Culpepper v. ARK. BD. OF CHIROPRACTIC

• Court: Arkansas Supreme Court
• Writing for the Court: W.H. "DUB" ARNOLD, Justice
• Citation: Culpepper v. ARK. BD. OF CHIROPRACTIC, 36 S.W.3d 335, 343 Ark. 467 (Ark. 2001)
• Decision Date: 01 February 2001
• Docket Number: No. 00-177.,00-177.
• Parties: Dr. Chris CULPEPPER v. The ARKANSAS BOARD OF CHIROPRACTIC EXAMINERS.

36 S.W.3d 335

343 Ark. 467

Dr. Chris CULPEPPER v. The ARKANSAS BOARD OF CHIROPRACTIC EXAMINERS.

No. 00-177.

Supreme Court of Arkansas.

February 1, 2001.

Perroni & James, by Patrick R. James and Janan Arnold Davis, Little Rock, for appellant.

Mark Pryor, Att'y Gen., by Ainsley H. Lang and Brian G. Brooks, Ass't Att'ys Gen., Little Rock, for appellee.

W.H. "DUB" ARNOLD, Chief Justice.

This appeal challenges a decision by the Arkansas Board of Chiropractic Examiners (the Board) holding the appellant, Dr. Chris Culpepper, in violation of a Board regulation prohibiting certain contact with prospective patients when Dr. Culpepper utilized the services of a telemarketing firm for purposes of building his clientele. At issue in this case is whether Dr. Culpepper violated a Board regulation proscribing in-person solicitation of potential clients, and, if so, whether the regulation itself violated the federal Constitution or federal antitrust law. This appeal was filed pursuant to the Arkansas Administrative Procedure Act, Ark.Code Ann. § 25-15-201 (Supp.1999), et seq., following a finding by the Board that Dr. Culpepper had violated the regulation. The Circuit Court of Pulaski County upheld the decision of the Board. We reverse, holding the regulation in question to be an unconstitutional infringement on commercial speech, in violation of the First Amendment.

Appellant Chris Culpepper, d/b/a Liberty Chiropractic Clinic, is a sole practitioner chiropractor licensed to practice in the State of Arkansas; his clinic is located in Little Rock. Appellant utilized, among other marketing tools, the services of Physician's Assistance Group ("PAG") in an effort to build his clientele. PAG is a professional telemarketing company hired by appellant to inform the public of his availability. PAG's employees would access accident reports from the area in which Dr. Culpepper practices; they would then make telephone calls to individuals who had been involved in those accidents and attempt to entice the accident victim into scheduling an appointment with him. These calls would come the day or days following the accident. The Board reviewed three reported specific incidents where this practice occurred.

The Board found that this practice violated its regulation proscribing "unprofessional acts." The relevant portion of the regulation defines an unprofessional act as:

Direct contact with prospective patients by in-person or live telephone communication the purpose of which being to solicit professional employment from a prospective patient with whom the chiropractic physician has no family or prior professional relationship when a significant motive of the chiropractic physician's communication and/or contact is the chiropractic pecuniary gain.

Part Two, Rules and Regulations of the Arkansas State Board of Chiropractic Examiners, Regulation C(2)(q) ("Regulation Q"). The Board fined Dr. Culpepper $3,000.00 and placed him on a one-year probation with the condition that he cease his solicitation through an outside agent. Dr. Culpepper challenged this finding; and, as stated above, the circuit court affirmed the Board's decision and further found that Regulation Q does not violate the First or Fourteenth Amendments to the Constitution.

On appeal, Dr. Culpepper asserts the following:

I. The regulation is in violation of the First Amendment to the United States Constitution as an unconstitutional infringement on commercial speech;

II. The rule regulation is in violation of the Equal Protection Clause of the Fourteenth Amendment;

III. The Board's decision to find Dr. Culpepper in violation of the Board's rules was not supported by substantial evidence and was arbitrary and capricious i.e., his actions did not violate the Regulation;

IV. Regulation Q constitutes an unfair restraint of competition trade.

Standard of Review

Decisions of the Arkansas State Board of Chiropractic Examiners are subject to the Arkansas Administrative Procedure Act (A.P.A.) Ark.Code Ann. § 25-15-201, et seq. The Arkansas A.P.A. allows this Court to review the decision of the administrative agency notwithstanding the decision rendered by the circuit court, whose review is limited in scope by Ark. Code Ann. § 25-15-212(h) (Supp.1999). Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999).

In an appeal from an administrative order, our review is directed to the agency's decision, not the circuit court's. Hankins v. Department of Finance and Administration, 330 Ark. 492, 954 S.W.2d 259 (1997). When reviewing administrative decisions, we will review the entire record to determine whether there is any substantial evidence to support the administrative agency's decision, whether there is arbitrary and capricious action, or whether the action is characterized by abuse of discretion. Wright v. Arkansas State Plant Board, 311 Ark. 125, 130, 842 S.W.2d 42 (1992). We recognize that

administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies, and this recognition accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency.

Wright, 311 Ark. at 130, 842 S.W.2d 42. As such, the administrative agency is afforded great deference.

Evidence is given its strongest probative force in favor of the agency's ruling, and we will not reverse an agency decision when there is substantial evidence to support it. Arkansas Bank & Trust Co. v. Douglass, 318 Ark. 457, 885 S.W.2d 863 (1994). To determine whether a decision is supported by substantial evidence, we review the entire record to ascertain if it is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wright, supra (citing Livingston v. Arkansas State Medical Bd., 288 Ark. 1, 701 S.W.2d 361 (1986); Partlow v. Arkansas State Police Comm'n, 271 Ark. 351, 609 S.W.2d 23 (1980)).

First Amendment Violation

Appellant asserts that Regulation Q is an unconstitutional infringement on commercial speech in violation of the First Amendment. We agree. Commercial speech is "expression related solely to the economic interests of the speaker and its audience." Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). The United States Supreme Court has held that "the First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation." Id.

In Central Hudson the Court also explained that:

The First Amendment's concern for commercial speech is based on the informational function of advertising. Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, commercial speech related to illegal activity.

If the communication is neither misleading nor related to unlawful activity, the government's power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State's goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.

Id. (internal citations omitted). The Supreme Court has explained that a restriction on commercial free speech must be "narrowly tailored to achieve the desired objective." Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995).

In Central Hudson, the Court outlined a four-pronged test to apply to regulations that restrict commercial speech. Specifically, it held:

In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343.

The Court has also noted that when evaluating a challenge to a restriction on commercial speech "the party seeking to uphold a restriction on commercial speech carries the burden of justifying it. This burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real, and that its restriction will in fact alleviate them to a material degree." Edenfield v. Fane, 507 U.S. 761, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993).

In the instant case, appellee, a State agency, has implemented guidelines for chiropractic physicians. Included within these regulations is Regulation Q. Both appellant and appellee agree that this regulation is a restriction on commercial speech. Additionally, both appellant and appellee agree that appellant's solicitation of potential patients through PAG was not misleading. However, the parties disagree as to whether the regulation is a violation of appellant's First Amendment right pursuant to th...