Farris Odeh Has Chiropractic License Suspended

Stephen Barrett, M.D.


Hawaii's Board of Chiropractic Examiners has fined Farris Odeh, D.C., $1,000 and suspended his chiropractic license for three years for (a) practicing without a valid license and (b) engaging in misleading advertising. The suspension documents (shown below) state:

Chirobase has additional information about Odeh's background and activities.


BOARD OF CHIROPRACTIC EXAMINERS
OFFICE OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS
STATE OF HAWAII

In the Matter of the Chiropractic License of
FARRIS  I. ODEH, D.C.,

Respondent.


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CHI-2002-5-L
CHI-2003-1-L

BOARD'S FINAL ORDER
Jan 26, 2006

BOARD'S FINAL ORDER

On July 20, 2005, the duly appointed Hearings Officer submitted his Findings of Fact, Conclusions of Law, and Recommended Order in the above-captioned matter to the Board of Chiropractic Examiners, Department of Commerce and Consumer Affairs ("Board"). Copies of the Hearings Officer's recommended order were also transmitted to the parties. The parties were subsequently provided an opportunity to file exceptions. No exceptions were filed.

Upon review of the record of this proceeding, the Board adopts the Findings of Fact and Conclusions of Law set forth in the Hearings Officer's Findings Of Fact, Conclusions Of Law, And Recommended Order, dated July 20, 2005, and finds and concludes that Respondent Farris I. Odeh violated Hawaii Revised Statutes ("HAR") §§ 442-2, 442­9(a)(6), 449-9(a)(12), and 442-9(d), and Hawaii Administrative Rules §§ 16-76-57(b)(2), (3), (4), and (5). The charge based on HAR § 16-76-56(b)(27) is dismissed.

The Board has considered the recommended sanction of suspension and the seriousness, deceptive nature, and number of violations and concludes that the more severe sanction of license revocation is warranted.

IT IS THEREFORE ORDERED that Respondent Farris I. Odeh's chiropractic license is REVOKED, and that Respondent immediately submit all indicia of licensure as a chiropractor in the State of Hawaii to the Executive Officer of the Board. The Board further orders that Respondent pay a fine in the sum of One Thousand Dollars ($1,000.00) and that Respondent pay said fine within sixty (60) days of the date of this Board's Final Order. In addition to other requirements, proof of payment of said fine in full shall be required as part of any future application for a new license.

DATED: Honolulu, Hawaii, January 26, 2006.

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NICHOLAS G. OPIE, D.C
Chairperson

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FLORENTINA J. JOHNASEN, D.C
Board Member

__________________________________
JAMES H. HATTAWAY, D.C
Board Member

__________________________________
NARIOSHI HIRAOKA, D.C
Board Member


BOARD OF CHIROPRACTIC EXAMINERS
OFFICE OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS
STATE OF HAWAII

In the Matter of the Chiropractic License of
FARRIS  I. ODEH, D.C.,

Respondent.

 

 


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CHI-2002-5-L
CHI-2003-1-L

HEARINGS OFFICER'S
FINDINGS OF FACT,
CONCLUSIONS OF LAW,
AND RECOMMENDED
ORDER

JUL 20, 2005

HEARINGS OFFICER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDED ORDER

1. INTRODUCTION

On December 23, 2004, the Department of Commerce and Consumer Affairs, through its Regulated Industries Complaints Office ("Petitioner"), filed a petition for disciplinary action against the chiropractic license of Farris I. Odeh, D.C. ("Respondent"). The matter was duly set for hearing, and the notice of hearing and pre-hearing conference was transmitted to Petitioner and Respondent.

On May 17, 2005, the hearing in the above-captioned matter was convened by the undersigned Hearings Officer pursuant to Hawaii Revised Statutes ("HRS") Chapters 91 and 442. Petitioner was represented by its attorney, John T. Hassler, Esq. Respondent failed to appear either in person or through representation.

Having reviewed and considered the evidence and arguments presented at the hearing, together with the entire record of this proceeding, the Hearings Officer hereby renders the following findings of fact, conclusions oflaw and recommended order.

II. FINDINGS OF FACT

l. Respondent was originally licensed by the Board of Chiropractic Examiners ("Board") as a doctor of chiropractic, License No. DC 740, on October 28, 1996. Respondent's license is set to expire on December 31, 2005.

COUNT I

2. Respondent did not renew his license prior to the December 31, 2001 renewal deadline.

3. As a result, Respondent's license was forfeited between January 1, 2002 and July 27, 2002. Notwithstanding the forfeiture of his license, Respondent continued to practice chiropractic between January and July 2002.

4. Respondent restored his license on July 27, 2002.

COUNT II

5. In August 2002, Respondent caused to be published in The Maui Bulletin, an advertisement entitled, "The Best Doctor on Maui Official Voting Ballot."

6. The advertisement ran in the August 23, 2002 volume of The Maui Bulletin.

7. The advertisement listed 29 physicians, chiropractors, osteopathic doctors, and other health care providers, including Respondent, and encouraged readers to vote for the best doctor.

8. The advertisement stated in part:

These Doctors have been selected by their Patients and the Community for being honest, talented and accomplished Doctors with thriving practices, essential to the health and wellness of the people of Maui ....

9. Contrary to the representation in the advertisement, the providers named in the advertisement had been selected by Respondent from the Yellow Pages of the telephone directory. Respondent also selected the text for the advertisement.

10. Respondent did not obtain permission from the other providers for the use of their names in the advertisement or otherwise inform those providers of the advertisement.

11. Respondent's staff routinely encouraged Respondent's patients to complete and submit a ballot before leaving Respondent's office.

12. The advertisement instructed readers to mail their completed ballots to "Best Doctors Search, 415 Dairy Road, Suite #E, PMB 528 in Kahului, Maui." The address was the address for Mailbox, Etc., a private mailbox rental service in Kahului.

13. Respondent personally checked the mailbox and maintained sole possession of the ballots that were returned.

14. In September 2002, Respondent ran another advertisement in The Maui Bulletin. The advertisement stated in part:

The Votes Are In!

Recently the people of Maui were asked to cast their vote for the Best Doctor on Maui. After weeks of collecting ballots, the results are in.

AND THE WINNER IS ...

Dr. Farris Odeh
Aloha Family Chiropractic
& Wellness Centers

Dr. Odeh was selected by the Maui Community after an
island-wide search, for being an honest, talented, and
accomplished Doctor with a thriving practice, essential to
the Community of Maui.

* * * *

COUNT III

15. In subsequent advertisements, Respondent claimed to have been voted "Best Doctor."

16. Those advertisements included a banner displayed at the 2002 Maui County Fair stating that Respondent was "Voted Best Doctor on Maui," and an advertisement in the September 29, 2002 issue of The Maui Times that Respondent was "Voted Best Doctor on Maui 2002."

COUNT IV

17. At the 2002 Maui County Fair, Respondent displayed a placard/banner/advertisement that advertised his chiropractic practice and "Guaranteed Results or Your $$$ Back!"

COUNT V

18. In the fall of 2003, Respondent advertised his chiropractic practice on KONI, a radio station in Maui, in the form of a weekly program called Healthy Living Hawaii.

19. During the program, Respondent claimed that he was able to cure diabetes and endometriosis:

Diabetes. Its very tough. Could take two years, three years to cure. Headache could take a day or two, could take a month. Endometriosis, difficulty getting pregnant could take three, four, five months.

III. CONCLUSIONS OF LAW

Petitioner has charged Respondent with violating the following sections of the HRS and the Hawaii Administrative Rules ("HAR"):

§442-2 License to practice. (a) It shall be unlawful for any person to practice chiropractic without a license.

§442-9 License refusal, revocations, suspension, fine, limitation, restriction, probation, reissuance. (a) In addition to any other actions authorized by law, the board shall refuse to issue or may order any license issued under this chapter to be revoked, suspended, limited, restricted, or placed under probation at any time in a proceeding before the board or fine a licensee for any cause authorized by law, including but not limited to the following:

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(6) False, fraudulent, or deceptive advertising;

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(12) Professional misconduct or gross carelessness or manifest incapability in the practice of chiropractic;

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(d) Any person who violates this chapter or the rules adopted pursuant thereto shall be fined not more than $1,000.

§16-76-56 Professional misconduct. (a) The board shall take action against any holder of a license who is guilty of professional misconduct which has been brought to the board's attention, or whose license has been procured by
fraud or misrepresentation or issued by mistake.

(b) Professional misconduct includes, but is not limited to, the following:

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(27) Conduct of a character likely to deceive or defraud the public;

§ 16-76-57 Advertising practice. (a) This section pertains to all forms of advertising, including but not limited to radio, television, newspaper, magazines, telephone directories, window displays, outdoor signs, circulars, cards, or any other media which are used to communicate information to the general public.

(b) Advertising material shall not contain false, fraudulent, misleading, or deceptive statements or claims. A false, fraudulent, misleading, or deceptive statement or claim includes, but shall not be limited to, a statement or claim which:

* * * *

(2) Is likely to mislead or deceive because in context it constitutes only a partial disclosure of relevant facts;

(3) Is intended or is likely to create false or unjustified expectations of favorable results;

(4) Contains other representations or implications that in reasonable probability will cause an ordinary, prudent person to misunderstand or be deceived;

(5) Contains the terms "cure" or "guarantee" for any service, procedure, or device provided;

* * * *

The evidence presented was sufficient to prove that Respondent engaged in the practice of chiropractic between January and July 2002 without a valid license in violation of HRS §§442-2 and 442-9(d). The evidence also established that Respondent used the terms, "cure" and "guaranteed" in various advertisements in 2002 and 2003, in violation of HAR §§16-76-57(b)(3) and (5).

Petitioner has also charged that Respondent violated the applicable licensing laws when he promoted the "Best Doctor on Maui" contest in The Maui Bulletin and claimed to be the winner of the contest in subsequent advertisements. While a licensee is generally free to creatively market his business, he is not permitted to engage in deceptively misleading advertising statements or claims.

Clearly, Respondent's objective in running the advertisements was to advertise his practice by enhancing his reputation in the community. Respondent's advertisements, however, were not limited to a claim of being the "best doctor on Maui."1 Rather, Respondent went to great pains to create the impression among the publication's readers that the contest was an objective one and that Respondent had been selected by members of the community based upon the specific criteria provided in the ballot form. Toward that end, the advertisements intentionally omitted any reference to Respondent as the originator of the contest or any indication that the contest was intended as an advertisement. The fact that Respondent included the names of a number of other providers in the advertisement also added to the appearance that the contest was designed to be an objective one. According to the evidence, however, Respondent deliberately ran the advertisement for only one day, never informed the other "contestants" of the contest and maintained sole possession of any ballots that were returned.2 These considerations lead the Hearings Officer to conclude that the advertisements were likely to deceive or mislead the consumer in violation of HRS § §442­9(a)(6) and (12), as well as HAR §§16-76-57(b)(2), (4) and (5). HAR §16-76-56(b)(27) is definitional in nature and cannot be the basis for a separate charge.

1Because reliance on such a statement by a reasonable consumer is unjustifiable, the statement constitutes mere puffery.

2The voting results are suspect for the additional reason that Respondent could not or would not produce the ballots upon request by Petitioner.

IV. RECOMMENDED ORDER

Based on the foregoing findings and conclusions, the Hearings Officer recommends that the Board find and conclude that Respondent violated HRS §§442-2, 442­9(a)(6), 442-9(a)(12) and 442-9(d), together with HAR §§16-76-57(b)(2), (3), (4), and (5), and dismiss the charge based on HAR 16-76-56(b)(27).

For the violations found, the Hearings Officer recommends that Respondent's chiropractic license be suspended for a period of three (3) years and that Respondent be required to immediately submit all indicia of licensure as a chiropractor in the State of Hawaii to the Executive Officer of the Board. The Hearings Officer further recommends that Respondent be ordered to pay a fine in the sum of $I,000.00 and that Respondent pay said fine within sixty (60) days of the Board's Final Order; and that in any event, full payment of the fine be made a condition for reinstatement of Respondent's license.

DATED at Honolulu, Hawaii; JUL 20 2005

_______________________
CRAIG H. UVEHARA

Administrative Hearings Officer
Department of Commerce
   and Consumer Affairs


This page was posted on January 2, 2007.

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