Case: 1:19-cv-02010 Doc #: 1 Filed: 08/30/19 1 of 13. PageID #: 1

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
FIRST CHOICE CHIROPRACTIC, LLC
4520 Cleveland Avenue
Columbus, OH 43231

PAUL W. FLOWERS CO.
50 Public Sq., Ste 1910
Cleveland, Ohio 44113
(216) 344-9393
Fax: (216) 344-9395

)
)
)
)
JAMES FONNER, D.C.
)
4520 Cleveland Avenue
)
Columbus, OH 43231
)
)
PRESTIGE CHIROPRACTIC & INJURY,
)
LLC
)
8 Prestige Plaza, Unit 110
)
Miamisburg, OH 45342
)
)
RENNES BOWERS, D.C.
)
8 Prestige Plaza, Unit 110
)
Miamisburg, OH 45342
)
)
ALLIED HEALTH & CHIROPRACTIC, LLC )
1810 W. 25th Street
)
Cleveland, OH 44113
)
)
TY DAHODWALA, D.C.
)
th
1810 W. 25 Street
)
Cleveland, OH 44113
)
)
and
)
)
SCHROEDER REFERRAL SYSTEMS, INC. )
8183 Erie Avenue S.W.
)
Navarre, OH 44662
)
)
Plaintiffs,
)
)
vs.
)
)
STATE OF OHIO
)
c/o Attorney General Dave Yost
)
th
615 W. Superior Ave., 11 Floor
)
Cleveland, OH 44113
)
)

CASE NO.

JUDGE

COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF

 Case: 1:19-cv-02010 Doc #: 1 Filed: 08/30/19 2 of 13. PageID #: 2

THE OHIO GENERAL ASSEMBLY
c/o Attorney General Dave Yost
615 W. Superior Ave., 11th Floor
Cleveland, OH 44113
and
OHIO STATE CHIROPRACTIC BOARD
c/o Kelly Caudill, Executive Director
77 South High Street, 16th Floor
Columbus, OH 43215
Defendants

)
)
)
)
)
)
)
)
)
)
)
)
)
)

COMPLAINT
Plaintiffs, First Choice Chiropractic, LLC (“First Choice Chiropractic”), James
Fonner, D.C. (“Dr. Fonner”), Prestige Chiropractic & Injury, LLC (“Prestige
Chiropractic”), Rennes Bowers, D.C. (“Dr. Bowers”), Allied Health & Chiropractic,
LLC (“Allied Health & Chiropractic”), Ty Dahodwala, D.C. (“Dr. Dahodwala”), and
Schroeder Referral Systems, Inc. (Schroeder Referral”), state as their Complaint
against Defendants, State of Ohio, the Ohio General Assembly, and the Ohio State
Chiropractic Board as follows:
PARTIES
PAUL W. FLOWERS CO.
50 Public Sq., Ste 1910
Cleveland, Ohio 44113
(216) 344-9393
Fax: (216) 344-9395

1.

Plaintiff First Choice Chiropractic was and is a limited liability company

formed under and existing pursuant to Ohio law, which maintains a principal place of
business in Franklin County, Ohio. Plaintiff First Choice Chiropractic is and has been
in the business of providing chiropractic care and treatment to patients. Plaintiff Dr.
Fonner was and is a chiropractor duly licensed under Ohio law, who is a principal of
First Choice Chiropractic.
2.

Plaintiff Prestige Chiropractic was and is a limited liability company

formed under and existing pursuant to Ohio law, which maintains a principal place of
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business in Montgomery County, Ohio. Plaintiff Prestige Chiropractic is and has been
in the business of providing chiropractic care and treatment to patients. Plaintiff Dr.
Bowers was and is a chiropractor duly licensed under Ohio law, who is a principal of
Prestige Chiropractic.
3.

Plaintiff Allied Health & Chiropractic was and is a limited liability

company formed under and existing pursuant to Ohio law, which maintains a
principal place of business in Cuyahoga County, Ohio.

Plaintiff Allied Health &

Chiropractic is and has been in the business of providing chiropractic care and
treatment to patients. Plaintiff Dr. Dahodwala was and is a chiropractor duly licensed
under Ohio law, who is a principal of Allied Health & Chiropractic.
4.

Plaintiff Schroeder Referral is and has been a corporation formed under

and existing pursuant to Ohio law, which maintains a principal place of business in
Stark County, Ohio. Plaintiff Schroeder Referral is and has been in the business of
identifying and contacting prospective patients for referrals to appropriate health-care
providers.
5.
PAUL W. FLOWERS CO.
50 Public Sq., Ste 1910
Cleveland, Ohio 44113
(216) 344-9393
Fax: (216) 344-9395

Defendant, State of Ohio, has been one of the fifty sovereign United

States since March 1, 1803.
6.

Defendant, The Ohio General Assembly, is the primary legislative branch

of Defendant, State of Ohio. Article II, Section 1, Ohio Constitution.
7.

Defendant,

Ohio

State

Chiropractic

Board,

is

an

agency

and

instrumentality of Defendant State of Ohio that has been created through Chapter
4734 of the Ohio Revised Code.

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JURISDICTION AND VENUE
8.

The 133rd Ohio General Assembly adopted Am. Sub. H.B. 166 on July 17,

2019, which was then signed by Governor Mike DeWine the next day. The enactment
is commonly known as the 2020-2021 Biennial Budget Bill. The overall purpose of
the Biennial Budget Bill is to establish agency budgeting and spending allocations for
Defendant, State of Ohio.
9.

Included in the Biennial Budget Bill were provisions that have no

reasonable and discernable connection to state agency budgeting and spending
allocations.

These potentially controversial measures were buried in the roughly

2,600 page Bill by Defendant Ohio General Assembly to avoid public criticism and
debate.
10.

One example of this subterfuge is the enactment to be codified in R.C.

149.43(A)(1)(mm) to allow telephone numbers to be redacted from official motor
vehicle accident reports without violating Ohio’s Public Records Act. This legislative
modification of the definition of “Public record” has no conceivable bearing upon state
agency budgeting and spending.
PAUL W. FLOWERS CO.
50 Public Sq., Ste 1910
Cleveland, Ohio 44113
(216) 344-9393
Fax: (216) 344-9395

11.

As another example of the Biennial Budget Bill’s discordance, Defendant

Ohio General Assembly has attempted to impose a thirty-day moratorium following
motor vehicle accidents and crimes during which health-care practitioners, and
private referral agencies and workers employed by them, are precluded from directly
contacting victims and witnesses in person, by telephone, or by electronic means.
Other businesses such insurance companies remain free to communicate with such
individuals at any time and in any manner. And lawyers can still immediately contact
victims of, and witnesses to, motor vehicle accidents and crimes through written,

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recorded, or electronic means provided they comply with the Ohio Supreme Court’s
disclosure and notice requirements. Ohio Prof. Cond. R. 7.3(c) and (e).
12.

More ominously for health-care practitioners, a blanket prohibition has

been imposed in R.C. 1349.05(B) broadly stating: “Any communication to obtain
professional employment shall be sent via the United States postal service.” A similar
ban is set forth in R.C. 1349.05(C) that applies to referral agencies and workers
employed by health-care practitioners. Neither prohibition contains any exceptions,
and each is unlimited in duration.
13.

Barring judicial intervention, these wholly discordant provisions of the

2020-2021 Biennial Budget Bill will take effect on October 17, 2019.
14.

As a consequence of these dissonant sections of the Biennial Budget Bill,

many individuals injured in motor vehicle accidents will be unlikely to receive prompt
and appropriate medical care and attention. Such victims typically are unaware both
that such treatment (1) usually must begin immediately to be fully effective and (2) is
often covered under motor vehicle insurance policies. Prompt contact with a healthcare practitioner is thus essential for maximizing the prospects of a full recovery.
PAUL W. FLOWERS CO.
50 Public Sq., Ste 1910
Cleveland, Ohio 44113
(216) 344-9393
Fax: (216) 344-9395

15.

Prior to the adoption of the Biennial Budget Bill, the oversight and

regulation of the practices of medicine and chiropractic had been entrusted
respectively to the State Medical Board, R.C. 4731.01, and the State Chiropractic
Board, R.C. 4734.02 & 4734.10. Prospective patients have already been afforded
protection against false and deceptive advertising and solicitations under Category
III(G) of The State Medical Board of Ohio Disciplinary Guidelines (Rev. July 2019).
And the State Chiropractic Board has adopted even more extensive safeguards against
potential abuses through Ohio Admin. Code 4734-9-02.

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16.

But through the 2020-21 Biennial Budget Bill’s incongruous provisions

codified in R.C. 1349.05(D) & (E), the Ohio Attorney General has now been
empowered to oversee and control advertising and solicitations by health-care
practitioners and may impose fines of up to $25,000.00 and/or immediately suspend
licenses without a prior hearing.
17.

By imposing the thirty-day moratorium and completely prohibiting

health-care practitioners from engaging in communications with the intent to obtain
professional employment at any time except through the United States postal service,
R.C. 1349.05(B) and (C) impose a prior restraint upon the exercise of lawful and
accurate commercial speech in a manner that is substantially more extensive than
necessary to advance any legitimate governmental interests. Any bona fide concerns
that may exist for abusive, deceptive, or overbearing advertising and solicitations in
the medical and chiropractic fields has already been addressed and managed by the
State Medical Board and the State Chiropractic Board, which are far more qualified to
regulate these specialized professions.
18.
PAUL W. FLOWERS CO.
50 Public Sq., Ste 1910
Cleveland, Ohio 44113
(216) 344-9393
Fax: (216) 344-9395

No legitimate governmental interests are served by the significant

restrictions that will be imposed by R.C. 1349.05 upon health-care practitioners and
the referral agencies and workers employed by them, which other similarly situated
businesses and professionals will not be required to bear.
19.

Each of the Plaintiffs utilizes and relies upon prompt and direct contact

and communications with prospective patients, which often includes victims of motor
vehicle accidents, as a means for expressing views and opinions upon the need for and
availability of prompt medical or chiropractic care. The prospective patients are
typically reached in a professional and unobtrusive manner through the telephone

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numbers listed in the accident reports that are subject to Ohio’s Public Records Act.
Each of the Plaintiffs abides by the rules and standards already governing such
solicitations within their professions.
20.

As health-care practitioners and private referral agencies subject to these

extraneous provisions of the 2020-2021 Biennial Budget Bill, each of the Plaintiffs
will suffer substantial and irreparable harm if these enactments are enforced. Indeed,
the very existence of the prospect of civil fines of up to $25,000.00 and the
suspension of medical/chiropractic licenses without a prior hearing will have a longlasting chilling effect upon the constitutionally protected exercise of free speech and
communications.
COUNT I
(DECLARATORY RELIEF)
A.

One Subject Violations
21.

Plaintiffs repeat the foregoing allegations of this Complaint as if fully

restated herein.
22.

By attempting to modify the definition of Public records, preclude lawful

and accurate contact and communications between health-care practitioners and
PAUL W. FLOWERS CO.
50 Public Sq., Ste 1910
Cleveland, Ohio 44113
(216) 344-9393
Fax: (216) 344-9395

prospective patients, and adopting a wide variety of unrelated measures, Am. Sub.
H.B. 166 lacks a common purpose or objective. There is no discernible, practical,
rational, or legitimate reason for combining all of the wide-ranging areas of concern
into a single 2,600 page Bill.
23.

Am. Sub. H.B. 166 thus violates Article II, Section 15(D) of the Ohio

Constitution, which has long directed that “[n]o bill shall contain more than one
subject, which shall be clearly expressed in its title.”
24.

To the extent that Am. Sub. H.B. 166 exceeds the budgetary and
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appropriations objectives set forth in its title, those aspects of the bill are invalid and
unenforceable, including the attempted interference with lawful communications by
health-care practitioners and private referral agencies with potential patients.
25.

If allowed to stand, Am. Sub. H.B. 166 will have a real and substantial

impact upon Plaintiffs, their employees, and their patients. These consequences will
include, but will not be limited to, disrupting and denying the supply of prompt
medical care and treatment to individuals injured in motor vehicle accidents.
26.

A live, justiciable controversy exists between the parties over the

enforceability of Am. Sub. H.B. 166, for which there is no other readily available and
expedient remedy at law or equity. To the full extent permitted by 28 U.S.C. § 2201
and 2202, Plaintiffs are therefore entitled to a declaratory judgment establishing that
the legislative attempt to amend R.C. 149.43(A)(1)(mm) and enact R.C. 1349.05
through Am. Sub. H.B. 166 violates Article II, Section 15(D) of the Ohio Constitution
and is thus unenforceable.
B.

Free Speech Violations
27.

PAUL W. FLOWERS CO.
50 Public Sq., Ste 1910
Cleveland, Ohio 44113
(216) 344-9393
Fax: (216) 344-9395

One of the discordant provisions of the 2020-2021 Biennial Budget Bill is

the enactment of prohibitions against lawful and accurate communications between
health-care providers and victims of and witnesses to motor vehicle accidents and
crimes. Specifically, R.C. 1349.05 will establish:
(B) No health care practitioner, with the intent to obtain
professional employment for the health care practitioner,
shall directly contact in person, by telephone, or by
electronic means any party to a motor vehicle accident, any
victim of a crime, or any witness to a motor vehicle accident
or crime until thirty days after the date of the motor vehicle
accident or crime. Any communication to obtain
professional employment shall be sent via the United States
postal service.

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(C) No person who has been paid or given, or was offered to
be paid or given, money or anything of value to solicit
employment on behalf of another shall directly contact in
person, by telephone, or by electronic means any party to a
motor vehicle accident, any victim of a crime, or any
witness to a motor vehicle accident or crime until thirty
days after the date of the motor vehicle accident or crime.
Any communication to solicit employment on behalf of
another shall be sent via the United States postal service.
The Ohio Attorney General has been empowered to impose fines upon violators of up
to $25,000.00 for each infraction and authorized to suspend licenses without a prior
hearing. R.C. 1349.05(D) and (E).
28.

In the manner aforementioned and to be otherwise established in these

proceedings, a wide variety of effective communications between health-care
providers and potential patients will be banned in Ohio, except through the United
States Mail. Such prior restraints upon a class of free speech are prohibited by the
First Amendment to the United States Constitution.
29.

Additionally, R.C. 1349.05 imposes an unconstitutional prohibition

upon lawful and accurate commercial speech in an arbitrary, indiscriminate, and
overbroad manner. The legislation fails to further a legitimate governmental interest
PAUL W. FLOWERS CO.
50 Public Sq., Ste 1910
Cleveland, Ohio 44113
(216) 344-9393
Fax: (216) 344-9395

and fails to utilize the least restrictive means available.
30.

The Ohio Constitution further provides in Article I, Section 11:
Every citizen may freely speak, write, and publish his
sentiments on all subjects, being responsible for the abuse
of the right; and no law shall be passed to restrain or
abridge the liberty of speech, or of the press.

R.C. 1349.05 prohibits the free exchange of all types of advice and opinions between a
health-care practitioner and potential patient, and thus is irreconcilable with the State
Constitution.
31.

Unless and until the enforcement of R.C. 1349.05 is enjoined and the

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legislation is declared unconstitutional under the First Amendment to the United
States Constitution and Article I, Section II of the Ohio Constitution, each of the
Plaintiffs will suffer an irreparable denial of fundamental free speech rights as well as
actual pecuniary harm and losses.
32.

A live, justiciable controversy exists between the parties over the

enforceability of R.C. 1349.05, for which there is no other readily available and
expedient remedy at law or equity. To the full extent permitted by 28 U.S.C. § 2201
and 2202, Plaintiffs are therefore entitled to a declaratory judgment establishing that
this legislation violates the First Amendment to the United States Constitution as well
as Article I, Section 11 of the Ohio Constitution.
C.

Equal Protection Violations
33.

At all times relevant to this action, each of the Plaintiffs were entitled to

equal protection of the laws under the Fourteenth Amendment to the United States
Constitution and Article I, Section 2 of the Ohio Constitution.
34.

Plaintiffs’ fundamental rights are now being threatened by the enactment

and enforcement of R.C. 1349.05, most notably the basic guarantees of free speech
PAUL W. FLOWERS CO.
50 Public Sq., Ste 1910
Cleveland, Ohio 44113
(216) 344-9393
Fax: (216) 344-9395

and expression.
35.

R.C. 1349.05 arbitrarily and unfairly discriminates against health-care

providers in multiple ways without furthering any legitimate or compelling state
interests.

For the purpose of example only, employees and representatives of

insurance companies remain fully enabled to immediately contact victims and
witnesses to motor vehicles accidents and crimes without any restrictions.

And

attorneys licensed to practice law in Ohio may engage in such solicitations at any time
through written, recorded, and electronic means provided certain disclosures and

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notices are furnished. Ohio Prof. Cond. R. 7.3(c) and (e). Only health-care providers
will be confined to communicating with perspective patients through the United
States Mail system under this legislation.
36.

Unless and until the enforcement of R.C. 1349.05 is enjoined and the

enactment is declared unconstitutional on equal protection grounds, each of the
Plaintiffs will suffer an irreparable deprivation of fundamental constitutional rights as
well as actual pecuniary harm and losses.
37.

A live, justiciable controversy exists between the parties over the

enforceability of R.C. 1349.05, for which there is no other readily available and
expedient remedy at law or equity. To the full extent permitted by 28 U.S.C. § 2201
and 2202, Plaintiffs are therefore entitled to a declaratory judgment establishing that
this legislation violates the Fourteenth Amendment to the United States Constitution
as well as Article I, Section 2 of the Ohio Constitution.
COUNT II
(INJUNCTIVE RELIEF)
38.

Plaintiffs repeat and reallege the foregoing allegations of this pleading as

if fully restated herein.
PAUL W. FLOWERS CO.
50 Public Sq., Ste 1910
Cleveland, Ohio 44113
(216) 344-9393
Fax: (216) 344-9395

39.

Plaintiffs reasonably believe, and therefore allege, that Defendants intend

to enforce Am. Sub. H.B. 166 as soon as these provisions of the 2020-2021 Biennial
Budget Bill take effect on October 17, 2019, including the prohibition against lawful
communications between health-care practitioners, private referral agencies, and
prospective patients.
40.

Given that the provisions codified in R.C. 149.43(A)(1)(mm) and 1349.05

are blatant and unprecedented affronts to long-established principles of both state
and federal constitutional law, Plaintiffs are likely to prevail upon the merits of their
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claim for a declaratory judgment as alleged in Count I and otherwise establish their
entitlement to relief.
41.

Unless restrained from doing so, Defendants will thus inflict immediate

and irreparable harm upon Plaintiffs, their owners/principals, and their employees.
42.

Public policy is always served by prohibiting the enforcement of an

unconstitutional statute. No third parties will suffer any undue injury if Defendants
are directed to comply with the United States and Ohio Constitutions and the status
quo is maintained.
43.

Under traditional principles of equity, this Court should issue

preliminary and permanent injunctions prohibiting Defendants, as well as all persons
and all state agencies, departments, bureaus, boards and other entities in active
concert and participation with them, from enforcing any aspect of Am. Sub. H.B. 166
that is found to violate the United States or Ohio Constitutions.

PAUL W. FLOWERS CO.
50 Public Sq., Ste 1910
Cleveland, Ohio 44113
(216) 344-9393
Fax: (216) 344-9395

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PRAYER
WHEREFORE, Plaintiffs request that this Court issue (1) a declaratory
judgment establishing that the legislative attempt to amend R.C. 149.43(A)(1)(mm)
and enact R.C. 1349.05 through Am. Sub. H.B. 166 violates the United States and
Ohio Constitutions in multiple respects and (2) appropriate preliminary and
permanent injunctive relief against Defendants and all persons and entities in active
concert and participation with them. The costs of this action should be taxed to
Defendants.
Respectfully Submitted,

s/Paul W. Flowers
Paul W. Flowers, Esq. (#0046625)
Louis E. Grube, Esq. (#0091337)
PAUL W. FLOWERS, CO., L.P.A.
Terminal Tower, Suite 1910
50 Public Square
Cleveland, Ohio 44113
(216) 344-9393
pwf@pwfco.com
leg@pwfco.com
Attorneys for Plaintiffs,
First Choice Chiropractic, LLC, et al.
PAUL W. FLOWERS CO.
50 Public Sq., Ste 1910
Cleveland, Ohio 44113
(216) 344-9393
Fax: (216) 344-9395

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