STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) CHIROPRACTIC MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 03-0946PL

) CHARLES LEROY MITZELFELD, D.C., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, in West Palm Beach, Florida, on June 19, 2003, and in Tallahassee, Florida, on

June 20, 2003.

APPEARANCES

For Petitioner: Christine Thorson, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

For Respondent: Stephen Marc Slepin, Esquire

Slepin & Slepin

Magnolia Center I, Suite 102 1203 Governor's Square Boulevard Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Charles Leroy Mitzelfeld, D.C., committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Health, on February 6, 2003, and, if so, what disciplinary action should be taken against him.

PRELIMINARY STATEMENT

On or about February 6, 2003, the Department of Health filed a one-count Administrative Complaint against Charles Leroy Mitzelfeld, D.C., a Florida-licensed chiropractic physician, before the Board of Chiropractic Medicine. On or about

March 18, 2003, Dr. Mitzelfeld, through counsel, filed a Petition for Formal Proceedings, indicating that he disputed the allegations of fact contained in Count I of the Administrative Complaint and requesting a formal administrative hearing pursuant to Section 120.569(2)(a), Florida Statutes (2002).1

On March 19, 2003, the matter was filed with the Division of Administrative Hearings, with a request that the case be assigned to an administrative law judge. The matter was designated DOAH Case No. 03-0946PL and was assigned to the undersigned.

The final hearing was scheduled by Notice of Hearing entered April 2, 2003, for May 28 and 29, 2003. By Order entered April 18, 2003, a continuance of the final hearing was

granted and the hearing was rescheduled for June 19 and 20, 2003.

At the final hearing Petitioner presented the testimony of Bonnie Schaffrick, C.H., and Dana Byington. Petitioner's Exhibits 1 and 2 were admitted. Respondent testified on his own behalf and presented the testimony of Robert McLaughlin, D.C., Susan Mitzelfeld, Kelly Sue Smith, and Thomas Fitzgerald, Ph.D. Respondent's Exhibit 1 was admitted.

At the commencement of the final hearing of this matter, Petitioner filed Motion to Redact Public Record, requesting that any information which identifies C.H. in this case be redacted. The Motion was granted, without objection. The record of the Division of Administrative Hearings in this case has been reviewed in an effort to carry out the requested redaction, including the redacting of C.H.'s full name in Petitioner's Exhibit 2.

By Notice of Filing of Transcript issued July 10, 2003, the parties were informed that the last volume of the two-volume Transcript of the final hearing had been filed on

July 9, 2003. The parties, pursuant to agreement, therefore, had until August 8, 2003, to file proposed recommended orders. Both parties filed Proposed Recommended Orders on August 8, 2003, and those proposals have been fully considered in entering this Recommended Order.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving chiropractic physicians licensed to practice in Florida.

   2. Respondent, Charles Leroy Mitzelfeld, D.C., is, and was at the times material to this matter, a physician licensed to practice chiropractic medicine in Florida, having been licensed in Florida since 1985. Dr. Mitzelfeld's license to practice has not been previously disciplined.

2. Dr. Mitzelfeld's Practice.

   
   

   1. At the times material to this matter, Dr. Mitzelfeld operated Foundation Chiropractic (hereinafter referred to as "Foundation"), a chiropractic clinic located in West Palm Beach, Florida.

   2. Foundation employees three individuals, in addition to Dr. Mitzelfeld's wife, daughter, father, and mother.2

   3. It is, and was at the times material to this matter, Dr. Mitzelfeld's practice to open the offices of Foundation between 5:15 a.m. and 6:00 a.m. each day the clinic was open.3 Dr. Mitzelfeld opened the clinic early in order to see patients who needed adjustments prior to reporting to their jobs.

   4. Once Dr. Mitzelfeld unlocked the front door at Foundation, the door remained unlocked and open to the public. After Dr. Mitzelfeld unlocked the front door and before staff arrived, whenever anyone arrived at Foundation and opened the front door, a buzzer or bell sounded to announce their arrival.

   5. Dr. Mitzelfeld established and maintained an "open- door" policy at Foundation. Pursuant to this policy, the doors to all of the treatment rooms at Foundation remained open at all times and staff were allowed to enter a treatment room at any time. Dr. Mitzelfeld did not as a matter of course, however, have a staff member present whenever he was seeing a female patient.

   6. The evidence failed to prove that, even though the front door of Foundation was unlocked at all times relevant to this matter and Dr. Mitzelfeld maintained an open-door policy, Dr. Mitzelfeld could not have from engaged in the conduct described in this Recommended Order.

3. Dr. Mitzelfeld's Treatment of Patient C.H.

   
   

   1. On or about September 6, 2001 Dr. Mitzelfeld began treating patient C.H. C.H., a female, earned a bachelor's degree in political science in 1992, and was, therefore, in all likelihood in her 30's during the times relevant to this matter.

   2. During the period of time that Dr. Mitzelfeld was treating C.H., he was also treating C.H.'s husband.4

   3. From the time that C.H. began coming to Foundation until approximately January of 2002, C.H. was seen by

      Dr. Mitzelfeld during the afternoon, when staff and other patients were present. Most often, her appointments were at approximately 3:00 p.m.

   4. In approximately January 2002 C.H.'s appointment time was moved, at her request, to the early morning, before staff arrived. C.H. began arriving at approximately 6:30 a.m. for treatments and, although on occasion there were one or two individuals in the waiting room, she usually saw no one else at Foundation other than Dr. Mitzelfeld during her appointments.

   5. After C.H. began seeing Dr. Mitzelfeld in the early morning, their relationship began to change from that of a purely doctor-patient relationship to a more personal one. Their conversations started to become more personal and, gradually, they became verbally flirtatious. For example, Dr. Mitzelfeld began to tell C.H. that she was pretty and that she looked good in whatever she was wearing.

   6. Dr. Mitzelfeld's personal comments were welcomed by

      
      

      C.H. She responded by telling him personal things about her life, telling him that her marriage was "terrible," that her husband no longer slept in the same room with her, and that they no longer had sexual relations.

   7. Dr. Mitzelfeld's comments to C.H. continued to become more flirtatious and suggestive. Among other things, he told her that he found her attractive and that he could not understand why her husband did not find her attractive and desirable. He also told her that, if her were married to her, "I would treat you so good and I would definitely be sleeping in the same bed with you and I'd be making love to you every night." Lines 11-14, Page 69, Transcript of June 19, 2003.

   8. As C.H. and Dr. Mitzelfeld became verbally flirtatious, C.H. began to perceive that the manner that Dr. Mitzelfeld touched her was no longer just professional, but more personal and intimate, a change she welcomed.

   9. The change in their relationship was not unwelcome to

      
      

      C.H. C.H. believed, without having discussed the matter directly with Dr. Mitzelfeld, that they "had a relationship" and that she "was in love with him and [she] thought he was in love with [her]." Lines 22-24, Page 67, Transcript of June 19, 2003.

      C.H. naively believed that the physical lust they were experiencing, amounted to something more emotionally meaningful.

   10. In approximately February 2002 Dr. Mitzelfeld told

       
       

       C.H. that he wanted to give her a hug after her treatment. They hugged and he kissed her on the cheek. After that, they hugged after each visit. Over time, their hugs became more lasting and intimate, with Dr. Mitzelfeld eventually becoming aroused to the

       point where he had an erection and "he would rub it all over [C.H.]." Lines 11-12, Page 70, Transcript of June 19, 2003.

   11. Dr. Mitzelfeld began performing a new treatment on

       
       

       C.H. for her upper back where she held her arms out to the side, he lifted her up from behind, and her body rested against his. Dr. Mitzelfeld would become aroused during these treatments; his penis would become erect.5

   12. The increased intimacy between C.H. and

       
       

       Dr. Mitzelfeld, was not unwelcome to C.H., because". . . it was very obvious we were very attracted to each other and there was chemistry." C.H. was "happy about it. I mean, I was attracted to him so it didn't bother me at all." Lines 14-15, Page 70, Transcript of June 19, 2003.

   13. On May 9, 2002, during a prolonged hug, C.H. kissed Dr. Mitzelfeld on the cheek, then quickly on the mouth, and then passionately on the mouth, a kiss which Dr. Mitzelfeld returned.

   14. C.H. continued to naively believe that she was in love with Dr. Mitzelfeld and, although he had not said so, that he was in love with her. She took time prior to each visit to look as good as she could, doing her hair, nails, and make-up, and carefully selecting what she would wear, all in an effort to please Dr. Mitzelfeld and further the relationship she believed they had.

   15. On May 13, 2002, C.H. saw Dr. Mitzelfeld for the first time after the May 9th kiss. During this visit, Dr. Mitzelfeld told C.H. that they should not let anything like the kiss happen again "because if it does, [my] hands are going to start traveling and [your] clothes are going to come off."

   16. C.H.'s next visit was the morning of May 16, 2002.

       
       

       After receiving her adjustment, C.H. and Dr. Mitzelfeld began hugging and kissing passionately. Dr. Mitzelfeld put his hand down C.H.'s jeans and she began to rub his penis through his clothes with her hand.

   17. After a while, C.H. told Dr. Mitzelfeld that she "wanted to do something to him" although she did not specify what. Dr. Mitzelfeld took her by the hand and led her into a bathroom, locking the door behind them. Given the circumstances, Dr. Mitzelfeld correctly assumed that what C.H. wanted to do to him was sexual.

   18. Once in the bathroom, they continued to hug and kiss while she attempted to pull down his pants so that she could perform fellatio on him. He eventually pulled his pants down for her and C.H. began to fellate him. While she did,

       Dr. Mitzelfeld told her to "take it deep, baby."

       
       

   19. C.H. caused Dr. Mitzelfeld to have an orgasm, after which he told her repeatedly how much he had enjoyed it. She told him that next time she would bring whipped cream.

   20. Eventually, Dr. Mitzelfeld, having been sexually satisfied, realized the possible consequences of what had happened and told C.H. that what had just happened should not have; and that he had a great marriage and that he loved his wife. Dr. Mitzelfeld became cold and distant. Dr. Mitzelfeld knew that what had happened was unethical.

   21. C.H. left Foundation upset and, because of

       
       

       Dr. Mitzelfeld's comments and cold treatment of her, she spoke with a neighbor and her mental health counselor and told both what had happened. Her mental health counselor told her that what had happened was unethical and that she should report it. C.H., however, was not yet realized that Dr. Mitzelfeld did not have deep emotional feelings for her.

   22. By the next morning, May 17, 2002, C.H. had recovered from her concern over Dr. Mitzelfeld's reaction the day before and convinced herself that they indeed had a relationship. C.H. naively believed that Dr. Mitzelfeld had to have feelings for her because they had engaged in a sexual act. She decided to surprise him with an unscheduled visit to his office.

   23. C.H. dressed in a black negligee which she covered with a denim dress. She entered Foundation at approximately 6:30 a.m. She did not sign in upon arrival,6 which she normally did when she arrived for a scheduled appointment. She had not come to Foundation that morning for any medical treatment.

       Dr. Mitzelfeld, who was upstairs in his loft-like office, came downstairs to see who had come in and met C.H.. When he asked what she was doing there that morning, she told him she had something to show him, walked up the stairs to his office, taking off her dress as she went and leaving it on the stairs, and waited for him wearing only the negligee and black high- heeled shoes. She intended to engage in sexual intercourse with him.

   24. When Dr. Mitzelfeld came into his office and saw C.H. standing there, he told her that they could not do anything like they had done the day before. Dr. Mitzelfeld had realized that what he had done was unethical and he told C.H. so. He also told her that he could be in trouble for the incident, a prophetic comment. Dr. Mitzelfeld also told her that they could not kiss, hug, or have any other sexual contact again.

   25. Dismayed and confused, C.H. dressed, as Dr. Mitzelfeld instructed her, and left the Foundation, never to return.

   26. Later the same day, Dr. Mitzelfeld discussed C.H. with a colleague, Dr. Robert McLaughlin. Dr. Mitzelfeld asked

       Dr. McLaughlin for advice about what he should do about a patient, C.H., who had become agitated when he rejected her sexual advances. Dr. McLaughlin correctly advised Dr.

       Mitzelfeld that he should discontinue any doctor-patient relationship with C.H., an act which Dr. Mitzelfeld should have

       taken earlier when his relationship with C.H. started to become more than just a doctor-patient relationship.7 Dr. Mitzelfeld did not admit the events found is this Recommended Order to

       Dr. McLaughlin.

       
       

   27. Upset, disappointed, and angry about her May 17, 2002, visit with Dr. Mitzelfeld, C.H. reported the foregoing incidents to the Department on May 22, 2002, after finally realizing that her relationship with Dr. Mitzelfeld was based upon lust and not some deeper emotional feeling.

4. The Department's Administrative Complaint and Dr. Mitzelfeld's Request for Hearing.

   
   

   1. On February 6, 2003, after investigating C.H.'s allegations, the Department filed a one-count Administrative Complaint against Dr. Mitzelfeld before the Board alleging that he had committed "sexual misconduct" in the chiropractic physician-patient relationship, which is prohibited by Section

      460.412 and, therefore, that he had violated Section 460.413(1)(ff), which provides that "[v]iolating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto" constitutes a ground for disciplinary action.

   2. On or about March 18, 2003, Dr. Mitzelfeld, through counsel, filed a Petition for Formal Proceedings, indicating that he disputed the allegations of fact contained in Count I of

      the Administrative Complaint and requesting a formal administrative hearing pursuant to Section 120.569(2)(a).

   3. On March 19, 2003, the matter was filed with the Division of Administrative Hearings, with a request that an administrative law judge be assigned the case. The matter was designated DOAH Case No. 03-0946PL and was assigned to the undersigned.

5. C.H.'s Legal Name.

   
   

   1. At the times relevant to this proceeding and up until May 21, 2003, C.H.'s legal name was S.C.H.H. The "C" in her legal name and the last "H" are the same names in "C.H.," the name that she has gone by during the times material to this case and throughout this proceeding. When sworn in during her deposition in this matter on May 13, 2003, rather than stating that her name was S.C.H.H. she stated that her name was C.H. She did so simply because she has always gone by the name C.H. The evidence failed to prove that, because of her technical error, her testimony in this matter was not believable.

   2. On May 21, 2003, C.H.'s name was changed to C.S.L. as a result of her divorce. Throughout this proceeding, including when she was sworn in on June 19, 2003, to testify at the final hearing of this matter, she indicated that her name was C.H. Again, it is concluded that her technical error was insufficient

      to conclude that her testimony in this matter was not believable.

6. C.H.'s Use of Prescription Medicines.

1. At all times material to this matter, C.H. was seeing a mental health counselor. The evidence failed to prove why

   C.H. was seeing a mental health counselor.

   
   

2. C.H. was prescribed and has taken Wellbutrin, Adderall, and Serzone. She also was prescribed and took Zolof for a period of two months. While these drugs, taken singly or in combination may have serious side effects,8 including hallucinations, the evidence failed to prove that C.H. had any such side effects. While C.H. admitted taking the drugs in question, the evidence failed to prove that she took them during the times at issue in this matter or, if she did, what dosage she took them in.

3. Finally, while the evidence proved that C.H. has suffered from a number of maladies, the evidence failed to prove whether she was suffering from those maladies between

   September 6, 2001, and the date of C.H.'s testimony at final hearing or that any of her medical problems affected in any way her memory or truthfulness in this proceeding.

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

4. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1).

   1. The Charges of the Administrative Complaint; "Sexual

      
      

      Misconduct."

      
      

5. In its Administrative Complaint, the Department has alleged that Dr. Mitzelfeld has violated Section 460.413(1)(ff) by not fulfilling the requirements of Section 460.412.

6. Section 460.413(1) sets out the grounds for taking disciplinary action against a license to practice chiropractic medicine in Florida. Section 460.413(1)(ff) provides that "[v]iolating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto" constitutes a ground for disciplinary action. The particular provision which the Department has alleged Dr. Mitzelfeld violated is Section 460.412, which prohibits "sexual misconduct" in the chiropractic physician-patient relationship.

   1. The Burden and Standard of Proof.

      
      

7. The Department seeks to impose penalties against

   
   

   Dr. Mitzelfeld through the Administrative Complaint that include suspension or revocation of his license and/or the imposition of an administrative fine. Therefore, the Department has the

   burden of proving the specific allegations of fact that support its charge that Dr. Mitzelfeld violated Section 460.413(1)(ff) by having violated Section 460.412 by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and Pou v. Department of Insurance and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998).

8. What constitutes "clear and convincing" evidence was described by the court in Evans Packing Co. v. Department of

   Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), as follows:

   . . . [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

   Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

   
   

   See also In re Graziano, 696 So. 2d 744 (Fla. 1997); In re Davey, 645 So. 2d 398 (Fla. 1994); and Walker v. Florida Department of Business and Professional

   Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

   1. The Department's Proof.

      
      

9. Section 460.412, which prohibits "sexual misconduct," defines those terms as follows:

   . . . . Sexual misconduct in the practice of chiropractic medicine means violation of the chiropractic physician-patient relationship through which the chiropractic physician uses said relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of chiropractic medicine is prohibited.

   
   

10. In addition to the guidance as to what constitutes "sexual misconduct" provided in Section 460.412, Rule 64B2- 17.0021 defines "sexual misconduct" in the practice of chiropractic medicine as follows:

    The chiropractic physician/patient relationship is founded on the trust and confidence that a patient places in the chiropractic physician, and this rule is intended to prevent a chiropractic physician from taking advantage of that trust for the chiropractic physician’s own pleasure, satisfaction or benefit. To protect both the chiropractor and the patient, the Board recommends the presence of a third person during a chiropractic physician’s examination and treatment of a patient.

    
    

    1. No chiropractic physician may engage in sexual misconduct with a patient of the chiropractic physician.

       
       

    2. Sexual misconduct is any direct or indirect physical contact by any person or between persons which is intended or which is likely to cause to either person stimulation of a sexual nature. Sexual misconduct includes sexual intercourse, fellatio, cunnilingus, masturbation, or anal intercourse. Sexual misconduct also includes the activities described in subsections (3) through (8) of this rule.

       
       

    3. A licensee who fails to inform a patient when the licensee must touch the patient’s breasts or genitalia for diagnostic or therapeutic purposes, or a licensee who disregards a patient’s request that the licensee not touch the patient’s breasts or genitalia, is guilty of sexual misconduct.

       
       

    4. A licensee who makes suggestive, lewd, or lascivious remarks to a patient or who performs suggestive, lewd, or lascivious acts in the presence of a patient is guilty of sexual misconduct.

       
       

    5. A licensee who intentionally touches a patient’s breasts or sexual organs for non-diagnostic or non-therapeutic purposes is guilty of sexual misconduct, regardless of whether the patient is clothed.

       
       

    6. A licensee who makes intentional contact with or who penetrates a patient’s oral, anal, or vaginal orifice with the licensee’s own sexual organ is guilty of sexual misconduct.

       
       

    7. A licensee who makes intentional contact with or who penetrates a patient’s oral, anal, or vaginal orifice with any object for any purpose other than a professionally recognized diagnostic or therapeutic purpose is guilty of sexual misconduct.

    8. Definition of patient. A patient is any person who was being examined or who was under the care or treatment of the chiropractic physician when the incident or incidents of sexual misconduct allegedly occurred, regardless of whether the person was billed by or was paying for chiropractic services from the licensee who is accused of sexual misconduct. A person shall be considered a patient until after one year has elapsed since the last date on which the chiropractic physician examined or treated the person.

       
       

    9. Consent as a defense. Because of the control that a chiropractic physician exercises in the physician/patient relationship, a patient’s consent may not be used by the chiropractic physician in the defense of an allegation of sexual misconduct on the part of the chiropractic physician. (Emphasis added).

       
       

11. The proof presented by the Department in this case proved clearly and convincingly that Dr. Mitzelfeld is guilty of "sexual misconduct" prohibited by Section 460.412.

12. The Department proved that C.H. was a "patient," as that term is used in Section 460.412. C.H. was a "person who was being examined or who was under the care or treatment of [Dr. Mitzelfeld] when the incident or incidents of sexual misconduct allegedly occurred."

13. The Department also proved that Dr. Mitzelfeld committed the following acts, which come within the definition of "sexual misconduct" found in Rule 64B2-17.0021:

    1. Dr. Mitzelfeld and C.H. had "direct . . . physical

       contact . . . which [was] intended or which [was] likely to cause to either person stimulation of a sexual nature." Rule 64B2-17.0021(2). In particular, Dr. Mitzelfeld participated in "fellatio." Id. For the same reason, he made intentional contact with and penetrated C.H.'s oral orifice with his penis. Rule 64B2-17.0021(6);

    2. Dr. Mitzelfeld also made "suggestive, lewd, or lascivious remarks to a patient", C.H. Rule 64B2-17.0021(4); and

    3. Dr. Mitzelfeld "intentionally [touched] a patient’s [C.H.'s] breasts or sexual organs for non-diagnostic or non- therapeutic purposes . . . ." Rule 64B2-17.0021(5).

14. Having proved that Dr. Mitzelfeld committed sexual misconduct as defined and prohibited in Section 460.412, the Department has proved that Dr. Mitzelfeld violated Section 460.413(1)(ff), as alleged in Count 1 of the Administrative Complaint.

    1. The Appropriate Penalty

    
    

15. In determining the appropriate punitive action to recommend to the Board in this case, it is necessary to consult the Board's "disciplinary guidelines," which impose restrictions and limitations on the exercise of the Board's disciplinary authority. See Parrot Heads, Inc. v. Department of Business and Professional Regulation, 741 So. 2d 1231 (Fla. 5th DCA 1999).

16. The Board's guidelines are set out in Rule 64B2- 16.003, which provides the following pertinent guidelines for the disposition of disciplinary cases against chiropractic physicians:

    1. When the Board finds that an applicant or licensee whom it regulates pursuant to Chapter 460, F.S., has violated the below-listed provisions, it shall issue a final order imposing appropriate penalties, for each count, as set forth in Section 456.072(2), F.S., within the ranges recommended in the following disciplinary guidelines. The identification of offenses are descriptive only; the full language of each statutory provision cited must be considered in order to determine the conduct included. For all persons subject to this rule, conditions of probation may be required following any period of suspension of license and probation will require compliance with conditions as set forth in (3). For applicants, all offenses listed herein are sufficient for refusal to certify an application for licensure. If the Board makes a finding of pecuniary benefit or

       self-gain related to the violation, then the Board shall require refund of fees billed and collected from the patient or a third party on behalf of the patient. In addition to any other discipline imposed, the Board shall assess the actual costs related to the investigation and prosecution of a case. In addition to or in lieu of any guideline penalties provided herein, if the violation is for fraud or making a false or fraudulent representation, the Board shall impose a fine of $10,000 per count or offense.

       
       

       . . . .

       
       

       (h) Section 460.412, F.S.: from a minimum of one (1) year suspension followed by two

    2. years probation under terms and

       conditions set by the board to include supervision and a fine of not less than

       $1,000 per violation, to permanent revocation;

       
       

       . . . .

       
       

       (nn) Section 460.413(1)(ff), 456.072(1)(b), or 456.072(1)(cc), F.S.:

       violating this chapter, Chapter 456, F.S., or any Board rules – from a minimum fine of

       $1,000 and/or a letter of concern up to a maximum fine of $5,000 and/or suspension of license for two years followed by two years of probation. . . ;

       
       

       . . . .

       
       

17. Rule 64B2-16.003(2) provides that, in determining the appropriate penalty, the following aggravating and mitigating circumstances are to be taken into account:

    (2) The Board may take into consideration the following factors in determining the appropriate disciplinary action to be imposed and in going outside of the disciplinary guidelines:

    
    

    1. The severity of the offense;

    2. The danger to the public;

    3. The number of specific offenses;

    4. The actual damage, physical or otherwise, to the patient(s);

    5. The length of time since the date of the last violation(s);

    6. The length of time the licensee has practiced his or her profession;

    7. Prior discipline imposed upon the licensee;

    8. The deterrent effect of the penalty imposed;

    9. The effect of the penalty upon the licensee’s livelihood;

    10. Rehabilitation efforts of the licensee;

    11. Efforts of the licensee to correct or stop violations or failure of the licensee to correct or stop violations;

    12. Related violations against the licensee in another state, including findings of guilt or innocence, penalties imposed and penalties served;

    13. The actual negligence of the licensee pertaining to any violation;

    14. Any other mitigating or aggravating circumstances.

    
    

18. A number of the foregoing factors mitigate against revocation of Dr. Mitzelfeld's license, as recommended by the Department:

    1. The offense was not severe and did not constitute a danger to the public;

    2. There was essentially only one offense;

       
       

    3. Although C.H. suffered some mental anguish, the evidence failed to prove any deep or lasting harm to C.H., who throughout the incidents described in this Recommended Order, welcomed and sought Dr. Mitzelfeld's conduct;

    4. It has been more than a year since the incidents took place;

    5. Dr. Mitzelfeld has been practicing for approximately

       
       

       18 years without prior disciplinary action having been taken against his license;

    6. The revocation of his license will not only have a devastating financial impact on Dr. Mitzelfeld, it will also

       negatively impact his immediate family and his three non-family- member employees; and

    7. Although Dr. Mitzelfeld's reaction after May 16, 2002, can be characterized in a less flattering manner, the fact remains that he did immediately realize the error of his conduct and terminated his relationship C.H., albeit after it had gone too far.

19. If probation is imposed on a license, Rule 64B2- 17.003(3) provides that the probation may be subject to the following conditions:

    1. Restitution of the cost of probation;

    2. Restitution to patient(s) or third- party payor(s);

    3. Payment of fine(s);

    4. Consent to Department access to all business records;

    5. Fulfilling continuing education requirements;

    6. Consent to indirect or direct supervision of practice by Board-approved sponsor;

    7. Consent to restrictions on advertising;

    8. Consent to restriction of practice, including hours, days or type of practice;

    9. Consent to disallowance of sponsorship of trainees;

    10. Submission of reports by licensee and consent to submission of reports by sponsor and/or employer and/or helping professional;

    11. Consent to urine and blood testing;

    12. Fulfilling community service requirement(s);

    13. Successful completion of the SPECS examination of the National Board of Chiropractic Examiners;

    14. Other conditions as appropriate. (Emphasis added).

    
    

20. Having carefully considered the facts of this matter in light of the provisions of Rule 64B2-17.003, it is concluded that Dr. Mitzelfeld's license should be suspended for a period of three months, rather than the one-year minimum recommended by the guidelines, followed by probation of his license for a period of two years, and he should be required to pay a fine of

    $1,000.00. Additionally, during his probation and for a period of at least ten years thereafter, the presence of a third person should be required during any examination and treatment by Dr.

    Mitzelfeld of any female patient.

    
    

21. Dr. Mitzelfeld's probation should be conditioned upon his payment of the fine and his completion of ethics courses relating to the practice of chiropractic medicine as it relates to sexual misconduct, as directed by the Board.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the a final order be entered by the Board of Chiropractic Medicine finding that Charles Leroy Mitzelfeld, D.C., has violated Section 460.413(1)(ff), by violating Section 460.412, as alleged in Count 1 of the Administrative Complaint; suspending Dr. Mitzelfeld's license to practice chiropractic medicine for a period of three months from the date the final

order becomes final; requiring the payment of a $1,000.00 administrative fine within a reasonable time after the final order is issued; placing Dr. Mitzelfeld's license on probation for a period of two years; requiring that Dr. Mitzelfeld attend ethics courses relating to the practice of chiropractic medicine as it relates to sexual misconduct, as directed by the Board of Chiropractic Medicine; and requiring the presence of a third person during any examination and treatment by Dr. Mitzelfeld of any female patient during his probation and for a period of not less than ten years thereafter.

DONE AND ENTERED this 28th day of August, 2003, in Tallahassee, Leon County, Florida.

S

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2003.

ENDNOTES

1/ All future references to Sections of Chapter 120, Florida Statutes, will be to Sections of Chapter 120, Florida Statutes (2002), unless otherwise indicated. All references to Sections of Chapter 460, Florida Statutes, will be to Sections of Chapter 460, Florida Statutes (2001), unless otherwise indicated.

Finally, all references to Rules will be to the Florida Administrative Code, unless otherwise indicated.

2/ The evidence failed to prove whether Dr. Mitzelfeld's family members work full- or part-time at Foundation.

3/ During the time relevant this matter, Dr. Mitzelfeld's wife sometimes arrived at Foundation as early as 7:00 a.m., although the evidence failed to prove how often. The evidence failed to prove when other staff members arrived, except for Ms. Smith, who usually arrived between 8:30 a.m. and 10:00 a.m.

4/ Subsequent to the times relevant to this matter, C.H. and her husband divorced.

5/ The evidence failed to prove that this treatment was not a proper chiropractic technique.

6/ After C.H. had departed that morning, Dr. Mitzelfeld signed C.H.'s name onto the sign-in sheet, even though she had not come for treatment and had received none that day.

7/ Without much in the way of corroborating evidence in this case, much of the facts of this matter have been decided after judging the credibility of C.H. and Dr. Mitzelfeld. While both appeared sincere, Dr. Mitzelfeld's account of events was ultimately determined to not be credible. Dr. Mitzelfeld's account of the relevant events has not been credited, at least in part, because of his explanation of why he had not curtailed his treatment of C.H. at an earlier time. According to Dr.

Mitzelfeld, when asked at hearing why he had kept seeing C.H. even though there were signs that she was infatuated with him, he did not stop seeing C.H. because he was also seeing her husband and didn't want to create any problems in their marriage. These explanation defies reasonableness. First,

Dr. Mitzelfeld could have simply told C.H. that he could not see her any more and her husband would not have to be told why.

More importantly, Dr. Mitzelfeld's response to the question indicates that, even under his recollection of events, he realized there might be a sexual problem brewing. Therefore,

even if he did not feel comfortable ceasing treatment of C.H., he could and should have stopped seeing her early in the morning when no one else was present and he could have had someone in the room when he treated her.

8/ Wellbutrin is used for depression, is similar to an amphetamine, and can cause hallucinations or aberrations of thought process; Addreall is a central nervous system stimulant, and amphetamine, and may cause delusions or hallucinations; Serzone, also prescribed for depression, affects the central nervous system and can produce abnormal thought processes; and Zoloft, also used for depression, can further complicate multiple-drug use situations, causing abnormalities of thought.

COPIES FURNISHED:

Christine Thorson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Stephen Marc Slepin, Esquire Slepin & Slepin

Magnolia Center I, Suite 102

203 Governor's Square Boulevard Tallahassee, Florida 32301

Dr. John O. Agwunobi, Secretary Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health

4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 03-000946PL

Orders for Case No: 03-000946PL