ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

CA02-1074

September 24, 2003

ANTHONY NESTERENKO, D.C. AN APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

V. NO. CV2000-3564

ARKANSAS BOARD OF HONORABLE JOHN PLEGGE,

CHIROPRACTIC EXAMINERS CIRCUIT JUDGE

APPELLEE

AFFIRMED

Andree Layton Roaf, Judge

This is the second time that this administrative appeal has been before this court. In Nesterenko v. Arkansas Board of Chiropractic Examiners, 76 Ark. App. 561, 69 S.W.3d 459 (2002), we remanded the case to the appellee Board of Chiropractic Examiners (Board) for additional fact findings in order for the Board to explain how a newspaper advertisement placed by appellant Dr. Anthony Nesterenko violated the Board's regulations prohibiting misleading advertisements. The Board issued supplemental findings explaining the basis for its decision. The circuit court found that the Board complied with this court's directions and that there was no new evidence or arguments presented before the Board. The court therefore affirmed the Board's decision, and this appeal followed. Appellant argues only one point on appeal: that the Board's decision is not supported by substantial evidence and is arbitrary, capricious, and an abuse of discretion. We affirm.

The Board received a complaint from another chiropractor, Dr. George Gray, Jr., alleging that an advertisement appellant had published in the Arkansas Democrat-Gazette was misleading. The advertisement's third paragraph stated:

Based on Dr. Gray's complaint, the Board issued an Order and Notice of Hearing, charging appellant with violations of Regulation D(1), which states that "[a]dvertising by doctors of chiropractic should conform to professional standards, shall be truthful, not misleading, fraudulent or dishonest," and C(2)(c), which states that:

At the hearing before the Board, there were only two witnesses, Dr. Gray and appellant. Dr. Gray testified that he had been a practicing chiropractor for forty-one years; that he wrote the letter to the Board after he had seen appellant's ad once or twice; and that he believed the ad to be misleading but not fraudulent. He testified that he thought the ad was misleading because it intimated that Specific Chiropractors were the only ones who could relieve neuro pressure. He testified that this was misleading to him because he thought relieving nerve pressure was what he and other chiropractors did. Dr. Gray further testified that, as a chiropractic physician, he also understands the role that the nervous system plays in the overall health of people and that he attempts to restore normal function to the nervous system to allow the body to achieve its fullest health potential. He stated that he thought some people might perceive the ad as stating that appellant was one of only two chiropractors who are capable of doing competent upper cervical work compared with other chiropractors. He also testified that he did not think it probable that someone could have been physically harmed by the ad. He testified that, as a practicing chiropractor for forty-one years, he believed that chiropractic was specific as opposed to, for example, osteopathy, which may be more general. Dr. Gray did not offer an opinion whether the capitalization of the "S" in specific and "C" in chiropractor was misleading compared with the ad saying "I am a specific chiropractor."

Dr. Gray further testified that he thought he could treat any condition of the nervous system as well as any other chiropractor in the state. He testified that he made the complaint because the ad was misleading to him and that he probably was not that different from anyone else. He stated that his idea was to leave it to the Board to decide if the ad was misleading. He stated that a couple of his patients had mentioned the article to him but that he doubted that they would pay much attention to it. He testified that a patient asked what a Specific Chiropractor was, and he replied that the specific chiropractor has something different that he and other chiropractors do not have but admitted that he did not know what a Specific Chiropractor does.

Appellant testified that he was licensed as a chiropractor in December 1993, that he did an internship with other chiropractors before graduation, that he passed the Board exam in January 1994, and that he maintained a practice in Little Rock. Appellant testified that he went to the Kale Research Center to attend seminars for Specific Chiropractic. Appellant testified that he is certified in Specific Chiropractic and that he put "Specific Chiropractor" in his ad to differentiate him from other chiropractors and not to be misleading or fraudulent but only to show what was unique about what he did because it is acceptable for other chiropractors to list their techniques in the yellow pages. Appellant testified that, in 1996, he received a complaint from the attorney general's office about having "Kale Certified" in his ads. He testified that, in 1998 or 1999, he received another complaint.

Appellant testified that he wanted his advertising to be unique so he used the term "Specific Chiropractor." He testified that Specific Chiropractors and other chiropractors understand the role the nervous system plays in the overall health of people. He stated that he did not believe that it was unique to Specific Chiropractors to attempt to restore normal function to the nervous system to allow the body to achieve its fullest health potential and that he believed that chiropractors not certified in Specific Chiropractic might be able to understand that.

Appellant also admitted that he realized that the use of the word "we" in his ad could be misinterpreted to imply that only Specific Chiropractors understand those types of things. He admitted that he was advised of the Board's position in 1996 that the ad implies that only Specific Chiropractors are competent to treat fibromyalgia and that other licensed chiropractors are not qualified to treat this condition. Appellant testified that "Specific Chiropractic" is the name of the technique he was taught and that, whenever he is asked if he is better than other chiropractors, he says no. He stated that he did not know if the term "Specific Chiropractic" indicated a speciality and that it is just the name of a technique and other chiropractors list their techniques in their advertisements. Appellant stated that he placed the ad because, when he was in chiropractic school, he was taught to put something in the ad to show that he was unique or different.

Appellant stated that he would consider retracting his ad or explaining what a Specific Chiropractor does. Appellant further testified that he did not believe he hurt the public or anyone with his advertisement. He said that he changed the representation in the ad that he was one of only two Specific Chiropractors after he learned that there were two other specific upper cervical doctors in Searcy, Arkansas. Appellant also testified that he spoke with Dr. Sam Haley about the ad and was told that using the term "specific" was the problem because it implies that appellant is certified by a speciality board.

At the conclusion of the hearing, the Board issued an order finding that appellant published an ad that discussed fibromyalgia and contained the quoted portion above; that appellant's action in publishing the ad violated regulation D(1); that the violation of regulation D(1) was itself a violation of regulation C(2)(c); and that the violation of the two regulations constituted grounds for the Board to levy a fine of not more than $5,000 for each violation, to place appellant on probation, or to suspend or revoke his license to practice chiropractic, or any combination thereof. Based on these findings, the Board fined appellant $2,500 for each violation, for a total of $5,000, and placed appellant on probation for one year. At the hearing on remand, the Board supplemented these findings with an additional finding:

Appellant then appealed the Board's decision to the Pulaski County Circuit Court. The circuit court heard arguments concerning whether the Board's Supplemented Findings complied with this court's instructions on remand. The trial court found that the Board had cured the defects identified and affirmed the Board. This appeal followed.

Our review is directed not toward the circuit court but toward the decision of the agency. Arkansas State Police Comm'n v. Smith, 338 Ark. 354, 994 S.W.2d 456 (1999). That is so because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze legal issues affecting their agencies. McQuay v. Arkansas State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999); Social Work Licensing Bd. v. Moncebaiz, 332 Ark. 67, 962 S.W.2d 797 (1998). Our review of administrative decisions is limited in scope. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. McQuay, supra; Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).

Appellant's only argument on appeal is that the Board's decision is not supported by substantial evidence. Substantial evidence is defined as:

[V]alid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture. The challenging party has the burden of proving an absence of substantial evidence. To establish an absence of substantial evidence to support the decision the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. The question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence.

Smith, 338 Ark. at 362, 994 S.W.2d at 461 (citations omitted). The cases cited by appellant, Ibanez v. Florida Department of Business & Professional Regulation, 512 U.S. 136 (1994), and Peel v. Attorney Registration & Discipline Commission of Illinois, 496 U.S. 91(1990), together with other First Amendment advertising cases such as Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985); In re R.M.J., 455 U.S. 191 (1982); and Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), hold that a state cannot discipline a professional for advertising his profession unless there is evidence that the speech in question was misleading in fact or that the speech actually harmed members of the public. The Arkansas Supreme Court employed the Central Hudson Gas test to strike down part of the Chiropractic Board's regulations in another disciplinary proceeding. Culpepper v. Arkansas State Bd. of Chiropractic Exam'rs, 343 Ark. 467, 36 S.W.3d 335 (2001). Culpepper involved a chiropractor charged with violating a regulation against in-person solicitation of potential patients. The defense was that the regulations violated the First Amendment to the United States Constitution. In the present case, appellant states that he is not making any First Amendment claims.

Appellant argues that there was no evidence presented that anyone was actually misled by the ad. Here, Dr. Gray testified that he believed that the ad was misleading because it implied that only Specific Chiropractors could relieve neuro pressure, although he believed that he could perform the same services as contained in appellant's ad. Appellant does not explain why Dr. Gray's testimony is not evidence of the ad actually misleading someone. Appellant testified that he used the term "Specific Chiropractor" to differentiate himself from other chiropractors. Further, appellant himself testified that he realized that the use of the term "we" in his ad could be misinterpreted to imply that only practitioners of the Specific Chiropractic technique understand how to relieve neuro pressure. This constitutes substantial evidence to support the Board's decision. The supreme court has held that once substantial evidence is found to support the agency's decision, it automatically follows that a decision cannot be classified as unreasonable or arbitrary. Arkansas Contractors Licensing Bd. v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001); Smith, supra; Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).