Federal Case Law striking DOWN Florida's Fraud Statute on Doctor title.

[Guest guest]

Mike

 

This issue at root IS all about " commercial free speech " regarding the US

Constitutional which takes precedent over a state's police powers especially

when it comes to commerce which in this case was considered federal domain due

to one's CONSTITUTIONAL RIGHTS as a US Citizen first and foremost.

 

The several state's police powers and their state administrative agencies

such as their Department(s) of Health and their sub-boards such as the Board(s)

of Acupuncture do have a certain domain of police powers but which isseverly

LIMITED to a NARROWLY TAILORED INTEREST in protecting the public.... which

can NOT prohibit a commercial business (including professionals) from " free

speech in commerce " as long as that speech is not misleading or intended to

mislead and the business is operating within the scope of practice.

 

You relate that you have some sort of legal exposure.....so you must be

capable of accessing, reading and understanding case law. So why don;t you all

access this information and review the Federal court case which took place in

Florida in 1996. A simple search on FIndLaw, Westlaw or LexusOne should give

you access. Or do it the old fashioned way and go to a law library and pull

the hard copy that way you will get to read the headnotes.

 

Without offering or suggesting any legal advice.....and instead of

interpreting oneself since not being legal minded or trained in the law.....one

might

take this to a Constitutional Lawyer and pay them for their evaluation!!!!

 

Please resist on any further bickering as federal case law is crystal

clear...... further proven by what just two of us accomplished here in Florida

as

seen by the adopted promulgated Administrative Code Rule effective September

27th, 2006........ some 10 years after the fraud statute was STRUCK DOWN. For

those ten years we were all told these " urban legend tall tales " about

prohibition on the use of doctor titles.

 

Federal District Court Judge James Lawrence King's final words in cited

case and I quote from copies of the actual case file in my hands after

personally ordering the whole box of documents sent to me in Florida from the

store

house in Atlanta, Georgia:

" Accordingly, after a careful review of the record, and the Court being

otherwise fully advised, it is

ORDERED and ADJUDGED that Plaintiff's (Dr. Bart Strang III) for Summary

Judgment be, and the same

is hereby, GRANTED.

It is FURTHER ORDERED and ADJUDGED that Florida Statute Sect. 817.567

be, and the same is

hereby DECLARED unconstitutional and violative of the First Amendment of

the United States

Constitution.

It is FURTHER ORDERED and ADJUDGED that Defendant Michael B. Satz as

State Attorney for

Broward County, Florida be, and the same is hereby, PERMANENTLY ENJOINED

from enforcing

the provisions of Fla. Stat. Sect. 817.567 against Plaintiff Samuel

Bartow Strang III. The Court

shall retain jurisdiction to hear motions for fees and costs pursuant to

42 U.S.C. Sect. 1988.

DONE and ORDERED

S.D. Fla. 1995

Strang v. Satz

884 F. Supp. 504, 100 Ed. Law Rep. 182, 23 Media L.

Rep. 2333 "

 

 

Validity Decision as published in Florida's Annotated Statutes regarding

Florida's fraud statute Chapter 817.567, Florida Statute which prohibited

people from claiming to hold academic degrees or titles unless such degrees or

titles were conferred by accredited institutions, violated First Amendment of

the U.S. Constitution in that it was not narrowly tailored to achieve

substantial government interest; state could have merely required those holding

degrees from unaccredited institutions to disclose the fact that the

institutions

were unaccredited. See Strang v. Satz, S.D. Fla. 1995, F. Supp. 504. Strang

v. Satz, Case No.94-6686-CIV-KING , In the United States District Court,

Southern District of Florida, 1996.

Comments: The Florida Attorney General did not appeal the ruling.

 

 

Being exposed to legal work as you state, you know or should know that laws

are only settled when challenged. Just because other state's laws possibly

contain certain unconstitutional prohibitive sections within those laws or

practice acts that may be violative of the First Amendment of the US

Constitution

does not mean they are lawful. Legal until challenged...... but not

necessarily lawful.....if you understand the difference. In Florida such an

issue

went to a federal Court and they ruled that Florida's Fraud Statute was

VIOLATIVE of the First Amendment of the United States Constitution. Therefore -

when

push came to shove so-to-speak the Florida Board of Acupuncture had no choice

but to promulgate a rule as it did which has been posted if memory serves

right in this arena...namely:

 

64B1-9.007 Advertising.

(1) Advertising by persons licensed or certified under Chapter 457, F.S., is

permitted so long as the

information disseminated is in no way false, deceptive, or misleading and so

long as the information does not claim that acupuncture is useful in curing

any disease. Any advertisement or advertising shall be deemed false,

deceptive, or misleading if it:

(a) Contains a misrepresentation of facts; or

(b) Makes only a partial disclosure of relevant facts; or

© Creates false or unjustified expectations of beneficial assistance; or

(d) Contains any representations or claims, as to which the person making

the claims does not intend to perform; or

(e) Contains any other representation, statement, or claim which misleads or

deceives; or

(f) Fails to conspicuously identify the licensee by name in the

advertisement.

(2) As used in the rules of this board, the terms “advertisement†and “

advertising†shall mean any

statements, oral or written, disseminated to or before the public or any

portion thereof, with the intent of furthering the purpose, either directly or

indirectly, of selling professional services, or offering to perform

professional services, or inducing members of the public to enter into any

obligation

relating to such professional services.

(3) It shall not be considered false, deceptive, or misleading for any

persons licensed or certified under Chapter 457, F.S., to use the following

initials or terms:

(a) L.Ac.;

(b) R.Ac.;

© A.P.;

(d) D.O.M.;

(e) Licensed Acupuncturist;

(f) Registered Acupuncturist;

(g) Acupuncture Physician; and

(h) Doctor of Oriental Medicine.

(4) Any licensee who advertises through an agent or through a referral

service shall be held responsible for the content of such advertising and shall

ensure that the advertising complies with this rule and Chapter 457, F.S.

Specific Authority 456.072, 457.104, 457.109 FS. Law Implemented

456.072(1)(a), (m), 457.109(1)(d), (e), (k) FS. History–New 9-27-06.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In a message dated 08/13/07 7:17:26 P.M. Eastern Daylight Time,

naturaldoc1 writes:

 

Richard,

 

I know that you worked with a FL acu assoc and I also know that you had a

tough

time with them. I am not sure why you are so hung up with the concept of

free speech and that it does not apply to our board designation or regulation

of our profession. You have the right to think and say things, yes you are

correct

but when it comes to acupuncture you do not have the right to call yourself

anything

nor do you have the right to do what you please and create your own scope of

practice.

Any attorney will tell you that. I would certainly take a look at some

supposed case if

you ever plan to post it. It might be interesting to read. Mike W. Bowser,

L Ac

 

 

 

 

 

 

************************************** Get a sneak peek of the all-new AOL at

http://discover.aol.com/memed/aolcom30tour

 

 

 

[Guest guest]

Richard,

Nice try but your case law is for academic degrees only. If a person beats the

trial maybe he had a good lawyer and it was his first misdemeanor charge.

 

You state, " ...can NOT prohibit a commercial business (including professionals)

from " free speech in commerce " as long as that speech is not misleading or

intended to mislead and the business is operating within the scope of practice. "

It is misleading to claim you have a doctorate degree when in fact you do not.

Whatis so hard to understand about either you do or you do not have one?You seem

to forget that the federal govt grants the states the power to governand set up

standards for its licensing boards, which it then leaves up to the state'sto

regulate. The federal govt does not get involved here and this is not an issue

ofinterstate commerce either. While the case you quote is interesting it bares

little in connection with the issueat hand, which is that you seem to be

claiming that a state's acupuncture statutescannot legally decide who we claim

to be. We are not talking about your state fraud

statute, but rather about a professional statute, which does havejurisdiction

over it's state's acupuncturists.

 

Do you not agree that we must follow our respective acupuncture board on this?

You seem to disagree with this basic premise and yet I can only wonder from your

email what poor example this might set for others.

 

Just so you know, I think we need to change a lot of laws but for now they are

what they are and I intend to follow them. Mike W. Bowser, L Ac

 

 

: acudoc11: Mon,

13 Aug 2007 23:29:48 -0400Re: Federal Case Law striking DOWN

Florida's Fraud Statute on Doctor title.

 

 

 

MikeThis issue at root IS all about " commercial free speech " regarding the US

Constitutional which takes precedent over a state's police powers especially

when it comes to commerce which in this case was considered federal domain due

to one's CONSTITUTIONAL RIGHTS as a US Citizen first and foremost.The several

state's police powers and their state administrative agencies such as their

Department(s) of Health and their sub-boards such as the Board(s) of Acupuncture

do have a certain domain of police powers but which isseverly LIMITED to a

NARROWLY TAILORED INTEREST in protecting the public.... which can NOT prohibit a

commercial business (including professionals) from " free speech in commerce " as

long as that speech is not misleading or intended to mislead and the business is

operating within the scope of practice.You relate that you have some sort of

legal exposure.....so you must be capable of accessing, reading and

understanding case law. So why don;t you all access this information and review

the Federal court case which took place in Florida in 1996. A simple search on

FIndLaw, Westlaw or LexusOne should give you access. Or do it the old fashioned

way and go to a law library and pull the hard copy that way you will get to read

the headnotes. Without offering or suggesting any legal advice.....and instead

of interpreting oneself since not being legal minded or trained in the

law.....one might take this to a Constitutional Lawyer and pay them for their

evaluation!!!! Please resist on any further bickering as federal case law is

crystal clear...... further proven by what just two of us accomplished here in

Florida as seen by the adopted promulgated Administrative Code Rule effective

September 27th, 2006........ some 10 years after the fraud statute was STRUCK

DOWN. For those ten years we were all told these " urban legend tall tales " about

prohibition on the use of doctor titles. Federal District Court Judge James

Lawrence King's final words in cited case and I quote from copies of the actual

case file in my hands after personally ordering the whole box of documents sent

to me in Florida from the store house in Atlanta, Georgia: " Accordingly, after a

careful review of the record, and the Court being otherwise fully advised, it

isORDERED and ADJUDGED that Plaintiff's (Dr. Bart Strang III) for Summary

Judgment be, and the same is hereby, GRANTED.It is FURTHER ORDERED and ADJUDGED

that Florida Statute Sect. 817.567 be, and the same ishereby DECLARED

unconstitutional and violative of the First Amendment of the United

StatesConstitution.It is FURTHER ORDERED and ADJUDGED that Defendant Michael B.

Satz as State Attorney forBroward County, Florida be, and the same is hereby,

PERMANENTLY ENJOINED from enforcingthe provisions of Fla. Stat. Sect. 817.567

against Plaintiff Samuel Bartow Strang III. The Courtshall retain jurisdiction

to hear motions for fees and costs pursuant to 42 U.S.C. Sect. 1988.DONE and

ORDEREDS.D. Fla. 1995Strang v. Satz884 F. Supp. 504, 100 Ed. Law Rep. 182, 23

Media L.Rep. 2333 " Validity Decision as published in Florida's Annotated

Statutes regarding Florida's fraud statute Chapter 817.567, Florida Statute

which prohibited people from claiming to hold academic degrees or titles unless

such degrees or titles were conferred by accredited institutions, violated First

Amendment of the U.S. Constitution in that it was not narrowly tailored to

achieve substantial government interest; state could have merely required those

holding degrees from unaccredited institutions to disclose the fact that the

institutions were unaccredited. See Strang v. Satz, S.D. Fla. 1995, F. Supp.

504. Strang v. Satz, Case No.94-6686-CIV-KING , In the United States District

Court, Southern District of Florida, 1996.Comments: The Florida Attorney General

did not appeal the ruling.Being exposed to legal work as you state, you know or

should know that laws are only settled when challenged. Just because other

state's laws possibly contain certain unconstitutional prohibitive sections

within those laws or practice acts that may be violative of the First Amendment

of the US Constitution does not mean they are lawful. Legal until

challenged...... but not necessarily lawful.....if you understand the

difference. In Florida such an issue went to a federal Court and they ruled that

Florida's Fraud Statute was VIOLATIVE of the First Amendment of the United

States Constitution. Therefore - when push came to shove so-to-speak the Florida

Board of Acupuncture had no choice but to promulgate a rule as it did which has

been posted if memory serves right in this arena...namely:64B1-9.007

Advertising.(1) Advertising by persons licensed or certified under Chapter 457,

F.S., is permitted so long as theinformation disseminated is in no way false,

deceptive, or misleading and so long as the information does not claim that

acupuncture is useful in curing any disease. Any advertisement or advertising

shall be deemed false, deceptive, or misleading if it:(a) Contains a

misrepresentation of facts; or(b) Makes only a partial disclosure of relevant

facts; or© Creates false or unjustified expectations of beneficial assistance;

or(d) Contains any representations or claims, as to which the person making the

claims does not intend to perform; or(e) Contains any other representation,

statement, or claim which misleads or deceives; or(f) Fails to conspicuously

identify the licensee by name in the advertisement.(2) As used in the rules of

this board, the terms “advertisement” and “advertising” shall mean

anystatements, oral or written, disseminated to or before the public or any

portion thereof, with the intent of furthering the purpose, either directly or

indirectly, of selling professional services, or offering to perform

professional services, or inducing members of the public to enter into any

obligation relating to such professional services.(3) It shall not be considered

false, deceptive, or misleading for any persons licensed or certified under

Chapter 457, F.S., to use the following initials or terms:(a) L.Ac.;(b)

R.Ac.;© A.P.;(d) D.O.M.;(e) Licensed Acupuncturist;(f) Registered

Acupuncturist;(g) Acupuncture Physician; and(h) Doctor of Oriental Medicine.(4)

Any licensee who advertises through an agent or through a referral service shall

be held responsible for the content of such advertising and shall ensure that

the advertising complies with this rule and Chapter 457, F.S.Specific Authority

456.072, 457.104, 457.109 FS. Law Implemented 456.072(1)(a), (m), 457.109(1)(d),

(e), (k) FS. History–New 9-27-06.In a message dated 08/13/07 7:17:26 P.M.

Eastern Daylight Time, naturaldoc1 writes:Richard,I know that you

worked with a FL acu assoc and I also know that you had a toughtime with them. I

am not sure why you are so hung up with the concept of free speech and that it

does not apply to our board designation or regulationof our profession. You have

the right to think and say things, yes you are correctbut when it comes to

acupuncture you do not have the right to call yourself anythingnor do you have

the right to do what you please and create your own scope of practice. Any

attorney will tell you that. I would certainly take a look at some supposed case

ifyou ever plan to post it. It might be interesting to read. Mike W. Bowser, L

Ac************************************** Get a sneak peek of the all-new AOL at

http://discover.aol.com/memed/aolcom30tour[Non-text portions of this message

have been removed]

 

 

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