Judges： JAMES ROBERT JOHNSON
Filed Date： 7/1/1994
Status： Precedential
Modified Date： 7/6/2016
ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR RECENT REQUEST FOR AN ATTORNEY GENERAL OPINION IN WHICH YOU ASKED, IN EFFECT:
WHAT IS THE AUTHORITY OF THE BOARD OF CHIROPRACTIC EXAMINERS IN REGARD TO THE REQUIREMENT OF 59 O.S. 161.18(D)(6) (1991), THAT CHIROPRACTIC PHYSICIANS SHALL BE LISTED IN ALL DIRECTORIES AS PHYSICIANS, CHIROPRACTIC?
BECAUSE THIS QUESTION MAY BE RESOLVED BY A REVIEW OF THE APPLICABLE STATUTE, THIS OFFICE HA DETERMINED THAT YOUR QUESTION SHOULD BE ANSWERED BY THIS INFORMAL LETTER. THE DISCUSSION WHICH FOLLOW IS NOT AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. RATHER, THE ANALYSIS AND CONCLUSIONS WHICH FOLLOW, WHILE SOLELY MY OWN, HAVE BEEN REACHED AFTER CAREFUL RESEARCH OF THE QUESTION YOU HAVE A ASKED.
TITLE 59 O.S. 161.18(D)(6) (1991), SETS FORTH THE OKLAHOMA CHIROPRACTIC CODE OF ETHICS. SUBSECTION (D)(6) THEREIN PROVIDES LIMITATIONS ON THE ABILITY OF CHIROPRACTIC PHYSICIANS TO LIST IN TELEPHONE DIRECTORIES:
"CHIROPRACTIC PHYSICIANS SHALL BE LISTED IN ALL DIRECTORIES AS PHYSICIANS, CHIROPRACTIC. IN ADDITION, CHIROPRACTIC PHYSICIANS, AT THEIR DISCRETION, MAY BE LISTED AS CHIROPRACTOR OR DOCTOR OF CHIROPRACTIC."
YOUR LETTER REFERS TO THE ABILITY OF THE BOARD OF CHIROPRACTIC EXAMINERS ("BOARD") TO ENFORCE THIS PROVISION. THE PRIMARY RULE OF STATUTORY CONSTRUCTION IS TO DETERMINE THE LEGISLATIVE INTENT OF A STATUTE IN LIGHT OF ITS GENERAL PURPOSE AND OBJECT. TXO PRODUCTION CORP. V. OKLAHOMA CORPORATION COMMISSION, 829 P.2D 964 (OKLA.1992). IN THIS CASE, THE CODE OF ETHIC CLEARLY REQUIRES THAT CHIROPRACTIC PHYSICIANS BE LISTED IN DIRECTORIES, IF AT ALL, PRIMARILY UNDER THE HEADING PHYSICIANS, CHIROPRACTIC. IN THE ENFORCEMENT OF THIS PROVISION, A REVIEW OF THE CHIROPRACTIC PRACTICE ACT, 59 O.S. 161.1 ET SEQ. (THE ACT), GRANT THE BOARD AUTHORITY TO REGULATE THE PRACTICE OF CHIROPRACTIC IN THIS STATE, WHICH INCLUDES DIRECTOR ADVERTISEMENTS. SECTION 59 O.S. 161.12 OF THE ACT PROVIDES THE BOARD WITH IT AUTHORITY TO EXACT PENALTIES FOR VIOLATIONS OF THE ACT. THAT SECTION PROVIDES IN PART:
"THE BOARD OF CHIROPRACTIC EXAMINERS IS AUTHORIZED, AFTER NOTICE AND OPPORTUNITY FOR A HEARING, PURSUANT TO ARTICLE II OF THE ADMINISTRATIVE PROCEDURES ACT, TO ISSUE AN ORDER IMPOSING THE FOLLOWING PENALTIES WHENEVER IT FINDS ANY CHIROPRACTIC PHYSICIAN GUILTY OF ANY OF THE ACT ET FORTH IN SUBSECTION B OF THIS SECTION (WHICH INCLUDES THE CHIROPRACTIC CODE OF ETHIC.)"
(EMPHASIS ADDED.)
THIS SECTION GRANTS AUTHORITY TO THE BOARD TO TAKE ADMINISTRATIVE ACTION AGAINST CHIROPRACTIC PHYSICIANS ONLY. THERE IS NO PROVISION IN THE ACT TO ALLOW THE BOARD, OR OTHER STATE AGENCY, TO TAKE ACTION AGAINST THE PUBLISHER OF A DIRECTORY FOR AN IMPROPERLY PLACED ADVERTISEMENT. THUS, THE ACT PROVIDE FOR ENFORCEMENT AGAINST CHIROPRACTIC PHYSICIAN ONLY.
A PLAIN READING OF 59 O.S. 161.18(D)(6) DOES NOT LIMIT A CHIROPRACTIC PHYSICIAN TO ADVERTISE ONLY UNDER THE HEADING PHYSICIANS, CHIROPRACTIC." INDEED, THAT SUBSECTION SPECIFICALLY PROVIDES THAT A CHIROPRACTOR MAY ADVERTISE ADDITIONALLY AS A CHIROPRACTOR OR DOCTOR OF CHIROPRACTIC, AT THE DISCRETION OF THE CHIROPRACTIC PHYSICIAN. THE ACT PROVIDES OTHER HEADINGS UNDER WHICH CHIROPRACTORS MAY BE LISTED. THE MANDATE THAT A CERTAIN HEADING MUST BE USED FIRST, IF AT ALL, AND THAT OTHER HEADINGS AY ALSO BE USED THEREBY LIMITS THE HEADINGS FROM WHICH A CHIROPRACTOR MAY CHOOSE. THEREFORE, IT IS IMPROPER FOR A CHIROPRACTIC PHYSICIAN TO LIST SOLELY UNDER THE HEADING DOCTOR OF CHIROPRACTIC OR CHIROPRACTOR. IF ONLY ONE LISTING IS USED, IT MUST BE UNDER PHYSICIANS, CHIROPRACTIC.
IN SUMMARY, 59 O.S. 161.18(D)(6) SETS FORTH THE PERMISSIBLE HEADINGS UNDER WHICH A CHIROPRACTIC PHYSICIAN MAY ADVERTISE IN THIS STATE. THE BOARD'S AUTHORITY FOR VIOLATION OF THIS PROVISION IS LIMITED TO CHIROPRACTIC PHYSICIANS, NOT THE PUBLISHERS OF DIRECTORIES.
THERE IS NO EVIDENCE INTENT IN 59 O.S. 161.18 OR ELSEWHERE AN THE ACT FOR THE BOARD TO TAKE ACTION AGAINST SUCH PUBLISHERS FOR VIOLATIONS. WITHOUT AN EXPRESSED INTENT, NO ACTION CAN BE TAKEN.
IT IS, THEREFORE, THE OPINION OF THE UNDERSIGNED ATTORNEY THAT THE AUTHORITY OF THE BOARD OF CHIROPRACTIC EXAMINERS IN REGARD TO THE REQUIREMENT OF 59 O.S. 161.18(D)(6) (1991), THAT CHIROPRACTIC PHYSICIAN SHALL BE LISTED IN ALL DIRECTORIES AS PHYSICIANS, CHIROPRACTIC, IS LIMITED TO ENFORCEMENT FOR VIOLATIONS OF THE PROVISION AGAINST CHIROPRACTIC PHYSICIANS LICENSED BY THE BOARD.
(JAMES ROBERT JOHNSON)