Riley v. Kansas State Bd. of Healing Arts ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,553
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
MICHAEL D. RILEY,
Appellant,
v.
KANSAS STATE BOARD OF HEALING ARTS,
Appellee.
MEMORANDUM OPINION
Appeal from Johnson District Court; PAUL C. GURNEY, judge. Opinion filed December 18, 2020.
Affirmed.
Mark W. Stafford, of Forbes Law Group, of Overland Park, for appellant.
Courtney E. Cyzman, deputy general counsel, and Tucker L. Poling, general counsel, Kansas
State Board of Healing Arts, for appellee.
Before GARDNER, P.J., BUSER and BRUNS, JJ.
PER CURIAM: The Kansas State Board of Healing Arts (Board) sanctioned
Michael D. Riley for his advertisements that used the term "pain free" and omitted his
name and chiropractic profession. Riley petitioned the district court for review, but it
denied his petition. Riley appeals, raising five claims: (1) the Board lacked substantial
evidence to support its order; (2) the Board erred in interpreting and applying the law; (3)
the Board failed to decide issues requiring resolution; (4) the Board's order was arbitrary
and capricious; and (5) the Board acted unconstitutionally. We affirm, finding that the
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Board reasonably acted within its discretion with a proper factual and legal
determination. We do not reach Riley's constitutional claim.
Factual and Procedural Background
Michael D. Riley has been a licensed chiropractor with the Board since 2001. He
owns Renuva Back & Pain Center (Renuva) in Overland Park, Kansas.
In January 2018, the Board opened an investigation after Renuva advertised in the
Johnson County Government magazine, Winter 2018 edition. The advertisement closed
with the salutation: "We look forward to helping you become pain free! Sincerely, Dr.
Michael Riley, D.C." The Board also reviewed an advertisement published in both the
Fall 2017 and Spring 2018 editions of the Johnson County Government magazine. Under
a section titled: "What does this offer include," the advertisements stated, "[a] thorough
analysis of your exam findings so we can start mapping out your plan to being pain free."
During its investigation, the Board received a complaint about a June 2018 Kansas
City Star advertisement. The advertisement explained Renuva's CoreCare treatment and
its knee brace's ability to address knee pain. Yet Riley's name was absent, and it did not
identify Renuva as a chiropractic clinic. The advertisement also explained that an initial
appointment included "[a] thorough analysis of your examination findings so we can start
mapping out your treatment plan to being pain free."
In November 2018, the Board investigator met with Riley and his business
manager to discuss Riley's advertisements and the history of advertising complaints
against him. Riley took responsibility for any wording used in printed or electric
publications or advertisements. He affirmed he was aware it was a violation to solicit a
treatment, process, or procedure that would result in the patient being pain free. But Riley
did not think the wording he chose promised a pain free result. The investigator presented
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Riley with scenarios showing how potential readers could interpret his advertisements
and could expect Riley's treatment to cure their pain. Riley acknowledged that someone
could make that interpretation.
Riley then agreed to redact or remove any advertisement using "pain free"
language and not to make any promises, inferences, or illusions of a promise to be pain
free. The investigator also encouraged Riley to ask an attorney to review his publication
if he had questions about what he could not say. The investigator found Riley cooperative
throughout their conversation. A few days later, Riley emailed the investigator
confirming that he would ensure that his name and credentials were in every ad.
In April 2019, the Board received a January 2019 advertisement from the Wichita
Eagle titled "Wichita Pain Clinic Offers Opioid-Free Pain Treatment." The advertisement
explained Renuva's CoreCare treatment, and quoted Riley: "'At Renuva we believe there
is a better way. Pain should not be accepted as part of the aging process; drugs and
surgery are not your only options; quality of life is important and life should be enjoyed
to the fullest—pain free.'"
The Board's disciplinary counsel petitioned the Board, claiming Riley's
advertisements violated the Kansas Healing Arts Act (KHAA), K.S.A. 65-2801 et seq.,
through false or misleading advertisements. The petition alleged that Riley violated
K.S.A. 65-2836 in multiple ways. The petition also listed Riley's three previous
advertising violations:
• In 2007, under a consent order Riley signed, Riley agreed he had published a full-
page advertisement in the Emporia Gazette that displayed a stop sign and implied
that back pain could be stopped without surgery. It did not identify him or his
profession. Riley agreed this advertisement violated K.S.A. 65-2836(d), as defined
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by K.S.A. 65-2837(c), because his advertisement was false, misleading, or
deceptive. The Board fined him $250.
• In 2014, the Board issued a summary order that required Riley to pay $2,000 for
an advertisement stating patients could "'live pain free'" with the Lite Cure Laser.
The Board found he committed unprofessional conduct as defined by K.S.A. 65-
2837(b)(1) and he used a fraudulent or false advertisement as prohibited by K.S.A.
65-2836(d).
• In 2017, Riley signed a consent order agreeing he failed to identify himself as a
chiropractor in multiple places on Renuva's website. Riley agreed he violated
K.S.A. 65-2836(b) by failing to adhere to K.S.A 65-2885, violated K.S.A. 65-
2836(b), as defined by K.S.A. 65-2837(b)(12), and violated K.S.A. 65-2836(f).
The Board fined Riley $5,000.
Riley did not respond to the petition and presented no exhibits or briefs for the Board's
consideration.
The Board held an administrative hearing in June 2019, at which Riley appeared
pro se. Riley stated that he felt like he was being railroaded. He was licensed in six states
and had used the same advertisements in each state, but Kansas was the only state that
had questioned his advertisements. He saw no difference between his advertisements and
a gastric bypass surgeon's advertisement promising that a patient would lose weight—
which he thought the Board had never penalized. Riley asserted that his advertisements
did not guarantee that his patients would be pain free. And he did not understand that the
Board considered the term "pain free" to be prohibited language until after speaking with
the investigator.
The Board adopted the factual findings in the amended petition and concluded that
Riley had violated three subsections of the statute: soliciting professional patronage by
using fraudulent or false advertisements (K.S.A. 65-2837[b][1]); engaging in conduct that
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is likely to deceive, defraud, or harm the public (K.S.A. 65-2837[b][12]); and making a
false or misleading statement regarding his skill or the efficacy or value of the treatment
or remedy prescribed by licensee (K.S.A. 65-2837[b][13]).
As for Riley's sanction, the Board noted that his history of similar violations
outweighed any consideration of his cooperation with its investigator and his willingness
to modify his advertisements. The Board's Final Order suspended Riley's license for 90
days, fined him $7,500, and required ethics education and an examination.
The Board granted Riley's motion to stay the Final Order pending completion of
judicial review. And Riley, represented by counsel, petitioned the district court for
judicial review. Riley raised five claims for relief under K.S.A. 77-621(c), similar, if not
identical, to the claims he raises now on appeal.
But the district court denied Riley's petition, holding:
"Substantial evidence supports the Board's determination that petitioner violated
the Healing Arts Act when its advertisements promised patients a 'pain free' outcome.
The Board did not misinterpret the Act and resolved all pending issues before it. As a
result, it did not act in an arbitrary or capricious manner. Additionally, the First
Amendment does not protect misleading commercial speech."
Riley timely appeals.
Analysis
The Board's Disciplinary Oversight of Unprofessional Conduct
Our Legislature has granted the Board authority to license and regulate all
practitioners of the healing arts in Kansas. K.S.A. 65-2812. The practice of chiropractic
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falls under the authority of the Board. K.S.A. 65-2802; K.S.A. 65-2871. That practice is a
privilege, not a right, and regulating that practice entails public policy determinations the
Board makes:
"[T]he practice of the healing arts is a privilege granted by legislative authority and is not
a natural right of individuals, it is deemed necessary as a matter of policy in the interests
of public health, safety and welfare, to provide laws and provisions covering the granting
of that privilege and its subsequent use, control and regulation to the end that the public
shall be properly protected against unprofessional, improper, unauthorized and
unqualified practice of the healing arts and from unprofessional conduct by persons
licensed to practice under this act." K.S.A. 65-2801.
The Board may revoke, suspend, or limit a license, publicly censure a licensee, or
place a licensee on probation upon finding a licensee violated any provision of K.S.A.
65-2836. Subsection (b) of that statute allows the Board to discipline a licensee for "an
act of unprofessional or dishonorable conduct or professional incompetency." The Board
found that Riley violated K.S.A. 65-2836(b), as defined by K.S.A. 65-2837(b)(1), (12),
(13):
"(b) 'Unprofessional conduct' means:
"(1) Solicitation of professional patronage through the use of fraudulent or false
advertisements, or profiting by the acts of those representing themselves to be agents of
the licensee.
....
"(12) Conduct likely to deceive, defraud or harm the public.
"(13) Making a false or misleading statement regarding the licensee's skill or the
efficacy or value of the drug, treatment or remedy prescribed by the licensee or at the
licensee's direction in the treatment of any disease or other condition of the body or
mind."
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K.S.A. 65-2837(c) defines "false advertisement":
"'False advertisement' means any advertisement that is false, misleading or
deceptive in a material respect. In determining whether any advertisement is misleading,
there shall be taken into account not only representations made or suggested by
statement, word, design, device, sound or any combination thereof, but also the extent to
which the advertisement fails to reveal facts material in the light of such representations
made."
Kansas Judicial Review Act
A licensee may challenge a final order of the Board under the Kansas Judicial
Review Act (KJRA), K.S.A. 77-601 et seq. Riley does so here. Under KJRA, the licensee
bears the burden of showing the invalidity of an agency action. K.S.A. 77-621(a)(1);
Golden Rule Ins. Co. v. Tomlinson, 300 Kan. 944, 953, 335 P.3d 1178 (2014). The
relevant statute lists eight circumstances under which a court must grant relief. Riley
argues four of them apply:
"(3) the agency has not decided an issue requiring resolution;
"(4) the agency has erroneously interpreted or applied the law;
....
"(7) the agency action is based on a determination of fact, made or implied by the
agency, that is not supported to the appropriate standard of proof by evidence that is
substantial when viewed in light of the record as a whole, which includes the agency
record for judicial review, supplemented by any additional evidence received by the court
under this act; or
"(8) the agency action is otherwise unreasonable, arbitrary or capricious." K.S.A.
77-621(c).
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Appellate courts exercise the same statutorily limited review of the agency's action
as does the district court. Under the KJRA, we consider this appeal from the district court
as if Riley's petition for review of the Board's decision had been originally filed with us.
In re Tax Appeal of Fleet, 293 Kan. 768, 776, 272 P.3d 583 (2012); Carlson Auction
Service, Inc. v. Kansas Corporation Comm'n, 55 Kan. App. 2d 345, 349, 413 P.3d 448(2018). Riley's burden is to show the Board erred. See K.S.A. 77-621(a)(1); Kansas Dept.
of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010). We independently
determine legal issues, without deference to the Board's interpretation. See Dirshe v.
Cargill Meat Solutions Corp., 53 Kan. App. 2d 118, 119-20, 382 P.3d 484 (2016).
Does Substantial Evidence Support the Board's Order?
Riley first argues that no evidence supports the Board's conclusion that the
advertisements were deceptive or misleading and no evidence shows that anyone was
deceived or misled.
For this issue, we must determine whether the Board's factual findings are
supported by substantial evidence in light of all evidence of record. See K.S.A. 77-
621(c)(7), (d); Sierra Club v. Moser, 298 Kan. 22, 62-63, 310 P.3d 360 (2013). This
analysis requires us to: (1) review evidence both supporting and detracting from an
agency's findings; (2) examine the presiding officer's credibility determinations, if any;
and (3) review the agency's explanation as to why the evidence supports its findings.
K.S.A. 77-621(d); Board of Cherokee County Comm'rs v. Kansas Racing & Gaming
Comm'n., 306 Kan. 298, 326, 393 P.3d 601 (2017). Substantial evidence is legal and
relevant evidence that a reasonable person could accept as adequate to support a
conclusion. Geer v. Eby, 309 Kan. 182, 190, 432 P.3d 1001 (2019). In reviewing the
evidence, we do not reweigh the evidence, or engage in de novo review, or make new
"veracity" determinations. K.S.A. 77-621(d). We also determine whether cross-
examination or other evidence has so undermined the evidence supporting the agency's
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decision as to render it insufficient to support the agency's conclusion. Buchanan v. JM
Staffing, 52 Kan. App. 2d 943, 948, 379 P.3d 428 (2016).
Riley is correct that no evidence shows that his advertisements deceived or misled
anyone. But the statutes do not require that showing. Instead, each statute focuses on the
unprofessional conduct of the licensee. See K.S.A. 65-2837(b)(1), (12), and (13).
We turn to Riley's argument that no evidence supports the Board's conclusion that
the advertisements were deceptive or misleading. We recognize that "matters of
administrative policy will generally be left to the discretion of the administrative agency
if they fall within its field of expertise." Graves Truck Line, Inc. v. Kansas Corporation
Comm'n, 215 Kan. 565, 572, 527 P.2d 1065 (1974); see Farmland Industries, Inc. v.
Kansas Corporation Comm'n, 24 Kan. App. 2d 172, 176, 943 P.2d 470 (1997). And
"'[t]he determination whether by common judgment certain conduct is disqualifying is
left to the sound discretion of the board.'" Hainline v. Bond, 250 Kan. 217, 227, 824 P.2d
959 (1992) (quoting Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 454,
436 P.2d 828 [1968]).
The Board expressly relied on the advertisements to support its finding of Riley's
violations. We detail the advertisements here. The first was published in the Johnson
County Government Magazine Winter 2018 edition. The title of the advertisement was
"Overland Park Doctor Offers New Treatment For Chronic Pain." It began: "My name is
Dr. Michael Riley, D.C., Founder of Renuva Back & Pain Center, and I want to help you
determine if our CoreCareTM treatment protocol is right for you." The advertisement
then described CoreCare, which includes Photobiomodulation, multidisciplinary
rehabilitation, and spinal manipulation. Under a section titled: "Could this Non-Invasive,
Natural Treatment be the Answer to Your Pain?" the advertisement stated: "Remember
what it was like before you had these problems—when you were pain free and could
enjoy everything life had to offer? It can be that way again. Don't neglect your problem
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any longer—don't wait until it's too late and the damage is irreversible." The
advertisement closed with a salutation: "We look forward to helping you become pain
free! Sincerely, Dr. Michael Riley, D.C."
The second advertisement was published in both the Fall 2017 and Spring 2018
editions of the Johnson County Government magazine. The advertisement introduced
Riley as a chiropractor and as the founder of Renuva and explained CoreCare. Under a
section titled: "What does this offer include," the advertisements stated, "[a] thorough
analysis of your exam findings so we can start mapping out your plan to being pain free.
If you're not a candidate for CoreCare, I promise to tell you."
The third advertisement sprang from a complaint the Board received about a June
2018 Kansas City Star advertisement. That advertisement explained Renuva's CoreCare
treatment and its knee brace's ability to address knee pain. Yet the advertisement neither
contained Riley's name nor identified Renuva as a chiropractic clinic. It explained that an
initial appointment included "[a] thorough analysis of your examination findings so we
can start mapping out your treatment plan to being pain free."
The fourth advertisement was published in January 2019 by the Wichita Eagle
titled, "Wichita Pain Clinic Offers Opioid-Free Pain Treatment." The advertisement
explained Renuva's CoreCare treatment and quoted Riley as saying: "'At Renuva we
believe there is a better way. Pain should not be accepted as part of the aging process;
drugs and surgery are not your only options; quality of life is important and life should be
enjoyed to the fullest—pain free.'"
The advertisements themselves provide relevant and substantial evidence
reasonably supporting the Board's conclusion that Riley violated the KHAA. All the
advertisements included the term "pain free," and the Kansas City Star advertisement
omitted Riley's name and failed to identify Renuva as a chiropractic clinic. And the
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record lacks any evidence that would call these advertisements into question. As the
Board determined, the "pain free" language in Riley's advertisements met this statute
because Riley was unable to guarantee a pain free life as a result of his treatment. The
implicit assumption behind the Board's determination is that a licensee cannot, in reality,
guarantee a pain-free outcome and to do so misleads the public. This is a policy decision
that we grant deference to. See Hainline, 250 Kan. at 227; Farmland Industries, 24 Kan.
App. 2d at 176. Although Riley disagrees that the advertisements are false or misleading,
the record supports the Board's contrary conclusion that the advertisements violated
K.S.A. 65-2836(b).
Did the Board Err in Interpreting and Applying the Law?
Riley next argues that the Board incorrectly applied K.S.A. 65-2837(c). He asserts
the Board made a legal error in concluding that his advertisement was false or misleading
only in some respect, instead of in a "material" respect.
Riley is correct that to violate the KHAA, an advertisement must be materially
false, misleading, or deceptive. The relevant statute defines a false, misleading, or
deceptive advertisement as one that is materially so:
"'False advertisement' means any advertisement that is false, misleading or
deceptive in a material respect. In determining whether any advertisement is misleading,
there shall be taken into account not only representations made or suggested by
statement, word, design, device, sound or any combination thereof, but also the extent to
which the advertisement fails to reveal facts material in the light of such representations
made." (Emphasis added.) K.S.A. 65-2837(c).
Black's Law Dictionary defines "material" as "[o]f such a nature that knowledge of
the item would affect a person's decision-making; significant; essential." Black's Law
Dictionary 1170 (11th ed. 2019). As applied to the statute above, a false advertisement is
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one that is (1) false, misleading, or deceptive in a manner that would affect a person's
decision-making; (2) significantly false, misleading or deceptive; or (3) essentially false,
misleading, or deceptive.
Riley claims the Board wrongly concluded that the advertisement must be
misleading only in "some" respect instead of in a material respect. Riley bases his
interpretation on this statement in the Board's order:
"The Board notes that the Healing Arts Act defines 'false advertisement' as inclusive of
advertisement [sic] that is found to be misleading in some respect. K.S.A. 65-2837(c).
The Act directs that '[i]n determining whether any advertisement is misleading, there
shall be taken into account not only representations made or suggested by statement,
word, design, device, sound or any combination thereof, but also the extent to which the
advertisement fails to reveal facts material in the light of such representations made.' Id."
(Emphasis added.)
But the Board's statement is ambiguous—it has two reasonable interpretations.
Riley suggests one. But another is that the Board's use of the term "in some respect"
refers to the way the misleading representation was made—either by communication or
by omission of material facts. We find this latter interpretation to be reasonable, and more
likely, given the context as clarified by the Board's explanatory sentence right after the
ambiguous statement. We thus disagree with Riley's interpretation that the Board lowered
the standard of falsity and ignored the definition of "false advertisement" by finding that
definition includes advertisements that are "misleading in some respect." We find no
legal error.
Did the Board Fail to Decide an Issue that Required Resolution?
Riley next argues that the Board failed to make four determinations, contrary to its
duty under K.S.A. 77-621(c)(3):
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1. "It did not determine whether the complained-of language in the
advertisements was material."
2. "It did not determine the likelihood that a person actually would be
deceived, defrauded, or harmed."
3. "With one exception, it did not identify the material that the advertisements
failed to state."
4. "And, it did not state what was false regarding Dr. Riley's skill or the
efficacy of his treatment."
But the level of specificity Riley seeks is not required by this statute. Instead,
courts grant relief under this statute when an agency fails to address a general claim or
issue. See Matter of Protest of Emil Liston Foundation, 13 Kan. App. 2d 353, 355, 771
P.2d 77 (1989) (invoking K.S.A. 77-621[c][3] to decide whether foreclosure court's
decision barred later tax protest when agency expressly declined to decide the issue);
Berberich v. U.S.D. 609 S.E. Ks. Reg. Educ. Center, No. 97,463, 2007 WL 3341766, at
*2 (Kan. App. 2007) (unpublished opinion) (vacating Workers Compensation Board
decision under K.S.A. 77-621[c][3] when agency failed to provide written decision from
request for post-award benefits); Ney v. Kansas Employment Sec. Bd. of Review, No.
92,212, 2004 WL 3048958, at *5 (Kan. App. 2004) (unpublished opinion) (remanding to
agency under K.S.A. 77-621[c][3] for fact-finding and to "address fully" claimant's good-
faith argument). We find no comparable omission here.
The only issue that required resolution was whether Riley violated the statutes
raised in the amended petition and what the appropriate sanctions would be. The Board
fulfilled the dictates of K.S.A. 77-621(c)(3) by concluding that Riley violated K.S.A. 65-
2836(b) in three separate ways, and by specifying Riley's violations and supporting its
legal conclusions with factual findings in its written decision. We find no unresolved
issue or claim that the Board failed to address.
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But even if we consider the level of specificity Riley desires, we find that the
Board did not fail to make any "determinations." First, the Board found that Riley's
advertisements were false, deceptive, or misleading in a material respect. And it
explained that Riley's omissions of his name and his profession in Exhibit 5, the Kansas
City Star advertisement, were material omissions within the definition of K.S.A. 65-
2837(c). The Board reasonably concluded that all the advertisements violated the KHAA
because they contained the term "pain free."
Second, none of the statutes Riley violated requires an actual showing of fraud or
deception. Instead, each section focuses on the licensee's conduct without requiring actual
harm. See K.S.A. 65-2836(b)(1), (12), and (13).
Third, the Board determined that Riley omitted his name and his profession in the
Kansas City Star advertisement—the "one exception" Riley mentions in his brief.
And, fourth, K.S.A. 65-2837(b)(13) provides that a statement can be false or
misleading in regard to "the licensee's skill or the efficacy or value of the drug, treatment
or remedy prescribed by the licensee or at the licensee's direction in the treatment of any
disease or other condition of the body or mind." The Board found that the "pain free"
language in Riley's advertisements violated this statute because Riley was unable to
guarantee a pain free life as a result of his treatment.
Although the Board may not have stated those findings as expressly as Riley
desires, the Board did not fail to make a determination contrary to its duty under K.S.A.
77-621(c)(3).
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Was the Board's Order Unreasonable, Arbitrary, or Capricious?
Riley next argues that the Board unreasonably interpreted his advertisements to
make or imply a promise to be pain free. Riley asserts that, given the context of the
advertisements, a pain free guarantee reading would "not be logical." He also argues that
it was unreasonable for the Board to require him to place his name and profession on
advertisements because no law requires him to do so.
"'Essentially, the test under K.S.A. 77-621(c)(8) determines the reasonableness of
the agency's exercise of discretion in reaching its decision based upon the agency's
factual findings and the applicable law.'" Via Christi Hospitals Wichita, Inc. v. Kan-Pak,
310 Kan. 883, 891, 451 P.3d 459 (2019). A rebuttable presumption of validity attaches to
all actions of an administrative agency. The burden of proving arbitrary and capricious
conduct lies with the party challenging the agency's actions. Sierra Club, 298 Kan. at 47.
Our Legislature has given the Board wide discretion to determine whether certain
conduct is unprofessional conduct. See Hainline, 250 Kan. at 227; Foote, 200 Kan. at
454. "Where substantial evidence is presented that supports a finding of a violation of the
KHAA, Board members are entitled and expected to rely on their own expertise and
experience in making these decisions." Hart v. Kansas Board of Healing Arts, 27 Kan.
App. 2d 213, 218, 2 P.3d 797 (2000).
The Board reasonably determined that the "pain free" language in Riley's
advertisements violated the KHAA. Riley's Johnson County Government magazine
Winter 2018 edition advertisement asked the reader if CoreCare could "be the Answer to
[their] Pain?" It then stated that they could be pain free again and "enjoy everything life
had to offer." And the statements: "We look forward to helping you become pain free!"
and "mapping out your plan to being pain free" imply that a pain free life results from the
treatment. Riley's advertisements are unconditional and do not limit the extent of pain
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relief that a qualifying person could obtain. Rather than promising "pain relief" or "pain
reduction," Riley's advertisements state that he can help a person become "pain free."
Given their contexts, it is reasonable to conclude these uses of the term "pain free" would
mislead a patient into thinking Riley's treatment would produce a pain free life. "The
licensor of healing arts professionals has the right and the duty to demand strict
adherence to truthful advertising that is verifiable." Bolton v. Kansas State Bd. of Healing
Arts, 473 F. Supp. 728, 734 (D. Kan. 1979). Although Riley disagrees with the Board's
interpretation of his advertisements, he fails to show that its interpretation was arbitrary
or unreasonable.
The Board was also reasonable in finding Riley violated the KHAA by failing to
include his name or medical practice in the Kansas City Star advertisement. K.S.A. 65-
2837(c) states that an advertisement may be misleading to "the extent to which the
advertisement fails to reveal facts material in the light of such representations made." The
Board may decide that licensees should include their name and profession in all
advertisements. See Hainline, 250 Kan. at 227; Hart, 27 Kan. App. 2d at 218. The Board
so decided here. Riley was on notice of that requirement as early as 2007 and as recently
as 2017 when he signed consent orders to remedy his prior omissions of his name and
profession in his advertisements. So it is immaterial that no statute requires an
advertisement to include one's name and profession.
Neither was the Board's decision capricious. The Board had previously sanctioned
Riley for nearly identical violations. The record of Riley's prior violations shows that the
Board has consistently determined that "pain free" is prohibited language and that the
advertisements must include the licensee's name and profession. Riley fails to show
otherwise.
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Did the Board's Order Violate Riley's Rights Under the First Amendment to the
United States Constitution?
Riley argues that the Board's Final Order violated the freedom of speech clause of
the First Amendment to the United States Constitution. His concern is "that the Board
had zero tolerance for [the phrase 'pain free'], even though the phrase is not false,
deceptive or misleading, the phrase is not specifically prohibited by a provision of law,
and based upon that intolerance punished [him] for engaging in protected commercial
speech."
Riley argues his advertisements were not misleading for two reasons: (1) because
no evidence showed that the advertisements misled anyone; and (2) a reasonable patient
would not think the advertisements, when read in context, guaranteed a pain free result.
In other words, he argues his advertisements were not actually misleading or inherently
misleading, but only potentially misleading. And citing In re R.M.J., 455 U.S. 191, 203,
102 S. Ct. 929, 71 L. Ed. 2d 64 (1982), he argues that the Board has failed to apply the
governing legal test for protected commercial speech set forth in Central Hudson Gas &
Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557, 561, 100 S. Ct.
2343, 65 L. Ed. 2d 341 (1980). Thus, he concludes the Board acted unconstitutionally.
Riley challenges only the constitutionality of the Board's decision about the term
"pain free." He does not challenge the constitutionality of the Board's order that he
violated K.S.A. 65-2836(b) by failing to disclose material facts in his June 2018 Kansas
City Star advertisement. And we have decided above that the Board did not err in so
finding. "Appellate courts generally avoid making unnecessary constitutional decisions.
Thus, where there is a valid alternative ground for relief, an appellate court need not
reach constitutional challenges to statutes." Wilson v. Sebelius, 276 Kan. 87, 91, 72 P.3d
553 (2003). We find it unnecessary to address Riley's constitutional challenge, as we
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could uphold the Board's decision based solely on Riley's omissions, rather than on the
misrepresentations that Riley contends are protected speech.
Alternatively, Riley fails to show that his advertisements are commercial speech
protected by the First Amendment. The First Amendment does not extend to commercial
speech that is fraudulent, deceptive, or misleading. See Edenfield v. Fane, 507 U.S. 761,
768, 113 S. Ct. 1792, 123 L. Ed. 2d 543 (1993); State ex rel. State Bd. of Healing Arts v.
Thomas, 33 Kan. App. 2d 73, 85, 97 P.3d 512 (2004). Because we have affirmed the
Board's findings that Riley's advertisements are materially false or misleading, Riley
cannot make the necessary predicate showing for his First Amendment claim.
Affirmed.
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