, Edward C. Poulsen, Emmett V. Wilent, and Thomas J. Earley, as members of said Board, Defendants and Respondents. Civ. 22265.

Page 500

314 P.2d 500

153 Cal.App.2d 249

Richard L. COZAD, Plaintiff and Appellant, v. BOARD OF CHIROPRACTIC EXAMINERS and Winston S. Sibson, Ralph B. Crawford, Edward C. Poulsen, Emmett V. Wilent, and Thomas J. Earley, as members of said Board, Defendants and Respondents.

Civ. 22265.

District Court of Appeal, Second District, Division 1, California.

Aug. 15, 1957.

Fred N. Howser, Arcadia, for appellant.

Edmund G. Brown, Atty. Gen., Edward M. Belasco, Deputy Atty. Gen., for respondents.

WHITE, Presiding Justice.

Appellant, a licensed chiropractor, appeals from an adverse judgment in his action seeking a declaration that Section 651 of the Business and Professions Code and Section 311 of the California Administrative Code are unconstitutional and void and an injunction permanently restraining respondents from enforcing the provisions of those sections against appellant because of certain of his advertisements.

Defendant Board of Chiropractic Examiners is a Division of the Department of Professional and Vocational Standards of the State of California (Bus. & Prof.Code, §§ 100-101(r)) and is the official body charged with the administration and enforcement of that certain initiative act approved November 7, 1922, known as the Chiropractic Act, West's Ann.Bus. & Prof.Code, § 1000-1 et seq., setting of standards, conducting investigations of violations of laws under its jurisdiction, issuing citations and holding hearings for the revocation of licenses, and the imposing of penalties following such hearings. Bus. & Prof.Code, § 108. The other defendants are the present duly appointed and acting members of said Board.

The court found that plaintiff is a member of the Basic Diagnostic Office, which is an unincorporated association of eight licensed chiropractors and Fred Besuzzi, who is not so licensed. Fred Besuzzi acts as business manager and has loaned money or credit to the licensed members to enable them to open or buy offices and equipment under the association name of Basic Diagnostic Office.

The advertisements attached as exhibits to plaintiff's complaint and defendants' answer, and introduced in evidence were published, one on October 16, two on November 7, and one on November 28, 1955. The advertisement of October 16 was as follows:

'$5 Examination $5

Protect Your Life

With Our Complete Physical and X-Ray Examination

Life

Can Be Protected

By A Thorough

Physical Examination

Death

Often Is Due

To Neglect Of Your

Physical Condition

'You Want Facts--Not Guesswork

'No Questions Asked Regarding Your Illness

'Without asking you a single question regarding your sickness we will show you the cause of your trouble, where it is and what to do. Isn't that what you want to know.

'Most Organs Now Visible

'We can see your heart, lungs, bronchi, spine, stomach, large and small intestines, etc. We note the defects, deformities, diseases, of faulty functioning and then prescribe the correct treatment to restore your health. Other mechanical and electrical devices register your blood pressure, pulse, heart and other functional or organic deficiencies--precision instruments that are the very latest in

'Scientific Diagnosis

'What is it worth to you to know the truth about your ailment--no guess work--just facts--plain scientific facts. Head-To-Toe Examination Show Condition of Sinus, Ears, Nose And Throat--Lungs And Respiratory Tract--Spinal Vertebrae And Bone Structure--Pulse And Heart Action--Blood Pressure--Stomach--Kidneys--Colon--Prostate--Female Organs--Glands--Nervous System--Liver And Gall Bladder

'(Following the above were the name, address, telephone number, and office hours of the plaintiff.)'

The three advertisements published in November after the filing of the complaint, copies of which are attached to defendants' answer, are much the same, except that they commence with an introductory paragraph similar to the following:

'$5 Examination $1

'In order to introduce our service to the people of Southern California, the Los Angeles County Diagnostic Association has established the price of our regular $5.00 examination to be only $1.00 for the next seven days, when this ad is presented by you. This policy prevails at all the Basic Diagnostic Offices listed below.

'Protect Your Life'

The court found that each of said advertisements of the plaintiff 'contained misstatements misrepresentations, distorted and sensational statements, and had a tendency to deceive the public and impose upon credulous or ignorant persons in the following particulars:

'1. It is misleading to advertise that a person trained in chiropractic can, generally, show a member of the public coming to him for examination the cause of an alleged illness, where it is, and what to do about it without asking the prospective patient a single question.

'2. It is a misstatement and a distortion of fact to advertise: 'Most organs now visible. We can see your heart, lungs, bronchi, spine, stomach, large and small intestines, etc.' when in fact these organs are not actually visible to the human eye with or without instruments and mechanical devices; that all plaintiff does during his examination of prospective patients is to place the prospective patient before a fluoroscope, where mere shadowy outlines of the said organs are viewed by plaintiff; further, no permanent X-ray picture is taken at said examination.

'3. It is imposing upon credulous and ignorant persons and has a tendency to deceive them to advertise that as the result of the type of examination given by plaintiff which includes a fluoroscopic examination, the taking of blood pressure on a baumometer, the hemoglobin count in a blood test, a superficial examination of eyes, ears, nose and throat by use of an ostescope and the listening to the heartbeats on a sound amplifying device, it is possible generally to prescribe correct treatment and restore the health of persons who are ill.

'That these examining procedures used by plaintiff result in fact in only preliminary evaluations of the physical condition of a person examined and have no inherent therapeutic value.'

The court also found 'That on October 20, 1955, the defendant Board officially advised plaintiff by letter that his advertising, as described above, would possibly violate Section 651 of the Business and Professions Code of the State of California and advised plaintiff in his future advertising to follow the legal requirements set forth in (Rule 311) Section 311 of Article 2 of Chapter 4 of Title 16 of the California Administrative Code; that thereafter, despite this warning, plaintiff continued to insert similar advertisements in newspapers of general circulation in Los Angeles County.'

And the court further found that each of the three advertisements published November 7th and 28th 'in which a five dollar examination was offered for one dollar, is an advertisement whereby plaintiff offered to render services as a chiropractor at a discount and for a fee less than the average fee regularly charged for such service and at a discount.'

From those findings the court concluded that the defendants proceeded pursuant to the provisions of the Chiropractice Act; that Section 651 of the Business and Professions Code is a definite, clear and certain statute and is constitutional; that Section 311 of Article 2, Chapter 4, Title 16, California Administrative Code, known as 'Rule 311', is a definite, clear and certain rule duly and regularly adopted by the Board of Chiropractic Examiners and is constitutional; that the offer in the advertisement published October 16, 1955 to give an examination for $5 is price advertising, but does not violate the provisions of Section 651; that the offers in the three advertisements published in November to give a $5 examination for $1 are discount price advertising and violate the provisions of Section 651; and that each of the four advertisements 'contain assertions concerning medical matters and the diagnosis and treatment of ailments which are misrepresentations, misstatements, distortions and have a tendency to deceive the public and impose upon credulous or ignorant persons who need or believe they need medical attention and are in violation of Section 651 of the Business and Professions Code.'

Appellant's specifications of error are as follows: 'Each and every finding of fact was unjustified and unsupported by the record because:

'1. Rule 311 is vague, indefinite, ambiguous and inconsistent with other statutory provisions and therefore unconstitutional;

'2. Rule 311 was unconstitutionally applied to the facts at bar;

'3. Section 651 is invalid for uncertainty, indefiniteness and ambiguity;

'4. Section 651 was unconstitutionally applied to the facts at bar.'

Rule 311 provides that: 'Constructive educational publicity is encouraged, but the use by any licensee of advertising which contains misstatements, falsehoods, misrepresentations, distorted, sensational or fabulous statements, or which is intended or has a tendency to deceive the public or impose upon credulous or ignorant persons, constitutes grounds for the imposition of any of the following disciplinary penalties: (a) Suspension of said licensee's right to practice in this State for a period not exceeding one (1) year. (b) Placing said licensee upon probation. (c) Taking such other action, excepting the revocation of said license as the board in its discretion may deem proper.'

Appellant questions respondent board's power to adopt or enforce Rule 311. Their premise is that said Rule 311 conflicts with general statutory provisions, specifically Sections 17500 and 17500.1 of the Business and Professions Code which, appellants contend, 'completely cover the problem of false advertising'.

The provisions of Section 17500 applicable to the instant action are that it is unlawful for any person intending to perform services to advertise 'any circumstance or matter of fact connected with the proposed performance * *...