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Barlow v. Mississippi State Board of Chiropractic Examiners

Supreme Court of Mississippi

May 25, 2017

ANDY BARLOW, D.C.
v.
MISSISSIPPI STATE BOARD OF CHIROPRACTIC EXAMINERS

          DATE OF JUDGMENT: 03/20/2015

         HINDS COUNTY CIRCUIT COURT HON. TOMIE T. GREEN

          ATTORNEYS FOR APPELLANT: JOHN H. OTT TODD BRENTLEY OTT

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LEYSER Q. HAYES WILLIAM JEFFREY JERNIGAN DAVID K. SCOTT

          BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.

          KING, JUSTICE

         ¶1. Dr. Andy Barlow was disciplined by the Mississippi State Board of Chiropractic Examiners for advertising in violation of the statutes governing chiropractors. Dr. Barlow appealed to the circuit court, alleging that the statute governing chiropractic advertising had been implicitly amended or repealed, that the statute governing chiropractic advertising violated his First Amendment rights, and that the Board was without authority to assess the costs of the investigation to him. The circuit court affirmed the Board, and Dr. Barlow appealed to this Court, making the same arguments, as well as arguing that the circuit court erred by failing to afford him a "de novo appeal." Because Dr. Barlow's arguments on whether he should be disciplined lack merit, this Court affirms the judgments of the Board and circuit court on those issues. However, because the Board lacked authority to directly assess Dr. Barlow the costs of its investigation, this Court reverses the judgments of the circuit court and Board on the issue of costs and renders judgment for Dr. Barlow on that issue.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Based upon two[1] patient complaints against Dr. Andy Barlow, D.C., the Mississippi State Board of Chiropractic Examiners brought a formal complaint against Dr. Barlow. The complaint charged Dr. Barlow with several violations, [2] including violations surrounding his advertising. The complaint alleged that Dr. Barlow advertised using professional designations other than "chiropractor, " "doctor of chiropractic, " "D.C., " or "chiropractic physician" in violation of Mississippi Code Sections 73-6-25(1)(a) and 73-6-19(1)(b).

         ¶3. At the hearing on the complaint, the advertisements, in which Dr. Barlow advertised as D.C., and also as DACNB, [3] FACFN, [4] and as a "Chiropractic Neurologist, " were entered into evidence. Dr. Barlow and Dr. Patterson, the Board member assigned to investigate the complaint, both testified that Dr. Barlow's certifications in neurology required 1, 600 hours of continuing education to achieve. Dr. Patterson testified that "[h]aving a chiropractic neurology degree would have - you would have a much better understanding of neurological issues that may be going in the body and be able to recognize other issues." The patient who made the complaint stated that she was confused by the advertisements as a "board certified chiropractic neurologist." She noted that the emphasis was on "neurologist" and that "chiropractic" seemed like a mere adjective.

         ¶4. On March 31, 2014, the Board issued its final order. The Board concluded that "[t]he clear and convincing evidence establishes cause to discipline the Respondent under Section 73-6-19(1)(b) for violations of Section 73-6-25(1)(a) by using professional designation in his printed advertisements other than the term 'chiropractor, ' 'doctor of chiropractic, ' 'D.C., ' or 'chiropractic physician.'" The Board ordered that "[a] monetary penalty is imposed upon the Respondent in the amount of Five Hundred Dollars ($500.00)." It also ordered that "[t]he Respondent shall pay to the Board the costs associated with its investigation and prosecution of this matter in the amount of $3216.00." On April 1, 2014, counsel for Dr. Barlow wrote the Board and asked the Board to provide him with the legal authority for the Board's assessment of investigative expenses, and also noted that the order contained no breakdown of the costs assessed. In an undated letter, the Board responded that in assessing the monetary penalty, the Board considers the cost of investigation. It stated that Dr. Barlow committed at least five separate violations of Section 73-6-25(1). It concluded that "[i]f this explanation is not satisfactory to you and Dr. Barlow, the Board can correct its Order to reflect the full monetary penalty authorized by Section 73-6-19."

         ¶5. On April 24, 2014, Dr. Barlow appealed to the Hinds County Circuit Court. After briefing on the issue, the circuit court entered an order affirming the decision of the Board in full. It stated that "[i]t is not the position of this Court to act as a fact finder." It continued that

[i]n this case, the Board believed the facts conclusively proved the Appellant's discipline and subsequent monetary penalty was for good cause. Having reviewed the record and being otherwise thoroughly advised in the premises, the Court finds that the Board followed the statute, and likewise opines that Appellant's disciplinary action was made in 'good faith for cause' and supported by substantial evidence.
IT IS, THEREFORE, ORDERED and ADJUDGED that there was substantial evidence before the Board to support its order and that the Board's order was not arbitrary and capricious, was not beyond the power of the administrative agency to make, nor did it violate some statutory or constitutional rights of the Appellant.

         It consequently did not find error in the Board's actions.

         ¶6. Dr. Barlow appeals to this Court, raising several issues: 1) whether the circuit court erred in failing to act as factfinder when Dr. Barlow was entitled to a "de novo appeal;" 2) whether Section 73-6-25(1)(a) was amended or repealed by implication by Section 41-121-1, et seq.; 3) whether Section 73-6-25(1)(a) impermissibly infringes on Dr. Barlow's First Amendment right to free speech; and 4) whether the Board's decision, particularly regarding costs assessed, was unsupported by substantial evidence, was arbitrary and capricious, was beyond the scope or power granted the agency by the Legislature, and violated Barlow's statutory and constitutional rights.

         ANALYSIS

         1.Standard of Review

         ¶7. To be entitled to reversal of an agency decision, the aggrieved party must show that 1) the decision was not supported by substantial evidence, 2) the decision was arbitrary and capricious, 3) the decision was beyond the power of the administrative agency, or 4) the decision violated the party's statutory or constitutional rights. Equifax, Inc. v. Miss. Dep't of Revenue, 125 So.3d 36, 41 (Miss. 2013). "This Court reviews questions of law de novo." Id. We therefore review Dr. Barlow's first three issues de novo, and his fourth to determine whether the Board's decision was supported by substantial evidence, was arbitrary and capricious, was beyond the power of the agency, or violated Barlow's rights.

         2.De Novo Appeal

         ¶8. The statutory provision regarding appeal from a disciplinary decision of the Board provides that, within thirty days of the decision, the aggrieved party "shall have the right of a de novo appeal to the circuit court." Miss. Code Ann. § 73-6-19(5) (Rev. 2012). Dr. Barlow contends that this "de novo appeal" requires the circuit court to act as factfinder on the administrative record before it.

         ¶9. In Equifax, this Court examined a statute that provided that the chancery court, in appeals from the Mississippi State Tax Commission, "shall try the case de novo and conduct a full evidentiary judicial hearing on the issues raised." Equifax, 125 So.3d at 41 (quoting Miss. Code Ann. § 27-77-7(4) (2005)). The Court found that, even though the law said "de novo, " the

petitioner must raise and prove one or more of the following: the agency's decision was unsupported by substantial evidence, the agency's decision was arbitrary and capricious, the agency's decision was beyond the power of the administrative agency to make, and/or the agency's ...

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